Supreme Court - Daily Orders
Indore Development Authority vs Shailendra (Dead) Through Its Lrs. And ... on 8 February, 2018
Author: Mohan M.Shantanagoudar
Bench: Mohan M.Shantanagoudar
1
(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
Signature Not Verified
Digitally signed by
ASHOK RAJ SINGH
SPECIAL LEAVE PETITION (C) No.30192 OF 2015
Date: 2018.02.08
17:18:17 IST
Reason:
SPECIAL LEAVE PETITION (C) No.30142 OF 2015
2
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
SPECIAL LEAVE PETITION (C) No.15139 OF 2016
3
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
SPECIAL LEAVE PETITION (C) No.5182-5184 OF 2017
SPECIAL LEAVE PETITION (C) No.23846 OF 2016
4
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
JUDGMENT
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 5 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”) 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.
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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 2013 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 7 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 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.8
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 2013 Act 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 2013 Act, 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 2013 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, 9 “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 2013 Act, including Sections 31 to 34 of the said Act which deal 10 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 11 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-
(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.12
(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:
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 13 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 2013 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 2013 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 14 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 view, it is not appropriate to give a literal construction to the expression “paid” used in this sub-section [sub-section (2) of Section 24]. If a literal construction were to be given, then it would amount to ignoring procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purposes of Section 24(2), the compensation shall be regarded as “paid” if the compensation has been offered to the person interested and such compensation has been deposited in the court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been “paid” within the meaning of Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in court and made that amount 15 available to the interested person to be dealt with as provided in Sections 32 and 33.” Pune Municipal Corporation (supra)relied on Prem Nath Kapur v. National Fertilizers Corporation of India Ltd., (1996) 2 SCC 71, wherein it was observed that if compensation had been enhanced, but the enhanced amount was not deposited in Court, Section 34 would be attracted. It held that Section 34 mandates payment of interest if the amount is not deposited “in Court” as per Section 31, and proceeded to conclude as follows, “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…..” Pune Municipal Corporation (supra) also relied on Ivo AgneloSantiamo Fernandes v. Government of Goa, (2011) 11 SCC 506, which interpreted Section 34 of the 2013 Act in light of 16 Prem Nath (supra) to hold that interest accrues on a deposit in the revenue account of the State until such compensation amount is deposited in Court. It held thus, “22. In the light of the abovesaid principle, we are of the view that the contentions of the respondents cannot be accepted. The Act requires that the interest be deposited in court, and the same has been upheld in Prem Nath Kapur (supra).
23. In the present case, the respondents did not deposit the amount in court, but in their revenue account and utilized the same. Even if the respondent State does pay the compensation to the claimants directly, and the same is not collected, the respondent State cannot then keep the said money with itself and utilize it. In such cases, after a reasonable period, if the claimants do not come forward to collect compensation, then it should be deposited in court by the State. Allowing the State to keep the compensation with itself and utilizing it cannot possibly be permitted being contrary to the provisions of the Act and the law laid down in Prem Nath Kapur (supra). Hence, the judgment of the High Court is clearly erroneous and deserves to be set side.” Pune Municipal Corporation (supra)has been followed in several subsequent cases, including the cases of Union of India v. Shiv Raj, (2014) 6 SCC 564, Karnail Kaur v. State of Punjab, (2015) 3 SCC 206, andRadiance Fincap (P) Ltd. v. Union of India, (2015) 8 SCC 544, wherein it has been held that the acquisition proceedings lapse when the compensation has been 17 deposited with the Treasury or with the Revenue Department instead of deposited in Court.
8. This Court in Delhi Development Authority v. Sukhbir Singh, (2016) 16 SCC 258 conducted an incisive analysis of the Punjab Standing Order No. 28 of 1909, which directs that a deposit should be made in the Treasury in certain instances (discussed later in Paragraphs 13, 14 and 15). It held that a deposit in the Treasury is meant to 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. 18 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 follows, “5. The contention of the learned counsel appearing for the respondents is that whoever approached the Haryana Urban Development 19 Authority or the competent authority has been paid compensation and since the appellants failed to approach the quarters concerned for the compensation, they cannot be granted any relief. We find this contention difficult to appreciate. When a land is compulsorily acquired, it is for the requisitioning authority to make the payment and does not require the landowner to come and receive the payment.
6. As and when land is taken over by way of acquisition, the landowner has to be compensated with the amount of compensation duly determined under the Act. In case there is any dispute as to who is to be paid the amount, the same is to be deposited in Court in terms of Section 31 of the 1894 Act. In this case before us, the stand of the requisitioning authority, namely, Haryana Development Authority is that the money is ready with them and it is for the landowner to come and receive the payment. This stand is not permissible under the law. It is for the authorities concerned to pay the money and take the land and in case there is any dispute as to whom the money should be paid, then the same has to be deposited in Court.”
11. Various High Courts have followed Pune Municipal Corporation (supra). The High Court of Punjab and Haryana in Maharana Pratap Charitable Trust v. State of Haryana (CWP No. 6860 of 2007) held that Section 24(2) applied even where landowners have refused to accept compensation.
12. As per Section 24(2) of the 2013 Act, the proceedings lapse in one of the following situations: (i) when possession is not taken (even if compensation is paid), or(ii) when compensation is 20 not paid (even if possession is taken), or (iii) when neither compensation is paid, nor possession is taken. This leads me to the issue of how to interpret the “payment” of compensation: i.e. whether, deposit into the Treasury and not in the Court, can constitute “payment.”
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.” 21 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.
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 22 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 2013 Act use “tender”, “payment”, and “deposit” at different places in the enactments. Section 31(1) of the 2013 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 in case either the physical possession of 23 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 24 saving the acquisition. Since the proviso to sub-section 2 of Section 24 does not envisage lapsing of acquisition, even if the payment is not made but is deposited that too with regard to the beneficiaries of a minority of holdings, the same would lead to the inevitable conclusion that the word “payment” as found in sub-section 2 of Section 24 has a strong link or co-relation with the word “deposit”. A reading of sub-section 2 of Section 24 along with the proviso would make it clear that even if the compensation in respect of minority of the land holdings is deposited in the account of such minority beneficiaries, the acquisition does not lapse. At the most, every land-loser is entitled to the higher compensation as per the provisions of the 2013 Act. 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 25 settled that no provision under the act can be rendered nugatory or otiose.
16. Section 31 of the 2013 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 2013 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 2013 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 27 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 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 28 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.” 29 The Land Acquisition (Bihar & Orissa) Rules, 1894 read as follows, “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. ..….” 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 30 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.” 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.” 31 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 32 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 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 33 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 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 34 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 36 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, 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 37 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.
39
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 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 40 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 Company Limited (1944) All ER 293 the House of Lords observed 41 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 42 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).
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 43 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, the proper course is for it to refer the matter to a larger Bench.” 44 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 45 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 Act for 11.04 hectares of land and the properties thereon. A declaration for this land was issued on 26.11.2007.
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.
46
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.
45. A two-Judge bench of this Court in Sree Balaji (supra)held that casus omissus could not be supplied to Section 24(2) of the 2013 Act, as the Legislature has amended other Sections in the same Act to exclude period of stay by the Court, while leaving Section 24(2) intact. It observed as follows:
“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 47 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, the 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 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 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 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 not create any ambiguity or conflict. In such a situation, the court is not required to depart from the literal rule of interpretation.” 48
46. In Padma Sundara Rao v. State of Tamil Nadu,(2002) 3 SCC 533 this Court held that a Court cannot supply casus omissus into Section 6 of the 1894 Act. After the High Court quashes a declaration made under Section 6, there is no provision for a further limitation period of one year for a fresh Section 6 declaration to run from the date of receipt of the High Court order. It stated that the limitation period must necessarily run from the date of the Section 4 notification as per clause (i) of the proviso to Section 6. The reasoning of this Court was as follows, “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 Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981).
13. In Dr. R Venkatchalam vs. Dy. Transport Commissioner (1977) 2 SCC 273 it was observed that Courts must avoid the danger of apriori determination 49 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. vs. P.N.B. Capital Services Ltd. [(2000) 5 SCC 515]. `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 N. Narasimhaiah v. State of Karnataka [(1996) 3 SCC 88]. In State of Karnataka v. D.C. Nanjudaiah[(1996) 10 SCC 619], the period was further stretched to have the time period run from date of service of High Court's order. Such a view cannot be 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 Clause (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 50 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. (1963 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 ChinnathambiGounder v. State of Tamil Nadu [AIR 1980 MAD 251]was rendered on 22.6.1979 i.e. much prior to the amendment by the 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 curia neminemgravibit' highlighted by the Full Bench of the Madras High Court has no application to the fact situation of this case.” (emphasis supplied) The reasoning in Padma Sundara Rao (supra) regarding casus omissus was followed verbatim in a catena of cases, including Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors., (2003) 6 SCC 659, Union of India v. Dharamendra Textile Processors, (2008) 13 SCC 369 and 51 recently inEera through Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi) &Anr, 2017 (8) SCALE 112.
47. In Union of India v. Shiv Raj, (2014) 6 SCC 564 a Coordinate bench of this Court held that the period of litigation cannot be excluded, as per a clarification issued by the Government of India. It did not, however, decide whether a stay period should be excluded from the calculation of 5 years under Section 24(2) of the 2013 Act. It observed as follows, “25. In order to clarify the statutory provisions of the 2013 Act with respect to such lapsing, the Government of India, Ministry of Urban Development, Delhi Division, came up with a circular dated 14.3.2014 wherein on the basis of the legal opinion of the Solicitor General of India, it has been clarified as under:
“3. Interpretation of five years period:
“With regard to this issue viz. interpretation of five years’ period two situations have been envisaged in cases where the acquisition has been initiated under the Land Acquisition Act, 1894 viz., (1) parties whose lands have been acquired have refused to accept the compensation and (2) parties whose lands have been acquired having just parted with physical possession of the land. However, in both the above situations, as on 1.1.2014, the period of 5 years would not have ended and in such cases, the advisory seeks to clarify that the new law shall apply only if the situation of pendency continues unchanged for a period that equals to or exceeds five years. In my view, it should be further clarified that in none of the cases the period of five years would have 52 elapsed pursuant to an award made under Section 11 from the date of commencement of the Act and that the benefit of Section 24(2) will be available to those cases which are pending and where during pendency, the situation has remained unchanged with physical possession not being handed over or compensation not having been accepted and the period equals to or exceeds five years.
4. Limitation:
As regards this item relating to the period spent during litigation would also be accounted for the purpose of determining whether the period of five years has to be counted or not, it should be clarified that it will apply only to cases where awards were passed under Section 11 of the Land Acquisition Act, 1894, 5 years or more prior to 1.1.2014 as specified in Section 24(2) of the Act, to avoid any ambiguity.Since this legislation has been passed with the objective of benefiting the land-losers, this interpretation is consistent with that objective and also added as a matter of abundant caution that the period spent in litigation challenging an award cannot be excluded for the purpose of determining whether the period of five years has elapsed or not. If the possession has not been taken or compensation has not been paid due to the challenge to the land acquisition proceedings, the pendente lite period will be included to determine the five year period and including such period if the award was made five years or more prior to the commencement of the Act, then the said acquisition proceedings will be deemed to have elapsed and fresh proceedings, if so desired, will have to be initiated in accordance with the new Act.”
26. The objects and reasons of the 2013 Act and particularly Clause 18 thereof fortify the view taken by this Court in the judgments referred to hereinabove.
Clause 18 thereof reads as under:
53
“18. The benefits under the new law would be available in all the cases of land acquisition under the Land Acquisition Act, 1894 where award has not been made or possession of land has not been taken.” This has led to a unique situation in cases such as Magnum Promoters v. Union of India, (2015) 3 SCC 327 wherein the Court has faulted the State for contending that they took possession as that would be in violation of the interim stay order, but has however held that acquisition proceedings lapse for not taking possession within 5 years because of the time lost in the interim order. This decision was followed in Radiance Fincap(supra).
48. Stay period was also not excluded in the case of Karnail Kaur (supra) wherein a two-Judge bench of this Court relied on the above discussed cases to reject the contention of the Solicitor General that the State was being prejudiced. It did so as follows, “20. The learned Solicitor General has also placed reliance upon A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602] in support of his legal submission that in the said case the majority view of this Court have succinctly laid down that the elementary rule of justice is that no party should suffer by mistake/action of the Court. What the court does ought not prejudice a litigant and therefore, respondents herein shall not be made to suffer or be deprived of their right by the reliance being placed by 54 the landowners upon Section 24(2) of the 2013 Act due to the interim orders of the High Court and this Court as they have been in possession of the acquired land.
The above contentions of the learned Solicitor General cannot be accepted by us as the said principle of law laid down by this Court in the above referred case has no application to the fact situation on hand in view of the clear statement of law laid down by this Court in the above referred cases after interpreting the provisions of the 2013 Act and therefore, the reliance placed upon the said decision is misplaced.
21. In Sree Balaji Nagar Residential Association (supra), it was opined that after adverting to the decisions of the Privy Council and this Court, 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 or "status quo" order regarding possession of the land granted by any court. It was conclusively held that the Legislature has consciously omitted to extend the period of five years indicated in Section 24(2) of the 2013 Act, 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.”
49. Various High Courts have followed suit, such as the High Court of Punjab and Haryana in Maharana Pratap Charitable Trust (supra) wherein it held that the principle of “actus curiae neminemgravabit” has no application to the provisions of Section 24(2) of the 2013 Act and as per the law laid down by the Supreme Court in Shiv Raj, Pune Municipal Corporation and Sree Balaji Nagar Residential Association, the period of stay 55 granted by the Courts is not to be excluded for determining the period of 5 years under Section 24(2) of the 2013 Act.
50. In my opinion, all these cases which followed Sree Balaji (supra) require to be revisited.It is not a wilful decision by the State to delay taking possession – it has to abide by the interim orders of the Court. Interpreting the omission as referred to in paragraph 11 of Sree Balaji (supra) to mean a default inclusion of periods of stay in the calculation of 5 years will lead tofar-reaching consequences, namely that the State is faulted for something that is out of its control. Large amounts of public money will go to waste. An omission in the statute to exclude periods of stay orders should not necessarily mean by default that such periods are not excluded.
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 56 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 57 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.
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 58 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.
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 59 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 60 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 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 61 supplied when there is “clear necessity and when reason for it is found in the four corners of the statute itself”. This means that while casus omissus must not be readily inferred, “all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute.” This applies squarely to the facts of the case on hand. Casus omissus must be supplied to Section 24(2) of the 2013 Act due to the necessity and the need for consistency. Undoubtedly, the power to legislate remains with the Legislature. If a provision of the Act is inconsistent or ambiguous, the same needs to be clarified for bringing the meaning of the said provision consistent with the rest of the Act, if need be, by supplying meaning to such provision. In the present case, there are many provisions in the 2013 Act which exclude periods of interim stay, such as Section 19(7) and the Explanation to Section 69(2) of that Act. It only makes the statute more consistent if Section 24(2) is read in light of other provisions such as Section 19(7) and the Explanation to Section 69(2), which make interim stay orders exceptions to calculating periods of time under the Act. In this way, 62 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 63 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 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 64 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.
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 65 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. 66
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 samestands 67 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 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