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2017 DIGILAW 3635 (MAD)

C. Ravi Subramanyam v. State of Tamil Nadu

2017-11-08

M.SATHYANARAYANAN, N.SESHASAYEE

body2017
JUDGMENT : N. Seshasayee, J. 1. These triple appeals are preferred against the orders of the Single Judge in three writ petitions, filed separately by the appellants herein, all of who are brothers, for issuing a writ of certiorarified mandamus for quashing the acquisition proceedings in respect of the lands of the appellants as being contrary to the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, (henceforth Right to Fair Compensation Act for the sake brevity and convenience) and to further direct the respondents to pay compensation to them in terms of the said Act. This was negatived by the learned Single Judge. This order is in challenge in these appeals. 2. The minimum facts necessary for the current purpose may be succinctly stated: The appellants herein are brothers and possessed lands in different survey fields in Block 7 of the Minjur village. The details thereof are tabulated: Writ Appeal No. Name of the appellant Land Acquired (Minjur Village, Pooneri Taluk) Block No. Survey No. Extent 1738 of 2015 C.Ravi Subramaniam 6 156/1B & 156/2B 0.72.0 hectares 1739 of 2015 C.Venkateswara Rao .6 & 7 147/3,153/6B,153/7B, 153/8, 155/4B and 155/5B 0.69.0 hectares 1740 of 2015 C.Ramakrishna 7 153/3F2 0.00.5 hectares 3.1 While so, for the formation of Outer Ring Road, vast stretches of lands were sought to be acquired by the State under its powers of eminent domain and in accordance with the Land Acquisition Act, 1894. On 04-07-2012, a draft notification under Sec.4(1)(A) of the Land Acquisition Act about the proposed acquisition was published as per G.O.Ms 148, Housing and Urban Development Department, dated 04.7.2012, followed by necessary public notice through newspapers. This was followed by preliminary enquiry conducted by the second respondent under Sec.5A of the Act. The final declaration of the intended acquisition under Sec.6 was made dated 07-07-2013. Thereafter, proceedings for passing the award under Sec.11 of the Act commenced. 3.2 On 06-01-2014, each of the appellants received separate communication from the second respondent where under the appellants were informed of the passing of the award. In the meantime the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, came into force from 01-01-2014. 3.2 On 06-01-2014, each of the appellants received separate communication from the second respondent where under the appellants were informed of the passing of the award. In the meantime the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, came into force from 01-01-2014. In their respective affidavits filed in aid of the writ petitions the appellants suspected that the awards have been passed ante-dated post the advent of the Right Fair Compensation Act, and consequently not valid, and awards should be passed in terms of Sec.24(1) of the subsequent Act, implying thereby, in terms of the new Act. 4. In the counter filed by the second and third respondent, it is essentially alleged that the awards have been passed on 30-12-2013 and that it was communicated to the appellants Vide notices dated 06-01-2014. 5. The controversy raised seeks an answer to the question, if Sec.24(1) of the Right to Fair Compensation Act would apply to the cases at hand. The dispute as to when the awards were passed raised two questions: (a) If the awards were passed ante-dated after coming into effect of Right to Fair Compensation Act; and (b) Whether compensation ought to be paid under the said Act. 6. In the course of the hearing, files were made available by the respondent, and the learned counsel for the appellants conveyed to the Court that the plea of the appellants suspecting that the awards might have been passed after the date of commencement of the Right to Fair Compensation Act may not be available to them. Therefore, the learned counsel shifted the plane of his arguments to the Proviso to Sec.24 of the Act. What is now left to be considered is if compensation should be awarded to the lands acquired in terms of the Right to Fair Compensation Act? 7. To reiterate, the awards have been passed on 30-12-2013, the day penultimate to the day on which the Right to Fair Compensation Act came into force. What is now left to be considered is if compensation should be awarded to the lands acquired in terms of the Right to Fair Compensation Act? 7. To reiterate, the awards have been passed on 30-12-2013, the day penultimate to the day on which the Right to Fair Compensation Act came into force. Sec.24 of the Right to Fair Compensation Act reads: “(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,— (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or (b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions has not been repealed. (2) Notwithstanding contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 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. 8.1 The legislative intent conveyed by the Parliament in the Right to Fair Compensation Act does not appear to make the awards passed or proceedings initiated under its earlier, if not its ancient avatar of Land Acquisition Act, 1894, entirely irrelevant. It chose to insert Sec.24 in the Right to Fair Compensation Act as a transitional provision – a bridge between the old and the new. Through this provision the Parliament has made known its intent to provide continuity to certain acts done under the old Act and a differential approach to certain other acts. It chose to insert Sec.24 in the Right to Fair Compensation Act as a transitional provision – a bridge between the old and the new. Through this provision the Parliament has made known its intent to provide continuity to certain acts done under the old Act and a differential approach to certain other acts. How it attempts to do this can be stated: The basic theme is, in all cases where awards are passed under the Land Acquisition Act, 1894, they will be governed by it. [Sec.24(1)(b)]. Then it identifies two situations where awards may have to be worked or reworked as the case may be under it. They are: (a) Where the acquisition proceedings have been initiated under the earlier Act but awards have not been passed under the old Act [Sec.24(1)(a)]. Here, Parliament preserves all acts done up to the point of passing of the award in under the old Act; (b) Where awards have been passed under the old Act but compensation amount has not been deposited into the account of the substantial number of beneficiaries. [Proviso to Sec.24]. Here, as in (a) acts done up to the point of passing of the award is not undone, but the effect of the award passed is undone if a contingency namely, non-depositing of the amount awarded to substantial number of beneficiaries, is present. 8.2 The situations indicated in (a) and (b) are the only two lifelines provided by the Parliament to enable switchover from the old enactment to the new enactment - instances where there is an actual transition of the land acquisition proceedings commenced under the old to the new. Parliament then provides its version of doctrine of lapse, not however of the Dalhousien variety, but the opposite of it: To give back the land acquired back to the land holders. Its application however is circumscribed by certain features: * First, the awards under the earlier Act should have been passed more than five years next before the coming into force of the Right to Fair Compensation Act. This implies the award should have been passed prior to 01-01-2009. * Second, that during these five years since the passing of the award, the State should not have taken possession, or paid compensation to those in whose favour awards have been passed. This implies the award should have been passed prior to 01-01-2009. * Second, that during these five years since the passing of the award, the State should not have taken possession, or paid compensation to those in whose favour awards have been passed. Once the awards get lapsed, or deemed to have to been lapsed, to be more statutorily correct, the same will have the effect of restoring status quo ante prior to the commencement of the acquisition proceedings. 9. The object or the purpose behind Sec.24(2) and the Proviso cannot be ignored. One situation is triggered by the land acquiring authority hibernating without even taking possession of the land acquired, tainting in the process the bonafide behind the acquisition with suspicion; and the other is, where the same authority has driven those who are interested in the lands acquired to despair, with no land, no money, no rehabilitation, and thereby depriving them of their right to dignified life guaranteed under Article 21 of the Constitution. 10. Is it now possible to place Sec.24(2) and the Proviso, both of which operate in diversified situations and produce different consequences as forming a single group? In D. Mahesh Kumar Vs State of Telengana, Department of Revenue and Others [2017(1)ALT400 : MANU/AP/0587/2016], a Division Bench of the Andhra Pradesh High Court has held that Proviso in Sec.24 must be read as one to Sec.24(1) and not as one provided to sub-section (2). According to it both Sec.24(2) and the Proviso are exceptions to Sec.24(1)(b). There is logical force in it. To this, this Court may add that under Sec.24(2) the entire award passed under the earlier Act lapses by a legal fiction. There cannot be any Proviso or exception to keep alive an award once the award itself gets lapsed. Secondly, the key expression behind the operation of Sec.24(2) is the non-deposit of the amount awarded for five years. In other words, time is the determining factor under Sec.24(2). The application of the Proviso however, is not linked to any time factor, but to the non-deposit of compensation amount to substantial number of beneficiaries. It's not Time here, but the substantial number of persons. The gyrating criteria both under Sec.24(2) and the Proviso placed below it are different, though both could be fitted within a common denominator, namely, administrative inaction. It's not Time here, but the substantial number of persons. The gyrating criteria both under Sec.24(2) and the Proviso placed below it are different, though both could be fitted within a common denominator, namely, administrative inaction. The advantage of reading the Proviso as one to Sec.24(1) and not as one to Sec.24(2) is that it is consistent with the core philosophy of the Parliament to saves what was done under the earlier Act, and the Proviso carves out a specific instance thereof for differential treatment for sustaining the continuity during transition from one enactment to another. 11.1 With this understanding in the backdrop, the rival submissions are now required to be stated. 11.2 To restate the basic fact, the awards involved in this batch of cases were passed on 30-12-2013. The appellants claim that they should have been awarded in terms of the law now in force. With a solitary day separating the fortunes of the appellants, with just anxiety to keep alive their opportunities to obtain compensation under the Right to Fair Compensation Act, Shri. Rahul Balaji, the learned counsel for the appellants came up with a solitary point in his support: Even though the award has been passed on 30-12-2013, still the fact remained that the compensation amount so awarded has not been deposited in Court in terms of Proviso to Sec.24 to substantial number of beneficiaries. In Pune Municipal Corporation Vs Harakchandity Misirimal Solanki [2014(1) MLJ 874] the Supreme Court has declared that any deposit not made in Court or put in the pockets of the beneficiaries is not valid deposit vis-a-vis the application of Sec.24 of the Act. In other words deposit of award amount in revenue deposit is no answer to resist the operation of the Proviso. In Sree Balaji Nagar Residential Association Vs State of Tamil Nadu [ (2015) 3 SCC 353 ] the Supreme Court guides the Courts to an understanding that the Proviso to Sec. 24 is for the benefit of all the landholders in cases where the award is subsisting and fall outside the purview of Sec.24(2). To fortify his arguments more the learned counsel placed reliance also on D. Mahesh Kumar Vs State of Telengana, Department of Revenue and Others [2017(1)ALT400 : MANU/AP/0587/2016], Tarun Pal Singh & Another Vs Lt. Governor, Govt. of NCT of Delhi & Others [2015 SCC OnLine Del 9789]. To fortify his arguments more the learned counsel placed reliance also on D. Mahesh Kumar Vs State of Telengana, Department of Revenue and Others [2017(1)ALT400 : MANU/AP/0587/2016], Tarun Pal Singh & Another Vs Lt. Governor, Govt. of NCT of Delhi & Others [2015 SCC OnLine Del 9789]. 11.3 In response, the learned Additional Advocate General would submit that if the case of appellants is premised on the fact that awards have been passed on 30-12-2013, then it repels the very idea of drawing in the role of Proviso to Sec.24. And, for the proviso to apply, it must be established on facts that the sum determined in the award had not been deposited in the account of the substantial number of beneficiaries. Notwithstanding that, there was all but one day left for the Collector to perform the impossible, argued the counsel. He then proceeded to state that two out of the seven beneficiaries have since received the amount awarded to them, and for others amounts have been deposited in CCD account. 11.4 Distinguishing the insistence for depositing the amount awarded in the Court and not in the revenue deposit as has been declared in Pune Municipal Corporation case, the learned AAG submitted that in a subsequent decision of the Supreme Court in Delhi Development Authority Vs Sukhbir Singh & Others [ 2016(8) Scale 655 : 2016 SCC OnLine SC 929] it is held that deposit in terms of the rules governing it is valid. The learned AAG also took this Court through relevant Rules under the Land Acquisition Manual which permit the acquiring authority to deposit the sum awarded in revenue deposit. 12. A plain and a literal reading of Proviso to Sec.24 seemingly overlap with the operation of Land Acquisition Act, 1894 to a limited extent, and appear to hinder the theme of continuity that Parliament in its wisdom has envisaged in Sec.24(1). To repeat, unlike in Sec. 24(2) where five years time is mentioned for its operation, the Proviso is not limited by time, but by substantial number of men. The entire argument of the appellants is pivoted on this: According to them if on the opening day of the coming into force of the Right to Fair Compensation Act none of the beneficiaries of the award passed under the earlier Act have been paid, then the Proviso to Sec.24 would come to play. The entire argument of the appellants is pivoted on this: According to them if on the opening day of the coming into force of the Right to Fair Compensation Act none of the beneficiaries of the award passed under the earlier Act have been paid, then the Proviso to Sec.24 would come to play. It then raises a point if this situation was in the contemplation of the Parliament, and if it has intended to achieve that which the appellants now canvass? 13.1 As has been indicated earlier Sec.24 is a transitional provision. And, dealing with the interpretation of a transitional provision, the Supreme Court in Union of India & others Vs Filip Tiago De Gama Of Vedem Vasco [ AIR 1990 SC 981 ] explains it: “The purpose of incorporating Transitional provision in any Act or amendment is to clarify as to when and how the operative parts of the enactments are to take effect. The transitional Provisions generally are intended to take care of the events during the period of transition. Mr. Francis Bennion in his book on Statutory Interpretation (14th Edition, p 442) outlines the purpose of such provisions: “Transitional Provisions where an Act contains substantive, amending or repealing enactments, it commonly also includes transitional provisions which regulates the coming into operation of those enactments and modify their effect during the period of transition. Where an Act fails to include such provisions expressly, the Court is required to draw such inferences as to the intended transitional arrangements as, in the light of the interpretative criteria, it considers Parliament to have intended.” The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature and purpose. A statute is neither a literary text nor a divine revelation. “Words are certainly not crystals, transparent and unchanged” as Mr. Justice Holmes has wisely and properly warned. (Town Vs Eisher, 245 US. 418,425,1918). That does not mean the text is to be construed merely as a piece of prose, without reference to its nature and purpose. A statute is neither a literary text nor a divine revelation. “Words are certainly not crystals, transparent and unchanged” as Mr. Justice Holmes has wisely and properly warned. (Town Vs Eisher, 245 US. 418,425,1918). Learned Hand J., was equally emphatic when he said 'Statutes should be construed, not as theorems of Euclid, but with imagination of the purpose which lie behind them (Lenigh Valley Coal Co., Vs Yensavage, 218 FR 547 at 553)” 13.2 The bottom line is unambiguous: 'Don't destroy the soul of the statute with literal interpretation of the words it employs; Forget not the purpose of a provision and sacrifice it in the altar of literal interpretation', Courts are told. 14. It now brings into focus that the Right to Fair Compensation Act, nowhere has limited the power of the land-acquisition authority under the earlier Act to pass an award at anytime before its commencement, nor has nullified or invalidated any of the awards passed prior to that. This would imply that till the moment the Right to Fair Compensation Act, 2013, has taken effect, the land acquisition-authority under the earlier enactment had his power to pass awards well preserved. After granting him the power to act thus, will not denying him the time necessary to perform such acts that the statute directs him to perform post passing of the award, lead to unworkable and impractical situations? Is it then possible to plot a point of convergence where the Parliamentary objective behind the Proviso, the power of the land acquisition authority to pass an award under the 1894 Act, which the new Act has not restricted, and the argument of the appellant? 15. The Land Acquisition Act, 1894, though has provided under Sec.31(1) that sum awarded must be paid upon passing of the award, still nowhere has it provided the time within which it must be paid or deposited, even though under Sec.34 it has spelt out the consequences that may visit if the award amount is not deposited within one year from the date of taking possession of the land acquired. The procedure that is contemplated upon passing of the award under the earlier Act is: (a) To issue notice of passing of the award to those beneficiaries if they are not present at the time of passing of the award [Sec.12(2)]. This is held to be essentially a ministerial act in State of Punjab & another Vs Satinder Bir Singh [ (1995) 3 SCC 330 ] ; (b) If the amounts are not accepted, to deposit the same in the Court [Sec.31(2)]. Given the fact that no time has been stipulated in the Land Acquisition Act, 1894, for performing act (b), can it be now insisted that the Collector, or, the land acquisition-authority, who passed the award ought to have deposited the award amount on the only day left for him to deposit before the replacement of the 1894 Act? And, that too even prior to communicating to the beneficiaries about the factum of passing of the award under Sec.12(2) of the Act?. To expatiate it further, for the land-acquisition-authority to communicate the passing of the award, then to offer or tender the sum awarded, followed by the beneficiaries exercising their choice to accept or to refuse the said sum in order the circumstances necessary for depositing the amount awarded in the Court is created, and then to deposit the very amount in Court, all but one day was available, viz., 31-12-2013. 16. In Duport Steels Ltd. and others Vs Sirs and others[ (1980) 1 WLR 529 ]: “It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to public interest…..The legitimate questions for a judge in his role as interpreter of the enacted law are, 'How has Parliament, by the words that it has used in the statute to express its intentions, defined the category of acts that are entitled to the immunity? Do the acts done in this particular case fall within that description” Where however, importing ordinary grammatical meaning presents any ambiguity then Courts are required to look into their toolbox of statutory interpretation. Do the acts done in this particular case fall within that description” Where however, importing ordinary grammatical meaning presents any ambiguity then Courts are required to look into their toolbox of statutory interpretation. Here again, one of the fundamental rules is not to opt for interpretation that would lead to absurd or unworkable consequences. Similarly, casus omissus in a statute should not generally be supplied by the Court. But, this is not to imply as denying to itself the power to, what the preeminent Lord Denning had termed as 'ironing the creases', but that has to be employed only to avert an absurd consequence that might result from a literal understanding of the statute, or in a given case to advance the object behind an enactment, but not otherwise. [See Central Bureau of Investigation, Bank Securities & Fraud Cell & Another Versus Ramesh Gelli & Others (2016-2 CTC 672)]. Where a plain reading of the statute presents no impediment in working it in the manner the legislature has designed and structured it, Courts may not engage in an interpretative extravaganza, for it may amount to an invasion on the legislative powers, which would be an anathema to our Constitutional structure. 17.1 In this setting is it appropriate to hold that a solitary day left before the coming into force of the new enactment as reasonable enough time for the purposes now under discussion? Where time is not provided in a statute for performing an act, then reasonable time must be read into the statute for doing it, a case of supplying casus omissus. See: State of Punjab & Others Versus Bhatinda District Coop. Milk P. Union Ltd., [ (2007)11 SCC 363 ]. Accordingly, if the Land Acquisition Act, 1894, has to work, then reasonable time for depositing the compensation amount must be read into it. It does not matter when the award was passed, whether five years next before the coming into force of the Right to Fair Compensation Act, or a day prior to such commencement. Accordingly, if the Land Acquisition Act, 1894, has to work, then reasonable time for depositing the compensation amount must be read into it. It does not matter when the award was passed, whether five years next before the coming into force of the Right to Fair Compensation Act, or a day prior to such commencement. 17.2 While the Parliament has specifically provided for awards passed beyond five years for special treatment with specific consequence if conditions stated in Sec.24(2) are present, it is silent on how to deal with the award passed on the day before the commencement of the new Act, even though from the stand point of the land acquisition-authority, the obligations or rather the statutory duty that he is required to perform pursuant to the passing of the award under both circumstances remain the same. 17.3 Now, merely because a new enactment has arrived, it does not mean that the earlier one has to be shelved in the archives. Even the Parliament has not intended it. To restate and to re-emphasis the point again, in Sec.24(1)(b) it expresses its anxiety to preserve the award passed under the earlier Act. What it has provided as lifelines in Sec.24(1)(a), 24(2) and the Proviso are but deviations from this stated position to address specific situations which the Parliament itself has declared. Now if the Proviso to Sec.24 is literally understood, it may lead to denial of reasonable time to the land acquisition authority to discharge his obligation pursuant to the awards passed on the last few days next before the commencement of the New Act, to which that authority is entitled to under the old Act. This may mean, that a plain and literal reading of Proviso to Sec.24 de hors its contextual setting hinders the operation of the awards passed under the Old Act, and interfere with the theme of continuity that Parliament aspires. What will be the immediate consequence? It may lead to a consequence where the awards validly made under the earlier Act till the moment immediately prior to the commencement of the Right to Fair Compensation Act inviting the same effect as a lapsed award under Sec.24(2). This is a third situation where an enforced lapse, and not a deemed lapse, of a valid award takes place, a situation not covered by Sec.24(2). This is a third situation where an enforced lapse, and not a deemed lapse, of a valid award takes place, a situation not covered by Sec.24(2). By no stretch of understanding it can be said that Parliament has intended this consequence. 18. While it is true that Courts have a duty to read the entire statute harmoniously with the consciousness of the operational space that legislature has granted to advance its intent and objective, in the case of a transitional provision, Courts are not just to focus on achieving internal harmony within it, but also to interpret it in a manner that harmony is sustained during the transition from one enactment to the other, that it is smoother and consistent with the manner that the Parliament intended. Sec.24, as a transitional provision is therefore has to be understood in a manner that accomplishes this harmony. This is possible only if the operation of the Proviso is understood as referring to awards that have been passed well within five years period (otherwise it would be an invitation to sub sec.2 of Sec.24) still sufficiently before the commencement of the Right to Fair Compensation Act. It would apply only to those situations where the land acquisition authorities under the old Act were left with reasonable time for performing their obligations under Sec.31 read with Sec.12 of the old Act, yet did not pay compensation to substantial number of beneficiaries before the commencement of New Act. There therefore, is a compulsion to read down the Proviso to Sec.24 of the Right to Fair Compensation Act contextually. Necessarily it cannot apply to cases such as the present one where no reasonable time is available for the respondent to discharge all the post award obligations. 19.1 To conclude this point, the answer to the question if the situation at hand fits in with the object or purpose which Sec.24 of the Right to Fair Compensation Act reflects, is a firm No. 19.2. It should not however, be construed that this Court is not acknowledging the beneficial character of Sec.24. On the contrary, it is conscious that the benefits it confers are intended only for those who fall in the situations stated in it and not outside it. 20. This Court could sense the disappointment of the appellants in losing their benefits under the Right to Fair Compensation Act by a mere 24 hours. On the contrary, it is conscious that the benefits it confers are intended only for those who fall in the situations stated in it and not outside it. 20. This Court could sense the disappointment of the appellants in losing their benefits under the Right to Fair Compensation Act by a mere 24 hours. It may a good reason for this Court to grant them its sympathy but can never consider it as a valid ground for reading Proviso to Sec.24 of the Right to Fair Compensation Act as accommodating the arguments of their counsel. Craies on Statute Law states: “Where the language is explicit, its consequences are for Parliament, and not for the courts, to consider. In such a case the suffering citizen must appeal for relief to the lawgiver and not to the lawyer.” 21. The decision is to state the obvious: That the appellants are not entitled to the compensation under the Right to Fair Compensation Act, and all the appeals are therefore dismissed and the orders of the learned Single Judge in W.P.Nos.21415, 21416 and 21417 of 2014, dated 12.10.2015 is hereby confirmed, though for the reasons stated herein. No costs. Consequently, connected miscellaneous petitions are closed.