Case: State of Telangana and Ors Vs. D. Mahesh Kumar and Ors

3. The land acquisition proceedings had been initiated on 09.07.2013 by the issuance of a notification Under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act of 1894). On 10.08.2013, the Appellants Vaishali Tholia and Another purchased property. As per landowners, no proper inquiry Under Section 5-A was held. District Collector, Hyderabad on 26.09.2013, overruled objections. For determining compensation, notice Under Section 9 of the Act of 1894 was issued on 18.10.2013. On 19.10.2013, the declarations Under Section 6 of the 1894 Act was issued. After approval of the award, it was purportedly passed on 23.12.2013. The said landowners received notice 26.7.2014 Under Section 12(2) on 05.08.2014 mentioning therein that the award has been passed on 23.12.2013 and compensation had been determined. When asked to vacate and hand over the premises to the Land Acquisition Collector, the landowners questioned the award dated 23.12.2013 by filing Writ Petitions in the High Court. Learned Single Judge allowed the Writ Petition No. 1468/2015 and held that award was made on 23.12.2013 and it was communicated after 01.01.2014, thus, the case would be governed Under Section 24(1)(b) of the Act of 2013 and the landowners were not entitled to benefit of the provision of Act of 2013. However, the learned Single Judge further observed that as with respect to the majority of holding, compensation has not been deposited in the account of landowners as required by the proviso to Section 24(2), as such, they would be entitled to compensation under the Act of 2013.4. Writ Appeal before the Division Bench was preferred by the State of Telangana. Landowners also filed cross-objections on the ground that award was antedated. The Division Bench of the High Court has held that award is not antedated. The award had been passed on 23.12.2013, and the date of its communication could not be taken to be the date of the award. However, as per proviso Under Section 24(2) of the Act of 2013, it has been held that, though the award was passed on 23.12.2013, the landowners were entitled to payment of compensation under the Act of 2013.

Reasoning:
7. This Court in the case of Delhi Metro Rail Corporation Limited (DMRC) v. Tarun Pal Singh and Ors. decided on 15th November 2017 has considered the first question, with respect to the proviso of Section 24(2)of the Act of 2013. The learned senior Counsel, appearing on behalf of the landowners, in this case, was also heard before deciding the question. This Court has decided that as per Rules of construction of a proviso has to be read as the part of Section 24(2), and not as independent provision neither a proviso to Section 24(1)(b). It would be applicable, as provided Under Section 24(2), with respect to an award passed before five years or more and in a case when compensation has not been deposited in the account of beneficiaries/landholders with respect to the majority of the holding and not in a case where award has been passed within five years of the commencement of the Act of 2013. In case, an award has been passed within five years, the proceedings would continue under the Act of 1894 as if it had not been repealed, as provided in Section 24(1)(b) of the Act of 2013.Ultimately, this Court in the DMRC (supra), has observed:9. What follows from aforesaid enunciation that effect of a proviso is to except all preceding portion of the enactment. It is only occasionally that proviso is unrelated to subject matter of preceding section, it may have to be interpreted as a substantive provision. Ordinarily, a proviso is not interpreted as stating a general rule. Provisos are often added as saving clauses. A proviso must be construed with reference to the preceding parts of the Clause to which it is appended. The proviso is ordinarily subordinate to the main section. A construction placed on proviso which brings general harmony to the terms of the Section should prevail. A proviso may sometime contain substantive provision. Ordinarily, proviso to a Section is intended to take out a part of the main Section for special treatment. Normally, a proviso does not travel beyond the main provision to which it is a proviso. A proviso is not interpreted as stating a general rule, it is an exception to main provision to which it is carved out as a proviso. Proviso cannot be construed as enlarging the scope of enactment when it can be fairly and properly constructed without attributing that effect. It is not open to read in the words of enactment which are not to be found there and which would alter its operative effect.11. An exception is also carved out by a non-obstante Clause contained in Sub-section (2) of Section 24; it begins with notwithstanding anything contained in Sub-section (1). Thus, it would supersede provisions of Section 24(1) also. In case of land acquisition proceedings, initiated under the Act of 1894, wherein an Award has been made within 5 years or more prior to the commencement of the Act of 2013, if physical possession has not been taken or compensation has not been paid, then the said proceedings shall be deemed to have lapsed. The proviso to Sub-section (2) makes it clear that when the Award has been made and, compensation in respect of majority of holdings has not been deposited in the account of beneficiaries the acquisition would not lapse. However, all the beneficiaries shall be entitled to enhanced compensation under the Act of 2013. This proviso is to be necessarily part of Sub-section (2) of Section 24 only. The legislative intention is clear that it is enacted as proviso to Section 24(2), and otherwise also if read as if it were a proviso to Section 24(1)(b), it would create repugnancy with said provision and the provisions of Section 24(1)(b) and proviso to 24(2) would become wholly inconsistent with each other. This is a trite law that the interpretation which creates inconsistency or repugnancy has to be avoided and proviso has to be part of Section 24(2) as enacted. As per fundamental Rule of its construction, no contrary intention is available in the provisions so as not to read it as part of Section 24(2). As Section 24(1)(b) provides, in case award has been passed under Act of 1894, the proceedings shall continue of the said Act as if it has not been replaced whereas Section 24(2) provides deemed lapse in case award is passed 5 years or more before commencement of Act of 2013 and possession has not been taken or compensation has not been paid and as per the proviso with respect to majority of holding compensation has not been deposited in account of land owners. In case award has been passed few days before commencement of the Act of 2013, then deposit of compensation with respect to majority of holding is bound to take time, that is why legislature has made difference of consequences based upon time gap in passing of award as requisite steps to be taken are bound to consume some time by providing proceedings to continue under the Act of 1894.12. Section 24(1) begins with non-obstante clause. The Parliament has given overriding effect to this provision over all other provisions of Act of 2013. Section 24(2) also begins with non-obstante clause. This provision has overriding effect over Section 24(1). It is apparent that Sub-section (2) of Section 24 deals with the lapse of acquisition in case the award had been made five years or more prior to commencement of 2013 Act but the physical possession of the land had not been taken or the compensation had not been paid. The provision of Section 24(2) and its proviso together further clarify that, in case the award has been made and compensation in respect of majority of land holdings has not been deposited in the account of the beneficiaries, then, all the beneficiaries specified in the notification for Acquisition shall be entitled to compensation in accordance with the provisions of Act of 2013. Even if, minority of the claimants are disbursed with the compensation such claimants also would get benefit of compensation under the Act of 2013. Thus it is clear that even if the acquisition does not lapse, all the beneficiaries to whom the compensation is payable would be entitled to compensation under the Act of 2013.If the proviso to Sub-section (2) of Section 24 is read as part of Sub-section (1) of Section 24, the same makes the said provision completely different and inconsistent. When we consider the expression where an Award Under Section 11 has been made provided Under Section 24(1)(b), the proceedings have to continue under the provisions of Act of 1894. If the proviso to Sub-section (2) of Section 24 read as proviso to Section 24(1), then Section 24(1)(b) will be rendered nugatory and/or becomes otiose. True effect has to be given to the provision contained in Section 24(1)(b) which says that when award Under Section 11 has been made, then such proceedings shall continue under the provisions of Land Acquisition Act 1894, as if the said Act has not been repealed.The three contingencies are provided Under Sub-section (2) of Section 24 i.e. (i) in case if award was passed five years or more prior to the commencement of Act of 2013 and (ii) if compensation has not been paid, or (iii) possession has not been taken. Exception is carved out by adding the proviso to Section 24(2) - wherein the land acquisition would not lapse, in case some of the land losers are paid compensation but land owners of majority of holding are not paid. Thus we are of the considered opinion that the proviso to Section 24(2) cannot be lifted and made part of Section 24(1)(b).At the cost of repetition, we observe that reading of Sections 24(1) and 24(2) conjointly & homogenously makes it abundantly clear that they operate in two different fields. Section 24(1)(b) unequivocally indicates that in case the award has been passed under the Act of 1894, all the proceedings shall continue as if the Act of 1894 has not been repealed. Section 24(1)(a) makes the provision of Act of 2013 applicable only in case where the award has not been passed. In other words, it gives a clue that when an award has been passed, obviously further proceedings have to be undertaken under the Act of 1894, to that extent proceedings under the said Act is saved, and the Act of 2013 will not apply. In such cases, there is no necessity of initiation of acquisition proceedings afresh except in cases as provided Under Section 24(2). Whereas Section 24(2) would be applicable if the Award Under Section 11 of the old Act has been made five years or more prior to commencement of 1894 but physical possession of the land has not been taken or the compensation has not been paid. Proviso to Section 24(2) further makes it clear that in case the compensation in respect of majority of land holdings has not been deposited in the account of the beneficiaries, then, all the beneficiaries, specified in the notification for Acquisition shall be entitled to compensation in accordance with the provisions of Act of 2013. The legislature has provided different consequences in the provisions keeping in mind the time gap as enumerated in Sections 24(1) and 24(2). The legislature has visualized and expected that the things would not happen overnight on passing of an award.13. We have already clarified supra based on catena of judgments, that a proviso appended to a provision has to be specifically interpreted in the manner so as to enable the field which is covered by the main provision. The proviso is only an exception to main provision to which it has been enacted and no other. The proviso deals with a 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.The 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 the applicability of the proviso, a case has to be covered by Section 24(2) i.e. (1) award has been made five years or more prior to the enforcement of the 2013 Act.The proviso to Section 24(2) contemplates a situation where with respect to majority of the holding compensation not deposited event of minority of holding the landowners are paid, meaning thereby that for majority of the landholding in case amount is deposited acquisition is saved by the proviso. The proviso in fact extends the benefit even to those land holders who have received compensation as per the 1894 Act. Thus all land holders are to receive benefit of higher and liberal compensation under 2013 Act. This situation is one where land acquisition proceedings shall not lapse and are saved. The purpose and object of the proviso is to give benefit of computation of compensation to all landholders and to save land acquisition proceedings. Hence, it is evident that the proviso is appropriately be treated as a proviso to Sub-section (2) of Section 24 and cannot be read as proviso to Section 24(1)(b) of Act of 2013.10. Thus, for the aforesaid reasons in the instant case, the first question raised is answered against the landowners,The Single Bench, as well as the Division Bench, of the High Court, has rightly found that award is not antedated. It was pronounced on 23.12.2013; there is a presumption of correctness of official acts Under Section 114(e) of Evidence Act the anti-dating has not been proved, the notices issued Under Section 12(2) were received on different dates by the landowners. The purchasers after the notification issued Under Section 4 of the Act of 1894; had received the notice a little later; however, that would not make any difference with respect of the date of the award being 23.12.2013. Original records have also been perused by the High Court, and the finding on facts recorded is that the award had not been antedated. We fully endorse the said finding. We have no hesitation to reject the contention to the contrary, advanced on behalf of the landowners.in the instant case, it was signed on 23.12.201315. It is apparent, from a conjoint reading of Sections 11-A and 12, that when the award is made, the period of limitation of two years for passing of award is to be adhered to, as provided in Section 11-A, it has to be computed from the date in terms of provisions of Section 12 read with Section 6; and none of the provisions is dependent upon the service of notice Under Section 12(2) on the such of the interested persons as were not present when the award had been made.Thus, the date of passing of Collectors award has been legislatively provided for to be the date on which it is made. Communication is relevant only for the purpose of computing the period of limitation within which reference can be sought17. No period is provided for seeking reference Under Section 30, which is on limited grounds not as wide as the one Under Section 18. Under Section 18 measurement and quantum of compensation can be also be questioned whereas it is not so Under Section 30 in that apportionment and entitlement of compensation between interested persons can be raised.18. In view of the aforementioned statutory scheme provided for by the legislature, in our considered opinion, date of communication of an award cannot be said to be the date of the award as suggested on behalf of the landowners.ection 18 provides for the grounds on which Collector can make Reference to the Court on behalf of any interested person. The first proviso of Section 18(2) requires of a person who was present when the award had been made to seek the reference within six weeks from the date of the Collectors award. The second proviso of Section 18(2) provides for all cases other than the one provided for by the first proviso; six weeks from the date of receipt of the notice from the Collector Under Section 12(2), or within six months from the date of the Collectors award which is to be treated as date of knowledge whichever period first expire.19. Reliance has been placed by the landowners on a three Judges Bench decision in State of Punjab v. Mst. Qaisar Jehan Begum and Anr. AIR 1963 SC 1604  This Court has made aforesaid observation clearly in the context of period of limitation during which reference is provided Under Section 18 read with Section 12(2) of the Act of 1894. This Court was not concerned at all in the said decision what date is to be taken as the date of award. The decision is distinguishable and cannot be said to be applicable.21. It is apparent from the aforesaid discussion that date of award is final and conclusive and there cannot be different dates of award with respect to different persons based on date of its communication. It is not provided under the scheme of the Act of 1894. In Mrs. Khorshed Shapoor Chenai and Ors. v. Assistant Controller of Estate Duty, Andhra Pradesh and Ors.(1980) 2 SCC 1     this Court considered the right to receive compensation for acquisition of land in the Act of 1894 it observed that there was no separate right to receive further compensation after Collectors award and right to challenge award in further proceedings would be part of right to receive compensation. This Court has explained the nature of the Collectors award Under Section 11 of the Act of 1894. Right to compensation does not merge in the award. The payment can indicate the correctness of award because the right to compensation is not fully redeemed. The decision does not espouse the proposition urged by the landowners.24. In Premji Nathu v. State of Gujarat and Anr. (2012) 5 SCC 250     this Court has observed that notice issued Under Section 12(2) should accompany a copy of the award, to be supplied to the landowner who is not present or not represented before the Collector at the time of making of the award. Whereas there is no such requirement Under Section 12(2) to send copy of award. Other decisions also indicate that there is no need of supplying a copy of the award along with a notice Under Section 12(2) of the Act of 1894. But this is not the question involved in the case, as such; it is not necessary to examine correctness of decision in Premji Nathu case. This Court was not concerned in Premji Nathu case (supra) with question what date is to be taken as the date of the award Under Section 11-A. Thus, decision is of no avail to landowners, to invoke the provisions of the Act of 2013.25. In Bhagwan Das and Ors. v. State of Uttar Pradesh and Ors. (2010) 3 SCC 545     this Court has considered the proviso contained in Clause (b) of Section 18 of the Act of 1894 and has observed that if person interested was not present when the award was made, and if he does not receive notice Under Section 12(2) from Collector, he can make application within six months of the date on which he actually or constructively came to know about contents of the award. This Court held that the expression six months from date of Collectors award is not to be literally construed but from the date of knowledge of award. This Court has observed:26. If the words six months from the date of the Collectors award should be literally interpreted as referring to the date of the award and not the date of knowledge of the award, it will lead to unjust and absurd results. For example, the Collector may choose to make an award but not to issue any notice Under Section 12(2) of the Act, either due to negligence or oversight or due to any ulterior reasons. Or he may send a notice but may not bother to ensure that it is served on the landowner as required Under Section 45 of the Act. If the words date of the Collectors award are literally interpreted, the effect would be that on the expiry of six months from the date of award, even though the claimant had no notice of the award, he would lose the right to seek a reference. That will lead to arbitrary and unreasonable discrimination between those who are notified of the award and those who are not notified of the award.27. Unless the procedure under the Act is fair, reasonable and non-discriminatory, it will run the risk of being branded as being violative of Article 14 as also Article 300-A of the Constitution of India. To avoid such consequences, the words date of the Collectors award occurring in proviso (b) to Section 18 requires to be read as referring to the date of knowledge of the essential contents of the award, and not the actual date of the Collectors award.28. The following position, therefore, emerges from the interpretation of the proviso to Section 18 of the Act.(i) If the award is made in the presence of the person interested (or his authorized representative), he has to make the application within six weeks from the date of the Collectors award itself.(ii) If the award is not made in the presence of the person interested (or his authorized representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector Under Section 12(2).(iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice Under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award.(iv) If a person interested receives a notice Under Section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice Under Section 12(2) of the Act was the date of knowledge of the contents of the award.It is apparent that this Court has distinguished between the date of the award and the date of the knowledge. Date of knowledge is material for the purpose of seeking the reference but the date of award remains static and final.26. Resultantly, the date of award in the instant case has to be taken as 23.12.2013. Thus, the provisions of the Act of 1894 would be applicable as provided Under Section 24(1)(b) the proceedings shall continue under the provisions of the said Act as if it has not been repealed, though notice of award is served when the Act of 2013 has come into force.