1

AFR

RESERVED

Court No.39

Case :- WRIT - C No. - 43934 of 2017

Petitioner :- Vijay Singh Tyagi And 25 Others

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Shiv Kant Mishra

Counsel for Respondent :-C.S.C., Ms. Meenakshi Singh, Anoop Trivedi

Hon'ble Dilip Gupta,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dilip Gupta, J.)

This petition has been filed for quashing the award dated 19

November 2013 made by the Additional District Magistrate (Land

Acquisition)

1

under Section 11 of The Land Acquisition Act, 1894

2

as

also the amended award dated 4 March 2014 that seeks to make

corrections under Section 12-A(1) of the 1894 Act in the aforesaid award

dated 19 November 2013. A further relief that has been claimed is that

compensation should, thereafter, be determined in accordance with the

proviso to Section 24(2) of the Right to Fair Compensation and

Transparency in Land Acquisition Rehabilitation and Resettlement Act,

2013

3

.

The petitioners claim to be owners of 0.165 hectares of land

situated in Khasra No. 126 in village Rasulpur, Yaqoobpur, Tehsil and

District Ghaziabad. A notification under Section 4(1) of the 1894 Act

read with sub-sections (1) and (4) of Section 17 of the 1894 Act was

issued on 16 October 2004 for acquisition of 68.537 hectares of land

1'ADM (LA)'

2'the 1894 Act'

3the 2013 Act

Neutralt:itationtNoqtltDwm8YB’:Ym)Dm6(lx&

2

situated in village Rasulpur, Yakoobpur, including 0.165 hectares of land

situated in Khasra No.126, for construction of a residential colony by the

Ghaziabad Development Authority, Ghaziabad

4

under a Planned

Development Scheme. This was followed by a declaration made under

Section 6 of the 1894 Act on 28 October 2005. The award was made

under Section 11 of the 1894 Act by the ADM(LA) on 19 November

2013. Possession of 61.522 hectares of land was taken on 18 May 2006;

of 1.971 hectares of land on 21 March 2009; of 0.747625 hectares on 31

December 2009 and of 4.2607375 hectares on 2 June 2010. It needs to be

stated that the award was made under Section 11(1) of the 1894 Act for

6.648125 hectares of land, while the award for 19.214875 hectares of

land was made under Section 11 (2) of the 1894 Act under the provisions

of The Land Acquisition (Determination of Compensation and

Declaration of Award by Agreement) Rules, 1997

5

. The award for the

remaining 42.585 hectares of land was not made because of the interim

orders passed by the Court. However, as there were clerical mistakes in

the award dated 19 November 2013, the Collector on his own motion

corrected the same on 4 March 2014.

Learned counsel for the petitioners submitted that there were no

clerical or arithmetical mistake in the award dated 19 November 2013

and, therefore, the date of award should be treated as 4 March 2014, on

which date the amended award was made. The submission is that the

compensation for the land should, therefore, have been determined in

accordance with the provisions of the 2013 Act as is provided for under

4'the Development Authority'

5'the 1997 Rules'

3

Section 24(1)(a). In the alternative, learned counsel for the petitioners

submitted that all the beneficiaries specified in the notification for

acquisition of land are entitled to receive compensation in accordance

with the provisions of the 2013 Act as contemplated under the proviso to

Section 24(2) of the 2013 Act since compensation in respect of a majority

of the land holdings was not deposited in the account of the beneficiaries.

To support this submission, learned counsel for the petitioners placed

reliance upon the decision of a Full Bench of the Bombay High Court

(Nagpur Bench) in Writ Petition No.3447 of 2015

6

; a Division Bench

judgment of the Delhi High Court in Writ Petition (C) No.8596 of 2014

7

which was subsequently followed by the Division Benches of the Delhi

High Court in Writ Petition (C) No. 5095 of 2014; Writ Petition (C)

No. 8273 of 2014

8

and Writ Petition (C) No.1103 of 2016

9

. It has,

therefore, been submitted that the award dated 19 November 2013 should

be set aside and it should be made in accordance with the principles set

out in the proviso to Section 24(2) of the 2013 Act.

Ms. Meenakshi Singh, learned Standing Counsel appearing for the

State respondents and Sri Anoop Trivedi learned counsel appearing for

the Development Authority, however, submitted that the date of the

award would continue to remain as 19 November 2013 even if some

corrections were subsequently made on 4 March 2014 and, therefore, the

provisions of the 2013 Act so far as they relate to payment of

6'Dayaram Bhondu Koche & Ors., Vs. The State of Maharashtra, & Ors., decided on 5 December

2016

7Tarun Pal Singh & Anr. Vs. Lt. Governor, Govt. of NCT of Delhi & Ors., decided on 21 May 2015

8Guru Nanak Vidya Bhandar Trust Vs. Union of India & Ors., decided on 4 January 2017

9Mahendra Vs. Union of India & Ors., decided on 30 August 2017

4

compensation would not apply. Learned counsel for the respondents

further submitted that the proviso to Section 24(2) of the 2013 Act would

apply to only those awards that were made five years or more prior to 1

January 2014, which is the date of commencement of the Act and,

therefore, it would have no application to the case of the petitioners since

the award was made on 19 November 2013.

We have considered the submissions advanced by learned counsel

for the parties.

In order to appreciate the first contention advanced by learned

counsel for the petitioners, it would be appropriate to reproduce Section

12-A of the 1894 Act as inserted by UP Amendment on 19 November

1954 and the same is as follows:

“12A. Power to correct award.-(1) The

Collector may, at any time but not later than six

months from the date of award, or where a reference is

required to be made under section 18, before making

of such reference, correct any clerical or arithmetical

mistake in the award either on its own motion or on

the application of any person interested.

(2) The Collector shall give immediate notice of

any correction made in the award to all persons

interested and, where the acquisition of land is not for

the purposes of the Union, also to the State

Government.

(3) Where any excess amount is provided to

have been paid to any person as a result to the

correction made under sub-section (1), such person

shall be liable to refund the excess, and if he defaults

or refuses to pay, the same may be realised as an

arrear of land revenue.”

The submission advanced by learned counsel for the petitioners is

that the date of the award made under Section 11 of the 1894 Act should

5

be treated as 4 March 2014 and not 19 November 2013. The Court had

required the ADM (LA) to explain what clerical or arithmetical

corrections were required to be carried out in the award dated 19

November 2013. A detailed affidavit has been filed by the ADM (LA)

explaining the corrections that were required to be made. The corrections

are basically with regard to wrong dates or spelling mistakes or wrong

area of the land mentioned in the award dated 19 November 2013. The

mistakes are all covered under Section 12-A(1) of the 1894 Act and were

corrected within six months from the date of the award. The date of the

award would continue to remain as 19 November 2013, even if certain

corrections were subsequently carried out on 4 March 2014. In this view

of the matter when the award under Section 11 of the 1894 Act was made

on 19 November 2013 prior to the commencement of the 2013 Act, the

provisions of Section 24(1)(a) of the 2013 Act would not apply and

compensation was not required to be determined under the provisions of

the 2013 Act. The first submission advanced by learned counsel for the

petitioners, therefore, cannot be accepted.

The second submission of learned counsel for the petitioners is that

the petitioners are entitled to receive compensation in accordance with the

provisions of the 2013 Act as contemplated under the proviso to Section

24(2) of the 2013 Act since compensation in respect of a majority of land

holdings was not deposited in the account of the beneficiaries. It is,

however, important to note that details to substantiate that compensation

in respect of the majority of land holdings was not deposited in the

6

account of the beneficiaries have not been provided by the petitioners and

only a bald statement has been made.

To appreciate the contention, it would be appropriate to refer to

some of the relevant provisions of the 2013 Act. Section 11 deals with

publication of a preliminary notification. It provides that whenever, it

appears to the appropriate Government that land in any area is required or

likely to be required for any public purpose, a notification (called

preliminary notification) to that effect along with details of the land to be

acquired shall be published. Section 15 provides for hearing of objections

by any person interested in the land which has been notified under

Section 11(1) as being required or likely to be required for a public

purpose, within sixty days from the date of the publication of the

preliminary notification. Section 19 deals with publication of declaration

and summary of Rehabilitation and Resettlement. It provides that when

the appropriate Government is satisfied, after considering the report, if

any, made under Section 15(2) that any particular land is needed for a

public purpose, a declaration shall be made to that effect which shall be

published in the manner provided for in sub-section (4) of Section 19.

Section 21 (1) provides that the Collector shall publish public notice on

his website and cause public notice to be given at convenient places on or

near the land to be taken, stating that the Government intends to take

possession of the land and claims to compensation and rehabilitation and

resettlement for all interests in such land may be made to him. Section 23

provides that the Collector shall proceed to enquire into the objections (if

7

any), which any person interested has stated pursuant to a notice given

under Section 21 and shall make an award.

Section 24, on which reliance has been placed by learned counsel

for the petitioners, is reproduced hereinbelow:

“24. Land acquisition process under Act No.

1 of 1894 shall be deemed to have lapsed in certain

cases:–

(1) Notwithstanding anything contained in this Act, in

any case of land acquisition proceedings initiated

under the Land Acquisition Act, 1894 (1 of 1894), -

(a) where no award under Section 11 of the said

Land Acquisition Act has been made, then, all

provisions of this Act relating to the

determination of compensation shall apply; or

(b) where an award under said Section 11 has

been made, then such proceedings shall

continue under the provisions of the said Land

Acquisition Act, as if the said Act has not been

repealed.

(2) Notwithstanding anything contained in sub-section

(1), in case of land acquisition proceedings initiated

under the Land Acquisition Act, 1894 (1 of 1894),

where an award under the said section 11 has been

made five years or more prior to the commencement

of this Act but the physical possession of the land has

not been taken or the compensation has not been paid

the said proceedings shall be deemed to have lapsed

and the appropriate Government, if it so chooses, shall

initiate the proceedings of such land acquisition afresh

in accordance with the provisions of this Act:

Provided that where an award has been made

and compensation in respect of a majority of land

holdings has not been deposited in the account of the

beneficiaries, then, all beneficiaries specified in the

notification for acquisition under section 4 of the said

Land Acquisition Act, shall be entitled to

compensation in accordance with the provisions of

this Act.”

Section 26 deals with the determination of the market value of the

land by the Collector and Section 27 deals with determination of amount

8

of compensation. It provides that the Collector having determined the

market value of the land to be acquired shall calculate the total amount of

compensation to be paid to the land owner by including all assets attached

to the land.

Section 30 (1) deals with award of solatium and is as follows:-

“30. Award of solatium.-(1) The Collector

having determined the total compensation to be paid,

shall, to arrive at the final award, impose a “Solatium”

amount equivalent to one hundred per cent of the

compensation amount.

Explanation.- For the removal of doubts it is

hereby declared that solatium amount shall be in

addition to the compensation payable to any person

whose land has been acquired.

(2) The Collector shall issue individual awards

detailing the particulars of compensation payable and

the details of payment of the compensation as

specified in the First Schedule.

(3) In addition to the market value of the land

provided under Section 26, the Collector shall, in

every case, award an amount calculated at the rate of

twelve per cent per annum on such market value for

the period commencing on and from the date of the

publication of the notification of the Social Impact

Assessment study under sub-section (2) of Section 4,

in respect of such land, till the date of the award of the

Collector or the date of taking possession of the land,

whichever is earlier.”

Section 77 of the 2013 Act which deals with payment of

compensation or deposit of the same in the Authority is reproduced

below:

“77.Payment of Compensation or Deposit of

Same in Authority (1) On making an award under

section 30, the Collector shall tender payment of the

compensation awarded by him to the persons

interested entitled thereto according to the award and

shall pay it to them by depositing the amount in their

9

bank accounts unless prevented by someone or more

of the contingencies mentioned in sub-section (2).

(2) If the person entitled to compensation shall not

consent to receive it, or if there be no person

competent to alienate the land, or if there be any

dispute as to the title to receive the compensation or as

to the apportionment of it, the Collector shall deposit

the amount of the compensation in the Authority to

which a reference under section 64 would be

submitted:

Provided that any person admitted to be interested

may receive such payment under protest as to the

sufficiency of the amount:

Provided further that no person who has received the

amount otherwise than under protest shall be entitled

to make any application under sub-section (1) of

section 64:

Provided also that nothing herein contained shall

affect the liability of any person, who may receive the

whole or any part of any compensation awarded under

this Act, to pay the same to the person lawfully

entitled thereto.”

Section 114 of the 2013 Act deals with repeal and savings and is

reproduced below:

“114. Repeal and savings.-(1) The Land

Acquisition Act, 1894, (1 of 1894) is hereby repealed.

(2) Save as otherwise provided in this Act the

repeal under sub-section (1) shall not be held to

prejudice or affect the general application of section 6

of the General Clauses Act, 1897 (10 of 1897) with

regard to the effect of repeals.”

It is in the light of the aforesaid provisions of the 2013 Act that the

second submission of learned counsel for the petitioners, based on the

proviso to Section 24(2) of the 2013 Act, is required to be examined.

Section 24(1) of the 2013 Act deals with land acquisition

proceedings that have been initiated under the provisions of the 1894

Act. Clause (a) of Section 24(1) of the 2013 Act provides that where no

10

award under Section 11 of the 1894 Act has been made, then, all the

provisions of the 2013 Act relating to the determination of compensation

shall apply. Clause (b) of Section 24 (1) of the 2013 Act, however,

provides that where an award under Section 11 of the 1894 Act has been

made, then such proceedings shall continue under the provisions of the

1894 Act, as if the said Act has not been repealed.

Sub-section (2) of Section 24 also deals with acquisition

proceedings initiated under the provisions of the 1894 Act. It provides

that notwithstanding anything contained in sub-section (1) of Section 24,

where an award under Section 11 of the 1894 Act has been made five

years or more prior to the commencement of the 2013 Act, but the

physical possession of the land has not been taken or the compensation

has not been paid, the said proceedings shall be deemed to have lapsed

and the appropriate Government, if it so chooses, shall initiate the

proceedings of such land acquisition afresh in accordance with the

provisions of the 2013 Act.

The proviso to Section 24(2) stipulates that where an award has

been made and compensation in respect of a majority of land holdings

has not been deposited in the account of the beneficiaries, then, all

beneficiaries specified in the notification for acquisition under section 4

of the 1894 Act, shall be entitled to compensation in accordance with the

provisions of the 2013 Act.

A bare perusal of Section 24(2) of the 2013 Act shows that like

Section 24(1), it also deals with land acquisition proceedings that have

11

been initiated under the provisions of the 1894 Act but it is restricted to

an acquisition in which the award has been made under Section 11 of the

1894 Act five years or more prior to 1 January 2014. It provides that in

such a case, the land acquisition proceedings shall be deemed to have

lapsed if the physical possession of the land has not been taken or the

compensation has not been paid. The proviso to Section 24(2) is preceded

by a grammatical punctuation 'colon'. The submission of learned counsel

for the petitioners is that the proviso to Section 24(2) would, when land

acquisition proceedings have been initiated under the provisions of the

1894 Act, apply to awards made under Section 11 of the 1894 Act within

five years prior to 1 January 2014. The contention of learned counsel for

the respondents, however, is that the proviso has necessarily to cover only

such awards which have been made five years or more prior to 1 January

2014 as is contemplated in Section 24(2).

As noticed above, sub-section (1) of Section 24 of the 2013 Act,

deals with two situations when land acquisition proceedings have been

initiated under the provisions of the 1894 Act. The first situation

contained in clause (a) is when the award under Section 11 of the 1894

Act has not been made prior to 1 January 2014. In such a situation all the

provisions of the 2013 Act relating to determination of compensation

shall apply. The second situation contained in clause (b) is when the

award has been made under Section 11 of the 1894 Act prior to 1 January

2014. In such an event, the proceedings shall continue under the

provisions of the 1894 Act, as if the said Act has not been repealed. Sub-

12

section (2) of Section 24 also deals with land acquisition proceedings

initiated under the provisions of the 1894 Act. It seeks to carve out an

exception to Section 24(1) and provides that notwithstanding anything

contained in sub-section (1), where an award has been made under

Section 11 of the 1894 Act five years or more prior to the commencement

of the 2013 Act but the physical possession of the land has not been taken

or the compensation has not been paid then the land acquisition

proceedings shall be deemed to have lapsed.

The Supreme Court has time and again examined the provisions of

Sections 24(1) and 24(2) of the 2013 Act. It has explained the conditions

under which Section 24(1) of the 2013 Act would apply and the

conditions under which Section 24(2) of the 2013 Act would apply. It has

been observed by the Supreme Court that Section 24(1) of the 2013 Act,

which deals with acquisition proceedings that have been initiated under

the provisions of the 1894 Act, covers situations where either no award

has been made under Section 11 of the 1894 Act, in which case the

beneficial provisions of 2013 Act would apply for determination of

compensation or where an award has been made under Section 11 of the

1894 Act, in which case the provisions of the 1894 Act would apply as if

the said Act has not been repealed. In relation to Section 24(2) of the

2013 Act, it has been pointed out that the State cannot be permitted to

expropriate the property of a citizen if the award has been made and the

necessary steps to complete the acquisition have not been taken for a

period of five years or more. These steps, the Supreme Court explained,

13

include taking physical possession of the land and payment of

compensation. The Supreme Court has also explained that 'compensation'

would be considered as paid if the compensation has been deposited in

the Court where a Reference under Section 18 could be made, in view of

the provisions of Section 31 of the 1894 Act.

In this connection it would be pertinent to refer to the decision of

the Supreme Court in Delhi Development Authority Vs. Sukhbir Singh

& Ors.

10

. While examining the provisions of sub-section (2) of Section

24, the Supreme Court held that in a case where the award under Section

11 of the 1894 Act was made five years or more prior to 1 January 2014,

the acquisition would lapse either when physical possession of the land

has not been taken or compensation has not been paid by 1 January 2014.

It rejected the contention that “or” should be read as “and”. The

observations are as follows:

“11.Section 24(1) begins with a non-obstante clause

and covers situations where either no award has been

made under the Land Acquisition Act, in which case

the more beneficial provisions of the 2013 Act relating

to determination of compensation shall apply, or

where an award has been made under Section 11, land

acquisition proceedings shall continue under the

provisions of the Land Acquisition Act as if the said

Act had not been repealed.

12. To Section 24(1)(b) an important exception is

carved out by Section 24(2). The necessary

ingredients of Section 24(2) are as follows:

(a) Section 24(2) begins with a non-obstante

clause keeping sub-section (1) out of harm’s

way;

(b) For it to apply, land acquisition proceedings

should have been initiated under the Land

Acquisition Act;

10(2016) 16 SCC 258

14

(c) Also, an award under Section 11 should

have been made 5 years or more prior to the

commencement of the 2013 Act;

(d) Physical possession of the land, if not taken,

or compensation, if not paid, are fatal to the

land acquisition proceeding that had been

initiated under the Land Acquisition Act;

(e) The fatality is pronounced by stating that the

said proceedings shall be deemed to have

lapsed, and the appropriate Government, if it so

chooses, shall, in this game of snakes and

ladders, start all over again.

13. The picture that therefore emerges on a

reading of Section 24(2) is that the State has no

business to expropriate from a citizen his property

if an award has been made and the necessary steps

to complete acquisition have not been taken for a

period of five years or more. These steps include the

taking of physical possession of land and payment of

compensation. What the legislature is in effect telling

the executive is that they ought to have put their house

in order and completed the acquisition proceedings

within a reasonable time after pronouncement of

award. Not having done so even after a leeway of five

years is given, would cross the limits of legislative

tolerance, after which the whole proceeding would be

deemed to have lapsed. It is important to notice that

the Section gets attracted if the acquisition proceeding

is not completed within five years after

pronouncement of the award. This may happen either

because physical possession of the land has not been

taken or because compensation has not been paid,

within the said period of five years. A faint

submission to the effect that ‘or’ should be read as

‘and’ must be turned down for two reasons. The

plain natural meaning of the sub-section does not lead

to any absurdity for us to replace language advisedly

used by the Legislature. Secondly, the object of the

Act, and Section 24 in particular, is that in case an

award has been made for five years or more,

possession ought to have been taken within this

period, or else it is statutorily presumed that the

balance between the citizen’s right to retain his

own property and the right of the State to

expropriate it for a public purpose gets so

disturbed as to make the acquisition proceedings

lapse. Alternatively, if compensation has not been

15

paid within this period, it is also statutorily

presumed that the aforesaid balance gets disturbed

so as to free such property from acquisition.”

(emphasis supplied)

It would also be pertinent to refer to the decision of the Supreme

Court in Pune Muncipal Corporation & Anr. Vs. Harakchand

Misirimal Solanki & Ors.

11

. The Supreme Court observed that for the

purposes of Section 24(2), compensation shall be regarded as “paid” if

the compensation has been offered to the person interested and such

compensation has been deposited in the Court where a Reference under

Section 18 can be made on the happening of any of the contingency

contemplated under Section 31 of the 1894 Act. In other words even if

compensation is deposited in the Court, it would be considered as “paid”.

The observations are as follows:-

“17. While enacting Section 24(2), Parliament

definitely had in its view Section 31 of the 1894 Act.

From that one thing is clear that it did not intend

to equate the word “paid” to “offered” or

“tendered”. But at the same time, we do not think

that by use of the word “paid”, Parliament intended

receipt of compensation by the landowners/persons

interested. In our view, it is not appropriate to give a

literal construction to the expression “paid” used in

this sub-section (sub-section (2) of Section 24). If a

literal construction were to be given, then it would

amount to ignoring procedure, mode and manner of

deposit provided in Section 31(2) of the 1894 Act in

the event of happening of any of the contingencies

contemplated therein which may prevent the Collector

from making actual payment of compensation. We

are of the view, therefore, that for the purposes of

Section 24(2), the compensation shall be regarded

as “paid” if the compensation has been offered to

the person interested and such compensation has

been deposited in the court where reference under

Section 18 can be made on happening of any of the

11(2014) 3 SCC 183

16

contingencies contemplated under Section 31(2) of

the 1894 Act. In other words, the compensation may

be said to have been “paid” within the meaning of

Section 24(2) when the Collector (or for that matter

Land Acquisition Officer) has discharged his

obligation and deposited the amount of compensation

in court and made that amount available to the

interested person to be dealt with as provided in

Sections 32 and 33.”

(emphasis supplied)

It, therefore, follows that the land acquisition proceedings initiated

under the provisions of the 1894 Act, in view of the provisions of Section

24(2) of the 2013 Act, shall be deemed to have lapsed where the award

has been made under Section 11 of the 1894 Act five years or prior to 1

January 2014 but the physical possession of the land has not been taken

or the compensation has not been paid. The foremost condition that needs

to be satisfied before the benefit of Section 24(2) of the 2013 Act is

available is that the award should have been made under Section 11 of the

1894 Act five years or more prior to the date of commencement of the

2013 Act i.e. 1 January 2014.

These factors have to be kept in mind to understand what the

proviso to Section 24(2) of the 2013 Act contemplates. Section 24(2) of

the 2013 Act deals with an award made under Section 11 of the 1894 Act

five years or more prior to 1 January 2014. The proviso to Section 24(2)

also talks of an award. It has, therefore, to be examined whether the

award referred to in the proviso is an award made five years or more prior

to 1 January 2014 or to an award made within five years prior to 1

January 2014. It needs to be noted that the proviso to Section 24(2) of the

2013 Act is preceded by a grammatical punctuation “colon”. It would,

17

therefore, be necessary for the Court to first examine the effect of the

grammatical punctuation “colon” before the proviso and then understand

what is the true meaning of a “proviso”.

However, before examining this it would be pertinent to note that

the Supreme Court in State of Gujarat Vs. Reliance Industries Ltd.

12

emphasised the importance placed on punctuation. In Ashwini Kumar

Ghosh Vs. Arabinda Bose

13

, the Supreme Court had earlier also pointed

out that when a statute is carefully punctuated, weight should be given to

the punctuation. In A.K. Gopalan Vs. State of Maharashtra

14

, the

Supreme Court also while construing Article 22(7)(a) of the Constitution,

referred to the punctuation and derived assistance from it in reaching a

conclusion that the Parliament was not obliged to prescribe both the

circumstances under which, and the class or classes of cases, in which a

person may be detained for a period longer than three months, without

obtaining the opinion of the Advisory Board and that the Parliament on a

true construction of the clause could prescribe either or both.

The World Book Encyclopedia Volume IV, defines “Colon” as:

“Colon is a mark of punctuation shown as: Its primary function is

to separate an introduction from what it introduces: a list, a long

quotation, an illustration, or an explanation. A colon is most often used

when the words preceding it form a complete sentence, as in the second

sentence of this article.”

12 Civil Appeal Nos.13047-13048 of 2017, decided on 22 September 2017

13AIR 1952 SC 369

14AIR 1950 SC 27

18

Webster's Encyclopedia Unabridged Dictionary of the English

Language also defines 'Colon' as:

“The sign : used to mark a major division in a sentence, to indicate

that what follows is an elaboration, summation, implication, etc. of what

precedes.”

A colon is used between independent clauses when the second

sentence explains, illustrate, paraphrases, or expands on the first sentence.

The most common use of the word 'Colon' is to inform the reader that

what follows the 'colon' proves, explains, defines, describes or lists

elements of what preceded it. A colon in grammatical use is a punctuation

which is associated with what immediately precedes it. The Colon

introduces the logical consequence, or effect, of a fact stated before.

A Division Bench of this Court presided over by Hon'ble the Chief

Justice Dr. D.Y. Chandrachud, (as His Lordship then was) in Rahul

Upadhyay Vs. Union of India Thru' Ministry of Road Transport & 3

Ors.,

15

explained the use of the grammatical punctuation “Colon” as also

“proviso”. The petitioner had sought to challenge the legality of a

notification issued by the Union Government on 2 January 2015 in

exercise of the power conferred by Rule 3 of the National Highways Fee

(Determination of Rates and Collection) Rules, 2008 by which the

Central Government exempted eight bridges in the State of Uttar Pradesh

from the levy of a user fee. The petitioner placed reliance of Section 7 of

the National Highways Act, 1956. The first submission of the petitioner

was based on the proviso to Section 7(3) of the National Highways Act,

152015(5) ADJ 217

19

1956. The submission that was advanced was that the proviso applies to

the entire Section 7 and not only to Section 7(3). This was repelled by the

Division Bench holding that the proviso which follows is evidently a

proviso to sub-section (3) of Section 7 on a plain language of the proviso

and also because it was preceded by a “colon'. The observations are as

follows:-

“The submission is that the proviso which is

extracted above under which the Central

Government has been empowered to exempt the

payment of fees in public interest leviable on any

bridge is a proviso which applies to the entire

Section 7 and not only to Section 7 (3).

Under Section 7 (1), the Union Government has

been empowered to levy fees at such rates as may be

prescribed by rules made in that behalf for services or

benefits rendered inter alia in relation to the use of

ferries and permanent bridges the cost of construction

of each of which is in excess of rupees twenty-five

lakhs and which are opened to traffic on or after 1

April 1976, as well as temporary bridges and tunnels

on national highways. Sub-section (3) deals with fees

leviable immediately before the commencement of

the Act for services or benefits rendered in relation

to the use of ferries, temporary bridges and tunnels

on any highway specified in the Schedule. These

fees under sub-section (3) were to continue to be

leviable under the Act unless and until they were

altered in exercise of the powers conferred by sub-

section (1). The proviso which follows is evidently a

proviso to sub-section (3) of Section 7. This is

evident from two aspects. The first is the plain

language of the proviso which stipulates that the

Central Government may, if it is of the opinion that it

is necessary in public interest to do so, specify that

fees shall not be leviable "under this sub-section" on

any bridge specified. The expression "under this sub-

section" is in reference to sub-section (3). Secondly,

the proviso which is preceded by a colon. A colon

in grammatical use is a punctuation which is

associated with what immediately precedes it.

Hence, there would be no merit in the submission

that the proviso qualifies the entire Section 7.

20

The power which has been exercised by the

Central Government is under the proviso to Rule 3 (1)

of the Rules of 2008 under which the Central

Government has been empowered to issue a

notification exempting any section of a national

highway, permanent bridge, bypass or tunnel

constructed through a public funded project from the

levy of such fee or part thereof.

(emphasis supplied)

The real nature of a “proviso” also needs to be understood. It has

been explained by Justice G.P. Singh, in “Principles of Statutory

Interpretation-11

th

Edition 2008” in the following words:-

“The normal function of a proviso is to except

something out of the enactment or to qualify

something enacted therein which but for the proviso

would be within the purview of the enactment..........

The proviso may, as LORD MACNAGHTEN laid

down, be “a qualification of the preceding enactment

which is expressed in terms too general to be quite

accurate”. The general rule has been stated by

HIDAYATULLAH, J., in the following words: “As a

general rule, a proviso is added to an enactment to

qualify or create an exception to what is in the

enactment, and ordinarily, a proviso is not interpreted

as stating a general rule”. And in the words of

KAPUR, J., “The proper function of a proviso is that it

qualifies the generality of the main enactment by

providing an exception and taking out as it were, from

the main enactment, a portion which, but for the

proviso would fall within the main enactment.

Ordinarily it is foreign to the proper function of

proviso to read it as providing something by way of an

addendum or dealing with a subject which is foreign

to the main enactment.”

The function of a proviso to a section has been elaborately dealt

with by the Supreme Court in Haryana State Cooperative Land

Development Bank Ltd. Vs. Haryana State Cooperative Land

Development Bank Employees Union

16

. It has been held that the normal

16(2004) 1 SCC 574

21

function of a proviso is to except something out of the enactment or to

qualify something enacted therein which but for the proviso would be

within the purview of the enactment. It has also been held that the proviso

carves out an exception to the main provision to which it has been

enacted as a proviso and to no other.

The learned author Justice G.P. Singh has also explained that a

proviso has to be construed in relation to the section or sections to which

it is appended. The same are as follows:-

“The language of a proviso even if general is

normally to be construed in relation to the subject-

matter covered by the section to which the proviso is

appended. In other words normally a proviso does not

travel beyond the provision to which it is a proviso.”

It would also be pertinent to refer to cases which highlight the

aforesaid position.

The Supreme Court in Ram Narain Sons Ltd. and Ors., Vs. Asst.

Commissioner of Sales Tax and Ors.,

17

observed that a proviso has to

be construed in relation to the subject-matter covered by the section to

which the proviso is appended. The Supreme Court observed that it is a

cardinal rule of interpretation that a proviso to a particular provision of a

statute only embraces the field which is covered by the main provision. It

carves out an exception to the main provision to which it has been

enacted as a proviso and to no other. It, therefore, held that the proviso

appended to Article 286(2) of the Constitution authorising the President

to lift the ban imposed by the said provision was not available for lifting

the ban imposed by Article 286(1).

17AIR 1955 SC 765

22

On the same principle, in CIT Mysore etc. Vs. Indo Mercantile

Bank, Ltd.

18

the first proviso to Section 24(1) of the Indian Income-tax

Act, 1922 was construed as limited in its application to set-off of profits

and losses arising under different heads, a subject dealt with by Section

24(1) and was held inapplicable to set-off of profit and losses dealt with

under sections 7 to 12-B.

In Dwarka Prasad Vs. Dwarka Das Saraf,

19

the Supreme Court

also observed that a proviso must be limited to the subject matter of the

enacting clause and that it is a settled rule of construction that a proviso

must prima facie be read and considered in relation to the principal matter

to which it is a proviso. The Supreme Court also observed that the

golden rule is to read the whole section, inclusive of the proviso, in such a

manner that they mutually throw light on each other and result in a

harmonious construction. The observations are as follows:-

“We may mention in fairness to Counsel that

the following, among other decisions, were cited at the

Bar bearing on the uses of provisos in statutes: CIT

Vs. Indo-Mercantile Bank Ltd.; M/s. Ram Narain

Sons Ltd. Vs. Asstt. C.S.T.; Thompson Vs. Dibdin;

Rex Vs. Dibdin and Tahsildar Singh Vs. State of U.P..

The law is trite. A proviso must be limited to the

subject-matter of the enacting clause. It is a settled

rule of construction that a proviso must prima

facie be read and considered in relation to the

principal matter to which it is a proviso. It is not a

separate or independent enactment. 'Words are

dependent on the principal enacting words, to which

they are tacked as a proviso. They cannot be read as

divorced from their context' . If the rule of

construction is that prima facie a proviso should be

limited in its operation to the subject-matter of the

enacting clause, the stand we have taken is sound. To

expand the enacting clause, inflated by the proviso,

18AIR 1959 SC 713

19AIR 1975 SC 1758

23

sins against the fundamental rule of construction that a

proviso must be considered in relation to the principal

matter to which it stands as a proviso. A proviso

ordinarily is but a proviso, although the golden

rule is to read the whole section, inclusive of the

proviso, in such manner that they mutually throw

light on each other and result in a harmonious

construction.”

(emphasis supplied)

In Vijayalakshamma and Anr. Vs. B.T. Shankar

20

the Supreme

Court pointed out that the proviso and the explanation appended to

Section 7 of the Hindu Adoption and Maintenance Act, 1956 cannot be

permitted to be read in Section 8 of the Act.

It would also be pertinent to refer to the decision of the Supreme

Court in State of Punjab Vs. Kailash Nath

21

. Rule 2.2 of the Punjab

Civil Services Rules reserves to a Government the right of withholding or

withdrawing pension or any part of it, or to order for recovery from

pension if the pensioner is subsequently found guilty of grave misconduct

or negligence during the period of his service in departmental or judicial

proceedings. This rule, however, stipulates that no such judicial

proceedings, if not instituted while the officer was in service, shall be

instituted in respect of a cause of action which arose or an event which

took place more than four years before such institution. The Supreme

Court held that the proviso had to be read as an exception to the main

provision meaning that if the judicial proceeding is not instituted within

the period mentioned in the proviso, the Government will not have a right

to withhold or withdraw the pension and the proviso does not provide a

20(2001) 4 SCC 558

21(1989) 1 SCC 321

24

general embargo on the prosecution of an officer after the expiry of that

period.

Justice G.P. Singh, in “Principles of Statutory Interpretation”

has also explained the consequences of using different words in the same

statute and they are as follows:-

“When in relation to the same subject-matter,

different words are used in the same statute, there is a

presumption that they are not used in the same sense.”

Section 24(2) of the 2013 Act refers to payment of compensation.

The proviso to Section 24(2) of the 2013 Act, as noted above, stipulates

that where an award has been made and compensation in respect of a

majority of land holdings has not been deposited in the account of the

beneficiaries, then all beneficiaries specified in the notification for

acquisition under Section 4 of the 1894 Act shall be entitled to

compensation in accordance with the provisions of the 2013 Act. The

proviso does not use the words “compensation has been paid”. On the

other hand, it uses the words “compensation in respect of a majority of

land holdings has not been deposited in the account of the

beneficiaries”. The Legislature has intentionally used the words

“compensation has not been paid” in Section 24(2) and the words

compensation in respect of a majority of land holdings has not been

deposited in the account of the beneficiaries in the proviso to Section

24(2). The use of different words in the same Section 24 has, therefore, to

be taken into consideration while analyzing the situation covered by the

proviso to Section 24(2) of the 2013 Act.

25

At this stage it would be pertinent to refer to the provisions of

Section 77 of the 2013 Act. It provides that on making an award under

Section 30 of the 2013 Act, the Collector shall tender payment of the

compensation awarded by him to the persons interested entitled thereto

by depositing the amount in their bank accounts unless prevented by

one or more of the contingencies mentioned in sub-section (2). Sub-

section (2) provides that if a person entitled to compensation shall not

consent to receive it, or if there be no person competent to alienate the

land and or if there be any dispute as to the title to receive the

compensation or to the apportionment of it, the Collector shall deposit

the amount of the compensation in the Authority to which a reference

under Section 64 would be submitted. Thus, while Section 24 (2) refers to

payment of compensation in the sense that compensation shall also be

considered to have been paid if deposited in the Court as contemplated

under Section 77(2), the proviso to Section 24 (2) refers to deposit of

compensation in the account of the beneficiaries as contemplated under

Section 77(1) of the 2013 Act.

The proviso to Section 24(2) of the 2013 Act would obviously not

cover a case where the land acquisition proceedings shall be deemed to

have lapsed because then, the tenure holders would not be entitled to any

compensation. The land acquisition proceedings, as contemplated under

Section 24(2) lapse in a case where the award has been made five years or

more prior to 1 January 2014 but the physical possession of the land has

not been taken or the “compensation has not been paid”. Thus, if land

26

acquisition proceedings have not to lapse, the proviso should cover cases

where possession has been taken, (otherwise the acquisition would lapse),

and compensation has been paid (because if it has not been paid the

acquisition would also lapse).

It is, therefore, clear that the proviso would cover a case where in

regard to land acquisition proceedings initiated under the 1894 Act an

award has been made under Section 11 of the 1894 Act five years or more

prior to 1 January 2014 and physical possession of the land has been

taken and compensation has also been paid to the tenure holders either

by actual payment or deposit in the Court but compensation in respect of

a majority of land holdings has not been deposited in the account of the

beneficiaries. It is only in such a situation that the Legislature has

provided that all the beneficiaries specified in the notification for

acquisition under Section 4 of the 1894 Act shall be entitled to

compensation in accordance with the provisions of the 2013 Act.

The situation can also be understood by making reference to the

following illustration. Supposing there are 100 holdings that are acquired

under the provisions of the 1894 Act by issuance of a notification under

Section 4(1) and the declaration under Section 6 of the 1894 Act and the

award has been made under Section 11 of the 1894 Act five years or more

prior to 1 January 2014. For the acquisition not to lapse under Section

24(2) of the 2013 Act, possession of the land must have been taken and

compensation must have been paid to the tenure-holders. Payment of

compensation would include both actual payment by deposit in the

27

account of the beneficiaries as also deposit in a Court where a reference

under Section 18 of the 1894 Act could have been filed. It is possible that

compensation in respect of a majority of land holdings has been deposited

in the account of majority of land holdings or it may not have been

deposited. In case the compensation has not been deposited in the account

of more than 50 land holdings, then in that situation alone compensation

for the acquisition of land would be determined in regard to all the

holdings under the provisions of the 2013 Act. This in fact is an

additional benefit provided to a tenure holder in cases where the land

acquisition proceedings have not lapsed even if the award has been made

more than five years prior to 1 January 2014.

The submission of learned counsel for the petitioners that the

proviso would only cover cases where the award under Section 11 of the

1894 Act has been made within five years from 1 January 2014 can also

be tested by taking a hypothetical case where the award is made on 31

December 2013. It would not be possible to deposit the compensation in

the account of a majority of land holdings in one day. Thus,

compensation in accordance with the provisions of the 2013 Act would

then have to be disbursed to all the beneficiaries specified in the

notification for acquisition under Section 4 of the 1894 Act. This is

certainly not the intention of the Legislature because if it was such, a

provision could have been specifically inserted at the relevant place.

Thus, from the use of the grammatical punctuation 'Colon' coupled

with the meaning assigned to a proviso, the proviso to Section 24(2) of

28

the 2013 Act has to be read in the context of the main enactment and

cannot be read in isolation dehors the provisions of Section 24(2) of the

2013 Act. The “award” referred to in the proviso to Section 24(2) of the

2013 would necessarily refer to an award made five years or more prior to

1 January 2014 as is contemplated under Section 24(2) of the 2013 Act.

There is, therefore, no difficulty in holding that the proviso to Section

24(2) has to, where land acquisition proceedings have been initiated

under the provisions of the 1894 Act, cover only those awards which

have been made five years or more prior to 1 January 2014. The proviso

does not deal with awards made within five years prior to 1 January 2014.

What, therefore, follows from a harmonious construction of the

provision of sub-sections (1) and (2) of Section 24 of the 2013 Act and

the proviso contained to sub-section (2) of Section 24 of the 2013 Act is

as follows;

(1). Under Section 24(1) of the 2013 Act, there can be two

situations when acquisition proceedings have been initiated under the

provisions of the 1894 Act. The first is when an award has not been made

upto 1 January 2014 and the second is when an award has been made. In

case the award has not been made, then all the provisions of the 2013 Act

relating to determination of compensation shall apply but if an award has

been made then the proceedings shall continue under the provisions of the

1894 Act as if the said Act has not been repealed;

(2). Section 24(2) provides that where an award under Section 11

has been made five years or more prior to 1 January 2014 in case of land

29

acquisition proceedings initiated under the provisions of the 1894 Act,

but the physical possession of the land has not been taken or the

compensation has not been paid, the said proceedings shall be deemed to

have lapsed. However, compensation shall be considered as paid to the

tenure holder even if it is deposited in a Court where a Reference can be

filed under Section 18 of the 1894 Act.

(3) However, where an award under Section 11 of the 1894 Act

has been made five years or more prior to 1 January 2014 in case land

acquisition proceedings had been initiated under the 1894 Act and the

physical possession of the land was taken and compensation was paid in

the sense that it was either deposited in the account of the tenure holder or

deposited in the Court but compensation in respect of a majority of land

holdings was not deposited in the account of the beneficiaries, then all the

beneficiaries specified in the notification for acquisition under Section 4

of the 1894 Act shall be entitled to receive compensation in accordance

with the provisions of the 2013 Act.

(4).The benefit of the proviso to Section 24(1) of the 2013

would not be available to a tenure holder if the award is made within five

years prior to 1 January 2014.

The view taken by us finds support from a Division Bench

judgment of the Kerala High Court in Writ Appeal No.2041 of 2015

22

.

The Division Bench presided over by Hon'ble the Chief Justice Ashok

Bhushan (as His Lordship then was), repelled the contention of the

appellant that the proviso to Section 24(2) of the 2013 Act would be

22M.M. Jeevan & Anr. Vs. State of Kerala & Ors., decided on 14 October 2015

30

applicable in regard to those awards which were made within five years

prior to 1 January 2014. It held that if this was the intention of the

Legislature, it could have inserted the proviso to Section 24(1) and not to

Section 24(2). The Division Bench observed that the proviso has to be

interpreted in a manner so as to embrace the field covered by the main

provision. The observations are:-

“12. What is the object and intend of the

proviso appended to Section 24(2) is the core

question to be answered. Whether the proviso is

applicable even in cases where although award was

made prior to the enforcement of the 2013 Act it was

not made prior to five years or more of the

commencement of the 2013 Act as required by

Section 24(2). As noted above under Section 24(1)(b)

it is provided that where an award under Section 11 of

the 1894 Act has been made, then such proceedings

shall be continued under the provisions of the 1894

Act as the said Act has not been repealed. In event

the Legislature wanted to extend the benefit of the

proviso to all cases where award has been made

prior to enforcement of the 2013 Act, proviso could

have been very well appended to Section 24(1).

What is the object of appending the proviso to Section

24(2) is to be found out. In a case where award has

been made five years or more prior to the

commencement of the 2013 Act and physical

possession of the land has not been taken or

compensation has not been paid, the acquisition

proceedings are deemed to be lapsed. In the present

case it is not disputed that petitioners were not paid

compensation prior to enforcement of the 2013 Act

and physical possession was also taken subsequent to

the enforcement of the 2013 Act but the conditions

enumerated in Section 24(2) that award has to be

made five years or more before the enforcement of the

2013 Act is not satisfied. Thus the present case does

not fall in the condition precedent prescribed in

Section 24(2) for lapsing the proceedings.

13. A plain reading of the proviso indicate that

the proviso contemplates that when award has been

made compensation in respect of majority of land

holdings was not deposited in the account of the

31

beneficiaries then all beneficiaries under Section 4(1)

notification shall be entitled to compensation in

accordance with the provisions of the 2013 Act. The

proviso contemplates a situation in which although

award has been made, but in majority of the cases

compensation has not been deposited, then all

beneficiaries are to be given the benefit of the 2013

Act including those with regard to whom

compensation has not been deposited and those

who have received the compensation covered by

the same notification. Thus in the normal

circumstance when compensation has not been

deposited in respect of majority of land holdings, the

acquisition is deemed to be lapsed as per Section 24(2)

but proviso provides that even in those cases

compensation is to be paid in accordance with the

2013 Act, an exception has been carved out in the

proviso where the acquisition is not to be lapsed.

…..................

17. A proviso thus appended to a provision

has to be interpreted in the manner so as to

embrace the field which is covered by the main

proviso. The proviso is only an exception to the main

provision to which it has been enacted and no other. A

proviso deals with the situation which takes something

out of the main enactment to provide a particular

course of action which course of action could not have

been adopted in the absence of the proviso.

18. Proviso appended to Section 24(2)

indicates that it carves out an exception for a

situation where the land acquisition proceedings

shall not be deemed to lapse. Thus for applicability

of the proviso a case has to be covered by Section

24(2), i.e., (i) award has been made five years or more

prior to the enforcement of the 2013 Act and (2) either

physical possession of the land has not been taken or

compensation has not been paid.

19. Proviso contemplates a situation where

majority of the land holders were not paid

compensation nor compensation is deposited in their

accounts meaning thereby that for majority of land

holders acquisition has to lapse but for the proviso.

The proviso in fact extend the benefit even to those

land holders who have received compensation as per

the 1894 Act. Thus all the land holders are to receive

benefit of higher and liberal compensation under

Section 2013 Act. This situation is one where land

acquisition proceedings shall not lapse and are saved.”

32

(emphasis supplied)

In Writ Appeal No.175 of 2015

23

the Gauhati High Court also

took the same view and the observations are:-

“6. The next question to be considered is

whether compensations can be paid to the

appellants in terms of the proviso to Section 24(2)

of the Act of 2013. The submission of Mr. A.M.

Bbuzarbaruah, the learned senior counsel for the

respondents is that inasmuch as the compensation

amounts were not disbursed to the respondents even

after the commencement of the Act of 2013, all the

landowners are entitled to compensations in

accordance with the proviso to Section 24(2) of the

Act of 2013. In my opinion, the learned Senior

Counsel appears to have overlooked the fact that a

proviso cannot be read in isolation, and must be

read in the context of the main enactment. Before

proceeding further, let us first ascertain the meaning

of the term “proviso”. The text of the proviso to

Section 24(2) of the Act of 2013 has already been

extracted earlier. The language of a proviso, even if

general, is normally to be construed in relation to the

subject-matter covered by the Section to which the

proviso is appended. In other words, normally, a

proviso does not travel beyond the provision to which

it is a proviso.

7. In my opinion, the proviso in question will

come into play once it is established that an award

has been made under Section 11 of the Act five

years or more before the commencement of the Act

and possession of the lands of the landowners was

taken but compensation was not paid to majority

of such landowners. In other words, this is a case

where the acquisition proceedings of the land cannot

be deemed to have lapsed under Section 24(2) of the

Act of 2013 but Section 24(1)(b) will apply. As

already noticed, once the criteria for deemed lapsed of

the land acquisition proceedings under Section 24(2)

of the Act of 2013 are fulfilled, then the question of

payment of compensation in terms of the award

already made under Section 11 of the old Act will not

and cannot arise since the land acquisition proceeding

itself will have died a natural death. In such

eventualities, the legislature has left it to the discretion

23 M/s Athena Demwe Power Limited, Vs. Sh. Laideo Tayan and Ors,., decided on 5 January 2016

33

of the State Government whether or not to initiate a

fresh proceeding for acquisition of the same land in

accordance with the Act of 2013. However, as

already noticed, there could be a situation where

the land acquisition proceedings cannot be deemed

to have lapsed under Section 24(2) since the

conditions for the deemed lapsed thereunder are

not satisfied such as when possession of land has

already been taken but compensation has not been

paid even after making of the award five years or

more prior to the commencement of the Act of

2013. In the meantime, the market value of the lands

of such landowners could have increased by leaps and

bounds but, to the misfortune of these landowners, an

award was already made under the old Act on the

basis of the market value obtaining on the date of the

notification under Section 4 of the old Act i.e. five

years or more before the commencement of the Act of

2013. This is most likely to cause heavy loses to the

landowners without their fault. In my judgment, it is

for these landowners that the proviso has been inserted

by the legislature to give protection to such

landowners. Thus, where an award has been made

five years or more prior to the coming into force of

the Act of 2013 but the lands of the landowners

were already taken possession of, but

compensations for majority of the land holdings

have not been deposited in the account of these

landowners, such landowners shall be entitled to

compensation in accordance with the provisions of

the Act of 2013. However, the landowners such as

the private respondents herein, for whom an award

was made within five years of the coming into force of

the Act of 2013, cannot obviously take advantage of

the proviso to Section 24(2) of the Act of 2013 as

there was no delay in making the award for them; to

hold otherwise will amount to conferring upon them

unjust enrichment at the expense of the appellants.

Consequently, neither Section 24(2) nor the proviso to

Section 24(2) of the Act of 2013 can be held

applicable to the facts of these appeals. Thus, to sum

up, the proviso will operate in a field not covered

by Section 24(2) and will operate only when an

award has been made under Section 11 of the old

Act and possession of the land was taken but

majority of the landowners are not paid their

compensations five years or more before the

coming into force of the Act of 2013. Consequently,

34

in the instant case, the land acquisition proceedings

shall be allowed to continue, and compensations to the

appellant paid in accordance with the award made

under the provisions of the Land Acquisition Act,

1894 as if this Act has not been repealed.”

(emphasis supplied)

The Division Benches of both the Kerala High Court and the

Gauhati High Court have taken a view that the proviso to Section 24(2) of

the 2013 Act would cover only such awards that have been made under

Section 11 of the 1894 Act five years or more prior to 1 January 2014.

Reliance has, however, been placed by learned counsel for the

petitioners on a Full Bench decision of the Bombay High Court in

Dayaram Bhondu Koche. The Full Bench considered a case where an

award under Section 11 of the 1894 Act was made within a period of five

years prior to 1 January 2014 as the award was made under Section 11 of

the 1894 Act on 17-11-2010. The benefit of the proviso to Section 24(2)

of the 2013 Act was held to be available where the award was made

within five years prior to 1 January 2014 by reading the proviso as an

exception to Section 24(1)(b) of the 2013 Act. The observations are:-

10. The proviso below sub-section (2) deals

with the subject of applicability of the provisions of

the 2013 Act relating to the determination of

compensation covered by clause (b) of sub-section (1)

of Section 24 therein, subject to the satisfaction of

condition that the compensation in respect of a

majority of land holdings has not been deposited in

the account of the beneficiaries. In our view, the

proviso has to be read as an exception to the

provision of clause (b) in sub-section (1) of Section

24 of the 2013 Act so as to advance the intention of

the Legislature to strike the balance of conflicting

interest between the land holders and the State,

and to award a fair compensation.”

(emphasis supplied)

35

A Division Bench of the Bombay High Court in Writ Petition No.

1923 of 2014

24

with which another Division Bench of the Bombay High

Court had not agreed as a result of which the matter had been referred to

the Full Bench in Dayaram Bhondu Koche, however, observed that the

provisions of Section 24(2) of the 2013 Act would apply only to awards

made five years or more prior to 1 January 2014 and the observations are

as follows:

“On hearing the learned counsel for the parties

and on a perusal of the provisions of the Act of 2013,

it appears that the petitioners would not be entitled to

compensation under the Act of 2013. On a reading of

the provisions of Section 24 of the Act of 2013, it

appears that the provisions of Section 24(2), to

which the proviso is appended, would apply only to

the Awards that are made five years or more, prior

to the commencement of the Act of 2013. The award

was not made five years or more, prior to the

commencement of the Act of 2013. The Award was

made on 09.07.2009 and the Act of 2013 came into

force on 01.01.2014. The Award was not made five

years or more, prior to the commencement of the Act

on 01.01.2014. Since, the proviso appears to have

been appended to sub-section (2) of Section 24 of the

Act of 2013, the petitioners would not be entitled to

seek compensation under the provisions of the new

Act. The object of the proviso is to provide to the

beneficiaries, who have already received the

compensation under the Act of 1894, higher

compensation under the Act of 2013, if the

compensation in respect of the majority of land

holdings has not been deposited in the account of the

beneficiaries. The proviso would come into play

only if the Award is made five years or more, prior

to the commencement of the Act of 2013. For

example, if an Award is made just a day before the

commencement of the Act of 2013 or a fortnight

before its commencement, there is no occasion for

the State Government to deposit the amount of

compensation in the accounts of the beneficiaries as

certain procedure under the Act of 1894 like issuance

24Shrikant Shankarrao Daulatkar & Ors., Vs. State of Maharashtra & Ors., decided on 22 June 2015

36

of notice to the claimants to receive the compensation

and securing necessary documents in respect of their

identification, would be required to be undergone.

Under Section 31 of the Land Acquisition Act, 1894,

after making the Award under Section 11, the

Collector is required to tender payment of the awarded

compensation to the persons entitled to receive it and

if they do not consent to receive it, the Collector is

required to deposit the compensation in the Court.

Also, it is clear from the provisions of Section 24(1)

(b) that where the Award is made under Section 11 of

the Land Acquisition Act, 1894, then such

proceedings shall continue under the provisions of the

Land Acquisition Act, 1894 as if the Act was not

repealed. The provisions of sub-section (2) of Section

24 carve out an exception to the provisions of Section

24(1)(b) of the Act of 2013 and create a class of

acquisitions in respect of the Awards, which have

been made five years or more, prior to the

commencement of the Act of 2013 under the Land

Acquisition Act, 1894, but where the physical

possession of the land is not taken or the

compensation has not been paid, for the purpose of

lapsing. The proviso, being applicable to the

provisions of sub-section (2) of Section 24, the

condition precedent for seeking compensation

under the Act of 2013 would be the making of the

award five years or more prior to the

commencement of the Act of 2013. In the instant

case, the Award is not made five years or more, prior

to the commencement of the Act of 2013. The

petitioners would, therefore, not be entitled to the

compensation under the Act of 2013. Though, the

petitioners are not entitled to compensation under the

Act of 2013, since the petitioners have not received

the compensation determined under the Act of 1894

till date, it would be necessary to direct the

respondents to pay the same to the petitioners along

with the other benefits flowing from the provisions of

the Act of 18894, within a time frame.”

(emphasis supplied)

Reliance has also been placed by learned counsel for the petitioners

on a Division Bench judgment of the Delhi High Court in Tarun Pal

37

Singh & Anr. The Division Bench took the same view as was taken by

the Full Bench of the Bombay High Court and the observations are:-

“7. It is, therefore, clear that in those cases

where the Awards have been made more than five

years prior to the commencement of the Act, section

24(2) would have applicability, subject to the other

conditions being fulfilled. But, in cases where the

Awards have been made within five years of the

commencement of the 2013 Act, section 24(2) would

not apply. It is also clear that once the conditions of

section 24(2) are met, the acquisition itself lapses and

therefore, no occasion would arise for invoking the

first proviso which is set out after section 24(2). This

is so because the first proviso entails a situation where

the acquisition is saved but the compensation is

awarded under the 2013 Act. The proviso cannot

blow life into the acquisition which has lapsed

under the main provision of sub-section (2) of

Section 24 of the 2013 Act. It is for this reason that

we think that the first proviso which has been

placed after section 24(2) is not really a proviso to

section 24(2) but, a proviso to Section 24(1)(b). The

said first proviso and Section 24(1)(b) can easily be

read together. Section 24(1)(b) in effect relates to

all cases where awards have been under the 1894

Act except those which are covered under Section

24(2). Clearly, awards made less than five years

prior to the commencement of the 2013 Act would

fall under Section 24(1)(b). As such, the general rule

in such cases is that the provisions of the 1894 Act

would continue to be applicable, as if the 1894 Act

had not been repealed. However, the said first proviso

carved out an exception to this general rule by

providing that in cases where compensation in respect

of a majority of land holdings has not been deposited

in the account of the beneficiaries, then, all

beneficiaries specified in the notification for

acquisition under Section 4 of the 1894 Act shall be

entitled to compensation in accordance with the

provisions of the 2013 Act. This is a provision for the

benefit of landowners inasmuch as even in cases of

completed acquisitions, if the conditions stipulated

under the said first proviso stand satisfied, the

compensation would have to be provided under the

more beneficial provisions of the 2013 Act.

38

8. Thus, while the said first proviso can

harmoniously exist when read as a proviso to

Section 24(1)(b), it cannot so exist when sought to

be read as a proviso to Section 24(2) of the 2013

Act.”

(emphasis supplied)

For all the reasons stated above, it is not possible to accept the view

taken by the Full Bench of the Bombay High Court in Dayaram Bhondu

Koche or the Division Bench of the Delhi High Court in Tarun Pal

Singh. The proviso to Section 24(2) of the 2013 Act cannot be read as an

exception to Section 24(1)(b) of the 2013 Act. In fact, the award under

Section 11 of the 1894 Act should have been made five years or more

prior to 1 January 2014. In the present case, the award was made within

five years prior to 1 January 2014. The petitioners would not be entitled

to the benefit of the proviso to Section 24(2) of the 2013 Act.

There is, therefore, no merit in the second contention advanced by

learned counsel for the petitioners.

Thus, for all the reasons stated above, the writ petition deserves to

be dismissed and is, accordingly, dismissed.

Date :-6 November 2017

NSC

(Dilip Gupta, J.)

(Dinesh Kumar Singh-I, J.)