SREE BALAJI NAGAR RESIDENTIAL ASSN. Vs STATE OF T.NADU .
Bench: FAKKIR MOHAMED IBRAHIM KALIFULLA,SHIVA KIRTI SINGH
Case number: C.A. No.-008700-008700 / 2013
Diary number: 14544 / 2007
Advocates: VIJAY KUMAR Vs
B. BALAJI
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C.A.No.8700/13 etc.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8700 OF 2013
Sree Balaji Nagar Residential Association …..Appellant
Versus
State of Tamil Nadu & Ors. …..Respondents
W I T H
CIVIL APPEAL NOS.8701 OF 2013; 8702 OF 2013; 8703 OF 2013; AND 8704 OF 2013
J U D G M E N T
SHIVA KIRTI SINGH, J.
1. These civil appeals have been heard together because they involve
common questions of law and fact and, therefore, they are being disposed of
by this common judgment and order.
2. Whereas in Civil Appeal No.8700 of 2013, filed by an Association of
Residents of a particular locality, the challenge is to the order of
Government of Tamil Nadu bearing G.O. No.122 dated 14.07.1998
containing a scheme for development of a proposed canal by name
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C.A.No.8700/13 etc.
Madhavaram Left Flank Water Surplus Course, on the ground that the
scheme is misconceived and technically flawed which shall lead to
unnecessary acquisition of land and building belonging to the residents of
the affected area, the other Civil Appeals contain specific challenge to
proceedings initiated under the Land Acquisition Act, 1894 (hereinafter
referred to as, ‘the Act’) undertaken by the Tamil Nadu State Government
for the purpose of implementation of the said scheme covered by G.O.
No.122 relating to the proposed canal improvement works. The actual land
acquisition proceedings commenced with issuance of Notification under
Section 4(1) of the Act on 02.02.2005, insofar as the lands under dispute are
concerned. The Award was made on 30.11.2006 but in the meantime as
appears from the facts stated in C.A. No.8700 of 2013, upon a challenge
made to the Notification under Section 4(1) of the Act, the High Court
stayed dispossession of the concerned land holders by order dated 17.2.2005
but ultimately the writ petitions and other tagged matters were dismissed on
27.4.2007. The matter reached this Court and as a result of an interim order
passed by this Court on 18.05.2007 in C.A.No.8701 of 2013 [arising out of
S.L.P.(C)No.9492 of 2007] the land holders have remained protected from
being dispossessed from their lands in question.
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C.A.No.8700/13 etc.
3. The various orders passed by this Court in these cases reveal that the
matter was taken up in a much wider perspective in the light of larger issues
raised in public interest that alternative scheme be also devised and taken
into account to prevent unnecessary displacement of large number of
residents and with a view to protect likely pollution of some lakes on
account of flood waters entering into such lakes and thereby affecting the
cleanliness of possible sources for supply of drinking water. This Court,
long back on 10.02.2010 felt the need for and hence directed the respondents
to submit a revised comprehensive plan of the area showing location of
various water bodies, the construction of canal which had already taken
place and the natural flow of water from Ambattur tank to Korattur tank and
from Korattur tank to Capt. Cotton Canal. On 31.03.2010, learned senior
counsel for the State of Tamil Nadu referred to and submitted a final report
by Mott MacDonald, an expert appointed by the Government of Tamil Nadu
to study the entire scheme and prepare Storm Water Drainage Master Plan
for Madras City and Pre-feasibility Study for Madras Metropolitan Area.
On going through the relevant portions of that Report, this Court decided to
appoint an expert body to study the environmental aspect of the scheme
under challenge because the expert appointed by the State Government had
suggested further study/monitoring of ground water outside the Chennai
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C.A.No.8700/13 etc.
Metropolitan area. By order dated 09.04.2010, this Court appointed a
Committee of several experts under the Chairmanship of Hon’ble Mr.
Justice Doraiswamy Raju, a former Judge of this Court. The terms of
reference included eight points and the Committee was requested to submit
its report within three months. The Committee’s report was made available
to this Court, belatedly and for one reason or the other, the matter could not
be heard finally for a long period. At the stage of hearing, on 10.07.2014,
the State of Tamil Nadu expressed its willingness to explore the possibility
of arriving at some consensus. This course was adopted in view of relevant
map and materials which showed that as a part of Chennai City Waterways
Alignment of Surplus Course Package IV, considerable part of the proposed
canal had already been constructed but the balance part remained incomplete
only on account of present proceedings against acquisition of lands for the
purpose. However, the High Level Committee meeting under Chairmanship
of the Chief Secretary of the State involving the petitioners in public interest
litigation as well as representatives of the land owners’ Association could
not prove fruitful.
4. In the meanwhile, on account of a subsequent legislation – The Right
to Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (for brevity, ‘2013 Act’) coming into effect
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C.A.No.8700/13 etc.
from 01.01.2014, through I.A. No.3 filed in Civil Appeal No.8701 of 2013, a
plea was raised on behalf of the appellants that the appeals be allowed in
terms of Section 24(2) of the 2013 Act by holding that the acquisition
proceeding initiated under the Act has lapsed.
5. The parties have been heard only on this narrow legal aspect to find
out whether the appellants’ prayer noted above deserves to be allowed in
view of Section 24(2) of 2013 Act or not. In view of the order proposed, we
find it futile to refer to and discuss the facts involved in different civil
appeals. Section 24 of 2013 Act is 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, 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,
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C.A.No.8700/13 etc.
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.”
6. It has been contended by learned senior counsel appearing for the
appellants that in view of the non obstante clause in sub-section (2) of
Section 24, notwithstanding an award passed under Section 11 of the Act in
respect of acquisition proceedings under challenge, such proceedings cannot
continue under the provisions of the Act because the award was made on
30.11.2006, i.e., more than five years earlier and undisputedly physical
possession of the land of the concerned appellants has not been taken as yet.
It has further been contended that proceedings have lapsed because in
several cases the alleged payment is only by way of deposit in treasury on
30.03.2007 and not by deposit in Court, as required by law. Reliance has
been placed upon a judgment of this Court in the case of Pune Municipal
Corporation & Anr. v. Harakchand Misirimal Solanki & Ors. (2014) 3
SCC 183 in support of the contention that compensation cannot be said to
have been paid only by its deposit with the Revenue authorities such as the
Government treasury, it can be accepted to have been paid only if it is
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C.A.No.8700/13 etc.
actually paid to the land owner or is deposited in the Court as per
requirement of Section 31 of the Act. For showing that at least in the case of
some land holders, the compensation was simply deposited in the Revenue
Deposit Account in the sub-treasury and not in the concerned Court, a letter
of Spl. Thasildar (LA), Chennai Corporation Waterways Project, Ambattur,
Chennai, dated 30.03.2007 has been annexed with I.A. No.3 of 2014 in
C.A.No.8701 of 2013.
7. In reply Mr. Subramonium Prasad, AAG for the State of Tamil Nadu
has produced some charts and documents to submit that compensation has
been deposited in several cases with the concerned Civil Court also and in
some cases the payments have been accepted by the land owners. However,
even as per the chart containing details of award and payments for 3.31
hectares of land involved in the case of Vishwanathan & Ors. in C.A.
No.8701 of 2013 [arising out of S.L.P.(C) No.9492 of 2007] an amount of
Rs.26,73,851/- is shown to be lying in Revenue deposit whereas only for a
small portion of land an amount of Rs.5,50,056/- is in Civil Court deposit.
However, this issue need not be pursued any further because admittedly
physical possession of the land involved in these appeals has not been taken
over by the State and on that account alone, the land acquisition proceeding
under challenge will have to be treated or declared as lapsed unless we find
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C.A.No.8700/13 etc.
merit in the contention raised on behalf of State that this plea cannot be used
against the State because it was prevented from taking physical possession
of the lands on account of interim orders passed by the High Court and this
Court.
8. There is no dispute that writ petitions were filed even before the
making of award and interim orders have operated against the State of Tamil
Nadu and, therefore, the State was not at fault in not taking physical
possession of the concerned lands under acquisition. But the intention of the
Legislature in enacting Section 24(2) of the 2013 Act will have to be culled
out from its wordings and on the basis of other relevant provisions of this
Act and the relevant case law for deciding whether the period of
stay/injunction is required to be excluded in computing the five years’ period
or not.
9. 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 proceeding might have remained stayed on account of stay
or injunction granted by any court. In the same Act, proviso to Section
19(7) in 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
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C.A.No.8700/13 etc.
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 the case of Padma
Sundara Rao (Dead) & Ors. v. State of T.N. & Ors. (2002) 3 SCC 533.
10. 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 1 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 Explanation to Section 11A 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 wordings used by the Legislature are clear and do
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not create any ambiguity or conflict. In such a situation, the court is not
required to depart from the literal rule of interpretation.
11. It was faintly suggested by Mr. Subramonium Prasad, learned AAG
for the State of Tamil Nadu that the proviso may come to the rescue of the
State and save the proceedings from suffering lapse if it is held that since
there was an award leading to payment of compensation in respect of some
of the land holdings only, therefore all the beneficiaries may now be entitled
to compensation in accordance with the provisions of the 2013 Act. This
contention could have been considered with some more seriousness if
physical possession of the land had been taken but since that has not been
done, the proviso dealing only with compensation cannot be of any help to
the State. Therefore, we are not required to go deeper into the effect and
implications of the proviso which prima facie appears to be for the benefit of
all the land holders in a case where the award is subsisting because the
proceedings have not lapsed and compensation in respect of majority of land
holdings has not been deposited in the account of the beneficiaries. There is
nothing in the language of the proviso to restrict the meaning of the words
used in Section 24(2) mandating that the proceedings shall be deemed to
have lapsed if the award is five years or more than five years’ old but the
physical possession of the land has not been taken over or the compensation
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C.A.No.8700/13 etc.
has not been paid. The law is trite that when the main enactment is clear and
unambiguous, a proviso can have no effect so as to exclude from the main
enactment by implication what clearly falls within its express terms, as held
by Privy Council in the case of Madras and Southern Mahratta Railway
Co. Ltd. v. Bezwada Municipality AIR 1944 PC 71 and by this Court in
the case of C.I.T. v. Indo Mercantile Bank Ltd. AIR 1959 SC 713.
12. The judgment of three Judges’ Bench in the case of Harakchand
Misirimal (supra) has been followed by another Bench of three Judges in
the case of Union of India & Ors. etc. v. Shivraj & Ors. etc. (2014) 6 SCC
564. In paragraphs 25 and 26 of that judgment, this Court took notice of a
clarification issued by the Government of India, Ministry of Urban
Development, Delhi Division dated 14.03.2014. Part of the circular
extracted in that case clearly shows that the period of five years or more in
Section 24(2) of the 2013 Act has been prescribed with a view to benefit the
land-losers and the period spent in litigation due to challenge to the award or
the land acquisition proceedings cannot be excluded.
13. From the discussions made above, it is amply clear that though there
is lack of clarity on the issue whether compensation has been paid for
majority of land holdings under acquisition or not, there is no dispute that
physical possession of the lands belonging to the appellants under
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consideration in these appeals has not been taken by the State or any other
authority on its behalf and more than five years have elapsed since the
making of the award dated 30.11.2006 and 01.01.2014 when the 2013 Act
came into force. Therefore, the conditions mentioned in Section 24(2) of the
2013 Act are satisfied for allowing the plea of the appellants that the land
acquisition proceedings must be deemed to have lapsed in terms of Section
24(2) of the 2013 Act. The appeals are disposed of accordingly. It goes
without saying that the Government of Tamil Nadu shall be free, if it so
chooses to initiate proceedings of such land acquisition afresh in accordance
with the provisions of 2013 Act. In the facts and circumstances of the case
there shall be no order as to costs.
..…………………………………………………….J. [FAKKIR MOHAMED IBRAHIM KALIFULLA]
……………………………………………………..J. [SHIVA KIRTI SINGH]
New Delhi. September 10, 2014.
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