INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL & ORS. ETC.

48Copy pinpoint48. It was urged that serious consequences arise when condition nos. (ii) and (iii) are to be read as not conjunctive or disjunctive. The word used to connect these two conditions is “or”; if it is not read conjunctively, disastrous consequence leading to absurd result would emanate. Once possession is taken over vesting occurs under Section 16 of the LA Act. Section 24(2) contains no stipulation that such vesting of title of land stands nullified or divested. If the intention of Parliament was to divest the State of its title that had to be stated in plain and clear language. It was emphasized that the conjunctive use of “or” in Section 24 (2) would have not only momentous consequences to the State, but innocent third parties, who would be exposed to the risk of being divested title to the lands and properties, perfected by them, as allottees or subsequent purchasers. Merely because a person who has received compensation clungs on to the possession of the land and the same shall lead to lapsing cannot be the intention of Parliament. Similarly, one who received compensation, is not obliged to return the money to the State in the event of lapsing under Section 24(2) of the Act of 2013. It was urged, therefore, that absence of provision to return the compensation received to Government convincingly points to Parliamentary intent that “or” should be read as “and”; thus, only if neither possession is taken (of acquired lands) nor is compensation paid, (i.e., tendered to the party or parties) would the acquisition under the LA Act lapse. Learned counsel also relied on several decisions in this context.36

49Copy pinpoint49. It was highlighted by M/s Bhangde, Mr. Rajesh Mahale, and Ms. Shashi Kiran, that the consequence of literally interpreting Section 24 (2) as to mean that the conditions are disjunctive (either that “or” should be read as such) are too drastic and severe. Learned counsel G 35 (2015) 16 SCC 542 @ para 53 36 Northern Indian Glass Industries v. Jaswant Singh and Ors., (2003) 1 SCC 335; Gulam Mustafa v. State of Maharashtra, (1976) 1 SCC 800; Sita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi and Ors., (2009) 10 SCC 501 and Chandragauda Ramgonda Patil and Anr. v. State of Maharashtra and Ors., (1996) 6 SCC 405 H

76 SUPREME COURT REPORTS [2020] 3 S.C.R.

A pointed out that as a result of allegations of non-payment of compensation, lands which had been vested in the State and were subsequently made over to the requisitioning agencies, and in respect of which title had passed multiple times to other parties, now are exposed to the threat of divesting of title. Learned counsel submitted that a deeming fiction cannot be taken to this extent; such disastrous consequences could not have been attributed by Parliament, because even if such were the intent, there has to be a mechanism to restitute those likely to be affected. Besides, the legality of such a law, divesting or taking away the title of such innocent third-party purchasers, would be suspect, because there is absolutely no provision for restitution or any form of compensation in their favour.

50Copy pinpoint50. On the question relating to the mode of taking possession, it was argued that when the State is involved in taking possession of the property acquired, it can take possession by drawing a panchnama. The normal rule of State possessing the land through some persons would not be applicable in such cases. On open land, possession is deemed to be of the owner. The way the State takes possession of large chunk of property acquired is by drawing a memorandum of taking possession as State is not going to put other persons in possession or its police force or going to cultivate it or start residing or physically occupy it after displacing who were physically in possession as in the case of certain private persons, in case they re-enter in possession of open land, start cultivation or residing in the house. Lawful possession is deemed to be of the State. A number of decisions that accepted the mode of drawing panchnama by the State consistently to be a mode of taking possession were cited. In Banda Development Authority v. Moti Lal Agarwal 37 this Court F observed that preparing a panchnama is sufficient to constitute taking of possession. If acquisition is of a large tract of land, it may not be possible to take physical possession of each and every parcel of the land and it would be sufficient that symbolic possession is taken by preparing an appropriate document in the presence of independent witnesses and getting their signatures. Even subsequent utilisation of a portion of acquired G land for public purpose was still sufficient to prove taking possession.

51Copy pinpoint51. It is submitted that when the State acquires land and has drawn memorandum of taking possession that is the way the State takes possession of large tract of land acquired, it ought not necessarily to 37 (2011)5 SCC 394 (hereafter referred to as “Banda Development Authority”) H

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 77

[ARUN MISHRA, J.]

physically occupy such land after forcefully displacing those physically A in possession. Possession in law is deemed to be physical possession for the State. This Court in a number of decisions has accepted the mode of drawing panchnama by the State consistently to be a mode of taking possession. It is submitted that this Court in T.N. Housing Board v. A. Viswam38 held that recording of memorandum/panchnama by the Land B Acquisition Officer in the presence of witnesses signed by them would constitute taking possession of land. Also, reliance is placed on other decisions.39

52Copy pinpoint52. Dealing next with the manner by which the period covered by an interim order of Court ought to be excluded for the purpose of applicability of Section 24 (2) of the Act of 2013, it is argued that a settled proposition of law is that an act of a Court should not prejudice any party. In view of the maxim actus curae neminem gravabit or even in its absence, any interim order granted by the court cannot prejudice any rights of the parties. It is argued that for a proper working of the justice delivery system, once the court passes an order staying dispossession, the State cannot take possession of the land. If an order of the Court disables a person to take any action, the doctrine nemo tentur ad impossible would be applicable that is, the law in general excuses a party which is disabled to perform a duty and impossibility of performance of a duty is a good excuse. Further, the Latin maxim lexnon cogitad impossibilia, that is, the law does not compel a man to do that which he cannot possibly perform. Since, it becomes impossible for the State to take possession, for the duration a stay or interim order is in operation, the consequence of an interim order cannot be used against the State. Reliance for this legal position is placed on the judgments in A.R. Antulay vs R.S.Nayak & Ors40, Sarah Mathew v Institute of F Cardio Vascular Diseases41 and in Dau Dayal v State of U.P42. In A.R.Antulay (supra) it was held that no party is prejudiced by the court’s mistake. Therefore, urged counsel, in cases where conduct of acquisition 38 (1996) 8 SCC 259 39 Balwant Narayan Bhagde v. M.D. Bhagwat, (1976) 1 SCC 700; State of T.N. v. G Mahalakshmi Ammal, (1996) 7 SCC 269; T.N. Housing Board v. A. Viswam, (1996) 8 SCC 259 and Om Prakash Verma & Ors. v. State of Andhra Pradesh and Ors, (2010) 13 SCC 158. 40 1988 Suppl (1) SCR 01 41 2014 (2) SCC 62 42 1959 Supp (1) SCR 639 H

78 SUPREME COURT REPORTS [2020] 3 S.C.R.

A proceedings were held up after the passing of an award, due to the interim order of any court, in the absence of any specific provision to that effect, a party who cannot perform its duties, and but for the order, could have performed its stipulated task, within the time assigned, should not be placed at a disadvantage, as that would amount to granting a premium for one’s wrongdoing, or rank speculation. It is urged, therefore, B that it is imperative that the period during which the State or the acquiring authority was prohibited/ injuncted by an interim order of the court from taking possession has to be excluded. This principle, submit learned counsel, is based on settled common law principles. These are in fact rules of equity, justice and sound logic. In the absence of their being a C prohibition in the law these principles would be attracted. The efficacy and binding nature of such common law principles cannot be diminished or whittled down in the absence of any express prohibition in law. Coupled with the aforesaid principle is also a principle of restitution. An interim order passed by the Court merges into the final decision, goes against the party successful at the interim stage. Unless otherwise ordered by the court, the successful party at the end of the litigation would be justified in being placed in the same place in which it would have been, had the interim order not been passed. Undoing the effect of an interim order by resorting to the principle of restitution is in fact an obligation of the court. The above principles have been culled out and applied by this Court in the judgment in South Eastern Coal Field Ltd v State of M.P. & Ors.43. Learned counsel argued that general common law rules of equity, justice and sound logic would certainly apply. It is submitted that similarly, the doctrine of restitution has been discussed in several other judgments of this Court including State of Gujarat v Essar Oil Ltd44. It is, thus, submitted that the mere absence of an express provision under Section F 24(2) – to exclude the period during which an interim order operates, which prevents the making of an award, or taking over of possession of acquired land, would not in law imply that such restitutionary and equitable principles would be inapplicable. Contentions on behalf of landowners G

53Copy pinpoint53. Mr. Shyam Divan, learned senior counsel, led the arguments on behalf of landowners. He urged that the Act of 2013 is a new, transformative and radical measure. The new law is a welfare state 43 2003 SCC 648 44 H 2012 (3) SCC 522

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 79

[ARUN MISHRA, J.]

law, not a colonial law - unlike the Act of 1894. Mr. Divan submitted that A the Act of 1894 resulted in several rounds of repeated litigation on various aspect, such as payment of compensation, lack of legislatively mandated timelines for completion of acquisition proceedings, etc. This also resulted in amendments to the Act of 1894 (notably, the amendments of 1967 and 1984) which, to some extent, sought to grant relief to landowners. B However, these too got mired in litigation. Learned counsel relied on the judgments, reported as Dev Sharan v State of Uttar Pradesh45 and Radhey Shyam v State of UP46. Repeated litigation was the result of an unfair legal regime. It was submitted that such judgments of this Court highlighted that the Act of 1894 was enacted more than 116 years ago to facilitate acquisition of land and immovable properties for construction of roads, canals, railways, etc. This law was frequently used in the post- independence era for different public purposes like laying of roads, construction of bridges, dams and buildings of various public establishments/institutions, planned development of urban areas, providing of houses to different sections of the society and for developing residential colonies/sectors. In the recent years, there is acquisition of large tracts of land in rural parts of the country in the name of development and their transfer to private entrepreneurs, who utilize it to construction of multi- storied complexes, commercial centres and for setting up industrial units. Similarly, large scale acquisitions were made on behalf of companies by invoking the provisions contained in Part VII of the Act. Resultantly, E such acquisition led to deprivation of the source of livelihood of land owners, engaged in agricultural operations and other ancillary activities in rural areas. A large number of these people are unaware of, and unable to assert their rights, and secure fair compensation. The unrest and inequity which arose out of these deprivations, impelled the State to enact a modern law, which ensured not only fair compensation, but other rights such as rehabilitation, employment, higher solatium and a guarantee against deprivation of certain kinds of lands. Thus, the Act of 2013 ushered a new regime that starts from a fresh direction. Learned counsel also relied on Bharat Sewak Samaj v. Lieutnant Governor & Ors.,47 to say that the provisions of the Act of 1894 were outdated and were misused and were oppressive to the interest of the landowners. Hence, the Act of 2013 was enacted and that this Court ought to interpret in the spirit of 45 (2011) 4 SCC 769 46 (2011) 5 SCC 553 47 2012 (12) SCC 675 H

80 SUPREME COURT REPORTS [2020] 3 S.C.R.

A the new beneficial legislation. Learned counsel urged that the benefits so conferred should not be taken away by this Court by narrowly interpreting its provisions.

54Copy pinpoint54. Mr. Divan relied on the Statement of Objects and Reasons of the Act of 2013 to say that the new law was framed, in recognition of concerns expressed by the property owners of forcible acquisition without following due process and without paying appropriate compensation affecting livelihood of such owners, many times, who are small property owners or persons having small agricultural holdings and having been dependant on the said holdings, the new Act is made. The Act aims to provide just and fair compensation, make adequate provision for rehabilitation and resettlement for the affected persons in the family, determination of compensation package on scientific methods. It was urged that being a welfare legislation, the Act of 2013 constitutes a wholesome rejection of the colonial approach. Learned counsel urged that under the new Act, unlike the Act of 1894, a Social Impact Assessment D (SIA) report has to be prepared, under Section 7, as an integral component of acquisition proceedings. If acquisition is not resorted to, in a time frame, the acquisition lapses; likewise, the new Act contemplates the preparation of a rehabilitation scheme, which would note the (a) particulars of lands and immovable properties being acquired of each affected family; (b) livelihoods lost in respect of landless who are primarily E dependent on the lands being acquired; (c) a list of public utilities Government buildings, amenities and infrastructural facilities which are affected or likely to be affected, where resettlement of affected families is involved and (d) details of any common property resources being acquired.

55Copy pinpoint55. Learned senior counsel argued that Section 24 constitutes an exception to the general rule, i.e., lapsing of all acquisition proceedings, by reason of repeal of the Act of 1894, and operation of Section 114. Therefore, Section 24 has to be given effect to strictly, given that Parliamentary intent was to ensure that acquisition proceedings did not G result in oppression and hardship. It was argued that having regard to this salient feature, the provision (Section 24) should be literally construed. Learned counsel submitted that the objective of new Act must be kept in mind to understand the scope of Sections 11, 11 (A), 12, 31 and 34 of the 1894 Act, on the one hand, and provisions of Section of 24 of the Act of 2013 on the other. Furthermore, it was argued that the non-obstante H

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 81

[ARUN MISHRA, J.]

clause must be allowed to operate with full vigour in its own field. It was A stressed that such a provision is equivalent to saying that in spite of the provision or Act mentioned in the non-obstante clause, the enactment following it, will have its full operation of that, the provision indicated in the non-obstante clause will not be an impediment for the operation of the enactment. Decisions in this regard were cited by counsel.48 B

56Copy pinpoint56. Mr. Divan relied upon the three stages preceding the Act of 2013 to urge that there was no doubt in the mind of Parliament, that lapsing of acquisition proceedings was intended to ensue, in the event compensation were not paid; or possession were not taken, in respect of awards made five years prior to coming into force of the Act of 2013. It was argued that Section 24 should be given a plain and literal construction, C except to the extent that the term “paid” occurring in Section 24(2) would also cover cases where a deposit is made before the Reference Court in situations covered by Section 31(2) of the 1894 Act. Elaborating on this, it is urged that the first decision of this Court, i.e., Pune Municipal Corporation (supra) took note of Section 24(2) in the context of a pre- D existing law. The Court was alive to the fact that under the Act of 1894, where payment of compensation was tendered and the land owner refused to accept the amount, the State is nevertheless obliged to ensure that at all times, the amount should be made available, in a place or an account, not within its control. It was urged, therefore, that actual tender of the amount of compensation is a sine qua non for the act of payment to be completed. It was considered that in that event, the land owner does not accept the amount, it should be deposited with the Court, a neutral and independent authority to whom the land owner or anyone claiming under him can approach and draw the amount. It was submitted that this obligation cannot be brushed aside because aside from the question of acceptance of compensation without prejudice, even at a later stage, the land owner might wish to reconsider the compensation and avail of the amount.

57Copy pinpoint57. Learned counsel submitted that the obligation to deposit the amount in the Reference Court is an independent and absolute one in that it is irrespective of whether the land owner sought a reference for higher compensation to the Court (under the Act of 1894). Learned counsel urged this Court to accept this interpretation, which according 48 Madhav Rao Scindhia v. Union of India 1971 (1) SCC 85 (11 Judges); Smt. Parayankandiyal Eravath v. K. Devi (1996) 4 SCC 76 (2 Judges). H

82 SUPREME COURT REPORTS [2020] 3 S.C.R.

A to him, would give full effect to the intention of Parliament, i.e., to save intention of Parliament. It was again highlighted that Parliamentary intention was firstly to repeal the previous law to a limited extent and save ongoing acquisition proceedings – in terms of Section 24(1) and usher a new regime, i.e. Section 24(2) whereby indolence on the part of the State agencies either with respect to payment of compensation or with respect to taking over of possession, resulting in the lapse of acquisition proceedings itself. Learned counsel relied upon the decisions of this Court which followed and applied the law declared in Pune Municipal Corporation 49.

58Copy pinpoint58. It was argued that the submissions on behalf of the State and the development authorities that “payment” included deposit with the treasury or some other authority other than the Reference Court, could not have been termed as compliance with the Act of 1894. Here, it was urged that Parliament was acutely alive of the fact that the previous land acquisition regime resulted in injurious and unconscionable delays in payment of compensation. Furthermore, even after awards were made, possession was never taken. This led to a great deal of uncertainty as far as the land owners were concerned because they could not move ahead in their life without compensation nor could they take any steps to acquire new lands or properties. It was precisely to address this mischief, rather a widespread one, that the Parliament wished to enact a “bright line approach” whereby all acquisitions which did not culminate either in payment of compensation or taking over of possession in respect of awards made five or more years prior to 1.1.2014 had to lapse. It was submitted that Section 24(1) provided a limited window in that it saved some acquisitions, i.e., notably where awards had been made but further proceedings had not been taken or where awards had not been made in 49 Bharat Kumar v State of Haryana (2014) 6 SCC 586 (hereafter “Bharat Kumar”); Bimla Devi v State of Haryana (2014) 6 SCC 583 @ para 3; Union of India v Shiv Raj (2014) 6 SCC 564 at para 22; Sree Balaji Nagar Residential Association (supra) at para 14; State of Haryana v Vinod Oil and General Mills 2014 (15) SCC 410 at para 21; Sita Ram v State of Haryana (2015) 3 SCC 597 at paras 19, 21; Ram Kishan v State of G Haryana (2015) 4 SCC 347 at paras 8, 9, 12; Velaxan Kumar v Union of India 2015 (4) SCC 325 at paras 15, 16, 17 (hereafter “Velaxan”); Karnail Kaur v State of Punjab (2015) 3 SCC 206 at paras 17, 18, 23; Rajive Chowdhrie HUF v State (NCT) of Delhi (2015) 3 SCC 541 at para 1; Competent Automobiles Co. Ltd v Union of India AIR 2015 SC 3186 at para 4; Govt of NCT of Delhi v Jagjit Singh AIR 2015 SC 2683 at para 3; Karan Singh v State of Haryana 2014 (5) SCC 738 at para 5; Shashi Gupta & Ors. v. State of Haryana 2016 (13) SCC 380 at para 5; Delhi Development Authority v H Sukhbir Singh (2016) 16 SCC 258 at para 1 (hereafter “Sukhbir”).

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 83

[ARUN MISHRA, J.]

both cases less than 5 years prior to 1.1.2014. It was only in these two limited instances that acquisition proceedings were allowed to continue or preserved. Thus, Parliamentary intent was that in cases of all awards made five years or more prior to the coming into force of the Act, if compensation was not paid or possession of the acquired land not taken, automatically, as a matter of law there was to be a lapse (of such acquisitions). This legal consequence crystallised and was in consonance with the other provisions of the Act of 2013. Arguing that if one were to take into account this perspective, there can be no doubt that the expression “paid” cannot mean anything other than tendering of compensation and in the event of its refusal, or the three contingencies contemplated under Section 31(2) of the Act of 1894, it is deposited in C Court. If these eventualities were not fulfilled and the amounts were merely kept back with the Government by it, any compliance with some norms evolved as part of the treasury or financial code there could have been no payment or deposit in the eyes of law. Learned counsel submitted that this Court should affirm the decision in Sukhbir Singh. It was also submitted that unless Section 31 of the 1894 Act which postulates the performance of a public duty in a particular manner and (through stipulated three eventualities), such duty could be said to be fulfilled only and only if that procedure were followed. Learned counsel relied upon the judgment in Bharat Kumar, which noted that Section 24(2) has a beneficial intent and begins with a non-obstante clause. Therefore, urged counsel, literal meaning is to be preferred. It was highlighted that Section 24(2) achieved a two-fold purpose, i.e., to preserve acquisition proceedings initiated before the commencement of the Act and secondly, conferring rights upon the land owners and other parties which did not hitherto exist. Since these rights relate to the right to property which is guaranteed by Article 300A of the Constitution, full effect must be given to them rather than the construction which would destroy its very purpose. In support of this argument, learned counsel relied upon Union of India v. Shivraj50.

59Copy pinpoint59. Learned counsel submitted that the decision in Pune Municipal Corporation (supra) was itself conscious of Section 31 and the contingencies or eventualities contemplated under Section 31(2). That apart, it also relied upon Ivo Agnelo Santimano Fernandes v. State of Goa51, to say that the State cannot be – in the event of non-acceptance 50 (2014) 6 SCC 564. 51 (2011) 11 SCC 506 H

84 SUPREME COURT REPORTS [2020] 3 S.C.R.

A of the compensation by the land owner or its inability to locate the land owner or in the event of a dispute – keep the compensation amount with itself and claim it to be part of same general treasury amount and proceed to utilise it. It was submitted that precisely to deal with this practice, the appeal provided that non-payment of compensation – and in the event of any of the contingencies accruing in Section 31(2) of the 1894 Act, the failure to deposit it with the Reference Court would result in lapse of entire acquisition itself. It was submitted that this interpretation is not only literal but followed the objective and purpose sought to be achieved by the Parliament through the provision. Learned counsel urged this Court that the literal interpretation in this case would also accrue with an equitable interpretation and ensure that the real benefit of the new law would accrue to land owners deprived of their properties and livelihoods for long periods without payment of compensation. Learned counsel, therefore, urged that the beneficial interpretation adopted by this Court in Velaxan Kumar (supra) should be accepted. Rajive Chowdhurie HUF (supra)52, it was argued, while interpreting Section 24 of the Act D of 2013 Act, the Court should not in the guise of an interpretative exercise don the cap of a legislature. It was submitted as to the State’s argument that the disjunctive “or” in Section 24(2) should not be read as conjunctive “and”. It was argued in this regard that in all the three drafts that the Bill (which ultimately culminated in the Act of 2013) went through53, the expression used consistently was “but the physical possession”. In the three stages, the intent was to normally ensure that the acquisition proceedings pending for a long time were to lapse. It was emphasised that in the first version, i.e., the Bill introduced on 5.9.2011, all acquisitions were deemed to have lapsed regardless of whether the award was made or not, if possession were not taken and also in those cases where the awards were not made. Therefore, this Court should be cautious in interpreting the disjunctive “or” in any manner other than in the literal sense.

60Copy pinpoint60. The three broad situations covered under Section 24 are (i) cases where the land acquisition process shall be deemed to have lapsed; G 52 (2015) 3 SCC 541 53 Land Acquisition Rehabilitation and Resettlement Bill 2011 – introduced in Lok Sabha on 05.07.2011; Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Bill, 2013 as passed by the Lok Sabha on 29.08.2013 and the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation H and Resettlement Act 2013 (as passed by both Houses of Parliament on 05.09.2013).

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 85

[ARUN MISHRA, J.]

(ii) cases where the landholders are entitled to compensation in accordance with the provisions of the Act of 2013; and (iii) cases where the land acquisition proceedings continue under the 1894 Act as if it had not been repealed. It was urged that the first set of cases are covered by Section 24(2). The two conditions to be fulfilled as on 1.1.2014 to trigger the deeming provision into operation, according to Mr. Divan, are firstly, there must be an award under section 11 of the 1894 Act which has been made five years or more prior to the commencement of the Act of 2013 (i.e., an award made on or before 1.1.2009); and secondly either physical possession of the land has not been taken from the landowner or compensation had not been paid as required under the Act of 1894. C

61Copy pinpoint61. It was argued that the second set of cases, where enhanced compensation has to be paid, under the Act of 2013, are covered under Section 24(1) and the proviso to Section 24. Section 24(1) provides that where proceedings have not reached the stage of an award under section 11 of the 1894 Act, the provisions to determine compensation under the D Act of 2013 apply. Further, the proviso to Section 24 provides for compensation in terms of the Act of 2013 where the following conditions are fulfilled, firstly an award has been made under section 11 of the 1894 Act; and secondly, compensation in respect of the majority of the land holdings has not been paid to the landowners. It was submitted that the “majority” is required to be reckoned with reference to the award passed under the Act of 1894, and that awards contemplated by the proviso are awards made within the period of five years prior to the commencement of the Act of 2013 i.e., awards made between 1.1.2009 and 31.12.2013.

62Copy pinpoint62. Learned counsel stated that the third set of cases is where the land owners do not get any benefit under the Act of 2013 and the acquisition proceeds under the provisions of the Act of 1894. It was argued that these cases are covered by section 24(1)(b) and to which neither section 24 (2) nor the proviso applies. This covers situations where though an award has been passed five years prior to the commencement of the Act, neither of the conditions for deemed lapsing are present. Mr. Divan urged that the provisions of the Act of 1894 will continue to apply without any benefit in terms of increased compensation where an award is passed within 5 years of the commencement of the Act of 2013 but the majority of landholders have been paid. H

86 SUPREME COURT REPORTS [2020] 3 S.C.R.

63Copy pinpoint63. Mr. Divan then urged that this understanding of the provisions of Section 24 is based on established rules of interpretation i.e., first, the golden rule of interpretation requiring the Court to interpret statutory provisions literally. Second, the rule of purposive interpretation was to be used, having regard to the object of the enactment, the purpose of the law in seeking to correct historical injustices and the legislative intent to confer the benefit of the Act of 2013 on certain landholders affected by the regime under the Act of 1894. The third rule to be employed, is the rule of harmonious interpretation, such that all words of the provision are given effect and no part of the provision is rendered otiose; fourth, contemporaneous understanding of administrators responsible for implementing a new law. Also an interpretation in such a manner as to avoid inserting words, subtracting words, and avoids anomalies or absurdities was necessary. Lastly it was urged that giving a deeming provision its natural effect, which in this case results in a rule of interpretation that the provisions of a beneficent legislation ought to be interpreted in the case of ambiguity in favour of the citizens. 54 D

64Copy pinpoint64. It was submitted that the interpretation of Section 24 outlined above gives the plain and natural meaning to the key expressions used in section 24 - “physical possession”, “paid”, and “deemed to have lapsed”. He further argued that since Section 24 of the Act of 2013 must be read with section 31 of the Act of 1894, the expression “tender” is also relevant E and the interpretation he has advanced is consistent with the natural meaning of “tender”.

65Copy pinpoint65. Learned counsel for the landowners urged that the words ‘paid’ and ‘deposited in the account of the beneficiaries’ are two permissible modes of making compensation available to landowners. F Mr. Divan contended that these are two modes of paying the money to the landowners. ‘Paid’, it was urged, means paid. It does not mean a deposit in treasury. He further submitted that ‘deposit in the account of the beneficiaries’ does not mean a deposit in the treasury. He argued that there was no reason to depart from the rule of literal interpretation, and the manner of payment, as held in Pune Municipal Corporation (supra), is to be strictly in terms of Section 31 of the Act of 1894 as it is 54 Counsel cited Pratap Singh vs. State of Jharkhand (2005) 3 SCC 551 (5 Judges); Central Railway Workshop vs. Vishwanath (1969) 3 SCC 95; and M/s International Ore and Fertilisers (india) Pvt. Ltd. vs. Employee State Insurance (1987) 4 SCC 203 in support of the rule of beneficial construction of a welfare and remedial statute.

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 87

[ARUN MISHRA, J.]

an expropriatory legislation. It was contended as to the learned Solicitor A General’s submission that payment in terms of Section 24 is complied with if the amount is tendered to the landowners, overlooks the obligation of payment in terms of Section 24 is only met if the amount is actually paid to the landowners. On the occurrence of the contingencies mentioned in Section 31(2) of the Act of 1894, it ought to be deposited in the Reference Court as defined under Section 3(d) of the Act of 1894. He submitted that tendering money is not payment and Section 31(1) of the Act of 1894 uses the words ‘tender’ and ‘paid’ to convey different meanings and obligations. Mr. Divan argued that the judgments cited by the learned Solicitor General in this regard essentially deal with labour laws, and are inapplicable as these statutes did not contain a provision such as Section 31 of the Act of 1894, which strictly and precisely prescribes what is to be done in the event when the payment is not accepted.

66Copy pinpoint66. It was argued that no rules under the Act of 1894 contemplate deposit in the treasury. Learned counsel submitted that standing orders, which are merely administrative instructions issued for conducting monetary transactions of the State, have in some cases been confused to be Rules framed under Section 55 of the Act of 1894. The Rules or the Standing Orders have not been produced and no evidence has been furnished of compliance with the requirements of Section 55, such as notification in the Gazette. All learned counsel submitted that in any case, delegated/subordinate legislation cannot be inconsistent with, or in any manner depart from the express and precise language of the parent enactment. Again, it was submitted that the State’s argument with respect to deposit of compensation amounts in the treasury, is untenable, for two strong reasons: one, that Section 31 itself directed the compensation to be deposited in the court. In the teeth of this express position, the State cannot be heard to say that it could nevertheless “deposit” the amount in the treasury, which is nothing but keeping the money with itself. It was secondly urged, that even otherwise, the Act of 1894 visualized that in regard to matters not provided expressly, rules could be made (Section 55). G

67Copy pinpoint67. Learned counsel submitted that the State’s argument regarding the interpretation of ‘physical possession’ to be possession as per the ratio in Banda Development Authority (supra), is incorrect. It was submitted that it is important to take note of the conscious inclusion of H

88 SUPREME COURT REPORTS [2020] 3 S.C.R.

A the word ‘physical’ in relation to possession. An important distinction is required to be drawn in respect of de jure / constructive / deemed possession and ‘physical’ possession. Even if it is conceded that drawing of a Panchnama is a valid mode of initially taking possession of vast tracts of vacant land, the intention of the legislature is that over a period of five years, such possession must transform to evident and demonstrable B ‘physical’ possession i.e., the manifestation of actual control and dominion over the subject land(s). Learned counsel relied on several decisions in support of their argument that “physical possession” should be construed as actual physical possession, and not constructive, or de jure possession, which in most cases is possession on paper. 55

68Copy pinpoint68. Arguing next regarding the interpretation of the proviso to Section 24, it was stated that the same is to be read as a proviso to Section 24 and not Section 24 (1) (b). Mr. Divan submitted that a proviso may in certain cases operate as an independent provision, and the proviso to Section 24 is a stand-alone provision which operates on its own terms. D To the extent it is linked to any provision in Section 24, it is linked to Section 24(1)(b) since it permits enhanced compensation (in a particular contingency of non-payment to majority of the landowners) even if an award may have been passed as contemplated in Section 24(1)(b). Mr. Divan placed reliance on the reasons given in the judgment of Delhi Development Authority v. Virendra Lal Bahri, [SLP [C] No.37375/ E 2016].

69Copy pinpoint69. All counsel for landowners submitted that there is no valid reason to exclude from the period of 5 years under section 24(2), the time during which a landowner had the benefit of an interim order of a court. In support of this argument, it was argued firstly, that Parliament F did not expressly exclude such a period in Section 24. Second, where in the Act of 2013, the legislature did want to exclude the period of a stay or injunction, it has done so by using express words such as in the proviso to Section 19 and the explanation to Section 69 of the Act of 2013. Third, he submitted that the maxim “actus curiae neminem gravabit” which means that “the act of court shall prejudice no one” has no application

55 Seksaria Cotton mills v. State of Bombay 1953 SCR 325 Para 21; Superintendent v. Anil Kumar (1979) 4 SCC 274 (Paras11-16); B. Gangadhar v. Rajalingam (1995) 5 SCC 238 (Para 5-6) Guruchand Singh v. Kamla Singh (1976) 2 SCC 152 (Paras 21-24). Mohan Lal v. State of Rajasthan (2015) 6 SCC 222 (2 Judges) H Para 11 to 15 endorsing contextual interpretation of the term

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 89

[ARUN MISHRA, J.]

here, as this is a maxim which is applied generally as a principle of equity in individual cases to ensure that there is no injustice. The maxim rarely, if ever, is applied to interpret a statute. Mr. Divan submitted that this Court has declined to rely on this maxim in at least two reported decisions - Padma Sundar Rao v. State of Tamil Nadu56 and State of Rajasthan & Ors. v. Khandaka Jain Jewellers57. Mr. Divan further placed reliance on Snell’s Equity (33rd Edition, 2015), which states that the maxim of equity is not a specific rule of principle of law. It is a statement of a broad theme which underlies equitable concepts and principles and as a result, the utility of equitable maxims is limited. It further states that the maxim may provide some limited assistance to court in two broad types of situation: C “The first is when there is some uncertainty as to the scope of a particular rule of principle, and a court has to fall back on more basic principles to resolve that uncertainty. The second is when a court is exercising an equitable discretion, and seeks to structure that exercise by referring to broader, underlying principles.”

70Copy pinpoint70. Learned counsel further placed reliance on a three-judge Bench decision of this Court in The Commissioner of Sales Tax v. Parson Tools and Plants58, where it was held that: ‘If the Legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity.’ It was submitted that there is no occasion for excluding time spent on litigation. Parliament could have specified a particular date such as 1.1.2009 as the cut-off point under section 24(2). Had a date been so specified, there would have been no occasion to exclude time. Instead of specifying a particular date, the Legislature in the Act of 2013 prescribed the cut-off point with reference to the commencement of the 56 (2002) 3 SCC 533 57 (2007) 14 SCC 339 58 (1975) 4 SCC 22 H

90 SUPREME COURT REPORTS [2020] 3 S.C.R.

A Act. This method of specifying the cut-off point would not attract the maxim “actus curiae neminem gravabit”. It was argued that the occasion for excluding time would arise only where there is a starting point and a statutory period to complete the task. In such provisions, it may be reasonable to provide for the exclusion of time by appropriate language in the section. Here, where a cut-off date is prescribed and as B such there is no starting point and period for completion of the task, the notion of excluding time spent in litigations is an alien concept. It was, therefore, submitted that it is not the court’s business to stretch the words used by the Legislature to fill in gaps or omit words used in the provisions of an Act, i.e., to fill in an obvious and conscious exclusion of a C contingency, or a casus omissus. In support of this submission, learned counsel relied on decisions of this Court.59 It was also argued that this Court should not also exclude any period or periods, spent in litigation, when interim orders were operating, because, firstly, in each such instance, the landowners were aggrieved by different kinds of arbitrary behaviour, such as not providing opportunity of mandatory hearing (under an absolutely absurd rejection of objections; failure to take note of actual developmental needs, and taking of lands, unconnected with a public purpose, or obvious instances of expropriation of utilities and amenities such as schools, community assets, etc. These led the courts, on a prima facie consideration to assess the merit in the challenge and grant interim orders. Such instances could not be called as frivolous litigation, warranting exclusion of time, to deprive the benefit of lapsing, enjoined by the new law. Secondly, it was argued that repeated attempts were made in Parliament to amend the law, to exclude the time, in the manner sought by the State, by use of the maxim actus curiae neminem gravabit. However, such amendment could not pass muster. F

71Copy pinpoint71. Learned counsel contended that Parliament’s intent is to confer a benefit on landholders who were impacted by the erstwhile unfair regime. Urging that under the old law, landholders, to protect their assets from expropriation of their land at paltry amounts, were compelled to use legitimate systems of securing redress by filing cases in court, counsel G urged that the correct approach, is to view litigation as a necessity under an unjust former regime and not exclude the period spent under litigation in such an unfair regime. He further urged that the deeming provision with its clear and verifiable benchmarks on the five-year cut-off period, 59 G. Narayanswami v. G. Pannerselvam (1972) 3 SCC 717 and Kuldip Nayar vs Union H Of India (2006) 7 SCC 1- both decisions of Constitution Benches.

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 91

[ARUN MISHRA, J.]

physical possession and payment is easy to operate. Introducing notions such as exclusion of time due to pending litigation would complicate the working of the statute.

72Copy pinpoint72. Learned counsel urged that Section 24(2) uses the expression “or”. The Legislature intended the two conditions separated by the word “or” to be alternative conditions. Four situations arise where the conditions are disjunctive: firstly, when physical possession is with the State and compensation is with the citizen, there is no deemed lapse; secondly, when physical possession is with the citizen and compensation is with the State, there is no need for restitution as the State has retained the compensation amount; thirdly, when physical possession is with the citizen, and the compensation is also with the citizen, in such scenarios, the citizen must return the compensation. It was urged that where the State has paid the money by deposit in the Reference Court and the money was lying with the Court, the State may withdraw the money on deemed lapsing. However, if the State were to decide to acquire the land afresh, the compensation already paid may be adjusted; and further since inherent in the notion of lapsing is the requirement for restitution, the State can recover the compensation, inter alia by framing suitable rules. The citizen cannot retain compensation “had and received” since this would amount to unjust enrichment. It was submitted that where the physical possession as well as compensation are with the State, i.e., where the State has taken possession without paying compensation as required under the Act of 1894, there is no absolute vesting free from all encumbrances as contemplated under Section 16. In the absence of vesting, the State is required to restore possession to the citizen.

73Copy pinpoint73. Learned counsel argued that having regard to the unfair working of the Act of 1894, giving effect to the legislative intent by reading the expression “or” as “or” is the correct interpretation with beneficent consequences for the landowner. The learned counsel submitted that reading the expression “or” as “and” not only does violence to the plain language of section 24(2) but it also reduces the deeming provision down to vanishing point. Should a conjunctive reading of the conditions be combined with exclusion of the time spent in litigation or due to a stay, then the whole of section 24(2) will be robbed of content since it will apply to very rare cases. It was further submitted that Section 24 does not lay down any specific conditionality in terms of how far back in time the awards contemplated under section 24(2) could have H

92 SUPREME COURT REPORTS [2020] 3 S.C.R.

A been made. The deeming provision under Section 24(2) operates w.e.f. 1.1.2014 and its effect would cover all cases that fulfil the conditions provided in the statute. Learned counsel cited decisions in support of the interpretation that “or” should be construed disjunctively, not conjunctively as “and”.60

74Copy pinpoint74. Learned counsel stressed that there are no vested rights created in the State in any case till compensation has been paid and possession has been taken. The Act of 2013 is a beneficial legislation and a radical departure from the previous unjust and oppressive regime. It intends to confer significant benefits to the landowners and makes the exercise of the power of eminent domain compatible with our C constitutional values. It ought to therefore be given an interpretation which favours the landowners. Finally, he argued that the decision in Indore Development Authority (supra) erroneously upset a consistent line of decisions which began with Pune Municipal Corporation (supra). Subsequent decisions of this Court following Pune Municipal D Corporation (supra) have also considered a host of arguments/issues and there is no compelling reason to make a departure. He submitted that even a larger Bench of this Court is bound to pay due deference to the principle of Stare Decisis.

75Copy pinpoint75. Supplementing the submissions, Mr. Dinesh Dwivedi, learned senior counsel for the landowners, argued that the meaning of the phrase “compensation has not been paid” should be considered, given that in Section 24(2) “paid” is not used. The phrase “has not been” is used in respect of both “possession” as well as “paid”. Therefore, it must mean the same in both respects. The important factors to be borne in mind – and to distinguish the phrase “paid” from “deposit”, is whether in the court under Section 31 (2) or in the treasury under Section 31(1). It is urged that an analysis of Sections 17 (3A) & (3B), 31 (1) & (2) and Section 28 read with Section 34 of the Act of 1894 shows that these provisions clearly distinguish between tender, paid or deposit whether in the court or the treasury.

76Copy pinpoint76. Learned counsel argued that three different words used in the same Act, in various provisions of the Act, cannot mean the same. It follows also from the reading of Section 19(1)(c) and (cc). In both these 60 Naga People’s Movement of Human Rights vs. Union of India (1998) 2 SCC 109 (5 Judges); R.S. Nayak v A.R. Antulay 1984 (2) SCC 183; and Life Insurance Corporation H v D. J. Bahadur 1981 (1) SCC 315.

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 93

[ARUN MISHRA, J.]

provisions word “tender” is used in contrast to word “paid” while word paid is used in contrast to word “deposit”. The word “deposit”, wherever used, is in the context of “deposit in Court” only not treasury. The expression “tender payment” under Section 17 (3A) and Section 31(1) of the Act of 1894 were followed by the words “pay it to them”. Therefore, tender cannot mean “paid”. It is urged that these terms fall in Part V of the Act, titled as “Payment”. The term “pay it to them” under Section 31 after “tender” must mean an additional action or step. When after “tender” an effort is made “to pay” the compensation and the same is accepted by the beneficiary, it becomes “paid”. The “deposit” under Section 31(2) only comes in when the beneficiary declines payment. This clearly implies that “tender of payment” cannot be equated with “pay it to them” or “deposit in Court” under Section 31(1) and 31 (2). It is argued that what follows is that tender of payment by itself is not enough. The State’s interpretation is contested as incorrect because if tender is equal to being paid then why does legislature provide for “deposit in court”. The amount is deemed to be paid on tender and the obligation to pay is discharged then the question is why require “deposit in Court”. Learned counsel argued that “Tender” can never be deemed as “paid”: This is not only evident from reading of Section 19(c) where the term “paid or tendered” is depicted as alternates. Similarly, “paid or deposited” are used alternately. Likewise, Sections 17(3)(b), 19(cc) and 34 use these words alternately. As said above if E “tender” would amount to “paid” and then the compensation would be deemed to be paid, resulting in discharge of obligation to pay, then why deposit in court under Section 31(2) to make it “custodia legis”. Section 31(2) would become redundant in most of the cases.

77Copy pinpoint77. Learned counsel conceded that there is no doubt that on a F decline of payment by the beneficiary it has to be mandatorily deposited in Court under Section 31(2). The provision uses the phrase “shall deposit” and this gives a valuable right to the payee, not only of interest in the event it is not “deposited in court” but also a right to seek investment of compensation under Section 33. These statutory rights are adversely affected if “deposit” is not in “court”. Therefore, it is G amply clear that “deposit in treasury is not an option available. It cannot be a substitute for “deposit in Court”. Besides Section 31(1) and 31 (2) of the Act of 1894 present a complete code for payment and there is no gap or uncovered area to permit rules to supplement. Any deposit in treasury was in breach of Section 31 and therefore, impermissible. Also, H

94 SUPREME COURT REPORTS [2020] 3 S.C.R.

A most of the States had no rules under Section 55. In this context, executive instructions cannot prevail over law. Law can never be interpreted with the aid of subordinate legislation or executive instructions. It was further submitted that Sections 17(3A) and (3B), 28, 31, 33 and 34 of the Act of 1894 are a clear pointer that “tender” is not “paid” and neither is “deposit”. Likewise, these provisions frequently use words B “paid or deposited” which shows they are different. Deposit cannot be, therefore, equated with paid as they are more than once separated by word ‘or’.

78Copy pinpoint78. It was contended that the scheme of the Act of 1894 was clear and categorical that the amount of compensations when accepted by the beneficiary is deemed to be “paid” for interest to stop running. The running of interest under Section 34 denotes non-discharge of obligation to pay, otherwise why pay interest? The “deposit in Court” may stop running of interest and therefore, may for this purpose be taken to be paid, but when it comes to actual meaning in the above provisions, “paid and deposit” are invariably separated by the use of word “or” in between them. Therefore, it is submitted that when Section 24(2) of the New Act uses the phrase “compensation has not been paid” it uses the terminology of the proviso to Section 34(proviso) and must have the same meaning “has not been paid” cannot be read as “has not been deposited”. If this is the right interpretation than the coverage of E Section 24(2) also expands to cover those cases in which the compensation has not been actually paid but has been deposited in the Court. This would also be in keeping with the legislative policy contained in the Preamble, to give just and fair compensation to those whose lands have been acquired as per the Old Act. Coverage of the New Act is co- F related to persons whose “land has been acquired”. The policy of Section 24 also reflects this expansive liberal approach of “just and fair compensation”. Section 24 would therefore have to be seen in the light of this liberal policy intent.

79Copy pinpoint79. It was urged that these States’ arguments regarding revival of G claims or resulting in impossible situations causing irreparable harm are not very relevant once the legislative policy is clear. The provision has to be interpreted in a manner that it subserves the legislative policy intent of giving just and fair compensation to those whose lands were acquired (possession taken) under the Act of 1894. Once the legislative policy or intent is clear then the objections relating to harsh consequences are not H

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 95

[ARUN MISHRA, J.]

really relevant. It was stated that State may be put into a difficult situation, but the solution too is provided in the last part of Section 24(2) which reflects the words “if it so chooses”, it can acquire afresh under Section

24. Learned counsel relied on Padma Sunder Rao (supra); Popat Bahiru Govardhane v. Land Acquisition Officer61 and B. Premanand v. Mohan Koikal62. It was urged that the legislative policy may cause hardship or difficulties to some or the State may be put to an impossible situation; yet cannot take away from Parliamentary intent. Parliament has enough wisdom to know these difficulties, the law prevailing earlier or the ground realities. It would be deemed to be not only aware of the difficulties, but also to have assessed them while framing the liberalised policy. The question is one of intent. The intent has to be seen primarily from the words used in the text. It is only if such intent is not clear that courts have to see them with the aid of the context. The difficulties as well as harsh consequences cannot be utilized to assess the intent embedded in the provision if they are clear, otherwise from the text, or the context. Not only has Parliament not provided any clause creating any kind of exception, or extension of five years in cases of litigating land oustees who may have an interim orders in their favour, stalling the acquisition or payment of compensation. All that the provision says is “or compensation has not been paid”. The projected policy intent is broad and unencumbered by any exception. This is a clearest indicator of legislative intent to cover all such cases that may cause hardship to the State or may be due to the fault of Court or the litigious land oustee. The intent is clear and therefore, has to be read apart from difficulties or hardships.

80Copy pinpoint80. It is submitted that the State’s contention with regard to a differential approach for possession and compensation is irrational and is against the very grain of Section 24(2) and is also unreasonable and discriminatory. It is unreasonable because there are hardly any cases where compensation may have been paid, yet possession may not have been taken. Most of the cases are under Section 17(1) where possession is invariably taken while compensation remains unpaid as award is not made. By reading word ‘or’ as ‘and’, the words “or the compensation has not been paid” become otiose or redundant. Parliament could have only said that lapsing would occur only if possession has not been taken, because if possession is taken then there would never be lapsing and 61 2003 (10) SCC 765 62 (2011) 4 SCC 266 H

96 SUPREME COURT REPORTS [2020] 3 S.C.R.

A there would be no need to consider “or” as “and”. Therefore, such an interpretation (i.e., reading “or” conjunctively) is contrary to every rule of interpretation and contrary to the Legislative policy indicated in the Preamble of giving just and fair compensation in cases of earlier acquisitions, which includes cases where possession has been taken.

81Copy pinpoint81. Learned counsel urged that Section 24(2) would become discriminatory if “or” is read as “and”. For this, it would be necessary to analyse Section 24(1)(a). Section 24(1)(a) applies to a situation where there is no award made till the commencement of the New Act. No award primarily means “compensation has not been paid”. Importantly in a case under Section 17 of the Act of 1894, which is most frequently utilised, possession may be taken before award is made or compensation is paid. In other words, Section 24(1)(a) does visualize or cover cases where possession may have been taken but “compensation has not been paid”. It, therefore, requires re-determination of compensation under Sections 26-30 of the New Act. The problems of who to pay the enhanced compensation, as referred above, would also arise in this situation. Yet Parliament has ignored these difficulties and provided for redetermination. Section 24(1)(a) may travel back to period of five years or more, or may be 10-15 years as in case of Section 24(2). It would not be reasonable to restrict the retrospectivity of Section 24(1)(a) with the aid of Section 11A of the old Act, to 2 years before commencement. It E would be incorrect because then one would be ignoring Explanation to Section 11A (proviso). The said Explanation visualises indefinite extension of the period of award from 2 years. It would not be, therefore, reasonable to exclude such cases where though possession may have been taken, but compensation may not have been paid for a very long period of time upto commencement of the new Act. Section 24(1)(a) does not contain any provision like Section 25 (proviso), Section 19(7)(proviso) and Section 69(2)(explanation) and therefore, is wide in its coverage in the absence of exceptions as above.

82Copy pinpoint82. Learned counsel urged that Section 24(2) is a special provision giving higher benefit because in the cases covered by Section 24(2) “compensation has not been paid” despite award. Would it be rational to read Section 24(2) in such a manner that deprives it of its value and worth and makes it ineffective. Section 24(2) would become ineffective as a whole because there would be rarest of the rare cases, where both the conditions would be fulfilled. The experience shows in vast majority H

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 97

[ARUN MISHRA, J.]

of cases of acquisition under the old Act, possession is taken while award A & compensation come much later. This is because Sections 9 & 17(6) of the Act of 1894 were used in vast majority of acquisitions and the Legislature was aware of it. The law does not compel doing of an act that is impossible. It is emphasized that the principle does not apply as the new Act is not requiring any such performance. The new Act after recognising the past, is providing new solutions, rights and benefits. Section 24(2) by itself does not compel performance of an impossible act. This principle could have been relevant during earlier Act but is hardly relevant for interpreting the scope of Section 24(2) of the New Act. Section 24 clearly postulates that even though the Act may be impossible of performance, or results in undue advantage to the beneficiary despite his fault in declining, yet benefit of Section 24(2) may be given without creating any exception. There is no constitutional restriction on the Legislature that such cases or situations have to be excluded. The legislature can provide benefit in the same manner to all, difficulties apart. Reliance is placed on certain decisions in support of this proposition.63 Therefore, such interpretation which excludes the benefits under Section 24(2) by resorting to such arguments of difficulties is meaningless. The giving of benefit to all by ignoring above circumstance is neither illegal nor unjust. It is neither anomalous nor absurd. It is urged that what the court feels is not important; what is relevant is the view of the legislature, to be culled out from the reading of only the text or the context; not in any other manner. For this rule, reliance was placed on Mohd. Kavi v. Fatmabal Ibrahim64 and other decisions.

83Copy pinpoint83. Other learned senior counsel, i.e M/s Dushyant Dave, Gopal Shankarnarayan, Siddharth Luthra, Nakul Dewan, Manoj Swaroop, Anukul Chandra Pradhan supplemented the submissions of Mr. Divan F and Mr. Dwivedi. It was argued by them that this Court should not depart from the rule of literal interpretation, because that would be both beneficial and purposive, given the oppressive nature of the Act of 1894. In this context, it was submitted that the expressions “paid” and “or” should be construed in the manner that Parliament intended, having regard to the overall intent of ensuring the acquisition proceedings, where either G 63 Martin Burn Ltd v Corporation of Calcutta 1966 (1) SCR 543; Commissioner of Agricultural Income Tax v Keshab Chandra Mandal 1950 SCR 435; and State of Maharastra v Nanded Parbhani Sangh 2000 (2) SCC 69. 64 1997 (6) SCC 71 and M.V. Javali v Mahajan Borewell & Co. Ltd 1997 (8) SCC 72; and Nanded Parbhani Sangh (supra); and SMS Pharmaceuticals Ltd. v. Neeta Bhalla (2005) 8 SCC 89. H

98 SUPREME COURT REPORTS [2020] 3 S.C.R.

A compensation was not paid, or possession was not taken, in respect of awards made before 1.1.2009, should lapse. It was submitted that there is no insurmountable difficulty or impossibility, even if possession is taken (but compensation not paid) and even if vesting occurs, Section 24(2) of the new Act expressly provides for lapsing. The remedy in that case, for the appropriate Government is the option of going through the acquisition again using emergency provisions. In that event, the authorities would have to provide for rehabilitation and enhanced compensation. In any case, the court always has the option in such cases where third party rights have ensued to do complete justice, by duly compensating those whose land is acquired, without disturbing the possession of third party who has been given the land.

84Copy pinpoint84. The learned counsel submit that this Court should base itself on the approach to interpret Section 24 of the Act of 2013 is that it is a savings clause with an exclusionary deeming provision. It is urged that the words “physical possession” under Section 24(2) should be read to reflect the actual state of affairs as on the date when the Act of 2013 came into force, i.e., there was actual physical possession of the land. This would also be the case in relation to the term “compensation not paid” under Section 24(2), where compensation would either have had to be paid or deposited in court; and that use of the term “or” signifies that the two conditions set out above are disjunctive. It is argued that E Section 114 consists of two sections (1) a repeal clause set out in Section 114 (1); and (2) a savings clause set out in Section 114(2). It is contended that there is a distinction in the manner in which a repealing clause is construed as compared to the manner in which a savings clause is construed. While a repealing clause, followed by a new legislation on the same subject-matter would result in a line of enquiry about what rights are obliterated under the old Act by the new Act, a savings clause would be construed in a manner that resurrects a provision, which would otherwise be obliterated on account of the repeal. In relation to a repeal clause, the effect of obliterating the provisions of the previous enactment would be as if it never existed, except for vested rights, which would be protected under Section 6 of the General Clauses Act. Section 6 of the General Clauses Act, thus operated as a savings clause. Learned counsel rely on the judgment of this court in State of Punjab v. Mohar Singh65 that the effect of repealing a statute was said to be to obliterate it as

65 H (1955) 1 SCR 893

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 99

[ARUN MISHRA, J.]

completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced, prosecuted and concluded while it was an existing law and that: “A repeal therefore without any saving Clause would destroy any proceeding whether not vet begun or whether pending at the time of the enactment of the Repealing Act and not already prosecuted to a final judgment so as to create a vested right”.

85Copy pinpoint85. Submitting that the effect of Section 6 of the General Clauses Act, is that unless the contrary intention appears, the repeal does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of any right, liability and penalty under the repealed Act as if the Repealing Act had not been passed. However, in case of the Act of 2013, it is urged that Parliamentary intent was not to simply let Section 6 of the General Clauses Act operate as the savings provision. Apart from Section 6, the intent, evident from Section 114(2), was to set out a specific provision which would save proceedings. It was submitted that those would be provisions that would otherwise not have been saved by the General Clauses Act.

86Copy pinpoint86. It is in this background that Section 24 of the Act of 2013 must be interpreted. While the Respondent accepts that Section 24 could have been more clearly worded to reflect the legislative intent as a savings provision, to fully appreciate the operation of Section 24 (1)(b) as a classical savings provision which saves proceedings under the Act of 1894 if an award had been made under Section 11, in a manner as if the Act of 1894 had not been repealed. Section 24(1)(a) deals with a situation where no award has been made and in providing for determination of compensation in terms of the Act of 2013 naturally would mean that proceedings under the Act of 1894 would be revived, save and except on the issue of computation of compensation. Having revived proceedings under Section 24(1), Section 24(2) provides for a deemed lapsing through a non-obstante provision for an award made five years or prior to the date of the commencement of the Act of 2013. This creates a legal fiction which, as held by this court in J.K.Cotton Spg. & Wvg.Mils Ltd. v. Union of India,66 is:

66 1987 Supp SCC 350 H

100 SUPREME COURT REPORTS [2020] 3 S.C.R.

A “...an admission of the non-existence of the fact deemed...The legislature is quite competent to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist.” Learned counsel also placed reliance on the decision of the B Constitution Bench in Bengal Immunity Co.Ltd. v. State of Bihar67 to the following effect: “[l] egal fictions are created only for some definite purpose”and referred to the decision East End Dwellings Co.Ltd.v. Finsbury Borough Council,1952 AC 109 at paragraph 71,which reads as follows: “if you are bidden to treat an imaginary state of affairs as real,you must surely, unless prohibited from doing so,also imagine as real the consequences and incidents which,if the putative state of affairs had in fact existed,must inevitably have flowed from or accompanied it.One of these in this case is emancipation from the 1939 level of rents.The statute says that you must imagine a certain state of affairs;it does not say that having done so,you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” E (Emphasis Supplied)

87Copy pinpoint87. Other decisions of this Court were also relied on, in this context.68 Learned counsel stated that given that it is a legal fiction which leads to a deemed lapsing of proceedings under the Act of 1894, Parliamentary intent under Section 24(2) ought to be construed so that F “physical possession” under Section 24(2) reflects the actual state of affairs as on the date when the Act of 2013 came into force; similarly, too the term compensation not paid under Section 24(2). It was stated, that retaining amounts in the treasury, pursuant to executive rules would not suffice for compliance with the payment condition. Learned counsel also urged that this court should interpret “or” as signifying a disjunctive G reading of the two conditions. Comparing this legal fiction created under Section 24(2) with the State’s obligations under the Act of 1894 would be inconsistent with the decisions of this Court, under which legal fictions

(1955)2 SCR 603

68 H MIG Cricket Club v.AbhinavSahakar Education Society, (2011) 9 SCC 97

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 101

[ARUN MISHRA, J.]

are to be read as it is i.e., the state of affairs as plainly set out in the legal fiction. Therefore, the effect of Section 24 (2) is that if either of the situations are not met, the acquisition proceedings under the Act of 1894 lapse and the State can initiate proceedings afresh in accordance with the Act of 2013. This construction, urge learned counsel is also purposive and practical. If the State has not taken physical possession of a property even if compensation has been paid for over 5 years prior to the commencement of the Act of 2013, because it no longer serves the purpose of acquisition, it can drop the proceedings as those would have lapsed. In such an event, the State would naturally be entitled to restitutory recovery. However, if the State has failed to take physical possession, it cannot be benefited by its inactions and must restart proceedings under the Act of 2013. In such a case, the compensation paid can always be re-adjusted against compensation determined under the Act of 2013. Arguendo, it is urged that even if Section 114 (2) of the Act of 2013 is construed to keep alive the State’s vested rights by virtue of Section 6 of the General Clauses Act, such rights are limited by Section 24(1)(a) and Section 24(2) of the Act of 2013. Thus, while ordinarily the acquisition proceedings that were pending in respect of awards passed under the Act of 1894 would have continued, the legislature by way of a creating a legal fiction, provided for the deemed lapse of these proceedings in respect of which physical possession has not been taken or compensation not paid. Learned counsel placed reliance on some decisions of this Court. 69 VKNM Vocational Higher Secondary School v. State of E Kerala,70 where it was held that: “...a vested right can also be taken away by a subsequent enactment if such subsequent enactment specifically provides by express words or by necessary intendment. In other words, in the event of the extinction of any such right by express provision in the subsequent enactment, the same would lose its value.”

88Copy pinpoint88. It was submitted that in order to determine the accrued rights and incurred liabilities that have been saved under the Act of 1894, the line of inquiry is not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law, but whether it has taken away those rights and liabilities. 69 Jayantilal Amrathlal v. Union of India,(1972) 4 SCC 174, T.S.Baliah v. Income Tax Officer, Central Circle VI,Madras,1969 (3) SCR 65 70 2016 (4) SCC 216. H

102 SUPREME COURT REPORTS [2020] 3 S.C.R.

89Copy pinpoint89. All learned counsel supported the submission that the proviso is not restricted in its operation to Section 24 (2) only and that its placement is not determinative. It was emphasized that the proviso does not say that higher compensation would be paid, in the contingency provided by it, as an option to avoid lapsing. The absence of any reference to lapsing, or the ingredients of Section 24 (2) clearly meant B that the benefit of higher compensation in the event a majority of the landowners were not paid compensation (under the old Act) was to enure to all falling in the same class, i.e., those whose lands were subjected to acquisition, whether five years prior to or less than coming into force of the Act of 2013. C Relevant provisions

90Copy pinpoint90. For appreciating the controversy in the present cases, it is essential to extract certain relevant provisions of the Act of 1894 as well as the Act of 2013. The provisions of the Act of 1894 are reproduced below: D “12 Award of Collector when to be final. (1) Such award shall be filed in the Collector’s office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and apportionment of the compensation among the persons interested. (2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made. *** *** “17. Special powers in case of urgency. – (1) In cases of urgency, whenever the appropriate Government, so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), take possession of any land needed for a public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. H

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 103

[ARUN MISHRA, J.]

[(3A) Before taking possession of any land under sub-section A (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3)- (a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and B (b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2) (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section. (4) In the case of any land to which, in the opinion of the [appropriate Government], the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the date of the publication of the notification under section 4, sub-section (1).]”

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. *** ***

31. Payment of compensation or deposit of same in Court. - F (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. G (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: H

104 SUPREME COURT REPORTS [2020] 3 S.C.R.

A Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18: B 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 C may, with the sanction of the appropriate Government instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands held under the same title or in such other way as may be equitable having regard to the interests of the parties concerned. (4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof.” *** *** 34 Payment of interest When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount award-ed with interest thereon at the rate of 72 [nine per centum] per annum from the time of so taking possession until it shall have been so paid or deposited: Provid-ed that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.” H

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 105

[ARUN MISHRA, J.]

The relevant provisions of the Act of 2013 are as follows: A “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,— B

(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 C (b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. (2) Notwithstanding anything contained in sub-section (1), D 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.” G *** ***

114. Repeal and saving.–(1) The Land Acquisition Act, LA (1 of LA), is hereby repealed.

106 SUPREME COURT REPORTS [2020] 3 S.C.R.

A (2) Save as otherwise provided in this Act the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals.” Section 6 of the General Clauses Act, 1897 reads as follows: B “Section 6 - Effect of repeal Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not— C (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or D (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or E (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.” Salient features of the Act of 2013

91Copy pinpoint91. There can no dispute, no two opinions about the fact that provisions of the Act of 2013, were enacted with the object of providing fair compensation and rehabilitating those displaced from their land. The Introduction and Statement of Objects and Reasons of the Act of 2013 are extracted hereunder:

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 107

[ARUN MISHRA, J.]

“INTRODUCTION A The Land Acquisition Act, LA was a general law relating to acquisition of land for public purposes and also for companies and for determining the amount of compensation to be made on account of such acquisition. The provisions of the said Act was found to be inadequate in addressing certain B issues related to the exercise of the statutory powers of the State for involuntary acquisition of private land and property. The Act did not address the issues of rehabilitation and resettlement to the affected persons and their families. There had been multiple amendments to the Land Acquisition Act, LA not only by the Central Government but by the State C Governments as well. However, there was growing public concern on land acquisition, especially multi-cropped irrigated land. There was no central law to adequately deal with the issues of rehabilitation and resettlement of displaced persons. As land acquisition and rehabilitation and D resettlement were two sides of the same coin, a single integrated law to deal with the issues of land acquisition and rehabilitation and resettlement was necessary. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 E addresses concerns of farmers and those whose livelihood are dependent on the land being acquired, while at the same time facilitating land acquisition for industrialization, infrastructure and urbanization projects in a timely and transparent manner. F This Act represents a change in the legislative approach to land acquisition. It introduces for the first time provisions for social impact analysis, recognizes non-owners as affected persons, a mode of acquisition requiring consent of the displaced and statutory entitlements for resettlement. In addition, it has restricted the grounds on which land may be G acquired under the urgency clause. STATEMENT OF OBJECTS AND REASONS The Land Acquisition Act, LA is the general law relating to acquisition of land for public purposes and also for companies H

108 SUPREME COURT REPORTS [2020] 3 S.C.R.

A and for determining the amount of compensation to be made on account of such acquisition. The provisions of the said Act have been found to be inadequate in addressing certain issues related to the exercise of the statutory powers of the State for involuntary acquisition of private land and property. The Act does not address the issues of rehabilitation and B resettlement to the affected persons and their families.

2. The definition of the expression “public purpose” as given in the Act is very wide. It has, therefore, become necessary to re-define it so as to restrict its scope for acquisition of land for strategic purposes vital to the State, C and for infrastructure projects where the benefits accrue to the general public. The provisions of the Act are also used for acquiring private lands for companies. This frequently raises a question mark on the desirability of such State intervention when land could be arranged by the company D through private negotiations on a “willing seller-willing buyer” basis, which could be seen to be a more fair arrangement from the point of view of the land owner. In order to streamline the provisions of the Act causing less hardships to the owners of the land and other persons dependent upon such land, it is proposed repeal the Land Acquisition Act, LA E and to replace it with adequate provisions for rehabilitation and resettlement for the affected persons and their families.

3. There have been multiple amendments to the Land Acquisition Act, LA not only by the Central Government but by the State Governments as well. Further, there has been heightened public concern on land acquisition, especially multi-cropped irrigated land and there is no central law to adequately deal with the issues of rehabilitation and resettlement of displaced persons. As land acquisition and rehabilitation and resettlement need to be seen as two sides of the same coin, a single integrated law to deal with the issues of land acquisition and rehabilitation and resettlement has become necessary. Hence the proposed legislation proposes to address concerns of farmers and those whose livelihoods are dependent on the land being acquired, while at the same time facilitating land acquisition for H

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 109

[ARUN MISHRA, J.]

industrialization, infrastructure and urbanization projects in A a timely and transparent manner.

4. Earlier, the Land Acquisition (Amendment) Bill, 2007 and Rehabilitation and Resettlement Bill, 2007 were introduced in the Lok Sabha on 6th December 2007 and were referred to the Parliamentary Standing Committee on Rural Development B for Examination and Report. The Standing Committee presented its reports (the 39th and 40th Reports) to the Lok Sabha on 21st October 2008 and laid the same in the Rajya Sabha on the same day. Based on the recommendations of the Standing Committee and as a consequence thereof, official amendments to the Bills were proposed. The Bills, along with the official amendments, were passed by the Lok Sabha on 25th February 2009, but the same lapsed with the dissolution of the 14th Lok Sabha.

5. It is now proposed to have a unified legislation dealing with acquisition of land, provide for just and fair compensation and make adequate provisions for rehabilitation and resettlement mechanism for the affected persons and their families. The Bill thus provides for repealing and replacing the Land Acquisition Act, LA with broad provisions for adequate rehabilitation and resettlement mechanism for the project affected persons and their families.

6. Provision of public facilities or infrastructure often requires the exercise of powers by the State for acquisition of private property leading to displacement of people, depriving them of their land, livelihood, and shelter, restricting their access to traditional resource base and uprooting them from their socio-cultural environment. These have traumatic, psychological, and socio-cultural consequences on the affected population, which call for protecting their rights, particularly in case of the weaker sections of the society, including members of the Scheduled Castes (SCs), the G Scheduled Tribes (STs), marginal farmers and their families.

7. There is an imperative need to recognise rehabilitation and resettlement issues as intrinsic to the development process formulated with the active participation of affected persons and families. Additional benefits beyond monetary H

110 SUPREME COURT REPORTS [2020] 3 S.C.R.

A compensation have to be provided to families affected adversely by involuntary displacement. The plight of those who do not have rights over the land on which they are critically dependent for their subsistence is even worse. This calls for a broader concerted effort on the part of the planners to include in the displacement, rehabilitation, and resettlement process framework, not only for those who directly lose their land and other assets but also for all those who are affected by such acquisition. The displacement process often poses problems that make it difficult for the affected persons to continue their traditional livelihood activities after resettlement. This requires a careful assessment of the economic disadvantages and the social impact arising out of displacement. There must also be holistic effort aimed at improving the all-round living standards of the affected persons and families.

D 8. A National Policy on Resettlement and Rehabilitation for Project Affected Families was formulated in 2003, which came into force with effect from February 2004. Experience gained in implementation of this policy indicates that there are many issues addressed by the policy which need to be reviewed. There should be a clear perception, through a E careful quantification of the costs and benefits that will accrue to society at large, of the desirability and justifiability of each project. The adverse impact on affected families-economic, environmental, social and cultural-must be assessed in participatory and transparent manner. A national F rehabilitation and resettlement framework thus needs to apply to all projects where involuntary displacement takes place.

9. The National Rehabilitation and Resettlement Policy, 2007, has been formulated on these lines to replace the National Policy on Resettlement and Rehabilitation for Project G Affected Families, 2003. The new policy has been notified in the Official Gazette and has become operative with effect from the 31st October, 2007. Many State Governments have their own Rehabilitation and Resettlement Policies. Many Public Sector Undertakings or agencies also have their own policies in this regard. H

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 111

[ARUN MISHRA, J.]

10. The law would apply when Government acquires land for its own use, hold and control, or with the ultimate purpose to transfer it for the use of private companies for stated public purpose or for immediate and declared use by private companies for public purpose. Only rehabilitation and resettlement provisions will apply when private companies buy land for a project, more than 100 acres in rural areas, or more than 50 acres in urban areas. The land acquisition provisions would apply to the area to be acquired but the rehabilitation and resettlement provisions will apply to the entire project area even when private company approaches Government for partial acquisition for public purpose. C

11. “Public purpose” has been comprehensively defined, so that Government intervention in acquisition is limited to defence, certain development projects only. It has also been ensured that consent of at least 80 per cent of the project affected families is to be obtained through a prior informed process. Acquisition under urgency clause has also been limited for the purposes of national defence, security purposes, and Rehabilitation and Resettlement needs in the event of emergencies or natural calamities only.

12. To ensure food security, multi-crop irrigated land shall be acquired only as a last resort measure. An equivalent area of culturable wasteland shall be developed if multi-crop land is acquired. In districts where net sown area is less than 50 per cent of total geographical area, no more than 10 per cent of the net sown area of the district will be acquired. F

13. To ensure comprehensive compensation package for the land owners, a scientific method for calculation of the market value of the land has been proposed. Market value calculated will be multiplied by a factor of two in the rural areas. Solatium will also be increased upto 100 per cent of the total compensation. Where land is acquired for G urbanization, 20 per cent of the developed land will be offered to the affected land owners.

14. Comprehensive rehabilitation and resettlement package for land owners including subsistence allowance, jobs, house, H

112 SUPREME COURT REPORTS [2020] 3 S.C.R.

A one acre of land in cases of irrigation projects, transportation allowance, and resettlement allowance is proposed.

15. Comprehensive rehabilitation and resettlement package for livelihood losers, including subsistence allowance, jobs, house, transportation allowance, and resettlement allowance B is proposed.

16. Special provisions for Scheduled Castes and the Scheduled Tribes have been envisaged by providing additional benefits of 2.5 acres of land or extent of land lost to each affected family; one-time financial assistance of C Rs. 50,000/-; twenty-five per cent additional rehabilitation and resettlement benefits for the families settled outside the district; free land for community and social gathering and continuation of reservation in the resettlement area, etc.

17. Twenty-five infrastructural amenities are proposed to D be provided in the resettlement area including schools and play grounds, health centres, roads, and electric connections, assured sources of safe drinking water, Panchayat Ghars, Anganwadis, places of worship, burial and cremation grounds, village level post offices, fair price shops, and seed- cum-fertilizers storage facilities. E

18. The benefits under the new law would be available in all the cases of land acquisition under the Land Acquisition Act, LA, where award has not been made, or possession of land has not been taken.

F 19. Land that is not used within ten years in accordance with the purposes, for which it was acquired, shall be transferred to the State Government’s Land Bank. Upon every transfer of land without development, twenty per cent of the appreciated land value shall be shared with the original land owners. G

20. The provisions of the Bill have been made fully compliant with other laws such as the Panchayats (Extension to the Scheduled Areas) Act, 1996; the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and Land Transfer Regulations in Fifth H Scheduled Areas.

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 113

[ARUN MISHRA, J.]

21. Stringent and comprehensive penalties both for the companies and Government in cases of false information, mala fide action, and contravention of the provisions of the propose legislation have been provided.

22. Certain Central Acts dealing with the land acquisition have been enlisted in the Bill. The provisions of the Bill are in addition to and not in derogation of these Acts. The provisions of this Act can be applied to these existing enactments by a notification of the Central Government.

23. The Bill also provides for the basic minimum requirements that all projects leading to displacement must address. It contains a saving clause to enable the State Governments, to continue to provide or put in place greater benefit levels than those prescribed under the Bill.

24. The Bill would provide for the basic minimum that all projects leading to displacement must address. A Social Impact D Assessment (SIA) of proposals leading to displacement of people through a participatory, informed and transparent process involving all stake-holders, including the affected persons will be necessary before these are acted upon. The rehabilitation process would augment income levels and enrich quality of life of the displaced persons, covering rebuilding socio-cultural relationships, capacity building, and provision of public health and community services. Adequate safeguards have been proposed for protecting rights of vulnerable sections of the displaced persons.

25. The Bill seeks to achieve the above objects. The notes on clauses explain the various provisions contained in the Bill.”

92Copy pinpoint92. Section 2(2) of the Act of 2013, provides that in the event of acquisition for private companies, consent of 80% of the affected families has to be obtained and for the public-private partnerships, consent of G 70% of the affected families is required to be taken. In Section 3(c), the term ‘affected family’ has been widened, which inter alia includes members of the Schedule Tribes, forest dwellers, and families whose livelihood is dependent on forests or water bodies. A “Social Impact Assessment” (“SIA”) has to be prepared, as provided in Sections 4 to 9. H

114 SUPREME COURT REPORTS [2020] 3 S.C.R.

A Special provisions to safeguard food security have been made by prohibiting the acquisition of multi-cropped land except in exceptional circumstances as enumerated in Section 10. Section 11 is akin to Section 4 of the Act of 1894 regarding issuance of preliminary notification. The SIA report lapses in case preliminary notification under Section 11 is not issued within a period of 12 months from the date of the report. A B Rehabilitation and Resettlement Scheme (“RR Scheme”) is provided in Sections 16 to 18. The Collector has to pass the award under Section

23. Section 26 deals with the determination of the market value by the Collector. Section 30 provides for Solatium at 100%. The RR award has to be passed by the Collector under Section 31, and notice has to be given immediately under Section 37, which is equivalent to Section 12 of the Act of 1894. Section 38 provides that Collector has to take possession after full payment of compensation has been made as well as rehabilitation and resettlement entitlements are paid or tendered to the entitled persons. Thus, there is a departure from Section 16 Act of 1894 in the provisions contained in Section 38 of the Act of 2013. The Collector has to ensure under Section 38 of Act of 2013 that the rehabilitation and resettlement process is complete before displacing people. Section 40 deals with urgent cases. The Government may acquire land without making award in the case of urgency for the defence of India or national security. In other emergencies arising out of natural calamities or any other emergencies special provisions under Section 40 may be exercised with the approval of the Parliament. In such event, the provisions of the Social Impact Assessment and Rehabilitation and Resettlement Scheme may be exempted. Additional compensation of 75% is payable in such cases. Section 41 contains special provisions for Scheduled Castes and Scheduled Tribes by prohibiting acquisition in scheduled areas as far as possible. Sections 43 to 50 deal with appointment and constitution of the Rehabilitation and Resettlement Authorities and Monitoring Committees at Project as well as National Levels. Sections 51 to 74 deal with the establishment of Land Acquisition, Rehabilitation, and Resettlement Authority. Sections 77 to 80 are pari materia to the provisions contained in Sections 31 to 34 of the Act of 1894, relating to payment, deposit, and interest, etc. Section 93 is equivalent to Section 48 of the Land Acquisition Act. The Government shall be at liberty to withdraw from acquisition if possession of land has not been taken. Section 101 provides that land be returned to the original owner or the Land Bank of the appropriate Government if acquired land remains unutilized for a period of five years. H

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 115

[ARUN MISHRA, J.]