REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.20982 OF 2017

INDORE DEVELOPMENT AUTHORITY ...APPELLANT (S)

VERSUS

SHAILENDRA (DEAD)  THROUGH LRS.& ORS. ...RESPONDENT (S)

WITH

SPECIAL LEAVE PETITION (C) No.10742 OF 2008

YOGESH KUMAR & ORS. ...PETITIONER (S)

VERSUS

STATE OF MADHYA PRADESH & ORS. ...RESPONDENT (S)

WITH

SPECIAL LEAVE PETITION (C) No.20920 OF 2011

SPECIAL LEAVE PETITION (C)Nos.26574-26575 OF 2011

SPECIAL LEAVE PETITION (C)No.28993 OF 2011

SPECIAL LEAVE PETITION (C)No.30198 OF 2015

SPECIAL LEAVE PETITION (C)No.30192 OF 2015

SPECIAL LEAVE PETITION (C)No.30142 OF 2015

1

SPECIAL LEAVE PETITION (C)No.30128 OF 2015

SPECIAL LEAVE PETITION (C)No.30203 OF 2015

CIVIL APPEAL No.4835 OF 2015

SPECIAL LEAVE PETITION (C)No.25289 OF 2015

SPECIAL LEAVE PETITION (C)………………CC No.9842 OF 2016

SPECIAL LEAVE PETITION (C) No.22356 OF 2015

SPECIAL LEAVE PETITION (C) No.31678 OF 2015

CIVIL APPEAL NO.4836 OF 2015

SPECIAL LEAVE PETITION (C) No.22527 OF 2015

SPECIAL LEAVE PETITION (C) No.4705 OF 2016

SPECIAL LEAVE PETITION (C) No.30577-30580 OF 2015

SPECIAL LEAVE PETITION (C) No.27389 OF 2015

SPECIAL LEAVE PETITION (C) No.27383 OF 2015

SPECIAL LEAVE PETITION (C) No.34787 OF 2015

SPECIAL LEAVE PETITION (C) No.10190-10200 OF 2017

SPECIAL LEAVE PETITION (C) No.38290 OF 2016

SPECIAL LEAVE PETITION (C) No.9571 OF 2016

SPECIAL LEAVE PETITION (C) No.15127 OF 2016

SPECIAL LEAVE PETITION (C) No.15144 OF 2016

SPECIAL LEAVE PETITION (C) No.15131 OF 2016

2

SPECIAL LEAVE PETITION (C) No.15139 OF 2016

SPECIAL LEAVE PETITION (C) No.16425 OF 2016

SPECIAL LEAVE PETITION (C) No.15117 OF 2016

SPECIAL LEAVE PETITION (C) No.15140 OF 2016

SPECIAL LEAVE PETITION (C) No.9570 OF 2016

SPECIAL LEAVE PETITION (C) No.15113 OF 2016

SPECIAL LEAVE PETITION (C) No.16438 OF 2016

SPECIAL LEAVE PETITION (C) No.15119 OF 2016

SPECIAL LEAVE PETITION (C) No.15126 OF 2016

SPECIAL LEAVE PETITION (C) No.15125 OF 2016

SPECIAL LEAVE PETITION (C) No.15118 OF 2016

SPECIAL LEAVE PETITION (C) No.15124 OF 2016

SPECIAL LEAVE PETITION (C) No.15112 OF 2016

SPECIAL LEAVE PETITION (C) No.11824 OF 2016

SPECIAL LEAVE PETITION (C) No.15143 OF 2016

SPECIAL LEAVE PETITION (C) No.15141 OF 2016

SPECIAL LEAVE PETITION (C) No.15142 OF 2016

SPECIAL LEAVE PETITION (C) No.15213-15217 OF 2017

SPECIAL LEAVE PETITION (C) No.17324 OF 2016

SPECIAL LEAVE PETITION (C) No.38368 OF 2016

3

SPECIAL LEAVE PETITION (C) No.5182-5184 OF 2017

SPECIAL LEAVE PETITION (C) No.23846 OF 2016

SPECIAL LEAVE PETITION (C) No.23097 OF 2016

SPECIAL LEAVE PETITION (C) No.19804-19805 OF 2016

SPECIAL LEAVE PETITION (C) No.22127-22128 OF 2016

SPECIAL LEAVE PETITION (C) No.21997-21998 OF 2016

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

SPECIAL LEAVE PETITION (C) ..  Diary No.24901 OF 2017

J U D G M E N T

ARUN MISHRA, J.  

1. In  Indore Development Authority v. Shailendra (Dead) through

LRs. & Others [C.A No.20982 of 2017] correctness of the decision of

Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki

[2014  (3)  SCC  183]  has  been  doubted.  The  main  issue  is

interpretation of section 24 of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, 2013 (for short, ‘the Act of 2013’) and section 31 of the Land

Acquisition Act, 1894 (for short, ‘the Act of 1894’).  

2. In  Yogesh Neema & Ors.  v.  State  of  M.P.  & Ors. [S.L.P.  [C]

No.10742 of  2008]  vide order  of  12.1.2016,  observing that  other

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question,  that  may  arise  undoubtedly  to  be  considered  question

Nos. IV and V have been referred.

Following questions arises for consideration:

I. What  is  the  meaning  of  the  expression  ‘paid'/  ‘tender'  in

Section 24 of  the Act  of  2013 and section 31 of  the Act  of

1894?  Whether non-deposit of  compensation in court under

section  31(2)  of  the  Act  of  1894  results  into  a  lapse  of

acquisition under section 24(2) of the Act of 2013. What are

the  consequences  of  non-deposit  in  Court  especially  when

compensation has been tendered and refused under section

31(1) of the Act of 1894 and section 24(2) of the Act of 2013?

Whether  such  persons  after  refusal  can  take  advantage  of

their wrong/conduct?

II Mode  of  taking  physical  possession  as  contemplated  under

section 24(2) of the Act of 1894.

III Whether section 24 of  Act of  2013 revives barred and stale

claims?

IV. Whether the conscious omission referred to in paragraph 11 of

the judgment in  Shree Balaji Nagar Residential Association v.

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State of Tamil Nadu [(2015) 3 SCC 353] 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 the 2013 Act?

V. 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?

In Re: Question No.1

3.  Question  that  has  been  referred  in  as  to  meaning  of  the

expression ‘paid' used in section 24 of Act of 2013 and expression

‘tender' used in section 31(1) of Act of  1894 when deposit under

section 31(2) of Act of 1894 is necessary, effect of refusal to accept

compensation and whether deposit in treasury is permissible and

effect of non-deposit of compensation in Court.

4. In order to appreciate the various questions to be answered, it

is appropriate to first consider the provisions contained in the Act of

1894 with respect to the passing of  the award,  together with its

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communication  and  payment;  the  following  then  is  a  ‘bird’s  eye

view’ of the same.

SCHEME OF ACT & RELEVANT PROVISIONS :

5. After  notification  under  section  4  and  declaration  under

section 6 have been issued under the Act of 1894, the Collector is

required to proceed to pass an award under section 11. Section 12

requires the Collector to give immediate notice of the award to such

persons  interested  as  are  not  present  personally  or  by  their

representatives when the award is made. Section 16 deals with the

power of the Collector to take possession of the land after an award

has been made under section 11. It is open to the Collector to take

possession of the land, which shall, thereupon, vest absolutely in

the Government. Section 16 is extracted hereunder:  

“16. Power to take possession – When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances. (emphasis supplied)

6. Section 17 deals with special powers in cases of urgency. The

same authorizes the Collector to take possession before passing of

the award as provided in section 17(1) of the Act of 1894, and on

taking  possession  of  any  land,  such  land  shall  thereupon  vest

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absolutely in the Government, free from all encumbrances. Section

17 is extracted hereunder:

“17.  Special  powers  in  case  of  urgency  –  (1)  In  cases  of urgency whenever  the  [appropriate  Government],  so  directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, subsection 1). [take possession of any land needed for a public purpose]. Such land shall thereupon [vest  absolutely  in  the  [Government],  free  from  all encumbrances.  (2) Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary  for  any  Railway  Administration  to  acquire  the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or accesses to any such station, [or the appropriate Government considers it necessary to acquire the immediate possession of any land for  the  purpose  of  maintaining  any  structure  or  system pertaining  to  irrigation,  water  supply,  drainage,  road communication or electricity,] the Collector may immediately after the publication of the notice mentioned in sub-section (1) and  with  the  previous  sanction  of  the  [appropriate Government],  enter  upon and take  possession  of  such land, which shall thereupon [vest absolutely in the [Government]] free from all encumbrances : Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight  hours  notice  of  his  intention  so  to  do,  or  such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.  (3) In every case under either of the preceding sub-sections the Collector shall at that time of taking possession offer to the persons  interested  compensation  for  the  standing  crops  and trees  (if  any)  on  such  land  and  from  any  other  damage sustained by them caused by such sudden dispossession and not  excepted  in  section  24;  and,  in  case  such  offer  is  not accepted, the value of such crops and trees and the amount of such  other  damage  shall  be  allowed  for  in  awarding compensation  for  the  land  under  the  provisions  herein

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contained.  3[(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3)- (a) tender payment of eighty per centum of the compensation for such land as estimated by him to the person interested entitled thereto, and (b) pay it to them,  unless  prevented  by  some  one  or  more  of  the contingencies  mentioned  in  section  31,  sub-section  (2),  and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section.  (3B) The amount paid or deposited under section (3A), shall be  taken  into  account  for  determining  the  amount  of compensation required to be tendered under section 31,  and where  the  amount  so  paid  or  deposited  exceeds  the compensation awarded by the Collector under section 11, the excess may, unless refunded within three months from the date of  Collector's  award,  be  recovered  as  an  arrear  of  land revenue]. [(4) In the case of any land to which, in the opinion of the [appropriate Government], the provisions of sub-section (1)  or  sub-section  (2)  are  applicable,  the  [appropriate Government] may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time [after the date of  the  publication  of  the  notification]  under  section  4, sub-section (1).”                                              (emphasis supplied)

Before  taking  possession of  the  land,  it  is  necessary  under

Section  17(3A)  to  tender  payment  of  80%  compensation  unless

prevented by some one or more of the contingencies mentioned in

sub-section  (2)  of  section  31,  and  where  the  Collector  is  so

prevented,  the  provisions  of  section  31(2),  except  the  second

proviso, shall apply as they apply to the payment of compensation

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under that section. As required under section 17(3A) and section

17(3B), the amount paid or deposited under sub-section (3A) shall

be taken into account for determining the amount of compensation

to  be  tendered under  section 31.  Section 18 of  the  Act  of  1894

provides  that  any  person  interested,  who  has  not  accepted  the

award, may ask for a reference to be made to the court with respect

to (1) measurement of the land; (2) the amount of compensation (3)

the persons to whom it is payable or (4) the apportionment of the

compensation  among  the  persons  interested.  Under  section  30,

there can be a reference to the court; its scope is confined to any

dispute  arising  as  to  the  apportionment  of  the  amount  of

compensation or any part thereof, or as to the persons to whom the

same or any part thereof is payable. In a reference under section 30,

measurement  of  land  and  quantum  of  compensation  cannot  be

questioned. There is a limitation for reference under section 18(2);

whereas,  the  limitation  is  not  prescribed  in  the  Act  of  1894 for

seeking reference under section 30.

7. There is yet another reference under the Act of 1894, i.e. under

section 28A. The provisions of section 28A aim at removal of the

disparity in the matter of payment of compensation which provides

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for re-determination of the amount of compensation, on the basis of

the award of the court, in respect of a person who had not sought

reference, and had accepted the Collector’s award; such a person

can  seek  re-determination  of  compensation  within  three  months

from the date of the award of the court. In case a person is not

satisfied with the re-determination so made under section 28A(2),

he can seek a reference to court under section 28A(3).

8. The payment  of  compensation and deposit  of  it  in Court  is

dealt with in Part V of the Act of 1894, in section 31. Section 31 is

extracted hereunder:  

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

(2)  If  they shall  not consent to receive it,  or if  there be no person  competent  to  alienate  the  land,  or  if  there  be  any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the  compensation  in  the  Court  to  which  a  reference  under section  18  would  be  submitted:  Provided  that  any  person admitted  to  be  interested  may  receive  such  payment  under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.  

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

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

9. The provision of section 31(2) makes it clear that only in the

exigencies  as  provided  in  section  31(2),  the  amount  has  to  be

deposited in reference court,  not in all  exigencies.   As discussed

hereinafter rules framed under section 55 provide that in case a

person  seeks  no  reference  and  he  refuses  to  accept  the

compensation it has to be deposited in the treasury.  An attempt

has to be made to harmonize the Act and the rules. The expression

used in section 31(2) is that on refusal amount to be deposited in

Court where reference would be submitted.  When no reference is

sought  there  is  no  question  of  it  being  submitted  to  the  Court.

Hence, Reference Court does not come into picture then the deposit

is to be obviously made in treasury as provided in Rules/ Order

discussed hereinafter.  

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10. Sub-section (1) of section 31 deals with "payment", whereas,

sub-section (2) of section 31 deals with "deposit" of the amount of

compensation  in  court  in  certain  contingencies.  "Payment"  of

compensation is differently dealt with in section 31(1), and "deposit"

is separately dealt with in section 31(2) of the Act of 1894. Section

31(1) provides tender of  the amount to be the mode to pay. The

provisions of sub-section (1) deal with payment, and sub-section (2)

of section 31 deals with deposit in the Court “where reference would

be submitted”, only in the contingencies mentioned,  i.e. (1) if the

person interested shall  not consent to receive it,  and has sought

reference to Court or (2) if there be no person competent to alienate

the  land,  or  (3)  if  there  be any dispute  as to  the  entitlement  to

receive the compensation, or (4) if there be any dispute as to the

apportionment  of  compensation  between  the  interested  persons.

The Collector is required to deposit the amount of the compensation

in  the  Court  to  which  a  reference  under  section  18  would  be

submitted. It is also provided in section 31(2) that no person who

has  received  the  amount  otherwise  than  under  protest  shall  be

entitled to make an application for seeking reference under section

18. It is open to a person, under the first proviso to section 31(2), to

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receive payment of compensation under protest as to the sufficiency

of  the  amount,  and  such  person  is  also  entitled  to  maintain  a

reference. The third proviso to section 31(2) makes it clear that any

person who has received the whole  or  any part  of  compensation

awarded under the Act, shall still  be liable to pay the same to a

person who is lawfully entitled thereto. It is with the purpose as

provided  in  section  31  when  the  amount  is  tendered  it  can  be

accepted under protest and still a reference can be maintained. In

case awarded amount has been accepted without protest, reference

cannot be maintained under section 18.  

11. In case of  incompetency of  a person to alienate the land in

question, amount has to be deposited in the reference court under

section  31(2),  and  when  money  of  such  person  is  deposited  in

Court, court may order the money to be invested in the purchase of

another  land  to  be  held  under  the  like  title  and  conditions  of

ownership, as the land, in respect of which, such money shall have

been deposited, was held, or if such purchase cannot be effected

forthwith, money can be invested in Government or other approved

securities as the court shall think fit and has to be dealt with in

accordance with the provisions contained in section 32. Section 33

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deals with an investment of money deposited in other cases.   

12. In case money is deposited in court otherwise than as provided

under section 32, any party interested can apply to the court for

investing the same in Government or other approved securities, is

the purpose of deposit. The provisions of sections 32 and 33 of the

Act of 1894 are extracted hereunder:

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

(1)  If  any  money  shall  be  deposited  in  Court  under sub-section  (2)  of  the  last  preceding  section  and  it appears that the land in respect whereof the same was awarded belonged to any person who had no power to alienate the same, the Court shall- (a) order the money to be invested in the purchase of other lands to be held under the like title and conditions of  ownership  as  the  land  in  respect  of  which  such money shall have been deposited was held, or  (b) if such purchase cannot be effected forthwith, then in such Government of other approved securities as the Court shall think fit;  and  shall  direct  the  payment  of  the  interest  or  other proceeds arising from such investment to the person or persons  who  would,  for  the  time  being,  have  been entitled  to  the  possession  of  the  said  land,  and  such moneys shall remain so deposited and invested until the same be applied-

(i)in  the  purchase  of  such  other  lands  as aforesaid; or  (ii)  in  payment  to  any  person  or  persons becoming absolutely entitled thereto.

(2)  In  all  cases  of  money  deposited  to  which  this section  applies  the  Court  shall  order  the  costs  of  the following  matters,  including  therein  all  reasonable

15

charge and expenses incident thereon, to be paid by the Collector, namely: -  (a) the costs of such investments as aforesaid; (b) the costs  of the orders for  the payment of the interest  or other  proceeds  of  the  securities  upon  which  such moneys  are  for  the  time  being  invested,  and  for  the payment out of Court of the principal of such moneys, and of all proceedings relating thereto, except such as may  be  occasioned  by  litigation  between  adverse claimants.  

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

13. The  provisions  contained  in  section  34  deals  with  the

exigencies  where  the  amount  of  compensation  is  not  paid  or

deposited on or before taking possession of the land. The Collector

shall pay the amount awarded with interest thereon @ 9% from the

time of  so taking possession until  it  shall  have  been so paid or

deposited; and if such compensation or any part thereof is not paid

or deposited within one year from the date on which possession is

taken, interest @ 15% per annum shall follow. Section 34 of 1894

Act is extracted hereunder:

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“34.  Payment  of  interest  -  When  the  amount  of  such compensation  is  not  paid  or  deposited  on  or  before  taking possession  of  the  land,  the  Collector  shall  pay  the  amount awarded with interest thereon at the rate of (nine per centum) per annum from the time of so taking possession until it shall have been so paid or deposited:  [Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is  taken,  interest  at  the rate of  fifteen per centum per annum shall be payable from the date or expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.”

14. The expression “paid”/“tender” and the expression “deposited”

have both been used separately in section 31, as well as in section

34, of the Act of 1894; so also in Section 24(2) of the Act of 2013.

They carry different meanings, and different consequences flow from

them. Significantly, it is clear under Section 16 of the Act of 1894,

that once award has been passed and possession has been taken,

land absolutely vests in the State, and in the case of contingencies

as provided in section 17(1) when possession is taken in the case of

urgency, even before passing of the award, land vests absolutely in

the  State  under  section  17(3A),  80%  amount  is  required  to  be

tendered before taking possession under sections 17(1) and 17(2);

and,  the  same is  to  be paid in  the  mode as  provided for  under

section 31(1) and, in case of refusal, incompetency etc. to alienate

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and other such cases as provided under section 31(2), it has to be

deposited  in  the  court  and  in  case  it  is  not  so  deposited,

consequences, as prescribed under section 34, shall follow i.e. from

the date of taking possession 9% interest for the first year and after

1 year, 15% interest has to be paid on the amount not so paid or

deposited.  Under  the  provisions  of  the  Act  of  1894,  there  is  no

divesting of the land which has vested absolutely in the State; and,

the  consequences  of  non-payment,  or  of  non-tendering  of

compensation, or of non-depositing of the same in court, would only

be that of the additional liability of interest as provided in section

34. The provision with respect to the payment of 15% interest has

been inserted via the proviso to section 34,  w.e.f. 24.9.1984, vide

Amendment Act No.68/1984.

15. When we consider the provisions of the Act of 2013, vis-à-vis

those of the Act of 1894, it becomes apparent that Section 11 of the

Act of 2013 is akin to section 4 of the Act of 1894. Section 19 deals

with publication of declaration and summary of Rehabilitation and

Settlement, it is equivalent to section 6 of the Act of 1894. Section

23  deals  with  matters  to  be  considered  while  determining

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compensation by the Collector.

16. Section  24  of  the  Act  of  2013  deals  with  land  acquisition

process initiated under the Act of 1894, which shall be deemed to

have  lapsed  in  certain  cases.  With  respect  to  acquisition,  when

award, under the Act of 1894, has not been passed, then, as per

Section 24(1)(a) of the Act of 2013, all the provisions of the Act of

2013  relating  to  the  determination  of  compensation  shall  apply;

where, however, an award under section 11 of the act of 1894 has

been made,  then such proceedings  shall  continue,as  per  section

24(1)(b),  under the Act  of  1894, as if  the said Act has not been

repealed.

17. Section  24(2)  begins  with  a  non-obstante  clause  —  as

notwithstanding  anything  contained  in  sub-section  (1).  The

provisions  of  sub-section  (2)  of  section  24  shall,  under  the

exigencies provided therein, have the overriding effect, i.e. in case of

award, under Act of 1894, has been made five years or more prior to

the  commencement  of  the  Act  of  2013,  but  either  the  physical

possession has not been taken, or compensation has not been paid,

the said proceedings shall be deemed to have lapsed. The proviso to

section  24(2)  lays  down  when  the  award  has  been  made  and

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compensation  in  respect  of  majority  of  holdings  has  not  been

deposited in the account of the beneficiaries, the acquisition would

not  lapse;  however,  all  the  beneficiaries  shall  be  entitled  to

compensation in accordance with the provisions of the Act of 2013.

18.  When we consider  the  scheme of  the  Act  of  2013 also  with

respect to the mode of payment of compensation, we find provisions

of section 77 are almost akin to those of section 31. The provisions

of section 77 of the Act of 2013 are extracted hereunder:

“77. Payment of compensation or deposit of same in Authority. –(1) On making an award under section 30,  the Collector shall  tender payment  of  the  compensation  awarded  by  him  to  the  persons interested entitled thereto according to the award and shall pay it to them  by  depositing  the  amount  in  their  bank  accounts  unless prevented by someone or more of the contingencies mentioned in sub-section (2).  

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

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

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

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

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19. Section 80 of the Act of 2013, is equivalent to section 34 of the

Act of 1894, the same is extracted hereunder:

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

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

20. It is apparent, from the provisions contained in section 77 of

the Act of 2013, that, the expression used in section 77 that the

Collector  shall  “tender”  payment  of  the  compensation  to

landowners/interested persons, and the obligation is to pay it  to

them  by  depositing  the  amount  in  their  bank  accounts  unless

prevented  by  exigencies  provided  in  section  77(2),  are  akin  to

section 31(2) of the Act of 1894.

21. In proviso to section 24(2), expression used is compensation

has not been “deposited” in the account of the beneficiaries, which

may be deposited separately in treasury also; whereas, in section

77, of the Act of 2013 the deposit is required, in the “bank” account

of beneficiaries, unless refused. The expression “bank-account” has

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not been used in section 31 of the Act of 1894 or in section 24(2) of

Act  of  2013.  In  proviso  to  section  24(2),  the  expression  used

“deposited in account” would mean deposited only in Treasury or

with the Land Acquisition collector for payment.  

22. It is pertinent to mention that section 80 of the Act of 2013

also imposes a liability of interest, akin to Section 34 of the Act of

1894, upon amount not being deposited;  i.e. 9% for the first year

and, thereafter, 15% per annum. The Act of 2013 does not envisage

the  consequence  of  lapse  of  the  acquisition  on  non-deposit  of

compensation in court, and neither was it so provided for in section

31 of the Act of 1894. The provision of section 24 thus does not

contemplate  deposit  of  amount  in  Court.  In  our  opinion,  the

expression  "paid"  and  "deposited"  are  separately  used  in  both

enactments, and they both carry a different meaning. The aforesaid

provisions  deal  with  tender  and  deposit;  and,  consequences  are

similar.  

INTERPRETATION OF   SECTION 24

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

“24. Land acquisition process under Act No. 1 of 1894 shall be  deemed  to  have  lapsed  in  certain  cases.–(1) Notwithstanding anything contained in this Act, in any case of

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land  acquisition  proceedings  initiated  under  the  Land Acquisition Act, 1894,—  

(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or  (b)  where  an  award  under  said  section  11  has  been made, then such proceedings shall  continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.  

(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate  Government,  if  it  so  chooses,  shall  initiate  the proceedings of such land acquisition afresh in accordance with the provisions of this Act:  Provided  that  where  an  award  has  been  made  and compensation in respect of a majority of land holdings has not been deposited  in  the  account  of  the  beneficiaries,  then,  all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.”

24. When we consider the provisions of section 24 of the 2013 Act,

it is clear that in case of the award has not been passed then as per

section 24(1)(a), compensation has to be determined under the Act

of 2013. It is also clear that 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

23

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.

25. 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"

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has been used. The word "deposited" is missing from main part of

section 24(2), and it is only used in the proviso. Thus it is crystal

clear  that  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.

26. 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.

27. The different expression “paid”,  used in section 24(2)  of  the

2013 Act, thus, cannot carry same meaning and include in it the

deposit to be made in Court under section 31(2) of the Act of 1894;

it  only  reflects  the mode of  payment as envisaged under  section

31(1) of the Act of 1894 i.e. “tender”.

28. 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

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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.

29. In Section 31(2) of the 1894 Act, the word ‘deposited in Court’

is used.  The deposit in Court is not payment to the beneficiaries. It

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 of 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.

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30.   The proviso to section 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 does obviously contemplate that

amount has not been ‘paid' to landowners/ beneficiaries/ interested

persons.  Thus, when Scheme of entire section 24 is considered, the

concept  of  ‘paid'  in  the  main  section 24(2)  is  different  than the

deposit. If the deposit is included in word paid the proviso to section

24(2),  which has the different consequence of  no lapse, but only

higher compensation would be otiose and become redundant and

repugnancy would occur.

31. It is clear that expression ‘paid’ in section 24 is different than

‘deposit’  which  is  provided  in  its  proviso.  The  word  ‘deposit’  is

included in section 24 in word ‘paid’.  Same is the position even

under section 31(1) and 31(2).  The provisions of section 24 cannot

be  rendered  wholly  unworkable  by  the  inclusion  of  ‘deposit'  in

‘paid'.

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

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32. The question arises what is the meaning of the expression ‘paid'

in  section  24  and  ‘tender'  in  section  31(2)  of  the  Act  of  1894.

Whether  the  tender  of  compensation  amount  to  discharge  of

obligations to make payment. 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" has been defined in Black's Law Dictionary thus:

“tender,  n. (16c)  1.  A  valid  and  sufficient  offer  of performance;  specific,  an  unconditional  offer  of  money or performance  to  satisfy  a  debt  or  obligation  a  tender  of delivery.The  tender  may  save  the  tendering  party  from  a penalty for  non-payment  or  non-performance or  may, if  the other  party  unjustifiably  refuses  the  tender,  place  the  other party  in  default.  Cf.  OFFER  OR  PERFORMANCE; CONSIGNATION.”

    It  is  apparent  from  aforesaid  that  "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. A formal offer duly

made  by  one  party  to  another  especially  an  offer  of  money  in

discharge of liability fulfills the terms of the law and of the liability.

Tender is to offer of money in satisfaction of a debt, by producing

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and  showing  the  amount  to  a  creditor  or  party  claiming  and

expressing verbally, willingness to pay it. The expression "tender"

has been used in section 31.The concept of deposited in court is

different from tender and “paid”.

33. This  Court  in  the  Straw  Board  Manufacturing  Co.  Ltd.,

Saharanpur v. Gobind, AIR 1962 SC 1500 has held in the context of

section 33 of  the  Industrial  Disputes  Act  where  payment  of  one

month's  wages  was  necessary.  It  was  held  that  the  payment  of

one-month wages can always mean that the employer has tendered

his  wages  and  that  would  amount  to  payment  for  otherwise  a

workman could always make the section unworkable by refusing to

take wages. The Court observed thus:

"8.  Let  us  now  turn  to  the  words  of  the  proviso  in  the background of  what we have said above.  The proviso lays down  that  no  workman  shall  be  discharged  or  dismissed unless  he  has  been  paid  wages  for  one  month  and  an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. It will be clear that two kinds of punishment  are  subject  to  the  conditions  of  the  proviso, namely, discharge or dismissal. Any other kind of punishment is not within the proviso. Further, the proviso lays down two conditions, namely (i) payment of wages for one month and (ii) making of an application by the employer to the authority before which the proceeding is pending for approval of the action taken. It is not disputed before us that when the proviso lays down the condition as to payment of one month's wages, all that the employer is required to do in order to carry out that condition is to tender the wages to the employee. But if

29

the  employee  chooses  not  to  accept  the  wages,  he  cannot come  forward  and  say  that  there  has  been  no  payment  of wages to him by the employer. Therefore, though s. 33 speaks of payment of one month's wages it can only mean that the employer has tendered the wages and that would amount, for payment,  for otherwise, a workman could always make the section unworkable by refusing to take the wages. So far as the second condition about the making of the application is concerned."  (emphasis supplied)

34. In  The  Management  of  Delhi  Transport  Undertaking  v.  The

Industrial  Tribunal,  Delhi  &Anr.  AIR  1965  SC  1503,  a  3-Judge

Bench of this Court considered the question of payment of wages

under the proviso to section 33(3) of Industrial Disputes Act and

has taken a similar view and observed:

“The proviso does not mean that  the wages for one month should have been actually  paid because in  many cases  the employer can only tender the amount before the dismissal but cannot  force  the  employee  to  receive  the  payment  before dismissal  becomes  effective.  In  this  case,  the  tender  was definitely  made  before  the  order  of  dismissal  became effective  and the  wages  would certainly  have been paid if Hari  Chand  had  asked  for  them.  There  was  no  failure  to comply with the provision in this respect.”

35. This Court in Indian Oxygen Ltd. v. Narayan Bhoumik (1968) 1

PLJR 94 has discussed the concept of ‘paid’ and has observed:  

“4.  The  proviso  to  Section  33(2)(b)  lays  down  that  no workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by him. Though the word used in the proviso is 'paid',  the proviso does not mean that the employer must actually hand over or pay to the

30

workman dismissed or discharged his one month's wages. In (1962) 3 Suppl. S.C.R. 618] Strawboard Manufacturing Co. v. Gobind  this  Court  while  construing  this  proviso,  observed that when it lays down the condition as to payment of one month's wages all that the employer is required to do to carry out that condition is to tender the wages to the employee. But if the employee chooses not to accept them, he cannot come forward and say that there has been no payment of wages to him by the employer, Therefore, though Section 33 speaks of payment  of  one  month's  wages,  it  can  only  mean  that  the employer has tendered the wages and that would amount to payment,  for otherwise, a workman could always make the section unworkable by refusing to take the wages. In (1964) 2 SCR 104, 109 P.H. Kalyani v. M/s. Air France, the employer had offered one month's  wages to  the  workman before  the order of dismissal against him came into force. The offer was held  to  be  sufficient  compliance  of  the  said condition  laid down in  the  proviso,  [(1955)  1 SCR 998]  Management  of Delhi Transport Undertaking v. Industrial Tribunal, Delhi was a case where the wages were remitted by money order but the workman purposely refused to receive them. It was held that the employer could not be said not to have complied with the condition laid down by the proviso. It is thus clear that the condition as to payment in the proviso does not mean that the wages have to be actually paid but if wages are tendered or offered, such a tender or offer would be sufficient compliance for the purposes of Section 33(2)(b) proviso.”

36. The  word  "paid"  means  applied,  settled  or  satisfied.  The

concept  of  paid  has  also  been  considered  by  this  Court  in  The

Benares  State  Bank  Ltd.  v.  The  Commissioner  of  Income  Tax,

Lucknow, (1969) 2 SCC 316, in the context of  section 14(2)(c)  of

Income Tax  Act,  1922.  This  Court  observed  that  the  expression

"paid" in section 16(2) does not contemplate actual receipt of the

dividend by the members of the community; in general, the dividend

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may be said to be paid when company discharges its liability and

makes  the  amount  of  dividend  unconditionally  available  to  the

member entitled thereto. The Court has observed:  

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

37.  In N.B. Sanjana, Assistant Collector of Central Excise, Bombay

& Ors.  v. The Elphinstone Spinning & Weaving Mills Co. Ltd. (1971)

1 SCC 337,  the court  observed that  literal  meaning of  the word

"paid" need not be adopted.  

38. In  J.Dalmia  v.  Commissioner  of  Income Tax,  New Delhi,  AIR

1964 SC 1866 at 1869, this Court has observed that the expression

“paid” does not contemplate actual receipt of the dividend by the

member. The dividend may be said to be paid within the meaning of

section 16(2) when the company discharges its liability and makes

amount unconditionally available the members entitled thereto.  

“The expression "paid" in s.  16(2) it  is true does not contemplate actual receipt of the dividend by the member. In general, dividend may be said to be paid within the meaning of s. 16(2) when the company discharges its liability and makes

32

the  amount  of  dividend  unconditionally  available  to  the member entitled thereto.

(emphasis supplied)

39. 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. 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.

“Paid” does not mean receipt or deposited in Court. There may be

refusal to receive an amount in spite of its tender. Thus, in view of

the  decisions  of  this  court  in  CIT  Kerala (supra),  N.B.  Sanjana

(supra) and J. Dalmia (supra), the provisions of section 24(2) have to

be construed to mean tender of amount would mean payment as

envisaged.

40. It is settled that a Court cannot add or subtract a word; the

expression “compensation has  not  been paid”  is  used  in  section

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’. In the “Principles of Statutory Interpretation” by G.P. Singh

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(14th edition), it has been observed that court has to avoid addition

or substitution of the words. Thus, when the word “paid” is there, it

is not open to adding "deposited", particularly when the scheme of

the Act of 1894 also contains different provisions in section 31(1)

with respect  to  tender  is  payment,  while  section 31(2)deals  with

deposit  in  the  court;  on  non-deposit  consequence  in  section 34,

later is not a payment made to the landowner. The deposit is only in

certain exigencies with a view to wiping off the liability of making

payment of interest as provided in section 34.  

41(a).   While interpreting a statutory provision, no addition to, or

subtraction from, the Act is permissible.  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.  The learned author in Interpretation of Statutes

has referred to the Privy Council decision in  Crawford v. Spooner,

(1846) 6 Moore PC 1 and Lord Howard de Walden v. IRC, (1948) 2

AER 825 and other decisions of the Court and observed:

“…….(a) Avoiding addition or substitution of words

As  stated  by  the  Privy  Council:  “We  cannot  aid  the Legislature’s    defective phrasing of an Act, we cannot add or mend and, by construction makeup deficiencies which are left there".  "It is contrary to all rules of construction to read words

34

into  an  Act  unless  it  is  absolutely  necessary  to  do  so." Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the statute. Speaking briefly the court cannot reframe the legislation for the very good reason that it has no power to legislate. x xxxx

While  interpreting  section  621-A(1)  of  the  Companies  Act, 1956,  the  Supreme  Court  held  that  the  Court  must  avoid rejection  or  addition  of  words  and  resort  to  that  only  in exceptional circumstances to achieve the purpose of the Act or to give a purposeful  meaning to  the  section.  Section 621-A provides for  compounding,  by the Company Law Board,  of any offence punishable  under the  Act,  not  being an offence punishable with imprisonment only, or with imprisonment and also  with  fine,  either  before  or after  the  institution  of  any prosecution. It was held that the Company Law Board has the power to compound such offences without the permission of the Court. Since the Legislature, in its wisdom, has not put the rider of prior permission in the section, addition of the words ‘with the prior permission of the court’ to the provision is not permissible.    

Section  2(2)  of  the  Arbitration  and  Conciliation  Act,  1996, which is  in Part  I  of the Act,  provides that  ‘This Part  shall apply  where  the  place  of  arbitration  is  in  India.  In  Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc., a Constitution Bench of the Supreme Court rejected the contention  that  Part  I  of  the  Act  was  also  applicable  to arbitrations seated in foreign countries on the ground that in such a case certain words would have to be added to section 2(2),  which would then have to provide that  ‘this  part  shall apply  where  the  place  of  arbitration  is  in  India  and  to arbitrations having its place out of India’.  This would amount to  a  drastic  and  unwarranted  rewriting  or  alteration  of  the language of section 2(2), and it is not permissible for the Court to  reconstruct  a  statutory  provision. In  this  case,  the Constitution Bench prospectively overruled the decision of a three-Judge  Bench  of  the  Supreme  Court  in  Bhatia International  v.  Bulk  Trading  SA,  which  had  held  that provisions of Part I would apply to international commercial arbitrations held outside India unless the parties, by agreement, express or implied, exclude all or any of its provisions.

35

x xxxx

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

Further,  in  interpreting  section  6(a)  and  section  43  of  the Transfer of Property Act, 1882, the Supreme Court refused to read a further exception in section 43 excluding its operation in cases  of  transfer  of  spessuccessionis.  VENKATARAMA AIYER, J.  quoted with approval the  observations of  LORD LOREBURN, L.C., “We are not entitled to read words into an Act  of     Parliament  unless  clear  reason  for  it  is  to  be  found within the four corners of the Act itself”. x xxxx 0n the same principle the House of Lords refused to read the word ‘satisfied’ in section 4 of the Matrimonial Causes Act, 1950 to mean ‘satisfied     beyond reasonable doubt’. X xxxx

Sections  12(5)  and  15(5)  of  the  Right  to  Information  Act, 2005,  while  providing  that  the  Chief  Information Commissioner  and  Information  Commissioners  shall  be persons of eminence in public life, with wide knowledge and experience  in  law,  science,  and  technology,  social  science, management,  journalism,  mass  media  or  administration  and governance,  do  not  further  prescribe  any basic  qualification which such persons must have in the respective fields in which they  work.  As  a  result,  the  Court  cannot  read  into  the provisions of sections 12(5) and 15(5) of the Act the words that such persons must have a basic degree in their respective fields.'”

(emphasis supplied)

36

41(b).    This  Court  in  Nali  Nalinakhya  Bysack  v.  Shyamsunder

Halder, AIR 1953 SC 148 at 152, State of Madhya Pradesh v. G.S.

Dall and Flour Mills, AIR 1991 SC 772, State of Gujarat and Others

v.  Dilipbhai  Nathjibhai  Patel  and  Another (1998)  3  SCC  234,

Competition  Commission  of  India  v.  Steel  Authority  of  India  Ltd.

(2010) 10 SCC 744,  Assessing Authority cum-Excise and Taxation

Officer v. East India Cotton Mfg. Co. Ltd. (1981) 3 SCC 531,  Paul

Enterprises & Ors. v. Rajib Chatterjee & Co. & Ors., AIR 2009 SC

187,  Sakshi v. Union of India (2004) 5 SCC 518,  Commissioner of

Income Tax, Kerala v. Tata Agencies (2007) 6 SCC 429, Ram Narain

Medhi v. State of Bombay AIR 1959 SC 459, S.P. Gupta v. President

of India AIR 1982 SC 149, Dadi Jagannadham v. Jammulu Ramulu

(2001) 7 SCC 71, P.K. Unni v. Nirmala Industries AIR 1990 SC 933,

Crawford v. Spooner (1846) 6 Moore PC 1, Royal Trust Company v.

Minister of Finance AIR 1921 PC 184, Padma Sundara Rao (dead) &

Ors. v. State of T. N. & Ors.   (2002) 3 SCC 533 has observed that

what legislation wanted has been stated in the provision.  The court

cannot give extended meaning to the expression.  It is not open to

the Court to aid defective phrasing of the Act or to make up for the

deficiencies.   It  is  not  open  to  the  Court  to  recast,  rewrite,  or

37

reframe the provision.  The court cannot assume omission and add

or amend words.  Plain and unambiguous construction has to be

given  without  addition  and  substitution  of  the  words.   The

temptation  of  substituting  words  by  explaining  what  it  thought

legislation  is  endeavoring  is  to  be  discouraged.   Court  has  to

consider what has been said and what has not been said.  It  is

wrong and dangerous to proceed by substituting some other words

for  the  words of  the  statute.   When literal  reading  produces  an

intelligible  result  it  is  not  open  to  read  words  or  add  words  to

statute. Making any generous addition to the language of the Act

would  not  be  a  construction  of  the  statutory  provision;  rather,

would be an amendment thereof. While interpreting the provision

the Court only interprets the law.  The intention of the legislation

must be found by the words used by the legislature itself.   The

legislative  casus  omissus cannot  be  supplied  by  judicial

interpretative  process.  When  language  of  the  provision  is  clear,

there is no scope for reading something into it. The scenario that

thus emerges  in  relation to  an interpretationof  a  statute  can be

explained as follows. It is a salutary principle that it is not open to

the Court to add or substitute some words in place of the words of

38

the  statute.  The  court  cannot  reframe  the  legislation.  The  court

cannot  add  to,  or  amend,  the  provisions;  neither  can  the

expressions used in the statute be treated as fungible.

We  need  not  add  any  word  when  Section  24(2)  uses  the

expression “compensation  has  not  been  paid”.   To  complete  the

payment, we cannot read words into it to the effectthat deposit of

payment in the court is payment to the landowners. It is clear that

unless it is absolutely necessary to do so, it is not open to read the

word  "deposited"  in  court  as  part  of  ‘paid'  when  payment  is

contemplated to the landowners.  The consequence of nondeposit is

culled out in proviso to section 24(2).  It is not that section 31(2)

would become meaningless. Hence, 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.

42. What  follows  from  the  aforesaid  enunciation  is  that  the

legislature has consciously  omitted the expression “deposited”  in

main section 24(2), whereas, it is used in the proviso; both have

39

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).  

43. The word “paid”, in view of the different consequences of paid

and deposited, has to be given different meaning from “deposited”.

Otherwise,  if  it  were  the  case  that  ‘deposit’  is  included  in  the

‘payment’,  then there would have been no necessity of using two

different  expressions,  in  different  provisions,  carrying  different

consequences.  Deposit  made  in  the  court  cannot  be  said  to  be

payment  made  to  the  landowner  i.e.  persons

interested/beneficiaries. Thus, in case of 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 section

40

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 section 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 section 34.

44. 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.

It is the duty of the courts to avoid "a head-on clash", as held in Raj

Krushna  v.  Binod  Kanungo,  AIR  1954  SC  202,  at  203;  Sultana

Begum  v.  Premchand  Jain,  AIR  1997  SC  1006,  at  page  1109;

41

Kailash  Chandra  v.  Mukundi  Lal,  (2002)  2  SCC 67;  and,  CIT  v.

Hindustan Bulk Carriers, (2003) 3 SCC 57, at p.74.  

45. When we apply  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. As discussed, the provisions would

be irreconcilable, and an anomalous result would be occasioned.

46. This Court, in  Balasinor Nagrik Cooperative Bank Limited vs.

Babubhai Shankerlal Pandya, (1987) 1 SCC 606, held that a section

is to be interpreted by reading all its parts altogether, and it is not

permissible to omit any part thereof.   Thus,  in the instant case,

proviso to Section 24(2)  cannot be ignored while interpreting the

main subsection.

47.  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,

42

has  not  been  deposited  in  court.   There  has  to  be  harmonized

construction of provision of section 24(2).

48. 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.

Thus,  in  discharging  its  interpretative  function,  to  exercise  the

power to correct obvious drafting errors that can be done only in

suitable cases where there is error of drafting. Before adding the

word or omitting a word the court has to consider 3 matters : (1) the

intended purpose of the statute or the provision in question, (2) that

by inadvertence the draftsman and Parliament failed to give effect to

that purpose in the provision in question, and (3) 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. As observed in  Inco Europe Ltd. v. First Choice

Distribution (a firm) by the House of Lords in (2000) 2 All ER 109 at

115. There is no accidental omission as to the concept of payment

in section 24(2) or section 31(1) of the aforesaid Acts. Thus, it is not

permissible  to  supply  the  word  “deposited”  to  include  in  the

expression “payment”.  

43

49(a).   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. The learned author G.P. Singh, in “Principles

of Statutory Interpretation” (14th edition), at Page 91 onwards, has

observed:

“……..Natural  and  grammatical  meaning.  The  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, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary.“ “The true way”, according to  LORD  BROUGHAM  is,  “to  take  the    words  as  the Legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those Words is, either by the preamble or by the context of the words in question, controlled or alter ”; and in the words of VISCOUNT HALDANE,  L.C.,  if  the  language  used  "has  a natural meaning we cannot depart from that meaning unless reading the statute as a whole, the context directs us to do so. In an oft-quoted passage, LORD WENSLEYDALE stated the rule  thus:  "In  construing  wills  and  indeed  statutes  and  all written instruments, the grammatical and ordinary sense of the word is adhered to, unless that would lead to some absurdity, or  some  repugnance  or  inconsistency  with  the  rest  of  the instrument in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity, and  inconsistency,  but  no  further".  And  stated  LORD ATKINSON: "In the construction of statutes, their words must be interpreted in their ordinary grammatical sense unless there be something in the context, or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in a special sense different from  their  ordinary  grammatical  sense”.28  VISCOUNT SIMON, L.C.,  said: “The golden rule is that the words of a statute  must  prima  facie  be  given  their  ordinary  meaning”.

44

Natural and ordinary meaning of words should not be departed from "unless it can be shown that the legal context in which the  words  are  used  requires  a  different  meaning".  Such  a meaning cannot be departed from by the judges "in the light of their  own  views  as  to  policy"  although  they  can  "adopt  a purposive interpretation if they can find in the statute read as a whole or  in material  to which they are permitted by law to refer  as  aids  to  interpretation  an  expression  of  Parliament's purpose or policy". For a modern statement of the rule, one may refer to the speech of LORD SIMON OF GLAISDALE in a case where he said: "Parliament is prima facie to be credited with  meaning  what  is  said  in  an  Act  of  Parliament.  The drafting of statutes, so important to a people who hope to live under the rule of law, will never be satisfactory unless courts seek  whenever  possible  to  apply  ‘the  golden  rule’  of construction,  that  is  to  read  the  statutory  language, grammatically  and  terminologically,  in  the  ordinary  and primary sense which it bears in its context, without omission or addition. Of course, Parliament is to be credited with good sense;  so  that  when  such  an  approach  produces  injustice, absurdity, contradiction or stultification of statutory objective the  language  may  be  modified  sufficiently  to  avoid  such disadvantage, though no further”. The rules stated above have been quoted with approval by the Supreme Court…….”  

(emphasis supplied)

49(b).   This Court, in Harbhajan Singh v. Press Council of India, AIR

2002 SC 1351, at 1354 has observed thus :

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

45

50. Thus, in the instant case, when we give 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.

51(a) 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.  In  this  regard,  G.P.  Singh,  in  his

treatise Interpretation of  Statutes (14th Edition)  at  page 395, has

observed thus:

“…….When  in relation to the same subject matter, different words are used in the same statute, there is a presumption that they are not used in the same sense.

In construing the words ‘distinct matters’ occurring in section 5 of the Stamp Act, 1899, and in concluding that these words have not the same meaning as the words ‘two or more of  the  descriptions  in  Schedule  I’  occurring  in  section  6, VENKATARAMA AIYAR, J., observed: “When two words of different  import  are  used  in  a  statute  in  two  consecutive provisions, it would be difficult to maintain that they are used in the same sense.” Similarly, while construing the word ‘gain’ under Section 3(ff) of the Bombay Municipal Corporation Act, 1888,  which  used  the  words  ‘profit  or  gain’,  the  Supreme Court relied on the dictionary meanings of the words to hold that the word ‘gain’ is not synonymous with the word ‘profit’ as it is not restricted to pecuniary or commercial profits, and that any advantage or benefit acquired or value addition made

46

by some activities would amount to ‘gain’…….”

***14.Brighton Parish Guardians v. Strand Union Guardians, (1891) 2 QB 156, p. 167 (CA); Member, Board of Revenue v. Arthur Paul Benthall, AIR 1956 SC 35, p. 38: 1955 (2) SCR 842; CIT v. East West Import & Export (P.) Ltd., Jaipur, AIR 1989 SC 836, p.838 : (1989) 1 SCC 760; B.R. Enterprises v. State of U.P., AIR 1999 SC 1867, p.1902 : (1999) 9 SCC 700 (‘trade  and  business'  in  Article  298  have  different  meaning from ‘trade  and commerce'  in  Article  301);  ShriIshal  Alloy Steels Ltd. v. JayaswalasNeco Ltd., JT 2001 (3) SC 114, p. 119 : (2001) 3 SCC 609 : AIR 2001 SC 1161 (The words ‘a bank’ and ‘the bank’ in section 138 N.I. Act, 1881 do not have the same  meaning);  The  Oriental  Insurance  Co.  Ltd.  v. Hansrajbhai v. Kodala, AIR 2001 SC 1832, p. 1842 : (2001) 5 SCC 175;  KailashNathAgarwal  v. PradeshiyaIndust and Inv. Corp. of U.P., 2003 AIR SCW 1358, p. 1365 : (2003) 4 SCC 305,  p.  313.  (The words ‘proceeding’ and ‘suit’ used in the same section construed differently);  But  in  Paramjeet  Singh Pathak v. ICDS Ltd, (2006) 13 SCC 322 : AIR 2007 SC 168 different  view was  taken therefore  in  Zenith  Steel  Tubes  v. Sicom Ltd, (2008) 1 SCC 533 : AIR 2008 SC 451 case referred to a larger Bench; D.L.F. Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, 2003 AIR SCW 1046, p. 1057: AIR 2003 SC 1648: (2003) 5 SCC 622 (The expressions ‘at his own cost’ and ‘at its cost’, used in one section given different meanings)”           (emphasis supplied)

51(b) . The  author  has  referred  to  the  decisions  in  Brighton

Parish  Guardians  v.  Strand  Union  Guardians,  1891  QB  156,

Member, Board of Revenue v. Arthur Paul Benthall, AIR 1956 SC 35

at p.38, and CIT v. East West Import & Export (P) Ltd., Jaipur, (1989)

1 SCC 760, in that case this Court has observed :

"7. The Explanation has reference to the point of time at two places:  the  first  one  has  been  stated  as  "at  the  end  of  the previous year"  and the second,  which is  in issue,  is  "in the

47

course of such previous year".  Counsel for the Revenue has emphasised  upon  the  feature  that  in  the  same  Explanation reference  to  time  has  been  expressed  differently  and  if  the legislative intention was not to distinguish and while stating "in  the  course  of  such  previous  year"  it  was  intended  the convey the  idea  of  the  last  day  of  the  previous  year,  there would  have  been  no  necessity  of  expressing  the  position differently. There is abundant authority to support the stand of the counsel for the Revenue that when the situation has been differently  expressed  the  legislature  must  be  taken  to  have intended to express a different intention.”

(emphasis supplied)”

51(c). In  Kailash  Nath  Agarwal  v.  Pradeshiya  Industries  and

Investment  Corporation  of  Uttar  Pradesh,  (2003)  4  SCC  305,

Tejmohammed  Hussainkhan  Pathan  v.  V.J.  Raghuvanshi,  1993

supp.  (2)  SCC  493,  D.L.F.  Qutab  Enclave  Complex  Educational

Charitable Trust  v.  State of  Haryana, (2003) 5 SCC 622,  Pallawi

Resources Ltd.  v.  Protos  Engineering  Company Pvt.  Ltd., (2010)  5

SCC 196,  Grasim Industries Ltd. v. Collector of Customs, Bombay,

(2002) 4 SCC 297,  B.R. Enterprises v. State of U.P., AIR 1999 SC

1867,  ShriIshar Alloy Steels Ltd. v. Jayaswals Neco Ltd., (2001) 3

SCC 609,  Labour  Commissioner,  Madhya Pradesh  vs.  Burhanpur

Tapti Mills and Ors. AIR 1964 SC 1687 this Court has observed that

as  a  general  rule  when two different  words are  used by  statute

prima facie one has to construe different words as carrying different

meanings. Rule of  'purposive constructions'  would be resorted to

48

only when the statute to observe or when read literally it leads to

manifest injustice or absurdity. The Court has to keep in mind that

the provision enacted by the legislature in a certain manner as had

intended. Different words are used in different senses.  

51(d) The  aforesaid  principles  of  statutory  construction,

different words to be given different meaning as also the binding

precedents of  this  Court,  indicate  that  the expression ‘deposited’

cannot  be  added  to  ‘tender’  /  ‘paid’,  both  carry  different

consequences  under  section  24,  tender  on  lapse  of

acquisition/non-deposit higher interest under section 34 of the Act

of 1894.

51(e). 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

49

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.

52. In section 24 of the Act of 2013, brooks no lethargy on the

part of authorities, the expression “possession of the land has not

been taken” indicates a failure on the part of authorities to take for

five years or more.  

53. When we consider 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.

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

50

54. 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. The Land Acquisition (Bihar and Orissa) Rules

were framed under the Act of 1894 and Rule 10 thereof provided

thus :

“10. In giving notice of the award under section 12(2) and tendering payment under section 31(1), to such of the persons interested  as  were  not  present  personally  or  by  their representatives when the award was made, the officer shall require them to appear personally or by representatives by a certain date to receive payment of the compensation awarded to them, intimating also that  no interest  will  be allowed to them if they fail to appear. If they do not appear, and do not apply for reference to the Civil Court under section 18, the officer  shall  after  any  further  endeavour  to  secure  their attendance that may seem desirable, cause the amounts due to be paid into the Treasury as Revenue deposits payable to the persons to whom they are respectively due and vouched for in the  accompanying form (marked E).  The  officer  shall  also give notice to the payees of  such deposits,  the Treasury in which  the  deposits  specifying  have  been  made.  When  the payees ultimately claim payment of sums placed in deposit, the  amounts  will  be  paid  to  them in  the  same  manner  as

51

ordinary  revenue  deposits.  The  officer  should,  as  far  as possible,  arrange to  make the payments due in  or near  the village to which the payees belong, in order that the number of undisbursed sums to be placed in deposit on account of non-attendance  may  be  reduced  to  a  minimum.  Whenever payment is claimed through a representative whether before or after deposit of the amount awarded, such representative, must show legal authority for receiving the compensation on behalf of his principal."

                         (emphasis supplied)  

55. The Karnataka Land Acquisition Rules 1965 were also framed

under section 55 of the Land Acquisition Act, 1894. Similarly in the

State of Kerala Rule 14(2) of the Land Acquisition (Kerala) Rules,

1990 were framed under section 55 of the Act of 1894 provided that

the  payment relating to an award shall  be made or  the amount

credited  to  the  court  or  Revenue  deposit  (Treasury)  within  one

month from the date of award.

56. The state  of  Assam has also  framed the  rules  dealing  with

deposit in exercise of power under Section 55 of the Act of 1894.

Rule 9 whereof provides that on failure to collect the compensation

if landowner/interested person does not appear, and do not apply

for a reference to the civil court under section 18, the Collector shall

after  making  endeavour  to  secure  their  attendance  or  make

payment that may seem desirable,  cause the amounts due to be

52

paid into the Treasury as revenue deposits payable to the persons

to whom they are respectively due,  and vouched for in the form

prescribed or approved by Government from time to time. He shall

also  give  notice  to  the  payee  of  such  deposits,  specifying  the

Treasury in which the deposits have been made. When no reference

is sought for amount has to be deposited in treasury only. Rule 9 of

Assam Rules is extracted hereunder:

“9.  In  giving  notice  of  the  award  under  section  12(2)  and tendering payment under section 31(1), to such of the persons interested  as  were  not  present  personally  or  by  their representatives when the award was made, the Collector shall require them to appear personally or by representatives by a certain date, to receive payment of the compensation awarded to them intimating also that  no interest  will  be  allowed to them, if they fail to appear. If they do not appear and do not apply for a reference to the Civil Court under section 18, he shall, after any further endeavour to secure their attendance or make payment that may seem desirable,  cause the amounts due to be paid into the WW as revenue deposits payable to the persons to whom they are respectively due, and vouched for in the form prescribed or approved by Government from time to  time.  He  shall  also  give  notice  to  the  payees  of  such deposits, specifying the Treasury in which the deposits have been made.  When the  payees  ultimately  claim payment  of sums placed in deposit, the amount will be paid to them in the same  manner  as  ordinary  revenue  deposits.  The  Collector should, as far as possible, arrange to make the payment due in or near the village to which the land pertains in order that the number  of  undisbursed  sum  to  be  placed  in  deposit  on account  of  nonattendance  may  be  reduced  to  a  minimum. Whenever payment is claimed through a representative, such representative,  must  show legal  authority  for  receiving  the compensation on behalf of the principal.”

(emphasis supplied)

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57. Identical is the rule for Bihar and Orissa. Similar instructions

have been issued by the other State Government so as to deal with

public money. They have the force of law. The duty of the court is to

harmonize rules with provision of Act. In State of West Bengal also

similar rules had been framed under section 55 of the Act of 1894.  

58. Standing Order No.28 issued in 1909 the State of Punjab is

applicable to Delhi also, provides 5 modes of payment in Para 74

and 75 based on Government of India’s orders, which are extracted

hereunder:

“74. Methods of making payments-There are five methods of making payments: (1) By direct payments, see paragraph 75(I) infra (2) By order on treasury, see paragraph 75(II) infra (3) By Money Order, see paragraph 75(III) infra (4) By cheque, see paragraph 75(IV) infra (5) By deposit in a treasury, see paragraph 75(V) infra

75. Direct payments (V) By treasury deposit-In giving notice of the award Under Section 12(2) and tendering payment Under Section 31(1) to such of the persons interested as were not present personally or  by  their  representatives  when the  award  was  made,  the officer  shall  require  them  to  appear  personally  or  by representatives by a certain date to receive payment of the compensation  awarded  to  them,  intimating  also  that  no interest will be allowed to them if they fail to appear, if they do not appear and do not apply for a reference to the civil court  Under  Section  18,  the  officer  shall  after  any  further endeavours  to  secure  their  attendance  that  may  seem desirable, cause the amounts due to be paid to the treasury as revenue deposited payable to the persons to whom they are respectively  due  and  vouched  for  in  the  Form  marked  E below. The officer shall also give notice to the payees of such

54

deposits,  specifying  the  treasury  in  which  the  deposit  has been made. When then payees ultimately claim payment of sums placed in deposit, the amounts will be paid to them in the  same  manner  as  ordinary  revenue  deposit.  The  officer should, as far as possible, arrange to make the payments due in or near the village to which the payee belong in order that the number of un-disbursed sums to be placed in deposits on account  of  non-attendance may be reduced to  a  minimum. Whenever  payment  is  claimed  through  a  representative whether before or after deposit of the amount awarded, such representative,  must  have  legal  authority  for  receiving  the compensation on behalf of his principal."  

55

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

16 SCC 258. This court with respect to mode under section 31(1)

has held:

“18.  Para 73 makes it  clear that payment may be accepted either  without  protest  or  under  protest,  and  Paragraph  74 makes it clear that there are five methods of making payment. The first four methods are all methods strictly in consonance with Section 31 of the Land Acquisition Act in that they are all direct payments that have to be made to persons ready to accept  compensation.  This  is  clear  from  a  reading  of sub-paragraphs (I) to (IV) of paragraph 74. Even the second method, which is payment by order on the treasury, is a direct method  of  payment  in  cases  where  no  officer  is  specially deputed  for  acquisition  of  land.  In  such  cases  instead  of making a direct payment, a receipt is countersigned making it immediately payable at the treasury to the payee. Otherwise, in certain circumstances, payment is to be made by money order and/or by cheque. When we come to paragraph (V), it is clear  that  payment  is  made  into  the  treasury  only  when persons who are served notice Under Section 12(2) are not present personally at the time the award is delivered. Even though they may not appear  at  that  stage,  the  officer  shall require them to appear personally or by representatives by a certain date to receive payment of compensation awarded. It is only if they fail to appear after such an intimation, and if the officer, after further endeavours to secure their attendance, cannot so secure their attendance, that amounts due are to be paid to the treasury as revenue deposited payable to persons to whom they are due. It is clear, therefore, that sub-para (V), when read in its proper perspective, is not a separate mode of payment by itself as is contended by learned Counsel for the Appellants.  It  is  a  residuary  mode  of  payment  after  all necessary efforts have been made by the authorities to secure the attendance of the persons entitled to compensation, and it is only after all such methods have failed that, as a last resort, the money is then to be deposited in the treasury. In any case, such deposit in the treasury is referable only to Section 31(1) and  cannot  ever  be  a  substitute  for  deposit  before  the reference court as provided Under Section 31(2) of the Land Acquisition  Act,  which  applies  in  the  circumstances mentioned in the aforesaid Sub-section.  

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We agree with aforesaid part of  Sukhbir Singh (supra) related

to section 31(1), however, not with respect to part relating section

31(2).

60. It is apparent from rules that when no reference is sought 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.

61. Though  as  per  subsection  (2)  of  section  31  in  the  certain

exigencies  the  amount  has  to  be  deposited  in  court  where  the

reference  would  be  made,  it  does  not  cover  the  entire  situation

when it is not possible to disburse the compensation and deposit in

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treasury has to be made as per rules and if not deposited in Court

at  the  most  would  be  merely  a  procedural  irregularity  and  the

maximum liability would be as envisaged under section 34 of Act of

1894 in case it has not been “tendered”. Due to non deposit at the

most  it  could  be  said  that  amount  could  not  be  invested  in

Government security etc. under section 32 or 33 of Act of 1894.  In

such securities the interest is not more than 15 % as such.  

62. Moreover,  the  proviso  to  section  24(2)  which  prescribes

amount to be deposited with respect to ‘majority of holding’, in the

account of beneficiaries, it is not provided that such amount has to

be deposited in court. Section 31 of the Act of 1894 does not deal

with  the  deposit  of  the  amount  with  respect  to  “the  majority  of

holdings” in the court in the account of landowners. Section 31(2) of

the Act of 1894 only contemplates certain exigencies i.e. (1) refusal

to accept, and reference is sought (2) incompetence to alienate the

land, (3) there is dispute as to entitlement or (4) apportionment and

authority  decides  not  to  disburse  compensation  in  later  two

exigencies. In such cases, it has to be deposited in court. It is not

necessary to make tender of amount of compensation under Section

31(1) in the 3 latter exigencies provided in section 31(2) itself. The

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proviso to section 24(2) of the Act of 2013 does not envisage any of

the exigencies as contemplated under section 31(2) it clearly deals

with deposit of money before the Land Acquisition Collector or in

the  treasury  with  respect  to  “majority  of  the  holding”  as  the

State/authority who is acquiring the land or has acquired it, must

have arrangement to pay the money to the landowners and in case

such  money  has  not  been  deposited  with  the  Land  Acquisition

Collector  or  with the  treasury  or  in  any other  permissible  mode

consequence enumerated in proviso to follow, regarding payment of

higher compensation under the Act of 2013 to all land holders. In

the Treasury also separate accounts are opened of the landowners

and money is kept in such separate accounts. As is apparent from

the standing order 28 of Punjab and the rules framed under section

55 of Act of 1894 by various State Governments in case the amount

has  been  deposited  as  per  the  proviso  to  section  24(2)  in  the

treasury  or  with  the  Land  Acquisition  Collector  with  respect  to

majority  of  the  holding  the  provisions  contained  in  proviso  to

section 24(2), in our opinion, would be fully complied with.

63. A perusal of Section 24(2)of the Act of 2013 shows that the

expression  ‘paid’  does  not  include  deposit  in  it.  The  expression

59

‘deposit’ would include deposit in terms of the rules also.  Section

24(2) does not, in any manner, lay down that the amount cannot be

said to have been ‘deposited’ even when a deposit is made in terms

of  the  mandatory  rules,  or  in  accordance  with  the  applicable

instructions.  ‘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  was  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.  

PRACTICAL  DIFFICULTY  ON  REFUSAL/NON  ACCEPTANCE  OF COMPENSATION BY CONDUCT, PRACTICE AND LEGAL POSITION UNDER ACT OF 1894.

64. 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

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stay  and  contesting  it  for  decades  reflects  clear  conduct  of

nonacceptance  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. 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.  There  is  no  such  data  readily

available to them. Thus once by conduct, such landowners refuse to

accept the land acquisition/compensation, so as to saddle liability

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on authority, they have to inform the outcome/ willingness to the

concerned  authorities  to  apply  for  payment  and  to  show  their

readiness to accept. 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  landowner interdict,

initial offer/ tender by refusal or otherwise by questioning the land

acquisition  itself  would  mean  they  do  not  want  to  accept  the

compensation, is reflected by their conduct in the 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

62

not provide cover to such litigation. The intent of 2013 Act has been

discussed in DDA v. Sukhbir Singh (supra) thus:

“13.  The  picture  that  therefore  emerges  on  a  reading  of Section 24(2) is that the State has no business to expropriate from a citizen his property if an award has been made and the necessary steps to complete acquisition have not been taken for a period of five years or more. These steps include the taking  of  physical  possession  of  land  and  payment  of compensation.  What  the  legislature  is  in  effect  telling  the executive is that they ought to have put their house in order and  completed  the  acquisition  proceedings  within  a reasonable time after pronouncement of  award.  Not having done so even after  a  leeway of  five  years  is  given,  would cross the limits of legislative tolerance, after which the whole proceeding would be deemed to have lapsed. It is important to notice  that  the  Section  gets  attracted  if  the  acquisition proceeding  is  not  completed  within  five  years  after pronouncement of the award.”

The intent is that authority to complete acquisition within five

years, the legislature frowns upon delay of more than five years.

65. In case it is held in spite of refusal to receive payment, it is

necessary to deposit in Court, most of the acquisition would lapse.

The acquisition of Raisina Hills in Lutyen’s zone of Delhi made in

1913 was questioned in said case but this Court never intended

such misuse of the provision. There is no dearth of ingenuity left in

misusing the provisions of section 24 of the 2013 Act whereas it is

meant  to  beneficial  legislation.  Its  intention  is  to  resettle  the

incumbents to offer better compensation as compared to the 1894

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Act.  In  the  various  ways,  the  provision  has  been  sought  to  be

blatantly misused. The law never envisages such absurd results as

is being sought to be achieved. The beneficial provisions of 2013 Act

are  put  to  misuse  that  tantamounts  to  grossest  abuse  of  the

provisions  of  law  to  reopen  such  acquisitions  and  court  has  to

thwart all such attempts at threshold and not to receive such cases

even for consideration for a moment. We see development has taken

place in the area that has been acquired, there have been several

rounds of litigation which have been lost by landowners even up to

this Court; thereafter some persons are filing cases on the basis of

power of  attorneys or sale deeds which are not permissible after

land  has  vested  in  the  State  and  purchase  after  issuance  of

notification under section 4 is illegal and void and no such right is

given to such incumbents to re-open the whole gamut of issues and

to even contend that acquisition has lapsed under the provisions of

the 2013 Act.

66. 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

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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.  Same is not  consequence in case acquisition is

made  under  Act  of  2013  is  apparent  from  conjoint  reading  of

sections  77  and  80  thereof.  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

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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

66

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. We have to prevent the misuse of provisions and avoid

anomalous results.  

67. The court has to be cautious and duty-bound to prevent such

misuse  of  the  provisions  of  law  and  to  make  the  purposive

interpretation,  considering  the  experience  and  after-effect  of

decisions. At the same time we have to forward the intendment and

spirit of the provisions of the Act of 2013 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 aforesaid technical aspect. Courts

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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.

68. It would be appropriate to refer to maxim -  “Omnis Innovatio

Plus Novitate Perturbat Quam Utilitate Prodest” i.e. ‘Every innovation

made has to be, ultimately, adjudged from stand point of the events

that  follow  it’;  and,  when  we  consider  the  after-effects  of  the

decision in Pune Municipal Corporation (supra), the fact leaps out at

us that, there being no dearth of unyielding ‘talent’ in this regard,

tenacious  efforts  are  being  made  at  mis-utilizing  the  dictum

contained  in  the  said  decision,  by  finding  out  ever  newer  and

innovative methods to do so.  

68

PREJUDICE DUE TO NON-DEPOSIT IN COURT

69. Yet another aspect arises, as to, what prejudice or injustice

would be caused in case the amount is not deposited in the court

and is  deposited in  the  treasury particularly  when the  provision

contained in section 31 of the Act of 1894 has to be read conjointly

with those in section 34. As per the provisions contained in section

34, a person can claim the interest in case amount is not deposited

as envisaged under section 31(2) if authorities are at fault.  Even

assuming that amount is required to be deposited only in the court

where reference would be made and deposit in the treasury is not a

permissible mode of deposit, as per the mode prescribed by law in

section 31(2) of the Act of 1894.  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.   This

court  in  Jankinath  Sarangi  v.  State  of  Orissa (1969)  3 SCC 392

observed:

"5.  From  this  material,  it  is  argued  that  the  principles  of natural Justice were violated because the right of the appellant to have his  own evidence recorded was denied to him and further that the material which was gathered behind his back was used in determining his guilt.

In support of these contentions, a number of rulings are cited chief among which are State of Bombay v. NurulLatif Khan

69

1966 2 L.L.J.595 State of Uttar Pradesh and another v. C.S. Sharma 1969 1 L.L.J. 509 and Union of India v. T.R. Varma 1958 2L.L.J.259

There is no doubt that if the principles of natural Justice are violated and there is a gross case, this Court would interfere by striking down the order of dismissal; but there are cases and cases.

We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right.”

70. In Sunil Kumar Banerjee v. State of West Bengal, (1980) 3 SCC

304, it was observed:

“3. ......It may be noticed straightaway that this provision is akin to Section 342 of the Criminal Procedure Code of 1898 and Section 313 of the Criminal Procedure Code of 1974. It is now well established that mere non-examination or defective examination Under Section 342 of  the 1898 Code is  not  a ground for interference unless prejudice is established, vide, K.C. Mathew v. State of Travancore-Cochin 1956 CriLJ 444, Bibhuti Bhusan Das Gupta and Anr. v. State of West Bengal 1969 CriLJ 654......”  

Similar view of the matter is taken in State of Andhra Pradesh v.

Thakkidiram Reddy,  (1998) 6 SCC 554;  Willie (William) Slaney v.

State of Madhya Pradesh, AIR 1956 SC 116; Abdul Sayeed v. State

of  Madhya  Pradesh,  (2010)  10  SCC  259;  State  of  Punjab  v.

DavinderPal  Singh Bhullar,  AIR 2012 SC 364;  and  Bahamans v.

State of Karnataka, (2012) 9 SCC 650.

CONSEQUENCE  OF  NOT  DEPOSITING  THE  AMOUNT  UNDER SECTION 31 OF THE 1894 ACT :

70

71. The  expression  used  in  section  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 section 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 section 34 of the Act of 1894.

Collector  need  not  tender  the  payment  invariably.  It  can  be

deposited in the court in the exigencies as provided in section 31(2).

Apart from that section 31(2) does not cover all the exigencies and 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

71

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.  This  court  in  Delhi

Development Authority v. Sukhbir Singh & Ors.  [(2016) 16 SCC 258],

has considered modes of payment in section 31(1) and has held in

Para 18 quoted above that deposit in the treasury is residuary mode

of payment under section 31(1) of Act of 1894.

72. This court has considered the question of effect of non-deposit

in  Hissar Improvement v. Smt. Rukmani Devi & Anr., AIR 1990 SC

2033 and observed that in case of compensation is not being paid

or deposited in time in court before taking possession of the land,

Collector has to deposit the amount awarded in section 31 failing

which  he  is  liable  to  pay  interest  as  provided  in  section  34.

The Court has observed:

“5. It cannot be gainsaid that interest is due and payable to

72

the  landowner  in  the  event  of  the  compensation  not  being paid or deposited in time in court. Before taking possession of the  land,  the  Collector  has  to  pay  or  deposit  the  amount awarded, as stated in Section 31, failing which he is liable to pay interest as provided in Section 34. 6. In the circumstances, the High Court was right in stating that interest was due and payable to the landowner. The High Court was justified in directing the necessary parties to appear in the executing court for determination of the amount.”

73. In Kishan Das & Ors. v. State of U.P. & Ors. (1995) 6 SCC 240

this  Court  has  laid  down  that  in  case  the  landowners  have

themselves delayed in disposal of acquisition proceedings, cannot

claim higher rate of interest as that would amount to payment of

premium for  dilatory tactics.  Even the interest  under  section 34

cannot be claimed as a matter of right. In case a person is indulging

in  litigation for  adopting  dilatory  tactics,  no  divesting  of  land is

provided under the Act of 1894 in case it is not deposited in court.

Neither  it  is  so  provided  in  section  24(1)  of  the  2013  Act.  The

obligation  to  pay  is  discharged  as  soon  as  it  is  tendered

unconditionally and made available to the landowners. Thereafter

there is no further obligation to deposit it in court so as to save the

acquisition.  Only  to  save  acquiring  body  from  liability  to  pay

interest at exorbitant rates, it may be deposited in court in certain

cases  where  reference  court  comes  into  picture  to  discharge

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obligation by State but deposit in Court would not be payment to

landowners.  In  case  there  is  failure  on  the  part  of  the  State

authorities  in  depositing  the  compensation in court  in  the  given

exigencies then only the provisions of section 34 would be attracted

and it would be then for the court to examine in each case whether

it would make order for the higher rate of interest and examine if it

was due to failure of the State authorities and in case possession

has been taken then liability may arise to make payment of interest

it cannot be premium for dilatory tactics of landowners that they

can claim even higher rate of interest.

74. In  Seshan  &  Ors.   v.  Special  Tehsildar  &  Land  Acquisition

Officer, SPICOT, Pudukkottai (1996) 8 SCC 89 this Court laid down

that in case compensation is not deposited after expiry of one year,

the provisions of section 34 would be attracted so as to claim the

interest @ 15%, it shall be interest payable on compensation not

paid or deposited after expiry of one year, and 9% for first year both

from the date of taking possession till date of payment or deposit in

court.

74

75. In D Block Ashok Nagar (Sahibabad) Plot Holders’ Association

(Regd.) v. State of U.P. & Ors. (1997) 10 SCC 77, this Court has held

that liability to pay interest under section 34 arises from the date of

taking possession.  

76. Thus,  when  the  Act  of  1894  provides  the  consequence  of

non-deposit in the in Court.  In our opinion 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 word “paid” could not

have  been  taken  to  include  the  “deposit”,  it  is  contemplated  in

proviso only, and in case with respect to the “majority of holding”

the  amount  is  not  deposited  in  the  account  of

beneficiary/landowner in case award has been passed before five

year  or  more  then  acquisition  would  not  lapse  however  all

beneficiary/landowners  would  become  entitled  to  higher

compensation  as  provided  in  the  Act  of  2013.  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

75

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.

In  Delhi Development Authority v. Sukhbir Singh & Ors.  also, this

court has rightly held that deposit in treasury by Land Acquisition

Collector is permissible mode of deposit under section 31(1).

77. In Mahavir & Ors. v. Union of India, [SLP [C] No. 26281/2017]

this Court has held:  

“9. Section 31(1) of the Act requires tender of compensation which is tendered in terms of section 12 of the Act.  Section 12  provides  a  mode  of  informing  claimants  as  to compensation. Section 31(2) of the Act requires Collector to deposit  amount  in  court  in  case  it  is  not  received  by  the persons interested or there is some dispute. Under the Act, the deposit is required only with a view to avoiding liability to pay interest.  Deposit in the Court is not a payment made to the owner.  It is only to avoid liability to pay interest that too at higher rates on the failure of deposit. Once it is deposited the  liability  to  pay  interest  ceases.  Section  34  of  the  Act makes it clear that if the compensation is not deposited on or before taking the possession of the land, interest at the rate of nine  percent  shall  follow  from  the  time  of  so  taking  the possession  until  compensation  so  paid  or  deposited  in  the court.  The proviso to section 34 makes it clear that in case it is  not  so  deposited  in  court  as  per  section  31(1)  within  a period of one year from the date of taking possession interest at the rate of 15 percent per annum shall be payable.  Thus, it is clearly provided under section 34 that interest at the rate of

76

15 percent per annum shall be payable from the date of expiry of the said period of one year till it is so paid or deposited. As soon as the deposit is made under Section 31(2) of the Act, liability  ceases  to  make  the  payment  of  interest  on  the compensation amount so deposited."

78. Reliance was placed by landowners on the decision in  Nazir

Ahmed v. King Emperor,  AIR 1936 PC 253 (2), wherein the court

observed, that “where a power is given to do a certain thing in a

certain way, the thing must be done in that way or not at all.  Other

methods  of  performance  are  necessarily  forbidden”.  There  is  no

dispute with the said proposition, and the same has been followed

by this Court umpteen number of times. However, the consistent

practice that has been followed in land acquisition cases is that it is

only when reference is sought, and the amount has not been paid

for one or other reason as per section 31(2),  that the amount is

deposited in the court to which the reference would be submitted,

and  not  otherwise.  The  action  is  as  per  rules.  The  amount  of

compensation,  qua  the  incumbents/landowners  who  have  not

sought the reference, is ordinarily deposited in treasury, by opening

accounts in their separate names; the same is apparent from the

forms,  rules  framed  under  section  55  of  1894  Act  and  various

statutory  orders  issued  by  various  State  Governments.  Section

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31(2) cannot be said to be covering all the exigencies of depositing

amount.   It  was  not  necessary  for  various  other  exigencies  to

deposit  the  amount  in  the  Court.  Particularly  in  view  of  the

Government rules and instructions in financial matters which were

binding and consistently followed by making the deposit in treasury

for more than 100 years since 1894.

WHETHER   SECTION 24(2) DIVESTS THE STATE OF LAND  

79.   The question arises 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 section 24 of 2013

Act.  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. No

different intention appears from section 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

78

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.  In a

catena of decisions, this Court has laid down that as provided in

section  16  of  the  Act  of  1894,  when  an  award  is  passed  and

possession is taken, the land vests absolutely in the Government

free from all encumbrances the only legality of procedure is open to

being  questioned.  The  provision  contained  in  section  17(1)  also

provides  absolute  vesting  in  the  Government  free  from  all

encumbrances in  the  case  of  urgency even before  passing of  an

award.

80. The  vested  right  cannot  be  taken  away.  In  Black's  Law

Dictionary "vested" is defined thus:

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

“Unfortunately,  the  word  ‘vested’  is  used  in  two senses. Firstly, an interest may be vested in possession, when there is a right to present enjoyment, e.g. when I own and  occupy  Blackacre.  But  an  interest  may  be vested,  even  where  it  does  not  carry  a  right  to immediate possession if it does confer a fixed right of taking  possession  in  the  future."  George  Whitecross

79

Paton, A Textbook of Jurisprudence 305 (CW. Paton & David P. Derham eds., 4th ed. 1972).

"A  future  interest  is  vested  if  it  meets  two requirements:  first,  that  there  be  no  condition precedent  to  the  interest's  becoming a  present  estate other than the natural expiration of those estates that are  prior  to  it  in  possession;  and  second,  that  it  be theoretically  possible  to  identify  who would  get  the right  to  possession  if  the  interest  should  become  a present estate at any time." Thomas F. Bergin 8. Paul C.  Haskell,  Preface  to  Estates  in  Land  and  Future Interests 66-67 (2d ed. 1984)."

In Webster's Dictionary, it is defined as:

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

81(a).  In State of Punjab v. Sadhu Ram, 1996 (7) JT 118, this Court

has laid down that when possession is taken by the Government

after passing of the award and compensation has been paid, right,

title  and  interest  of  the  owner  stand  extinguished.  Government

becomes absolute owner of  the said land. No one can claim any

title/equitable  title  by  remaining  in  possession  thereafter.  This

Court has observed:  

"3.  The  learned  Judge  having  noticed  the  procedure prescribed in disposal of the land acquired by the Government for public purposes has held that the said procedure was not followed for surrendering the land to the erstwhile owners. The respondent had purchased the land had improved upon the land and is, therefore, entitled to be an equitable owner of the land. We wholly fail to appreciate the view taken by the

80

High Court. The learned Judge had net referred to the relevant provisions of the Act and law.  It  is an undisputed fact that consequent upon the passing of the award under Section 11 and took possession of the land, by operation of Section 16 of the  Act,  the  right,  title  and interest  of  the  erstwhile  owner stood  extinguished  and  the  Government  became  absolute owner of the property free from all encumbrances. Thereby, no one has nor claimed any right, title and interest in respect of the acquired land. Before the possession could be taken, the Government have power under Section 48(1) of the Act to denotify  the  land.  In  that  event,  land  is  required  to  be surrendered to the erstwhile owners. That is not the case on the  facts  of  this  case.  Under  these  circumstances,  the Government has become the absolute owner of the property free from all encumbrances, unless the title is conferred on any person in accordance with a procedure known to law, no one can claim any title much less equitable title by remaining in possession.  The trial Court as well as the appellate Court negatived the plea of the respondent that he was inducted into possession as a lessee for a period of 20 years. On the other hand, the finding was that he was in possession as a lessee on yearly  basis.  Having  lawfully  come  into  possession  as  a lessee of the Government, Session 116 of Evidence Act estops him from denying title of the Government and set it up in the third  party.  By  disclaiming  Government  title,  he  forfeited even  the  annual  lease.  Under  these  circumstances,  having come into possession as a lessee, after expiry and forfeiture of the lease, he has no right. Illegal and unlawful possession of the  land  entails  payment  of  damages  to  the  Government." (emphasis supplied)

81(b).   In Star Wire (India) Ltd. v. State of Haryana & Ors. (1996) 11

SCC 698,  this  Court  has  laid  down that  when award  has  been

passed, possession has been taken, land vests in the State free from

all  encumbrances.  Any  encumbrance created  by  erstwhile  owner

after publication of notification under section 4 has no valid title

and is not binding on the State. Subsequent purchaser has no right

81

to challenge the legality of acquisition proceedings. This Court has

laid down thus:

“2.  Shri  P.P. Rao,  learned  senior  counsel  for  the  petitioner, contends  that  the  petitioner  had  no  knowledge  of  the acquisition  proceedings;  as  soon as  it  came to  know of  the acquisition,  it  had challenged the  validity  of  the acquisition proceedings and, therefore, it furnishes cause of action to the petitioner. He further contends that the writ petition could not be dismissed on the ground of laches but was required to be considered on merits. We find no force in the contention. Any encumbrance created by the erstwhile owner of the land after publication of the notification under Section 4(1) does not bind the State if the possession of the land is already taken over after the award came to be passed. The land stood vested in the State  free  from  all  encumbrances  under  Section  16. In Gunnukh Singh and Ors. v. The State of Haryana JT (1995) 8 SC 208, this Court has held that a subsequent purchaser is not entitled to challenge the legality of the acquisition proceedings on the ground of lack of publication of the notification. In Y.N. Garg v. State of Rajasthan [1996] 1 SCC 284 and SnehPrabha v. State of U.P. [1996] 7 SCC 325,  this  Court  had held the alienations  made  by  the  erstwhile  owner  of  the  land  after publication of the notification under Section 4(1), do not bind either  the  State  Government  or  the  beneficiary  for  whose benefit the land was acquired. The purchaser does not acquire any  valid  title.  Even  the  colour  of  title  claimed  by  the purchaser  was  void.  The  beneficiary  is  entitled  to  have absolute  possession  free  from  encumbrances. In  U.P.  Jal Nigam, Lucknow through its Chairman and Anr. v. M/s. Kalra Properties (P) Ltd., Lucknow, and Ors. [1996] 1 SCC 124, this Court had further held that the purchaser of the property, after the notification under Section 4(1) was published, is devoid of right to challenge the validity of the notification or irregularity in  taking  possession  of  the  land  before  publication  of  the declaration under Section 6. As regards laches in approaching the  Court,  this  Court  has  been consistently  taking the  view starting  from State  of  Madhya  Pradesh  and  Anr. v.  Bhailal Bhai and Ors. [1964]6SCR261 wherein a Constitution Bench had held that it is not either desirable or expedient to lay down a  rule  of  universal  application  but  the  unreasonable  delay denies to the petitioner, the discretionary extraordinary remedy

82

of  mandamus,  certiorari  or  any  other  relief.  The  same  was view reiterated in catena of decisions, viz.,  

Rabindranath Bose and Ors. v. The Union of India and Ors. [1970]2SCR697 ;  State  of  Mysore  and  Ors.  v.  Narsimha  Ram  Naik, [1976]1SCR369 ;  Aflatoon and Anr. v. Lt. Governor of Delhi [1975]1SCR802 ;  M/s.  TilokchandMotichand  and  Ors.  v.  H.B.  Munshi, Commissioner  of  Sales  Tax,  Bombay,  and  Anr. [1969]2SCR824 ;  State of Tamil Nadu and Ors. Etc. v. L. Krishnan and Ors. Etc., (1996)1SCC250 ;  Improvement Trust, Faridkot, and Ors. v. Jagjit Singh and Ors. ;  State  of  Punjab  and  Ors.  v.  Hari  Om  Co-operative  House Building Society Ltd., Amritsar; Market Committee, Hodal v. KrishanMurari and Ors. , (1996)1SCC311 and;  State of Haryana v. Dewan Singh AIR1996SC675  

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

81(c). In Market Committee v. Krishan Murari (1996) 1 SCC 311

award was passed, possession was taken; it was observed that the

land  vests  in  the  Government  free  from  all  encumbrances.  In

PuttuLal (dead) by LRs. v. State of  U.P.  & Anr.  (1996) 3 SCC 99,

possession had been taken and compensation paid to the owner. It

was held that land vests in the State free from all encumbrances.

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Consequently, State becomes absolute owner and is entitled to file

suit for possession.

81(d). The word “vest”  has  been considered by  this  Court  in

Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, AIR

1957 SC 344,  to  mean that  the  property  acquired  becomes  the

property  of  the  Government  without  any  condition  or  limitation

either as to title or possession. Thus 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 as laid down in the aforesaid decisions. Of

course,  the  procedure  of  vesting  can  be  looked  by  court  if

questioned and once entry is handful, it vests absolutely in State

and the Act of 2013 does not reopen and divest State Government

of the land. 2013 Act would come only in the cases where vesting of

land has not taken place in the State Government. In  Fruit  and

Vegetable Merchants Union v. Delhi Improvement Trust, AIR 1957 SC

344, this Court has observed thus:

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“25.  That  the  word  "vest"  is  a  word  of  variable  import  is shown by provisions of Indian statutes also. For example, s. 56 of the Provincial Insolvency Act (5 of 1920) empowers the court at the time of the making of the order of adjudication or thereafter  to  appoint  a  receiver  for  the  property  of  the insolvent  and  further  provides  that  "such  property  shall thereupon  vest  in  the  receiver."  The  property  vests  in  the receiver  for  the  purpose  of  administering  the  estate  of  the insolvent  for  the  payment  of  his  debts  after  realising  his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Sections 16 and 17 of the Land Acquisition Act (Act I of 1894), provide that the property so acquired, upon the happening of certain events, shall "vest absolutely in the  Government  free  from all  encumbrances".  In  the  cases contemplated by Sections, 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possessions. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word "vest" has not got a fixed connotation, meaning in all  cases  that  the  property  is  owned  by  the  person  or  the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it  may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly  Sections  45  to  49  and 54 and 54A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not  necessarily  mean  that  ownership  has  passed  to  any  of them.”

81(e). In Mosammat Bibi Sayeeda v. State of Bihar (1996) 9 SCC

516, the concept of “vest” has been discussed thus:

“17. The word ‘vested’ is defined in Black’s Law Dictionary (6th Edn.) at p. 1563 as: “Vested; fixed; accrued; settled; absolute; complete.  Having the character or given the rights of absolute ownership; not contingent;  not  subject  to  be  defeated  by  a  condition precedent.”

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

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

In  State of W.B. v.  Suburban Agriculture Dairy & Fisheries (P) Ltd., the question was whether after the abolition of the estate under the West Bengal Estates Acquisition Act, 1953 (1 of 1954) the fishery right of the intermediary was saved by that Act? A Bench of three Judges had held in paragraphs 9 and 11 that the pre-existing rights of the intermediary in the estate to which the declaration applied, shall stand vested in the State free from all encumbrances. Section 6 does not have the effect of divesting the State of the vested right, title and interest of the intermediary. One of the rights is the right to take  possession  of  the  land  held  by  the  intermediary.  The section excluded the operation of Sections 4 and 5, viz., the interest of the respondent to retain khas possession was saved subject to his making the application in the prescribed form. It was held that the fishery rights stood vested in the State.  

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

19. In Labanya Bala Devi v. State of Bihar Patna Secretariat, the tank and tankail settled by the intermediary were held to have been vested in  the  State  after  the  Act  had come into force. Therefore, the pre-existing rights of the tenure-holder

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in  the  tank  stood  ceased  since  they  were  not  saved  under Section 6(1)(b) of the Act.

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

“Vest”  means  an  absolute  or  indefeasible  right.  Thus,  the

provisions contained under the Act of 2013 have not taken vested

rights away.  

81(f). In  J. S. Yadav v. State of Uttar Pradesh  (2011) 6 SCC

570, this Court has observed:

“20. "The word 'vested' is defined in Black's Law Dictionary (6th Edition) at page 1563, as:

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

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

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Law held by a tenure subject to no contingency; complete;  established  by  law  as  a  permanent right; vested interest."  

(See Mosammat Bibi Sayeeda and Ors. etc. v. State of Bihar and Ors. etc. AIR 1996 SC 1936 at SCC p.527, para 17)

21.  The word "vest" is  normally used where an immediate fixed  right  in  present  or  future  enjoyment  in  respect  of  a property is created. With the long usage, the said word "vest" has also acquired a meaning as "an absolute or indefeasible right". It had a "legitimate" or "settled expectation" to obtain right to enjoy the property etc. Such "settled expectation" can be rendered impossible of fulfillment due to change in law by the Legislature. Besides this, such a "settled expectation" or the so-called "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the law. (Vide: Howrah Municipal Corpn. and Ors.  v. Ganges Rope Co. Ltd. and Ors. (2004) 1 SCC 663.

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

82. On proper reading of section 24, it is clear that no divesting is

contemplated under the provision.  Provisions of  section 24 when

award  is  passed,  possession  is  taken,  compensation  has  been

tendered,  vesting  takes  place.  There  is  no  deemed  lapse  under

section 24 in such a case. In case of urgency also before award is

passed as provided in section 17(1), 17(3A) vesting takes place on

fulfillment of conditions.

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83. 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. It never envisages

misuse  of  the  provision.  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 section 24(2)

of the Act of 2013.

84. There are various decisions which have been rendered inter se

parties declining the challenge to land acquisition. It has been held

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in the previous judgments that the land is vested in the State and

acquisition has been legally made and possession has been taken

and  such  incumbents  are  responsible  for  not  receiving

compensation.  Now those judgments are sought to be get rid of

under the subsequent legislation, particularly under section 24 of

the Act of 2013.  

85. In relation to the maxim  ‘nemo debet  bis  vexari  pro  una et

eadem causa’,  which means that  it  is  a rule of  law that  a man

should not be twice vexed for one and the same cause, Broom, in

Legal Maxims, has discussed thus:

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

Thus, the provisions of  section 24 cannot be interpreted by

ignoring and overlooking the previous verdicts. What has been held

in them is binding and rights cannot be taken away. When issues

raised within section 24 have already been decided and vesting has

already taken place it is final. Exception as carved out in section 24

when  award  has  not  been  passed  under  section  24(1)(a)  for

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determination  of  compensation only  the  provisions  of  the  Act  of

2013 would apply. Once possession has been taken Compensation

tendered but not accepted under section 17(1) of the Act or section

16 of Act of 1894 vesting takes place.

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

86. Intrinsically connected with Question No.1 is the question of

taking physical possession as contained in section 24(2) of Act of

2013 when it can be said that possession has been taken. When we

consider the same, question arises what is the meaning of “physical

possession not taken” in section 24(2) 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

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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.  This

Court in a number of decisions has accepted the mode of drawing

Panchnama by State consistently to be a mode of taking possession.

87(a).  In Balwant Narayan Bhagde v. M.D. Bhagwat & Ors.,  (1976)

1 SCC 700 in the majority view, it was held that the act of Tehsildar

in  going  on  the  spot  and  inspecting  the  land  was  sufficient  to

constitute  taking of  possession.  Neither  the Government  nor  the

Commissioner  could  withdraw  from  the  acquisition  of  the  land

under section 48(1) of the Act. This Court observed thus:

“28. We agree with the conclusion reached by our brother Untwalia,  J.,  as  also  with  the  reasoning  on  which  the conclusion is based. But we are writing a separate judgment as we  feel  that  the  discussion  in  the  judgment  of  our  learned brother Untwalia, J., in regard to delivery of 'symbolical' and 'actual' possession under Rules 35, 36, 95 and 96 of Order XXI of the CPC, is not necessary for the disposal  of the present appeals' and we do not wish to subscribe to what has been said by our learned brother Untwalia, J., in that connection, nor do we  wish  to  express  our  assent  with  the  discussion  of  the various authorities made by him in his judgment. We think it is enough to state that when the Government proceeds to take possession  of  the  land  acquired  by  it  under  the  Land Acquisition Act,  1894,  it  must take actual possession of the land since all interests in the land are sought to be acquired by it. There can be no question of taking 'symbolical' possession in the sense understood by judicial decisions under the CPC.

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Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast  rule  laying  down  what,  act  would  be  sufficient  to constitute  taking  of  possession  of  land.  We  should  not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat  of  drum or  otherwise  would be sufficient  to  constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession  of  and  determining  its  extent,  was  sufficient  to constitute taking of  possession.  It  appears  that  the appellant was not present when this was done by the Tehsildar, but the presence  of  the  owner  or  the  occupant  of  the  land  is  not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be  desirable  where  possible,  to  give  such  notice  before possession is taken by the authorities, as that would eliminate the  possibility  of  any  fraudulent  or  collusive  transaction  of taking of mere paper possession, without the occupant or the owner ever coming to know of it.”

87(b).  In  Tamil Nadu Housing Board v. A.Viswam (Dead) by LRs.,

(1996)  8  SCC  259,  this  Court  has  held  that  recording  of

memorandum/  Panchnama  by  Land  Acquisition  Officer  in  the

presence  of  witnesses  signed  by  them  would  constitute  taking

possession of land. This Court observed:

“8. It is settled law by series of judgments of this Court that one  of  the  accepted  modes  of  taking  possession  of  the

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acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses winged by him/them and that would constitute taking possession of the land as it would  be  impossible  to  take  physical  possession  of  the acquired land. It is common Knowledge that in some cases the  owner/interested  person  may  not  co-operate  in  taking possession of the land.”

87(c). In Banda Development Authority, Banda v. Moti Lal Agarwal &

Ors.  (2011)  5  SCC  394  this  Court  observed  that  preparing  a

Panchnama  is  sufficient  to  constitute  taking  of  possession.  If

acquisition 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

an appropriate document in the presence of independent witnesses

and  getting  their  signatures.  Even  subsequent  utilization  of  a

portion of acquired land for public purpose was still sufficient to

prove  taking  possession.  This  Court  in  Banda  Development

Authority (supra) has considered various decisions and laid down

thus:

"37.  The  principles  which  can  be  culled  out  from  the above-noted judgments are:

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

ii) If the acquired land is vacant, the act of the concerned State authority to go to the

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spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.

iii)  If  crop  is  standing  on  the  acquired  land  or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking  possession.  Ordinarily,  in  such  cases,  the concerned  authority  will  have  to  give  notice  to  the occupier  of  the building/structure  or  the  person who has  cultivated  the  land  and  take  possession  in  the presence  of  independent  witnesses  and  get  their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.

iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the  land  and  it  will  be  sufficient  that  symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.

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

87(d).  In State of Tamil Nadu & Anr. v. Mahalakshmi Ammal & Ors.

(1996) 7 SCC 269, this Court has held: “Possession of the acquired

land  would  be  taken  only  by  way  of  memorandum,  Panchnama

which is a legally accepted form.” This Court observed:

“9. It  is well settled law that publication of the declaration under  Section  6  gives  conclusiveness  to  public  purpose.

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Award was made on September 26, 1986 and for Survey No. 2/11 award was made on August 31, 1990. Possession having already  been  undertaken  on  November  24,  1981,  it  stands vested in the State under Section 16 of the Act free from all encumbrances and thereby the Government acquired absolute title to the land. The initial award having been made within two  years  under  Section  11  of  the  Act,  the  fact  that subsequent award was made on 31st August, 1990 does not render the initial award invalid. It is also to be seen that there is stay of dispossession. Once there is stay of dispossession, all  further  proceedings  necessarily  could  not  be  proceeded with as laid down by this Court. Therefore, the limitation also does not stand as an impediment as provided in the proviso to Section  11A  of  the  Act.  Equally,  even  if  there  is  an irregularity in service of notice under Sections 9 and 10, it would be a curable irregularity and on account thereof, award made under Section 11 does not  become invalid.  Award is only  an  offer  on  behalf  of  the  State.  If  compensation  was accepted without protest,  it  binds such party but subject  to Section 28A. Possession of the acquired land would be taken only  by  way  of  a  memorandum,  Panchanama,  which  is  a legally accepted norm. It would not be possible to take any physical  possession.  Therefore,  subsequent  continuation,  if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant. Considered from this perspective, we hold that the High Court was not justified in interfering with the award.”

87(e).  In Balmokand Khatri Educational and Industrial Trust v. State

of Punjab (1996) 4 SCC 212 it was observed that it is difficult to

take physical possession of land under compulsory acquisition. The

normal rule of taking possession is drafting the Panchnama in the

presence of Panchas, is accepted mode of taking possession of land.

This Court observed:

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"4.  It  is  seen  that  the  entire  gamut  of  the  acquisition proceedings  stood completed  by  April  17,  1976,  by  which date possession of the land had been taken. No doubt, Shri Parekh has  contended that  the  appellant  still  retained their possession.  It  is  now  well-settled  legal  position  that  it  is difficult  to  take  physical  possession  of  the  land  under compulsory  acquisition.  The  normal  mode  of  taking possession  is  drafting  the  Panchanama  in  the  presence  of Panchas  and  taking  possession  and  giving  delivery  to  the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.

5. Under these circumstances, merely because the appellant retained  possession  of  the  acquired  land,  the  acquisition cannot be said to be bad in law. It is then contended by Shri Parekh that the appellant-Institution is running an educational institution and intends to establish a public school and that since other land was available, the Government would have acquired some other land leaving the acquired land for the appellant. In the counter-affidavit filed in the High Court, it was stated that apart from the acquired land, appellant also owned 482 canals 19 marlas of land. Thereby, it is seen that the appellant is not disabled to proceed with the continuation of the educational institution which it seeks to establish. It is then  contended  that  an  opportunity  may  be  given  to  the appellant to make a representation to the State Government. We find that it is not necessary for us to give any such liberty since acquisition process has already been completed.”  (emphasis supplied)

87(f).   In P. K. Kalburqi v. State of Karnataka & Ors. (2005) 12 SCC

489,  this  Court  held  that  if  land  were  vacant  and  unoccupied,

taking  symbolical  possession  would  be  enough.  This  Court  held

that in case land was vacant only symbolical possession could be

taken and such possession would amount to vesting the land in the

Government. Thus power under section 48 could not be exercised.  

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87(g).  In Raghbir Singh Sehrawat v. State of Haryana & Ors. (2012)

1 SCC 792, it was observed:

“28.  If  the Appellant's  case is examined in the light of the propositions  culled  out  in  Banda  Development  Authority, Banda v. MotiLalAgarwal and Ors. we have no hesitation to hold that possession of the acquired land had not been taken from the Appellant on 28.11.2008, i.e. the day on which the award  was  declared  by  the  Land  Acquisition  Collector because  crops  were  standing  on  several  parcels  of  land including the Appellant's  land and possession thereof could not have been taken without giving notice to the landowners. That apart, it was humanly impossible to give notice to large number  of  persons  on  the  same  day  and  take  actual possession  of  land  comprised  in  various  survey  numbers (total measuring 214 Acres 5 Kanals and 2 Marlas).”

This Court has laid down that since the land was lying fallow

with no crop on it, the Tehsildar going on the spot and inspecting

the land was enough to constitute taking possession. No notice was

required to be given to the occupant of the land.

87(h).  In  Sita  Ram  Bhandar  Society,  New  Delhi  v.  Lieutenant

Governor, Government of NCT, Delhi & Ors. (2009) 10 SCC 501, this

Court observed that when possession is to be taken of large tract of

land  then  it  is  permissible  to  have  possession  by  drawing

Panchnama.

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87(i).  In  Om Prakash Verma & Ors. v. State of Andhra Pradesh &

Ors. (2010) 13 SCC 158, this Court observed:  

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

86.  It  is  not  in  dispute  that  the  Panchnama  has  not  been questioned  in  any  proceedings  by  any  of  the  appellants. Though it is stated that Chanakyapuri Cooperative Society is in possession at one stage and ShriVenkateshawar Enterprises was given possession by the owners and possession was also given to Golden Hill Construction Corporation and thereafter it  was  given  to  the  purchasers,  the  fact  remains  that  the owners are not in possession. In view of the same, the finding of the High Court that the possession was taken by the State legally and validly through a Panchnama is absolutely correct and deserves to be upheld.”

87(j).  In  M.  Venkatesh  &  Ors.  v.  Commissioner,  Bangalore

Development Authority etc. (2015) 17 SCC 1, a three-Judge Bench of

this Court has opined:

“17. To the same effect are the decisions of this Court in Ajay Krishan  Shinghal  v.  Union  of  India,  Mahavir  v.  Rural Institute, Gian Chand v. Gopala, Meera Sahni v. Lt. Governor

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of Delhi and  Tika Ram v. State of U.P. More importantly, as on the date of the suit, the respondents had not completed 12 years in possession of the suit property so as to entitle them to claim adverse possession against BDA, the true owner. The argument  that  possession of  the  land was never  taken also needs notice only to be rejected for it is settled that one of the modes of taking possession is by drawing a panchnama which part has been done to perfection according to the evidence led by  the  defendant  BDA.  Decisions  of  this  Court  in    T.N. Housing Board v. A.  Viswam   and    Larsen & Toubro Ltd.  v. State of Gujarat  , sufficiently support BDA that the mode of taking possession adopted by it was a permissible mode.”

(emphasis supplied)

87(k).  However, view has been taken in Velaxan Kumar v. Union of

India & Ors. (2015) 4 SCC 325 that actual physical possession is

required to be taken and the court has seen the photographs to

hold  that  possession was  not  taken.  The view taken in  Velaxan

Kumar (supra) cannot be said to be correct and in accordance with

law.  Drawing  of  Panchnama  is  the  accepted  mode  of  taking

possession and once Panchnama has been drawn in the presence of

witnesses, in case Panchnama has been signed by official witnesses

as to its correctness as there is presumption of correctness of the

official  act  under  section 114 of  the  Act  of  2013.  A  photograph

cannot show actual/ legal possession much less proof of possession

as  person  may  enter/re-enter  by  committing  trespass  to  have

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photographed.   That  would  not  negate  the  proceedings  held  for

taking possession and drawing panchnama.

87(l).   In Raghbir Singh Sehrawat (supra) also the observations have

been made that it was not possible to take possession of the entire

land in a day, cannot be accepted. The State is not going to put

their own persons/ police/ or other officials to possess the land.

Thus the mode of  taking possession by drawing Panchnama has

been accepted in a large number of decisions, which appears to be

the consistent view of this Court, and must prevail.

87(m). In Narmada Bachao Andolan v. State of Madhya Pradesh

& Anr.  AIR 2011 SC 1989, this Court has observed that it would

depend upon the facts of individual case whether possession has

been  taken  or  not.  However,  this  Court  had  appointed  a

Commissioner in the said case to find out the possession on the

spot and DVDs. and CDs were seen to hold that landowners were in

possession. District Judge, Indore, recorded the statements of the

tenure-holders,  which were referred to by this  Court  in the said

judgment. Said decision has to be treated as confined to its own

facts, as the mode adopted for determining the possession by the

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help  of  Commissioner  is  doubtful.  The  Commissioner  could  not

have determined the factum of possession. It is the function of the

court and this cannot abdicate to Commissioner its function. Even

under  Order  XXVII  CPC  function  of  Commissioner  is  not  to

determine possession and once possession has been taken, whether

there was re-entry or trespass had not been examined in the said

case. However, statements recorded by the District Judge were also

taken into consideration in Narmada Bachao Andolan (supra). The

decision in said case is to be taken as confined to the facts and

cannot be said to be of universal application. Subsequent DVD/CD

are not going to establish whether possession, in fact, was taken

earlier.  Such mode of  determining the possession by subsequent

material is not of much value as there can be re-entry in possession

after  possession  had  been  taken.  In  the  decision  of  Banda

Development Authority (supra),  it  appears that the law laid down

has been properly discussed and propositions have been laid down

properly.

88. We find that while this Court examined several aspects of the

matter  in  Banda  Development  Authority,  Banda  versus  Moti  Lal

Agarwal  [(2011) 5 SCC 394], contrary view has been taken in some

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subsequent judgments.  In Banda Development Authority (supra),

this Court has held that if land was vacant, going to the spot and

preparing a panchnama by a state authority would ordinarily be

treated as sufficient to constitute the taking of possession.   If crop

is  standing,  notice  was  required  to  be  given  to  the  occupier  of

building or structure and thereafter taking possession in presence

of independent witnesses and in spite of refusal by the owner did

not mean that possession of the has not been taken.  If acquisition

is of a large tract of land, it would not be possible to take physical

possession of each and every parcel of such land. Taking ‘symbolic’

possession, by preparing an appropriate document, in presence of

independent witnesses, was sufficient.  Where urgency clause was

invoked and substantial portion of land was acquired or utilized in

furtherance of the particular public purpose, taking of possession

was presumed.  Utilization of a major portion of acquired land for

public purpose was itself sufficient to prove taking over possession.

89. We find that in Velaxan Kumar versus Union of India [(2015) 4

SCC 325], the Court held that Section 24(2) of the 2013 Act being a

benevolent provision, even though possession had been taken, but

if  due procedure was not  followed and,  the  photographs showed

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that  the  landowners  were  in  possession,  the  proceedings  would

lapse.  Such a view, in our opinion, is contrary to the settled law as

referred to in Banda Development Authority (supra).  The same will,

accordingly, stand overruled.  

In Re: Question No.III :

WHETHER SECTION 24 OF THE ACT OF 2013 REVIVES STALE/ BARREDCLAIMS?

90. In several cases, the challenge to the acquisition has become

stale and otherwise barred. The question arises whether a beneficial

provision of section 24 of the Act of 2013 revives such claims and

the Courts can entertain them.

91. Arguments to the effect, that section 24 of the Act of 2013 does

have  the  effect  of  re-opening  claims  of  the  beneficiaries,  qua

acquisitions that had, in certain instances, been made as far back

as the first and the second decade of the 20th century or decades

before,  are being routinely urged before various courts, including

this Court and is involved in several  instant cases.  To that end,

proceedings  are  being  filed  anew,  even  though  everything

appertaining  the  concerned  acquisition  proceedings,  including

several rounds of legal challenge to the same, has attained finality

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decades ago. The question is whether it is permissible to assert for

resuscitation of such claims, placing them under the umbrella of

the provisions of Section 24.

92. An instance of such a claim, put forth before this Court, was

argued and decided within the confines of the case titled as Mahavir

&  Ors.  v.  Union  of  India  &  Anr., numbered  as  SLP  (C)  No.

26281/2017, decided on 8.9.2017. This was a petition filed with

respect  to  an  area  known  as  the  ‘Raisina  Hills’,  located  in  the

‘Lutyens Zone’ of New Delhi.  

93. The question arose as to whether the court can interfere in

such cases? The Court’s discussion on the legal aspects involved in

Mahavir’s  case  (supra),  and  its  decision  thereon,  is  summarized

hereunder. The petition was dismissed on the ground of delay and

laches,  holding that it  destroyed the remedy. It  was further held

that section 24 does not revive non-existing or dead claims; it only

ensures that claims, which were alive, would be examined.  

94. In  Mahavir’s case (supra), this Court has also referred to the

decision in Tamil Nadu Housing Board, Chennai v. M. Meiyappan &

Ors. [(2010) 14 SCC 309], and in  Jasveer Singh v. State of U.P. &

Ors. [(2017) 6 SCC 787]. The delay and laches are enough to destroy

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the remedy.  

Mahavir’s case  (supra)  also  contains  the  observation to  the

effect  that,  if  the  conduct  and  neglect  of  the  landowner  or  his

successor is allowed to prevail, permitting them to assert their claim

at this belated juncture, it would place the Estate Authority in a

position in which it would not be reasonable to place them; and that

in such cases, lapse of time and delay are one of the most material

considerations. The Court’s observations in  Mahavir’s case (supra)

are extracted hereunder:

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

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

“32 …we are of the view that no relief should be given to  petitioners  who,  without  any  reasonable explanation,  approach this  Court  under Article 32 of the  Constitution  after  inordinate  delay.  The  highest Court in this land has been given Original Jurisdiction to  entertain  petitions  under  Article  32  of  the Constitution.  It could not have been the intention that this Court would go into stale demands after a lapse of

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years.  It  is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay.”

(emphasis supplied)”

95. This Court, in Dharappa v. Bijapur Co-operative Milk Producers

Societies Union Ltd. [(2007) 9 SCC 109], had an occasion to consider

the effect and operation of section 10(4A) of the Industrial Disputes

Act, 1947; the section had been inserted via an amendment made to

the Act. With regard to the same, the Court observed that delay, if

has resulted in material evidence relevant to adjudication being lost

or rendered unavailable, would be fatal. It was held that the time

limit  of  6  months,  prescribed  by  section  10(4A),  should  be

interpreted so as not to revive stale and dead claims, for it would

not be possible to defend such claims due to lapse of time and due

to material evidence having been lost or rendered unavailable. In

Dharappa (supra), it was observed;

“29. This Court while dealing with Section 10(1)(c) and (d) of the ID Act, has repeatedly held that though the Act does not provide  a  period  of  limitation  for  raising  a  dispute  under Section 10(1)(c) or (d), if on account of delay, a dispute has become  stale  or  ceases  to  exist,  the  reference  should  be rejected. It has also held that lapse of time results in losing the remedy and the right as well. The delay would be fatal if it has  resulted  in  material  evidence  relevant  to  adjudication being lost  or  rendered unavailable  [vide - Nedungadi  Bank

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

97. Thus,  when  we  ponder  as  to  the  instant  case,  qua  the

re-opening of  stale  claims under  section 24 of  the  2013 Act,  no

‘Johnny  come  lately’  can  be  permitted  to  assert  that  he  is  in

possession (claiming that physical possession has not been taken

away  from  him),  when  such  assertion  has  not  been  made  for

decades together. Such claims would not be revived after the person

has  slept  over  them;  the  courts  must  not  condone  sudden

wakefulness from such slumber, especially in relation to claims over

open pieces of land, and even houses/structures, when the person

may  have  illegally  reentered  into  the  possession  or  may  have

committed trespass. Thus, for the aforesaid reasons, such claims

cannot be entertained or adjudicated under section 24 of the 2013

Act.

98. In our considered opinion section 24 cannot be used to revive

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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).  We have

come across the cases in which findings have been recorded that by

which of drawing a Panchnama, possession has been taken, now

again  under  Section  24(2)  it  is  asserted  again  that  physical

possession is still with them. Such claims cannot be entertained in

view of  the previous decisions in which such plea ought to have

been raised and such decisions would operate as  res judicata or

constructive  res judicata. As either the plea raised is negatived or

such  plea  ought  to  have  been  raised  or  was  not  raised  in  the

previous round of litigation. Section 24 of the Act of 2013 does not

supersede or annul the court’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.

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99. 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.   

100. We are of  the view that 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

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enacting the provisions of section 24 (2) of the 2013 Act; and, by the

decision laid down in Pune Municipal Corporation (supra), and this

Court never, even for a moment, intended that such cases would be

received or entertained by the courts.    

IN RE: QUESTION NOS. IV AND V

101.  Question Nos. IV and V have been referred to in Yogesh

Neema & Ors. v. State of M.P. & Ors. (supra) by this Court relating

to  correctness  of  the  decision  in  Shree  Balaji  Nagar  Residential

Association v. State of Tamil Nadu (supra) and conscious omission

referred in para 11 of  the said judgment 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 and

applicability of the principle of “actus curiae neminem gravabit” and

its effect on Section 24(3) of Act of 2013.

102. In  Yogesh  Kumar  &  Ors.  v.  State  of  M.P.,  this  Court  has

doubted  the  correctness  of  decision  in  Shree  Balaji  Nagar

Residential Association (supra) in which this Court has observed:

"11. From a plain reading of Section 24 of the 2013 Act, it is clear that Section 24(2) of the 2013 Act does not exclude any period  during  which  the  land acquisition  proceedings  might have remained stayed on account of stay or injunction granted by any Court. In the same Act, the proviso to Section 19(7) in

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the context of limitation for publication of declaration under Section  19(1)  and  the  Explanation  to  Section  69(2)  for working out  the  market  value of  the  land in  the  context  of delay between preliminary notification under Section 11 and the date of the award, specifically provide that the period or periods during which the acquisition proceedings were held up on account of any stay or injunction by the order of any Court be excluded in computing the relevant period. In that view of the matter, it can be safely concluded that the legislature has consciously  omitted  to  extend  the  period  of  five  years indicated in Section 24(2) even if  the proceedings had been delayed on account of an order of stay or injunction granted by a Court of law or for any reason. Such casus omissus cannot be supplied by the Court in view of law on the subject elaborately discussed by this Court in Padma Sundara Rao v. State of T.N. (2002) 3 SCC 533.  12. Even  in  the  Land  Acquisition  Act  of  1894,  the legislature had brought about amendment in Section 6 through an  Amendment  Act  of  1984  to  add  Explanation  I  for  the purpose of excluding the period when the proceeding suffered stay  by  an  order  of  the  Court,  in  the  context  of  limitation provided for publishing the declaration under Section 6(1) of the  Act.  To a  similar  effect  was  the  Explanation to  Section 11-A  which  was  added  by  Amendment  Act  68  of  1984. Clearly, the legislature has, in its wisdom, made the period of five years under Section 24(2) of the 2013 Act absolute and unaffected by any delay in the proceedings on account of any order  of  stay  by  a  Court.  The  plain  wording  used  by  the legislature  are  clear  and  do  not  create  any  ambiguity  or conflict. In such a situation, the Court is not required to depart from the literal rule of interpretation."  

In  Shree  Balaji (supra)  a  Division  Bench  of  this  Court  has

opined  that  their  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, this

Court has observed that in the Act of 1894 by making amendment

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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), reference has also been made in Shree

Balaji, to the decision of a 3-Judge Bench of this Court in Union of

India v. Shiv Raj (2014) 6 SCC 564. The Division Bench in Yogesh

Kumar & Ors. v. State of Madhya Pradesh and Ors. while referring

the matter to the larger Bench has observed that in Union of India &

Anr. v. Shiv Raj (supra), there is no view expressed on the question

whether the period during which the award had remained stayed,

should  be  excluded  for  the  purpose  of  consideration  of  the

provisions of section 24(2) of the Act of 1894. A doubt has been

expressed  as  to  the  correctness  of  the  decision  in  Shree  Balaji

(supra) on the ground that it is an established principle of law that

the act of court cannot be construed to cause prejudice to any of

the contesting parties in litigation which is expressed in the maxim

‘actus curiae neminem gravabit’.

EFFECT OF INTERIM ORDER OF A COURT

103.  It was contended on behalf of the landowners that there was

interim stay only with respect to obtaining the possession and not

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with  respect  to  payment  of  compensation.  Thus  compensation

ought to have been paid. While raising aforesaid submission the

basic  concept  of  acquisition  under  1894  Act  is  ignored  and

overlooked as right to receive compensation is a statutory right and

that comes into being only when the Government takes possession

of the property acquired. It is a ‘right in debitum in praesenti’, and

not dependent on the quantum of the compensation, either by the

Land Acquisition Officer under section 11 of the Act or by Court

under section 26 of the Act of 1894. Section 17(1) also provides that

compensation has to be offered when the possession is taken and in

case  interim stay  on  possession  is  obtained  in  any  litigation  or

orders of status quo and or such other order is passed, it is not

open to such persons to contend that they ought to have been paid

the compensation notwithstanding that they have been resisting the

acquisition and taking of possession.

104. In  our  opinion,  when there  is  interim stay  with  respect  to

possession or order of  status quo or stay on further proceedings

etc., there is no justification for authorities to proceed any further

with  respect  to  payment  of  compensation  or  otherwise  as  these

obligations  are  intertwined  in  the  scheme  of  land  acquisition.

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Everything stands still till the interim order is vacated. There are

cases also in which we have come across that the High Court in

writ petition has illegally set aside the acquisition on impermissible

reasons and during the pendency of the writ appeal or matter before

this Court, the provisions of Act of 2013 have come into force. Such

matters have to be decided on their own merits and the benefit of

any illegal quashment of land acquisition by the High Court cannot

come  in  the  way  of  adjudication  of  the  dispute  on  merits

considering situation when it was filed as Act does not cover cause

of illegal order, in view of the provisions contained in repeal and

saving in section 114 of the Act of 2013 read with and section 6(e)

of  the General Clauses Act and no different intention appears in

such matters in view of provisions contained in section 24 of the Act

of 2013.

105(a).   In  Abhey Ram (Dead) by LRs. & Ors. v. Union of India &

Ors. (1997) 5 SCC 421, this Court considered the extended meaning

of words “stay of the action or proceedings” and referring to various

decisions observed that any type of the orders passed by this Court

would  be  an  inhibitive  action  on  the  part  of  the  authorities  to

proceed further. In said decision this Court has observed thus :

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“9. Therefore, the reason given in B.R. Gupta v. U.O.I. and Ors.  37(1989)  DLT 150  are  obvious  with  reference  to  the quashing of the publication of the declaration under Section 6 vis-a-vis the writ petitioners therein. The question thus arise for consideration is: whether the stay obtained by some of the persons who prohibited the respondents from publication of the declaration under Section 6 would equally be extendible to  the  cases  relating to  the  appellants?  We proceed on the premise that the appellants had not obtained any stay of the publication  of  the  declaration  but  since  the  High  Court  in some of the cases has, in fact, prohibited them as extracted hereinbefore, from publication of the declaration, necessarily, when  the  Court  has  not  restricted  the  declaration  in  the impugned  orders  in  support  of  the  petitioners  therein,  the officers  had  to  hold  back  their  hands  till  the  matters  are disposed of. In fact, this Court has given extended meaning to the  orders  of  stay  or  proceeding in  various  cases,  namely, Yusufbhai  Noormohmed Nendoliya  v. State  of  Gujarat  and Anr. AIR1991SC2153;Hansraj  Jain  v. State  of  Maharashtra and Ors. (1993) 4 JT 360; Sangappa Gurulingappa Sajjan v. State of Kamataka and Ors. (1994) 4 SCC 145; Gandhi Grah Nirman Sahkari  Samiti  Ltd.  Etc.  Etc.  v. State of Rajasthan and Ors.JT(1993) 3 194; G. Narayanaswamy Reddy (dead) by Lrs. and Anr. v. Govt. of Karnataka and Anr. JT (1991) 312 and Roshnara Begum Etc. v. U.O.I.  and Ors.(1986) 1 apex Dec 6.The words "stay of the action or proceeding" have been widely interpreted by this Court and mean that any type of the orders passed by this Court would be an inhibitive action on the part of the authorities to proceed further. When the action of conducting an enquiry under Section 5-A was put in issue and  the  declaration  under  Section  6  was  questioned, necessarily unless the Court holds that enquiry under Section 5-A was  properly  conducted  and  the  declaration  published under  Section  6  to  be  valid,  it  would  not  be  open  to  the officers to proceed further into the matter. As a consequence, the stay granted in respect of some would be applicable to others also who had not obtained stay in that behalf. We are not  concerned  with  the  correctness  of  the  earlier  direction with  regard  to  Section  5-A  enquiry  and  consideration  of objections as it was not challenged by the respondent union. We express no opinion on its correctness, though it is open to doubt.”  

(emphasis supplied)

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105(b). In Om Parkash v. Union of India & Ors. (2010) 4 SCC 17,

this Court observed thus :

“72. Thus, in other words, the interim order of stay granted in one  of  the  matters  of  the  landowners  would  put  complete restraint on the respondents to have proceeded further to issue notification under Section 6 of the Act. Had they issued the said  notification  during  the  period  when  the  stay  was operative, then obviously they may have been hauled up for committing contempt of court. The language employed in the interim  orders  of  stay  is  also  such  that  it  had  completely restrained  the  respondents  from  proceeding  further  in  the matter by issuing declaration/ notification under Section 6 of the Act.”  

(emphasis supplied)

105(c). In Shiv Raj (supra), it was noted by this Court that there

was stay of dispossession when the writ petition was pending but

this Court passed no interim order. There was no stay for the last 7

years and thereafter respondent took no action in pursuance of the

award. That was also one of the distinguishing features of Shiv Raj’s

case (supra) and it was largely based upon circular issued on the

basis of the opinion of the Solicitor General.

105(d). A Three-Judge Bench of this Court in  Suresh Chand v.

Gulam Chisti (1990) 1 SCC 593, while referring to Atma Ram Mittal

v. Ishwar Singh Punia (1988) 4 SCC 284, had observed:

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"17. It was argued that the words 'commencement of this Act' should  be  construed  to  mean  the  date  on  which  the moratorium period expired and the Act became applicable to the demised buildings. Such a view would require this Court to give different meanings to the same expression appearing at two places in the same section. The words 'on the date of commencement of this Act' in relation to the pendency of the suit would mean 15th July 1972 as held in Om Prakash Gupta (supra)  but  the  words  'from  such  date  of  commencement' appearing immediately thereafter in relation to the deposit to be made would have to be construed as the date of  actual application of the act at a date subsequent to 15th July 1972. Ordinarily the rule of construction is that the same expression where it appears more than once in the same statute, more so in the same provision, must receive the same meaning unless the context suggests otherwise Besides, such an interpretation would  render  the  use  of  prefix  'such'  before  the  word 'commencement'  redundant.  Thirdly  such  an  interpretation would run counter to the view taken by this Court in Atma Ram Mittal's case (supra) wherein it was held that no man can be made to suffer because of the court's fault or court's delay in the disposal of the suit. To put it differently if the suit could be  disposed  of  within  the  period  of  ten  years,  the  tenant would not be entitled to the protection of Section 39 but if the suit  is  prolonged  beyond  ten  years  the  tenant  would  be entitled  to  such  protection.  Such  an  interpretation  would encourage  the  tenant  to  protract  the  litigation  and  if  he succeeds in delaying the disposal of the suit till the expiry of ten years he would secure the benefit of Section 39, otherwise not. We are, therefore, of the opinion that it is not possible to uphold the argument.”  

(emphasis supplied)

105(e). A Constitution Bench of this Court in  Shyam Sunder &

Ors.  v. Ram Kumar & Anr.  (2001) 8 SCC 24, held that substantive

rights of  the parties are to be examined on the date of  the suit

unless the legislature makes such rights retrospective. This Court

observed:

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“28. From the  aforesaid  decisions  the  legal  position  that emerges is that when a repeal of an enactment is followed by a  fresh  legislation  such  legislation  does  not  affect  the substantive  rights  of  the  parties  on  the  date  of  suit  or adjudication of suit unless such a legislation is retrospective and a court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has  been  rendered  because  the  rights  of  the  parties  in  an appeal are determined under the law in force on the date of suit. However, the position in law would be different in the matters  which  relate  to  procedural  law  but  so  far  as substantive  rights  of  parties  are  concerned  they  remain unaffected  by  the  amendment  in  the  enactment.  We  are, therefore, of the view that where a repeal of provisions of an enactment  is  followed by fresh legislation by an amending Act such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statue and further a statute is not to be construed to have a greater retrospective operation than its  language renders necessary, but an amending act  which affects the procedure is presumed to be retrospective unless amending act provides otherwise. We have carefully looked into new substituted section 15 brought in the parent Act by Amendment Act 1995 but do not find it either expressly or by necessary implication retrospective in operation which may affect the right of the parties on the date of adjudication of suit and the same is required to be taken into consideration by the  appellate  Court.  In  Shanti  Devi  (Smt)  and  another  vs. Hukum Chand AIR 1996 SC 3525 this Court had occasion to interpret  the  substituted  section  15  with  which  we  are concerned and held that on a plain reading of section 15 it is clear that it has been introduced prospectively and there is no question of such section affecting in any manner the judgment and decree passed in the suit for pre-emption affirmed by the High  Court  in  the  second  appeal.  We are  respectfully  in agreement with the view expressed in the said decision and hold that the substituted Section 15 in the absence of anything in it to show that it is retrospective, does not affect the right of the parties which accrued to them on the date of suit or on the date of passing of the decree by the Court of the first instance. We are also of the view that present appeals are unaffected by change  in  law  in  so  far  it  related  to  determination  of  the

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substantive rights of the parties and the same are required to be decided in light of law of preemption as it existed on the date of passing of the decree.”  

(emphasis supplied)

105(f). In Dau Dayal v. State of Uttar Pradesh, AIR 1959 SC 433,

it was observed that in case complaint has been filed within time

and in case issue of process is permitted by the court, it was held

that it would be an unfortunate state of the law if the trader whose

rights had been infringed and who takes up the matter promptly

before the criminal court, is nevertheless denied redress owing to

the delay in the issue of process which occurs in court. The Court

observed:

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

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105(g). This Court in  Sarah Mathew v. Institute of Cardio Vascular

Diseases,  (2014)  2  SCC  62,  relied  upon  decision  in  DauDayal

(supra) and observed:

“29. Section 473 reads as under:

473. Extension of period of limitation in certain cases. - Notwithstanding anything contained in the foregoing provisions  of  this  Chapter,  any  Court  may  take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances  of  the  case  that  the  delay  has  been properly explained or that it is necessary so to do in the interests of justice.

37. We are inclined to take this view also because there has to be  some  amount  of  certainty  or  definiteness  in  matters  of limitation relating to criminal offences. If, as stated by this Court,  taking  cognizance  is  application  of  mind  by  the Magistrate  to the suspected offence,  the  subjective element comes in. Whether a Magistrate has taken cognizance or not will  depend  on  facts  and  circumstances  of  each  case.  A diligent  complainant  or  the  prosecuting  agency  which promptly files the complaint or initiates prosecution would be severely  prejudiced  if  it  is  held  that  the  relevant  point  for computing  limitation  would  be  the  date  on  which  the Magistrate  takes  cognizance.  The  complainant  or  the prosecuting agency would be entirely left at the mercy of the Magistrate,  who  may  take  cognizance  after  the  limitation period because of several reasons; systemic or otherwise. It cannot be the intention of the legislature to throw a diligent complainant out of the court in this manner. Besides it must be  noted  that  the  complainant  approaches  the  court  for redressal of his grievance. He wants action to be taken against the perpetrators  of crime.  The courts  functioning under the criminal justice system are created for this purpose. It would be unreasonable to take a view that delay caused by the court in taking cognizance of a case would deny justice to a diligent complainant.  Such  an  interpretation  of  Section  468  of  the Code  of  Criminal  Procedure  would  be  unsustainable  and would render it unconstitutional. It is well settled that a court of  law  would  interpret  a  provision  which  would  help

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sustaining the validity of the law by applying the doctrine of reasonable construction rather than applying a doctrine which would make the provision unsustainable and ultra vires the Constitution.  (U.P.  Power  Corporation  Ltd.  v.  Ayodhaya Prasad Mishra).”   

(emphasis supplied)

106. 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. 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. A litigant may be right or 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 the fruits

owing to the delay caused by unscrupulous persons by their own

actions by misusing the process of law and dilatory tactics.  

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107. In  Suresh Chandra v. Gulam Chisti (supra), it has been laid

down that no man can be made to suffer because of court's faults or

court's delay in disposal of suits. It was held that in case it could

not be the argument that if  the suit prolonged beyond 10 years,

tenant would be entitled to protection and if disposed of within 10

years, tenant would not be entitled to the protection. The argument

on the rights based on gains of delay of litigation was rejected and

such party could not take the benefit of change in law.

CASUS OMISSUS:

108. It was urged that there was casus omissus while not excluding

the  period of  interim stay in the provisions of  section 24.  While

Parliamentary Committee discussed the matter, Delhi Government

has  put  forward  its  case  that  the  period  spent  during  the  stay

should be excluded and such provision be inserted in section 24.

Later  on,  by way of  Ordinance it  was to be incorporated as the

second proviso, the Ordinance has lapsed. It was also urged that it

is  a  case  of  casus  omissus as  wherever  the  legislature  wanted

exclusion of stay period in section 19(7) of the Act of 2013, specific

provision has been made for exclusion of the period spent during

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the currency of stay and injunction order. Section 19 of the new Act

corresponds to section 6 of the Act of 1894. It was also urged that

there  is  also  a  provision  made  in  the  Explanation  appended  to

section  69(2)  to  exclude  the  period  spent  during  the

stay/injunction. Section 69 deals with determination of amount of

compensation to be awarded and interest thereupon.  

109. We  have  gone  through  the  Minutes  of  the  Parliamentary

Committee;  it  has  simply  noted  the  views  of  the  concerned

Government/authorities. The report of the Standing Committee on

rural development simply mentions in the recommendations that

the Committee would like the Government to re-examine the issue

as  the  acquisition,  which  has  been  made,  should  not  lapse.

Committee has noted the suggestions. Whether it was necessary to

incorporate such a provision was not gone into by the Committee.

Its  recommendation  is  bald.  Though  the  Ordinance  had  been

promulgated, the second proviso was to be added for exclusion of

the time of stay. Proviso also wanted to validate deposit in treasury

to  remove  the  basis  of  decision  of  Pune  Municipal  Corporation

(supra).  That would not mean that in the absence of  addition of

proviso, the actual legal position could be ignored. The position of

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law discussed by us makes it clear that it cannot be said to be a

casus  omissus and 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.  Obviously 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

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the  acquisition,  cannot  be  permitted to  ask for  compensation or

claim lapse under 2013 Act.                    

110. In Shivraj  (supra), this court did not consider the question of

exclusion of the time. In Karnail Kaur (supra), and in Balaji Nagar

Residential  Association  (supra),  various aspects,  having a bearing

on the issue, were not considered.  Thus, they cannot be said to be

laying down the correct law.

111. The landowners placed reliance on a decision of this Court,

rendered in  Padma Sundara Rao (Dead)  & Ors.  v.  State of  Tamil

Nadu & Ors.,  (2002) 3 SCC 533, in which this court considered

casus omissus and observed:

“12. The rival pleas regarding re-writing of statute and casus omissus need careful consideration. It is well settled principle in law that the Court  cannot read anything into a statutory provision  which is  plain  and unambiguous.  A statute  is  an edict of the legislature. The language employed in a statute is the  determinative  factor  of  legislative  intent.  The  first  and primary  rule  of  construction  is  that  the  intention  of  the Legislation  must  be  found  in  the  words  used  by  the Legislature itself. The question is not what may be supposed and  has  been  intended  but  what  has  been  said.  "Statutes should  be  construed  not  as  theorems  of  Euclid".  Judge Learned Hand said, "but words must be construed with some imagination  of  the  purposes  which  lie  behind  them".  (See Lehigh Valley Coal Co. v. Yensavage 218 FR 547). The view was reiterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (1990)1SCC277 .

13.  In  Dr. R.  Venkatchalam and Ors.  etc.  v. Dv. Transport

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Commissioner  and  Ors.  etc.  [1977]  2  SCR  392  it  was observed  that  Courts  must  avoid  the  danger  of  apriority determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.

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

[See Rishabh Agro Industries Ltd. v. P.N.B Capital Services Ltd. (2000)5SCC515 ]. The legislative casus omissus cannot be supplied  by  judicial  interpretative  process.  Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah's case (supra). In Nanjudaiah's case (supra), the period was further stretched to have the time period run from date of service of High Court's order. Such a view cannot reconciled with the language of  Section  6(1).  If  the  view is  accepted it  would mean  that  a  case  can  be  covered  by  not  only  Clauses  (i) and/or  (ii)  of  the  proviso  to  Section  6(1),  but  also  by  a non-prescribed  period.  Same  can  never  be  the  legislative intent.

15.  Two  principles  of  construction  -  one  relating  to  casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose 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  would  be  more  so  if  literal  construction  of  a particular  clause  leads  to  manifestly  absurd  or  anomalous

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results  which  could  not  have  been  intended  by  the Legislature. "An intention to produce an unreasonable result", said Danckwerts, L.J., in Artemiou v. Procopiou (1966 1 QB 878), "is not to 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" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. I.R.C. 1966 AC 557 where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".]

16.  The  plea  relating  to  applicability  of  the  stare  decisis principles  is  clearly  unacceptable.  The  decision  in  K. Chinnathambi  Gounder  (supra)  was  rendered  on 22.6.1979 i.e.  much  prior  to  the  amendment  by  1984  Act.  If  the Legislature intended to give a new lease of life in those cases where the declaration under Section 6 is quashed, there is no reason  why  it  could  not  have  done  so  by  specifically providing for it. The fact that legislature specifically provided for  periods  covered by orders  of  stay or  injunction clearly shows that no other period was intended to be excluded and that  there  is  no  scope  for  providing  any  other  period  of limitation.  The  maxim  'actus  curiae  neminem  gravabit' highlighted by the Full Bench of the Madras High Court has no application to the fact situation of this case. 17. The view expressed in Narasimhaiah's case (supra) and Nanjudaiah's  case  (supra),  is  not  correct  and  is  over-ruled while that expressed in A.S. Naidu's case (supra) and Oxford's case (supra) is affirmed.”

In  Padma Sundara  Rao (supra),  this  court  considered  the

period of limitation for issuance of declaration under section 6 of

the Act of 1894.  It was observed that the language of section 6 was

plain and unambiguous; there was no scope for reading something

into it, as had been done in N. Narasimhaiah v. State of Karnataka,

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(1996) 3 SCC 88. In State of Karnataka v. D.C. Nanjudaiah, (1996)

10 SCC 619, the period had been stretched further, so as to have

the time period run from date of service of the High Court’s order.

This Court, in  Padma SundaraRao (supra), held that such a view

could not be reconciled with the language of section 6(1), and in

this regard, further observed, that explanation to section 6 excluded

only that period during which any action or proceeding, initiated in

pursuance of the notification issued under section 4 (1), had been

stayed by an order of a court. When the legislature has specifically

provided for the periods covered by the order of stay and injunction,

the Court observed no other period could be said to be intended to

be excluded, by providing time period to run from date of service of

the High Court’s order; in that, it was not open to the court to add

to that period.   

112. The question for consideration in  Padma Sunder Rao (supra)

was entirely  different  from what  we are concerned with.   In  the

instant case, the question is not of the exclusion of period, but is of

the application of the Common Law maxims, and of what it is that

section 24 of the Act of 2013 intends; the issue before us is not as

to add to the period of limitation, with which the Court in the case

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of Padma Sunder Rao (supra) was concerned. Thus, the ratio of the

said decision has a different field to operate on, and consequently,

renders  no  support  to  the  submission  raised  on  behalf  of  the

landowners.

113. Reliance has been placed by land owners in Rana Girders Ltd.

v. Union of India (2013) 10 SCC 746 which is relied upon in Union of

India v. Sicom Limited & Ors.  (2009) 2 SCC 121.  This court has

observed  that  the  statutory  provision  would  prevail  upon  the

common law principles thus:

“9.  Generally, the  rights  of  the  crown to  recover  the  debt would prevail over the right of a subject. Crown debt means the  debts  due  to  the  State  or  the  king;  debts  which  a prerogative entitles the Crown to claim priority for before all other creditors. [See Advanced Law Lexicon by P. Ramanatha Aiyar (3rd Edn.) p. 1147]. Such creditors, however, must be held to mean unsecured creditors. Principle of Crown debt as such pertains to the common law principle. A common law which  is  a  law  within  the  meaning  of  Article  13  of  the Constitution is saved in terms of Article 372 thereof. Those principles of common law, thus, which were existing at the time of  coming into  force  of  the  Constitution  of  India  are saved  by  reason  of  the  aforementioned  provision.  A debt which is secured or which by reason of the provisions of a statute  becomes  the  first  charge  over  the  property  having regard to the plain meaning of Article 372 of the Constitution of India must be held to prevail over the Crown debt which is an unsecured one.  

10. It is trite that when a Parliament or State Legislature makes  an  enactment,  the  same  would  prevail  over  the common law.  Thus,  the  common law principle  which  was existing on the date of coming into force of the Constitution

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of India must yield to a statutory provision. To achieve the same purpose, the Parliament as also the State Legislatures inserted provisions in various statutes,  some of which have been referred to hereinbefore providing that the statutory dues shall be the first charge over the properties of the tax-payer. This aspect of the matter has been considered by this Court in a series of judgments.”                           (Emphasis supplied)

114. There is no dispute with the aforesaid proposition; and, in our

opinion, the statutory provisions, contained in section 24 of the Act

of 2013, do not exclude the principles of  common law which we

have held applicable.  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.   

115. The afore-extracted 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 in Mary Angel v. State of Tamil Nadu (1999) 5 SCC 209.

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

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in the context of Section 24(2) of the 2013 Act. The Court in Mary

Angel has observed :

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

116. In Assistant A.C.E., Calcutta versus National Tobacco Co. Ltd.

of India Ltd, (1972) 2 SCC 560, it was held:

“30. The question whether there was or was not an implied power to hold an enquiry in the circumstances of  the case before us, in view of the provisions of Section 4 of the Act read  with  Rule  10-A of  the  Central  Excise  Rule,  was  not examined by the Calcutta High Court because it erroneously shut  out  consideration  of  the  meaning and  applicability  of Rule 10A. The High Court's view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law it must be performed in that mode or

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not at all. This rule flows from the maxim : "Expressio unius est exclusion alterius." But, as we pointed out by Wills, J., in Colquohoun v. Brooks (1888) 2 1. Q.B. D. 52 this maxim "is often a valuable servant, but a dangerous master ...." The rule is  subservient  to  the  basic  principle  that  Courts  must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. Moreover the rule of prohibition by necessary implication could be applied only where a specified procedure  is  laid  down  for  the  performance  of  a  duty. Although  Rule  52  makes  an  assessment  obligatory  before goods are removed by a manufacturer, yet, neither that rule nor any other, rule, as already indicated above, has specified the detailed procedure for an assessment. There is no express prohibition anywhere against an assessment at any other time in the circumstances of a case like the one before us where no "assessment", as it is understood in Jaw, took place at all. On the other  hand,  Rule 10A indicates that  there are residuary powers  of  making  a  demand  in  special  circumstances  not foreseen by the framers of the Act or the rules.  If the assessee disputes  the  correctness  of  the  demand  an  assessment becomes necessary to protect the interests of the assessee. A case  like  the  one  before  us  falls  more  properly  within  the residuary class of unforeseen cases. We think that, from the provisions of Section 4 of the Act read with Rule 10A, an implied power to carry out or complete an assessment,  not specifically  provided for  by  the  rules,  can  be  inferred.  No writs of prohibition or mandamus were, therefore, called for in the circumstances of the case.”

Thus, the Common Law principles, as discussed by us, 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.

DOCTRINE OF IMPOSSIBILITY

117. In several cases it is often seen that the landowners are not

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ready  to  accept  the  compensation  even  though  they  have  been

offered the same; they have either refused to accept or have filed

writ  applications questioning the land acquisitions.  Further,  it  is

also  observed,  that  repeatedly,  successive  writ  applications  have

also been filed by the persons who have purchased the property

after  issuance  of  notification  under  section  4  and,  in  some

instances, even after passing of the award, possession taken and

when the land has absolutely vested in the State Government, that

such  persons  are  calling  into  question  the  land  acquisition.  We

have come across several cases when the challenges to acquisition

have been negatived right up to this court but, undeterred by the

same,  fresh round of litigation is, thereafter, started again, with the

cause again being agitated either by the same persons or by some

other such purchasers. It has come to our notice that now, after the

coming into force of the Act of 2013, unsavory attempts are being

made  to  grossly  misuse  the  process  of  law  by  moving  such

petitions, and asserting therein that though they themselves might

not have accepted the compensation, and have refused to accept

the  same,  but,  since  it  has  ‘not  been paid  to  them’,  by  making

deposit in court, or they have remained in the actual possession of

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the land, though Panchnama of taking possession might have been

drawn, as such, land acquisition has lapsed. The aforementioned

assertions  are  being  made;  notwithstanding  even  earlier  judicial

finding that possession had been taken by drawing Panchnama etc.

If  section 24 is  interpreted in  the  method and manner  so  as to

reopen all the cases, notwithstanding the fact that the land owners,

or as the case may be their successors-in-interest are themselves

responsible  for  not  accepting  or  illegally  refusing  to  accept  the

compensation, or that they have, in an illegal manner, re-entered

into  possession  of  land,  then  it  becomes,  and  it  has,  in  fact,

become, virtually impossible for the State Governments to save and

carry into effect the much-needed acquisition of the land, at the

cost of public interest, leaving it with no viable legal defense with

which to save the acquisition in such proceedings made decades

before.   

118.  Shri Patwalia has pressed into service the doctrine of ‘lax

non cogit ad impossibilia’ and has urged us to consider the scope

and application of the same.  He argued that a law does not expect

the State authorities to do what cannot possibly be performed by

owing to the adamant attitude and conduct of such landowners; it

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is a settled proposition of law that law does not expect a party to do

the  impossible.   It  was  urged  that  the  maxim  ‘impossibilium

nullaobligatio est’ would come to the rescue of State authorities in

such cases.   The doctrine  has been dealt  with by  this  Court  in

Chander Kishore Jha v. Mahabir Prasad (1999) 8 SCC 266 thus:

“13.  In  our  opinion  insofar  as  an  election  petition  is concerned, proper presentation of an election petition in the Patna High Court can only be made in the manner prescribed by Rule 6 of Chapter XXI-E. No other mode of presentation of an election petition is envisaged under the Act or the Rules thereunder and therefore, an election petition could, under no circumstances,  be  presented  to  the  Registrar  to  save  the period of limitation. It is a well-settled salutary principle that if  a  statute  provides  for  a  thing to  be  done in  a particular manner, then it has to be done in that manner and in no other manner. [See with advantage: Nazir Ahmad v. King Emperor; Rao Shiv Bahadur Singh and Anr. v. State of Vindhya Pradesh 1954 CriLJ 910  State of Uttar Pradesh v. Singhara Singh and Ors. [1964] 4 SCR 485. An election petition under the Rules could  only  have  been  presented  in  the  open  Court  upto 16.5.1995 till 4.15 P.M. (working hours of the Court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save the period of limitation. That, however, was not done. However, we cannot ignore that the situation in the present case was not of the making of the appellant. Neither the designated election Judge before whom the election petition could be formally presented in the open Court nor the Bench hearing civil applications and motions was admittedly available on 16.5.1995 after 3.15 P.M., after the Obituary Reference since admittedly the Chief Justice of the High Court had declared that "the Court shall not sit for the rest of the day" after 3.15 P.M.  Law does not expect a party to do the impossible-Impossible nulla obligation est--As in the instant case, the election petition could not be filed on 16.5.1995  during  the  Court  hours,  as  far  all  intent  and purposes, the Court was closed on 16.5.1995 after 3.15 P.M.”

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119. In  Mohd Gazi v. State of Madhya Pradesh (2000) 4 SCC 342

this court has laid down thus:

“6. In the facts and circumstances of the case the maxim of equity, namely, actus curiae neminem gravabit - an act of the Court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and  certain  guide  for  the  administration  of  law. The  other maxim is,  lex non cogit ad impossibilia - the law does not compel a man to do which he cannot possibly perform. The law itself and its administration is understood to disclaim as it does  in  its  general  aphorisms,  all  intention  of  compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Day and Ors. v. Tarapada Day and Ors.  [1988]  1  SCR 118  and  Gursharan  Singh  and  Ors.  v. NDMC and Ors. [1996] 1 SCR 1154.”

120.   Shri  Patwalia  has also pressed into service  the maxim of

Roman Law namely, ‘Nemo Tenetur ad Impossibilia’ (no one is

bound to do an impossibility).   Claimants/ landowners are filing

successive applications/ litigations for obtaining interim stay that

has been granted.  There is no way to make them ready to accept

the compensation as once they accept the compensation their right

to question the acquisition would stand wiped off.  They could not

even claim higher compensation in Reference Court, in case they

accept the compensation without protest.  It is only after accepting

the compensation under protest that they can seek reference under

section 18 of the Act of 1894.   

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121. Learned  Counsel  has  relied  upon  decision  in  Industrial

Finance  Corporation  of  India  Ltd.  v.  Cannanore  Spinning  and

Weaving Mills Ltd. (2002) 5 SCC 54 in which the Court observed:

“30. The Latin Maxim referred to the English judgment "lax non  cogit  ad  impossibilia"  also  expressed  as  "impotentia excusat  legem" in common English acceptation means,  the law  does  not  compel  a  man  to  do  that  which  he  cannot possibly perform. There ought always thus to be an invincible disability to perform the obligation and the same is akin to the Roman Maxim "nemo tenetur  ad  impossibilia"  In  Broom's Legal Maxims the state of the situation has been described as below:-

"It  is,  then,  a  general  rule  which  admits  of  ample practical  illustration,  that  impotentiaexcusatlegem; where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has  no  remedy  over,  there  the  law  will  in  general excuse  him  (t)  :  and  though  impossibility  of performance  is,  in  general,  no  excuse  for  not performing an obligation which a party has expressly undertaken by contract, yet when the obligation is one implied by law, impossibility of performance is a good excuse.  Thus  in  a  case  in  which  consignees  of  a cargo  were  prevented  from  unloading  a  ship promptly by reason of a dock strike, the Court, after holding that in the absence of an express agreement to unload in a specified time there was implied obligation to  unload  within  a  reasonable  time,  held  that  the maxim  lax  non  cogit  ad  impossibilia  applied,  and Lindley,  L.J.,  said:  "We  have  to  do  with  implied obligations, and I am not aware of any case in which an  obligation  to  pay  damages  is  ever  cast  by implication upon a person for not doing that which is rendered  impossible  by  causes  beyond  his  control". (emphasis supplied)

122. In HUDA v. Babeswar Kanhar (2005) 1 SCC 191 this court has

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held:

“5.  What  is  stipulated  in  Clause-4  of  the  letter  dated 30.10.2001 is  a  communication  regarding refusal  to  accept the allotment. This was done on 28.11.2001. Respondent No. 1 cannot be put to loss for the closure of the office of HUDA on  01.12.2001  and  02.12.2001  and  the  postal  holiday  on 30.11.2001. In fact he had no control over these matters. Even the logic of Section 10 of the General Clauses Act, 1897 can be  pressed  into  service.  Apart  from  the  said  Section  and various provisions in various other Acts, there is the general principle that a party prevented from doing an act by some circumstances  beyond  his  control,  can  do  so  at  the  first subsequent opportunity (see Sambasiva Chari v. Ramaswami Reddi (1898) (8) Madras Law Journal 265). The underlying object of the principle is to enable a person to do what he could  have  done  on  a  holiday,  on  the  next  working  day. Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then the act should be considered to have been done within that period if it is done on the next day on which the court or office is open. The reason is that law does not compel the  performance  of  an  impossibility.  (See  Hossein  Ally  v. Donzelle) ILR 5 Cal 906. Every consideration of justice and expediency would require that the accepted principle which underlies  Section 10 of the General  Clauses Act should be applied in cases where it does not otherwise in terms apply. The principles underlying are lex non cogit ad impossibilia (the law does not compel a man to do the impossible) and actus  curiae  neminem  gravabit  (the  act  of  Court  shall prejudice no man). Above being the position, there is nothing infirm in the orders passed by the Forums below. However, the rate of interest fixed appears to be slightly on the higher side  and  is  reduced  to  9%  to  be  paid  with  effect  from 03.12.2001, i.e., the date on which the letter was received by HUDA.”  

(emphasis supplied)

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

observed:

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“………… (v) The maxim of law impotentia excusat legem is intimately connected  with  another  maxim  of  law  lex  non  cogit  ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part  of  the  law that  impotentia  excuses,  The law does  not compel one to do that  which one cannot possibly perform. "Where the  law creates  a  duty  or  charge,  and the  party  is disabled to perform it, without any default in him, and has no remedy over  it,  there  the  law will  in  general  excuse him." Therefore,  when  it  appears  that  the  performance  of  the formalities  prescribed  by  a  statute  has  been  rendered impossible  by  circumstances  over  which  the  persons interested  had  no  control,  like  the  act  of  God,  the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because  of  supervening  impossibility  caused  by  the  act  of God.  (Sec  Broom's  Legal  Maxims  10th  Edition  at  pp. 1962-63 and Craies on Statute Law 6th Ed. p. 268)”.

(emphasis supplied)

124. In Standard Chartered Bank v. Directorate of Enforcement, AIR

2005 (2) SC 2622, this court held that there is an acceptable legal

maxim that law does not compel a man to do that which cannot

possibly  be  performed  “impotentia  excusat  legem”.  Basic

principle of law is that law compels no impossibility.  It was urged

that  in  case  the  landowners  create  such  circumstances,  which

renders  impossible  performance  of  the  statutorily  prescribed

formalities, such landowners couldn’t take advantage of their own

act or wrong.

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125. In  our  opinion,  the  maxims  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  aforesaid  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.  

The maxim  “nullus commodum capere potest  de injuria

sua propria” i.e. ‘No man can take advantage of his own wrong’.

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126. The  author  Broom,  in  Legal  Maxims,  has  discussed  the

maxim, and observed:

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

A “tender” of the amount to be paid operates as a bar upon

any claim for damages and interest.  

127.  Thus, in the context of the factual and legal scenario of the

land  acquisition  proceedings,  and  of  the  conduct  of  the

landowners/claimants,  with  which  we  are  presently  concerned,

when once “tender” of the amount had been made, in any of the

prescribed modes, 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.  The

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author Broom, in regard to the maxim, has remarked thus:

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

DOCTRINE OF   ACTUS CURIAE NEMINEM GRAVABIT.

128. Coupled  with  aforesaid  maxim  we  have  to  consider

applicability  of  maxim ‘actus  curiae neminem gravabit’ to  the

question.  

In  the  book  titled  “Selection  of  Legal  Maxims”  by  Herbert

Broom, the author about the said maxim has observed:

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

129. It is settled proposition of law that no litigant can derive the

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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. “No person ought to

have advantage of 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. This Court

in  Mrutunjay Pan v.  Narmada Bala Sasmal  & Anr.  AIR 1961 SC

1353 has observed :

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

(emphasis supplied)

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130. It was submitted on behalf  of the landowners that once the

court  finds  prima  facie  case  and  interim  order  is  granted,  the

litigant couldn’t be said to be at fault. A merit ultimately examined

finally  in  the  case  and  is  found  to  be  meritless.  In  such

circumstances the maxim ‘actus curiae neminem gravabit’ comes

to the rescue of the opposite party who has suffered due to interim

order and was unable to take steps. The principle that the act of the

court shall prejudice no one is clearly applicable in such a case. The

court is under an obligation to undo a wrong done to a party by the

act  of  the court  and to make restitution under inherent powers.

Thus  any  undeserved  or  unfair  advantage  gained  by  a  party

invoking  the  jurisdiction  of  the  court  must  be  neutralized,  as

institution of litigation cannot be permitted to confer any advantage

on a suitor from the delayed action by the act of the court. Nor it

was so contemplated by Section 24 of Act of  2013. It  is  not the

policy of law that those who are litigating, obtained interim orders

though ultimately  their  claim may not  be  tenable.   Gain  due to

delay or tainted act is not permissible and sufferance of person who

has abided by law is not permissible. The provisions of section 24

aim only at expeditious disposal of acquisition authorities, lethargy

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came to be dismissed by the High Court.” (emphasis supplied)

131(b). This  Court  in  Jaipur  Municipal  Corpn.  v.  C.L.  Mishra

(2005) 8 SCC 423 has observed that interim order merges in final

order, it cannot have independent existence, cannot survive beyond

is. Thus, no benefit of interim order can be taken.

131(c). This Court in Ram Krishna Verma v. State of U.P. (1992) 2

SCC 620, relying upon earlier decision in  Grindlays Bank Ltd. v.

Income Tax Officer, Calcutta (1980) 2 SCC 191, held that no one can

suffer from the act of the court and in case an interim order has

been passed and petitioner takes advantage thereof and ultimately

petition is found to be without merit and is dismissed, the interest

of justice requires that any undeserved or unfair advantage gained

by  a  party  invoking  the  jurisdiction  of  the  court  must  be

neutralized.  

131(d). This  Court  in  Mahadeo  Savlaram  Shelke  v.  Pune

Municipal Corporation (1995) 3 SCC 33 has observed that the court

can under inherent jurisdiction ‘ex debito justitiae’ has a duty to

mitigate the damage suffered by the defendants by the act of the

court. Such action is necessary to put a check on abuse of process

of court.  

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131(e). In Amarjeet Singh v. Devi Ratan & Ors. (2010) 1 SCC 417

this  Court  in  Ramakrishna  Verma has  held  that  no  person  can

suffer from the act of court and unfair advantage of interim order

must be neutralized, the court observed:  

“In Ram Krishna Verma v. State of U.P., this Court examined the  similar  issue  while  placing  reliance  upon  its  earlier judgment in  Grindlays Bank Ltd. v. ITO,  (1980) 2 SCC 191, and held that no person can suffer from the act of the Court and in case an interim order has been passed and the Petitioner takes advantage thereof and ultimately the petition is found to be without any merit and is dismissed, the interest of justice requires that any underserved or unfair advantage gained by a party  invoking  the  jurisdiction  of  the  Court  must  be neutralized.”  

(emphasis supplied)

131(f). This Court has considered the maxim of ‘actus curiae

neminem  gravabit’  in  Karnataka  Rare  Earth  &  Anr.  v.  Senior

Geologist, Department of Mines & Geology & Anr. (2004) 2 SCC 783,

it  was  emphasized  that  parties  should  be  placed  in  the  same

position they would have been but for courts order and observed :

“10.  ….the  doctrine  of     actus  curiae  neminem  gravabit     and held that the doctrine was not confined in its application only to such acts of the Court which were erroneous; the doctrine is applicable to all such acts as to which it can be held that the Court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted. When on account of an act of the party, persuading the Court  to pass an order, which at  the end is  held as not sustainable, has resulted in one party gaining advantage which it  would  not  have  otherwise  earned, or  the  other  party  has suffered an improvement which it would not have suffered but

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1531 thus:

“83.  This  case  has  caused  us  considerable  anxiety.  The appellant-accused  has  held  an  important  position  in  this country, being the Chief Minister of a premier State of the country. He has been charged with serious criminal offences. His trial in accordance with law and the procedure established by law would have to be in accordance with the 1952 Act. That could not possibly be done because of the directions of this Court dated 16th February 1984, as indicated above. It has  not  yet  been  found  whether  the  appellant  is  guilty  or innocent. It is unfortunate, unfortunate for the people of the State, unfortunate for the country as a whole, unfortunate for the  future  working  of  democracy  in  this  country  which, though is not a plant of an easy growth yet is with deep root in the Indian polity that delay has occurred due to procedural wrangles.  The  appellant  may  be  guilty  of  grave  offences alleged  against  him  or  he  may  be  completely  or  if  not completely to a large extent, innocent. Values in public life and perspective of these values in public life have undergone serious  changes  and  erosion  during  the  last  few  decades. What was unheard of before is common place today. A new value orientation is  being undergone in our life and in our culture. We are at the threshold of the cross-roads of values. It is,  for  the  sovereign  people  of  the  country  to  settle  those conflicts  yet  the  Courts  have  vital  roles  to  play  in  such matters. With the avowed object of speedier trial the case of the appellant had been transferred to the High Court but on grounds of expediency of trial, he cannot be subjected to a procedure  unwarranted  by  law,  and  contrary  to  the constitutional provisions. The appellant may or may not be an ideal politician. It is a fact, however, that the allegations have been brought against him by a person belonging to a political party opposed to his but that is not the decisive factor. If the appellant Shri Abdul Rehman Antulay has infringed law, he must be dealt with in accordance with the law. We proclaim and pronounce that no man is above the law, but at the same time reiterate and declare that no man can be denied his rights under the Constitution and the laws. He has a right to be dealt with in accordance with the law and not in derogation of it. this  Court,  in  its  anxiety to  facilitate  the  parties  to  have a speedy  trial  gave  directions  on  16th  February  1984  as mentioned hereinbefore without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952

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Act  and that  being  the  only  procedure  established by law, there can be no deviation from the terms of Article 21 of the Constitution of India. That is the only procedure under which it should have been guided. By reason of giving the directions on 16th  February  1984 this  Court  had  also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law. When these factors are brought to the notice of this Court, even if there are any technicalities this Court should not  feel  shackled  and  decline  to  rectify  that  injustice  or otherwise the injustice noticed will remain forever a blot on justice.  It  has  been said  long time ago that  "Actus  Curiae Neminem Gravabit"- an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.

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

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

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

Procedure is the handmaid and not a mistress of law, intended to  subserve  and  facilitate  the  cause  of  justice  and  not  to govern  or  obstruct  it,  like  all  rules  of  procedure,  this  rule demands a construction which would promote this cause.

Once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the Court to rectify the mistake by exercising inherent powers.  Judicial opinion heavily  leans  in  favour  of  this  view that  a  mistake  of  the Court can be corrected by the Court itself without any fetters. This is on the principle as indicated in Alexander Rodger's case (supra). I am of the view that in the present situation, the Court's  inherent  powers  can  be  exercised  to  remedy  the

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132. Landowners  have  also  placed  reliance on  Suptd.  of  Taxes,

Dhubri & Ors. v. Assam Jute Supply Ltd & Ors. (1976) 1 SCC 766:

“17. The first contention on behalf of the State that it became impossible for the State to issue notice under Section 7(2) of the New Act within two years of the expiry of the period of return is unsound on principle and facts. The maxim lex non cogit ad impossibilia means that the law does not compel a man  to  do  that  which  he  cannot  possibly  perform.  In  the present  appeals,  the  applications  were  moved  in  the  High Court for stay of proceedings. The respondents challenged the validity  of  the  Act,  and,  therefore,  asked for  an  injunction restraining the State from taking proceedings under the Act. At no stage, did the State ask for variation or modification of the order of injunction. It is well known that if it is brought to the notice of a court that proceedings are likely to be barred by time by reason of any order of injunction or stay the court passes such suitable or appropriate orders as will protect the interest of the parties and will not prejudice either party. Even when  certificate  to  appeal  to  this  Court  was  granted  on  1 August 1963, the State did not ask for any order for stay of operation of the judgment. That is quite often done. For the first time, on 10 August 1964 the State filed an application for stay of operation of the judgment of the High Court. The State did not take steps at the appropriate time. This Court on 28 October 1964 granted an interim order staying the operation of  the  High  Court  judgment.  The  interim order  was  made absolute  on  28  January  1965  with  certain  conditions.  The State  cannot  take advantage of  its  own wrong and lack of diligence. The State cannot contend that it was impossible to issue any notice within the period mentioned in Section 7(2) of  the  New  Act.  The  State  did  not  endeavour  to  obtain appropriate orders to surmount the difficulties by reason of the  injunction  against  taking  steps  within  the  time contemplated in Section 7(2) of the New Act.  The State is guilty of default. The State had remedies open to take steps by asking for modification of the order. The State had to assert the right that the State was entitled to demand taxes and the respondent was liable to pay the same. The State followed the policy of inactivity. Inactivity is not impossibility. The order injunction is not to be equated with an act of God or an action

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of the enemy of the State or a general strike.”

In the aforesaid case, there was the fault on part of the State.

The State failed to assert rights.  The State was guilty of defaults

and did not take steps within time contemplated under section 7(2)

of the said Act. The case turned on its own facts.

133. Reliance has also been placed in this regard on Neeraj Kumar

Sainy & Ors.  v.  State  of  UP & Ors.,  (2017) SCC Online SC 258,

wherein this court has observed:

“31.  It  is  noticeable  from  the  aforesaid  passage  that  the interpretation was made in accordance with the Code and the legal maxim was taken as a guiding principle.  Needless to say, it  is  well  settled in law that  no one should suffer any prejudice because of the act of the court. The authorities that we  have  referred  to  dealt  with  the  different  factual expositions. The legal maxim that has been taken recourse to cannot operate in a vacuum. It has to get the sustenance from the facts. As is manifest, after the admissions were over as per the  direction of  this  Court,  the  Appellants,  who seemed to have resigned to their fate, woke up to have control over the events forgetting that the law does not assist the non-vigilant. One cannot indulge in luxury of lethargy, possibly nurturing the feeling that forgetting is a virtue, and thereafter, when the time has slipped through, for it waits for none, wake up and take  shelter  under  the  maxim  "actus  curiae  neminem gravabit". It is completely unacceptable.”

The case pertains to lethargy that would depend on facts of a

case to what extent benefit can be derived from legal principles.

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134. 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 of  possession has continued under  the cover  of  the court's

order or compensation could not be disbursed due to the courts

order in our considered opinion the provision contained in Section

24 (2) cannot be invoked in such a situation, as such a situation is

not  covered  under  the  provisions  of  section  24(2),  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. In

such an event no incumbents can be permitted to urge though I

might have obtained stay restraining you from taking possession,

though I might have refused to receive compensation or otherwise

due to the court’s proceedings, it was not paid/accepted. Now you

must suffer  due to said act  of  mine.   This would be against  all

canons of  justice and settled propositions of  law in  Uma Devi  v.

State of Karnataka (2006) 6 SCC 1 where this court has directed as

one-time measure regularization of  those incumbents only,  those

who  have  served  for  more  than  ten  years  without  cover  of  the

court's order.  It was also based upon aforesaid principles that no

one can be permitted to take advantage of the courts cover to put

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the other party in disadvantageous position.  

135. The common law principles are in fact rules of equity, justice,

and sound logic.  In the absence of there being prohibition in the

law, these principles would be attracted.  The efficacy and binding

nature  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.

136. The question then arises as to what the position would be in

case State  authorities  were,  by an order of  the court,  restrained

from taking possession, though they would have otherwise taken

the possession in the absence of  such an order; and, ultimately,

there is no merit found in the lis in which challenge to acquisition

had been raised and interim order had been passed. The question is

whether  the  provisions  of  Section  24  (2)  contemplate  such  a

situation, and whether such period is to be excluded from within

the purview of Section 24 of the Act of 2013, where the authorities

have been, during the interregnum of a litigation, brought at the

instance  of  landowner/beneficiary,  restrained  by  the  act  of  the

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court, interdicting the steps which would have been taken by the

authorities but for such an interim order or conduct of the litigant.  

137. In  case  of  possession could  not  be  taken,  or  compensation

could  not  be paid  or  deposited,  due to  cover  of  courts’  order  or

conduct  of  landowner,  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; and, if there is

any merit in such a lis, the challenge therein must stand or fall on

its  own footing,  irrespective  of,  and apart  from,  the  coming into

force  of  the  2013 Act.  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.

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138. 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.  

PRINCIPLE OF RESTITUTION

139. While construing provisions of section 24(2) applicable in case

of  lis, we have to keep in consideration the principle of restitution

which enjoins a duty upon the courts to do complete justice to the

party at the time of final decision.  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.  

140(a). In  South  Eastern  Coal  Field  Ltd.  v.  State  of  Madhya

Pradesh & Ors. (2003) 8 SCC 648 this court held that no party can

take advantage of litigation; it has to disgorge the advantage gained

due to delay in case lis is lost, the court has observed:

"26. In our opinion, the principle of restitution takes care of this  submission.  The  word  'restitution'  in  its  etymological

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sense  means  restoring  to  a  party  on  the  modification, variation or reversal of a decree or order, what has been lost to him in execution or decree or order or the court or indirect consequence of a decree or order (See Zafar Khan and Ors. v. Board of Revenue, U.P., and Ors., : [1985] 1 SCR 287. In law, the  term  'restitution'  is  used  in  three  senses;  (i)  return  or restoration  of  some  specific  thing  to  its  rightful  owner  or status; (ii) compensation for benefits derived from a wrong done to another; (iii) compensation or reparation for the loss caused to another.

(See Black's Law Dictionary, Seventh Edition, p.1315). The  Law of  Contracts  by  John D.  Calamari  & Joseph M. Perillo has been quoted by Black to say that 'restitution' is an ambiguous  term,  sometimes  referring  to  the  disgorging  of something  which  has  been  taken  and  at  times referring  to compensation  for  injury  done.  "Often,  the  result  in  either meaning  of  the  term  would  be  the  same.  .....  Unjust impoverishment, as well as unjust enrichment, is a ground for restitution.  If  the  defendant  is  guilty  of  a  non-tortuous misrepresentation, the measure of recovery is not rigid but, as in other cases of restitution, such factors as relative fault, the agreed  upon  risks,  and  the  fairness  of  alternative  risk allocations not agreed upon and not attributable to the fault of either party need to be weighed."  

The principle of restitution has been statutorily recognized in Section 144 of the Code of Civil Procedure,  1908. Section 144 of the C.P.C. speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on par with a decree. The scope of the provision is wide enough so  as  to  include  therein  almost  all  the  kinds  of  variation, reversal,  setting aside or modification of a decree or order. The interim order passed by the Court merges into a final decision. The validity of an interim order, passed in favour of  a  party,  stands  reversed  in  the  event  of  final  decision going  against  the  party  successful  at  the  interim  stage. Unless otherwise ordered by the Court, the successful party at the end would be justified with all expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against  it.  The successful  party can demand (a)  the delivery  of  benefit  earned by the  opposite  party  under  the

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interim order of the court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution would far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the Court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the court  at  the stage of final decision, the court earlier would not or ought not to have passed. There is nothing, wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed.

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

In  Jai  Berham v. Kedar Nath Marwari  (1923) 25 BOMLR 643, their Lordships of the Privy council said: "It is the duty of the Court under Section 144 of the Civil Procedure Code to place  the  parties  in  the  position  which  they  would  have occupied but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise  merely  under  the  said  section.  It  is  inherent  in  the general  jurisdiction  of  the  Court  to  act  rightly  and  fairly according to the circumstances towards all parties involved. Cairns, L.C., said in Rodger v. Comptoir d'Escompte de Paris, (1871)  L.R.  3:  "One  of  the  first  and  highest  duties  of  all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression, the act of the Court is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest court which entertains jurisdiction  over  the  matter  up  to  the  highest  Court  which finally disposes of the case". This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it,  A.A. Nadar v. S.P. Rathinasami, (1971) 1 MLJ 220 . In the exercise of such inherent power the Courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144.

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28. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the 'act of the court' embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts  and  the  law.  The  factor  attracting  applicability  of restitution  is  not  the  act  of  the  Court  being  wrongful  or  a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise corned,  or  the  other  party  has  suffered  an  impoverishment which  it  would  not  have  suffered  but  for  the  order  of  the Court and the set of such party.

The  quantum  of  restitution,  depending  on  the  facts  and circumstances of a given case,  may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end  of  the  proceedings  the  court  pronounces  its  judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the court would act in conjunction with what is the real and substantial justice. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so.  Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet  there  is  an  element  of  chance  in  every  litigation. Unscrupulous litigants may feel encouraged to approach the Courts,  persuading  the  court  to  pass  interlocutory  orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced, we  are,  therefore,  or  the  opinion  that  the  successful  party

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finally held entitled to a relief assessable in terms of money at the  end  of  the  litigation,  is  entitled  to  be  compensated  by award of interest at a suitable reasonable rate for the period for  which  the  interim  order  of  the  court  withholding  the release of money had remained in operation.”  

(emphasis supplied)

140(b). The doctrine of restitution in common law principle lies in

conscience of court, it had also been discussed in State of Gujarat v.

Essar Oil Ltd., (2012) 3 SCC 522; it was held that:

“61.  The  concept  of  restitution  is  virtually  a  common law principle  and  it  is  a  remedy  against  unjust  enrichment  or unjust benefit. The core of the concept lies in the conscience of the Court which prevents a party from retaining money or some benefit derived from another which he has received by way of an erroneous decree of Court. Such remedy in English Law is generally different from a remedy in contract or in tort and  falls  within  a  third  category  of  common  law  remedy which is called quasi-contract or restitution.  

62. If we analyze the concept of restitution one thing emerges clearly that the obligation to restitute lies on the person or the authority that has received unjust enrichment or unjust benefit (See Halsbury's Laws of England, Fourth Edition, Volume 9, page 434).

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

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

(emphasis supplied)

140(c). In A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu

Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430, by

relying  upon  the  decision  rendered  in  Indian  Council  for

Enviro-Legal  Action  v.  Union  of  India [(2011)  8  SCC  161].   The

jurisdiction to restitution is inherent in every court.  Court has to

neutralize advantage of litigation.  The person on right side of law

should not be frustrated. The wrongful gain of frivolous litigation

has  to  be  eradicated  if  faith  of  people  in  judiciary  has  to  be

sustained Court has to adopt pragmatic approach. The doctrine of

restitution has been considered thus:  

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

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

When passing such orders the High Court draws on its inherent  power  to  make  all  such  orders  as  are necessary  for  doing  complete  justice  between  the

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parties.  The  interests  of  justice  require  that  any undeserved  or  unfair  advantage  gained  by  a  party invoking  the  jurisdiction  of  the  court,  by  the  mere circumstance that it has initiated a proceeding in the court,  must  be  neutralised.  The  simple  fact  of  the institution  of  litigation  by  itself  should  not  be permitted  to  confer  an  advantage  on  the  party responsible for it.

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

The  50  operators  including  the  Appellants/  private operators have been running their  stage carriages by blatant abuse of the process of the court by delaying the hearing as directed in JeevanNathBahl's case and the High Court earlier thereto. As a fact, on the expiry of the initial period of grant after Sept. 29, 1959, they lost the right to obtain renewal or to ply their vehicles, as  this  Court  declared  the  scheme  to  be  operative. However, by sheer abuse of the process of law, they are continuing to ply their vehicles pending hearing of the objections. This Court  in Grindlays Bank Ltd. v. Income-tax Officer - [1990] 2 SCC 191 held that the High Court  while  exercising its  power under Article 226 the interest of justice requires that any undeserved or  unfair  advantage  gained  by  a  party  invoking  the jurisdiction  of  the  court  must  be  neutralised.  It  was further held that the institution of the litigation by it should not be permitted to confer an unfair advantage on the party responsible for it. In the light of that law and in view of the power under Article 142(1) of the Constitution  this  Court,  while  exercising  its jurisdiction would do complete justice and  neutralise the  unfair  advantage  gained  by  the  50  operators including the Appellants in dragging the litigation to run the stage carriages on the approved route or area or portion thereof and forfeited their right to hearing of the objections filed by them to the draft scheme dated Feb. 26, 1959.

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

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The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case  demands.  It  will  be  exercised  under  inherent powers where the case did not strictly fall within the ambit  of  Section  144.  Section  144  opens  with  the words "Where and in so far as a decree or an order is varied  or  reversed  in  any  appeal,  revision  or  other proceeding  or  is  set  aside  or  modified  in  any  suit instituted for the purpose,.".  The instant case may not strictly fall  within the terms of Section 144,  but the aggrieved party in such a case can appeal to the larger and  general  powers  of  restitution  inherent  in  every court.

173.  This  Court  in  Marshall  Sons  and Company (I) Ltd. v. Sahi Oretrans (P) Ltd. and Anr. (1999) 2 SCC 325 observed as under:

From the narration of the facts, though it appears to us, prima facie, that a decree in favour of the Appellant is not being executed for some reason or the other, we do not  think  it  proper  at  this  stage  to  direct  the Respondent to deliver the possession to the Appellant since the suit filed by the Respondent is still pending. It is true that  proceedings are dragged for a long time on  one  count  or  the  other  and  on  occasion  become highly technical accompanied by unending prolixity, at every  stage  providing  a  legal  trap  to  the  unwary. Because  of  the  delay,  unscrupulous  parties  to  the proceedings take undue advantage and person who is in  wrongful  possession  draws  delight  in  delay  in disposal  of  the  cases  by  taking  undue  advantage  of procedural  complications.  It  is  also  known fact  that after obtaining a decree for possession of immovable property,  its  execution  takes  long  time.  In  such  a situation  for  protecting  the  interest  of  judgment creditor,  it  is  necessary  to  pass  appropriate  order  so that reasonable mesneprofit which may be equivalent to the market rent is paid by a person who is holding over  the  property.  In  appropriate  cases,  Court  may appoint Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by

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the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the Plaintiff in whose favour decree is passed and to protect the property including further alienation.

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

‘6. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits  of  illegalities.  I  consider that  in  such  cases  where  Court  finds  that  using  the Courts as a tool, a litigant has perpetuated illegalities or  has  perpetuated  an  illegal  possession,  the  Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent  the people from reaping a rich harvest of illegal acts through the Court. One of the aims of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person.’

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

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

"9.  Before  parting  with  this  case,  we  consider  it necessary to observe that one of the main reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is  dragged as  long as  possible.  Even if  these litigants ultimately loose the lis, they become the real victors and have the last laugh. This  class of people who  perpetuate  illegal  acts  by  obtaining  stays  and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them

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as costs to the person deprived of his right and also must  be  burdened  with  exemplary  costs.  Faith  of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for  justice in  the  Court  and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their  money  power, ultimately  they  must  suffer  the costs of all these years-long litigation. Despite settled legal positions, the obvious wrongdoers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real  gain.  This  situation  must  be  redeemed  by  the Courts".

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

’13. …[the] stay granted by the Court does not confer a right upon a party and it is granted always subject to the final result of the matter in the Court and at the risk and  costs  of  the  party  obtaining  the  stay.  After  the dismissal, of the lis, the party concerned is relegated to the  position  which  existed  prior  to  the  filing  of  the petition in the Court which had granted the stay. Grant of stay does not automatically amount to extension of a statutory protection.

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

’17.  No  litigant  can  derive  any  benefit  from  mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the

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interim  order  stands  nullified  automatically.  A party cannot  be  allowed  to  take  any  benefit  of  its  own wrongs  by  getting  an  interim  order  and  thereafter blame  the  court.  The  fact  that  the  writ  is  found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit,  which  means  that  the  act  of  the court  shall  prejudice  no  one,  becomes  applicable  in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act  of  the  court.  Thus,  any  undeserved  or  unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on  a  suitor  from  delayed  action  by  the  act  of  the court...’

190. In consonance with the concept of restitution, it was observed that courts should be careful and pass an order neutralizing the effect of all consequential orders passed in pursuance of the interim orders passed by the court.  Such  express  directions  may  be  necessary  to check the rising trend among the litigants to secure the relief  as  an  interim  measure  and  then  avoid adjudication on merits.

191.  In  consonance  with  the  principle  of  equity, justice, and good conscience judges should ensure that the legal process is not abused by the litigants in any manner.  The  court  should  never  permit  a  litigant  to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt  to  abuse  the  legal  process  must  be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the Respondent or the Defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs  where  legal  process  has  been  abused.  No  one should  be  permitted  to  use  the  judicial  process  for earning undeserved gains or unjust profits. The court must  effectively  discourage  fraudulent,  unscrupulous

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and dishonest litigation.

192. The court's constant endeavour must be to ensure that  everyone gets  just  and fair  treatment.  The court while  rendering  justice  must  adopt  a  pragmatic approach and in appropriate cases realistic  costs and compensation  be  ordered  in  order  to  discourage dishonest litigation. The object and true meaning of the concept  of  restitution  cannot  be  achieved  or accomplished  unless  the  courts  adopt  a  pragmatic approach in dealing with the cases.”

(emphasis supplied)

140(d). In  Krishnaswamy S. Pd. & Anr v. Union of India & Ors.,

Civil  Appeal  Nos.3376-3377 of  2000 decided  on 21.02.2006 this

Court has considered the question of restitution.  This court has

relied upon Eastern Coalfield’s case (supra) and observed:  

“The maxim 'actus  curiae neminem gravabit'  i.e.  an act  of Court shall prejudice no man is an important one. The maxim "is founded upon justice and good sense, and affords a safe and  certain  guide  for  the  administration  of  the  law",  said Cresswell  J.  in  Freeman  v.  Tranah  (12  C.B.  406).  An unintentional  mistake  of  the  Court  which may prejudice the cause of any party must and alone could be rectified.

The maxim of equity, namely, actus curiae neminem gravabit: an act of court shall prejudice no man, is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other relevant maxim is, lex non cogit ad impossibilia: the law does not compel a man to do what  he  cannot  possibly  perform.  The  law  itself  and  its administration  is  understood  to  disclaim  as  it  does  in  its general aphorisms, all intention of compelling impossibilities, and  the  administration  of  law  must  adopt  that  general exception in the consideration of particular cases. (See:  M/s U.P.S.R.T.C.  v.  lmtiaz  Hussein (2006  (1)  800  380), ShaikhSalim Haji Abdul Khayumsab v. Kumar and Ors. (2006 (1) SCC 46),  Mohammod Gazi v. State of M.P. and others

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(2000(4)  SCC  342)  and  Gursharan  Singh  v.  New  Delhi Municipal Committee (1996 (2) SCC 459).”  

(emphasis supplied)

141. The aforesaid legal exposition also makes it incumbent upon

court not to confer benefit upon an unscrupulous litigant, not to

confer  undeserved  gain,  administration  of  land  does  not  control

performance of Act which is not possible,  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.   

EFFECT OF REPEAL:

142. 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

provisions of section 114, is extracted hereunder:

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

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

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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.  

VARIOUS DECISIONS:

145(a).  In Pune Municipal Corporation (supra), the High Court had

quashed  the  notification  issued  under  section  4  on  30.9.2004.

Award was passed on 31.1.2008. Writ petitions were filed in the

High Court which was allowed on the ground that for development

of  "forest  garden"  acquisition  proceedings  could  not  have  been

initiated without resolution of the General Body of the Corporation,

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not  on  the  ground  of  section  24(2)  of  Act  of  2013.  There  was

non-compliance with section 7 and other statutory breaches. The

special  leave petitions were filed in this Court in the year 2008.

During pendency, the Act of 2013 came into force and this Court

has  taken the  view that  expression “paid”  used  in  section 24(2)

shall  carry  dual  meaning,  i.e.it  has  been  offered  to  the  person

interested and also that such compensation has been deposited in

court. The compensation is paid within the meaning of section 24(2)

when the Collector has offered and in case of refusal deposited the

amount of compensation in court and has discharged his obligation

under Section 31(2). The Court has also laid down that amount of

deposit of compensation in Government Treasury is not equivalent

to  the  amount  of  compensation  paid  to  landowners/persons

interested.  This  Court  held  that  deposit  of  the  amount  of

compensation in State revenue is of no avail relying on Ivo Agnelo

Santimano Fernandes v. State of Goa (2011) 11 SCC 506 and Prem

Nath Kapur v. National Fertilizers Corporation of India Ltd. (1996) 2

SCC 71.  

145(b). In  the  decision  in  Ivo  Agnelo (supra)  it  was  held  that

liability to pay interest subsists until amount is paid to the owner

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or deposited in court. Whether the State has deposited the amount

in revenue account and utilized the same as it, was impermissible

hence  it  could  not  be  said  that  the  amount  was  deposited  as

required under Section 31(2) of the Act of 1894. Reliance was also

placed on the  decision in  Prem Nath Kapur (supra)  wherein this

Court had observed :

“13. Thus we hold that  the  liability  to  pay interest  on the amount  of  compensation  determined  under  Section  23(1) continues to subsist until it is paid to the owner or interested person or  deposited  into  court  under  Section  34  read  with Section 31. Equally, the liability to pay interest on the excess amount of compensation determined by the Civil Court under Section 26 over and above the compensation determined by the  Collector/Land  Acquisition  Officer  under  Section  11 subsists until it is deposited into court. Propriovigore in case of further enhancement of the compensation on appeal under Section 54 to the extent of the said enhanced excess amount or part thereof, the liability subsists until it is deposited into court. The liability to pay interest ceases on the date on which the  deposit  into  court  is  made  with  the  amount  of compensation so deposited. As held earlier, the computation of the interest should be calculated from the date of taking possession till date of payment or deposit in terms of Section 34 or deposit into court in terms of Section 28, as the case may be.”

145(c). The question in aforesaid decisions was only with respect

to liability to pay interest from the date of taking possession till the

amount is paid or deposited. The decisions are only authority with

respect to payment of interest under section 34 read with section

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31. In  Prem Nath Kapur (supra), the main question was how the

appropriation of amount deposited towards cost price, an additional

amount of interest has to be made. In that context a three-Judge

Bench of this Court had made the discussion. This Court also dealt

with  debtor's  right  to  specify  how  appropriation  to  be  made  of

money  paid  under  section  60  of  the  Contract  Act,  1872.  The

questions involved in the said cases were different. There was no

such issue involved with regard to the meaning of the word “paid”.

The decision is only on liability to pay interest and is of no utility for

interpretation of section 24(2) as to what is the meaning of the word

"paid"  did  not  arise  for  consideration in  the  said  decisions.  The

provisions of section 24(2) used expression "paid" and "deposited" in

different contexts at different places "paid" in the main section and

"deposited" in proviso. Both are to be given the plain meanings and

it is not open to the court to add or substitute any word in statute.

As a matter of  fact,  the High Court had quashed acquisition in

Pune Municipal Corporation in 2008 as such Act of 2013 was not

attractive.  There was no question of complying with section 24 of

Act of 2013.  

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145(d).   The  landowners  have  relied  on  the  decision  in  Bharat

Kumar v. State of Haryana & Anr. (2014) 6 SCC 586. What is the

meaning of “paid” did not arise for consideration. It was not a case

where amount was tendered or paid under Section 31(1) of the Act

of 1894 and there was refusal and in that case possession had also

not  been  taken.  There  was  no  vesting  of  the  land.  The  case  is

distinguishable. In the said decision various aspects were not urged

for consideration. Thus, it cannot be said to be laying down the law

as to what has not been decided.

145(e). Reliance has also been placed on  Bimla Devi & Ors. v.

State of Haryana  & Ors. (2014) 6 SCC 583 in which, similarly the

decision in  Pune Municipal Corporation (supra) has been followed.

Thus the decision is of no avail in view of the aforesaid discussion.  

145(f). In Union of India & Ors. v. Shiv Raj & Ors. (2014) 6 SCC

564, decision in Pune Municipal Corpn. (supra) has been followed. A

Circular  of  Government of  India,  Ministry  of  Urban Development

has also been quoted to clarify the statutory provisions of the Act of

2013. A Circular issued by the Government on advice of  its  law

officer cannot be said to have force of law. It was based on certain

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legal  opinion.  The  circular  issued  cannot  be  said  to  have  any

binding  force  with  respect  to  actual  legal  position.  As  already

discussed there is no discussion in said case with respect to the

impact of the interim order of stay or litigation which has prevented

the authorities from taking action in Shiv Raj (supra).  

145(g). In  Magnum Promoters Pvt.  Ltd.  v.  Union of  India &Ors.

(2015)  3  SCC  327,  Shree  Balaji  Nagar  Residential  Association

(supra) and  Pune Municipal Corpn.  (supra) had been followed, for

the reasons mentioned above, and apart from that, it was found by

the court that possession of the building was not taken and the

record did not indicate that it was ever taken.

145(h). In Karnail Kaur & Ors. v. State of Punjab & Ors. (2015) 3

SCC 206 the Amendment Ordinance to amend the Act of 2013 came

up  for  consideration.  The  second  proviso  to  section  24(2)  to  be

introduced  in  Act  was  held  to  be  prospective  in  operation.  The

correctness of  the decision need not be further examined as the

Ordinance itself has lapsed and for various other reason, we are of

opinion that law, as it stands, has to be examined. In Karnail Kaur

(supra),  reliance  was  mainly  placed  upon  Shree  Balaji  Nagar

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Residential  Association (supra),  Pune  Municipal  Corpn. (supra),

Bharat  Kumar (supra)  and  Bimla  Devi (supra),  we  have  already

discussed the matter following Pune Municipal Corporation (supra).

Radiance Fincap Pvt. Ltd. & Ors.  v. Union of India & Ors. (2015) 8

SCC  544  has  also  been  pressed  into  service,  it  considered  the

second proviso to section 24(2) of the Ordinance that has lapsed.  

145(i). In  Working  Friends  Cooperative  House  Building  Society

Ltd. v. State of Punjab & Ors. (2016) 15 SCC 464 again the other

decisions based on  Pune Municipal Corporation (supra) referred to

above have been followed. In  Working Friends Cooperative House

Building Society Ltd. (supra) compensation was not tendered to the

appellant. When compensation was not tendered as per section 31,

it  could not be said that it  was paid. To that extent there is no

dispute with respect to applicability of section 24(2). Mere deposit in

treasury or in court was not going to help the authorities as it was

obligatory on them to have tendered the amount unless saved by

three out of four exigencies provided in section 31(2) as discussed

above.  

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145(j). In  Delhi Development Authority v.  Sukhbir Singh & Ors.

(2016)  16  SCC  258,  Pune  Municipal  Corpn.  (supra)  has  been

followed and deposit in treasury has been held, referable to section

31(1) of the Act of 1894 and not under section 31(2). We agree with

discussion  made  with  respect  to  section  31(1).  In  view  of  the

discussion  made  with  respect  to  the  expressions  “paid”  and

“tendered” the decision of Pune Municipal Corpn. (supra) cannot be

said to be laying down the correct law. It suffers to that extent from

the same malady as it has simply followed  Pune Municipal Corpn.

(supra). In State of Haryana & Anr. v. Devander Sagar & Ors. (2016)

14 SCC 746, this Court has held that the compensation had been

paid; HUDA had taken possession. As per requirement of section

24, award was also passed. The acquisition had been allowed to

become final. Thus challenge to acquisition under the Act of 2013

was repelled.

145(k). In  Aligarh Development  Authority v.  Megh Singh & Ors.

(2016) 12 SCC 504, the award was not passed when the Act of 2013

came into force. Thus, it was rightly held by this Court that the

acquisition proceedings would continue but with a rider that the

award will have to be passed and compensation determined under

182

the provisions of the 2013 Act. This Court has passed the aforesaid

orders in view of the provisions contained in section 24(1)(a) of the

Act of 2013. There is no dispute with the proposition.

145(l). In  Sharma Agro Industries  v.  State of  Haryana & Ors.,

(2015) 3 SCC 341, decisions of this Court in Pune Municipal Corpn.

(supra),  Bimla  Devi (supra),  Shree  Balaji  Residential  Association

(supra) and Shiv Raj (supra) have been followed. It proceeds on the

same reasoning as that of Pune Municipal Corpn. (supra).

145(m).   In Pawan Kumar Aggarwal v. State of Punjab & Ors. (2016)

7 SCC 614, decision in Karnail Kaur (supra) has been followed. In

that case, there is not much discussion.  Only the fact has been

mentioned that the appellant has not been dispossessed, as such

protection under section 24(2) was available.       

PRINCIPLE OF ‘  PER INCURIAM’:

146. 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.  In order words, the concept means that a given decision

183

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.   

147(a). In  practice,  per  incuriam, is  taken  to  mean  per

ignoratium,  as observed by  this  Court  in  Mamleshwar  Prasad v.

Kanahaiya Lal, (1975) 2 SCC 232, thus:

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

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

“There is a good old-fashioned rule that no one has a right  to  conduct  himself  before  a  tribunal  as  if  he accepted its jurisdiction, and then afterwards, when he finds that it has decided against him, to turn round and say, "You have no jurisdiction".

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

184

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

Court has observed:

“42.  It  appears  that  when  this  Court  gave  the  aforesaid directions on 16th February 1984, for the disposal of the case against the appellant by the High Court, the directions were given  oblivious  of  the  relevant  provisions  of  law  and  the decision in Anwar Ali Sarkar's case (supra). See Halsbury's Laws of England, 4th End, Vol. 26, page 297, para 578 and page  300,  the  relevant  notes  8,  11  and  15;  Dias  on Jurisprudence, 5th Edn., pages 128 and 130; Young v. Bristol Aeroplane  Co.  Ltd.  [1944]  2  AER  293.  Also  see  the observations of Lord Goddard in Moore v. Hewitt [1947] 2 A.E.R. 270-A and Penny v. Nicholas [1950] 2 A.E.R. 89. "per incuriam"  are  those  decisions  given  in  ignorance  or forgetfulness of some inconsistent statutory provision or of some authority  binding on the  Court  concerned,  so that  in such  cases  some  part  of  the  decision  or  some  step  in  the reasoning on which it is based, is found, on that account to be demonstrably wrong.  See    Morelle v. Wakeling   [1955] 1 All E.R.  708.  Also,  see  State  of  Orissa  v. The  Titaghur  Paper Mills Co. Ltd. [1985]3SCR26 . We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment  Act,  1952 and Articles  14 and 21 of  the Constitution, these directions were legally wrong.”

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

(emphasis supplied)

147(c). In  State  of  Uttar  Pradesh  v.  Synthetics  and  Chemicals

Ltd., (1991) 4 SCC 139, as to per incuriam this court has observed:

185

“40. 'Incuria literally means 'carelessness'. In practice per in curium appears to mean per ignoratium.' English Courts have developed  this  principle  in  relaxation  of  the  rule  of  stare decisis. The 'quotable in law' is avoided and ignored if it is rendered,  in  ignoratium  of  a  statute  or  other  binding authority'.  1944 1KB 718 Young v. Bristol  Aeroplane Ltd.. Same has been accepted, approved and adopted by this Court while  interpreting  Article  141  of  the  Constitution  which embodies the doctrine of precedents as a matter of law.  In Jaisri Sahu v. Rajdewan Dubey AIR (1962) SC 83 this Court while  pointing  out  the  procedure  to  be  followed  when conflicting decisions  are placed before a bench extracted a passed from Halsbury’s Laws of England incorporating one of the exceptions when the decisions of an appellate court is not binding.”

147(d). In Municipal Corporation of Delhi v. Gurnam Kaur, (1989)

1 SCC 101, it  was held that decision of ignorance of rule is  per

incuriam,the court has observed:

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

147(e). In  Narmada  Bachao  Andolan  (III)  v.  State  of  Madhya

Pradesh, AIR 2011 SC 1989, this court has observed:

“61.  Thus,  "per  incuriam"  are  those  decisions  given  in ignorance  or  forgetfulness  of  some  statutory  provision  or authority binding on the Court concerned, or a statement of law  caused  by  inadvertence  or  conclusion  that  has  been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.”

(emphasis supplied)

186

148. To refer the case to larger Bench, reliance was placed by the

landowners on Sant Lal Gupta v. Modern Coop. Societies Ltd. 2010

13 SCC 336 laying down thus:

“17. A  coordinate  bench  cannot  comment  upon  the discretion  exercised  or  judgment  rendered  by  another coordinate bench of the same court. The rule of precedent is binding  for  the  reason  that  there  is  a  desire  to  secure uniformity  and  certainty  in  law.  Thus,  in  judicial administration precedents which enunciate rules of law form the  foundation  of  the  administration  of  justice  under  our system.  Therefore,  it  has  always  been  insisted  that  the decision  of  a  coordinate  bench  must  be  followed.  (Vide: Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel and  Ors.  AIR  1968  SC  372;  Sub-Committee  of  Judicial Accountability v. Union of India and Ors. (1992) 4 SCC 97; and  State  of  Tripura  v.  Tripura  Bar  Association  and  Ors. (1998) 5 SCC 637).

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

149. It was contended on behalf of the landowners that since the

decisions of  Pune Municipal Corporation as well as of  Shivraj  case

(supra) are of Three Judges bench then propriety requires that the

case should be referred to a Larger Bench.  With respect to Shivraj

(supra)  it  is  apparent  that  no  view  has  been  expressed  by  the

187

Division  Bench  making  reference  itself,  as  observed  that  upon

reading the decision of this court in Union of India & Ors. v. Shivraj

& Ors.  (2014) 6 SCC 564, they have not found any view on the

question arising namely whether the period during which interim

stay has been enjoyed should be extended while considering the

provisions of Section 24(2) of the Act of 2013.  Division Bench of

this  court  in order dated 12.1.2016,  while  making reference has

rightly observed thus:

“We have  considered  the  views  expressed  in  Sree  Balaji Nagar  Residential  Association  (supra)  and  Union  of  India &Ors. v. Shiv Raj and others (supra). At the outset, we clarify that upon reading the decision of the three Judge Bench of this Court in Union of India and other versus Shiv Raj and others, we do not find any view of the bench on the question arising, namely, whether the period during which the award had remained stayed should be excluded for the purposes of consideration of the provisions of Section 24(2) of the Act of 2013. Insofar as the decision of the coordinate bench of this Court in Sree Balaji Nagar Residential Association (supra) is concerned, having read and considered paragraphs 11 and 12 thereof, as extracted above, it is our considered view that the legal effect of the absence of any specific exclusion of the period covered by an interim order in Section 24(2) of the Act of 2013 requires serious reconsideration having regard to the fact that it  is an established principle of law that the act of the court cannot be understood to cause prejudice to any of the contesting  parties  in  a  litigation  which  is  expressed  in  the maxim “actus curiae neminem gravabit”.  

150.  In  Pune  Municipal  Corporation (supra)  the  land

acquisition had been quashed by the High Court in the year 2008.

Most of the special leave petitions were filed in this court in the year

188

2008.   The High Court  has quashed the acquisition proceedings

and has  directed restoration of  the  possession.   When the  High

Court has quashed the acquisition, there was no room for this court

to entertain the submissions based upon section 24(2) of the Act of

2013.  There was no question of payment of compensation to the

owners or depositing it in the court as land acquisition itself had

been quashed in 2008.  There was no subsisting acquisition and

award.  When Act of 2013 came into force thus no question could

have been raised as to non-compliance with section 24 for five years

or  more.   Thus,  there  was  no  question  of  taking  possession  or

payment  of  compensation as per  provisions contained in section

24(2).  The provisions contained in section 24 could not be said to

be applicable after quashing/lapse of the proceedings.  Thus, when

the provisions of section 24 were not attracted to the fact situation

of  the  case  in  Pune  Municipal  Corporation (supra),  the  decision

cannot be said to be an authority on a question which, in fact, did

not  arise  for  consideration  of  this  court.   Thus,  the  decision

rendered on a question which was not germane to the case cannot

be said to be a binding precedent it is obiter dicta and thus has to

be ignored.   

189

151. When the  High  Court  has  quashed  the  land  acquisition  in

Pune Municipal Corporation (supra), as we have held that period of

interim stay has to be excluded once the High Court has quashed

the land acquisition in case it  was illegally  quashed,  the maxim

actus curiae neminem gravabit  would come to the rescue for the

acquiring  body  and  it  could  not  have  said  that  acquisition  had

lapsed, thus there was no lapse under section 24(2). There was no

question of taking possession or payment of compensation once the

acquisition  had  been  quashed.   This  court  in  Pune  Municipal

Corporation (supra) had not dwelled upon the merit of the decision

of the High Court quashing the land acquisition and has outrightly

decided the case on the basis of section 24(2).  It obviously had no

application to  the  fact  situation of  the case.  As such a  decision

cannot be said to be an authority on the aforesaid.

152. With respect to the decision of this court in  Pune Municipal

Corporation (supra) we have given deep thinking whether to refer it

to further Larger Bench but it was not considered necessary as we

are of the opinion that Pune Municipal Corporation (supra) has to be

held per incuriam, inter alia for the following reasons:

190

1. The  High  Court  has  quashed  land  acquisition,  in  Pune

Municipal  Corporation  case  (supra),  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 (supra) 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

191

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 (supra)

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  as  held  in  Straw  Board  Manufacturing  Co.  Ltd.,

Saharanpur v. Gobind (supra), Management of Delhi Transport

Undertaking v.  The Industrial  Tribunal,  Delhi  & Anr.  (supra),

Indian  Oxygen  Ltd.  v.  Narayan  Bhoumik  (supra)  and  the

Benares State Bank Ltd. v. The Commissioner of Income Tax,

Lucknow,  (supra)  and  other  decisions  were  not  placed  for

consideration.

192

8. The binding decisions of the court as to the consequence of

non-deposit  in  Hissar  Improvement  v.  Smt.  Rukmani  Devi  &

Anr. (supra), Kishan Das & Ors. v. State of U.P. & Ors. (supra)

and  Seshan & Ors.   v.  Special  Tehsildar & Land Acquisition

Officer, SPICOT, Pudukkottai (supra) etc. 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 aforesaid 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

193

made  in  treasury  without  consideration  of  the  provisions,

prevailing practice, and decisions under the Act of 1894.

      The decision rendered in Pune Municipal Corporation (supra),

which is related to Question No.1  and other decisions following,

the  view taken in  Pune Municipal  Corporation (supra)  are  per

incuriam. The decision in Shree Balaji (supra) cannot be said to

be  laying  down  good  law,  is  overruled  and  other  decisions

following the said decision to the extent they are in conflict with

this decision, stand overruled. The decision in  DDA v. Sukhbir

Singh (supra) is partially overruled to the extent it is contrary to

this  decision.   The  decisions  rendered  on  the  basis  of  Pune

Municipal  Corporation  (supra)  are  open  to  be  reviewed  in

appropriate cases on the basis of this decision.

CONCLUSIONS   :

153. Our answers to the questions are as follows:

Q. No. I :- The word ‘paid’ in section 24 of the Act of 2013 has the

same meaning as ‘tender of payment’ in section 31(1) of the Act of

1894. They carry the same meaning and the expression ‘deposited’

in section 31(2) is not included in the expressions ‘paid’ in section

24 of the Act of 2013 or in ‘tender of payment' used in section 31(1)

194

of  the  Act  of  1894.  The  words  ‘paid'/tender'  and ‘deposited'  are

different expressions and carry different meanings within their fold.

     In section 24(2) of the Act of 2013 in the expression ‘paid,' it is

not  necessary  that  the  amount  should  be  deposited  in  court  as

provided  in  section  31(2)  of  the  Act  of  1894.  Non-deposit  of

compensation in court under section 31(2) of the Act of 1894 does

not result in a lapse of acquisition under section 24(2) of the Act of

2013. Due to the failure of deposit in court, the only consequence at

the most in appropriate cases may be of a higher rate of interest on

compensation as envisaged under section 34 of the Act of 1894 and

not lapse of acquisition.

       Once the amount of compensation has been unconditionally

tendered and it is refused, that would amount to payment and the

obligation under section 31(1) stands discharged and that amounts

to discharge of obligation of payment under section 24(2) of the Act

of 2013 also and it is not open to the person who has refused to

accept compensation, to urge that since it has not been deposited in

court, acquisition has lapsed. Claimants/landowners after refusal,

cannot  take  advantage  of  their  own  wrong  and  seek  protection

under the provisions of section 24(2).   

195

Q. No. II :- The normal mode of taking physical possession under

the  land  acquisition  cases  is  drawing  of  Panchnama as  held  in

Banda Development Authority (supra).  

Q. No. III :- The provisions of section 24 of the Act of 2013, do not

revive barred or stale claims such claims cannot be entertained.  

Q. No. IV :- Provisions of section 24(2) do not intend to cover the

period spent during litigation and when the authorities have been

disabled to act under section 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 section 24(2) of the Act of 2013.

There is no conscious omission in section 24(2) for the exclusion of

a period of the interim order. There was no necessity to insert such

a provision.  The omission does not make any substantial difference

as to legal position.

Q.  No.  V  :-  The  principle  of  actus  curiae  neminem  gravabit is

applicable  including  the  other  common  law  principles  for

determining the questions under section 24 of the Act of 2013. The

period covered by the final/ interim order by which the authorities

196

have been deprived of taking possession has to be excluded. Section

24(2) has no application where Court has quashed acquisition.

The questions referred to are answered accordingly.

……………………………….J. (ARUN MISHRA)       

……………………………….J. (ADARSH KUMAR GOEL)

NEW DELHI; FEBRUARY 8, 2018.

197

    O R D E R

We unanimously agree to the answers given to all the

questions i.e. Nos.I to V, except to the aspect decided by

majority whether  Pune Municipal Corporation & Anr. v.

Harakchand Misirimal Solanki,  2014 (3) SCC 183, is  per

incuriam or not.  As the majority has taken the view that it is

per incuriam, it is declared to be per incuriam.   The questions

referred stand answered in terms of majority judgment.

Hence, ordered accordingly.

Mattes  may  now  be listed on 16.2.2018 for orders

before an appropriate Bench, subject to the orders of the

Hon’ble the Chief Justice of India.

.........……………….................J. [ARUN MISHRA]

..........……….………...............J. [ADARSH KUMAR GOEL]

...………......…………..............J. [MOHAN M. SHANTANAGOUDAR]

New Delhi; 8th February, 2018.

198

(Reportable)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION     

CIVIL APPEAL No.20982 OF 2017

 INDORE DEVELOPMENT AUTHORITY          ...APPELLANT (S)                         

VERSUS   SHAILENDRA (DEAD) THROUGH LRS. & ORS.                             ...RESPONDENT (S)         

WITH   

SPECIAL LEAVE PETITION (C) No.10742 OF 2008   

YOGESH KUMAR & ORS.                            ...PETITIONER (S)                         

VERSUS   

 STATE OF MADHYA PRADESH & ORS.       ...RESPONDENT (S)         

WITH

 SPECIAL LEAVE PETITION (C) No.20920 OF 2011

 SPECIAL LEAVE PETITION (C) Nos.26574-26575 OF 2011

 SPECIAL LEAVE PETITION (C) No.28993 OF 2011

 SPECIAL LEAVE PETITION (C) No.30198 OF 2015

 SPECIAL LEAVE PETITION (C) No.30192 OF 2015

 SPECIAL LEAVE PETITION (C) No.30142 OF 2015

 SPECIAL LEAVE PETITION (C) No.30128 OF 2015

 SPECIAL LEAVE PETITION (C) No.30203 OF 2015

199

 CIVIL APPEAL No.4835 OF 2015

 SPECIAL LEAVE PETITION (C) No.25289 OF 2015

 SPECIAL LEAVE PETITION (C)………………CC No.9842 OF 2016

 SPECIAL LEAVE PETITION (C) No.22356 OF 2015

 SPECIAL LEAVE PETITION (C) No.31678 OF 2015

 CIVIL APPEAL NO.4836 OF 2015

 SPECIAL LEAVE PETITION (C) No.22527 OF 2015

 SPECIAL LEAVE PETITION (C) No.4705 OF 2016

 SPECIAL LEAVE PETITION (C) No.30577-30580 OF 2015

 SPECIAL LEAVE PETITION (C) No.27389 OF 2015

 SPECIAL LEAVE PETITION (C) No.27383 OF 2015

 SPECIAL LEAVE PETITION (C) No.34787 OF 2015

 SPECIAL LEAVE PETITION (C) No.10190-10200 OF 2017

 SPECIAL LEAVE PETITION (C) No.38290 OF 2016

 SPECIAL LEAVE PETITION (C) No.9571 OF 2016

 SPECIAL LEAVE PETITION (C) No.15127 OF 2016

 SPECIAL LEAVE PETITION (C) No.15144 OF 2016

 SPECIAL LEAVE PETITION (C) No.15131 OF 2016

 SPECIAL LEAVE PETITION (C) No.15139 OF 2016

 SPECIAL LEAVE PETITION (C) No.16425 OF 2016

 SPECIAL LEAVE PETITION (C) No.15117 OF 2016

 SPECIAL LEAVE PETITION (C) No.15140 OF 2016

 SPECIAL LEAVE PETITION (C) No.9570 OF 2016

 SPECIAL LEAVE PETITION (C) No.15113 OF 2016

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 SPECIAL LEAVE PETITION (C) No.16438 OF 2016

 SPECIAL LEAVE PETITION (C) No.15119 OF 2016

 SPECIAL LEAVE PETITION (C) No.15126 OF 2016

 SPECIAL LEAVE PETITION (C) No.15125 OF 2016

 SPECIAL LEAVE PETITION (C) No.15118 OF 2016

 SPECIAL LEAVE PETITION (C) No.15124 OF 2016

 SPECIAL LEAVE PETITION (C) No.15112 OF 2016

 SPECIAL LEAVE PETITION (C) No.11824 OF 2016

 SPECIAL LEAVE PETITION (C) No.15143 OF 2016

 SPECIAL LEAVE PETITION (C) No.15141 OF 2016

 SPECIAL LEAVE PETITION (C) No.15142 OF 2016

 SPECIAL LEAVE PETITION (C) No.15213-15217 OF 2017

SPECIAL LEAVE PETITION (C) No.17324 OF 2016  

SPECIAL LEAVE PETITION (C) No.38368 OF 2016   

SPECIAL LEAVE PETITION (C) No.5182-5184 OF 2017   

SPECIAL LEAVE PETITION (C) No.23846 OF 2016   

SPECIAL LEAVE PETITION (C) No.23097 OF 2016   

SPECIAL LEAVE PETITION (C) No.19804-19805 OF 2016   

SPECIAL LEAVE PETITION (C) No.22127-22128 OF 2016   

SPECIAL LEAVE PETITION (C) No.21997-21998 OF 2016   

W.P.(C) No.602 OF 2017   

SPECIAL LEAVE PETITION (C)     Diary No.24901 OF 2017   

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J U D G M E N T

Mohan M.Shantanagoudar, J.

1. The matter is referred to our Bench to answer the following questions:

I. Whether a deposit in the Treasury or with the Collector amounts to a payment of

compensation  under  Section  24(2)  of  the  Right  to  Fair  Compensation  and

Transparency in Land Acquisition,  Rehabilitation and Resettlement Act,  2013

(hereinafter referred to as the ‘2013 Act’), especially when the landowners have

refused to accept compensation? (“Question No. 1”)

II. Whether the conscious omission referred to in paragraph 11 of the judgment in

Sree Balaji Nagar Residential Association v. State of Tamil Nadu, (2015) 3

SCC 353 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

the 2013 Act? (“Question No. 2”)

III. Whether  the  principle  of  “actus  curiae  neminemgravabit”,  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? (“Question No. 3”)

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I. RE: QUESTION NO. 1   

2. I agree with the conclusions reached by my learned brothers on the question

referred  to  us  while  differing  with  them  on  their  conclusion  that  Pune  Municipal

Corporation &Anr. v. HarakchandMisirimal Solanki &Anr., (2014) 3 SCC 183is  per

incuriam. However, I wish to place my reasons and views on the subject.

3. This question arises in Civil Appeal No. 20982/17 (Indore Development Authority

v. Shailendra (dead) through LRs.  &Ors.).  To understand the real  controversy to be

determined in this question, it is better to have the facts set out in brief, as hereunder:

The Indore Development Authority (“the IDA”), acquired land for the purpose of

constructing a Ring Road and Link Road on the outskirts of Indore city.  

A notification under Section 4 (1) read with Section 17 (1) of the Land Acquisition

Act, of 1894 (for brevity ‘1894 Act’) was issued on 23.12.1994. The compensation was

deposited by the IDA with the Land Acquisition Collector. The landowners were informed

to collect it, but they refused and did not take the compensation. Enquiry under section

5A was dispensed with. Declaration under section 6 was published on 17.3.1995 under

the 1894 Act. Award was passed by the LAO on 14.03.1997.  W.P. No.1182 of 1997 was

filed  seeking  quashing of  the  acquisition  proceedings.  It  was allowed on 28.8.1998

holding that the scheme lapsed on expiry of three years, and that enquiry under section

5A was illegally dispensed with. Letters Patent Appeal No.480 of 1998 was preferred

before the Division Bench and on 29.01.2000 an order of status quo was passed. The

LPA was dismissed as not maintainable. However, this Court in a Special Leave Petition

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remitted the matter to the High Court  to file writ  appeal  under the provisions of the

Madhya Pradesh UchchaNyayalaya (Khand NyaypeethKo Appeal) Adhiniyam, 2005.  

On  04.04.2007  the  High  Court  again  directed  maintenance  of  status  quo.  The

respondent  therein  filed  an  application  raising  the  grounds  for  quashing  acquisition

proceedings under Section 24(2) of the 2013 Act. It  was resisted by the IDA on the

ground that the acquisition had been completed and the amount has been deposited

with the Land Acquisition Collector; that the construction is substantially complete; if it is

not completed in the remaining area, it will  cause great hardship to the citizens and

widening of road was necessary for smooth flow of traffic.

The High Court by an order dated 03.11.2014 held that the acquisition proceedings

had lapsed  in  view of  the  decisions of  this  Court  in  Pune Municipal  Corporation

(supra) and Sree Balaji (supra). On appeal to this Court, the matter has been referred

to this Bench by an order of 07.12.2017 to consider the Question No. 1 as mentioned in

paragraph 1 of this judgment.

4. It was submitted by the learned counsel for the State that there is a distinction

between the words “payment” and “deposit”, and that the acquisition does not lapse on

a failure to “deposit” in Court; this Court in  Pune Municipal Corporation (supra) did

not  consider  certain  Rules  framed by  various States  under  Section  55 of  the Land

Acquisition  Act,  1894 which direct  the deposit  of  compensation in  the accounts  of

landowners in the Treasury.

5. On the other hand, it was contended by the learned counsel for the landowners

that a deposit must necessarily be made in Court under Section 31(2) of the 1894 Act,

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else  the  proceedings  lapse  under  Section  24(2)  of  the  2013  Act;  the  converse

contention was also taken with respect to the Rules of various States, with the argument

that the Rules cannot override the express provision in Section 31(2) of the 1894 Act to

deposit the compensation in Court.

6. In order to consider the question at hand, a reproduction of the relevant Sections

is necessary.

Sections 24(1) and (2) of the 2013 Act read as follows,

“24. (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, -  

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

b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land  Acquisition Act, as if the said Act has not been repealed.  

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

Provided that where an award has been made and compensation in respect of a majority of land holding has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition  under  section  4  of  the  said  Land  Acquisition  Act,  shall  be entitled to compensation in accordance with the provisions of this Act.”  

This Court’s interpretation of Section 24(2) of the 2013 Act has proceeded in the past by

referring to certain provisions of the 1894 Act, including Sections 31 to 34 of the said Act

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which deal with payment of compensation & interest. Sections 31 to 34 read as follows:

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

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

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

Provided  also  that  no  person  who  has  received  the  amount otherwise than under  protest  shall  be entitled to  make any application under section 18:  

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

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

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

32.  Investment  of  money  deposited  in  respect  of  lands belonging to person incompetent to alternate. - (1) If any money shall be deposited in Court under sub-section (2) of the last preceding section and it appears that the land in respect whereof the same was awarded belonged to any person who had no power to alienate the same, the Court shall-  

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(a) order the money to be invested in the purchase of other lands to be held under the like title and conditions of ownership as the land in respect of which such money shall have been deposited, was held, or  

(b)  if  such  purchase  cannot  be  effected  forthwith,  then  in  such Government or other approved securities as the Court shall think fit;  

and  shall  direct  the  payment  of  the  interest  or  other  proceeds arising from such investment to the person or persons who would for the time being have been entitled to the possession of the said land, and such moneys shall remain so deposited and invested until the same be applied-  

(i) in the purchase of such other lands as aforesaid; or  (ii) in payment to any person or persons becoming absolutely  

entitled thereto.  

(2) In all cases of moneys deposited to which this section applies, the Court shall order the costs of the following matters, including therein all reasonable charges and expenses incident thereon, to be paid by the Collector, namely: -  

(a) the costs of such investments as aforesaid;  (b) the costs of the orders for the payment of the interest or other

proceeds, of the securities upon which such moneys are for the time being invested,  and for  the payment  out  of  Court  of  the principal of such moneys, and of all proceedings relating thereto, except such as may be occasioned by litigation between adverse claimants.

33. Investment of money deposited in other cases. -When any money shall have been deposited in Court under this Act for any cause other than mentioned in the last proceeding section, the Court may, on the application of any party interested or claiming an interest in such money, order the same to be invested in such Government or  other  approved securities  as  it  may think  proper, and  may  direct  the  interest  or  other proceeds of any such investment to be accumulated and paid in such manner as it may consider will give the parties interested therein the same benefit thereform as they might have had from the land in respect whereof such money shall have been deposited or as near thereto as may be.  

34. Payment of interest - When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited:  

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

7. In  Pune  Municipal  Corporation  (supra),  a  Coordinate  bench  of  this  Court

decided  the  question  as  to,  “whether  a  deposit  in  the  Treasury  amounts  to

compensation being “paid”  under  Section 24(2)  of  the 2013 Act?”  In  that  case,  the

landowners challenged the acquisition proceedings under Section 24(2) of the 2013 Act

on the ground that the award was made over five years prior to the commencement of

the 2013 Act, and that no compensation was paid to the landowners or deposited in

Court. The State contended that as the landowners did not appear on the notified date

to accept compensation and did not file an application for a reference under Section 18

of the 1894 Act, the State deposited the compensation amount in the Treasury. The

Court, on examining the rival contentions, interpreted Section 24(2) of the 2013 Act in

light of Section 31 of the 1894 Act to hold that where the landowners do not accept

compensation pursuant to the Collector’s award, the compensation is “paid” only when it

is deposited “in Court”. If compensation is not deposited in Court in such a case, it will

not be considered as having been “paid” as per Section 24(2) of the 2013 Act, and the

acquisition proceedings lapse (provided that the award was made five years or more

prior to the commencement of the 2013 Act). The relevant paragraphs are extracted

hereunder,

“17.  While enacting Section 24(2),  Parliament definitely  had in its view Section 31 of the 1894 Act. From that one thing is clear that it  did not intend to equate the word “paid” to “offered” or “tendered”. But at the same time, we do not think that by use of the word “paid”, Parliament intended receipt  of  compensation  by  the  landowners/persons  interested.  In  our

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satisfy Section 31(1), but Section 31(2) cannot be satisfied without a deposit in Court. If

such  deposit  is  not  made  in  Court,  the  proceedings  must  necessarily  lapse.  The

observation of the Court was,

“In  any  case,  such  deposit  in  the  treasury  is  referable  only  to Section  31(1)  and  cannot  ever  be  a  substitute  for  deposit  before  the reference court as provided under Section 31(2) of the Land Acquisition Act,  which  applies  in  the  circumstances  mentioned  in  the  aforesaid sub-section. We are, therefore, of the opinion that no distinction between the facts of this case and the facts in Pune Municipal Corporation can be drawn on this ground, and the ratio of  Pune Municipal  Corporation will apply on all fours to the facts of the present case.”  

9. In The Working Friends Cooperative House Building Society Ltd. v. State of

Punjab, (2016) 15 SCC 464,the deposit of compensation was made in the Treasury and

not  in  the Court.  This  compensation was subsequently  deposited in  the Court  after

01.01.2014, i.e., after the commencement of the 2013 Act. However, the Court held that

the acquisition proceedings lapsed, after the coming into force of the 2013 Act.

10. In fact, this Court in  Bharat Kumar v. State of Haryana, (2014) 6 SCC 586,

applied Section 24(2) of the 2013 Act in a case where the possession was not taken

and compensation had neither been paid nor deposited before the appropriate forum. It

stated as follows,

“7. In our opinion though the award has been passed by the Land Acquisition Collector, they have not taken the physical possession of the  land and have not  paid  the  compensation  to  the  appellant  or  had deposited the said compensation before an appropriate forum.”

The same rationale was adopted in  Bimla Devi &Ors. v. State of Haryana, (2014) 6

SCC 583. In Vijay Latka v. State of Haryana, (2016) 12 SCC 487, this Court extended

the ratio of  Pune Municipal Corporation (supra) to mean that the land owner is not

required to come and receive the payment in cases of compulsory acquisition. It held as

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13. To resolve this issue, it is necessary to first look into the meanings of “tender”,

“deposit” and “payment.”

A tender is defined in Black’s Law Dictionary (p. 1606) as follows:

“A valid and sufficient offer of performance; specif., an unconditional offer of money or performance to satisfy a debt or obligation.”

Deposit is defined in Black’s Law Dictionary (p. 504) as follows:

“The act of giving money or other property to another who promises to preserve it or to use it and return it in kind; esp., the act of placing money in a bank for safety and convenience.

Payment is defined in Black’s Law Dictionary (p. 1243) as follows:  

“The performance of an obligation by the delivery of money or some other valuable thing accepted in partial or full discharge of the obligation.”

The definition of “tender” has been outlined by this Court in Tata Cellular v. Union of  

India, (1994) 6 SCC 651 as follows,

“69. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated, the following are the requisites of a valid tender:  

1. It must be unconditional.  

2. Must be made at the proper place.  

3. Must conform to the terms of obligation.  

4. Must be made at the proper time.  

5. Must be made in the proper form.  

6. The person by whom the tender is made must be able and willing to  perform his obligations.  

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7. There must be reasonable opportunity for inspection.  

8. Tender must be made to the proper person.  

9. It must be of full amount.”

14. We are not entitled to read the words into an Act  of  Parliament unless clear

reason for it is to be formed within the four corners of the Act itself.  However, 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, we must feed something to the

provision so as to achieve the obvious intention and produce rational construction.

15. The 2013 Act as well as the 1894 Act use “tender”, “payment”, and “deposit” at

different  places  in  the  enactments. Section  31(1)  of  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. A plain reading of sub-section 2 of Section 24 of the 2013 Act discloses that

214

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 Section 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 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

215

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 Section 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 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.

 16. 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”.

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17. 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  sub-section  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.

18. 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

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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(supra) did not consider such rules passed by the States that direct the

deposit of unclaimed compensation in the Treasury.    Extracts from these rules that

permit deposit in the Treasury, along with the requirement of notice of such deposits are

furnished below:

19. The Assam Govt. Notification No.1211-R., dated April 19, 1932, reads as follows,

“9.  In  giving  notice  of  the  award  under  Section  12(2)  and  tendering payment under section 31(1), to such of the persons interested as were not present personally or by their  representatives when the award was made,  the  Collector  shall  require  them  to  appear  personally  or  by representatives by a certain date, to receive payment of the compensation awarded to them intimating also that no interest will be allowed to them, if they fail to appear. If they do not appear, and do not apply for a reference to the Civil Court under section 18, he shall, after any further endeavour to secure their attendance or make payment that may seem desirable, cause the amounts due to be paid into the Treasury as revenue deposits payable to the persons to whom they are respectively due and vouched for in the form prescribed or approved by Government from time to time. He shall also give notice to the payees of such deposits, specifying the Treasury in which the deposits have been made.”

The Land Acquisition (Bihar & Orissa) Rules, 1894 read as follows,

“10.  In  giving  notice  of  the  award  under  Section  12(2)  and  tendering

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payment under Section 31(1), to such of the persons interested as were not present personally or by their  representatives when the award was made,  the  officer  shall  require  them  to  appear  personally  or  by representatives by a certain date to receive payment of the compensation awarded to them, intimating also that no interest will be allowed, to them if they fail to appear. If they do not appear, and do not apply for reference to the  Civil  Court  under  Section  18,  the  officer  shall  after  any  further endeavour to secure their attendance that may seem desirable, cause the amounts due to be paid into the Treasury as Revenue deposits payable to the persons to whom they are respectively due and vouched for in the accompanying form (marked E). The officer shall also give notice to the payees of such deposits, the Treasury in which the deposits specifying have been made.  ..….”

The Uttar Pradesh Rules for the Payment of Compensation for Land Taken Up Under  

the Land Acquisition Act I of 1894 read as follows,

“6.  In  giving  notice  of  the  award  under  section  12(2)  and  tendering payment under section 31(1) to such of the persons interested as were not present personally or by their representatives when the award was made, the  special  officer  shall  require  them  to  appear  personally  or  by representatives by a certain date, to receive payment of the compensation awarded to them intimating also that no interest will be allowed to them if they fail to appear. If they do not appear, and do not apply for a reference to  the  Civil  Court  under  section  18,  the  officer  shall  after  any  further endeavour to secure their attendance that may seem desirable, cause the amounts due to be paid in the Treasury as revenue deposits payable to the persons to whom they are respectively due, and vouched for in form E. The  officer  shall  also  give  notice  to  the  payees  of  such  deposits, specifying the Treasury in which the deposits have been made. …….”

The West Bengal Notification No.29 T.R., dated April 24, 1895 reads as follows:

“10.  In  giving  notice  of  the  award  under  Section  31(1)  to  such  of  the persons  interested  as  were  not  present  personally  or  by  their representatives when the award was made, the officer shall require them to appear personally or by representatives by a certain date, to receive payment of the compensation awarded to them, intimating also that no interest will be allowed to them, if they fail to appear. If they do not appear and do not apply for reference to the Civil  Court under Section 18, the officer shall, after any further endeavour to secure their attendance that may seem desirable, cause the amounts due to be paid into the Treasury as revenue deposits payable to the persons to whom they are respectively due, and vouched for in the accompanying form (not  given here).  The officer shall also give notice to the payees of such deposits, specifying the Treasury in which the deposits have been made.”

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The Land Acquisition (Kerala) Rules, 1990 read as follows,

“13. (2) In case the awardees or their authorised agents fail to appear and accept the award or fail to apply for a reference to court under Section 18, the  amount  due  shall  be  paid  into  the  treasury  as  Revenue  Deposit payable to the persons to whom it is respectively due and vouched for in Form E. A notice intimating the deposit of the amount into the Treasury shall also be served on all the awardees and interested persons in Form No.11.”

The Punjab Standing Order  No.  28 of  1909,  applied to  Delhi  and Punjab reads as

follows,

“75. (V)  In giving notice of the award Under Section 12(2) and tendering payment Under Section 31(1) to such of the persons interested as were not present personally or by their  representatives when the award was made,  the  officer  shall  require  them  to  appear  personally  or  by representatives by a certain date to receive payment of the compensation awarded to them, intimating also that no interest will be allowed to them if they fail to appear, if they do not appear and do not apply for a reference to  the  civil  court  Under  Section  18,  the  officer  shall  after  any  further endeavours to secure their attendance that may seem desirable, cause the amounts due to be paid to the treasury as revenue deposited payable to the persons to whom they are respectively due and vouched for in the Form marked E below. The officer shall also give notice to the payees of such  deposits,  specifying  the  treasury  in  which  the  deposit  has  been made. …..”

20. The Punjab Standing Order No. 28 of 1909 was considered by this Court in the

case of Sukhbir Singh (supra), wherein it was observed that the said Standing Order

provides for five modes of payment of compensation. The last one, namely, the payment

of compensation into the Treasury, is for cases where the landowners fail to appear to

receive  their  compensation.  When  such  payment  is  made  into  the  Treasury,  the

landowners for whom the deposits are made are required to be served with a notice of

the  deposits  as  well  as  the  Treasury  in  which  such deposits  are  made.  The same

provision with respect to issuing of notice to non-appearing landowners is made in the

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State Rules for Bihar, Orissa, Assam, West Bengal and Kerala.

21. It is clear that as per these State Rules, 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 (supra),  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 (supra). While Pune Municipal Corporation (supra) 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.

22. It  is merely a matter of procedure as to where the deposit is made. It is also

relevant to note that 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 1 of Chapter 8-C of the Punjab and

Haryana High Court Rules reads as under:

“1.  Money  paid  into  the  District  Court  under  section  31  of  the  Land Acquisition Act must be lodged into the Treasury as a Revenue or Civil

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Court  deposit  under  the  rules  applicable  to  such  deposits,  untilits investment as required by section 32 ibid.”

23. 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.). Rule 10 of the above

Rules states that:

“10. All payments into Court for deposit under the Act should be made by means of cheques in favour of the presiding officer of the Court, payable  by  order  of  the  Court  to  credit  of  Civil  Court  Deposits.  The cheques should be accompanied by receipts in triplicate in form D, duly filled up, of which one will  be retained by the Court for record, and the other two returned duly signed to the Collector. The amounts deposited in the Court will be charged off as expenditure in the public works accounts of  the  Collector,  and  the  ultimate  payments  to  the  persons  interested under the award shall be arranged for by the Court under the rules for the payment of Civil Court Deposits.”

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.

24. 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.

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25. In Hissar Improvement Trust v. Rukmani Devi and Anr. (1990) Supp. 1 SCC

806, this Court held that where compensation has not been paid or deposited on time in

Court, the Collector is liable to pay interest to the landowners as per Section 34. It

stated thus,

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

xxx xxx xxx

7. We make it clear that insofar as the landowner is concerned, his right to be compensated is enforceable against the State. It is the liability of the Collector in terms of the relevant provisions to pay the amount awarded, together with interest in the event of the amount not being paid in time. The liability  of  the appellant-Trust  arising under  its  agreement with  the Government for payment in respect of the property acquired is a matter on which we express no view.”

26. In Jogesh Chandra v. Yakub Ali, 29 IC 111 (Cal), where there was a dispute of

title over the land between a landlord and his alleged tenant, the Collector mistakenly

paid the entire land acquisition compensation amount to the tenant, even though the

dispute was apparent on the face of the record and the compensation should have been

deposited in Court as per Section 31(2) of the 1894 Act. The Calcutta High Court held

that the Collector’s mistaken payment to the tenant, and the failure of the Collector to

deposit in Court, does not bar a reference under Section 18 of the 1894 Act. That Court

allowed the acquisition proceedings to stand despite procedural lapses in the payment

and deposit of compensation.

27. The case of Damadilal v. Parashram, AIR 1976 SC 2229 : (1976) 4 SCC 855,

relied upon by the learned counsel for the IDA in arguments before the referring Bench,

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is not relevant to the determination of the issue at hand as it is a case of tenancy rights

and merely reaffirms that the payment by cheque is a valid tender.

28. To summarize,  it  must  be  emphasized  that  “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 depositthe 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,  as  mentioned  supra  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.

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29. The objective of directing a deposit of compensation in Court in the 1894 Actwas

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, as discussed in the preceding paragraph, 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.

30. I  am thus of  the opinion that  from both a legal  and a practical  standpoint,  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.

31. However, with great respect,  I  may not subscribe to the views of my learned

Brothers on their conclusion that judgment in Pune Municipal Corporation(supra) was

rendered per incuriaminasmuch as the judgment cannot be said to have been through

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lack of care, or out of ignorance of certain important factors.

32. 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  renderedper  incuriamif  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 renderedper incuriamif given

without considering any provisionin 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

perincuriam does not have to be followed as precedent by a court.

33. The doctrine has been examined at length by us.  As per  A.R. Antulay v. R.S.

Nayak, (1988) 2 SCC 602, the doctrine of per incuriam is defined as follows:

“42. ……"per incuriam" are those decisions given in ignorance or  forgetfulness of some inconsistent statutory provision or of some authority  binding on the court concerned, so that in such cases some part of the  decision or some step in the reasoning on which it is based, is found, on  that account to be demonstrably wrong.”

34. In  SiddharamSatlingappaMhetre  v.  State  of  Maharashtra,(2011)

1 SCC 694,this  Courtdid  not  follow the decision of  co-ordinate Benches which  were

opposed to the decision of an earlier Constitution Bench. The doctrine of per incuriam

was explained as follows:

“128. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane

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Company Limited (1944) All  ER 293 the House of Lords observed that 'incuria' literally means 'carelessness'. In practice per incuriam appears to mean  per  ignoratium.  English  courts  have  developed  this  principle  in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.”

35. In my considered opinion, the judgment in Pune Municipal Corporation (supra)

was not rendered per incuriam, as the conclusion is reached by proceeding in detail on

the interpretation of relevant statutory provisions. However, we may not agree with the

reasons assigned and conclusions arrived at by the Court in the said judgment. It is no

doubt  true that the Court  inPune Municipal  Corporation (supra) 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 (supra), 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,  in  my  considered  opinion,  merely

because  the  Rules  of  certain  States  are  not  considered,  the  judgment  inPune

Municipal  Corporation (supra)  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.

36. I may hasten to add here that in the case of Sukhbir Singh (supra), the Court

did consider the effect of the Rules framed by Delhi, Punjab and Haryana Governments.

But  the  conclusion  rendered  in  Sukhbir  Singh (supra)  was in  conformity  with  the

judgment in Pune Municipal Corporation (supra).

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37. The judgment in  Pune Municipal Corporation (supra)  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  (supra)  is  not  in

consonance with the relevant line of decisions rendered by this Court earlier.Having

gone through the judgment in Pune Municipal Corporation (supra), it cannot be said

that the said judgment is through want of care or inadvertence.

38. In view of the discussion made supra, I conclude that I respectfully differ with the

judgment  in  Pune  Municipal  Corporation  (supra)  and  agree  with  the  conclusion

reached by my learned brothers.  However, I  may not  subscribe to  the views of  my

learned brothers that the judgment in Pune Municipal Corporation (supra) is rendered

per incuriam.

39. Hence, the proper course for me in light of my reasoning and opinion is to refer

the  matter  to  a  larger  Bench. In  Sant  Lal  Gupta  v. Modern  Cooperative  Group

Housing Society Ltd., (2010) 13 SCC 336 this Court observed as under:

“17.  A  coordinate  bench  cannot  comment  upon  the  discretion exercised or judgment rendered by another coordinate bench of the same court. The rule of precedent is binding for the reason that there is a desire to secure  uniformity and certainty in law. Thus, in judicial administration precedents which enunciate the rules of law form the foundation of the administration of justice under our system. Therefore, it has always been insisted that the decision of a coordinate bench must be followed.  (Vide: TribhovandasPurshottamdas Thakkar v. Ratilal Motilal Patel. AIR 1968 SC 372, Sub-Committee of Judicial Accountability v Union of India. (1992) 4 SCC 97, and State of Tripura v. Tripura Bar Association (1998) 5 SCC 637.

  18.  In  Rajasthan  Public  Services  Commission  v.  Harish  Kumar

Purohit (2003) 5 SCC 480, this Court held that a Bench must follow the decision of a coordinate Bench and take the same view as has been taken earlier. The earlier decision of the coordinate Bench is binding upon any latter coordinate Bench deciding the same or similar issues. If the latter Bench wants to take a different view that that taken by the earlier Bench,

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the proper course is for it to refer the matter to a larger Bench.”

For this reason, the Question No. 1 may be referred to a larger bench.

II. RE: QUESTION NO. 2 AND QUESTION NO. 3   Since Question No. 2 and Question No. 3 are interrelated, they are dealt with by  

me jointly.

40. I agree with the conclusions reached by my learned brothers on the  

abovementioned questions referred to us, so also that Sree Balaji (supra) will stand  

overruled. However, I wish to place my views on the subject which may be in addition to

the views of my brothers.

41. These  questions  arise  together  in  SLP  (Civil)  No.  10742/08  (Yogesh

Neema&Ors.  v.  State  of  M.P.  &Ors.).  To  understand  the  real  controversy  to  be

determined in this question, the facts may be set out in brief as follows:

The lands of several villagers were acquired for the Onkareshwar Dam in Madhya

Pradesh.  Certain  lands  were  acquired  for  the  establishment  of  rehabilitation  sites.

However,  additional  land  of  31.70  hectares  was  required  to  extend  the  Inpun

rehabilitation site. Section 4 notification was issued on 07.11.2007 for 17.52 hectares of

land, but the remaining land could not be acquired due to the objections of the land

owners  (appellants  therein).  By  an  order  of  the  Commissioner  on  15.11.2007,

permission was granted to the Collector to invoke urgency clause under Section 17 of

the 1894 Act for 11.04 hectares of land and the properties thereon. A declaration for this

land was issued on 26.11.2007.  

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The landowners filed writ petitions questioning the acquisition of the lands. The

Single Judge dismissed these writ petitions on 14.01.2008. The High Court held that

rehabilitation of displaced persons was a prerequisite to submerging any of the villages

in the dam. Thus, such a situation did indeed warrant urgency under Section 17 (1);

further, there was an apprehension that the acquisition of land would get delayed by the

operation of S. 5A; that there was clear application of mind to the invocation of the

urgency clause. The High Court thus dismissed the writ appeals. Being aggrieved, the

landowners appealed to this Court. Pending appeal, the 2013 Act came into force.

42. A two-judge bench of this Court on 12.01.2016 referred the matter to a larger

bench, on the abovementioned Question Nos. 2 and 3.

43. On  one  hand,  it  was  contended  by  the  learned  counsel  on  behalf  of  the

landowners that periodof interim stay could not be excluded from the calculation of the

period of five years or  more under Section 24(2) of  the 2013 Act.  The statute is  a

beneficial legislation. The Court could not supply casus omissus, as the intention of the

Legislature in omitting it was evident. While it amended other provisions to exclude stay

period, it did not amend Section 24(2) of the 2013 Act.

44. On the other, it was submitted by the learned counsel on behalf of the State that

period of interim stay ought to be excluded from the calculation of five years under

Section 24(2) of the 2013 Act. As it was not an intentional omission of the Legislature,

the Court could supply meaning to the provision to make it consistent with the rest of the

statute.

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51. Prior to the 2013 Act,  a Coordinate Bench of  this Court  in  Shri Kishan Das

&Ors. v. State of U.P. &Ors., 1995 (6) SCC 240, has considered the detrimental impact

of stay orders upon the State in a different context, and held that it cannot be made to

pay interest for a stay order-induced delay in making the award by observing:

“3. Shri B.B. Sanyal, learned senior counsel for the appellants, contended that the award was made on 22.3.1983 though the acquisition was made in September 1976. Therefore, the appellants should be compensated by payment of interest @ 12 per cent per annum. In support of his contention, he placed reliance on the decision of this Court in Ram Chand v. Union of India (1994) 1 SCC 44 and in particular on paragraph 16 of the judgment. It is seen that in Ram Chander's case even after the dismissal of the writ petitions by this Court in Aflatoon v. Lt. Governor of Delhi [(1975) 4 SCC 285],  no  action was taken by  the Land Acquisition Officer  to  pass the award. Thus, till  1980-81 no award was made in respect of any of the acquisitions.  Under  these  circumstances,  this  Court  had  directed  the Government to pay interest @ 12 per cent on the amount  awarded to compensate the loss caused to the appellants therein. In this case, it is seen that though the notification was issued in September 1976, the writ petitions came to be filed in the High Court immediately thereafter in 1977 and  obviously  further  proceedings  were  stayed.  Accordingly,  the  Land Acquisition  Officer  delayed  the  award.  After  the  dismissal  of  the  writ petitions,  the  appellants  came  to  this  Court  and  obtained  status  quo. Obviously, the Land Acquisition Officer was not in a position to pass the award immediately. Thereafter, it would appear that he passed the award on 22.3.1983. Section 34 of the Act obligates the State to pay interest from the date of taking possession under the unamended Act @ 6 per cent and after the Amendment Act 68 of 1984 at different rates mentioned therein. The liability of the State to pay interest ceases with the deposit made as per Section 34 of the Act. Further liability would arise only when the court on reference under Section 18 enhances the compensation under Section 28 of the Act. Similarly, in an appeal under Section 54 of the Act if the appellate  court  further  increases  the  compensation,  then  again  similar obligation under Section 28 arises.” (emphasis supplied)

Clearly, stay orders by the Court constrain the State from continuing with the acquisition

proceedings. It may also lead to consequences of contempt, as in Magnum Promoters  

(supra). 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.

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52. As mentioned supra,  Sree Balaji (supra)  has ruled that  casus omissus cannot

be supplied to the provision in question. The decision in Sree Balaji (supra) has relied

on  Padma  Sundara  Rao  (supra).  However,  the  reason  for  not  supplying  casus

omissus was different in that case.In  Padma Sundara Rao (supra), 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 (supra) 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. Shiv Raj (supra) does not specifically help the case of the landowners as it

did not consider the question of orders of stay on the acquisition proceedings.

53. As  already  observed  in  the  previous  paragraph,  if  literal  construction  of  a

particular clause leads to manifestly absurd or anomalous results which could not have

been  intended  by  the  Legislature;  where,  to  apply  words  literally  would  defeat  the

obvious intention of the legislation and produce a wholly unreasonable result, we must

feed something to the provision so as to achieve the obvious intention and produce

rational construction.

54. 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.

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55. I  do not  see why  casus omissus  cannot  be supplied by the Court  when the

parameters for supplying such  casus omissus have been met. 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. One of the earliest cases that discussed

supplying casus omissus in cases of necessity was CIT v. National Taj Traders, (1980)

1 SCC 370 where a two-Judge bench of this Court held as follows,

“10. Two principles of construction-one relating to casus omissus and the other in regard to reading the statute as a whole-appear to be well settled. In regard to the former the following statement of law appears in Maxwell on Interpretation of Statutes (12th Edn.) at page 33:  

Omissions  not  to  be  inferred-"It  is  a  corollary  to  the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the  inference  that  the  legislature  intended  something  which  it omitted to express.  Lord Mersey said: 'It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.' 'We are not entitled,' said Lords Loreburn L.C., 'to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.' A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission in consequence to have been unintentional."  

In regard to the latter principle the following statement of law appears in  Maxwell at page 47:  

A statute is to be read as a whole-"It was resolved in the case of Lincoln College [(1595) 3 Co. Rep. 58b, at p. 59b] that the good expositor of an Act of Parliament should 'make construction on all the parts together, and not of one part only by itself.' Every clause of a statute is to 'be construed with reference to the context and other  clauses  of  the  Act,  so  as,  as  far  as  possible,  to  make  a

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consistent  enactment  of  the  whole  statute.'  (Per  Lord  Davey  in Canada Sugar Refining Co., Ltd. v. R : 1898 AC 735)".  

In  other  words,  under  the  first  principle  a  casus  omissus  cannot  be supplied by the Court  except  in the case of  clear necessity  and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose 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 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  an  unreasonable  result",  said Danckwerts L.J. in Artemiou v. Procopiou [1966 1 QB 878] "is not to 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" we must "do some violence to the words" and so achieve that obvious intention and produce a  rational  construction,  (Per  Lord  Reid  in  Luke  v. I.R.C.-1968  AC 557 where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges.)”

56. This was followed almost verbatim in  Padma Sundara Rao (supra).It must be

emphasized that  the  Constitution  Bench in  Padma Sundara Rao (supra) 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

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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.

57. As has been held by this Court in Amarjeet Singh v. Devi Ratan (2010) 1 SCC

417, 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. Nobody shall be permitted to

take advantage of his own fault of delaying action. The Court should not permit a litigant

to perpetuate the illegality by abusing the legal process.   It is the duty of the Court to

ensure that dishonesty or any attempt to abuse the legal process must be effectively

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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.

58. “Actus  curiae  neminemgravabit”,  or the  principle  that  an  act  of  Court  cannot

prejudice any of the parties, is a settled principle of law. In A.R. Antulay v. R.S. Nayak

and Anr., (1988) 2 SCC 602, by majority this Court held that the elementary rule of

justice is that no party should suffer by a mistake or an action of the Court. Shri Kishan

Das (supra) applied this principle to land acquisitions.

59. 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. As stated earlier, the State is precluded from

taking possession for no fault of its own.

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60. 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 filing 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.

61. 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.

62. 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.

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Conclusion:

63. The questions posed by the references stand answered by me as follows:

I. QUESTION NO.  1:  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.  Consequently, I  am unable to persuade myself  to

agree  with  the  outcome  of  Pune  Municipal  Corporation  (supra).  However,

according  to  me  the  judgment  in  Pune  Municipal  Corporation  (supra) is  not

rendered in per incuriam.  

In view of the above, the judgment in  Pune Municipal Corporation (supra)  may

have  to  be  reconsidered  by  a  larger  bench,  inasmuch  as  Pune  Municipal

Corporation (supra)  was decided by a bench of  three judges.  The Registry  is

directed to place the papers before the Hon’ble Chief Justice of India for appropriate

orders.  

II. QUESTION NO. 2  AND QUESTION NO. 3:  For the aforementioned reasons, I

am unable to persuade myself to agree with  Sree Balaji (supra), and the

same stands overruled. Question No. 2 and Question No. 3 posed by the

reference stand answered as follows:

(i)  The conscious omission referred to in paragraph 11 of the judgment in  Sree

Balaji (supra) 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 Section 24(2) of

the 2013 Act. In fact, excluding such periods of interim stay from the calculation

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of the time period of five years under S. 24(2) makes a reading of the Act more

consistent.

 (ii) The principle of  “actus curiae neminemgravabit”,  or  that 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 Section 24(2) of  

the 2013 Act.

…………..……………………………..J. [MOHAN M. SHANTANAGOUDAR]

       New Delhi, February 8, 2018

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