INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL & ORS. ETC.

A such land is made to vest absolutely in the Government free from all encumbrances. It must be noted here that taking possession of the land concerned and its vesting absolutely in the Government free from all encumbrances does not depend upon an award to be made under Section 11, making of which award alone in the case of ordinary acquisition of B land could have empowered the Collector to take possession of the land under Section 16 and the taking of which possession would have made the land vest absolutely in the Government free from all encumbrances. As seen from the judgment dated 23-8-1982 of the High Court in WP No. 3416 C of 1978, taking possession of the appellants’ land along with land of others by the Collector on 10-7-1978 under Section 17(1) is, in fact, made the basis for its holding that invoking of urgency clause to dispense with Section 5-A enquiry was made by the Government mechanically. No doubt, when the High Court took the view that acquisition of the land concerned under Section 17 of the Act was made pursuant to an order of the Government without application of its mind in the matter of making Section 5-A not to apply, it was open to it to set aside or quash the subsequent acquisition proceedings except Section 4(1) notification which had followed and restore the ownership of the land to the appellants’ land if it had to order fresh enquiry on the basis of Section 4(1) notification. Such a setting aside or quashing was inevitable because the acquisition proceedings had been completed under Section 17 and the land had vested in the State Government, inasmuch as, without setting aside that vesting of the land in the State Government and restoring the land to the appellant-owners, that land was unavailable for subsequent acquisition by following the procedure under Section 5-A, Section 6, Section 11 and Section 16. Thus in the circumstances of the case in respect of the land of the appellants, when publication of Section 4(1) notification was made on 21-7-1977, when declaration under Section 6 was published on 21-7-1977 and taking possession of that land under Section 17(1) by the Collector was made on 10-7-1978 and the vesting in the State Government of that land had occurred on that day, setting aside by the judgment of the High Court in WP No. 3416 of 1978 of merely the direction H

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given by the Government relating to non-applicability of A Section 5-A to the land, given on 7-7-1977, in our view, did not enable to Court to order the starting of fresh proceedings for acquisition of the land concerned under Section 5-A, inasmuch as, that land concerned on Section 4(1) notification had already become the land of the Government. In this state of facts, when the previous acquisition of the land of the appellants made under Section 17 of the Act did never stood affected. Section 5-A enquiry held and subsequent declaration made were superfluous proceedings which were inconsequential. Hence, we feel that there is no need to set aside the impugned declaration inasmuch as the earlier acquisition was complete and had resulted in vesting of the land in the State Government and there was no land available for acquisition in the subsequent proceedings which have been carried pursuant to the judgment of the High Court made in WP No. 3416 of 1978. Therefore, in the stated facts, although we find that no need arises to declare the impugned declaration as void we clarify that the earlier proceedings which had taken place in respect of the appellants’ land, resulting in its vesting in the State Government free from encumbrances, has stood unaffected and any award made by the Collector or be made by him under the L.A. Act shall be regarded as that based on earlier acquisition proceedings.” E

140Copy pinpoint140. In May George v. Special Tahsildar & Ors.102, this Court considered the question to declare a provision mandatory, test is to be applied as to whether non-compliance of the provision could render entire proceedings invalid or not. This Court referred to various decisions (which are referred to in the footnote103) and summarized the position thus: F

102 (2010) 13 SCC 98 103 Dattatraya Moreshwar v. The State of Bombay and Ors., AIR 1952 SC 181; State of U.P. and Ors. v. Babu Ram Upadhya, AIR 1961 SC 751; Raza Buland Sugar Co. Ltd., Rampur v. Municipal Board, Rampur, AIR 1965 SC 895;State of Mysore v. V.K. Kangan, AIR 1975 SC 2190; Sharif-Ud-Din v. Abdul Gani Lone, AIR 1980 SC 303; Balwant G Singh and Ors. v. Anand Kumar Sharma and Ors., (2003) 3 SCC 433; Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors., AIR 2003 SC 511; Chandrika Prasad Yadav v. State of Bihar and Ors., AIR 2004 SC 2036; M/s. Rubber House v. Excellsior Needle Industries Pvt. Ltd., AIR 1989 SC 1160; B.S. Khurana and Ors. v. Municipal Corporation of Delhi and Ors., (2000) 7 SCC 679; State of Haryana and Anr. v. RaghubirDayal, (1995) 1 SCC 133; and GullipilliSowria Raj v. Bandaru Pavani @ Gullipili Pavani, (2009) 1 SCC 714 H

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A “24. In Gullipilli Sowria Raj v. Bandaru Pavani, (2009) 1 SCC 714, this Court while dealing with a similar issue held as under (SCC p. 719, para 17) “17. … The expression ‘may’ used in the opening words of Section 5 is not directory, as has been sought to be argued, B but mandatory and non-fulfilment thereof would not permit a marriage under the Act between two Hindus. Section 7 of the 1955 Act is to be read along with Section 5 in that a Hindu marriage, as understood under Section 5, could be solemnised according to the ceremonies indicated therein.”

C 25. The law on this issue can be summarised to the effect that in order to declare a provision mandatory, the test to be applied is as to whether non-compliance with the provision could render the entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of the legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject-matter and object of the statutory provisions in question. The Court may find out as to what would be the consequence which would flow from construing it in one way or the other and as to whether the statute provides for a contingency of the non-compliance with the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid. F ***

27. In G.H. Grant (Dr.) v. State of Bihar, AIR 1966 SC 237, this Court has held that if a “person interested” is aggrieved by the fact that some other person has withdrawn the compensation of his land, he may resort to the procedure G prescribed under the Act or agitate the dispute in suit for making the recovery of the award amount from such person.” (emphasis supplied)

141Copy pinpoint141. This Court opined, therefore, that once the land vests in the State, it cannot be divested, even if there is some irregularity in the H

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acquisition proceedings. There is nothing in the Act of 1894 to show that non-compliance thereof will be fatal or will lead to any penalty.

142Copy pinpoint142. Now, coming back to the main issue, the legal fiction of lapsing (under Section 24(2) of the Act of 2013) cannot be extended to denude title which has already vested in the beneficiaries of the acquisition Corporation/Local Bodies, etc., and who, in turn, have also conveyed title and transferred the land to some other persons after development. In Commissioner of Sales Tax, U.P. v. Modi Sugar Mills104 the Court has held that “A legal fiction must be limited to the purpose for which it has been created and cannot be extended beyond its legitimate field.” Similarly, in Braithwaite & Co. v. E.S.I.C105 , this Court held that a legal fiction is adopted in law for a limited and definite purpose only and there is no justification for extending it beyond the purpose for which the legislature has adopted. Lapsing is provided only where possession has not been taken nor compensation has been paid, divesting of vested land is not intended nor specifically provided.

143Copy pinpoint143. Black’s Law Dictionary defines “vested” as follows: D “vested, adj. (18c) Having become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute a vested interest in the estate. “Unfortunately, the word ‘vested’ is used in two senses. Firstly, an interest may be vested in possession, when there is a right E to present enjoyment, e.g. when I own and occupy Blackacre. But an interest may be vested, even where it does not carry a right to immediate possession if it does confer a fixed right of taking possession in the future.” George Whitecross Paton, A Textbook of Jurisprudence 305 (CW. Paton & David P. F Derham eds., 4th ed. 1972). “A future interest is vested if it meets two requirements: first, that there be no condition precedent to the interest’s becoming a present estate other than the natural expiration of those estates that are prior to it in possession; and second, that it be theoretically possible to identify who would get the right G to possession if the interest should become a present estate at any time.” Thomas F. Bergin 8. Paul C. Haskell, Preface to Estates in Land and Future Interests 66-67 (2d ed. 1984).” 104 1961 (2) SCR 189 105 1968 (1) SCR 771 H

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144Copy pinpoint144. In Webster’s Dictionary, ‘vested’ is defined as: “vested adj. [pp. of vest] 1. Clothed; robed, especially in church vestments. 2. in law, fixed; settled; absolute; not contingent upon anything: as, a vested interest.”

145Copy pinpoint145. In State of Punjab v. Sadhu Ram106, it has been observed B that once possession is taken and the award has been passed, no title remains with the landowner and the land cannot be de-notified under Section 48(1) and observed thus: “3. The learned Judge having noticed the procedure prescribed in disposal of the land acquired by the Government C for public purposes, has held that the said procedure was not followed for surrendering the land to the erstwhile owners. The respondent having purchased the land had improved upon the land and is, therefore, entitled to be an equitable owner of the land. We wholly fail to appreciate the view taken by the D High Court. The learned Judge had net referred to the relevant provisions of the Act and law. It is an undisputed fact that consequent upon the passing of the award under Section 11 and possession taken of the land, by operation of Section 16 of the Act, the right, title and interest of the erstwhile owner stood extinguished and the Government became absolute owner of the property free from all encumbrances. Thereby, no one has nor claimed any right, title and interest in respect of the acquired land. Before the possession could be taken, the Government have power under Section 48(1) of the Act to denotify the land. In that event, land is required to be surrendered to the erstwhile owners. That is not the case on the facts of this case. Under these circumstances, the Government having become the absolute owner of the property free from all encumbrances, unless the title is conferred on any person in accordance with a procedure known to law, no one can claim any title much less equitable title by remaining in possession. The trial Court as well as the appellate Court negative the plea of the respondent that he was inducted into possession as a lessee for a period of 20 years. On the other hand, the finding was that he was in possession as a lessee on yearly basis. Having lawfully come into possession as a 106 H 1996 (7) JT 118

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lessee of the Government, Session 116 of Evidence Act estops him from denying title of the Government and set it up in third party. By disclaiming Government title, he forfeited even the annual lease. Under these circumstances, having come into possession as a lessee, after expiry and forfeiture of the lease, he has no right. Illegal and unlawful possession of the land entails payment of damages to the Government.”

146Copy pinpoint146. In Star Wire (India) Ltd. v. State of Haryana & Ors107, it was observed that once the award has been passed and possession has been taken, the land vests in the State free from all encumbrances. This Court held thus: C “2. This special leave petition arises from the judgment of the Punjab and Haryana High Court made on 25-4-1996 in LPA No. 437 of 1996. Notification under Section 4(1) of the Land Acquisition Act, LA (for short, ‘the Act’) was published on 1-6-1976. Declaration under Section 6 of the Act was published on 16-2-1977. The award was passed on 3-7-1981. D Thereafter, the reference also become final. The petitioner has challenged the notification, the declaration, and the award as illegal. It contends that the award does not come in the way of the petitioner in filing the writ petition on 21-1-1994. The High Court has dismissed the writ petition on the grounds E of laches.”

147Copy pinpoint147. A similar view has been taken in Market Committee v. Krishan Murari108 and Puttu Lal (dead) by L.Rs. v. State of U.P. & Anr109. The concept of ‘vesting’ was also considered in The Fruit & Vegetable Merchants Union v. The Delhi Improvement Trust110. Once F vesting takes place, and is with possession, after which a person who remains in possession is only a trespasser, not in rightful possession and vesting contemplates absolute title, possession in the State. This court observed thus: “(19) That the word “vest” is a word of variable import is G shown by provisions of Indian statutes also. For example, S.

107 (1996) 11 SCC 698 108 (1996) 1 SCC 311 109 (1996) 3 SCC 99 110 1957 SCR 01 H

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A 56 of the Provincial Insolvency Act (5 of 1920) empowers the Court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that “such property shall thereupon vest in such receiver”. The property vests in the receiver for the purpose of administering the estate of the B insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Ss. 16 and 17 of the Land Acquisition Act (Act 1 C of LA), provide that the property so acquired, upon the happening of certain events, shall “vest absolutely in the Government free from all encumbrances”. In the cases contemplated by Ss. 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word “vest” has not got a fixed connotation meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Ss. 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them.” In re: Vested rights under Section 24 of the Act of 2013

148Copy pinpoint148. This Court is of opinion that Section 24 of the Act of 2013 does not intend to take away vested rights. This is because there is no specific provision taking away or divesting title to the land, which had originally vested with the State, or divesting the title or interest of beneficiaries or third-party transferees of such land which they had lawfully acquired, through sales or transfers. There is a specific provision made for divesting, nor does the Act of 2013 by necessary intendment, imply such a drastic consequence. H

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Divesting cannot be said to have been intended. Here, the decision in VKNM Vocational Higher Secondary School v. State of Kerala111 is relevant; it was observed as follows by this Court: “21. In our considered view, the above principles laid down by the Constitution Bench of this Court in Garikapati case will have full application while considering the argument of the learned Senior Counsel for the fifth respondent claiming a vested right by relying upon unamended Rule 7-A(3). Principles (i), (iii), (iv) and (v) of the said judgment are apposite to the case on hand. When we make a comprehensive reference to the above principles, it can be said that for the legal pursuit of a remedy it must be shown that the various stages of such remedy are formed into a chain or rather as series of it, which are connected by an intrinsic unity which can be called as one proceeding, that such vested right, if any, should have its origin in a proceeding which was instituted on such right having been crystallised at the time of its origin itself, in which event all future claims on that basis to be pursued would get preserved till the said right is to be ultimately examined. In the event of such preservation of the future remedy having come into existence and got crystallised, that would date back to the date of origin when the so-called vested right commenced, that then and then only it can be held that the said right became a vested right and it is not defeated by the law that prevails at the date of its decision or at the date of subsequent filing of the claim. One other fundamental principle laid down which is to be borne in mind, is that even such 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.” G

149Copy pinpoint149. The decision in State of Haryana v. Hindustan Construction Co. Ltd112, is relied upon to contend that the line of enquiry is not to enquire if the new enactment has by its new 111 (2016) 4 SCC 216 112 (2017) 9 SCC 463 H

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A provisions kept alive the rights and liabilities under the repealed law or whether it has taken away those rights and liabilities. When repeal is followed by a fresh enactment on the same subject, the provisions of the General Clauses Act would undoubtedly require an examination of the language of the new enactment if it expresses an intent different from the earlier repealed Act. The enquiry would B necessitate the examination if the old rights and liabilities are kept alive or whether the new Act manifests an intention to do away with or destroy them. If the new Act manifests different intentions, the application of the General Clauses Act will stand excluded.

150Copy pinpoint150. We have examined the provisions of Section 24 of the C Act of 2013 in the light of the said pleas and thereafter arrived at our conclusions as to when and to what extent proceedings lapsed or/and were saved and what liabilities have been taken away and to what extent there is obliteration of the rights acquired and liabilities incurred earlier under the Act of 1894 and what is done D away or destroyed by the new Act.

151Copy pinpoint151. The Section 24(2) of the Act of 2013 is to be interpreted consistent with the legislative intent, particularly when it has provided for the lapse of the proceedings. It has to be interpreted in the light of provisions made in Sections 24 and 114 of the Act of 2013 and Section 6 E of the General Clauses Act, what it protects and to what extent it takes away the rights of the parties. Undoubtedly, Section 24(2) has retroactive operation with respect to the acquisitions initiated under the Act of 1894 and which are not completed by taking possession nor compensation has been paid in spite of lapse of 5 years and proceedings are kept pending due to lethargy of the officials. The drastic consequences follow F by the provisions contained in Section 24(2) in such cases.

152Copy pinpoint152. For considering the legislative intent, Bennion, Statutory Interpretation, 5th Edition (2012) has been referred to, in which it has been observed:

G “Where, on a weighing of the factors, it seems that some retrospective effect was intended, the general presumption against retrospectively indicates that this should be kept to as narrow a compass as will accord with the legislative intention.

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Principle against doubtful penalisation. It is a general A principle of legal policy that no one should suffer detriment by the application of a doubtful law. The general presumption against retrospectivity means that where one of the possible opposing constructions of an enactment would impose an ex post facto law, that construction is likely to be doubtful. B …. If the construction also inflicts a detriment, that is a second factor against it. A retrospective enactment inflicts a detriment for this purpose ‘if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past. The growing propensity of the courts to relate legal principle to the concept of fairness was shown by Staughton LJ when he said: “In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears.”” (emphasis supplied) E th It has been observed in Bennion, Statutory Interpretation, 5 Edition (2012) that when Parliament is presumed not to have intended to alter the law applicable to past events and transactions, which is unfair to those concerned in them unless the contrary intention appears.

153Copy pinpoint153. Another decision in Lauri v. Renad113, has been referred to in which it was observed that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. Following observations have been relied upon: “It certainly requires very clear and unmistakable language in a subsequent Act of Parliament to revive or recreate an expired right. It is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction; and the same rule involves another and 113 (1892) 3 Ch. 402 H

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A subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.” (emphasis supplied)

154Copy pinpoint154. In Yamashita-Shinnihon Steamship Co. Ltd. (supra) the B House of Lords has observed that question of the extent of retrospectivity would also be dependent upon the degree of unfairness it causes to the parties. It has been observed: “The rule that a person should not be held liable or punished for conduct not criminal when committed is fundamental and of long standing. It is reflected in the maxim nullum crimen nulla poena sine lege. It is protected by article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). The rule also applies, but with less force, outside the criminal sphere. It is again expressed in maxims, lex prospicit non respicit and omnis nova constitutio futuris temporibus formam imponere debet non praeteritis. The French Civil Code provides that “La loi ne dipose que pour l’avenir; elle n’a point d’effet retroactif:” E ….. But both these passages draw attention to an important point, that the exception only applies where application of it would not cause unfairness or injustice. This is consistent with the general rule or presumption which is itself based on considerations of fairness and justice, as shown by the passage in Maxwell quoted, ante, p. 494C-E, and recently emphasised by Staughton LJ in Secretary of State for Social Security v. Tunnicliffe [1991] 2 All E.R. 712, 724: “In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is to H

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be expected that Parliament will make it clear if that is intended.” The distinction between rights and procedure, and unfairness and fairness, may well overlap. Thus, if a limitation period is shortened but a plaintiff has time to sue before expiry of the shortened period, he is likely to be statute-barred if he does not sue within the shortened period (see The Ydun [1899] P. 236.); but if a limitation period is extended after a previous shorter limitation period has already expired, the plaintiff will be unable to take advantage of the new period because an absolute defence has by then accrued to the defendant and it would not be fair to deprive him of it: See Yew Bon Tew v. C Kenderaan Bas Mara [1983] 1 A.C. 553 and Maxwell v. Murphy (1957) 96 C.L.R. 261. Further, Lord Griffiths, Lord Goff of Chieveley and Lord Slynn of Hadley, held as under: D “The principle governing the proper approach to a statutory provision alleged to have retrospective effect has been stated in a number of different ways, but no difference of substance is revealed by the authorities. Thus: (1) the principle has been described as “a prima facie rule of E construction” (Yew Bon Tew [1983] 1 A.C 553, 558F), “an established principle in the construction of statutory provisions” (Pearce v. Secretary of State for Defence [1988] A.C 755, 802C) or “a fundamental rule of English law” (Lauri v. Renad [1892] 3 Ch. 402, 421, Maxwell on the Interpretation of Statutes, 12th ed., p. 215, cited with approval in Carson v. F Carson and Stoyek [1964] 1 W.L.R 511, 516-517). (2) The principle is that a statute or statutes will not be interpreted so as to have a retrospective operation unless (i) “that result is unavoidable on the language used” (Yew Bon Tew, at pp. 558F, 563D-E) or “that effect cannot be avoided G without doing violence to the language of the enactment: (In re Athlumney, Ex parte Wilson [1898] 2 Q.B 547, 552) or “its language is such as plainly to require such a construction” (Lauri v. Renad, at p. 421); or (ii) “they expressly or by necessary implication to provide: see Yew Bon Tew, at p. 558F” H

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A (Pearce v. Secretary of State for Defence [1988] A.C 755, 802C-D) or “such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication” (Maxwell on the Interpretation of Statutes, 12th ed., p.215] B (3) “if the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only” (In re Athlumney, at p. 552). (4) If the statute does have some retrospective operation on the basis of the above principles, it is not to be construed as C having greater retrospective operation “than its language renders necessary” (Lauri v. Renad, at p. 421) or “than is necessary to give effect either to its clear language or to its manifest purpose” (Arnold v. Central Electricity Generating Board [1988] A.C 228, 275. D The absence of express limiting words cannot be used as a basis for implying retrospective operation. That would reverse the true presumption. A necessary and distinct implication typically arises in the context of a statute that, by repealing a previous statute, would leave a “lacuna” in the law if the new statute were not to be construed as having retrospective effect: see, e.g., Food Corporation of India v. Marastro Compania Naviera S.A. [1987] 1 W.L.R. 134, 152. The particular problem in the present case is a transitional problem only, applicable only to those arbitrators that are stale as at 1 January 1992, in respect of which applications to strike out are made shortly thereafter. In the future, such claimants will either continue to be dilatory or not, in which case the references will proceed to a conclusion. The concern of the legislature, and the mischief at which the section was aimed, was not a limited number of existing stale arbitrations but future arbitrations. Moreover, although the mischief at which the section was aimed is not to be ignored, one should start by looking at the words themselves: see Chebaro v. Chebaro [1987] Fam. 127, 130, 134-135. It would be unfair to a claimant to give a retrospective operation to section 13A. So far as claimants in existing H

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arbitrations are concerned, they may well have been A (correctly) advised prior to 1 January 1992 that they could proceed slowly with the claim without risk of having their claims dismissed by reason of such delay. A retrospective application of the statute would expose him to a penalty on the strength of conduct not susceptible to penalty when B committed. It would not, however, be unfair to a respondent to limit section 13A to delay occurring after 1 January 1992. Even if such delay were causative of prejudice or the risk of an unfair resolution of the dispute, under the existing law laid down in Bremer Vulkan a respondent should have been aware that it was a respondent’s obligation (as well as a C claimant’s) to seek directions from the arbitrator to ensure a speedy resolution of disputes: see the Hannah Blumenthal case [1983] 1 A.C. 854, 923H. A retrospective alteration to the legitimate expectations of the parties as to the consequences of their conduct at the time it occurred would D be contrary to the principles of legal and commercial certainty that formed part of the grounds on which the House of Lords declined in Hannah Blumenthal to depart from Bermer Vulkan: see pp. 913C, 917D, 922H.” (emphasis supplied) E

155Copy pinpoint155. Reliance was placed on Gloucester Union v. Woolwich Union114, with respect to effect on existing rights wherein following observations have been made: “Before considering the legal effect of art. xxxi. of this Order it is necessary, we think, to bear in mind that by the common law, upon such a division of the parish of Upton St. Leonard’s, any settlement already acquired in that parish would have been lost: see Reg v. Tipton Inhabitants 3; Dorking Union v. St. Saviour’s Union. The purpose and effect of par. 1 of art. xxxi is to get rid of this difficulty and preserve the settlements that have been already acquired before the commencement of the Order. The purpose and effect of par. 2 is in like manner to preserve a status of irremovability that has been acquired at that date; and the question raised in this case is whether par. 3 of the article is to be construed in all its generality as 114 (1917) 2 K.B. 374 H

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A applicable to acts or circumstances which have been done or occurred completely in the past and before the commencement of the Order, so as to create or confer a settlement where none existed before, or whether, as the appellants contend, it is to be construed as supplemental to pars. 1 and 2 and limited to the cases where persons are in process of acquiring a B settlement or status of irremovability so as to preserve their inchoate rights. If the words in par. 3 are construed without limitation, then, the residence of the pauper at Chequer’s Row in Upton St. Leonard’s between 1893 and 1897 being deemed to be residence in Gloucester, a settlement in Gloucester is conferred upon him and the respondents succeed. We think this paragraph should be so construed subject to the general principle that a statute is prima facie prospective and does not interfere with existing rights unless it contains clear words to that effect, or unless, having regard to its object, it necessarily does so, and that a statute is not to be construed to have a greater to retrospective operation than its language renders necessary – see per Lindley LJ in Lauri v. Renad – whatever view may be entertained of the probably intention of the Legislature, unless some manifest absurdity or inconsistency results from such construction; but we have come to the conclusion that the construction of the paragraph contended for by the respondents produces such a practical inconsistency with par. 1 of the same article that it is necessary to put some limitation upon it. If a person had resided before the commencement of the Order for two years in that portion of the parish of Upton St. Leonards’ which has been added to F Gloucester and for one year following in the portion which remains the parish of Upton St. Leonard’s, he would by the latter part of par.1 be deemed to have acquired a settlement in the parish of Upton St. Leonard’s, but if par.3 is to be applied to such a case his residence in the added portion of G Upton St. Leonard’s is to be deemed to have been residence in the parish of Gloucester; and if so deemed, then he has not had three years’ consecutive residence in any one parish and has no settlement – in other words, the effect of par.3 in such a case is to destroy the settlement which is preserved by par.1 and to restore the common law rule which is intended to H

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be abolished. The same result would follow in the converse A case where the later period of residence completing the three years in the old parish of Upton St. Leonard’s is in the area which has been added to the parish of Gloucester.” (emphasis supplied)

156Copy pinpoint156. In The King v. The General Commissioners of Income B Tax for Southampton115 it was observed: “The language of the section shows clearly that Parliament intended it to have a retrospective effect. The object was to prevent loss to the revenue when Commissioners had acted who were not, under the statutes, the right Commissioners to make the charge, provided that it was made by the Commissioners for the parish or place in which the person charged ordinarily resided. That the section was retrospective in effect was not disputed by Sir Robert Finlay, but he argued that the retrospective operation is limited by the language of the section and does not extend to a charge made in respect of profits derived from foreign possessions or securities under s.108 of the Income Tax Act, 1842. In support of this argument he relied upon the express reference in the first sub-section of s.32 to s.106, and s.146 of the Income Tax Act, 1842, upon the omission of any reference in this sub-section to s.108, E and upon the repeal in sub-s.2 of s.32 of s.108. He contended that if the Legislature had meant to include s.108 in the first sub-section it would have referred to it in express berms and would not merely have repealed it by the second sub-section. In the first sub-section mention is made of other sections of the Income Tax Acts, but not of s.108. It must be taken, he argued, that Parliament had in mind the difficulties created by s. 108, which were pointed out in Aramayo’s Case by the House of Lords, and that Parliament intended to remove these difficulties by the repeal of s.108 so as to prevent its operation in future, but did not mean to change the law as regards acts done before passing of the statute. The question must depend upon the construction of the language of s.32. The rules to be applied are well settled. It is a fundamental rule of English law that enactments in a statute are generally to be construed 115 (1916) 2 K.B. 249, (1917) 2 K.B. 374 H

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A as prospective and intended to regulate future conduct, but this rule is one of construction only and must yield to the intention of the Legislature: Moon v. Durden, per Parke B. It is also the law that a statute is not to be construed to have greater retrospective operation than its language renders necessary: Lauri v. Renad, per Lindley LJ to ascertain the B intention regard should be had to the general scope and purview of the enactment, to the remedy sought to be applied, to the former state of the law, and to what was in the contemplation of the Legislature: Pardo v. Bingham per Lord Hatherly L.C” C (emphasis supplied)

157Copy pinpoint157. In K.S. Paripoornan (supra), it was observed that in the case of retrospective operation the Court has to consider the effect on existing rights and obligations and for that purpose, the intention of the legislature has to be ascertained as indicated in the statute itself. This D court observed that: “66. The dictum of Lord Denman, C.J. in R. v. St. Mary, Whitechapel, (1848) 12 QB 120, 127 that a statute which is in its direct operation prospective cannot properly be called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing, which has received the approval of this Court, does not mean that a statute which is otherwise retrospective in the sense that it takes away or impairs any vested right acquired under existing laws or creates a new obligation or imposes a new duty or attaches a new disability in respect to transactions or considerations already past, will not be treated as retrospective. In Alexander v. Mercouris, (1979) 3 All ER 305 Goff, L.J., after referring to the said observations of Lord Denman, C.J., has observed that a statute would not be operating prospectively if it creates new rights and duties arising out of past transactions. The question whether a particular statute operates prospectively only or has retrospective operation also will have to be determined on the basis of the effect it has on existing rights and obligations, whether it creates new obligations or imposes new duties or levies new liabilities in relation to past transactions. For that

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purpose it is necessary to ascertain the intention of the legislature as indicated in the statute itself.”

158Copy pinpoint158. In Zile Singh v. State of Haryana & Ors., (supra), this Court has observed that the rule against retrospectivity does not extend to protect from the effect of a repeal, a privilege which did not amount to the accrued right. This court, while dealing with retrospectivity of a B statute, observed that retrospectivity must be reasonable and not excessive or harsh; otherwise, it runs the risk of being struck down for being unconstitutional. Following observations have been made: “15. Though retrospectivity is not to be presumed and rather there is presumption against retrospectivity, according to Craies C (Statute Law, 7th Edn.), it is open for the legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the courts will give it such an operation. In the absence of a retrospective operation having been expressly given, the courts may be called upon to construe the provisions and answer the question whether the legislature had sufficiently expressed that intention giving the statute retrospectivity. Four factors are suggested as relevant: (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated. (p. 388) The rule against retrospectivity does not extend to protect from the effect of a repeal, a privilege which did not amount to accrued right. (p. 392) F

18. In a recent decision of this Court in National Agricultural Coop. Marketing Federation of India Ltd. v. Union of India, (2003) 5 SCC 23 it has been held G that there is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. Every legislation whether prospective or retrospective has to be subjected to the question of legislative competence. The retrospectivity is liable to be decided on a few touchstones such as: (i) the H

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A words used must expressly provide or clearly imply retrospective operation; (ii) the retrospectivity must be reasonable and not excessive or harsh, otherwise, it runs the risk of being struck down as unconstitutional; (iii) where the legislation is introduced to overcome a judicial decision, the power cannot be used to subvert the decision without removing the statutory basis of the decision. There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. A validating clause coupled with a substantive statutory change is only one of the methods to leave actions unsustainable under the unamended statute, undisturbed. Consequently, the absence of a validating clause would not by itself affect the retrospective operation of the statutory provision, if such retrospectivity is otherwise apparent.”

159Copy pinpoint159. This Court has considered the harsh consequences of retrospective operation of the statute in Commissioner of Income Tax- 19, Mumbai v. Sarkar Builders116 and observed thus: “25. Can it be said that in order to avail the benefit in the assessment years after 1-4-2005, balconies should be removed though these were permitted earlier? Holding so would lead to absurd results as one cannot expect an assessee to comply with a condition that was not a part of the statute when the housing project was approved. We, thus, find that the only way to resolve the issue would be to hold that clause (d) is to be treated as inextricably linked with the approval and construction of the housing project and an assessee cannot be called upon to comply with the said condition when it was not in contemplation either of the assessee or even the legislature, when the housing project was accorded approval by the local authorities.

26. Having regard to the above, let us take note of the special features which appear in these cases: 26.1. In the present case, the approval of the housing project, its scope, definition and conditions, are all decided by and are dependent on the provisions of the relevant DC Rules. In

H 116 (2015) 7 SCC 579

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contrast, the judgment in Reliance Jute and Industries Ltd. v. A CIT, (1980) 1 SCC 139 was concerned with income tax only. 26.2. The position of law and the rights accrued prior to enactment of the Finance Act, 2004 have to be taken into account, particularly when the position becomes irreversible. 26.3. The provisions of Section 80-IB(10) mention not only a B particular date before which such a housing project is to be approved by the local authority, even a date by which the housing project is to be completed, is fixed. These dates have a specific purpose which gives time to the developers to arrange their affairs in such a manner that the housing project is started and finished within those stipulated dates. This planning, in the context of facts in these appeals, had to be much before 1-4-2005. 26.4. The basic objective behind Section 80-IB(10) is to encourage developers to undertake housing projects for weaker sections of society, inasmuch as to qualify for deduction under this provision, it is an essential condition that the residential unit be constructed on a maximum built- up area of 1000 sq ft where such residential unit is situated within the cities of Delhi and Mumbai or within 25 km from the municipal limits of these cities and 1500 sq ft at any other place. 26.5. It is the cardinal principle of interpretation that a construction resulting in unreasonably harsh and absurd results must be avoided. F 26.6. Clause (d) makes it clear that a housing project includes shops and commercial establishments also. But from the day the said provision was inserted, they wanted to limit the built- up area of shops and establishments to 5% of the aggregate built-up area or 2000 sq ft, whichever is less. However, the legislature itself felt that this much commercial space would G not meet the requirements of the residents. Therefore, in the year 2010, Parliament has further amended this provision by providing that it should not exceed 3% of the aggregate built- up area of the housing project or 5000 sq ft, whichever is higher. This is a significant modification making complete H

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A departure from the earlier yardstick. On the one hand, the permissible built-up area of the shops and other commercial shops is increased from 2000 sq ft to 5000 sq ft. On the other hand, though the aggregate built-up area for such shops and establishment is reduced from 5% to 3%, what is significant is that it permits the builders to have 5000 sq ft or 3% of the B aggregate built-up area, “whichever is higher”. In contrast, the provision earlier was 5% or 2000 sq ft, “whichever is less”.” (emphasis supplied)

160Copy pinpoint160. This Court in Jawarharmal (supra) and Rai Ramkrishna (supra), has considered the practical realities before analysing the extent of retrospective operation of the statute. Several decisions were cited in regard to conflict of interest (which are referred to in the footnote hereafter117) and it was urged that the rule of construction that is to be adopted is one of purposive interpretation. D In re: Legislative History of Act of 2013

161Copy pinpoint161. The Land Acquisition, Rehabilitation and Resettlement Bill, 2011 (Bill No.77 of 2011) was introduced in the Parliament. The provisions of Section 24, as introduced in the said Bill, read as under: E “24. (1) Notwithstanding anything contained in this Act, in any case where a notification under section 4 of the Land Acquisition Act, LA was issued before the commencement of this Act but the award under section 11 thereof has not been made before such commencement, the process shall be deemed F to have lapsed and the appropriate Government shall initiate

117 Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill, (2012) 2 SCC 108 @ 19-21; Tinsukhia Electric Supply Company Ltd. v. State of Assam & Ors., (1989) 3 SCC 709 @ para 118-121; C.I.T. v. Hindustan Bulk Carriers, (2003) 3 SCC 57 @ para 14-21; D. Saibaba v. Bar Council of India & Ors., (2003) 6 SCC 186 @ para 16- 18; Balram Kamanat v. Union of India, (2003) 7 SCC 628 para 24; New India Assurance G Co. v. Nulli Nivelle, (2008) 3 SCC 279 @ Para 51-54; Government of Andhra Pradesh &Ors. v. Smt. P. Laxmi Devi, (2008) 4 SCC 720 Para 41 & 42.; Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30 para 132-137; N. Kannadasan v. Ajoy Khose and Ors., (2009) 7 SCC 1 para 54-67; H.S. Vankani v. State of Gujarat, (2010) 4 SCC 301 para 43-48; State of Madhya Pradesh v. Narmada Bachao Andolan & Ors., (2011) 7 SCC 639 para 78-85; State of Gujarat & Anr. v. H Hon’ble Mr. Justice R.A. Mehta (Retd.) and Ors., (2013) 3 SCC 1: para 96-98).

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the process for acquisition of land afresh in accordance with the provisions of this Act. (2) Where possession of land has not been taken, regardless of whether the award under section 11 of the Land Acquisition Act, LA Act has been made or not, the process for acquisition of land shall also be deemed to have lapsed and the appropriate Government shall initiate the process of acquisition afresh in accordance with the provisions of this Act.”

162Copy pinpoint162. It is apparent from Section 24(1), as introduced originally, contained a provision with respect to award, which has not been made, but it was later on amended, and now as provided in Section 24(1)(a), there is no lapse and only higher compensation is available in case award has not been passed. The earlier Section 24(2) contained only the provision with respect to possession of the land that has not been taken. Earlier, there was no time limit prescribed, and it was proposed that the process for acquisition of land shall lapse. D

Clause 24 of Notes on clauses of Bill read thus: “Clause 24 seeks to provide that land acquisition process under the Land Acquisition Act, LA shall be deemed to have lapsed in certain cases where the award has not been made E and possession of land has not been taken before the commencement of proposed legislation.”

163Copy pinpoint163. After considering the various suggestions of the State Government, the Committee made some recommendations, which are extracted hereunder: F “16.5 The Committee note that Clause 24 of the Bill provides that land acquisition cases/process shall be invalid on enactment of the new Act in cases where Collector has not given award or possession of the land has not been taken before the commencement of the proposed legislation. Some G of the representatives of the industry and also the Ministries like Railways and Urban Development submitted before the Committee that land acquisition proceedings already initiated under the existing Land Acquisition, LA should not lapse as it would lead to time and cost over-run in many infrastructural projects. However, in such cases land compensation and R&R H

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A benefits could be allowed as per the provisions of LARR Bill. The Committee would like the Government to re-examine the issue and incorporate necessary provisions in the Rules to be framed under the new Act with a view to ensuring that the land owners/farmers/affected families get enhanced compensation and R & R package under the provisions of the LARR Bill, 2011 and at the same time, the pace of implementation of infrastructural projects is not adversely impacted.”

164Copy pinpoint164. Debates in the Lok Sabha on 29.8.2013, were referred to during the hearings, to cite various reasons given in respect of the question why effect should be given retrospectively in cases where acquisition has not been completed. Shri Jairam Ramesh, Minister concerned at the relevant time, replied to debate about the retrospective part with respect to Section 24 thus: “… The hon’ble member has also raised question about retrospective clause. This is about section 24 under which it has been provided that if the award has not been passed under the previous law than the new law will be applicable. Secondly, if the award has been passed and no compensation has been given and no physical possession has been taken the new law will be applicable. The third situation where this clause will be applicable is when award has been passed but farmer has not been given more than 50 per cent compensation which will entail enforcement of this law. The hon’ble member and several others have raised this apprehension that this Act will ultimately give vast powers to the bureaucracy. In regard to this apprehension I would like to say that we have fixed time limit at every level of the procedure and I hope that the states will adhere to these timelines.” (emphasis supplied)

165Copy pinpoint165. It is clear that while replying to the debate, the Minister concerned has stated that there would be lapse only if in case possession has not been taken and compensation has not been paid. The emphasis right from the beginning was on possession. Thus, from the perusal of debate too, it is apparent that the word “or” had been understood as “and”. H

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In Re: Objectives of the Act A

166Copy pinpoint166. It was submitted on behalf of the landowners that the consideration of difficulties, harsh consequences, the importance of performance, time lost during litigation, revival of stale claims would not permit deviation from the mandate of the law of Section 24. If obligations are mandatory, then also intendment of the Act cannot be defeated. As B such, it is the duty of the court to disregard such factors and to give contextual interpretation to the intendment. The language of the statute, wherever the context requires, its objects and reasons, the Preamble, its legislative history as well as the accompanying provisions (including the relevant provisions of the old Act) are to be considered by the court. In Arnit Das v. State of Bihar118, the court observed that the ambiguity in the definition of “juvenile” is to be resolved by taking into consideration the Preamble and the statement of objects and reasons. Burrakur Coal Co. Ltd. v. Union of India119 and A. Thangal Kunju Musaliar v. M. Venkatachalam Potti120. During the hearing, the State had also relied on other decisions to say that where the issue had attained finality, relief ought not to be granted.121 The Act of 2013 has been enacted considering the difficulties caused by the operation of the earlier laws and to subserve the public interest. Thus, the Court should interpret it in the context of the attendant circumstances. At the same time, the court should not, while ostensibly adopting a purposive or liberal interpretation, affect matters which have become final, or stale. In Popat Bahiru Govardhane E & Ors. (supra) this aspect, in the context of limitation provisions, was highlighted in the following terms: “16. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no F power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce 118 2000 (5) SCC 488 G 119 1962 (1) SCR 44 120 1955 SCR 1196 121 Delhi Development Authority v. Sukhbir Singh, (2016) 16 SCC 258, Padma Sundara Rao (Dead) & Ors. v. State of T.N. & Ors., 2002 (3) SCC 533; Popat Bahiru Govardhane & Ors. v. Special Land Acquisition Officer & Anr., 2013 (10) SCC 765; B. Premanand & Ors. v. Mohan Koikal & Ors., (2011) 4 SCC 266 and Bhavnagar University v. Palitana Sugar Mill (P) Ltd. & Ors., (2003) 2 SCC 111 H

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A it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute. “A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” In Re: proviso to Section 24(2)

167Copy pinpoint167. In reference to the question whether the proviso is part of section 24(2) or Section 24(1), it was submitted on behalf of the acquiring authorities and the States that the proviso needs to be read along with the main provision of section 24(2) and cannot be read with section 24(1)(b). It was pointed out that this Court has taken the view in Delhi Metro Rail Corporation Ltd. v. Tarun Pal Singh & Ors., (2018) 14 SCC 161 that the proviso should be read as part of section 24(2) of the D Act of 2013, cannot be construed as proviso to section 24(1)(b) whereas in Delhi Development Authority v. Virender Lal Bahri & Ors. (supra), a different view has been taken while referring the matter, and it has been observed that it should be treated as a proviso to section 24(1)(b) and not to section 24(2). As the interpretation of section 24(2) is involved E in the matter, it is absolutely necessary to socio-justice and whether the proviso is part of section 24(2) or has to be read as an independent provision or it has to be treated as part of the proviso to section 24(1)(b), the question is required to be decided as it arises for the purpose of the very provisions of section 24(2).

168Copy pinpoint168. It was submitted that the statutory provisions are to be read as they exist. Relocation of a proviso by the interpretive process, resulting in its placement at a different place is a drastic judicial measure which can be adopted in rarest of rare cases, and such an exercise may amount to encroaching upon the legislative field or causing violence to the plain language used by the legislature. By the proviso, Parliament has tried to balance the competitive new rights, and the proviso cannot be lifted and bodily placed at a different place. It was also submitted on behalf of the acquiring authorities that as the Section 24(1(b) ends with a ‘full stop’ (.) Section 24 (2) ends with a colon (:). These punctuation marks leave no room for any doubt that Parliament consciously used the proviso as an exception to section 24(2). The placement of the proviso needs no further

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comparative rules of interpretation. There is a very clear indication of legislative intent in section 24(2) itself. Punctuation plays a vital role in interpretation if some ambiguity is there in its interpretation. It is argued that punctuations play a very important role in interpreting statutes if some ambiguity is raised in its interpretation. Considering the use of a particular punctuation mark is an accepted method of statutory interpretation.

169Copy pinpoint169. Considering the use of punctuation marks, as a statutory mode of interpretation, full stop means the particular sentence ends and stands detached from the next part. It was also submitted that the proviso is to be read together with the main provision to which it is attached. C

170Copy pinpoint170. On the other hand, it was submitted on behalf of the landowners that the proviso does not refer to the main factors of lapse under section 24(2). The proviso is not an exemption from lapsing if it is read as part of Section 24(2), then the absurd consequences would follow. The proviso is in accord with section 24(1)(b) and has to be read as part of it. Reliance has been placed on D.D.A. v. Virendra Lal Bahri & D Ors. (supra). It was submitted that the proviso could not have been intended to be part of section 24(2) dealing with lapsing of acquisition where the subject-matter of the proviso is wholly unrelated to physical possession of the land, but only relating to compensation not being deposited. It was also submitted that if the proviso is read with section E 24(2), arbitrary results will follow. The proviso would be arbitrary and liable to be struck down under Article 14 of the Constitution. In case notification under section 4 applies only to a single plot of land or single owner, the conditions of section 24(2) are not fulfilled acquisition would lapse, and in a case where several pieces of land have been acquired, if compensation in respect of majority landholdings has not been deposited, such acquisition will not lapse, but only higher compensation under the Act of 2013 would be paid. The words “award being made five years or more prior to the commencement of the Act” are absent in the proviso. Reading these words to proviso would do violence to the literal language, and its plain meaning proviso and being a beneficial provision must be construed in the way which furthers its performance. It was also submitted that in respect of large chunks of land carved out by the same notification, the compensation in respect of the majority of landholdings has been deposited. In such a case no lapse will take place because the proviso in such a case will not apply and whether in respect H

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A of the majority of landholdings, compensation has or has not been deposited, would have no bearing on the issue whether lapsing does or does not take place under section 24(2). With respect to the proviso, various questions arise for consideration. B (a) Interpretation:

171Copy pinpoint171. The main question is whether under the scheme of section 24 the proviso is treated as part of Section 24(1)(b) or it is part of the exception carved out in section 24(2) particularly in view of the fact that the word ‘or’ has been interpreted by us as ‘and.’ In that context, when C Delhi Metro Rail Corporation Ltd. v. Tarun Pal Singh & Ors122 as well as when the question was considered in Delhi Development Authority v. Virender Lal Bahri & Ors., [SLP [C] No.37375/2016], the question did not come up for consideration in any of the matters whether ‘or’ in two negative conditions in Section 24(2) has to be read conjunctively or disjunctively. When we read the word “or” as ‘and’ in the main part of section 24(2), it is clear that the proviso has to stay as part of section 24(2) where it has been placed by the legislature, and only then it makes sense. If ‘or’ used in-between two negative conditions of ‘possession has not been taken’ or ‘compensation has not been paid,’ disjunctively, in that case, the proviso cannot be operative and would become otiose and would make no sense as part of Section 24(2). In case of amount not having been paid the acquisition has to lapse, though possession (of the land) has been taken would not be the proper interpretation of the main part as mentioned above, when “or” is read conjunctively, section 24(2) provided for lapse in a case where possession has not been taken, nor compensation has been paid, in such a case proviso becomes operative in given exigency of not depositing amount with respect to majority of landholdings.

172Copy pinpoint172. A reading of section 24(2) shows that in case possession has been taken even if the compensation has not been paid, the proceedings shall not lapse. In case payment has not been made nor deposited with respect to the majority of the holdings in the accounts of the beneficiaries, then all the beneficiaries specified in the notification under Section 4 of the Act of 1894 shall get the enhanced compensation under the provisions of the Act of 2013. Section 24(2) not only deals with failure to take 122 H (2018) 14 SCC 161

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physical possession but also failure to make payment of compensation. A If both things have not been done, there is lapse of the acquisition proceeding. But where payment has been made though possession has been taken or payment has been made to some of the persons but not to all, and it has also not been deposited as envisaged in the proviso, in that event all beneficiaries (under the same award) shall get higher compensation. This is because once possession is been taken, there can be no lapse of the proceedings, and higher compensation is intended on failure to deposit the compensation. Once an award has been passed and possession has been taken, there is absolute vesting of the land, as such higher compensation follows under the proviso, which is beneficial to holders. In a case where both the negative conditions have not been fulfilled, as mentioned in section 24(2), there is a lapse. Thus, the proviso, in our opinion is a wholesome provision and is, in fact, a part of section 24(2); it fits in the context of section 24(2) as deposit is related with the payment of compensation and lapse is provided due to non-payment along with not taking possession for five years or more whereas for non-deposit higher compensation is provided. Thus, when one of the conditions has been satisfied in case payment has been made, or possession has not been taken, there is no lapse of the proceedings as both the negative conditions must co-exist.

173Copy pinpoint173. When we consider the provisions of section 24(1)(b) where an award has been passed under section 11 of the Act of 1894, then such proceedings shall continue under the provisions of the said Act as if it has not been repealed. The only exception carved out is the period of 5 years or more and that too by providing a non-obstante clause in Section 24(2) to anything contained in section 24(1). The non-obstante clause qualifies the proviso also to Section 24(2). It has to be read as part of F Section 24(2) as it is an exception to Section 24(1)(b). In our opinion, Section 24(1)(b) is a self-contained provision, and is also a part of the non-obstante clause to the other provisions of the Act as provided in sub-section (1). Parliament worked out an exception, by providing a non-obstante clause in section 24(2), to Section 24(1). Compensation is to be paid under Section 24(1)(b) under the Act of 1894 and not under G the Act of 2013. As such Section 24 (2) is an exception to section 24(1)(b) and the proviso is also an exception which fits in with non-obstante clause of Section 24 (2) only. Any other interpretation will be derogatory to the provisions contained in Section 24(1)(b) which provides that the pending proceedings shall continue under the Act of 1894 as if it had not H

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A been repealed, that would include the part relating to compensation too. Even if there is no lapse of proceedings under section 24(1)(a), only higher compensation follows under Section 24(1)(a). Section 24(2) deals with the award having been made five years or before the commencement of the new Act. The legislative history also indicates/it was intended that five years’ period should be adequate to make payment of compensation and to take possession. In that spirit, the proviso has been carved out as part of section 24(2). Thus when Parliament has placed it at a particular place, by a process of reasoning, there can be no lifting and relocation of the provision. To bodily lift it would be an impermissible exercise. Unless it produces absurd results and does not fit in the scheme of the Act and the provisions to which it is attached such an interpretation, doing violence to the express provision, is not a legitimate interpretative exercise. There is no need to add it as the proviso to Section 24(1)(b) as it has not been done by the legislature, and it makes sense where it has been placed. It need not be lifted. D (b) Punctuation used in Section 24(2):

174Copy pinpoint174. Parliament has used the full stop (.) after section 24(1) and colon (:) after section 24(2). It cannot be gainsaid that punctuation plays a vital role, particularly when an attempt is made to relocate any part of the provision. The use of the colon is to introduce a sub-clause that follows logically from the text before it. We are examining this aspect of the colon, additionally. Though as the interpretation of the provision of Section 24(2) and its proviso needs no further deliberation regarding its placement, the same is to be read as a proviso to Section 24(2) and not Section 24(1)(b). Use of punctuation colon reinforces our conclusion and punctuation mark has been an accepted method of statutory interpretation when such a problem arises. Though sometimes punctuation can be ignored also but not generally. The full stop after section 24(1)(b) expresses deliberate intent to end a particular sentence and detach it from the next part. With regard to the meaning of the punctuation colon, the University of Oxford Style Guide states as under: G “Use a colon to introduce a subclause which follows logically from the text before it, is not a new concept and depends logically on the preceding main clause. Do not use a colon if the two parts of the sentence are not logically connected.”

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175Copy pinpoint175. The note of the University of England “Writing Correctly” A has also been relied upon on behalf of the State of Haryana. Following discussion has been made: “Colons have a number of functions in a sentence. If you use colons in your writing, use them sparingly, and never use a colon more than once in any sentence. B Rule 1: Colons can be used to introduce a list, but they must follow a complete sentence (independent clause). Rule 2: Colons can be used to explain, summarise or extend the meaning in a sentence by introducing a word, phrase or clause that enlarges on the previous statement. C

Rule 3: Colons are used to separate the title from the subtitle. Rule 4: Colons can be used to introduce a quotation in formal academic writing.” (emphasis supplied) D

176Copy pinpoint176. It is clear that the colon (:) has a reference to the previous statement and enlarges the same and extends the meaning of the sentence. The colon indicates that the text is intrinsically linked to the previous provision preceding it, i.e., Section 24(2) in this case and not section 24(1). The colon indicates that what follows. The colon proves, explains, defines describes or lists elements of what precedes it. In case the proviso is bodily lifted and placed after section 24(1(b), section 24(2) will end with a “colon,” which is never done to end a provision. Certain decisions have been referred to saying that importance and weightage are to be given to punctuation marks. The earlier view was that punctuations were added by the proof readers, and the Acts passed by Parliament did not contain any punctuation. However, it was submitted that in the past century, the English courts realised that the drafts placed before the Parliament also carry punctuations and, thus, it is important to give meaning to the same. Bennion on Statutory Interpretation has this to say regarding punctuation marks: G “16.8 Punctuation is a part of an Act and may be considered in construing a provision. It is usually of little weight, however, since the sense of an Act should be the same with or without its punctuation. … H

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A Although punctuation may be considered, it will generally be of little use since the sense of an Act should be the same with or without it. Punctuation is a device not for making meaning, but for making meaning plain. Its purpose is to denote the steps that ought to be made in oral reading and to point out the sense. The meaning of a well-crafted legislative B proposition should not turn on the presence or absence of a punctuation mark.”

177Copy pinpoint177. In Marshall v. Cottingham123 [1982] Ch 82 at 88, at 12 while referring to the change of position and establishing that punctuation may be used in interpretation, it was held that: C “the day is long past when the courts would pay no heed to punctuation in an Act of Parliament.” In Hanlon v Law Society124 it was held as under : “… not to take account of punctuation disregards the reality that literate people, such as parliamentary draftsmen, punctuate what they write, if not identically, at least in accordance with grammatical principles. Why should not other literate people, such as judges, look at the punctuation in order to interpret the meaning of the legislation as accepted by parliament?” Yet again in Houston v Burns125, it was held that: “Punctuation is a rational part of English composition and is sometimes quite significantly employed. I see no reason for depriving legal documents of such significance as attaches to punctuation in other writings.”

178Copy pinpoint178. Other decisions were also cited.126 On similar lines, the American approach to the interpretation of punctuations is different. In Taylor v. Caribou127 , it was held as under:

G 123 [1981] 3 All ER 8 124 [1981] AC 124 at 197 125 [1910] AC 337 at 348 126 Dingmar v. Dingmar 2007 (2) All ER 382; Kennedy v Information Commissioner and another (Secretary of State for Justice intervening) [2012] 1 WLR 3524 127 H 102 Me. 401, 67 A.2 (1907)

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[ARUN MISHRA, J.]

“We are aware that it has been repeatedly asserted by courts and jurists that punctuation is no part of a statute, and that it ought not to be regarded in construction. This rule in its origin was founded upon common sense, for in England until 1849 statutes were entrolled upon parchment and enacted without punctuation …. Such a rule is not applicable to conditions where, as in this State, a bill is printed and is on the desk of every member of the Legislature, punctuation and all, before its final passage. There is no reason why punctuation, which is intended to and does assist in making clear and plain the meaning of all things else in the English language, should be rejected in the case of the interpretation of statutes. “Cessante C ratione legis cessat ipso lex.” Accordingly we find that it has been said that in interpreting a statute punctuation may be resorted to when other means fail …; that it may aid its construction …; that by it the meaning may often be determined; that it is one of the means of discovering the legislative intent …; that it may be of material assistance in determining the legislative intention….” (emphasis supplied) In Aswini Kumar Ghose (supra) stated that: “Punctuation is after all a minor element in the construction of a statute, and very little attention is paid to it by English courts. Cockburn, C.J. said in Stephenson v. Taylor: “On the Parliament Roll there is no punctuation and we therefore are not bound by that in the printed copies.” It seems, however, that in the Vellum copies printed since 1850 there are some cases of punctuation, and when they occur they can be looked upon as a sort of contemporanea expositio. When a statute is carefully punctuated and there is doubt about its meaning, a weight should undoubtedly be given to the punctuation. I need not deny that punctuation may have its uses in some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text. ********* ******* “77. The High Court has rejected the contention of the petitioner Aswini Kumar Ghosh on two grounds. In the first H

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A place it has been said that the comma was no part of the Act. That the orthodox view of earlier English Judges was that punctuation formed no part of the statute appears quite clearly from the observations of Willes, J. in Claydon v. Green. Vigorous expression was given to this view also by Lord Esher, M.R. in Duke of Devonshire v. Connor where he said: B “In an Act of Parliament there are no such things as brackets any more than there are such things as stops.” This view was also adopted by the Privy Council in the matter of interpretation of Indian statutes as will appear from the observations of Lord Hobhouse in Maharani of Burdwan v. Murtunjoy Singh, namely, that “it is an error to rely on punctuation in construing Acts of the legislature”. Same opinion was expressed by the Privy Council in Pugh v. Ashutosh Sen. If, however, the Rule regarding the rejection of punctuation for the purposes of interpretation is to be regarded as of imperfect obligation and punctuation is to be taken at least as contemporanea expositio, it will nevertheless have to be disregarded if it is contrary to the plain meaning of the statute. If punctuation is without sense or conflicts with the plain meaning of the words, the court will not allow it to cause a meaning to be placed upon the words which they otherwise would not have. This leads me to the second ground on which mainly the High Court rejected the plea of the petitioner Aswini Kumar Ghosh, namely, that the word “other” in the phrase “any other law” quite clearly connects the Indian Bar Councils Act with other laws as alternatives and subjects both to the qualification contained in the adjectival clause. I find myself in complete agreement with the High Court on this point. If the intention was that the adjectival clause should not qualify the Indian Bar Councils Act, then the use of the word “other” was wholly in apposite and unnecessary. The G use of that word unmistakably leads to the conclusion that the adjectival clause also qualifies something other than “other law”. If the intention were that the Indian Bar Councils Act should remain unaffected by the qualifying phrase and should be superseded in toto for the purposes of this Act the legislature would have said “or in any law regulating the H

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conditions etc.” It would have been yet simpler not to refer to the Indian Bar Councils Act at all and to drop the adjectival clause and to simply say “Notwithstanding anything contained in any law”. In the light of the true meaning of the title of the Act as I have explained above and having regard to the use of the word “other” I have no hesitation in holding, in agreement with the High Court, that what the non obstante clause intended to exclude or supersede was not the whole of the Indian Bar Councils Act but to exclude or supersede that Act and any other law only insofar as they or either of them purported to regulate the conditions subject to which a person not entered in the roll of advocates of a High Court might be permitted to practise in that High Court and that the comma, if it may at all be looked at, must be disregarded as being contrary to this plain meaning of the statute.”

179Copy pinpoint179. In Jamshed N. Guzdar (supra) this court held that: D “42. The general jurisdiction of the High Courts is dealt with in Entry 11-A under the caption “administration of justice”, which has a wide meaning and includes administration of civil as well as criminal justice. The expression “administration of justice” has been used without any qualification or limitation wide enough to include the “powers” and E “jurisdiction” of all the courts except the Supreme Court. The semicolon (;) after the words “administration of justice” in Entry 11-A has significance and meaning. The other words in the same entry after “administration of justice” only speak in relation to “constitution” and “organisation” of all the courts except the Supreme Court and High Courts. It follows that under Entry 11-A the State Legislature has no power to constitute and organise the Supreme Court and High Courts. It is an accepted principle of construction of a Constitution that everything necessary for the exercise of powers is included in the grant of power. The State Legislature being an appropriate body to legislate in respect of “administration of justice” and to invest all courts within the State including the High Court with general jurisdiction and powers in all matters, civil and criminal, it must follow that it can invest the High Court with such general jurisdiction and powers H

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A including the territorial and pecuniary jurisdiction and also to take away such jurisdiction and powers from the High Court except those, which are specifically conferred under the Constitution on the High Courts. It is not possible to say that investing the City Civil Court with unlimited jurisdiction, taking away the same from the High Court, amounts to dealing with “constitution” and “organisation” of the High Court. Under Entry 11-A of List III the State Legislature is empowered to constitute and organise City Civil Court and while constituting such court the State Legislature is also empowered to confer jurisdiction and powers upon such courts inasmuch as “administration of justice” of all the courts including the High Court is covered by Entry 11-A of List III, so long as Parliament does not enact law in that regard under Entry 11- A. Entry 46 of the Concurrent List speaks of the special jurisdiction in respect of the matters in List III. Entry 13 in List III is “… Code of Civil Procedure at the commencement of this Constitution …”. From Entry 13 it follows that in respect of the matters included in the Code of Civil Procedure and generally in the matter of civil procedure Parliament or the State Legislature, as provided by Article 246(2) of the Constitution, acquire the concurrent legislative competence. E The 1987 Act deals with pecuniary jurisdiction of the courts as envisaged in the Code of Civil Procedure and as such the State Legislature was competent to legislate under Entry 13 of List III for enacting the 1987 Act.

68. A Full Bench of the Punjab and Haryana High Court in F Rajinder Singh v. Kultar Singh AIR 1980 P&H 1, touching the same topic stated thus: (AIR p. 1) “So far as the High Courts are concerned, the topic of jurisdiction and powers in general is not separately mentioned in any of the entries of List I, but ‘administration of justice’ G as a distinct topic finds a place in Entry 3 of List II (now Entry 11-A of List III). The expression ‘administration of justice’ occurring in Entry 3 of List II of the VIIth Schedule has to be construed in its widest sense so as to give power to the State Legislature to H legislate on all matters relating to administration of justice.

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[ARUN MISHRA, J.]

After the words ‘administration of justice’ in Entry 3 there is A a semicolon, and this punctuation cannot be discarded as being inappropriate. The punctuation has been put with a definite object of making this topic as distinct and not having relation only to the topic that follows thereafter. Under Entry 78 of List I, the topic of jurisdiction and powers of the High B Courts is not dealt with. Under Entry 3 of List II the State Legislature can confer jurisdiction and powers or restrict or withdraw the jurisdiction and powers already conferred on any of the courts except the Supreme Court, in respect of any statute. Therefore, the State Legislature has the power to make a law with respect to the jurisdiction and powers of the High C Court.”

180Copy pinpoint180. There are several other decisions, which support the proposition that punctuation marks, especially colons have a significant role in the interpretation of words in a statute. These judgments include Falcon Tyres Ltd. v. State of Karnataka128. It was submitted that the semicolon after the word “cotton” did not mean that the first part of the section was disjunctive from “such produce” as has been subjected to any physical, chemical or other process. It was further submitted that punctuation is not a safe tool in construction of statute and if the first part of the section is read as disjunctive from the other part it conflicts with Sl. No. 2 in the Second Schedule. Further it was submitted that definition section which is the interpretation clause to the statute begins with the expression “unless the context otherwise requires”. This court held that: “11. We do not find any substance in the submission of the learned counsel for the appellant that the semicolon after the word “cotton” does not mean that the first part of the section is disjunctive from “such produce” as has been subjected to any physical, chemical or other process. Section 2(A)(1) is in two parts, it excludes two types of food from agricultural produce. According to us, the definition of the agricultural and horticultural produce does not say as to what would be included in the agricultural or horticultural produce, in substance it includes all agricultural or horticultural produce but excludes, (1) tea, coffee, rubber, cashew, cardamom, 128 (2006) 6 SCC 530 H

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A pepper and cotton from the definition of the agricultural or horticultural produce though all these products as per dictionary meaning or in common parlance would be understood as agricultural produce; and (2) “such produce as has been subjected to any physical, chemical or other process for being made fit for consumption”, meaning thereby that the agricultural produce other than what has been excluded, which has been subjected to any physical, chemical or other process for making it fit for consumption would also be excluded from the definition of the agricultural or horticultural produce except where such agricultural produce is merely cleaned, graded, sorted or dried. For example, if the potatoes are cleaned, graded, sorted or dried, they will remain agricultural produce but in case raw potato is subjected to a process and converted into chips for human consumption it would cease to be agricultural produce for the purposes of the Entry Tax Act. The words “such produce” D in the second part do not refer to the produce which has already been excluded from the agricultural or horticultural produce but refer to such other agricultural produce which has been subjected to any physical, chemical or other process for being made fit for human consumption.” E The other judgment cited was State of Gujarat v. Reliance Industries Ltd.129 With respect to ‘Full Stop’ and ‘Colon’, Vepa P. Sarathi in the Interpretation of Statutes, Fifth Edition discussed the issue thus: “The Stop. – The most important punctuation mark is the period or full stop. It has to be placed at the end of a complete F sentence which is neither exclamatory nor interrogatory. Of course, in legislative drafting exclamatory or interrogative sentences will not occur. An incomplete sentence should however end with a dash. It should be noticed carefully whether the final stop should be inside or outside the quotes. G One can tell easily by the sense. Colon. – It implies that what follows explains and amplifies the sentence that comes before it. It is generally used before a quotation, or to take the place of some word such as “namely”.” 129 H (2017) 16 SCC 28

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[ARUN MISHRA, J.]

181Copy pinpoint181. Aswini Kumar Ghose & Anr (supra) also dealt with full stops and held that as long as punctuation does not detract from the meaning of the words in the text, it can be a controlling factor in interpretation. In State of West Bengal v. Swapan Kumar Guha and Ors130, this court observed that grammar and punctuation are hapless victims of the pace of life and sometimes are used both as a matter of convenience and of meaningfulness. Besides, how far a clause which follows upon a comma governs every clause that precedes the comma is a matter not free from doubt. This Court observed that: “5. Since the sole question for consideration arising out of the FIR, as laid, is whether the accused are conducting a money circulation scheme, it is necessary to understand what is comprehended within the statutory meaning of that expression. Section 2(c) of the Act provides: “2. (c) ‘money circulation scheme’ means any scheme, by whatever name called, for the making of quick or easy money, or for the receipt of any money or valuable thing as the consideration for a promise to pay money, on any event or contingency relative or applicable to the enrolment of members into the scheme, whether or not such money or thing is derived from the entrance money of the members of such scheme or periodical subscriptions;” E Grammar and punctuation are hapless victims of the pace of life, and I prefer in this case not to go merely by the commas used in clause (c) because, though they seem to me to have been placed both as a matter of convenience and of meaningfulness, yet, a more thoughtful use of commas and other gadgets of punctuation would have helped make the meaning of the clause clear beyond controversy. Besides, how far a clause which follows upon a comma governs every clause that precedes the comma is a matter not free from doubt. I, therefore, consider it more safe and satisfactory to discover the true meaning of clause (c) by having regard to the substance of the matter as it emerges from the object and purpose of the Act, the context in which the expression is used and the consequences necessarily following upon the

130 (1982) 1 SCC 561 H

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A acceptance of any particular interpretation of the provision, the contravention of which is visited by penal consequences.”

182Copy pinpoint182. The present case involves placement of colon preceding to the Proviso to Section 24 (2) and not Section 24 (1), which ends with a full stop, and it makes sense and the true meaning where Parliament has placed it. The proviso is part of section 24(2). It is not permissible to alter the provision and to read it as a proviso to section 24(1)(b), mainly when it makes sense where Parliament so placed it. To read the proviso as part of section 24(1)(b), will create repugnancy which the provisions contained in section 24(1)(b). The window period of 5 years is provided to complete the acquisition proceedings where the award has been passed, and the provisions of the Act of 1894 shall be applied as if it has not been repealed. Section 24(2) starts with a non-obstante clause; it plainly is notwithstanding Section 24 (1), and the proviso to section 24(2) enlarges the scope of section 24(2). When the window period has been provided under section 24(1)(b), i.e., section 24(2) and its proviso, higher compensation cannot follow in case of an award which has been passed within 5 years of the enactment of the Act of 2013 otherwise anomalous results shall accrue. In case proviso is read as a part of section 24(1)(b), it would be repugnant to the consideration of the provision which has been carved out saving acquisition and providing window period of 5 years to complete the acquisition proceedings. There were cases under the Act of 1894, in which award may have been made in December 2013, a few days before the Act was enforced on 1.1.2014. As the provisions of the Act of 1894 are applicable to such awards, obviously notice of the award has to be given under Section 12 of the said Act. There is no question of outright deposit. In such event as the deposit is to be made when the Collector is prevented by the exigencies specified in Section 31(2) from making payment. The deposit is not contemplated directly either in the court or the treasury, as the case may be as provided in section 31(2), corresponding to section 77(2) of the Act of 2013.

183Copy pinpoint183. The proviso relates to the non-payment. Compensation is deposited when the Collector is prevented from making payment. It is the obligation made under section 31(1) to tender the amount and pay unless prevented by the contingencies specified in section 31(2). Thus, the deposit has a co-relation with the expression “payment has not been made,” and the proviso makes sense with Section 24 (2) only. In case of non-payment or prevention from payment, compensation is required to H

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be deposited as the case may be in the Reference Court or otherwise in A Treasury, if permissible.

184Copy pinpoint184. The proviso uses the expression that the amount is to be deposited in the account of beneficiaries. Earlier under the Act of 1894, there was no such provision for depositing the amount in the bank account of beneficiaries but the method which was used as per the forms which B were prescribed to deposit the amount, it was credited to the Reference Court or in the Treasury in the names of the beneficiaries and as against the award. It was not a separate account but an account of the Reference Court or set apart in the treasury. The proviso has to be interpreted and given the meaning with Section 24(2) as an amount was required to be paid and on being prevented had to be deposited as envisaged under the C Act of 1894.

185Copy pinpoint185. If we hold that even if the award has been passed within 5 years and the compensation amount has not been deposited with respect to such an award passed in the window period, higher compensation to follow if it is not deposited with respect to the majority of the holdings would amount to re-writing the statute. The provision of section 24(1)(a) is clear if an award has not been passed, higher compensation to follow. No lapse is provided. In case award has been passed within the window period of section 24(1)(b), inter alia, the provisions for compensation would be that of the Act of 1894. The only exception to section 24(1) is created by the non-obstante clause in section 24(2) by providing that in case the requisite steps have not been taken for 5 years or more, then there is lapse as a negative condition. The proviso contemplates higher compensation, in case compensation has not been paid, and the amount has not been deposited with respect to the majority of the holdings, to all the beneficiaries under the Act of 2013, who were holding land on the date of notification under Section 4. If the proviso is added, section 24(1)(b) will destroy the very provision of section 24(1)(b) providing proceedings to continue under the Act of 1894, which is not the function of the proviso to substitute the main Section but to explain it. It is not to cause repugnancy with the main provision. The function of the proviso is to explain or widen the scope. It is a settled proposition of law that the proviso cannot travel beyond the provision to which it is attached. The proviso would travel beyond the Act of 1894 as it is the intention of section 24(1)(b) the proceedings to govern by the Act of 1894. Thus, the proviso has no space to exist with section 24(1)(b), and it has rightly not H

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A been attached by Parliament, with Section 24(2) and has been placed at the right place where it should have been.

186Copy pinpoint186. It is in the cases where there is no lapse under section 24(2) if either step has been taken proviso operates to provide higher compensation. In the cases where possession has been taken, but the amount has not been deposited as required under the proviso, higher compensation to all the beneficiaries has to follow as once possession has been taken, the land is vested in the State and payment is necessary for any acquisition. As such, Parliament has provided in such cases higher compensation to follow as envisaged in the proviso to section 24(2). Lapse of acquisition is provided only in the exigencies where possession has not been taken, nor compensation has been paid in the proceedings for acquisition pending as on the date on which the Act of 2013 came into force, then the State Government has to initiate fresh proceedings if it so desires. The proviso is part of the scheme of section 24(2), and the entire provision of section 24(2), including the proviso, operates when inaction is there for a period of 5 years or more, as contemplated therein.

187Copy pinpoint187. The fundamental consideration is that the proviso cannot supersede the main provision of section 24(1)(b) and destroy it. The function of the proviso is to except out the pressing provisions to which it is attached. In case possession has been taken, but only a few beneficiaries have been paid, there is no lapse. Even if nobody has been paid, there is no lapse once possession has been taken. In case compensation has not been deposited with respect to the majority of the holdings, there is no lapse, but higher compensation to all the beneficiaries has to follow. The provision provides equal treatment to all, not only to a few- and, in effect, is similar to Section 28A of the Act of 1894- in case the obligation to pay or deposit has not been discharged and there is no arrangement of money to discharge the obligation either by paying or depositing in the Reference Court and, if permissible, in the treasury. Section 24(2) saves land which has been vested in the State, once award has been passed and possession of land. However, in case compensation has not been deposited with respect to majority of landowners, in any given award, all beneficiaries have to be paid higher compensation under the new Act.

188Copy pinpoint188. It was urged that section 24(1) and 24(2) deal with different subjects. It was submitted that Section 24(1) deals with compensation, whereas section 24(2) deals with the lapsing of the acquisition. We are

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unable to accept the submission. Section 24(2) also deals with payment of compensation and taking of possession. Section 24(1)(a) is concerning a situation where no award has been made, higher compensation under the new Act to follow. In section 24(1)(b) where the award is made (at the time of coming into force of the new Act) further proceedings would be under the new law; subject to Section 24(2), the provisions of the Act B of 1894 would apply to such an award. Thus, the main part of section 24(2) deals with payment of compensation; also the proviso which provides for higher compensation to be paid to all is in the context of section 24(2) and cannot be lifted and added to Section 24(1)(b) in the aforesaid circumstances. What would be the majority of the landholdings has to be seen in the context, what has been acquired in the case of a C single plot being acquired, and in case compensation has not been deposited with respect to that, it will constitute the majority. The majority does not depend upon the number of holdings acquired, but what constitutes the majority as per the acquired area under the notification.

189Copy pinpoint189. Section 24(1)(a) operates where no award is made in a D pending acquisition proceeding; in such event all provisions of the new Act relating to determination of compensation would apply. Section 24 (1) (b) logically continues with the second situation, i.e. where the award has been passed, and states that in such event, proceedings would continue under the Act of 1894. Section 24 (2) – by way of an exception, states that where an award is made but requisite steps have not been taken for five years or more to take possession nor compensation has been paid then there is lapse of acquisition. If one of the steps has been taken, then the proviso can operate. Time is the essence. It is on the basis of time-lag that the lapse is provided and in default of payment for five years as provided on failure to deposit higher compensation is to be paid. It is based on that time-lag higher compensation has to follow. It is not the mere use of colon under section 24(2) but the placement of the proviso next to Section 24 (2) and not below Section 24(1)(b). Thus, it is not permissible to alter a placement of proviso more so when it is fully in consonance with the provisions of section 24(2). Section 24(2) completely obliterates the old regime to the effect of its field of operation. Under G section 24(1)(a), there is a partial lapse of the old regime because all proceedings, till the stage of award are preserved. The award, in such proceedings, made after coming into force of the Act of 2013 has to take into account its provisions, for determination of compensation. Thus, proceedings upto the stage of the award are deemed final under the old H

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A Act. In the case under section 24(1)(b), the old regime prevails. The proviso is an exception to section 24(2) and in part the new regime for payment of higher compensation in case of default for 5 years or more after award. In re: Proviso to be read as part of provision it is appended