# INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA (DEAD) THROUGH LRS. & ORS

- **Citation:** [2018] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2018-02-08
- **Case number:** Civil Appeal No. 20982 of 2017
- **Bench:** Arun Mishra, Adarsh Kumar Goel, Mohan M. Shantanagoudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indore-development-authority-v-shailendra-dead-through-lrs-ors-32866
- **Pages:** 231

## Headnote

Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013:
Legislative intendment of the enactment - Held: The Act
addresses the concern of farmers and of those whose livelihood is
dependent upon the land being acquired, while at the same time
facilitating land acquisition for myriad reasons, including
urbanization, rural electrification et al., in a timely and transparent
manner. (Per majority)
s.24(1) - Word 'paid' - Connotation of - Held: The word
'paid' in s.24 of the Act of 2013 has the same meaning as 'tender of
payment' in s.31(1) of the Act of 1894 - They carry the same meaning
- The expression 'deposited' in s.31(2) is not included in the
expressions 'paid' in s.24 of the Act of 2013 or in 'tender of payment'
used in s.31(1) of the Act of 1894 - The words 'paid'/tender' and
'deposited' are different expressions and carry different meanings
within their fold - Land Acquisition Act, 1894 - s.31(1), (2). (Per
majority)
s.24(2) - Failure to deposit compensation, effect - Nondeposit of compensation in court under s.31(2) of the Act of 1894
does not result in a lapse of acquisition under s.24(2) of the Act of
2013 - Due to the failure of deposit in court, the only consequence
at the most in appropriate cases may be of a higher rate of interest
on compensation as envisaged under s.34 of the Act of 1894 and
not lapse of acquisition - Land Acquisition Act, 1894 - s.31(2).
(Per majority)
s.24(2) - Protection under, when there is refusal to accept
compensation - Once the amount of compensation has been
unconditionally tendered and it is refused, that would amount to
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payment and the obligation under s.31(1) stands discharged and
that amounts to discharge of obligation of payment under s.24(2)
of the Act of 2013 also and it is not open to the person who has
refused to accept compensation, to urge that since it has not been
deposited in court, acquisition has lapsed - Claimants/landowners
after refusal, cannot take advantage of their own wrong and seek
protection under the provisions of s.24(2) - Land Acquisition Act,
1894 - s.31(1). (Per majority)
s.24(2) - Limitation - Exclusion of period spent in litigation
- Held: Provisions of s.24(2) do not intend to cover the period
spent during litigation and when the authorities have been disabled
to act under s.24(2) due to the final or interim order of a court or
otherwise, such period has to be excluded from the period of five
years as provided in s.24(2) of the Act of 2013 - There is no
conscious omission in s.24(2) for the exclusion of a period of the
interim order. (Per majority)
s.24(1) - Interpretation of - Held: When award under the
1894 Act has not been passed, then as per s.24(1)(a) of the Act
2013, all the provisions of the Act of 2013 relating to determination
of compensation shall apply - Where, however, an award under
s.11 has been made then such proceedings shall continue as per
s.24(1)(b) of the Act 2013, under the Act of 1894 as if the said Act
has not been repealed - However, in case physical possession of
the land has not been taken, or the compensation has not been
paid, the proceedings shall be deemed to have lapsed; and, in case
of compensation with respect to a majority of landholdings has not
been deposited in the account of the beneficiaries, then, all
beneficiaries i.e. landowners shall be entitled to compensation in
accordance with the provisions of the Act of 2013 - Consequence
of non-deposit of the amount, with respect to the majority of land
holdings, in the account of the beneficiaries, is that the acquisition
would not lapse, and only compensation under the new Act would
be payable. (Per majority)
s.24(2) - Interpretation of - Expression 'paid/deposit' -
Meaning of - Under the main part of s.24(2), the expression
"compensation has not been paid" has been used - The word
"deposited" is missing from main part of s.24(2), and it is only used
in the pro

## Text

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[2018] 2 S.C.R. 1
INDORE DEVELOPMENT AUTHORITY
 v.
SHAILENDRA (DEAD) THROUGH LRS. & ORS.
(Civil Appeal No. 20982 of 2017)
FEBRUARY 08, 2018
[ARUN MISHRA, ADARSH KUMAR GOEL AND
MOHAN M. SHANTANAGOUDAR, JJ.]
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013:
Legislative intendment of the enactment - Held: The Act
addresses the concern of farmers and of those whose livelihood is
dependent upon the land being acquired, while at the same time
facilitating land acquisition for myriad reasons, including
urbanization, rural electrification et al., in a timely and transparent
manner. (Per majority)
s.24(1) - Word 'paid' - Connotation of - Held: The word
'paid' in s.24 of the Act of 2013 has the same meaning as 'tender of
payment' in s.31(1) of the Act of 1894 - They carry the same meaning
- The expression 'deposited' in s.31(2) is not included in the
expressions 'paid' in s.24 of the Act of 2013 or in 'tender of payment'
used in s.31(1) of the Act of 1894 - The words 'paid'/tender' and
'deposited' are different expressions and carry different meanings
within their fold - Land Acquisition Act, 1894 - s.31(1), (2). (Per
majority)
s.24(2) - Failure to deposit compensation, effect - Nondeposit of compensation in court under s.31(2) of the Act of 1894
does not result in a lapse of acquisition under s.24(2) of the Act of
2013 - Due to the failure of deposit in court, the only consequence
at the most in appropriate cases may be of a higher rate of interest
on compensation as envisaged under s.34 of the Act of 1894 and
not lapse of acquisition - Land Acquisition Act, 1894 - s.31(2).
(Per majority)
s.24(2) - Protection under, when there is refusal to accept
compensation - Once the amount of compensation has been
unconditionally tendered and it is refused, that would amount to
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payment and the obligation under s.31(1) stands discharged and
that amounts to discharge of obligation of payment under s.24(2)
of the Act of 2013 also and it is not open to the person who has
refused to accept compensation, to urge that since it has not been
deposited in court, acquisition has lapsed - Claimants/landowners
after refusal, cannot take advantage of their own wrong and seek
protection under the provisions of s.24(2) - Land Acquisition Act,
1894 - s.31(1). (Per majority)
s.24(2) - Limitation - Exclusion of period spent in litigation
- Held: Provisions of s.24(2) do not intend to cover the period
spent during litigation and when the authorities have been disabled
to act under s.24(2) due to the final or interim order of a court or
otherwise, such period has to be excluded from the period of five
years as provided in s.24(2) of the Act of 2013 - There is no
conscious omission in s.24(2) for the exclusion of a period of the
interim order. (Per majority)
s.24(1) - Interpretation of - Held: When award under the
1894 Act has not been passed, then as per s.24(1)(a) of the Act
2013, all the provisions of the Act of 2013 relating to determination
of compensation shall apply - Where, however, an award under
s.11 has been made then such proceedings shall continue as per
s.24(1)(b) of the Act 2013, under the Act of 1894 as if the said Act
has not been repealed - However, in case physical possession of
the land has not been taken, or the compensation has not been
paid, the proceedings shall be deemed to have lapsed; and, in case
of compensation with respect to a majority of landholdings has not
been deposited in the account of the beneficiaries, then, all
beneficiaries i.e. landowners shall be entitled to compensation in
accordance with the provisions of the Act of 2013 - Consequence
of non-deposit of the amount, with respect to the majority of land
holdings, in the account of the beneficiaries, is that the acquisition
would not lapse, and only compensation under the new Act would
be payable. (Per majority)
s.24(2) - Interpretation of - Expression 'paid/deposit' -
Meaning of - Under the main part of s.24(2), the expression
"compensation has not been paid" has been used - The word
"deposited" is missing from main part of s.24(2), and it is only used
in the proviso - The Legislature has used two different expressions
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to carry, respectively different meanings; and, the proviso operates
in a different field, where the acquisition would not lapse - The
proviso is not attracted where compensation has been paid - The
proviso to s.24(2) does not provide that amount of compensation
has to be deposited in the court - It obviously refers to a payment
deposited with LAO or in treasury - The expression "paid", used in
s.24(2) of the 2013 Act, thus, cannot carry same meaning and include
in it the deposit to be made in Court under s.31(2) of the Act of
1894; it only reflects the mode of payment as envisaged under s.31(1)
of the Act of 1894 i.e. "tender" - Land Acquisition Act, 1894 -
s.31.(Per majority)
s.24(2), proviso - Connotation of - 'paid' and 'deposit' -
Distinction between - Held: The proviso to s.24(2) of the 2013 Act
deals with 'deposit' of compensation in treasury or with Land
Acquisition Collector with respect to the majority of holding - It
contemplates that amount has not been 'paid' to landowners/
beneficiaries/interested persons - Thus, when scheme of entire s.24
is considered, the concept of 'paid' in the main s.24(2) is different
from the deposit - If the deposit is included in word 'paid', the
proviso to s.24(2), which has the different consequence of no lapse,
but only higher compensation would be otiose and become redundant
and repugnancy would occur - It is clear that expression 'paid' in
s.24 is different from word 'deposit' which is provided in its proviso.
(Per majority)
s.24(2) - Meaning of "paid in s.24(2) and in s.31 of Act of
1894 - The expression "paid" in s.31(1) of Act of 1894 and s.24(2)
of Act of 2013 mean, as soon as it is offered and made
unconditionally available - Merely, if a landowner refuses to accept
it, it cannot be said that it has not been paid - Once amount has
been tendered that would amount to payment - Thus, word "paid"
does not mean actual payment to be made but whatever is possible
for an incumbent to make the payment is only contemplated - It is
settled that a Court cannot add or subtract a word; the expression
"compensation has not been paid" is used in s.24(2); it is not open
to the court to add to these words, or to substitute the said expression
with any further expression, such as 'deposit'. (Per majority)
s.24(2) - Applying the rule of harmonious construction to
the provisions of s.24(2) of the Act of 2013, i.e. as between the
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main part of the section and its proviso, the word "paid" occurring
in the main part, has to be construed differently (with a different
meaning being given to it from the word "deposited" occurring in
the proviso; otherwise, inconsistency and repugnancy would be the
result of the provision contained in s.24(2) as a whole; and, that is
what has to be avoided - The provisions would be irreconcilable,
and an anomalous result would be occasioned - A section is to be
interpreted by reading all its parts altogether, and it is not permissible
to omit any part thereof - In the instant case, proviso to s.24(2)
cannot be ignored while interpreting the main subsection - The
proviso is enacted as part of s.24(2); it is not an independent
provision and applies to an acquisition made five years or before,
in which amount, with respect to majority of holdings, has not been
deposited in court - There has to be harmonized construction of
provision of s.24(2) - Interpretation of statutes. (Per majority)
s.24 - Compensation - Deposit in Court - Whether necessary
- Held: The law as prevailed under the Act of 1894 never invalidated
any land acquisition in the absence of amount being deposited in
court since the time immemorial in most cases where reference is not
sought, amount had been invariably deposited in the Treasury as
provided in statutory rules framed under s.55 of Act of 1894 and
other standing order issued by State Governments, and there were
binding decisions which simply laid down that in case landowner is
not responsible for delay in payment, at the most he may be entitled
to interest on such amount, in case it has not been tendered/paid to
him when possession has been taken - It would be wrong to lay
down law that once amount has not been deposited in the court but
in treasury, acquisitions would lapse under s.24. (Per majority)
s.24 - Compensation - Deposit made in Treasury - The court
is not disbursing authority of compensation when reference is not
sought - Farmers/claimants are primarily concerned with the Land
Acquisition Collector and for more than one century this procedure
of deposit in treasury was prevailing and by and large amounts had
been deposited in the treasury only and, thus, it would not be
appropriate to make the operation of law to be such as to invalidate
land acquisition when deposit is made in Treasury - Such an
interpretation is not permissible as per the intendment of the Act of
2013. (Per majority)
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s.24(2) and its proviso - The expression "deposited in the
account of landowners" would not mean deposited in the court as
envisaged in s.31(2) of the old Act, action as permissible as per the
financial instructions having statutory or administrative orders
having force of law as well as under the Rules framed by various
State Governments in exercise of power under s.55 of Act of 1894
can always be taken - In various States, Financial Code/Order/
Rules deal with Government money and as such amount is required
to be deposited in the Treasury by opening separate accounts of
landowners/beneficiaries/ claimants that would be full compliance
of the proviso of s.24(2) of new Act. (Per majority)
s.24 - When there is absolute vesting of the land in the State
under the provisions of the Act of 1894, whether it can be divested
by virtue of the provisions made in s.24 of 2013 Act - Held: When
there is absolute vesting in the State it is vesting along with possession
and thereafter a person who remains in possession is only a
trespasser not in rightful possession - Vesting contemplates absolute
title, possession in the State - "Vest" means an absolute or
indefeasible right - Thus, the provisions contained under the Act of
2013 do not take vested rights away - There is no deemed lapse
under s.24 in such a case - In case of urgency also before award is
passed as provided in s.17(1), 17(3A) vesting takes place on
fulfillment of conditions - No different intention appears from s.24
to divest the land once it has absolutely vested in the State in
accordance with the provisions of the Act of 1894 - Merely by
obtaining interim order or keeping the litigation pending or filing it
afresh that too by way of stale and belated claim after the Act of
2013 has come into force, no divesting of land is contemplated - It
is only in exigencies provided deemed lapse take place either when
possession not taken or compensation not paid as provided in s.24(2)
and where award has not been passed, the provisions of s.24 of Act
of 2013 applies. (Per majority)
s.24(2) - Accrued right - It is settled law that accrued rights
cannot be taken away by repealing statutory provisions - The
repealing law must provide for taking away the accrued rights
expressly or by necessary implications - There is no such express
provision or necessary implication - The beneficial intendment of
proviso to s.24(2) is that acquiring body must have arrangement of
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money for payment of compensation with respect to majority of
holding - Law does not contemplate or permit a litigant to misuse
of the provisions - Law does not permit court cover to be used as
shield when there is no legality in the claim and one cannot be
permitted to reap the fruits of one's own dilatory tactics, money
power to litigate till eternity - The Act nowhere intends that only
litigating incumbents who are not accepting acquisition have to be
given the benefit of Act of 2013 - Those who have obtained interim
orders under guise of prima facie case anyhow or somehow without
any basis, without merit in their claim, cannot be protected by
providing shelter under the protective umbrella of s.24(2) of the Act
of 2013 - Repeal. (Per majority)
s.24 - Delayed claims - Maintainability of - Held: Stale claims
cannot be entertained even though no time limit is prescribed -
Once Panchnama has been drawn and by way of drawing the
Panchnama physical possession has been taken, the case cannot
be reopened under the guise of s.24 of Act of 2013 - The provisions
of s.24 do not invalidate those judgment/orders of the courts
whereunder rights/claims have been lost/negatived, neither do they
revive those rights which have become barred, either due to inaction
or otherwise by operation of law - Fraudulent and stale claims are
not at all to be raised under the guise of s.24. (Per majority)
s.24(2) - Non-incorporation of word 'deposit' in s.24(2) -
Whether casus omissus - Held: s.24(2) uses the expression
"compensation has not been paid" - To complete the payment,
deposit of payment in the court cannot be read as payment to the
landowners - In case the legislature wanted the 'deposit in Court'
to be included in 'paid/ tender', it could have easily said so - But it
has used expressions differently, with different consequences - There
is casus omissus, i.e. conscious omission made by the Legislature in
main s.24(2) when the expression "deposited" has not been used in
the expression "has been paid", and it is only after amount tendered
is declined, it is to be deposited in Court that too in certain exigencies
as per s.31(2).(Per majority)
s.24(2) - Casus omissus - Whether in the provisions of s.24,
there is casus omissus - Absence of provision for excluding the period
of stay/ injunction of a Court order does not at all affect the provision
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of s.24(2) of the Act of 2013 - It intended that authority should not
keep pending acquisition due to laxity on their part for five years
or more - It never intended to apply in case they were not able to
perform obligation due to court order or conduct of landowners -
The legal provisions have to be interpreted in the light of the settled
principles of common law unless they are excluded, and in case a
person is litigating for several decades, non-acceptance of
compensation and questioning the acquisition, cannot be permitted
to ask for compensation or claim lapse under 2013 Act. (Per
majority)
s.24(2) - Common law principles - It is well settled that the
statutory provision would prevail upon the common law principles
- The statutory provisions, contained in s.24 of the Act of 2013, do
not exclude the principles of common law - The principles that can
be excluded are only those in respect to which, provision has been
made in the statute itself or the applicability is ousted by implication
- The observations in respect of the principle of interpretation that
if something is expressed in a provision, anything contrary is
impliedly excluded, are themselves based on the maxim "expressio
unius est exclusio alterius" - This maxim has been held to have limit
of operation and is not of universal application - Thus, mere fact
that in some of the provisions there is a mention about period of
stay being excluded, cannot be taken to be conclusive that in other
provisions with respect to the effect of stay not to be considered or
common law maxims have no applicability in the context of s.24(2)
of the 2013 Act - The Common Law principles, cannot be ousted, to
do complete justice to parties and to prevent miscarriage of justice,
within purview of s.24 of Act of 2013 - Doctrines/Principles.(Per
majority)
s.24(2) - Provision of lapse of acquisition, invocation of -
Held: In case possession could not be taken, or compensation could
not be paid or deposited, due to cover of courts' order or conduct
of land-owner, provision of lapse cannot be invoked - s.24(2), a
policy of the law is not to benefit a litigant or confer undeserving
benefit by involving in the lis and to reap fruits on the basis of
possession on illegal basis without any right and often lis is filed in
land acquisition cases one after the other and intendment of law is
not to treat law-abiding incumbents differently - Litigation cannot
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be permitted to become lucrative industry for the unworthy litigant.
(Per majority)
Effect of repeal - Held: The repeal of the Act of 1894 by Act
of 2013 has been made without prejudice or affect the general
application of s.6 of the General Clauses Act, 1897 - s.6 of the
General Clauses Act provides that unless a different intention
appears, the repeal shall not revive anything not in force - s.6(b)
provides that it would not affect any previous operation of any
enactment so repealed or anything duly done or suffered thereunder
- s.6(e) provides that it will not affect any investigation, legal
proceedings or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment unless different
intention appears, and any such investigation, legal proceeding or
remedy may be instituted, or continued or enforced, and any such
penalty, forfeiture or punishment may be imposed as if the repealing
Act or Regulation had not been passed - The provisions of s.6 clearly
save such proceedings and pending litigation has to be decided
only on the basis of 1894 Act except as provided specifically in Act
of 2013 - General Clauses Act, 1897 - s.6. (Per majority)
s.24(2) - The acquisition proceedings do not lapse if the
amount is deposited in the Treasury and such fact is made known to
the claimants by the competent authority as required in law - Only
interest is attracted, in case if the deposit is not made in Court. (Per
Mohan M. Shantanagoudar, J.)
s.24(2) - Casus Omissus - The conscious omission referred to
in paragraph 11 of the judgment in Sree Balaji does not make any
substantial difference to the legal position with regard to the
exclusion or inclusion of the period covered by an interim order of
the Court for the purpose of determination of the applicability of
s.24(2) of the 2013 Act - In fact, excluding such periods of interim
stay from the calculation of the time period of five years under
s.24(2) makes a reading of the Act more consistent - Interpretation
of statutes - Interim order. (Per Mohan M. Shantanagoudar, J.)
s.24(2) - Casus Omissus - There is no bar much less absolute
bar on the Court's jurisdiction to supply casus omissus - If there is
necessity, such omission can be inferred - Casus omissus must be
supplied to s.24(2) of the 2013 Act due to the necessity and the
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need for consistency - If a provision of the Act is inconsistent or
ambiguous, the same needs to be clarified for bringing the meaning
of the said provision consistent with the rest of the Act, if need be,
by supplying meaning to such provision - In the instant case, there
are many provisions in the 2013 Act which exclude periods of interim
stay, such as s.19(7) and the Explanation to s.69(2) of that Act - It
only makes the statute more consistent if s.24(2) is read in light of
other provisions such as s.19(7) and the Explanation to s.69(2),
which make interim stay orders exceptions to calculating periods
of time under the Act - In this way, repugnancy and inconsistency
with the rest of the statute is avoided - There is a clear necessity to
read the exclusion of interim stay into s.24(2) of the 2013 Act so as
to make its meaning consistent with the rest of the enactment, where
in
similar
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the
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excluded.(Per Mohan M. Shantanagoudar, J.)
s.24(2) - The principle of "actus curiae neminemgravabit", i.e
the act of the court should not prejudice any parties, would be
applicable in the present case to exclude the period covered by an
interim order for the purpose of determining the question with regard
to taking of possession as contemplated in s.24(2) of the 2013 Act
- Doctrines/Principles. (Per Mohan M. Shantanagoudar, J.)
s.24(2) and its proviso - "tender", "payment", and "deposit"
- Interpretation of - Whether these terms can be used
interchangeably - Word 'deposit' whether synonymous with the word
'payment' - Held: The 2013 Act use "tender", "payment", and
"deposit" at different places in the enactments - Tender and
payment are two different terms - However, "payment" has been
treated similar to "deposit" within s.24(2) itself, as well as in other
provisions - A plain reading of sub-section 2 of s.24 of the 2013
Act discloses that in case either the physical possession of the land
has not been taken, or the compensation has not been paid, the
acquisition proceedings shall be deemed to have lapsed - However,
the proviso to sub-section 2 of s.24 emphasizes that after the award
is made, if compensation in respect of majority of the land holdings
has not been deposited in the account of the beneficiary, then the
owners of minority of the land holdings will be entitled to
compensation under the 2013 Act, which means that under the
proviso, though the owners of a minority of the land holdings have
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received compensation under the 1894 Act, they would be getting
higher compensation under the 2013 Act in case compensation has
not been deposited in the account of the beneficiaries in respect of
a majority of the land holdings - The word "deposit" in the account
of beneficiaries as contained in proviso to s.24(2) of the 2013 Act
would mean deposit in the account of beneficiaries in the Treasury
- s.80 also recognises deposit of compensation as being equivalent
to payment of compensation. (Per Mohan M. Shantanagoudar, J.)
s.24 - Whether the judgment in Pune Municipal Corporation is
per incuriam - Held: A decision is rendered per incuriam if it is
made through some mistake, or under a misapprehension as to a
decision or a dictum of a judge, which is the result of a material
oversight - A decision, judgment or verdict can be rendered per
incuriam if given without considering any provision in a statute
which was not brought to the notice of the court or if it is not possible
to reconcile its ratio with that of a previously pronounced judgment
of a co-equal or larger bench; or if the decision of a High Court is
not in consonance with the views of the Supreme Court - The
judgment in Pune Municipal Corporation was not rendered per
incuriam, as the conclusion is reached by proceeding in detail on
the interpretation of relevant statutory provisions - However, the
reasons assigned and conclusions arrived at by the Court in the
said judgment are not acceptable - Though the Rules are not
adverted to in the case of Pune Municipal Corporation, the discussion
as a whole, if looked into, would make it clear that the Court while
deciding the said judgment, discussed in detail about the failure to
deposit in the Court, so also, about the effect of deposit in Treasury
- Hence, merely because the Rules of certain States are not
considered, the judgment in Pune Municipal Corporation cannot be
termed as per incuriam - In other words, merely because the Rules
are not referred to specifically in the judgment, it cannot be said
that there is non-consideration of the effect of the Rules - Thus it
cannot be said that the said judgment is through want of care or
inadvertence - The proper course is to refer the matter to a larger
Bench. (Per Mohan M. Shantanagoudar, J. - Dissenting view)
s.24(2) and its proviso - Interpretation of - The proviso to
sub-section 2 of s.24 does not require the State to pay the
compensation in respect of minority holdings for saving acquisition -
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It is sufficient if the compensation is deposited in respect of minimum
holdings in the account for saving the acquisition - Since the proviso
to sub-section 2 of s.24 does not envisage lapsing of acquisition,
even if the payment is not made but is deposited that too with regard
to the beneficiaries of a minority of holdings, the same would lead
to the inevitable conclusion that the word "payment" as found in
sub-section 2 of s.24 has a strong link or co-relation with the word
"deposit" - A reading of sub-section 2 of s.24 along with the
proviso would make it clear that even if the compensation in respect
of minority of the land holdings is deposited in the account of such
minority beneficiaries, the acquisition does not lapse - At the most,
every land-loser is entitled to the higher compensation as per the
provisions of the 2013 Act - Since the proviso does not refer to the
words "payment of compensation" and as the main provision i.e.
sub-section 2 of s.24 does not refer to the word "deposit", the only
interpretation that is possible is that, if either deposit is made in the
Treasury in the name of minority holders or payment is made at
least to minority holders, the acquisition does not lapse - If the
word "paid" as found in sub-section 2 of s.24 is not treated as
"deposited" in the account of beneficiaries, then the proviso to
sub-section
2
of
s.24
would
become
otiose.
(Per Mohan M. Shantanagoudar, J.)
Land Acquisition Act, 1894:
s.31 - Consequence of not depositing the amount under s.31
of the 1894 Act - The expression used in s.31 is not "paid", it is
only "tender payment" and there is obligation to pay compensation
unless prevented by a cause under sub-section (2) of s.31 - In case
there is dispute as to person entitled to compensation or its
apportionment in between person interested or person was not even
competent to make alienation of property that has been acquired it
would not be necessary to tender amount as it may not be so done
due to said exigencies as authority may decide not to pay it till
court orders then it is to be deposited in court to save further liability
of exorbitant interest under s.34 of the Act of 1894 - Apart from
that s.31(2) does not cover all the exigencies and it does not require
that invariably the compensation has to be deposited with the court
- It is only when reference is sought that reference court comes to
picture not otherwise as provided in rules/orders in case person
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refuses and seeks a reference to court it has to be deposited in
court where reference would be submitted otherwise as provided in
the rules it has to be deposited in treasury - Even s.31(2) comes
into play to "tender payment" is obligatory provision - Tender of
payment is complete when it is made unconditionally available it
could not have been equated with the deposit in court under ss.31(2)
or 24(2) of old and new Acts respectively as these are two different
exigencies and consequence of non-payment of compensation is
clearly culled out in s.34. (Per majority)
ss.31, 34 - Prejudice due to non-deposit in court - Held: As
per the provisions contained in s.34, a person can claim the interest
in case amount is not deposited as envisaged under s.31(2) if
authorities are at fault - In the given situation unless aggrieved
party makes out a case of prejudice and injustice, every infraction
of law would not vitiate the act. (Per majority)
s.31(2), first proviso - Payment received under protest -
Maintainability of reference - Held: It is open to a person, under
the first proviso to s.31(2), to receive payment of compensation under
protest as to the sufficiency of the amount, and such person is also
entitled to maintain a reference - In case awarded amount has been
accepted without protest, reference cannot be maintained under
s.18.(Per majority)
s.31(2) - Expression "tender", meaning - Consequence of
tender - The meaning of expression "tender": is when a person
has tendered the amount and made it unconditionally available - If
the landowner refused to receive it, the person who has tendered
the amount cannot be saddled with the liability, which is to be visited
for non-payment of the amount. (Per majority)
s.31 - Expression 'tender' - Whether expression "deposited"
in s.31 is included in expression 'payment' under s.24(2) of 2013
Act - Held: The expression used in s.31 of Act of 1894 and s.77(1)
of Act of 2013 is to "tender payment" - Once there is tender, then
in case of refusal to accept the same,the obligation to pay under
s.31(1) is complete by tender, and that tantamount to making the
payment; and, that is precisely what is intended by the word "paid"
in s.24(2) of 2013 Act - In s.31(2) of the 1894 Act, the word
'deposited in Court' is used - The deposit in Court is not payment to
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the beneficiaries - It is only after their refusal to accept the
compensation tendered under s.31(1) of the Act of 1894 that it is to
be deposited in Court - Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 - s.24(2). (Per majority)
s.31 - Deposit made in the court - Whether amounts to tender
- Held: Deposit made in the court cannot be said to be payment
made to the landowner i.e. persons interested/beneficiaries - Thus,
in case deposit is directly made in the court without tender, it could
not be said that it was tendered or paid - 'Deposit in court' simply
is the discharge of Collector's liability of making payment of interest
as envisaged under s.34 of the 1894 Act, and no more; deposit in
Court is not tender to landowner - Once the amount has been
tendered and not accepted, obligation to pay is discharged, as
envisaged under s.31(1); no penal consequences can follow and,
the person who has refused to accept cannot be permitted to take
an advantage of his own wrong, or in case his conduct is of filing
litigations, delaying the passing of the award or obtaining stay of
the proceedings; such action would tantamount to refusal to accept
compensation, and the person then may not even be entitled to higher
rate of interest as envisaged under s.34.(Per majority)
ss.31, 34 - Deposit in Treasury - Held: The various States
have made rules for unaccepted compensation to be deposited in
the Treasure as revenue deposits when the landowners do not appear
on the notified date to collect their compensation - Thus, a deposit
in Court is not the only legal form of deposit under the 1894 Act -
Compensation was being credited to the Treasury in the past, even
after the same was deposited in Court - Thus, the issue where the
compensation is deposited is a matter of procedure - When the State
Rules and High Court rules permit deposits in the Treasury, it falls
to reason that under the scheme of the 1894 Act, failure to pay or
deposit in Court under s.31(2) only had the effect of attracting
interest
payment
as
per
s.34
of
the
1894
Act.
(Per Mohan M. Shantanagoudar, J.)
s.55 - Dealing with public money - Effect of Rules framed
under s.55 and orders issued by State Governments - There are
various state rules framed under s.55 by various state governments
as well as there are instructions issued with respect to dealing with
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government money as provided in Art. 283 of the Constitution of
India, and when it is the government money it has to be dealt with in
accordance with the instructions issued by the state government
from time to time - There are other Financial Codes/Rules/orders
issued time to time by various State Governments with respect to
dealing with Government money - They have the force of law - The
duty of the court is to harmonize rules with provision of Act.(Per
majority)
s.55 - Public money - Mode of payment of compensation -
Held: Art.283(1) of the Constitution of India mandates that matters
pertaining to custody of the Consolidated Fund of India and the
Contingency Fund of India, the payment of moneys into such Funds,
the withdrawal of moneys therefrom, the custody of public moneys
other than those credited to such Funds received by the Government
of India etc. shall be regulated by law made by the Parliament -
Art.283(2) mandates that similar matters of the States' Consolidated
Funds etc. are to be regulated by law made by the State Legislatures
- States have framed rules pursuant to Art.283(2) as to how the
public moneys are to be handled - s.55 of the 1894 Act empowers
the State to make rules for guidance of officers - Pursuant to
Art.283(2) and s.55 of the 1894 Act, various States, such as, Assam,
Bihar, Orissa, Kerala, West Bengal, Delhi and Punjab have framed
rules to govern the mode of payment of compensation - All of them
provide for deposit into the Treasury in case the landowners are
not present to receive the compensation, along with the notice to
such landowners apprising them of such deposits - The Court in
the case of Pune Municipal Corporation did not consider such rules
passed by the States that direct the deposit of unclaimed
compensation in the Treasury - Constitution of India - Art.283.
(Per Mohan M. Shantanagoudar, J.)
Land Acquisition:
Role of State when landowners do not accept compensation/
acquisition - Duty of landowners/litigants - Held: State authorities
are not expected to retain the money with them and run after the
landowners and match with their dilatory tactics with vigil to find
out that one ultimate day, the litigation would attain finality - Once
by their conduct, there is refusal to accept the land acquisition itself,
much less compensation, in such circumstances such landowners
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have to inform the authorities about the outcome of the litigation
and in case they have lost, to ask for compensation - Authorities
are not supposed to be on vigil so as to ascertain after lapse of so
much time even after decades in new generation, who has received
the compensation and who has not received the compensation.(Per
majority)
Mode of taking physical possession - Recording of
panchnama/memorandum by Land Acquisition Officer would
constitute taking possession of land - If possession is of a large
tract of land, it may not be possible to take physical possession of
each and every parcel of the land and it would be sufficient that
symbolic possession is taken by preparing appropriate document
in the presence of independent witnesses and getting their signatures.
(Per majority)
Challenge to acquisition - Claim for damages and interest
after losing the challenge - The maxim "nullus commodum capere
potest de injuria sua propria" i.e. 'No man can take advantage of his
own wrong' - A "tender" of the amount to be paid operates as a
bar upon any claim for damages and interest - Thus, when once
"tender" of the amount had been made, in any of the prescribed
modes, which met with refusal to accept it and/or by the conduct of
indulging in incessant litigation which, in some instances, culminated
into a stay/interim order, the party which thus refused to accept the
amount, indulging instead in the 'theater of the absurd', cannot
turn around and contend that the other party should now be visited
with the penalty for non-payment - Maxims.(Per majority)
Delay/laches - Dilatory tactics - It is a settled proposition
that one cannot be permitted to take advantage of his own wrong -
The doctrine "commodum ex-injuria sua Nemo habere debet" means
convenience cannot accrue to a party from his own wrong - No
person ought to have advantage of his own wrong - Normally merit
of lis is to be seen on date of institution - One cannot be permitted
to obtain unjust injunction or stay orders and take advantage of
own actions - Law intends to give redress to the just causes; at the
same time, it is not its policy to foment litigation and enable to reap
fruits owing to the delay caused by unscrupulous persons by their
own actions by misusing the process of law and dilatory tactics -
Maxims.(Per majority)
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Doctrines/Principles:
Doctrine of impossibility - The maxims namely 'nemo tenetur
ad impossibilia' regarding the impossibility of performance of an act
may not be strictly applicable, as acts, under s.31 or 24, were capable
of being performed but authorities were disabled to perform them
as no fault on their part - However, the effect of Court orders, or
the conduct of the landowners/claimants/beneficiaries, is required
to be considered, it was not an 'impossibility' to perform the acts in
question by their very nature but the said aspect is relevant and
underlying principle of inability to perform has to be considered in
the backdrop of fact whether it was in the control or capacity of
authority to perform actions which were possible to be performed
but when it was not possible to perform or were incapacitated to
perform - In such event, person responsible for interdicting cannot
ask him to be put in advantageous position for non-compliance of
an act, which possibly would have been performed, but for such
action - Land Acquisition Act, 1894 - s.31 - Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 - s.24. (Per majority)
Principle of Restitution - While construing provisions of
s.24(2) applicable in case of lis, the principle of restitution which
enjoins a duty upon the courts to do complete justice to the party at
the time of final decision is to be kept in mind - Successful party at
the end of the litigation has to be placed as far as possible at the
same place unless it would have been had the interim order not
being passed - In doing away the effect of interim order by resorting
to fact of restitution is in fact obligation of the court - Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 - s.24(2). (Per majority)
Interpretation of Statutes:
Addition to, or subtraction from, the Act - Permissibility - It
is not open to Court to either add or subtract, a word - The legal
maxim "A Verbis Legis Non Est Recedendum" means: from the words
of law, there must be no departure - Before adding the word or
omitting a word the court has to consider the intended purpose of
the statute or the provision in question; that by inadvertence the
draftsman and Parliament failed to give effect to that purpose in
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the provision in question, and substance of the provision Parliament
would have made, although not necessarily the precise words
Parliament would have used, had the error in the Bill been noticed
- Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 - s.24(2).(Per majority)
Harmonious construction - While making statutory
interpretation, inconsistency and repugnancy is to be avoided and
harmonious construction has to be adopted - The construction to
be adopted should be such, as would make the statute as a whole, a
consistent enactment - Such a construction would have the merit of
avoiding any inconsistency or repugnancy, either within a given
section or as between a particular section on the one hand and
other parts of the statute on the other.