Karnataka High Court
The Secretary vs Lakshmaiah on 14 December, 2020
Bench: B.V.Nagarathna, Nataraj Rangaswamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
WRIT APPEAL NO.4052/2017 (LA -RES)
BETWEEN
THE SECRETARY,
VIJAYA BANK EMPLOYEES HOUSING
CO-OPERATIVE SOCIETY LTD.,
VIJAYA BANK HEAD OFFICE,
BENGALURU - 560 001.
NOW REPRESENTED BY
ITS PRESIDENT,
K.DIWAKAR SHETTY,
S/O A.K.SHETTY,
AGED ABOUT 79 YEARS. ... APPELLANT
(BY SRI.SHASHIKIRAN SHETTY, SENIOR ADVOCATE FOR
SMT.FARAH FATHIMA, ADVOCATE)
AND
1. LAKSHMAIAH,
S/O RANGAPPA,
AGED ABOUT 83 YEARS,
SINCE DEAD,
REPRESENTED BY HIS LRS.R2 TO R4
2. L.P.MANJUNATH,
S/O LAKSHAMAIAH,
AGED ABOUT 53 YEARS,
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3. L.P.SURESH,
S/O LAKSHAMAIAH,
AGED ABOUT 50 YEARS,
4. L.P.SOMESH,
S/O LAKSHMAIAH,
AGED ABOUT 48 YEARS,
RESPONDENTS 1 TO 4 ARE
RESIDING AT BILEKAHALLI VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK.
5. THE STATE OF KARNATAKA,
REVENUE DEPARTMENT,
BY ITS UNDER SECRETARY,
REVENUE DEPARTMENT,
M.S.BUILDING,
BANGALORE - 01.
6. THE SPECIAL AND
ACQUISITION OFFICER,
VISVESHWARAIAH TOWER,
PODIUM BLOCK,
3RD FLOOR, DR.AMBEDKAR VEEDHI,
BANGALORE - 1.
7. THE BENGALURU DEVELOPMENT
AUTHORITY,
BY ITS COMMISSIONER,
BANGALORE - 20.
...RESPONDENTS
(BY SRI.ASHOK HARANAHALLI, SENIOR ADVOCATE FOR
SRI.SOMASEKHARA K.H., ADVOCATE FOR R1 TO R4;
SRI.T.L.KIRANKUMAR, AGA FOR R5 AND R6;
SRI.NARENDRA GOWDA, ADVOCATE FOR R7;
R2 TO R4 ARE LRS OF DECEASED R1)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER DATED 16.03.2017 PASSED BY THE LEARNED SINGLE
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JUDGE IN WRIT PETITION NOS.25664-667/2014 [LA - RES]
AND FURTHER BE PLEASED TO DISMISS THE WRIT PETITION
NOS.25664-67/2014 [LA - RES].
THIS WRIT APPEAL COMING ON FOR ORDERS THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is posted for orders, with the consent of Sri Shashikiran Shetty, learned Senior Counsel appearing for the appellant, Sri Ashok Haranahalli, learned Senior Counsel appearing for respondent Nos.1 to 4 and the learned Additional Government Advocate appearing for respondent Nos.5 and 6, it has been heard finally.
2. The legality and correctness of the order of the learned Single Judge dated 16.03.2017, allowing W.P.Nos.25664-67/2014, on the basis of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'Act of 2013'), is assailed by the -4- appellant House Building Co-operative Society, which was respondent No.3 in the writ petitions.
3. Briefly stated the facts are, respondent Nos.1 to 4 herein being legal representatives of deceased khatedar Lakshmaiah had preferred writ petitions seeking, inter alia, a declaration that the acquisition proceedings initiated under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as "LA Act, 1894") in respect of Vijaya Bank Employees House Co-operative Society Limited-appellant herein had lapsed as per Section 24(2) of the Act of 2013 insofar as the land in question is concerned.
4. It was the case of the writ petitioners before the learned Single Judge that they are the owners of land bearing Sy. No.113/2 measuring 31 guntas situated at Bilekahalli village, Begur Hobli, Bengaluru South Taluk, (hereinafter referred to as "Land in question" for the sake of convenience). That, inter alia, the said extent of land was acquired by the State Government by issuance of -5- preliminary notification under Section 4(1) of the LA Act, 1894 on 30.05.1983, followed by a declaration and final notification issued under Section 6(1) on 10.06.1985. Thereafter, an award was passed on 10.06.1987. The case of the writ petitioners is that despite the award having been passed, the award amount or compensation had not been paid nor deposited before the Civil Court, but the same had been deposited as a revenue deposit in the Treasury. Therefore, Sub-section (2) of Section 24 of the Act of 2013 would apply and the acquisition of the land in question must be declared to have lapsed by a deeming fiction under Sub-section (2) of Section 24 of the 2013 Act.
5. In the writ petitions, the appellant-Society herein, being respondent No.3, filed statement of objections, inter alia, contending that the award had been passed on 10.06.1987 and possession of the land was taken over on 01.10.1988 subsequent to passing of the award on 10.06.1987. Thereafter, a notification under Section 16(2) of the LA Act, 1894 was issued on -6- 02.11.1988. In fact, immediately, after passing of the award, notice under Section 12(2) of the LA Act, 1894 was issued. But there was no response to the said notice. Thereafter, on 30.04.1994, the land in question was relinquished to respondent No.7-Bengaluru Development Authority (hereinafter referred to as "BDA") in terms of the sanctioned plan. It is the case of the appellant-Society that the same was pursuant to the resolution of the BDA dated 05.04.1989.
6. The learned Single Judge considered the aforesaid aspects and on the basis of the judgment of the Hon'ble Supreme Court in the case PUNE MUNICIPAL CORPORATION AND ANOTHER vs. HARAKCHAND MISIRIMJAL SOLANKI AND OTHERS reported in (2014)3 SCC 183 (Pune Municipal Corporation), held that there was no payment of compensation to the writ petitioners. Hence, there was lapse of acquisition insofar as the land in question was concerned under Section 24(2) of the Act of 2013. Being aggrieved by the said order of -7- the learned Single Judge, the House Building Cooperative Society is in appeal.
7. Learned Senior Counsel appearing for the appellant-Society, while drawing our attention to the proceedings of the acquisition, which was commenced as early as on 30.05.1983, resulting in passing of the notification under Section 16(2) of the LA Act, 1894, submitted that, in the instant case, the award was passed on 10.06.1987 and the award notice under Section 12(2) of LA Act, 1894, was issued on 07.08.1987. The said award notice was refused by respondent Nos.1 to 4-writ petitioners. Thereafter, possession was taken on 01.10.1988 by drawing a mahazar. Consequently, the amount of compensation determined as per the award dated 10.06.1987 was deposited in the Government Treasury. Thus, in the instant case, the conditions stipulated under Section 24(2) of the Act of 2013 for declaring lapse of acquisition are not satisfied. -8-
8. In this context, learned Senior Counsel placed heavy reliance on the recent judgment of the Hon'ble Supreme Court in the case of INDORE DEVELOPMENT AUTHORITY VS MANOHARLAL AND OTHERS reported in AIR 2020 SC 1496 (Indore Development Authority) by drawing our attention to several paragraphs of the said judgment, which we shall advert to later. Learned senior counsel for the appellant contended that the impugned order of the learned Single Judge may be set aside and the writ petitions may be dismissed by allowing this appeal as primarily, learned Single Judge has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Pune Municipal Corporation which has been set aside in the recent judgment in the case of Indore Development Authority. He contended that the possession of the land in question, amongst other lands, acquired under the aforesaid notification having been taken by the State, it was handed over to the appellant Society. The Society in turn had relinquished the land in question to BDA as per Annexure-R4 and the land is no longer in the -9- possession of the respondents-owners nor in the possession of the appellant-Society. He contended that the impugned order passed by the learned Single Judge may be set aside and the appeal may be allowed.
9. Per contra, learned Senior Counsel Sri Ashok Haranahalli, appearing for respondent Nos.1 to 4-writ petitioners supported the order of the learned Single Judge and submitted that despite the award having been made on 10.6.1987, possession of the land in question has not been taken and there is no payment of compensation to the khathedars of the land. Therefore, the recent judgment of the Hon'ble Supreme Court in the case of Indore Development Authority would apply in respect of the case of the said writ petitioners. There is no merit in the appeal and therefore, the same may be dismissed.
10. In this regard, learned Senior Counsel appearing for respondent Nos.1 to 4- writ petitioners drew our attention to several paragraphs of the judgment of the Hon'ble Supreme Court in the case of Indore Development
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Authority to contend that there is a detailed discussion as to what the expression 'paid' found in section 24(2) of the Act of 2013 means. But there has been no payment of compensation to respondent Nos.1 to 4 in the instant case. Therefore, they are entitled to the benefit of Section 24(2) of the Act of 2013 and the order of the learned Single Judge would not call for any interference.
11. Further, learned Senior Counsel also drew our attention to Section 31 of the LA Act, 1894 to contend that the manner in which payment of compensation has to be made to the lands is described therein and in the instant case, there is no compliance of the said provision. Therefore, it was contended that by application of the recent judgment of the Hon'ble Supreme Court in the case of Indore Development Authority, the appeal may be dismissed.
12. The learned Additional Government Advocate appearing for the respondent-State adopted the submissions made on behalf of the appellant-Society and
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drew our attention to the award notice issued under Section 12(2) of the LA Act, 1894 and particularly to the endorsement, wherein it was endorsed that there was refusal of the same by the land owners of the said notice. Therefore, when the Khatedar and his family members refused the notice and did not respond to the same and did not approach the Special Land Acquisition Officer for the purpose of receiving the amount, the State or the beneficiary of the acquisition cannot be blamed same. That, the land owners had, for the reasons best known to them, did not accept the notice issued under Section 12(2) of the LA Act, 1894. They cannot now take advantage of their omission. Therefore, the order of the learned Single Judge may be set aside as it is based on the earlier judgment of the Hon'ble Supreme Court in the case of Pune Municipal Corporation which has been overruled by the recent dictum in the case of Indore Development Authority which may be applied. Learned Additional Government Advocate also submitted that respondent Nos.1 to 4 herein had, in fact, sought for denotification of
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the land in question and hence, filing of the petition under section 24(2) of the Act of 2013 is speculative in nature. Therefore, the impugned order may be set aside and the appeal may be allowed.
13. By way of reply, the learned Senior Counsel for the appellant-Society, while reiterating his submissions, drew our attention to Annexure-R5 which is the award notice under Section 12(2) of the LA Act, 1894 and Anneuxre-R4 to statement of objections filed by the Society in the writ petitions, and contended that the appeal may be allowed and the impugned order passed by the learned Single Judge may be set aside.
14. Having heard learned Senior Counsel appearing for the appellant-Society, learned Senior Counsel appearing for respondent Nos.1 to 4 and the learned Additional Government Advocate appearing for respondent Nos.5 and 6, the following points would arise for our consideration:
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(i) Whether the order of the learned Single Judge would call for any interference ?
(ii) What order ?
15. The detailed narration of facts and contentions would not call for reiteration except to emphasis the fact that in the instant case, the provisions of the LA Act, 1894, were invoked by the State for the purpose of acquiring inter alia, the land in question for the benefit of appellant- Society by issuance of notification under Section 4(1) of the Act on 30.05.1983 followed by declaration and final notification issued under Section 6(1) of the Act on 01.06.1985. There is no dispute that the award was passed on 10.06.1987. Thereafter, notice under Section 12(2) of the LA Act, 1894 was issued. A copy of the same has been produced as Annexure-R5 to the statement of objections. We have perused the same. On perusal of the same, we find that there is an endorsement on the reverse side of the notice to the effect the said notice has been refused. Therefore, whether the conditions stipulated
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under Section 24(2) of the Act of 2013 would apply in the instance case has to be determined. Prior to that, it would be useful to refer to Section 24 of the Act of 2013, which reads as under:
"Section 24. Land acquisition process under Act No. 1 of 1984 shall be deemed to have lapsed in certain cases.
(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.
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2) Notwithstanding anything contained in sub- section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."
16. In the instant case, reliance has been placed on Section 24(2) of the Act of 2013 by respondent Nos.1 to 4.
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A reading of the same would indicate that it begins with a non-obstante clause. In case where acquisition proceedings are initiated under the provisions of LA Act, 1894 and the award under Section 11 has been made five years or more prior to the commencement of Act of 2013, which is dated 01.01.2014, but 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 the Act of 2013. The proviso would also state that where the award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the LA Act, 1894, shall be entitled to compensation in accordance with the provisions of the Act of 2013. In the instant case, the proviso does not apply.
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17. However, emphasis was made by learned Senior Counsel for respondent Nos.1 to 4 on the conditions stipulated under Section 24(2) of the Act of 2013. While considering the same, at the out set, we may note that in the instant case, acquisition had been initiated under the provisions of the LA Act, 1894, by issuance of the notifications dated 30.05.1983 under Section 4(1) and dated 01.06.1985 under Section 6(1) of the LA Act, 1894. There is no dispute that the award was made on 10.06.1987, a copy of which is at Annexure-C to writ petitions, which has been produced by the writ petitioners/respondent Ns.1 to 4 herein. As per Anenxure- R5, notice under section 12(2) of the LA Act, 1894 was issued to Sri Lakshmaiah, the notified khatedar. On perusal of the same, it is noticed that there was refusal to accept the said notice. In this context, it would be useful to refer to Sections 31 and 45 of LA Act, 1894.
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18. Section 31 of the LA Act, 1894, deals with Payment of compensation or deposit of same in Court. It reads as under:
"Section 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:
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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 [appropriate Government] instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interest 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
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the land and competent to contract in respect thereof."
Section 45 of the LA Act, 1894, deals with service of notices. The said section is as per Karnataka State Amendment, which reads as under:
"Section 45: Service of notices. --
(1) Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed in the case of a notice under section 4, by the officer therein mentioned, and in the case of any other notice, by an order of the Collector or the Judge.
(2) Whenever it may be practicable, the service of the notice shall be made on the person therein named.
(3) When such person cannot be found, the service may be made on any adult male member of his family residing with him; and if no such adult male member can be found, the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business or by fixing a copy thereof in some
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conspicuous place in the office of the officer aforesaid or of the Collector or in the court- house, and also in some conspicuous part of the land to be acquired:
Provided that if the Collector or Judge shall so direct, a notice may be sent by post, in a letter addressed to the person named therein at his last known residence, address or place of business and [registered under sections 28 and 29 of the Indian Post Office Act, 1898 (6 of 1898)], and service of it may be proved by the production of the addressee's receipt."
19. Section 31 of Karnataka State Amendment substitutes the words 'Deputy Commissioner' for the word 'Collector'. The said provision would have to be read in juxtaposition with Section 24(2) of the Act of 2013. In order to ascertain, firstly, as to whether the physical possession of the land in question has not been taken in the instant case, reliance is placed on the notification issued under Section 16(2) of the LA Act, 1894. The said Section has been amended by the Karnataka State
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Amendment by insertion of Sub-section (2) thereof, which reads as under:
"Section 16: Power to take possession - When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon [vest absolutely in the [Government]], free from all encumbrances.
STATE AMENDMENT Karnataka -- (1) In section 16, for the word "Collector", substitute the words "Deputy Commissioner"; and (2) Section 16 renumbered as sub-
section (1) thereof, and after sub-section, (1), so renumbered, add the following sub-section, namely:
(2) The fact of such taking possession may be notified by Deputy Commissioner in the Official Gazette; and such notification shall be evidence of such fact".
20. In the instant case, the fact of possession of the land in question being taken was notified by way of notification in the official gazette which would mean that it
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is the evidence of the fact of taking possession. When possession of land in question was taken on passing of award under Section 11, it would mean that it has vested in the Government free from all encumbrances. Thus, it is held that in the instant case, possession of the land in question has been taken by the State Government. There is no contra evidence on record produced by respondent Nos.1 to 4 on this aspect of the matter. Further, the appellant society who was handed over possession of the acquired land, has relinquished certain portions of the acquired land in favour of the BDA. The BDA may have also allotted the said portions to third party allotees.
21. As far as the second condition stipulated in Section 24(2) of the Act of 2013 is concerned, the expression 'paid' which finds a place in the main section and the word "deposit" which occurs in the proviso thereto have been interpreted by the Hon'ble Supreme Court in the recent judgment in the case of Indore Development Authority.
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22. Before going to the relevant paragraphs of the said judgment, it would be useful to have a bird's eye view of the same in the form of questions raised for consideration and conclusions arrived at by Hon'ble Supreme Court in the said judgment by extracting relevant paragraphs thereof. The same are extracted as under for immediate reference:
"4.... These batch appeals were referred to a five Judge Bench, which after hearing counsel, framed the following questions, which arise for consideration:
1. What is the meaning of the expression paid'/tender' in Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act of 2013') and Section 31 of the Land Acquisition Act, LA(Act of 1894')? Whether non-deposit of compensation in court under section 31(2) of the Act of 1894 results into lapse of acquisition under section 24(2) of the Act of 2013. What are the consequences
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of non-deposit in Court especially when compensation has been tendered and refused under section 31(1) of the Act of 1894and section 24(2) of the Act of 2013? Whether such persons after refusal can take advantage of their wrong/conduct?
2. Whether the word or' should be read as conjunctive or disjunctive in Section 24(2) of the Act of 2013?
3. What is the true effect of the proviso, does it form part of sub-Section (2) or main Section 24 of the Act of 2013?
4. What is mode of taking possession under the Land Acquisition Act and true meaning of expression the physical possession of the land has not been taken occurring in Section 24(2) of the Act of 2013?
5. Whether the period covered by an interim order of a Court concerning land acquisition proceedings ought to be excluded for the purpose of applicability of Section 24(2) of the Act of 2013 ?
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6. Whether Section 24 of the Act of 2013 revives barred and stale claims? In addition, question of per incuriam and other incidental questions also to be gone into.
5. Question Nos.1 to 3 are interconnected and concern the correct interpretation of Section 24(2) of the Act of 2013. Following questions are required to be gone into to interpret the provisions of Section 24(2) of the Act of 2013:
(i) Whether the word "or" in Section 24(2) of the Act of 2013 used in between possession has not been taken or compensation has not been paid to be read as "and"?
(ii) Whether proviso to Section 24(2) of the Act of 2013 has to be construed as part thereof or proviso to Section 24(1)(b)?
(iii) What meaning is to be given to the word "paid" used in Section 24(2) and "deposited" used in the proviso to Section 24(2)?
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(iv) What are the consequences of
payment not made?
(v) What are the consequences of the
amount not deposited?
(vi) What is the effect of a person
refusing to accept the compensation?
x x x
363. In view of the aforesaid discussion, we answer the questions as under:
1. Under the provisions of Section 24(1)(a) in case the award is not made as on 01.01.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.
2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed.
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3. The word 'or' used in Section 24(2) between possession and compensation has to be read as 'nor' or as 'and'. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.
4.The expression 'paid' in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act
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of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894.
5. In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.
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6.The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b).
7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2).
8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 01.01.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.
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9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 01.01.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition." On reading of the conclusions, what is stated in sub- paras 3, 4 and 5 are relevant for the purpose of this case.
23. The reasoning of the Hon'ble Supreme Court in various paragraphs of the judgment in Indore Development Authority could be summarized as under:
a) According to the Hon'ble Supreme Court, Section 24 begins with a non-obstante clause, overriding
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all other provisions of the Act of 2013 including Section 114 thereof dealing with repeal and saving.
b) Section 24(1)(a) of the Act of 2013 read with the non-obstante clause provides that in case of proceedings initiated under the Act of 1894, the award had not been made under Section 11, then the provisions of the Act of 2013, relating to the determination of compensation would apply. However, the proceedings held earlier do not lapse. In terms of Section 24(1)(b), of the Act of 2013, where award under Section 11 is made, then such proceedings shall continue under the provisions of the Act of 1894. It contemplates that such pending proceedings, as on the date on which the Act of 2013 came into force shall continue, and taken to their logical end. However, the exception to Section 24(1)(b) is provided in Section 24(2) in case of pending proceedings; in case where the award has been passed five years or more prior to the commencement of the Act of 2013, the physical possession of the land has not been taken, or the
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compensation has not been paid, the proceedings shall be deemed to have lapsed, and such proceedings cannot continue as per the provisions of Section 24(1)(b) of the Act of 2013.
In terms of Section 114 of the Act of 2013, the general application of Section 6 of the General Clauses Act, 1897, except otherwise provided in the Act, has been saved. Section 6(a) of the General Clauses Act, 1897 provides that unless a different intention appears, the repeal shall not revive anything not in force or existing at the time when the repeal has been made. The effect of the previous operation of any enactment so repealed or anything duly done or suffered thereunder is also saved by the provisions contained in Section 6(b). As per Section 6(c), the repeal shall not affect any right, privilege, obligation or liability acquired, accrued, or incurred.
c) Section 24(2) carves out an exception to Section 24(1)(b), where the award has been passed, and the proceedings are pending, but in such proceedings,
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physical possession of the land has not been taken, or compensation has not been paid, proceedings shall lapse. There are twin requirements for the lapse; firstly, physical possession has not been taken and, secondly, compensation has not been paid. In case, possession has been taken but compensation has not been paid, there is no lapse of the proceedings. The question which is to be decided is whether the conditions are cumulative, i.e both are to be fulfilled, for lapsing of acquisition proceedings, or the conditions are in the alternative ("either/or").
d) Reliance was placed on rules of Statutory Interpretation and "Principles of Statutory Interpretation"
(14th Edition) by Justice G.P. Singh, on positive and negative conditions prescribed by a statute.
"...Speaking generally, a distinction may be made between positive and negative conditions prescribed by a statute for acquiring a right or benefit. Positive conditions separated by 'or' are read in the alternative but negative conditions connected by 'or' are construed as cumulative and 'or' is read as 'nor' or 'and'."
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x x x Applying the same, it was observed by the Hon'ble Supreme Court, as regards the collation of the words used in Section 24(2), two negative conditions have been prescribed. Thus, even if one condition is satisfied, there is no lapse, and this logically flows from the Act of 1894 read with the provisions of Section 24 of the Act of 2013. Also, any other interpretation would entail illogical results.
e) According to the Hon'ble Supreme Court, Section 24(2) of the Act of 2013 is, a penal provision - to punish the acquiring authority for its lethargy in not taking physical possession nor paying the compensation after making the award five years or more before the commencement of the Act of 2013 in pending proceedings, providing that they would lapse. The expression, "where an award has been made, then the proceedings shall continue", used in Section 24(1)(b) under the provisions of the Act of 1894 means that proceedings were pending in praesenti as on the date of enforcement of the Act of 2013
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are not concluded proceedings, and in that context, an exception has been carved out in section 24(2). Even if possession has been taken, despite which payment has not been made nor deposited, (for the majority of the land- holdings), then all beneficiaries holding land on the date of notification under Section 4 of the Act of 1894, are to be paid compensation under the provisions of the Act of 2013. Section 24 of the Act of 2013 frowns upon indolence and stupor of the authorities.
Thus, the expression "possession of the land has not been taken" or "compensation has not been paid" indicates a failure on the part of the authorities to take the necessary steps for five years or more in a pending proceeding under Section 24(1)(b). Section 24(2) starts with a non-obstante clause overriding what is contained in Section 24(1). Thus, Section 24(2) has to be read as an exception to Section 24(1)(b). Similarly, the proviso has to be read as a proviso to Section 24(2) for the several reasons discussed in the said judgment. According to the
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Hon'ble Supreme Court, Parliament enacted a beneficial provision in case authorities delayed in taking of the possession for more than five years nor paid compensation, meaning thereby acquisition has not been completed. Section 24(2) clearly contemplates inaction on the part of the authorities not as a result of the dilatory tactics and conduct of the landowners or other interested persons.
f) According to the Hon'ble Supreme Court, there are other reasons to read the word 'or' in Section 24 as 'and', when the scheme of the Act of 1894 is considered, once the award was made under Section 11, the Collector may, undertake possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances. Section 16 of the Act of 1894 enables the Collector to take possession of acquired land, when an award is made under Section 11. It is apparent from a plain reading of Section 16 (of the Act of 1894) that the land vests in the Government absolutely when possession
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is taken after the award is passed. Thus, there can be lapse of proceedings under the Act of 1894 only when possession is not taken. The provisions in Section 11A of the Act of 1894 states that the Collector shall make an award within a period of two years from the date of the publication of the declaration under Section 6 and if no award is made within two years, the entire proceedings for acquisition of the land shall lapse. The period of two year excludes any period during which interim order granted by the Court was in operation. Once an award is made and possession is taken, by virtue of Section 16, land vests absolutely in the State, free from all encumbrances. Vesting of land is automatic on the happening of the two exigencies of passing award and taking possession, as provided in Section 16. Once possession is taken under Section 16 of the Act of 1894, the owner of the land loses title to it, and the Government becomes the absolute owner of the land.
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g) It is further observed by the Hon'ble Supreme Court that, payment of compensation under the Act of 1894 is provided for by Section 31 of the Act, which is after passing of the award under Section 11. The exception, as in case of urgency under Section 17, is where it has to be tendered before taking possession. Once an award has been passed, the Collector is bound to tender the payment of compensation to the persons interested entitled to it, as found in the award and shall pay it to them unless "prevented" by the contingencies mentioned in sub-section (2) of Section 31. Section 31(2) provides for deposit of compensation in Court in case State is prevented from making payment in the event of (i) refusal to receive it; (ii) if there be no person competent to alienate the land; (iii) if there is any dispute as to the title to receive the compensation; or (iv) if there is dispute as to the apportionment. In such exigencies, the Collector shall deposit the amount of the compensation in the court to which a reference under Section 18 would be submitted.
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h) Section 34 deals with a situation where any of the obligations under Section 31 is not fulfilled, i.e., when the amount of compensation is not paid or deposited before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of 9% per annum from the time of so taking possession until it shall have been so paid or deposited; and after one year from the date on which possession is taken, interest payable shall be at the rate of 15% per annum.
The scheme of the Act of 1894 clearly makes it out that when the award is passed under Section 11, thereafter possession is taken as provided under Section 16, land vests in the State Government. Under Section 12(2), a notice of the award has to be issued by the Collector. Taking possession is not dependent upon payment. Payment has to be tendered under Section 31 unless the Collector is "prevented from making payment,"
as provided under Section 31(2). In case of failure under Section 31(1) or 31(3), also Collector is not precluded
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from making payment, but it carries interest under Section 34 at the rate of 9% for the first year from the date it ought to have been paid or deposited and thereafter at the rate of 15%. Thus, once land has vested in the State under Section 16, in case of failure to pay the compensation under Section 31(1) to deposit under Section 31(2), compensation has to be paid along with interest, and due to non- compliance of Section 31, there is no lapse of acquisition. The same spirit has been carried forward in the Act of 2013 by providing in Section 24(2). Once possession has been taken, though the payment has not been made, the compensation has to be paid along with interest as envisaged under Section 34, and in a case, payment has been made, possession has not been taken, there is no lapse under Section 24(2). In a case where possession has been taken under the Act of 1894 as provided by Section 16 or 17(1), the land vests absolutely in the State, free from all encumbrances, if compensation is not paid, there is no divesting, there will be no lapse as compensation
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carries interest at the rate of 9% or at the rate of 15% as envisaged under Section 34 of the Act of 1894.
Proviso to Section 24(2) makes some wholesome provision in case the amount has not been deposited with respect to majority of landholdings, in such an event, not only those persons but all the beneficiaries, though for minority of holding compensation has been paid, shall be entitled to higher compensation in accordance with the provisions of the Act of 2013. The expression used is "all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act", i.e., Act of 1894, means that the persons who are to be paid higher compensation are those who have been recorded as beneficiaries as on the date of notification under Section 4.
The proviso gives effect to, and furthers the principle that under the Act of 1894, the purchases made after issuance of notification under Section 4 are void. As such, the benefit of higher compensation under the proviso to Section 24(2) is intended to be given to the beneficiaries
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mentioned in the notification under Section 4 of the Act of 1894.
i) From the above reasoning, it is apparent from the Act of 1894 that the payment of compensation is dealt with in Part V, whereas acquisition is dealt with in Part II.
Payment of compensation is not made pre-condition for taking possession under Section 16 or under Section 31 read with Section 34. Possession can be taken before tendering the amount except in the case of urgency, and deposit (of the amount) has to follow in case the Collector is prevented from making payment in exigencies as provided in Section 31(3). What follows is that in the event of not fulfilling the obligation to pay or to deposit under Section 31(1) and 31(2), the Act of 1894 did not provide for lapse of land acquisition proceedings, and only increased interest follows with payment of compensation.
j) According to the Hon'ble Supreme Court, the provision for lapsing under Section 24 is available only when the award has been made, but possession has not
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been taken within five years, nor compensation has been paid. In case word 'or' is read disjunctively, proceedings shall lapse even after possession has been taken in order to prevent lapse of land acquisition proceedings, once the land has vested in the Government and in most cases, development has already been made. The expressions used in Section 24(2) "possession of the land has not been taken" and "the compensation has not been paid" are unrelated and carry different consequences under the Act of 1894. These conditions are merely exclusive conditions and cannot be used as alternative conditions. There is a catena of cases where compensation has been paid, but possession has not been taken due to one reason or the other for no fault of authorities or otherwise, and there are cases where possession is taken, but compensation has not been paid.
k) Thus, the main question considered was whether, under the scheme of Section 24, the proviso is treated as part of Section 24(1)(b) or it is part of the
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exception carved out in Section 24(2) particularly in view of the fact that the word 'or' has been interpreted as 'and.' The question that came up for consideration was whether 'or' in two negative conditions in Section 24(2) has to be read conjunctively or disjunctively. According to the Hon'ble Supreme Court, when the word "or" is read as 'and' in the main part of Section 24(2), it is clear that the proviso has to stay as part of Section 24(2) where it has been placed by the legislature. If 'or' used in-between two negative conditions of 'possession has not been taken' or 'compensation has not been paid,' disjunctively, in that case, the proviso cannot be operative and would become otiose and would make no sense as part of Section 24(2). In case of amount not having been paid, the acquisition has to lapse, though possession of the land has been taken would not be the proper interpretation of the main part as mentioned above, when "or" is read conjunctively, Section 24(2) provided for lapse in a case where possession has not been taken, nor compensation has been paid, in such a case proviso becomes operative in given exigency of not
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depositing amount with respect to majority of landholdings.
l) Thus, a reading of Section 24(2) shows that in case possession has been taken even if the compensation has not been paid, the proceedings shall not lapse. In case payment has not been made nor deposited with respect to the majority of the holdings in the accounts of the beneficiaries, then all the beneficiaries specified in the notification under Section 4 of the Act of 1894 shall get the enhanced compensation under the provisions of the Act of 2013. According to the Hon'ble Supreme Court, Section 24(2) not only deals with failure to take physical possession but also failure to make payment of compensation. If both things have not been done, there is lapse of the acquisition proceeding. But, where payment has been made though possession has not been taken or payment has been made to some of the persons but not to all, and it has also not been deposited as envisaged in the proviso, in that event all beneficiaries (under the same
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award) shall get higher compensation. This is because once possession is been taken, there can be no lapse of the proceedings, and higher compensation is intended on failure to deposit the compensation. Once an award has been passed and possession has been taken, there is absolute vesting of the land, as such higher compensation follows under the proviso, which is beneficial to holders. Thus, in a case where both the negative conditions have not been fulfilled, as mentioned in Section 24(2), there is a lapse. Thus, the proviso, is, in fact, a part of Section 24(2); it fits in the context of Section 24(2) as deposit is related with the payment of compensation and lapse is provided due to non-payment along with not taking possession for five years or more whereas for non-deposit higher compensation is provided. Thus, when one of the conditions has been satisfied, in case payment has been made, or possession has not been taken, there is no lapse of the proceedings as both the negative conditions must co-exist.
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m) Thus, where an award has been passed under Section 11 of the Act of 1894, then such proceedings shall continue under the provisions of the said Act as if it has not been repealed. The only exception carved out is the period of five years or more and that too by providing a non-obstante clause in Section 24(2) to anything contained in Section 24(1). The non obstante clause qualifies the proviso also to Section 24(2). It has to be read as part of Section 24(2) as it is an exception to Section 24(1)(b). According to the judgment of the Supreme Court, Section 24(1)(b) is a self-contained provision, and is also a part of the non-obstante clause to the other provisions of the Act as provided in Sub-section (1). Parliament worked out an exception, by providing a non obstante clause in Section 24(2) to Section 24(1). Compensation is to be paid under Section 24(1)(b) under the Act of 1894 and not under the Act of 2013. As such Section 24(2) is an exception to Section 24(1)(B) and the proviso is also an exception which fits in with non-obstante clause of Section 24(2) only. Any other interpretation will be derogatory to the
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provisions contained in Section 24(1)(b) which provides that the pending proceedings shall continue under the Act of 1894 as if it had not been repealed, that would include the part relating to compensation too. Even if there is no lapse of proceedings under Section 24(1)(A), only higher compensation follows under Section 24(1)(a). Section 24(2) deals with the award having been made five years or before the commencement of the new Act. The legislative history also indicates that it was intended that five years' period should be adequate to make payment of compensation and to take possession. In that spirit, the proviso has been carved out as part of Section 24(2).
Further, it was observed that, when Parliament has placed it at a particular place, by a process of reasoning, there can be no lifting and relocation of the provision. To bodily lift, it would be an impermissible exercise. Unless it produces absurd results and does not fit in the scheme of the Act and the provisions to which it is attached such an interpretation, doing violence to the express provision, is
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not a legitimate interpretative exercise. There is no need to add it as the proviso to Section 24(1)(b), as it has not been done by the legislature, and it makes sense where it has been placed. It need not be lifted.
n) The proviso relates to the non-payment. Compensation is deposited when the Collector is prevented from making payment. It is the obligation made under Section 31(1) to tender the amount and pay unless prevented by the contingencies specified in Section 31(2). Thus, the deposit has a co-relation with the expression "payment has not been made," and the proviso makes sense with Section 24(2) only. In case of non-payment or prevention from payment, compensation is required to be deposited, as the case may be, in the Reference Court or otherwise in Treasury, if permissible.
o) The proviso uses the expression that the amount is to be deposited in the account of beneficiaries. Earlier, under the Act of 1894, there was no such provision for depositing the amount in the bank account of
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beneficiaries but the method which was used as per the forms which were prescribed to deposit the amount, it was credited to the Reference Court or in the Treasury in the names of the beneficiaries and as against the award. It was not a separate account but an account of the Reference Court or set apart in the treasury. The proviso has to be interpreted and given the meaning with Section 24(2) as an amount was required to be paid and on being prevented had to be deposited as envisaged under the Act of 1894.
p) If we hold that even if the award has been passed within five years and the compensation amount has not been deposited with respect to such an award passed in the window period, higher compensation to follow if it is not deposited with respect to the majority of the holdings would amount to re-writing the statute. The provision of Section 24(1)(A) is clear if an award has not been passed, higher compensation to follow. No lapse is provided. In case award has been passed within the window period of
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Section 24(1)(B), inter alia, the provisions for compensation would be that of the Act of 1894. The only exception to Section 24(1) is created by the non-obstante clause in Section 24(2) by providing that in case the requisite steps have not been taken for five years or more, then there is lapse as a negative condition. The proviso contemplates higher compensation, in case compensation has not been paid, and the amount has not been deposited with respect to the majority of the holdings, to all the beneficiaries under the Act of 2013, who were holding land on the date of notification under Section 4.
q) It is in the cases where there is no lapse under Section 24(2) if either step has been taken, proviso operates to provide higher compensation. In the cases where possession has been taken, but the amount has not been deposited as required under the proviso, higher compensation to all the beneficiaries has to follow as once possession has been taken, the land is vested in the State and payment is necessary for any acquisition. As such,
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Parliament has provided in such cases higher compensation to follow as envisaged in the proviso to Section 24(2). Lapse of acquisition is provided only in the exigencies where possession has not been taken, nor compensation has been paid in the proceedings for acquisition pending as on the date on which the Act of 2013 came into force, then the State Government has to initiate fresh proceedings, if it so desires. The proviso is part of the scheme of Section 24(2), and the entire provision of Section 24(2), including the proviso, operates when inaction is there for a period of five years or more, as contemplated therein.
r) The Hon'ble Supreme Court then considered questions like what is the consequence of payment not being made under Section 31(1) and what are the consequences of amount not deposited under Section 31(2). The provision of Section 24(2) provides for consequences when compensation has not been paid where award has been made five years or more prior to
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the commencement of the Act of 2013. In contradistinction to that, the proviso uses the expression "an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries". According to the Hon'ble Supreme Court, it was necessary to find out when an amount is required to be deposited under the Act of 1894 and how the payment is made under the Act of 1894. The provisions of Section 31 of the Act of 1894 are attracted to the interpretation of provisions of Section 24(2) to find out the meaning of the words 'paid' and 'deposited'. Section 31(1) makes it clear that on passing of award compensation has to be tendered to the beneficiaries and Collector shall pay it to them. The payment is provided only in Section 31(1). The expression 'tender' and pay to them in Section 31(1) cannot include the term 'deposited.' The discussion of the point can better understood from the following extraction from this judgment itself:
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"199. Section 31(2) of the Act of 1894 deals with deposit in case Collector is 'prevented' from making payment by one or more contingencies mentioned in Section 31(2). The deposit follows if the Collector is prevented from making payment. In case Collector is prevented from making payment due to contingencies such refusal to receive the amount, or if there be no person competent to alienate the land, or if there is a dispute as to the title to receive the compensation or as to the apportionment of it, he (i.e. the Collector) may withhold it or in case there is dispute as to apportionment, he may ask the parties to get a decision from the Reference Court i.e., civil court and to clear the title. In such exigencies, the amount of compensation is required to be deposited in the court to which reference would be submitted under Section 18. Section 31(2) requires deposit in case of reference under Section 18 and not the reference, which may be sought under Section 30 or Section 28A of the Act of 1894.
200. Section 24(2) deals with the expression where compensation has not been paid. It would mean that it has not been tendered
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for payment under Section 31(1). Though the word 'paid' amounts to a completed event however once payment of compensation has been offered/tendered under Section 31(1), the acquiring authority cannot be penalized for non- payment as the amount has remained unpaid due to refusal to accept, by the landowner and Collector is prevented from making the payment. Thus, the word 'paid' used in Section 24(2) cannot be said to include within its ken 'deposit' under Section 31(2). For that special provision has been carved out in the proviso to Section 24(2), which deals with the amount to be deposited in the account of beneficiaries. Two different expressions have been used in Section
24. In the main part of Section 24, the word 'paid' and in its proviso 'deposited' have been used.
201. The consequence of non-deposit of the amount has been dealt with in Section 34 of the Act of 1894. As per Section 24(2), if the amount has not been paid nor possession has been taken, it provides for lapse. Whereas the proviso indicates amount has not been deposited with respect to a majority of land holdings in a case initiated under the Act of 1894 for 5 years or
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more. The period of five years need not have been specified in the proviso as it is part of Section 24(2) and has to be read with it, particularly in view of the colon and placement by the legislature as held above. Two different consequences of non-deposit of compensation are: (i) higher compensation in a case where possession has been taken, payment has been made to some and amount has not been deposited with respect to majority of the holdings,
(ii) in case there is no lapse, the beneficiaries would be entitled to interest as envisaged under Section 34 from the date of taking possession at the rate of 9% per annum for the first year and after that @ 15% per annum.
202. The word "paid" has been defined in the Oxford Dictionary to mean thus:
"paid past and past participle of pay"; Give a sum of money thus owned." Cambridge English Dictionary, defines "paid" as follows:
"being given money for something."
P. Ramanatha Aiyar's Advance Law Lexicon, 3rd Edition, 2005, uses the following definition of "paid":
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"applied; settled: satisfied."
203. The word "paid" in Section 31(1) to the landowner cannot include in its ambit the expression "deposited" in court. Deposit cannot be said to be payment made to landowners. Deposit is on being prevented from payment. However, in case there is a tender of the amount that is to mean amount is made available to the landowner that would be a discharge of the obligation to make the payment and in that event such a person cannot be penalised for the default in making the payment. In default to deposit in court, the liability is to make the payment of interest under Section 34 of Act of 1894. Sections 32 and 33 (which had been relied upon by the landowners' counsel to say that valuable rights inhere, in the event of deposit with court, thus making deposit under Section 31 mandatory) provide for investing amounts in the Government securities, or seeking alternative lands, in lieu of compensation, etc. Such deposits, cannot fetch higher interest than the 15 per cent contemplated under Section 34, which is pari materia to Section 80 of Act of 2013. Section 34 is pari materia to Section 80 of Act of 2013 in which also the similar
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rate of interest has been specified. Even if the amount is not deposited in Reference Court nor with the treasury as against the name of the person interested who is entitled to receive it, if Collector has been prevented to make the payment due to exigencies provided in Section 31(2), interest to be paid. However, in case the deposit is made without tendering it to the person interested, the liability to pay the interest under Section 34, shall continue. Even assuming deposit in the Reference Court is taken to be mandatory, in that case too interest has to follow as specified in Section 34. However, acquisition proceeding cannot lapse due to non-deposit.
204. The concept of "deposit" is different and quite apart from the word "paid", due to which, lapse is provided in Section 24 of Act of 2013. In the case of non-deposit for the majority of landholdings, higher compensation would follow as such word "paid" cannot include in its ambit word "deposited". To hold otherwise would be contrary to provisions contained in Section 24(2) and its proviso carrying different consequences. It is provided in Section 34 of Act of 1894, in case payment has not been tendered or paid, nor
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deposited the interest has to be paid as specified therein. In Section 24(2) also lapse is provided in case amount has not been paid and possession has not been taken.
205. In our considered opinion, there is a breach of obligation to deposit even if it is taken that amount to be deposited in the reference court in exigencies being prevented from payment as provided in Section 31(2). The default will not have the effect of reopening the concluded proceedings. The legal position and consequence which prevailed from 1893 till 2013 on failure to deposit was only the liability for interest and all those transactions were never sought to be invalidated by the provisions contained in Section
24. It is only in the case where in a pending proceeding for a period of five years or more, the steps have not been taken for taking possession and for payment of compensation, then there is a lapse under Section 24(2). In case amount has not been deposited with respect to majority of land holdings, higher compensation has to follow. Both lapse and higher compensation are qualified with the condition of period of 5 years or more.
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206. It was submitted that mere tender of amount is not payment. The amount has to be actually paid. In our opinion, when amount has been tendered, the obligation has been fulfilled by the Collector. Landowners cannot be forced to receive it. In case a person has not accepted the amount wants to take the advantage of non- payment, though the amount has remained due to his own act. It is not open to him to contend that amount has not been paid to him, as such, there should be lapse of the proceedings. Even in a case when offer for payment has been made but not deposited, liability to pay amount along with interest subsist and if not deposited for majority of holding, for that adequate provisions have been given in the proviso also to Section 24(2). The scheme of the Act of 2013 in Sections 77 and 80 is also the same as that provided in Sections 31 and 34 of the Act of 1894.
207. It was urged that landowners can seek investment in an interest bearing account, there is no doubt about that investment can be sought from the court under Sections 32 and 33 of Act of 1894, but interest in Government securities is not more than what is provided in Section 34 at the
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rate of 9 percent from the date of taking possession for one year and thereafter, at the rate of 15 percent. We take judicial notice of the fact in no other Government security rate of interest is higher on the amount being invested under Sections 32 and 33 of the Act of 1894. Higher rate of interest is available under Section 34 to the advantage of landowners. It was submitted that in case the amount is deposited in the court, it is on behalf of the beneficiary. The submission overlooks the form in which it used to be deposited in the treasury too, that amount is also credited in the treasury payable to the beneficiary specified in his name with land details, date of award, etc.
208. There is another reason why this court holds that such an interpretation is reasonable and in tune with Parliamentary intent. Under the old regime, it was open to the Collector to fix a convenient date or dates for announcement of award, and tender payment. In the event of refusal by the landowner to receive, or in other cases, such as absence of the true owner, or in case of dispute as to who was to receive it, no doubt, the statute provided that the amount was
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to be deposited with the court: as it does today, under Section 77. Yet, neither during the time when the Act of 1894 was in operation, nor under the Act of 2013, the entire acquisition does not lapse for non-deposit of the compensation amount in court. This is a significant aspect which none of the previous decisions have noticed. Thus, it would be incorrect to imply that failure to deposit compensation [in court, under Section 31 (2)] would entail lapse, if the amounts have not been paid for five years or more prior to the coming into force of the Act of 2013. Such an interpretation would lead to retrospective operation, of a provision, and the nullification of acquisition proceedings, long completed, by imposition of a norm or standard, and its application for a time when it did not exist.
209. If the expression "deposited" is held to be included in the expression "paid" used in Section 24(2) of the Act of 2013, inconsistency and repugnancy would be caused as between the proviso and the main sub-section, which has to be avoided and the non-compliance of the provisions of Section 31(2) is not fatal. Even if the amount
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has not been deposited, higher compensation has to follow in the exigency proviso to Section 24(2).
x x x
215. Two different expressions have been used in Section 24(2). The expression "paid" has been used in Section 24(2) and whereas in the proviso "deposited" has been used. "Paid" cannot include "deposit", or else Parliament would have used different expressions in the main sub-section and its proviso, if the meaning were to be the same. The Court cannot add or subtract any word in the statute and has to give plain and literal meaning and when compensation has not been paid under Section 24(2), it cannot mean compensation has not been deposited as used in the proviso. While interpreting the statutory provisions, addition or subtraction in the legislation is not permissible. It is not open to the court to either add or subtract a word. There cannot be any departure from the words of law, as observed in legal maxim "A Verbis Legis Non Est Recedendum". In Principles of Statutory Interpretation (14th Edition) by Justice G.P.Singh, plethora of decisions have been referred. There is a conscious omission of the word "deposit" in
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Section 24(2), which has been used in the proviso. Parliament cannot be said to have used the different words carrying the same meaning in the same provision, whereas words "paid" and "deposited" carry a totally different meaning. Payment is actually made to the landowner and deposit is made in the court, that is not the payment made to the landowner. It may be discharge of liability of payment of interest and not more than that. Applying the rule of literal construction also natural, ordinary and popular meaning of the words "paid" and "deposited" do not carry the same meaning; the natural and grammatical meaning has to be given to them.
x x x
224. Thus, in our opinion, the word "paid" used in Section 24(2) does not include within its meaning the word "deposited", which has been used in the proviso to Section 24(2). Section 31 of the Act of 1894, deals with the deposit as envisaged in Section 31(2) on being 'prevented' from making the payment even if the amount has been deposited in the treasury under the Rules framed under Section 55 or under the Standing Orders, that would carry the interest as envisaged
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under Section 34, but acquisition would not lapse on such deposit being made in the treasury. In case amount has been tendered and the landowner has refused to receive it, it cannot be said that the liability arising from non-payment of the amount is that of lapse of acquisition. Interest would follow in such a case also due to non- deposit of the amount. Equally, when the landowner does not accept the amount, but seeks a reference for higher compensation, there can be no question of such individual stating that he was not paid the amount (he was determined to be entitled to by the collector). In such case, the landowner would be entitled to the compensation determined by the Reference court.
x x x
227. In the State of Karnataka too similar rules were framed in 1965 under Section 55 of the Act of 1894. Similarly, in the State of Kerala also Rule 14(2) of the Land Acquisition (Kerala) Rules, 1990 were framed under Section 55 of the Act of 1894, provided that payment relating to award shall be made or the amount shall be credited to the court or revenue deposit (treasury) within one month from the date of the
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award. Similar rules were framed in the State of Bihar and Orissa.
228. Standing Order No.28 was issued in 1909 by the State of Punjab and was applicable to Delhi also, which provided five modes of payment in paragraphs 74 and 75 thus:
"74. Methods of making payments.--There are five methods of making payments:
(1) By direct payments, see Para 75(I) infra (2) By order on treasury, see Para 75(II) infra (3) By money order, see Para 75(III) infra (4) By cheque, see Para 75(IV) infra (5) By deposit in a treasury, see Para 75(V) infra
75. Direct payments.-- * * * (V) By treasury deposit.-- In giving notice of the award under Section 12(2) and tendering payment under Section 31(1) to such of the persons interested as were not present personally or by their representatives when the award was made, the officer shall require them to appear personally or by representatives by a
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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 deposits 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. When the payees ultimately claim payment of sums placed in deposit, the amounts will be paid to them in the same manner as ordinary revenue deposit. The officer should, as far as possible, arrange to make the payments due in or near the village to which the payee belong in order that the number of undisbursed sums to be placed in deposits on account of non-
attendance may be reduced to a minimum. Whenever payment is claimed through a
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representative whether before or after deposit of the amount awarded, such
representative, must have legal authority for receiving the compensation on behalf of his principal."
Sub-para (V) of the above made it clear that payment is credited to the treasury when a person who is served with a notice under Section 12(2) of the Act of 1894, is not present and the award is passed. When a notice is given to receive the payment of compensation and in case they fail to appear, the amount has to be paid to the treasury as revenue deposit payable to the landowner.
229. Rules and the Standing Orders are binding on the concerned Authorities and they have to follow them. They deposit the amounts in court only when a reference (for higher compensation) is sought, not otherwise. Even if a person refuses to accept it and the amount is deposited in court or even it is not tendered, only higher interest follows under Section 34. Once Rules have prevailed since long and even if it is assumed that deposit in court is mandatory on
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being prevented from payment as envisaged under Section 31(1), the only liability to make the payment of higher interest is fastened upon the State. The liability to pay the amount with interest would subsist. When amounts are deposited in court, there would occur a procedural irregularity and the adverse consequence envisaged is under Section 34 of the Act of 1894. The consequence of non-deposit in the court is that the amount of the landowner cannot be invested in the Government securities as envisaged under Sections 32 and 33 of the Act of 1894, in which interest is not more 15 per cent. Thus, no prejudice is caused to the landowners rather they stand to gain and still payment is safe as it is kept in the court. We have already held that there is a distinction between the expression "paid" and "deposited", thus the amount being deposited as per Rules in the treasury or as per the Standing Orders considering the scheme of Section 31 read with Section 34 of the Act of 1894, which are pari materia to Sections 77 and 80 of the Act of 2013. We are of the considered opinion that acquisition cannot be invalidated, only higher compensation would follow in case amount has not been deposited with respect to
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majority of land holdings, all the beneficiaries would be entitled for higher compensation as envisaged in the proviso to Section 24(2).
230. Deposit in treasury in place of deposit in court causes no prejudice to the landowner or any other stakeholder as their interest is adequately safeguarded by the provisions contained in Section 34 of the Act of 1894, as it ensures higher rate of interest than any other Government securities. Their money is safe and credited in the earmarked quantified amount and can be made available for disbursement to him/them. There is no prejudice caused and every infraction of law would not vitiate the act.
x x x
24. The contingencies under which the deposit in a treasury is made are elucidated, one of which is when a person who is served with a notice under section 12(2) of the LA Act, 1894, does not respond to the same and he fails to appear to receive the compensation amount. In the instant case, it is noticed that the amount has been deposited in the treasury as the khatedar refused the
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notice issued under Section 12(2) of the LA Act, 1984. In that context, what is stated in paragraph 199 of the judgment in the case of Indore Development Authority extracted above becomes relevant. That a collector/Deputy Commissioner is prevented from making payment when the beneficiary has refused to receive the amount. If the same is applied to the present case, it would mean that, when the notice under Section 12(2) was sought to be served on Lakshmaiah, khathedar, there was refusal to receive the said notice, which is clear from the endorsement found on the said notice. This would mean that khathedar refused to receive award amount offered by the Special Land Acquisition Officer. Therefore, the payment could not be made or there was prevention to pay on account of the omission on the part of khathedar. the Special Land Acquisition Officer, in the instant case, deposited the compensation amount before the treasury.
25. In that regard, paragraph 230 of the judgment in the case of Indore Development Authority has stated
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that deposit in treasury in place of deposit in court would cause no prejudice to the land owner or any other stakeholder as their interest is adequately safeguarded by the provisions contained in Section 34 of the LA Act, 1894, as it ensures higher rate of interest than any other Government securities. Their money is safe and credited in the earmarked for the purpose of quantified amount and can be made available for disbursement to him/them. Thus, there is no prejudice caused. Also every infraction of law would not vitiate the act. As stated that the deposit in treasury in place of deposit in Court would cause no prejudice to the land owner or any stake holder as their interest is adequately safeguarded by Section 34 of the LA Act, 1894 as it ensures higher rate of interest than any other Government securities and their money is also safe and credited in the earmarked for the purpose of which it is created and deposited and cannot be made use of that for the purpose of quantified amount.
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26. We find that in the instant case there being refusal on the part of respondent No.1-Khathedar herein in explaining notice issued to him, the Special Land Acquisition Officer was prevented from making the payment to the notified khathedar. In the circumstances, it would be held that there was no payment of money to the notified khatedars. There was no interaction of Section 24(2) of the Act of 2013 in the instant case. Therefore, applying the recent judgment of the Hon'ble Supreme Court in the case of Indore Development Authority, it is held that there is no deemed lapse of acquisition in the instant case. That apart, we find that the learned Single Judge has granted relief to respondent Nos.1 to 4 herein on the basis of the reasoning of the Apex Court in the case of Pune Municipal Corporation particularly paragraph 20 thereof. The said judgment having been overruled in the case of Indore Development Authority of which reliance has been placed, we find that the impugned order of the learned Single Judge is liable to be set aside and is set aside.
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27. The Hon'ble Supreme Court in Indore Development Authority has further observed as under:
"241. It is clear that once land is acquired, award passed and possession has been taken, it has vested in the State. It had been allotted to beneficiaries. A considerable infrastructure could have been developed and a third-party interest had also intervened. The land would have been given by the acquiring authorities to the beneficiaries from whose schemes the land had been acquired and they have developed immense infrastructure. We are unable to accept the submission that merely by deposit of amount in treasury instead of court, we should invalidate all the acquisitions, which have taken place. That is not what is contemplated under Section 24(2). We are also not able to accept the submission that when law operates these harsh consequences need not be seen by the court. In our opinion, that submission is without merit in as such consequences are not even envisaged on proper interpretation of Section 24(2), as mentioned above.
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242. The proviso to Section 24(2) of the Act of 2013, intends that the Collector would have sufficient funds to deposit it with respect to the majority of landholdings. In case compensation has not been paid or deposited with respect to majority of land holdings, all the beneficiaries are entitled for higher compensation. In case money has not been deposited with the Land Acquisition Collector or in the treasury or in court with respect to majority of landholdings, the consequence has to follow of higher compensation as per proviso to Section 24(2) of the Act of 2013. Even otherwise, if deposit in treasury is irregular, then the interest would follow as envisaged under Section 34 of Act of 1894. Section 24(2) is attracted if acquisition proceeding is not completed within 5 years after the pronouncement of award. Parliament considered the period of 5 years as reasonable time to complete the acquisition proceedings i.e., taking physical possession of the land and payment of compensation. It is the clear intent of the Act of 2013, that provision of Section 24(2) shall apply to the proceeding which is pending as on the date on which the Act of 2013, has been brought into force and it does not apply to the concluded
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proceedings. It was urged before us by one of the Counsel that lands in the Raisina Hills and Lutyens' Zones of Delhi were acquired in 1913 and compensation has not been paid. The Act of 2013 applies only to the pending proceedings in which possession has not been taken or compensation has not paid and not to a case where proceedings have been concluded long back, Section 24(2) is not a tool to revive those proceedings and to question the validity of taking acquisition proceedings due to which possession in 1960s, 1970s, 1980s were taken, or to question the manner of deposit of amount in the treasury. The Act of 2013 never intended revival such claims. In case such landowners were interested in questioning the proceedings of taking possession or mode of deposit with the treasury, such a challenge was permissible within the time available with them to do so. They cannot wake from deep slumber and raise such claims in order to defeat the acquisition validly made. In our opinion, the law never contemplates
-nor permits- misuse much less gross abuse of its provisions to reopen all the acquisitions made after 1984, and it is the duty of the court to examine the details of such claims. There are
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several litigations before us where landowners, having lost the challenge to the validity of acquisition proceedings and after having sought enhancement of the amount in the reference succeeding in it nevertheless are seeking relief arguing about lapse of acquisition after several rounds of litigation.
243. The expression used in Section 24(1)(b) is 'where an award under Section 11 has been made', then 'such proceedings shall continue' under the provisions of the said Act of 1894 as if the said Act has not been repealed'. The expression "proceedings shall continue"
indicates that proceedings are pending at the time; it is a present perfect tense and envisages that proceedings must be pending as on the date on which the Act of 2013 came into force. It does not apply to concluded proceedings before the Collector after which it becomes functus officio. Section 24 of the Act of 2013, does not confer benefit in the concluded proceedings, of which legality if question has to be seen in the appropriate proceedings. It is only in the pending proceedings where award has been passed and
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possession has not been taken nor compensation has been paid, it is applicable. There is no lapse in case possession has been taken, but amount has not been deposited with respect to majority of land holdings in a pending proceeding, higher compensation under the Act of 2013 would follow under the proviso to Section 24(2). Thus, the provision is not applicable to any other case in which higher compensation has been sought by way of seeking a reference under the Act of 1894 or where the validity of the acquisition proceedings have been questioned, though they have been concluded. Such case has to be decided on their own merits and the provisions of Section 24(2) are not applicable to such cases.
x x x
340. By and large, concluded cases are being questioned by way of invoking the provisions contained in Section 24. In our considered opinion, the legality of concluded cases cannot be questioned under the guise of Section 24(2) as it does not envisage or confer any such right to question the proceedings and the acquisitions have been concluded long back,
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or in several rounds of litigation as mentioned above, rights of the parties have been settled.
x x x
349. There is a plethora of decisions where, owing to delay of 6 months or more, this Court has repelled the challenge to the acquisition proceedings. In our opinion, Section 24 does not revive the right to challenge those proceedings which have been concluded. The legality of those judgments and orders cannot be reopened or questioned under the guise of the provisions of Section 24(2). By reason of our reasoning in respect of that provision (which we have held that under Section 24(2) that word "or" is to be read as 'and' or as 'nor,' even if one of the requirements has been fulfilled, i.e., either possession taken or compensation paid), there is no lapse unless both conditions are fulfilled, i.e., compensation has not been paid nor has possession been taken; the legality of the concluded proceedings cannot be questioned. It is only in the case where steps have not been taken by the Authorities. The lapse or higher compensation is provided under Section 24(2) and its proviso under the Act of 2013.
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x x x
353. We are of the opinion that courts cannot invalidate acquisitions, which stood concluded. No claims in that regard can be entertained and agitated as they have not been revived. There has to be legal certainty where infrastructure has been created or has been developed partially, and investments have been made, especially when land has been acquired long back. It is the duty of the Court to preserve the legal certainty, as observed in Vodafone International Holdings B.V. v. Union of India and Ors 245. The landowners had urged that since the Act of 2013 creates new situations, which are beneficial to their interests, the question of delay or laches does not arise. This Court is of the opinion that the said contention is without merits. As held earlier, the doctrine of laches would always preclude an indolent party, who chooses not to approach the court, or having approached the court, allows an adverse decision to become final, to re-agitate the issue of acquisition of his holding. Doing so, especially in cases, where the title has vested with the State, and thereafter with subsequent interests, would be contrary to
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public policy. In A.P. State Financial Corp. v. Garware Rolling Mill, this Court observed that equity is always known to defend the law from crafty evasions and new subtleties invented to evade the law. There is no dearth of talent left in longing for the undue advantage of the wholesome provisions of Section 24(2) on the basis of wrong interpretation.
x x x
359. We are of the considered opinion that Section 24 cannot be used to revive dead and stale claims and concluded cases. They cannot be inquired into within the purview of Section 24 of the Act of 2013. The provisions of Section 24 do not invalidate the judgments and orders of the Court, where rights and claims have been lost and negatived. There is no revival of the barred claims by operation of law. Thus, stale and dead claims cannot be permitted to be canvassed on the pretext of enactment of Section 24. In exceptional cases, when in fact, the payment has not been made, but possession has been taken, the remedy lies elsewhere if the case is not covered by the proviso. It is the Court to consider it
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independently not under section 24(2) of the Act of 2013.
28. In view of the above discussion, the appeal is allowed.
Parties to bear their respective costs. Respondent Nos.1 to 4 are entitled to receive the compensation deposited by the Special land Acquisition Officer, in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE Cs