(2009] 14 S.C.R. 891

VIJAY NARAYAN THATTE & ORS.

STATE OF MAHARASHTRA & ORS.

(Civil Appeal No. 5614 of 2009)

AUGUST 18, 2009

[MARKANDEY KAT JU AND ASOK KUMAR

GANGULY, JJ.]

Land Acquisition Act, 1894:

Sections 4, SA, 6 ...;. Notifications under Sections 4 and 6

- Challenged by filing a writ petition - High Court quashing the Notification under Section 6 - Subsequently second notice under Section 6 was issued - Writ petition rejected by High Court - On appeal, Held: Second Notification is time- D barred - The language of proviso to Section 6 is clear - Hence literal interpretation to be applied - In the impugned judgment no specific reference made in Clause (ii) to proviso to Section 6, there has b(!en general reference to Section 6 - Hence the observations in para 3 of the impugned judgment E have to be construed as per incuriam - Impugned judgment set aside - However, it is open to the State Government to issue a fresh Notification under Section 6 and take proceedings in accordance with law thereafter - Interpretation of statutes - Literal interpretation.

Mimans~ Principles of Interpretation - Discussed.

maxims:

'Dura Lex Sed Lex - Meaning of.

Law and Equity:

When there is conflict between law and equity it is the law which must prevail.

A Law of Estoppal - There can be no estoppal against a • statute. '

Judgments:

Judgment per incuriam - Meaning of - Discussed.

~ B

In respect of the lands in question, Notification under Section 4 was issued. Thereafter Notification under Section 6 was issued, which was challenged in a writ r petition and quashed by the High Court. Again, a second c Notification under Section 6 was issued and challenge thereto was rejected by the High Court. Hence the appeal.

Allowing the appeal, the Court

D HELD: 1.1. Nishedha Vidhis of Mimansa Rules of

(,..

Interpretation is to be interpreted most comprehensively and , as mandatory. The proviso to Section 6 of the Land Acquisition Act is totally mandatory and bears no 't exceptions. [Paras 16 and 17) [900-E-F] E

'{:: 1.2. The proviso to Section 6 is mandatory, and hence the Notification under Section 6 dated 30.10.2006 is tme barred. When the language of the Statute is plain and clear then the literal rule of interpretation has to be

F applied and there is ordinarily no scope for consideration of equity, public interest or seeking the intention of the legislature. It is only when the language of the Statute is not clear or ambiguous or there is some conflict etc. or the plain language leads to some absurdity that one can

G depart from the literal rule of interpretation. [Para 18)

[900-G-H; 901-A]

1.3. A perusal of the proviso to Section 6 shows that the language of the proviso is clear. Hence the literal rule of interpretation must be applied to it. When there is a H conflict between the law and equity it is the law which

must prevail. As stated in the Latin Maxim 'Dura Lex Sed A Lex' which means "the law is hard but it is the law". [Para

19] [901-B]

Beni Prasad vs. Hardai Bibi 1892 ILR 14 All 67 and ..

Padma Sundara Rao (Dead) and Others vs. State of T.N. And B Others (2002) 3 sec 533, relied on.

Principles of Statutory Interpretation by Justice G.P. Singh

:>(' 11th Edition, 2008; K.L. Sarkar's 'Mimansa Rules of Interpretation', a collection of Tagore Law Lectures c delivered in 1905 and P. V. Kane's 'History of the Dharmashastra', Vol. V, Pt.II, Ch.XXIX and Ch.XXX, pp. 1282-1351, referred to.

2. There can be no estoppel against a Statute. Since the Statute is very clear, the period of limitation provided D in Clause (ii) of the proviso to Section 6 of the Act has to be followed, and concessions of the counsel can have no effect. The proviso is mandatory in nature, and must operate with its full rigour. [Para 21] [902-D-E]

Ashok Kumar vs. State of Haryana (2007) 3 SCC 470, E

relied on.

3.1. The observations in para 3 of the impugned judgment dated 20.1.2004 have to be regarded as per incuriam. [Para 24] [904-C-D] F

3.2. In the aforesaid judgment no specific reference has been made to the limitation period prescribed in clause (ii) to proviso to Section 6 of the Act, though no doubt Section 6 has been generally referred to. Hence, G the observations in paragraph 3 of the aforesaid judgment

~ dated 20.1.2004 have to be construed as per incuriam. [Para 24] [904-C-D]

3.3. The impugned judgment and order dated

H -

A 21.01.2008 is set aside. However, it is open to the respondent-State of Maharashtra to issue a fresh Notification under Section 4 _of the Act and take proceedings in accordance with law thereafter. [Para 25]

(904-0-E] B Babu Parasu Kaikadi (Dead) by Lrs. vs. Babu (Dead) through Lrs. (2004) 1 SCC 681, relied on.

Case Law Reference:

c 1892 ILR 14 All 67 relied on Para 7

(2002) 3 sec 533 relied on Para 18

(2007) 3 sec 470 relied on Para 21

(2004) 1 sec 681 relied on Para 24 D

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5614 of 2009.

From the Judgment & Order dated 21.1.2008 of the High

E Court of Judicature at Bombay in Writ Petition No. 2934 of

2007.

~ I G.E. Vahanvati, Attorney General for India, Harish N. Salve, Shyam Divan, Shekhar Naphade, D.A. Dave, Shyel Trehan, ..

Divya Kapur, Paromita Mukherjee, Hitesh Jain, Vikas Mehta, F Rahul Joshi, Brij Kisha~ Sah, Lenin H. Hijam, M.P. Parthiban,

Shivaji M. Jadhav, Sanjay V. Kharde, Asha G. Nair, Mohit D.

Ram, Meenakshi Arora for the appearing parties.

The following Order of the Court was delivered

ORDER

1. Heard Shri Harish Salve and Shri Shyam Divan, learned senior counsel for the appellants and learned Attorney General of India and Shri Shekhar Naphade, learned learned senior H counsel for the respondents.

2. Leave granted.

A ' J 111111(

3. This appeal has been filed against the impugned judgment and order dated 21.01.2008 passed by a Division Bench of the High Court of Bombay whereby the writ petition

I filed by the appellants herein has been rejected.

""'!!"'!J" B -.

4. The facts in brief are that a Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter for short 'the Act') was issued in respect of the land in question on 29.8.2002. Thereafter a Notification under Section 6 of the Act was issued on 18.6.2003. The said Notification under Section c

6 was challenged and the writ petition filed by the appellants was allowed on 20.1.2004 and the Notification under Section 6 of the Act dated 18.06.2003 was quashed. Subsequently a second Notification under Section 6 dated 30.10.2006 was issued by the State Government.

5. The short question that arises for consideration is whether the Notification under Section 6 dated 30.10.2006 is valid. In our opinion, the said Notification was clearly barred by clause (ii) of the proviso to Section 6 of the Act which reads E as under:-

"[Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1),- F

(i) ........................

(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of G the notification;"

It can be seen from the aforesaid proviso to Section 6 that it is couched in negative language. It is well settled that when a Statute is couched in negative language it is ordinarily regarded as peremptory and mandatory in nature. [See Principles of H

A Statutory Interpretation by Justice G.P. Singh 11th Edition, 2008 pages 390 to 392]. As stated by Crawford "Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience." [See Crawford : Statutory Construction P. 523; See also in this B connection Haridwar Singh vs. Begum Sumbra, Al R 1972 SC '\ml • 1242 (1247), Lachmi Narain vs. Union of India AIR 1976 SC '

714 (726), Manna/al Khetan vs. Kedamath Khetan AIR 1977 SC 536 etc.]

6. In this connection we may also refer to the Mimansa

'( c Rules of Interpretation, which were our traditional principles of interpretation for over 2500 years, but which are unfortunately ignored in our Courts of law today.

7. It is deeply regrettable that in our Courts of law lawyers D quote Maxwell and Craies but nobody refers to the Mimansa Principles of Interpretation. Most lawyers would not have even heard of their existence. Today our so-called educated people are largely ignorant about the great intellectual achievements •' of our ancestors and the intellectual treasury which they have E bequeathed us. The Mimansa Principles of Interpretation is part of that great intellectual treasury, but it is distressing to note that apart from the referenc~ to these principles in the judgment of Sir John Edge, the then Chief Justice of Allahabad High Court in Beni Prasad vs. Hardai Bibi 1892 ILR 14 All 67 (FB), a

F hundred years ago and in some judgments of one of us (M.

Katju, J.) there has been almost no utilization of these principles even in our own country. Most of the Mimansa Principles are rational and scientific and can be utilized in the legal field (see in this connection K.L. Sarkar's 'Mimansa Rules of

G Interpretation' which is a collection of Tagore Law Lectures delivered in 1905 and which contains the best exposition of these principles). ~

8. The Mimansa Principles of Interpretation, as laid down by Jaimini in his sutras around 6th Century B.C. and as H explained by Sabar, Kumarila Bhatta, Prabhakar, Mandan

Mishra, etc., were regularly used by our renowned jurists like A

~- Vijnaneshwara (author of Mitakshara), Jimutvahana (author of

111> Dayabhaga), Nanda Pandit (author of Dattaka Mimansa), etc.

Whenever there was any conflict between two Smritis, e.g., Manusmriti and Yajnavalkya Smriti, or ambiguity or absurdity

.. in any Smriti these principles were utilized. Thus, the Mimansa B Principles were our traditional system of interpretation of legal

""' texts. Although originally they were created for interpreting religious texts pertaining to the Yagya (sacrifice), gradually they came to be utilized for interpreting legal texts also (see in this connection P.V. Kane's 'History of the Dharmashastra', Vol.V, Pt.II, Ch.XXIX and Ch.XXX, pp. 1282-1351), and also for c

interpreting texts on philosophy, grammar, etc. i.e. they became of universal application. Thus, Shankaracharya has used the Mimansa adhikaranas in his bhashya on the Vedanta sutras.

9. While the first edition of Maxwell's book was published 0 in 1875, in India we have been doing interpretation for over 2500 years, as already stated above. There were hundreds of books (all in Sanskrit) written on the subject, though only a few dozens have survived the ravages of time, but even these show how deep our ancestors went into the subject of interpretation . E

.......

10. To give an example the Mimansakas examine the subject of negative Vidhis (negative injunctions such as the one

,,. in the proviso to Section 6) very searchingly and exhaustively.

First of all, they distinguish between what may be called F prohibitions against the whole world, and those against particular persons only. This distinction resembles that between judgments or rights in rem and judgments or rights in personam.

The former prqhibitions are called Pratishedha and the latter Paryudasa. For example, the prohibitory clause 'Do not eat G fermented (stale) food (na kalanjam bhakshayet) is a Pratishedha; while the prohibition 'those who have taken the Prajapati vow must not see the rising sun' is a Paryudasa. In the second place, Pratished has are divided practically into two sub-clauses viz. those which prohibit a thing without any H

A referenc~ to the manner in which it may be used, and those which prohibit it only as regards a particular mode of using. For instance, 'Do not eat fermented food' prohibits the use of it c-under all circumstances, while 'Do not use the Sorasi vessel

at dead of night' .(orbids the use of the vessel only at the dead B of night.

11. Then Paryudasa is also of two kinds. In one case, it relates to a person performing some special act which is not enjoined by a Vidhi~ as in the case of the Prajapati vow. In the C other, it relates to a person engaged in performing 1a Vidhi; as for instance, when one is to do Shradh during the full moon by virtue of a Vidhi but not in the night of the full moon. In this case, the prohibition of doing Shradh in the night is a Paryudasa, which is the same as an exception or proviso as we understand these terms. For, the clause 'not in the night' is an exception D to the rule 'Perform the Shradh during the full moon'. These are the four classes of negative clauses. The first class, of which the Kalanja (fermented food) clause is an example, may well be called a condemnatory prohibition. The second class consists also of absolute prohibitions of things under certain E circumstances, as in the case of the Sorasi vessel. The third

class consists of prohibitions in relation to persons in a given situation, as in the case of the Prajapati vow. The fourth class restricts the scope of action of persons engaged in fulfilling an injunction, as regards the time, place or manner of carrying out F the substantive element of the injunction.

12. Thus we see that in the Mimansa system as regards negative injunctions (such as the one contained in the proviso to Section 6 of Land Acquisition Act) there is a much deeper discussion on the subject than that done by Western Jurists.

G The Western writers on the subject of interpretation (like

Maxwell, Craies, etc.) only say that ordinarily negative words are mandatory, but there is no deeper discussion on the subject, no classification of the kinds of negative injunctions and their effects.

....

13. In the Mimansa system illustrations of many principles A .. of interpretation are given in the form of maxims (nyayas). The negative injunction is illustrated by the Kalanj.a nyaya or Kalanja maxim.

14. The Kalanja maxim (na kalanjam bhakshayet) states B that 'a general condemnatory text is to be understood not only as prohibiting an act, but also the tendency, including the intention and attempt to do it.' It is thus mandatory.

--{

15. A plain reading of the proviso to Section 6 of the Land Acquisition Act shows that it is a general prohibition against c the whole world and not against a particular person. Hence the Kalanja maxim of the Mimansa system will in our opinion apply to the proviso to Section 6 . ....

16. Laughakshi Bhaskara, one of the great Mimansa D writers, taking the prohibitory text 'one is not to eat Kalanja or fermented/stale food' (na kalanjam bhakshayet), explains the - idiomatic force of the phrase (na bhakshayet). He explains that the suffix 'yat' means 'shall', and that the negative particle 'not' is to be taken as attached to the suffix 'yat' (shall), and not to E the idea of Kalanja eating. For if it be taken as attached to the

latter idea, then the sentence might mean 'you shall eat but not Kalanja'. In this case strictly there would be no prohibition. So

t ,.. he labours to demonstrate that the gist of the sentence is 'shall not' and therefore the object of it is to turn off from eating F ,- Kalanja (fermented/stale food). This may appear to be making a hair splitting distinction, but it is of great importance from the Mirnansa point of view because it indicates the mandatory .... nature of the negative injunction (nishedha). The explanation of a Nishedha Vidhi appears more clearly from Jaimini's Sutras on the Kalanja maxim.

G ")

The objector says :

In a case of prohibition, mentally you entertain the idea of the action prohibited~ for you have to discriminate H

A between the prohibited act and the negation of that act.

. The objector means to say 'what is the good of a ' ,

prohibition when it invites the imagination to gloat on the action prohibited'. The author answers :

B 'When an act is enjoined by the Shastra, it is for the purpose of the good of a person; if the good object be divorced from the meaning of the Shastra, then it becomes a case of transgressing it.'

c The meaning of this is:

'In a case of prohibition you must take it that not only is the particular external act prohibited, but the very intention of it is also prohibited:'

~ D Roughly speaking, the principle Jaid down is this :

I ,,_

'In a case of prohibition one should abstain from the very idea of the act prohibited, and there ought to be no - evasion of the Vidhi in any way.'

E Thus, this class of Nishedha Vidhis is to be . interpreted most comprehensively and as mandatory.

17. In view of the above discussion, it is evident that the .. proviso to S.ection 6 of the Land Acquisition Act is totally . . ... ' F mandatory a.n~. bears no exceptions. -,

18. In fact, a Constitution bench decision of this Court in Padma- SundaFa Rao (Dead) and Others vs. State of T.N. And Others (2002) 3 SCC 533 is clearly in support of the ?

G submission of the learned counsel for the appellants that the proviso to Section 6 is mandatory, and hence the Notification under Section 6 dated 30.10.2006 is time barred. In our

opinion, when the language of the Statute is plain and clear then the litera~ rule of interpretation has to be applied and there is

H ordinarily no scope for consideration of equity, public interest

or seeking the intention of the legislature. It is only when the A language of the Statute is not clear or ambiguous or there is some conflict etc. or the plain language leads to some absurdity that one can depart from the literal rule of interpretation.

19. A perusal of the proviso to Section 6 shows that the B language of the proviso is clear. Hence the literal rule of interpretation must be applied to it. When there is a conflict between the law and equity it is the law which must prevail. As stated in the Latin Maxim 'Dura Lex Sed Lex' which means "the law is hard but it is the law". c

20. Learned Attorney General appearing for the respondents submitted that the judgment of the High Court dated 20.1.2004 permitted the authorities to issue a second - Section 6 Notification even beyond the time provided by the proviso to Section 6 of the Act. He has invited our intention to D paragraphs 2 and 3 of the said judgment which reads:-

"2. Having gone through the record of the petition and the file which is made available to us by Mr. Patil, with respect to the acquisition of lands of the Petitioners, we are of the E view that the Petitioners did not appear to have been afforded reasonable opportunity as is required under Section SA of the Land Acquisition Act, 1894. No reasons are insisted upon injustification of this conclusion which we have arrived at as declaration under Section 6 issued F concerning the lands of the Petitioner dated 29.8.2002 will

have to be set aside and the same is hereby quashed and set aside. The Petitioner need inspection of the record from the office of the Land Acquisition Officer, Mr. Patil, A.G.P. Assures that within one week from today, G inspection will be offered to the Petitioners.

Dr. Tulzapurkar states that the Petitioner will file their objections within two weeks thereafter.

3. All parties agree that hearing contemplated under H

A Section 5A by the Special Land Acquisition Officer should be completed within two months thereafter as far as possible. Dr. Tulzapurkar makes a statement on instructions from the Petitioner that the objections with respect to the period within which Section 6 notification B has to be issued from the date of Section 4 notification, ~- will not be raised by the Petitioner if the Petitioners are finally aggrieved by the 5A report and subsequent declaration under Section 6. Needless to say that the Special Land Acquisition Officer should pass a reasoned

J'. c Order when he considers the objections from the Petitioners. The entire proceeding will be based on Section 4 notice which has led to the present proceedings and that notice will continue to govern the acquisition of these lands." ...

21. In our opinion, there can be no estoppel against a ..

Statute. Since the Statute is very clear, the period of limitation provided in Clause (ii) of the proviso to Section 6 of the Act has to be followed, and concessions of the counsel can have no effect. As already stated above, the proviso is mandatory E in nature, and must operate with its full rigour vide Ashok Kumar vs. State of Haryana (2007). 3 SCC 4 70 (para 17).

22. Mr. Shekhar Naphade, learned senior counsel appearing for the State of Maharashtra then submitted that the F judgment dated 20.1.2004 in the earlier writ petition No. 9248/

2003 is res judicata and since the said judgment was not challenged before this Court, it had become final. He submitted that in the aforesaid judgment it had been clearly stated by the learned counsel for the petitioners on instructions from the

G petitioners that the objection with respect to the limitation period within which the second Section 6 Notification wi" be issued

~ will not be raised by the petitioners if the petitioners are finally aggrieved by the Section 5A report and subsequent declaration under Section 6 of the Act. Accordingly, he submitted that now

H no objection can be taken in the present proceedings urging

' ' the bar of limitation provided in clause (ii) to the proviso to A Section 6 of the Act.

1 '23. In this connection, we wish to state that no statement . or concession of a learned counsel can override a mandatory statutory provision.

24. Moreover, the observations in para 3 of the judgment

dated 20.1.2004 have to be regarded as per incuriam. In this connection we may refer to the decision of a three Judge Bench of this Court in the case of Babu Parasu Kaikadi (Dead) by Lrs. vs. Babu (Dead) through Lrs. (2004) 1 SCC 681 wherein c in paras 15 to 17 it has been observed as under:-

"15. In Halsbury's Laws of England, 4th Edn., Vol. 26 it is stated : -..

"A decision is given per incuriam when the Court has D

acted in ignorance of a previous deCision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords E decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a • statute or rule having statutory force."

16. In State of U.P. v. Synthetics and Chemicals Ltd. This -t-

' Court observed : (SCC pp. 162-63, para 40) F

"40. 'lncuria' literally means 'carelessness'. In practice per -

incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in iaw' is avoided and ignored G if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law."

17. In Govt. of A.P. v. B. Satyanarayana Rao it has been held as follows :(SCC p. 264, para 8)

"The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court

B or the superior court rendered on the same issue or where a court omits to cons_ider any statute while deciding that issue."

It may be seen from the judgment dated 20.1.2004 of the High Court that in the aforesaid judgment no specific reference has c been made to the limitation period prescribed in clause (ii) to proviso to Section 6 of the Act, though no doubt Section 6 has been generally referred to. Hence, in our opinion, the observations in paragraph 3 of the aforesaid judgment dated 20.1.2004 have to be construed as per incuriam.

25. In view of the aforesaid discussion, we allow this appeal and set aside the impugned judgment and order dated 21.01.2008. However, it is open to the respondent-State of Maharashtra to issue a fresh Notification under Section 4 of the

E Act and take proceedings in accordance with law thereafter.

Appeal allowed. No order as to the costs.

G.N.

Appeal allowed.

,,,_

l ~

;..