Order dated 12-1-2015 in IA No. 3 of 2014 in Civil Appeal No. 4283 of 2011 and Order dated 13-1-2015 in Civil Appeals Nos. 417-18 of 2015
(Before V. Gopala Gowda and R. Banumathi, JJ.)
1. Leave granted. Heard the learned counsel for the parties. Despite granting sufficient and adequate opportunity to the respondents, they did not choose to file objections with regard to the averments made by the appellant applicants in their applications that they have been in physical and actual possession of the acquired land and compensation was also not paid to them.
2. Since the above averments of the applicants are not controverted despite granting opportunity, the assertions made by the applicants shall have to be accepted as true and correct. Further, the right of the applicants is accrued under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short “the Act”), on the date of filing of the applications as they have asserted that they have been in physical and actual possession of the acquired land and also not paid the compensation by the respondents in respect of their acquired land. Therefore, the contention urged on behalf of the respondents that in view of promulgation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014 on 31-12-2014, by inserting the proviso to sub-section (2) of Section 24 of the Act, the period of stay obtained in the judicial proceedings shall be excluded for computation of five years' period to hold that the acquisition proceedings are lapsed and, therefore, the said provision does not enure to the benefit of the applicants, cannot be legally accepted by us in view of the law laid down by this Court in Garikapati Veeraya v. N. Subbiah Choudhry AIR 1957 SC 540, 1957 SCR 488. Para 23, which is relevant is reproduced hereunder: (AIR p. 559)
“23. From the decisions cited above, the following principles clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.”
3. The aforesaid case (Garikapati case AIR 1957 SC 540, 1957 SCR 488) is further approved by the Constitution Bench of this Court in Shyam Sunder v. Ram Kumar (2001) 8 SCC 24. Paras 24, 26, 27 and 28 of the judgment, which are relevant are reproduced hereunder:
“24. In Garikapati Veeraya v. N. Subbiah Choudhry AIR 1957 SC 540, 1957 SCR 488 this Court observed as thus: (AIR p. 533, para 25)
‘25. … The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.’
26. In Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 this Court laid down the ambit and scope of an amending Act and its retrospective operation as follows:
‘(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly-defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.’
27. In K.S. Paripoornan v. State of Kerala (1994) 5 SCC 593 (SCC at p. 636) this Court while considering the effect of amendment in the Land Acquisition Act in pending proceedings held thus: (SCC para 67)
‘67. In the instant case we are concerned with the application of the provisions of sub-section (1-A) of Section 23 as introduced by the amending Act to acquisition proceedings which were pending on the date of commencement of the amending Act. In relation to pending proceedings, the approach of the courts in England is that the same are unaffected by the changes in the law so far as they relate to the determination of the substantive rights and in the absence of a clear indication of a contrary intention in an amending enactment, the substantive rights of the parties to an action fall to be determined by the law as it existed when the action was commenced and this is so whether the law is changed before the hearing of the case at the first instance or while an appeal is pending. (See Halsbury's Laws of England, 4th Edn., Vol. 44, Para 922.)’
28. From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation, such legislation does not affect the substantive rights of the parties on the date of the suit or adjudication of suit unless such a legislation is retrospective and a court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the parties in an appeal are determined under the law in force on the date of suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned, they remain unaffected by the amendment in the enactment. We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act, such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending Act which affects the procedure is presumed to be retrospective, unless the amending Act provides otherwise.”
4. The right conferred upon the landholders/owners of the acquired land under Section 24(2) of the Act is the statutory right and, therefore, the said right cannot be taken away by an Ordinance by inserting proviso to the abovesaid sub-section without giving retrospective effect to the same. Taking into consideration the fact that we have allowed similar matters in Magnum Promoters (P) Ltd. v. Union of India (2015) 3 SCC 327 and in other appeals also by following the earlier decisions of this Court with regard to taking physical possession of the acquired land by the Land Acquisition Collector, which are extensively referred to in the above judgment, promulgation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014 was made on 31-12-2014, which is prospective in nature and, therefore, it cannot be applied to their cases.
5. For the foregoing reasons, the interlocutory applications are allowed and consequently, the appeals are also allowed by quashing the acquisition proceedings in relation to the appellant applicants.
Order dated 6-2-2015 in IA No. 3 in Civil Appeal No. 8786 of 2013
(Before Vikramajit Sen and Chockalingam Nagappan, JJ.)
6. In these matters special leave to appeal was granted on 27-9-2013 SLP (C) No. 31755 of 2010. These applications have been filed praying that the appeals be disposed of in view of the various subsequent determinations of this Court. It has been pointed out that in its counter-affidavit, the Union of India has in terms admitted that compensation had not been tendered in consonance with the law. In Para 19 of the counter-affidavit, it has been pleaded that “when the possession of the land could not be taken by virtue of the operation of the interim orders of this Hon'ble Court (2015) 3 SCC 541 (F2) and the Hon'ble Delhi High Court, the question of payment of compensation to the petitioner does not arise”.
7. In the cases in hand, the award is dated 6-8-2007 and is in existence therefore for more than five years. Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short “the new Act”) is clearly applicable. This Court has in a number of decisions including Pune Municipal Corpn. v. Harakchand Misirimal Solanki (2014) 3 SCC 183, Union of India v. Shiv Raj (2014) 6 SCC 564 and Bimla Devi v. State of Haryana (2014) 6 SCC 583 clarified the manner in which the new provision is to be interpreted viz. that the acquisition lapses.
8. As regards the Ordinance which has been promulgated with effect from 31-12-2014, decisions have been rendered, namely, Radiance Fincap (P) Ltd. v. Union of India and in Arvind Bansal v. State of Haryana, whereinafter referring to the previous judgments of this Court including that of the Constitution Bench judgment, it has been held that the Ordinance shall have prospective operation only. This view is also to be found in Karnail Kaur v. State of Punjab (2015) 3 SCC 206. We respectfully concur.
9. The learned Additional Solicitor General has sought to contend otherwise vociferously that the proviso to the said section added by means of the Ordinance, is only clarificatory in nature and will therefore have retrospective operation. This plea ought to have been raised before the Bench which heard Radiance Fincap (P) Ltd. as well as Arvind Bansal and Karnail Kaur (2015) 3 SCC 206. In any event, we are not persuaded by the said argument.
10. In these circumstances, as prayed for in the applications, the appeals are accepted. We quash the subject land acquisition proceedings in terms of Section 24(2) of the New Act. All the applications and appeals are allowed in the above terms.
Order dated 26-2-2015 in Civil Appeal No. 5054 of 2008
(Before Vikramajit Sen and Prafulla C. Pant, JJ.)
The Order of the Court was delivered by
Vikramajit Sen, J.— All of these appeals were admitted before the commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. After commence-ment thereof, the appellants changed the tack of their challenge—originally framed under the Land Acquisition Act, 1894—and impugned the acquisition proceedings in toto, by evoking the deemed lapse of proceedings under Section 24(2) of the 2013 Act. Any determination under this provision must proceed sequentially. First, the factum of an award under Section 11 of the Land Acquisition Act, 1894, must be clearly established. The said award must predate the commencement of the Act i.e. 1-1-2014, by at least five years (or more) i.e. the award must have been passed on or before 1-1-2009. This having been established, if possession is found to not have been taken, or compensation not paid, then the proceedings shall be deemed to have lapsed. Thereafter, the appropriate Government, if it so chooses, may reinitiate acquisition proceedings in respect of the same land, but under the 2013 Act's regime.
12. Each and every deeming operation under Section 24(2) requires unambiguously and unvaryingly that a factual conclusion be drawn about the passing of the award under Section 11 of the 1894 Act, on or before 1-1-2009; further, the absence of compensation having been paid or the absence of possession having been taken by the acquirer, either of these, must be a proven point of fact, as a threshold requirement attracting the lapse.
13. From the record, these appeals do not unambiguously answer these indispensable queries, which inarguably must precede any declaration of lapse of acquisition under Section 24(2). Each of these appeals must factually satisfy this Court on the ingredients of Section 24(2), before this Court may pass a declaration in recognition of the statutory lapse of acquisition.
14. This Court has in a number of decisions including Pune Municipal Corpn. v. Harakchand Misirimal Solanki (2014) 3 SCC 183, Union of India v. Shiv Raj (2014) 6 SCC 564 and Bimla Devi v. State of Haryana (2014) 6 SCC 583, clarified the manner in which the new provision is to be interpreted viz. that the acquisition lapses.
15. It has been contended in other appeals before this Court that the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Settlement Ordinance, 2014, issued on 31-12-2014, clarifies that if possession of the acquired land has not been taken owing to interim orders passed in this regard the acquisition may be protected and insulated from the purpose and intendment of Section 24 of the 2013 Act. This Court has now clarified in Radiance Fincap (P) Ltd. v. Union of India that the Ordinance shall have prospective operation only. This Court therein held as under: (See para 4)
“The right conferred to the landholders/owners of the acquired land under Section 24(2) of the Act is the statutory right and, therefore, the said right cannot be taken away by an Ordinance by inserting proviso to the abovesaid sub-section without giving retrospective effect to the same.”
The legal position has been subsequently reiterated by this Court in Arvind Bansal v. State of Haryana and Karnail Kaur v. State of Punjab (2015) 3 SCC 206. We are in respectful agreement with all these decisions.
16. In the event that there is no ambiguity (a) that the award is over five years old; and (b) that compensation has not been paid; or (c) that possession of the land has not been taken, the acquisition is liable to be quashed. In Rajiv Choudhrie HUF v. Union of India, noting that the physical possession of the land had not been taken by the respondents, nor compensation paid by the respondents to the appellant in respect whereof the award was passed on 6-8-2007, the acquisition proceedings had been declared as having lapsed. The same position was arrived at in Rajiv Chowdhrie HUF v. Union of India (2015) 3 SCC 541 by a different Bench of this Court.
17. In all these appeals, the submission of the landowners is that either possession is still with them, or compensation has not been tendered by the State. Consequently, the landowners propose to initiate proceedings founded on Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as “the 2013 Act”).
18. Having heard all the learned counsel, we are persuaded to dispose of these proceedings, without entering on the merits, by granting liberty to the landowners before us to pray for the revival of the appeals in the event that orders under Section 24 of the 2013 Act are adverse to their interest. We, therefore, permit the landowners to initiate appropriate proceedings in the proper forum/court, seeking the benefit of Section 24 of the 2013 Act, within eight weeks from today. We clarify that, in the event that any landowners have already approached the High Court concerned, their plea under Section 24 of the 2013 Act shall be decided on merits.
19. It is in these circumstances that all these appeals are disposed of with liberty to the parties to revive these appeals in the event that the orders under Section 24 of the 2013 Act are seen as adverse to their interest. Interim protection, if already granted, shall continue for a period of 90 days from today. It is further clarified that the parties desirous of reviving the appeal must approach this Court within 90 days of the passing of the High Court's orders.
20. The appeals stand disposed of with the aforesaid observations and directions.
Judgment dated 27-2-2015 in Civil Appeal No. 2592 of 2015
(Before Vikramajit Sen and Shiva Kirti Singh, JJ.)
The Judgment of the Court was delivered by
Vikramajit Sen, J.— Any determination under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, must proceed sequentially. First, the factum of an award under Section 11 of the Land Acquisition Act, 1894, must be clearly established. The said award must predate the commencement of the Act i.e. 1-1-2014, by at least five years (or more) i.e. the award must have been passed on or before 1-1-2009. This having been established, if possession is found to not have been taken, or compensation not paid, then the proceedings shall be deemed to have lapsed. Thereafter, the appropriate Government, if it so chooses, may reinitiate acquisition proceedings in respect of the same land, but under the 2013 Act's regime.
22. Each and every deeming operation under Section 24(2) requires unambiguously and unvaryingly that a factual conclusion be drawn about the passing of the award under Section 11 of the 1894 Act, on or before 1-1-2009; further, the absence of compensation having been paid or the absence of possession having been taken by the acquirer, either of these, must be a proven point of fact, as a threshold requirement attracting the lapse.
23. This Court has in a number of decisions including Pune Municipal Corpn. v. Harakchand Misirimal Solanki (2014) 3 SCC 183, Union of India v. Shiv Raj (2014) 6 SCC 564 and Bimla Devi v. State of Haryana (2014) 6 SCC 583, clarified the manner in which the new provision is to be interpreted viz. that the acquisition lapses.
24. It has been contended in other appeals before this Court that the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Settlement Ordinance, 2014, issued on 31-12-2014, clarifies that if possession of the acquired land has not been taken owing to interim orders passed in this regard the acquisition may be protected and insulated from the purpose and intendment of Section 24 of the 2013 Act. This Court has now clarified in Radiance Fincap (P) Ltd. v. Union of India that the Ordinance shall have prospective operation only. This Court therein held as under:
“The right conferred to the landholders/owners of the acquired land under Section 24(2) of the Act is the statutory right and, therefore, the said right cannot be taken away by an Ordinance by inserting proviso to the abovesaid sub-section without giving retrospective effect to the same.”
The legal position has been subsequently reiterated by this Court in Arvind Bansal v. State of Haryana and Karnail Kaur v. State of Punjab (2015) 3 SCC 206. We are in respectful agreement with all these decisions.
25. In the event that there is no ambiguity (a) that the award is over five years old; and (b) that compensation has not been paid; or (c) that possession of the land has not been taken; the acquisition is liable to be quashed. In Rajiv Choudhrie HUF v. Union of India, noting that the physical possession of the land had not been taken by the respondents, nor compensation paid by the respondents to the appellant in respect whereof the award was passed on 6-8-2007, the acquisition proceedings had been declared as having lapsed. The same position was arrived at in Rajiv Chowdhrie HUF v. Union of India (2015) 3 SCC 541 by a different Bench of this Court.
26. These appeals assail one judgment and an order 2014 SCC OnLine Del 3302, (2014) 211 DLT 15 (passed in the light of that judgment) of a Division Bench of the Delhi High Court, which had allowed the writ petitions before it, and declared that the acquisitions had lapsed for the reason that the possession had not been taken and compensation, too, not paid. This is sufficient ground for granting the protection envisaged by Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
27. The appeals are dismissed in the above terms.
Judgment dated 10-3-2015 in Civil Appeal No. 5099 of 2008
(Before Vikramajit Sen and Chockalingam Nagappan, JJ.)
The Judgment of the Court was delivered by
Vikramajit Sen, J.— These appeals were originally filed seeking relief on the basis of provisions in the Land Acquisition Act, 1894. Subsequently, upon the enactment of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the appeal grounds herein metamorphosed into proceedings under Section 24(2) of the 2013 Act, seeking lapse of the acquisition proceedings thereunder.
29. Similar positioned appeals i.e. Civil Appeal No. 5054 of 2008 and other connected appeals i.e. Civil Appeals Nos. 5050-53, 5100-125, 5127-29, 5283 of 2008 and 3278-80 of 2012, have been disposed Civil Appeal No. 5054 of 2008 of with these observations and directions, which seem to us to remain the commendable approach. (See paras 11-19, above.)
30. These two appeals are also disposed of in the above terms.
† Arising out of SLPs (C) Nos. 9126-27 of 2009
‡ Arising out of SLPs (C) Nos. 2998-99 of 2010
†† Arising out of SLPs (C) Nos. 3357-58 of 2010
* From the Judgment and Order dated 25-8-2005 of the High Court of Delhi at New Delhi at New Delhi in WP (C) No. 4703 of 2002
†‡ Arising out of SLP (C) No. 33569 of 2014. From the Judgment and Order dated 27-5-2014 of the High Court of Delhi at New Delhi in WP (C) No. 2806 of 2004
‡† Arising out of SLP (C) No. 2125 of 2015
‡‡ Arising out of SLP (C) No. 2122 of 2015
††† Arising out of SLP (C) No. 390 of 2015
††‡ Arising out of SLP (C) No. 384 of 2015
†‡† Arising out of SLP (C) No. 393 of 2015
†‡‡ Arising out of SLP (C) No. 383 of 2015
ࠠ Arising out of SLP (C) No. 2724 of 2015
‡†‡ From the Judgment and Order dated 25-8-2005 of the High Court of Delhi at New Delhi in CWP No. 5609 of 2002
1 AIR 1957 SC 540 : 1957 SCR 488
2 (2001) 8 SCC 24
3 (1994) 4 SCC 602 : 1994 SCC (Cri) 1087
4 (1994) 5 SCC 593
5 (2015) 3 SCC 327 : (2015) 2 SCC (Civ) 273
6 Rajiv Choudhrie HUF v. Union of India, SLP (C) No. 31755 of 2010, order dated 27-9-2013 (SC), wherein it was directed:
“Leave granted. Interim orders dated 8-11-2010 and 13-12-2010 are made absolute to last till the disposal of the appeals.”
7 Rajiv Chowdhrie HUF v. Union of India, (2015) 3 SCC 541 (F2)
8 (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274
9 (2014) 6 SCC 564 : (2014) 3 SCC (Civ) 607
10 (2014) 6 SCC 583 : (2014) 3 SCC (Civ) 626
11 See paras 1-5, above.
12 See paras 1-5, above.
13 (2015) 3 SCC 206 : (2015) 2 SCC (Civ) 259
14 See paras 6-10, above.
15 (2015) 3 SCC 541 : (2015) 2 SCC (Civ) 314
16 Jagjit Singh v. Union of India, 2014 SCC OnLine Del 3302 : (2014) 211 DLT 15
17 Competent Automobiles Co. Ltd. v. Union of India, Civil Appeal No. 5054 of 2008, order dated 26-2-2015 (SC) reported at paras 11-20, above.