TaxTMI 
TaxTMI 
2017 (11) TMI 1938
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....a, Ms. Monika, Mr. Sukrit R. Kapoor, Ms. Nitya Madhusoodhanan, Mr. Muhammad Khan, Mr. R.V. Prabhat, Mr. Umar Hoda, Mr. Gaurav Goel, Mr. Siddhartha Chowdhury, Mr. Vishaal Maan, Mr. Satyawan Rathee, Mr. Abhishek Gupta, Mr. Keshav Ranjan, Mr. B.V. Balaram Das, ORDER 1. Leave granted. 2. The only issue involved in the present case is whether the provision of Section 24(1)(b) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the Act of 2013') is governed by the proviso to Sub-section (2) of Section 24 of the said Act or it has to be read as part of section 24(2). 3. For the purpose of Delhi Metro Railways, land acquisition was initiated by issuing a Notification on 04.06.2009 under Section 4 read with Section 17(1) and (4) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act of 1894'). 4. As per letter dated 16.6.2009, written by the appellant-Delhi Metro Rail Corporation Ltd. ('DMRC', for short) to the Land & Building Department of the Delhi Government, 80% of the land compensation amounting to Rs. 3,28,56,687.49p. (Rupees Three Crores, Twenty Eight Lakhs, Fifty-Six ....
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....is required to be paid under the Act of 2013. 6. On the other hand, learned counsel appearing on behalf of the landowners contended that the proviso to Section 24(2) has to be read as part of Section 24(1)(b) of the Act of 2013, and it cannot be read as part of Sub-Section (2) of Section 24, as legislature have carved out a different independent provision which would be applicable to an Award passed, as contemplated under Section 24(1)(b), and since in the instant case, the amount has not been deposited with respect to the majority of the land holdings in the account of the beneficiaries, the compensation becomes payable to all the beneficiaries under the Act of 2013. Reliance has been placed on the decision of this Court in Delhi Development Authority Vs. Sukhbir Singh & Ors., (2016) 16 SCC 258. 7. Section 24 of the Act of 2013 is extracted hereunder: "24.(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, - (a) Where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or ....
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....and object of provisos, and the manner in which they find their way into Acts of Parliament, I think your Lordships would be adopting a very dangerous and certainly unusual course if you were to import legislation from a proviso wholesale into the body of the statute, although I perfectly admit that there may be and are many cases in which the terms of an intelligible proviso may throw considerable light on the ambiguous import of the statutory words." And Lord Herschell in the same case said : "I decline to read into any enactment words which are not to be found there and which would alter its operative effect because of provisions to be found in any proviso," though he admitted that a proviso may be a useful guide in the selection of one or other of two possible constructions of words in the enactment or to show the scope of the latter in a doubtful case. In R. v. Dibdin [1910] P.57, 125 Moulton L.J. said: "The fallacy of the proposed method of interpretation is not far to seek. It sins against the fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. It treats it as if it were an independen....
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....y upon the application of the income to the said purposes outside the taxable territories. The application of the income in praesenti or in futuro for purposes in or outside the taxable territories, as the case may be, is the necessary condition for invoking either the substantive part of the clause or the proviso thereto." (c) In Kedarnath Jute Manufacturing Co. Ltd. v. The Commercial Tax Officer & Ors., AIR 1966 SC 12, this Court has discussed the purpose of the proviso thus : "8. Section 5(2)(a)(ii) of the Act in effect exempts a specified turnover of a dealer from sales tax. The provision prescribing the exemption shall, therefore, be strictly construed. The substantive clause gives the exemption and the proviso qualifies the substantive clause. In effect, the proviso says that part of the turnover of the selling dealer covered by the terms of sub-cl. (ii) will be exempted provided a declaration in the form prescribed is furnished. To put it in other words, a dealer cannot get the exemption unless he furnishes the declaration in the prescribed form. It is well settled that "the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is....
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....le that the proviso must always be restricted to the ambit of the main enactment. Occasionally in a statute, a proviso is unrelated to the subject-matter of the preceding section, of contains matters extraneous to that section, and it may have then to be interpreted as a substantive provision, dealing independently with the matter specified therein, and not as qualifying the main or the preceding section." (e) In Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596, this Court has discussed the object of the proviso and how it is to be interpreted thus: "9. The law with regard to provisos is well-settled and well-understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as savings clauses, in which cases they will not be construed as controlled by the section. The proviso which has been added to s. 50 of the Act deals with the effect of repeal. The substantive part of the section repealed two Acts whic....
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....f the proviso. (b) A proviso must be construed withreference to the preceding parts of the clause to which it is appended. (c) Where the proviso is directlyrepugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the latter intention of the makers. (d) Where the section is doubtful, aproviso may be used as a guide to its interpretation: but when it is clear, a proviso cannot imply the existence of words of which there is no trace in the section. (e) The proviso is subordinate to the mainsection. (f) A proviso does not enlarge anenactment except for compelling reasons. (g) Sometimes an unnecessary proviso is inserted by way of abundant caution. (h) A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail. (i) When a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one. (j) A proviso may sometimes contain a substantive provision. 31. In the case of Local Government Boardv. South Stoneham Union, 1909 AC 57, Lord Macnaghten made the following observa....
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....onsistent meaning, if possible, given to every part of it. The words are:... 'provided that such licence shall be granted only for premises situate in the ward or district electoral division in which such increase in population has taken place...' There seems to be no doubt that the words "such increase in population" refer to the increase of not less than 25 percent of the population mentioned in the opening words of the section." 36. While interpreting a proviso care mustbe taken that it is used to remove special cases from the general enactment and provide for them separately. 37. In short, generally speaking, aproviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself. 38. Apart from the authorities referred toabove, this Court has in a long course of decisions explained and adumbrated the various shades, aspects, and elements of a proviso. In State of Rajasthan v. Leela Jain AIR 1965 SC 1296, the following observations....
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....sion is called proviso, it is really a separate provision and the socalled proviso has substantially altered the main section." 43. We need not multiply authorities afterauthorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes: (1) qualifying or excepting certainprovisions from the main enactment: (2) it may entirely change the veryconcept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable: (3) it may be so embedded in the Actitself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and 4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision. 44. These seem to be by and large the main purport and parameters of a proviso." (g) In Dibyasingh Malana v. State ofOrissa & Ors. AIR 1989 SC 1737, this Court considered effect of proviso and observed: "7. On a plain reading of the definition of the term "family" in Section 3....
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....owever provides that "AN APPLICATION UNDER CLAUSE (a) SHALL NOT BE ENTERTAINED IN THE CASE OF ANY RESIDENTIAL BUILDING FOR OCCUPATION FOR BUSINESS PURPOSES." Thus, if an application is made by the landlord for eviction of the tenant on the ground that the building in occupation of that tenant which was used exclusively for residential purposes was required for business purposes or for any other commercial activity, it would not be a ground within the meaning of Section 21(1) of the new Act for the eviction of the tenant and the application will not be entertained. This we say because the normal function of a PROVISO is to except something out of the enactment or to qualify something enacted therein which but for the PROVISO would be within the purview of the enactment. (See; Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer, AIR 1966 SC 12). Since the natural presumption is that but for the PROVISO, the enacting part of the section would have included the subject-matter of the PROVISO, the enacting part has to be given such a construction which would make the exceptions carved out by the PROVISO necessary and a construction which would make the exceptions unnecessary ....
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....ls (P) Ltd., (1994) 5 SCC 672] "This word (proviso) hath diverse operations. Sometime it worketh a qualification or limitation; sometime a condition; and sometime a covenant." (Coke upon Littleton, 18th Edn., p. 146.) "If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails.... But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole" (per Lord Wrenbury in Forbes v. Git, (1922) AC 256). A statutory proviso "is something engrafted on a preceding enactment" (R. v. Taunton, St. James, (1829) 9 B & C 831 ER p. 311). "The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances" (per Lord Esher in Barker, Re, (1890) 25 QBD 285). 10. ........... 11. The above position was noted in AliM.K. v. State of Kerala, (2003) 11 SCC 632." (emphasis supplied) (j) In Romesh Kumar Sharma v. Union of India & Ors., (....
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.... only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole." (per Lord Wrenbury in Forbes v. Git, (1922) 1 AC 256). 11. A statutory proviso 'is somethingengrafted on a preceding enactment' (R. v. Taunton St James, (1829) 9 B&C 831 ER p. 311). 'The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances.' (Per Lord Esher in Barker, Re.., (1890) 25 QBD 285). 12. A proviso to a section cannot be usedto import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso (see Jennings v. Kelly, 1940 AC 206)." (k) In Nagar Palika Nigam v. Krishi Upaj Mandi Samiti & Ors., AIR 2009 SC 187, this Court has observed thus : "8. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey 1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverj....
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....nly 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 can not 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. 10. It is apparent from ....
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....een 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 ....
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....oceedings 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 app....
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....ns where either no award has been made under the Land Acquisition Act, in which case the more beneficial provisions of the 2013 Act relating to determination of compensation shall apply, or where an award has been made under Section 11, land acquisition proceedings shall continue under the provisions of the Land Acquisition Act as if the said Act had not been repealed. 12. To Section 24(1)(b) an important exception is carved out by Section 24(2). The necessary ingredients of Section 24(2) are as follows: (a) Section 24(2) begins with a nonobstante clause keeping sub-section (1) out of harm's way; (b) For it to apply, land acquisitionproceedings should have been initiated under the Land Acquisition Act; (c) Also, an award under Section 11 shouldhave been made 5 years or more prior to the commencement of the 2013 Act; (d) Physical possession of the land, ifnot taken, or compensation, if not paid, are fatal to the land acquisition proceeding that had been initiated under the Land Acquisition Act; (e) The fatality is pronounced by statingthat the said proceedings shall be deemed to have lapsed, and the appropriate Government, if it so chooses, shall, in this game of snakes ....