Full Judgment Text
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PETITIONER:
UNION OF INDIA AND ORS
Vs.
RESPONDENT:
FILIP TIAGO DE GAMA OF VEDEM VASCO DE GAMA
DATE OF JUDGMENT30/11/1989
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
AHMADI, A.M. (J)
CITATION:
1990 AIR 981 1989 SCR Supl. (2) 336
1990 SCC (1) 277 JT 1989 (4) 529
1989 SCALE (2)1226
CITATOR INFO :
D 1991 SC2027 (9)
ACT:
Land Acquisition Act, 1894 Sections 4, 6, 23, 23(1A)
and 30-A waras made between April 30, 1982 and September 24,
1984-Entitlement to higher Solatium and additional amount
under Section 23( IA)--Consideration of.
HEADNOTE:
By a notification issued under Section 4 of the Land
Acquisition Act and published in the Government Gazette on
26.10.1967, the State Government declared its intention to
acquire the land of the Respondent on 23.2.1968. A notifica-
tion under section 6 of the Act was published in the Gazette
and on 5.3.1969. The Land Acquisition Officer declared
award, determining compensation at the rate of 4 paise per
square meter with solatium at 15 per cent. At the instance
of the respondent--claimant, a reference under section 18 of
the Act was made to the Distt. judge on May 28, 1985. The
Civil Court awarded compensation at Rs.3 per square meter
and also awarded solatium at 15 per cent and interest at 6
per cent from the date of taking possession of the land by
the State till payment of compensation. Being dissatisfied,
the Respondent preferred an appeal to the High Court seeking
enhancement both of compensation and solatium at the rate of
30 per cent.
The High Court allowed the appeal, and granted three
reliefs viz; (1) Additional amount at the rate of 12 per
cent of the market value from the date of the notification
under section 4 till the date of taking over possession; (2)
interest at the rate of 9 percent for the first year from
the date of taking possession and 15 per cent for the subse-
quent. years and (3) Solatium at 30 per cent on the market
value.
The appellant has thus filed the instant appeal after
obtaining Special Leave.
There is no grievance as regards the interest awarded.
The challenge relates to the grant of enhanced solatium and
the additional amount of compensation. Appellants’ conten-
tion is that sections 30(2) and 23(2) are not at all at-
tracted and the claim of the Respondent on the said two
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counts is not sustainable.
337
Partly allowing the appeal, this Court,
HELD: Section 30(2) provides that the amended provisions
of section 23(2) shall apply, and shall be deemed to have
applied, also to, and in relation to, any award made by the
Collector or Court between 30th April 1982 and 24th Septem-
ber 1984, or to an appellate order therefrom passed by the
High Court or Supreme Court. The purpose of these provisions
seems to be that the awards made in that interregnum must
get higher solatium in as much as to awards made subsequent
thereto. [343G-H]
If there is obvious anamoly in the application of law,
the Court could shape the law to remove the anamoly. The
Legislatures do not always deal with specific controversies
which the Court decide. They incorporate general purpose
behind the statutory words and it is for the Courts to
decide specific cases. If a given case is well within the
general purpose of the legislature but not within the liter-
al meaning of the statute, then the Court must strike the
balance. So construing the Court held that benefit of higher
solatium under section 23(2) should be available also to the
present case. [344A-C]
In the instant case, on October 26, 1967, the notifica-
tion under section 4 was issued. On March 5, 1969, the
Collector made the award. The result is that on April 30,
1982 there was no proceeding pending before the Collector.
Therefore Section 30, sub-section (1)(a) is not attracted to
the case. Since the proceedings for acquisition commenced
before 30th April 1982 Section 30, sub-section (1)(b) is
also not applicable to the case. The case is therefore
really gone by both ways. The claimant is therefore not
entitled to additional amount provided under Section 23(IA).
[346E-F]
The purpose of incorporating Transitional Provisions 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. [343A]
Kamalajammaniavaru v. Special Land Acquisition Offi-
cer, [1985] 1 SCC 582; Bhag Singh v. Union Territory of
Chandigarh, [1985] 3 SCC 737; State of Punjab v. Mohinder
Singh, [1986] 1 SCC 365; Union of India v. Raghubir Singh,
[1989] 2 SCC 754; Towne v. Eisher, 245, U.S. 418,425, 1918;
Lenigh Valley Coal Co. v. Yensavage, 218 F.R. 547 at 553;
Mahadeolal Kanodia v. The Administrator General of West
Bengal, [1960] 3 SCR 578, referred to.
338
Special Land Acauisition Officer, Dandeli v. Soma Gopal
Gowda, AIR 1986 Karnataka 179 at 183 (FB); Jaiwant Laxman P.
Sardesai etc. etc. v. Government of Goa Daman & Diu & Anr.,
AIR 1987 Bom. 214 at 217 (FB), overruled.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4802 of
1989.
From the Judgment and Order dated 7.9.1987 of the Bombay
High Court in First Appeal No. 24 of 1986.
Anil Dev Singh, C. Ramesh, C.V.S. Rao and P. Parmeshwa-
ran for the Appellants.
S.K. Mehta, Dhruv Mehta, Aman Vachher, Atul Nanda and
S.M. Satin for the Respondent.
The Judgment of the Court was delivered by
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K. JAGANNATHA SHETrY, J. Special Leave granted.
This case raises yet another variant of a vexed ques-
tion. Does Section 23(2) of the Land Acquisition Act, 1984
(as amended by Act 68 of 1984) providing for higher solatium
proprio rigore apply to award made subsequent to 24 Septem-
ber 1984 even though the acquisition commenced prior to the
said date. The appeal also raises another important question
as to the applicability of section 23(IA) providing addi-
tional amount of compensation to award made in such acquisi-
tion proceedings.
The facts are not in dispute and may be stated as follows:
By notification under section 4 of the Land Acquisition
Act, 1894 (the ’Act’) published in the Government Gazette on
26 October 1967, the State Government declared its intention
to acquire the land belonging to the respondent for estab-
lishing Naval Air Station Dabolim. On 23 February 1968,
notification under section 6 was published in the Gazette.
On 5 March 1969 the Land Acquisition Officer declared award
determining compensation at the rate of 40 paise per square
meter with solatium at 15 per cent.
The claimant had sought reference under section 18 of
the Act and reference was duly made to the Civil Court
(District Judge). On
339
28th May 1985, the Court after investigation of the claim
awarded compensation at Rs.3 per square meter. The Court
also awarded solatium at 15 per cent and interest at 6 per
cent from the date of taking possession till payment of
compensation. Not being satisfied, the claimant preferred an
appeal to the High Court seeking further enhancement of
compensation and also solatium at 30 per cent. This claim
was apparently based on the new provisions introduced by the
Amending Act 68 of 1984. The High Court accepted the appeal
and granted the reliefs in the following terms:
"The impugned award dated 28th May, 1986, is
modified. The appellant is entitled to the
added benefits. In that he shall be entitled
to have the compensation at the rate of 12% of
the market value from the date of section 4
notification till the date of possession or
the date of award, whichever is earlier. The
appellant is further entitled to interest at
the rate of 9% for the first year from the
date of taking over possession and thereafter
at the rate of 15% per annum till the date of
deposit or payment as the case may be. The
appellant shall be entitled to further 15 per
cent solatium in addition to the 15 per cent
already granted to him. To the extent indicat-
ed above, the award shall stand modified."
The High Court has thus granted three more reliefs to
the claimant: (i) Additional amount at the rate of 12 per
cent of the market value from the date of notification under
section 4 till the date of taking over possession; (ii)
interest at the rare of 9% for the first year from the date
of taking possession and 15 per cent for the subsequent
years; and (iii) solatium at 30 per cent on the market
value.
There is no grievance made in this appeal as to the
second of the reliefs granted to the claimant. The claimant
is entitled to the interest under section 28 of the Act. The
challenge is only against the first and the third of the
said reliefs. They were evidently given under the amended
sections 23(IA) and 23(2) of the Act.
We will first take up the question of solatium. On 30
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April 1982, the corresponding Bill of the Amending Act 68 of
1984, namely, Land Acquisition (Amendment) Bill 1982, was
introduced in Parliament. On 24th September 1984 it became
law as the Land Acquisition (Amendment) Act, 68 of 1984,
when it received assent of the President. Before the amend-
ment, Section 23(2) provided solatium at 15
340
per cent on the market value. After amendment by Act 68 of
1984 solatium was raised to 30 per cent on the market val-
ued. Section 23(2) now reads:
"23(2) In addition to the market value of the
land, as above provided, the Court shall in
every case award a sum of (thirty per centum)
on such market value, in consideration of the
compulsory nature of the acquisition."
The question herein is whether the higher solatium is
attracted to the present case. Section 23(2) has been given
limited retrospectivity by supplying transitional provisions
under section 30(2). Section 30(2) reads:
"30. Transitional provisions:
(1) xxxxxx xxxxxxx
xxxxxxxx
(2) The provisions of sub-section (2) of
Section 23 of the principal Act, as amended by
clause (b) of Section 15 and Section 18 of
this Act respectively, shall apply, and shall
be deemed to have applied, also to, and in
relation to, any award made by the Collector
or Court or to any order passed by the High
Court or Supreme Court in appeal against any
such award under the provisions of the princi-
pal Act after the 30th day of April, 1982 (the
date of introduction of the Land
Acquisition (Amendment) Bill, 1984, in the
House of the People) and before the commence-
ment of this Act."
The scope of retrospective operation of Section 23(2)
was first explained in Kamalajammaniavaru v. Special Land
Acquisition Officer, [1985] 1 SCC 582. A two Judge Bench
held that the award of 30 per cent solatium will apply only
where the award appealed against was made by the Collector
of Court during the period between 30 April 1982 and 24
September 1984. This decision was rendered on 14 February
1985. Shortly thereafter there was another decision by a
three-Judge Bench in Bhag Singh v. Union Territory of Chand-
igarh, [1985] 3 SCC 737. There a contrary view was ex-
pressed. It was held that even if an award is made by the
Collector or Court on or before 30 April, 1982, and an
appeal against such award is pending before the High Court
or the Supreme Court on 30 April 1982 or is filed subsequent
to that date, 30 per cent solatium under section 23(2)
should be
341
allowed. In taking that view, Bhag Singh overruled Kamala-
jammannavaru and approved of the opinion expressed in anoth-
er three-Judge Bench in State of Punjab v. Mohinder Singh,
[1986] 1 SCC 365. But the recent Constitution Bench in Union
of India v. Raghubir Singh, [1989] 2 SCC 754 has overruled
Bhag Singh and Mohinder Singh and reiterated the view ex-
pressed in Kamalajammanaivaru. Pathak, CJ., speaking for the
Court in Raghubir Singh case rounded off his discussion thus
(at 782):
"We think that what Parliament intends to say
is that the benefit of section 30(2) will be
available to an award by the Collector or the
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Court made between the aforesaid two dates or
to an appellate order of the High Court or of
the Supreme Court which arises out of an award
of the Collector or the Court made between the
said two dates. The word ’or’ is used with
reference to the stage at which the proceeding
rests at the time when the benefit under
section 30(2) is sought to be extended. If the
proceeding has terminated with the award of
the Collector or of the Court made between the
aforesaid two dates, the benefit of section
30(2) will be applied to such award made
between the aforesaid two dates. If the pro-
ceeding has passed to the stage of appeal
before the High Court or Supreme Court, it is
at that stage when the benefit of section
30(2) will be applied. But in every case, the
award of the Collector or of the Court must
have been made between April 30, 1982 and
September 24, 1984."
In stating thus, the decision has set at rest the con-
troversy as to entitlement of higher solatium to cases
pending as on the date of commencement of the Amending Act.
Section 23(2) was held to apply to awards made in between 30
April 1982 and 24 September 1984. Obviously they must be
awards in acquisition commenced prior to the said dates. The
award may be of the Collector or Court. One or the other
must receive thirty per cent solatium on the market value of
the land. More important, that the higher solatium could
also be given by the High Court or the Supreme Court in
appeals against such award.
But these decisions do not solve the problem presented
here. The award with which we are concerned does not fall
within the interregnum i.e. between 30 April 1982 and 24
September 1984. To repeat the facts: The acquisition com-
menced on 26 October 1967 when the notification under sec-
tion 4(1) of the Act was published. On 5 March
342
1969 the Collector made the award and on 28 May 1985 the
reference court made the award. Both the awards, thus appar-
ently fall outside the period prescribed under section
30(2).
Counsel for the appellant on the aforesaid facts rules
out the applicability of section 30(2) in the first place.
Secondly, he also ruled out the applicability of section
23(2). The first contention was based on the plain terms of
Section 30(2) and the second on the ground that section
23(2) with its isolated splendour is not retrospective in
operation. He thus submitted that the claimant’s case could
not be saved for higher solatium either under Transitional
Provisions or by amended Section 23(2) of the Act and it was
gone both ways.
This submission reminds us of the words of Shakespeare
in the Merchant of Venice, where Luncelot tells Jessica:
"Truely then I fear you are damned both by
father and mother. When I shun scylla your
father, I fail into charybdis your mother.
Well, you are gone both ways." (The Merchant
of Venice 3.5).
The submission that Section 23(2) by itself has no
retrospective operation seems to be justified. It is signif-
icant to note that section 23(2) forms part of a scheme of
determining compensation for land acquired under the Act. It
provides 30 per cent solatium on the market value of the
land in consideration of the compulsory nature of the acqui-
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sition. It thus operates on the market value of the land
acquired. The market value of the land is required to be
determined at the date of publication of the notification
under section 4(1). It cannot be determined with reference
to any other date. That has been expressly provided for
under section 23(1) of the Act. In the instant case, section
4(1) notification was published on 20 October 1967. The
Amending Act 68 of 1984 came into force on 24 September
1984. The amended section 23(2) by itself is not retrospec-
tive in operation. It can not proprio vigore apply to awards
in respect of acquisition proceedings commenced prior to 24
September 1984. If, therefore, section 30(2) does not cover
the present case, then amended Section 23(2) has no part to
play.
This in effect is the result of the plain meaning rule
of interpreting Section 30(2) of the Amending Act 68 of
1984. But then, it would seem very odd indeed and anomalous
too to exclude the present case from the operation of sec-
tion 30(2). Section 30(2) is the Transitional
343
Provisions. The purpose of incorporating Transitional Provi-
sions in any Act or amendment is to clarify as to when and
how the operative parts of the enactments are to take ef-
fect. 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 (14
Edition, p. 442) outlines the purpose of such provisions:
"189. Transitional Provisions
Where an Act contains substantive, amending or
repealing enactments, it commonly also in-
cludes 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 tran-
sitional arrangements as, in the light of the
interpretative criteria, it considers Parlia-
ment 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
or purpose. A statute is neither a literary text nor a
devine revelation "Words are certainly not crystals, trans-
parent and unchanged" as Mr. Justice Holmes has wisely and
properly warned. (Town v. Eisher, 245, U.S. 418, 425, 1918).
Learned Hand, J., was equally emphatic when he said. "Stat-
utes should be construed, not as theorems of Euclid, but
with some imagination of the purposes which lie behind
them." (Lenigh Valley Coal Co. v. Yensavage, 2 18 F.R. 547
at 553.)
Section 30(2) provides that amended provisions of Sec-
tion 23(2) shall apply, and shall be deemed to have applied,
also to, and in relation to, any award made by the collector
or Court between 30 April 1982 and 24 September 1984, or to
an appellate order therefrom passed by the High Court or
Supreme Court. The purpose of these provisions seems to be
that the awards made in that interregnum must get higher
solatium in as much as to awards made subsequent to 24
September 1984. Perhaps it was thought that awards made
after the commencement of the Amending Act 68 of 1984 would
be taken care of by the amended Section 23(2). The case like
the present one seems -to have escaped attention by innocent
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lack of due care in the drafting.
344
The result would be an obvious anomaly as will be indicated
presently. If there is obvious anomaly in the application of
law the Court could shape the law to remove the anomaly. If
the strict grammatical interpretation gives rise to absurd-
ity or inconsistency, the Court could discard such interpre-
tation and adopt an interpretation which will give effect to
the purpose of the legislature. That could be done, if
necessary even by modification of the language used. [See:
Mahadeolal Kanodia v. The Administrator General of West
Bengal, [1960] 3 SCR 5/8]. The legislators do not always
deal with specific controversies which the Court decide.
They incorporate general purpose behind the statutory words
and it is for the courts to decide specific cases. If a
given case is well within the general purpose of the legis-
lature but not within the literal meaning of the statute,
then the court must strike the balance.
The criticism that the literal interpretation of Section
30(2), if adhered to would lead to unjust result seems to be
justified. Take for example; two acquisition proceedings of
two adjacent pieces of land, required for the same public
purpose. Let us say that they were initiated on the same
day--a day sometime prior to 30 April 1982. In one of them
the award of the Collector is made on 23 September 1984 and
in the other on 25 September 1984. Under the terms of Sec-
tion 30(2) the benefit of higher solatium is available to
the first award and not to the second. Take another example;
the proceedings of acquisition initiated, say, in the year
1960 in which award was made on 1 May 1982. Then the amended
Section 23(2) shall apply and higher solatium is entitled.
But in an acquisition initiated on 23 September 1984, and
award made in the year 1989 the higher solatium is ruled
out. This is the intrinsic illogicality if the award made
after 24 September 1984, is not given higher solatium. Such
a construction of Section 30(2) would be vulnerable to
attack under Article 14 of the Constitution and it should be
avoided. We, therefore, hold that benefit of higher solatium
under section 23(2) should be available also to the present
case. This would be the only reasonable view to be taken in
the circumstances of the case and in the light of the pur-
pose of Section 30(2). In this view of the matter, the
higher solutium allowed by the High Court is kept undis-
turbed.
This takes us to the second question which we have
formulated at the beginning of the judgment: Whether the
claimant is entitled to additional amount of compensation
provided under Section 23(IA) of the Act? This is equally a
fundamental question and seemingly not covered by any of the
previous decisions of this Court.
345
Section 23(IA) reads as follows:
"In addition to the market value of the land,
as above provided, the court shall in every
case award an amount calculated at the rate of
twelve per centum per annum on such market
value for the period commencing on and from
the date of the publication of the notifica-
tion under Section 4, sub-section (!), in
respect of such land to the date of award of
the Collector or the date of taking possession
of the land, whichever is earlier.
Explanation: In computing the period
referred to in this sub-section any period or
periods during which the proceedings for the
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aquisition of the land were held up on account
of any stay or injunction by the order of any
court shall be excluded."
The objective words used in this sub-section are similar to
those that are used in Section 23(2). It enjoins a duty on
the Court to award the additional amount at twelve per cent
on the market value of the land for the period prescribed
thereunder. But this again is a part of the scheme for
determining compensation under Section 23(1) of the Act. It
also operates on the market value of the land acquired. It
is plainly and distinctly prospective in its operation since
market value has to be determined as on the date of publica-
tion of notification under section 4(1). But the legislature
has given new starting point for operation of section 23(IA)
for certain cases. That will be found from Section 30 sub-
section l(a) and (b) of the Transitional Provisions. They
read as follows:
Section 30: Transitional Provisions:
(1) The provision of sub-section (IA) of
Section 23 of the principal Act, as inserted
clause (a) of section 15 of this Act, shall
apply, and shall be deemed to have applied,
also to, and in relation to:
(a) every proceeding for the acquisition of
any land under the principal Act pending on
the 30th day of April 1982 the date of intro-
duction of the Land Acquisition (Amendment)
Bill 1982 [in the House of the People] in
which no award has been made by the Collector
before that date.
346
(b) every proceeding for the acquisition of
any land under the principal Act commenced
after that date, whether or not an award has
been made by the Collector before the date of
commencement of this Act."
Entitlement of additional amount provided under Section
23(1A) depends upon pendency of acquisition proceedings as
on 30 April 1982 or commencement of acquisition proceedings
after that date. Section 30 sub-section (1)(a) provides that
additional amount provided under Section 23(IA) shall be
applicable to acquisition proceedings pending before the
Collector as on 30 April 1982 in which he has not made the
award before that date. If the Collector has made the award
before that date then, that additional amount cannot be
awarded. Section 30 sub-section (1)(b) provides that section
23(l-A) shall be applicable to every acquisition proceedings
commenced after 30 April 1982 irrespective of the fact
whether the Collector has made an award or not before 24
September 1984. The final point to note is that Section 30
sub-section (1) does not refer to Court award and the Court
award is used only in section 30 sub-section (2).
In the case before us, on 26 October 1967, the notifica-
tion under section 4 was issued. On 5 March 1969 the Collec-
tor made the award. The result is that on 30 April 1982
there was no proceedings pending before the Collector.
Therefore, section 30 sub-section (1)(a) is not attracted to
the case. Since the proceedings for acquisition commenced
before 30 April 1982, section 30 sub-section (1)(b) is also
not applicable to the case. Here, the case is really gone by
both ways. It cannot be saved from Scylla or Charybdis. The
claimant is, therefore, not entitled to additional amount
provided under Section 23( I-A).
Before we part with the case, it is important that we
should refer to two authorities of the High Courts which
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have taken contrary view.
As to the applicability of Section 23(IA) to pending
cases, the Karnataka High Court in Special Land Acquisition
Officer, Dandeli v. Soma Gopal Gowda, AIR 1986 Karnataka 179
at 183 (FB) has expressed the view that for giving an addi-
tional amount calculated at the rate of 12 per cent per
annum on the market value of the land, no distinction could
be made respecting lands acquired before or after the coming
into force of the Amending Act. In all pending cases whether
on reference or on appeal, the Court is required to apply
the provisions of Section ’23(1A) in determining compensa-
tion payable to claimants. For this conclusion the Court
relied upon the judgment of this Court in
347
Bhag Singh case. The Bombay High Court in Jaiwant Laxman P.
Sardesai etc. etc. v. Government of Goa, Daman and Diu and
Ant., AIR 1987 Bom 214 at 217 (FB) has also accepted a
similar line of reasoning. In fact the reasons are so much
similar, the cases look like twins.
Both the High Courts have focussed attention on the
terms and phraseology used in Section 30 sub-section (1)
namely," ..... shall apply, and shall be deemed to have
applied, also to, and in relation has also been proceedings
for acquisition ..... ". The conclusion has also been
rested on the mandatory words of Section 23(lA). It was said
that it enjoins a duty on the court to award the amount in
every case and that mandate of the legislature could not be
ignored. The decision of this Court in Bhag Singh appears to
be the single motive force guiding the approach and reaching
the conclusion. But it may be noted that the aforesaid
phraseology used in Section 30 sub-section (1) is quite
similar to that used in Section 30 sub-section (2). The
scope of those words has already been examined and no more
need to be stated in that regard since Bhag Singh has been
overruled in Raghubir Singh. The view taken by the High
Courts of Karnataka and Bombay therefore, could no longer be
cosidered as good law and the said decisions are accordingly
overruled.
In the result, the appeal is allowed in part. The judg-
ment of the High Court is modified and the compensation
award under Section 23(IA) is deleted. The judgment and
decree in other respects are kept undisturbed.
’
In the circumstances of the case, we make no order as to
costs.
Y. Lal Appeal
allowed.
348