Tuesday 27 January 2015

Landmark judgment on ambit and scope of an amending act and its retrospective option



Further in the case of Shyam Sunder v. Ram Kumar &
Anr.14, the Constitution Bench of this Court held thus:
“26.
In Hitendra
Vishnu
Tahkur
&
ors. vs. State
of
Maharashtra
&
ors.
1995CriLJ517 this Court laid down the
ambit and scope of an amending act and its
retrospective option as follows:
‘(i)A
statute
which
affects
substantive rights is presumed to be
prospective in operation unless made
retrospective, either expressly or by
necessary
intendment,
whereas
a
statute
which
merely
affects
procedure,
unless
such
as
construction is textually impossible,
is presumed to be retrospective in
its application, should not be given
an extended meaning and should be
strictly confined to its clearly
defined limits.
(ii) Law relating to forum and
limitation is procedural in nature,
whereas law relating to right of
action and right of appeal even
though remedial is substantive in
14
(2001)8 SCC 24
Page 24
25
nature.
(iii) Every litigant has a vested
right in substantive law but no such
right exists in procedural law.
(iv) a procedural statute should not
generally
speaking
be
applied
retrospective where the result would
be to create new disabilities or
obligations or to impose new duties
in respect of of transactions already
accomplished.
(v) a statute which not only changes
the procedure but also creates new
rights and liabilities shall be
construed
to
be
prospective
in
operation unless otherwise provided,
either expressly or by necessary
implication.’

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. No. 8 of 2014
IN
CIVIL APPEAL NO.7424 OF 2013
KARNAIL KAUR & ORS.
.........APPELLANTS
Vs.
STATE OF PUNJAB & ORS.
Dated;January 22, 2015




The abovementioned applications are filed by the
appellants for allowing the concerned appeals in terms
of Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (in short ‘the Act of 2013’).
The
appellant-land
owners
have
come
to
this
Court
questioning the correctness of the common judgment and
order dated 19.04.2011 passed by the High Court of
Punjab & Haryana at Chandigarh in Civil Writ Petition
No.5512 of 2001 and batch petitions by which the High
Court
dismissed
the
Writ
Petitions
filed
by
the
appellants herein.
2.
As
all
the
appeals
are
identical
involving
similar question of law, for the sake of brevity we
Page 2
3
will discuss the facts of the case in C.A. No. 7424 of
2013 which are stated hereunder:
The appellants are original residents and have
their houses along with their land in village-Sohana,
Tehsil Mohali in District Roop Nagar (Punjab). The
State of Punjab has framed a special Act known as ‘The
Punjab Regional and Town Planning and Development Act,
1995’ (hereinafter referred to as ‘the Act of 1995’)
to construct a residential urban estate with the main
object
to
undertake
urban
development
and
housing
programme. On 21.02.2000, the State of Punjab through
Secretary,
Punjab
respondent
No.1
Housing
herein,
and
issued
Development,
notification
the
under
Section 4 of the Land Acquisition Act, 1894 (for short
‘the
L.A.
Act’)
for
the
purpose
of
setting
up
a
residential urban estate in the area of revenue estate
of village Mauli Baidwan, SAS Nagar (Mohali). The said
acquisition
notification
covered
a
total
extent
of
1264.84 acres of land in four villages –Mauli Baidwan,
Sohana,
district
Raipur
of
Khurd
Punjab
out
and
of
Lakhnausr
which
the
in
Roopnagar
land
of
the
appellants in the present batch of appeals constituted
Page 3
4
102 acres of land in small pockets of the said 1264.84
acres. Objections were raised against the same by the
appellants under Section 5A alleging that in the year
1996 the Punjab State Government had framed a scheme
called
“Farmers
Friendly
and
Land
Pooling
Exchange
Scheme”, and as per the contents of the said Scheme,
for every acre of land transferred by the land owners
to Punjab Urban Development Authority (PUDA), the land
owners will be given back approximately 1000 square
yards
after
advised
not
appellants
development
to
sell
objected
to
and
their
the
the
land
land.
said
owners
Therefore,
notification
were
the
under
Section 4 of the L.A. Act, as the same was violative
of the principles of promissory estoppel. The said
objections were not decided by the Land Acquisition
Officer. Thereafter, on 02.02.2001, the notification
under Section 6 of the L.A. Act was published.
3.
The appellants filed writ petition No. 5512 of
2001 before the High Court of Punjab and Haryana at
Chandigarh alleging inter alia that respondent no. 1
has started acquiring the land without complying with
Page 4
5
the provisions and in utter violation of the Act of
1995 & therefore the acquisition proceedings are bad
in law and liable to be quashed.
4.
The
High
Court
vide
order
dated
19.04.2011
dismissed writ petition No. 5512 of 2001 along with
batch matters in CWP No. 4981 of 2001. Hence, the
present appeal.
5.
It
has
been
contended
by
the
learned
senior
counsel for the appellants that the L.A. Act has been
replaced by the Act of 2013, which has come into force
w.e.f. 01.01.2014 and that Section 24(2) of the Act of
2013 provides that where an award under Section 11 of
the L.A. Act has been made five years or more prior to
the commencement of the Act of 2013 but the physical
possession
of
the
land
has
not
been
taken
or
the
compensation has not been paid, the said proceedings
shall be deemed to have lapsed. In the present case,
the proceedings under the L.A. Act have lapsed for
both the above said reasons because the case of the
appellants satisfy both the conditions as referred to
in Section 24(2) of the Act of 2013. The award under
Page 5
6
Section 11 of the L.A. Act in respect of the land in
dispute
was
passed
on
17.05.2001.
It
is
further
contended that not only the possession of the said
land is still with the appellants but they have also
not
been
paid
any
compensation.
Therefore,
the
acquisition proceedings in respect of the land under
challenge in the present appeal have lapsed by virtue
of provisions of Section 24(2) of the Act of 2013.
6.
It
has
been
Additional Chief
Collector, 
further
GMADA,
contended
that
Administrator-cum-Land
Mohali
in
his
the
then
Acquisition
affidavit
dated
06.02.2008 has admitted that the possession of the
land in question is with the appellants. Further, in
the
affidavit
dated
19.07.2012
filed
on
behalf
of
respondent no.2, it has been categorically stated that
the appellants and other land owners are using their
land for agricultural purposes. For the said reason,
the respondent-GMADA had filed an application dated
09.02.2012
seeking
permission
to
complete
the
remaining development works in Sectors 76-80 of SAS
Nagar, Mohali. The said application was dismissed by
this Court on 11.11.2013.
Page 6
7
7.
Further, it is contended by the appellants that
no details/calculation of the awarded money has been
given to the appellants. Even if payments have been
deposited, the same is no payment in the eyes of law
and
the
respondent
compensation
of
State
the
has
acquired
never
land
offered
in
terms
to pay
of the
award of the appellants. No notice, whatsoever, has
been
received
by
the
appellants
from
any
quarter
asking them to collect the compensation awarded in
respect
of
their
acquired
land.
A
perusal
of
the
Annexure R-10 filed by the State of Punjab along with
their further affidavit filed before this Court on
02.07.2013
would
clearly
go
to
show
that
the
compensation amount is lying in the Treasury. It has
been contended that in view of the above, the case of
the appellants is squarely covered under Section 24(2)
of the Act of 2013. Therefore, the appellants have
filed the applications.
8.
On the other hand, it has been contended by the
learned Solicitor General Mr. Ranjit Kumar for the
respondents that the issue involved in these appeals
Page 7
8
relates to the prayer for re-allotment of the land on
the
premise
that
societies/institutions
certain
were
other
re-alloted
housing
the
acquired
land. Therefore, it is no ground for the claim of the
appellants
Section
to
24(2)
dispose of the
of Act of
the
appeal
2013
in
as
it
terms
is
of
not
sustainable in the eyes of law and deserves to be
rejected.
9.
Further
it
has
been
contended
that
physical
possession of the entire extent of the acquired land
except 102 acres of the land involved in these appeals
were not taken by the respondent no.2-PUDA (now GMADA)
on 17.05.2001 because of the interim order passed by
both the High Court and this Court. The possession of
the land covered by the above batch of appeals could
not be taken as stay orders passed by the High Court
in writ petitions filed by the land owners were in
force.
10.
It has been further contended that Section 24(2)
of the Act of 2013 stipulates that in relation to the
land acquisition proceedings initiated under the L.A.
Page 8
9
Act where an award has been made five years or more
prior
to
the
commencement
of
the
Act
of
2013
and
either of the two contingencies is satisfied, viz; (i)
physical possession of the land has not been taken or
(ii) the compensation has not been paid to the owners,
the acquisition proceedings shall be deemed to have
lapsed. On the lapse of such acquisition under the
L.A. Act, it has to initiate the proceedings afresh
under the Act of 2013. The proviso appended to Section
24(2) deals with a situation where in respect of the
acquisition initiated under the L.A. Act an award has
been made and compensation in respect of a majority of
land holdings has not been deposited in the account of
the beneficiaries then all the beneficiaries specified
in
Section
4
notification
become
entitled
to
compensation under the Act of 2013.
11.
Further, it is contended that the acquisition
proceedings in relation to the land involved in the
present appeals are a part of 1264.84 acres of land
acquired pursuant to the notification dated 21.02.2000
and the compensation has already been paid/deposited
in Court in case of the affected land holders and
Page 9
10
physical possession of the land has been taken with
regard to more than 90% of the acquired land except
the land covered by the present appeals where physical
possession of the land could not be taken as the stay
orders passed by the High Court & this Court have been
in force. It is further contended that, however, soon
after
the
19.04.2011
passing
the
of
the
possession
impugned
of
the
judgment
land
was
dated
taken
28.4.2011. Reliance was placed on the decision of this
Court in the case of Sita Ram Bhandar Society, New
Delhi v. Lt. Governor, Govt. of N.C.T., Delhi & Ors.1,
in justification of the above legal contentions, the
relevant paragraph of which is extracted hereunder:-
“30. It would, thus, be seen from a
cumulative
reading
of
the
aforesaid
judgments, that while taking possession
of a large area of land with a large
number of owners, it would be impossible
for the Collector or the Revenue Official
to enter each bigha or biswa and to take
possession thereof and that a pragmatic
approach has to be adopted by the Court.
It is also clear that one of the methods
of taking possession and handing it over
to the beneficiary Department is the
recording of a Panchnama which can in
itself constitute evidence of the fact
that possession had been taken and the
land
had
vested
absolutely
in
the
Government.”
1
(2009) 10 SCC 501
Page 10
11
12.
Further, it is contended that this Court while
granting special leave to appeal directed to maintain
“status quo” with regard to possession. As is held by
this
Court
Municipal
Ors.2,
a
catena
Corporation
and
Building
in
Bailamma
Cooperative
of
&
of
Delhi
Ors.
Society
v.
&
judgments including
v. Devi
Lichho
Poornaprajna
Ors.3,
while
and
House
dealing
with cases under Section 11-A of the L.A. Act which
also speaks of ‘lapse’ of acquisition proceedings, if
no award is made within a period of two years from the
date of publication of the declaration, once an order
of
stay
is
obtained
and
the
Government
and
the
Collector are prevented from taking any further action
pursuant to the declaration they cannot be faulted for
the
delay.
Similarly,
the
authorities
cannot
be
faulted for not taking physical possession of the land
covered in the present appeals in as much as it is not
that the authorities had on their own volition not
taken
possession
appellants.
2
3
In
of
fact
the
the
acquired
authorities
land
who
of
had
the
taken
(1997) 7 SCC 430
(2006) 2 SCC 416
Page 11
12
physical
possession
of
more
than
90%
of
the
total
extent of acquired land covered by the acquisition
proceedings
were
prevented
from
taking
physical
possession of the land in question in view of the stay
orders
passed
landowners
in
writ
themselves
in
petitions moved
spite the
of
by
filing
the
of
application by the authorities seeking permission to
complete the development works on the land in issue
which was adversely affected in view of the pending
lis. Section 24(2) of the Act of 2013 will not be
applicable in such a situation. Any interpretation to
the contrary would lead to absurdity and anomalous
results and unjust and unwarranted enrichment of the
landholders
who
are
in
physical
possession
of
the
acquired land in view of the stay orders passed in the
writ
petitions
authorities
from
filed
by
taking
them
which
physical
prevented
possession
of
the
the
acquired land when the L.A. Act was in force. Further,
reliance was placed on New India Assurance Co. Ltd. v.
Nusli Neville Wadia & Anr.4 and Ashok Lanka & Anr. v.
Rishi Dixit & Ors.5 that legislature is known to avoid
4
5
(2008) 3 SCC 279
(2005) 5 SCC 598
Page 12
13
anomaly or absurdity.
13.
It
is
further
contended
that
the
settled
principle of law based upon the legal maxim ‘Actus
Curiae
Neminem
Gravabit’
that
has
also
been
given
statutory flavour in terms of Section 144 of the Civil
Procedure Code (Restitution) must be read into Section
24(2) of the Act of 2013 in conjunction with Section 6
of the General Clauses Act and Section 11(A) of the
L.A. Act.
14.
The
submitted
learned
that
the
Attorney
judgment
General
of
this
has
Court
further
in
Sree
Balaji Nagar Residential Association v. State of Tamil
Nadu6 is per incuriam in as much as the above crucial
legal
aspects
have
not
been
considered
therein.
Further, he has placed reliance upon the case of Nand
Kishore Gupta & Ors. v.
State of Uttar Pradesh & Ors.7
this Court held thus:-
“46.The learned counsel appearing on
behalf of the appellants could not deny
the fact that the total number of
petitioners
concerned
in
these
acquisition
proceedings,
coming
up
before the High Court, was extremely
6
7
2014(10)SCALE388
(2010) 10 SCC 282
Page 13
14
insignificant as compared to those who
had
accepted
the
compensation.
Of
course, that by itself may not be the
only
reason
to
hold
against
the
appellants (the petitioners), however,
that fact will have to be kept in mind
while deciding the issues which cover
the whole acquisition process, which
acquisition is for the purpose of
development of 25 million sq m of land.
The High Court has also noticed this
aspect. We have mentioned this aspect
only with a limited objective of showing
that the criticism against the whole
scheme
which
would
invalidate
the
acquisition would be difficult to be
accepted, particularly in this case, in
view of the fact that majority of the
landowners have parted with possession,
taken the compensation and thus, the
whole
scheme
has
progressed
to
a
substantial level, wherefrom it will be
extremely difficult now to turn back to
square one.”
With reference to the above decision, he has further
contended
that
in
the
above
circumstances,
Section
24(2) of the Act of 2013 cannot be applicable to the
fact situation in the present appeals and the above
applications deserve to be dismissed in the interest
of justice and also public interest.
15.
We
have
carefully
submissions made by
behalf the appellants
of
the
gone
through
learned
with
senior
the
legal
counsel
respect
to
on
the
Page 14
15
application filed under Section 24(2) of the Act of
2013 and the objections raised by the respondents to
the
same.
In
our
considered
view,
respondent
No.2
GMADA has admitted that the possession of the land in
question (i.e. about 102 acres) is with the appellants
and the appellants have not received the compensation
for the said land being acquired by GMADA. Therefore,
the case of Nand Kishore Gupta referred to supra is
not applicable to the present case on hand. In fact,
the present case is squarely covered by the law laid
down in the matter of Pune Municipal Corporation and
Anr. v. Harakchand Misirimal Solanki & Ors.8, Union of
India & Ors. v. Shiv Raj & Ors.9, Bimla Devi & Ors. v.
State of Haryana & Ors.10, Bharat Kumar v. State of
Haryana
&
Anr.11
and
Sree
Balaji
Nagar
Residential
Association (supra).
16.
The above said provisions of Section 24 (2) of
the Act of 2013 quoted above has been interpreted by
the three Judge Bench of this Court in the case of
8
9
10
11
(2014)
(2014)
(2014)
(2014)
3
6
6
6
SCC
SCC
SCC
SCC
183
564
583
586
Page 15
16
Pune Municipal Corporation (supra), the relevant paras
20 and 21 from the case are extracted hereunder:-
“20......it
is
clear
that
the
award
pertaining to the subject land has been
made by the Special Land Acquisition
Officer more than five years prior to the
commencement of the 2013 Act. It is also
admitted position that compensation so
awarded has neither been paid to the
landowners/persons
interested
nor
deposited in the court. The deposit of
compensation amount in the Government
treasury is of no avail and cannot be
held to be equivalent to compensation
paid
to
the
landowners/persons
interested.
We
have,
therefore,
no
hesitation in holding that the subject
land acquisition proceedings shall be
deemed to have lapsed under Section 24(2)
of the 2013 Act.
21. The argument on behalf of the
Corporation
that
the
subject
land
acquisition
proceedings
have
been
concluded in all respects under the 1894
Act and that they are not affected at all
in view of Section 114(2) of the 2013
Act, has no merit at all, and is noted to
be rejected. Section 114(1) of the 2013
Act repeals the 1894 Act. Sub-section (2)
of Section 114, however, makes Section 6
of
the
General
Clauses
Act,
1897
applicable with regard to the effect of
repeal but this is subject to the
provisions in the 2013 Act. Under Section
24(2)
land
acquisition
proceedings
initiated under the 1894 Act, by legal
fiction, are deemed to have lapsed where
award has been made five years or more
prior to the commencement of the 2013 Act
and possession of the land is not taken
Page 16
17
or compensation has not been paid. The
legal fiction under Section 24(2) comes
into operation as soon as conditions
stated
therein
are
satisfied.
The
applicability of Section 6 of the General
Clauses Act being subject to Section
24(2),
there
is
no
merit
in
the
contention of the Corporation.
17.
Further,
this
Court
vide
its
order
dated
05.09.2011 requested the State Government to consider
the submissions of the appellants regarding the re-
allotment of the acquired land without admitting any
right in the appellants and place the issue before the
State Government for its consideration. Therefore, the
learned
Solicitor
General
contends
that
this
Court
found reasonable ground for its interference in the
matter
and
granted
leave
for
the
same
to
be
re-
examined and reconsidered. The above contention is not
tenable in law particularly having regard to the fact
that after the above said date leave was granted by
this Court by allowing the Special Leave Petition that
means
this
Court
has
to
consider
the
case
of
the
appellants on merits. However, this does not deprive
the right of the appellants to apply for relief under
Section 24(2) of the Act of 2013 as they have acquired
Page 17
18
a valid statutory right. The learned Solicitor General
has
also
Antulay
placed
reliance
upon
the
case
of
A.R.
v. R.S. Nayak & Anr12, in support of his legal
submission that in the said case the majority view of
this
Court
have
succinctly
laid
down
that
the
elementary rule of justice is that no party should
suffer by mistake/action of the Court. What the court
does ought not prejudice a litigant and therefore,
respondents herein shall not be made to suffer or be
deprived of their right by the reliance being placed
by the land owners upon Section 24 (2) of the Act of
2013 due to the interim orders of the High Court and
this Court as they have been in possession of the
acquired land.
The above contentions of the learned
Solicitor General cannot be accepted by us as the said
principle of law laid down by this Court in the above
referred case has no application to the fact situation
on hand in view of the clear statement of law laid
down by this Court in the above referred cases after
interpreting the provisions of the Act of 2013 and
therefore, the reliance placed upon the said decision
is misplaced.
12
(1988) 2 SCC 602
Page 18
19
18.
In
Sree
Balaji
Nagar
Residential
Association
(supra), it was opined that after adverting to the
decisions of the Privy Council and this Court, that
Section 24(2) of the Act of 2013 does not exclude any
period during which the land acquisition proceedings
might
have
remained
stayed
on
account
of
stay
or
injunction or “status quo” order regarding possession
of the land granted by any court. It was conclusively
held that the Legislature has consciously omitted to
extend the period of five years indicated in Section
24(2) of the Act of 2013, even if the proceedings had
been
delayed
injunction
on
account
granted
by
a
of
an
court
order
of
law
of stay
or for
or
any
reason.
19.
Further, so far as the judgment cited by the
respondents in Civil Appeal No.331 of 2014, we are of
the view that the same has no application on the facts
of the present case because the appellants in that
matter are nowhere connected or concerned with the
appellants in the present batch of cases as contended
by
the
appellants.
In
that
matter,
the
aggrieved
Page 19
20
persons
have
not
challenged
the
acquisition
proceedings rather they accepted that acquisition but
filed references for enhancement of compensation. The
appellants therein have accepted the compensation in
the year 2001 itself after the passing of the award
and their possession have been taken in the year 2001
itself by the authorities concerned. Whereas in the
present batch of appeals the appellants are still in
possession and they have not accepted any compensation
for
their
acquired
land.
Secondly,
the
impugned
judgment in the present appeals is two years after
passing of the impugned order in C.A. No.331 of 2014.
Therefore, the impugned judgment of C.A. No. 331 of
2014 is totally different from the impugned judgment
in the present batch of matters and are in no way
connected to each other.
20.
After referring to the aforesaid decisions with
reference to the facts and circumstances of the case
on hand, we are of the view that physical possession
of the land belonging to the appellants have neither
been taken by the respondents nor compensation paid to
them even though the award was passed on
06.08.2007,
Page 20
21
and more than five years have lapsed prior to date on
which the Act of 2013 came into force. Therefore, the
conditions mentioned in Section 24(2) of the Act of
2013 are satisfied in this case for allowing the plea
of
the
appellants
proceedings
Section
are
24(2)
that
deemed
of
the
to
Act
the
have
of
land
lapsed
2013.
acquisition
in
The
terms
said
of
legal
principle laid down by this Court in the case of Pune
Municipal
Corporation
and
other
cases
referred
to
supra with regard to the interpretation of Section
24(2)
of
the
Act
of
2013,
with
all
fours
are
applicable to the fact situation in respect of the
land covered in these appeals for granting the relief
as prayed by the appellants in the applications.
21.
We have noticed the Gazette of India published
by the Ministry of Law and Justice in respect of the
“Right to Fair Compensation and Transparency in Land
Acquisition,
(Amendment)
Rehabilitation
Ordinance,
2014”,
and
in
Resettlement
which
a
second
proviso to Section 24(2) has been inserted which reads
as follows:-
“Provided further that in computing the
Page 21
22
period referred to in this sub-section,
any period or periods during which the
proceedings for acquisition of the land
were held up on account of any stay or
injunction
issued
by
any
stay
or
injunction issued by any court or the
period specified in the award of a
Tribunal for taking possession or such
period where possession has been taken
but the compensation lying deposited in a
court or in any account maintained for
this purpose shall be excluded.”
The above said amendment has come into force w.e.f.
01.01.2015. With due regard to the same, we are of the
view that the amendment would not be applicable to the
case on hand for the reason that these appeals were
pending
much
prior
to
the
ordinance
and
also
the
applications under Section 24(2) of the Act of 2013
were filed prior to the amendment to Section 24(2) by
Ordinance and the same were heard and reserved for
orders on 28.10.2014 and therefore the Ordinance in so
far as insertion of proviso to the above Section by
way of an amendment is
prospective. Further, keeping
in mind the principles laid down by this Court in the
case of Garikapati Veeraya v. N. Subbiah Choudhry and
Ors.13, wherein it was held thus:
13
AIR 1957 SC 540
Page 22
23
“23...(iv)The right of appeal is a vested
right and such a right to enter the
superior court accrues to the litigant and
exists as on and from the date the lis
commences and although it may be actually
exercised when the adverse judgment is
pronounced such right is to be governed by
the law prevailing at the date of the
institution of the suit or proceeding and
not by the law that prevails at the date
of its decision or at the date of the
filing of the appeal.
(v) This vested right of appeal can be
taken away only by a subsequent enactment,
if
it
so
provides
expressly
or
by
necessary intendment and not otherwise.
25.In construing the articles of the
Constitution we must bear in mind certain
cardinal rules of construction. It has
been said in Hough v. Windus [1884] 12
Q.B.D. 224, that "statutes should be
interpreted, if possible, so as to respect
vested
right."
The
golden
rule
of
construction is that, in the absence of
anything in the enactment to show that it
is to have retrospective operation, it
cannot be so constructed as to have the
effect of altering the law applicable to a
claim in litigation at the time when the
Act was passed [Leeds and County Bank Ltd.
v. Walker (1883) 11 Q.B.D. 84; Moon v.
Durden (1848) 2 Ex. 22; 76 R.R. 479. The
following observation of Rankin C.J. in
Sadar Ali v. Dalimuddin (supra) at page
520 is also apposite and helpful : "Unless
the contrary can be shown the provision
which takes away the jurisdiction is
itself subject to the implied saving of
the litigant's right." In Janardan Reddy
v. The State [1950]1SCR940 Kania C.J. in
Page 23
24
delivering the judgment of the Court
observed
that
our
Constitution
is
generally speaking prospective in its
operation and is not to have retroactive
operation in the absence of any express
provision
to
that
effect.
The
same
principle
was
reiterated
in
Keshavan
Madhava Menon v. The State of Bombay
1951CriLJ680 and finally in Dajisaheb Mane
and Others v. Shankar Rao Vithal Rao
[1955]2SCR872 to which reference will be
made in greater detail hereafter.”
(emphasis laid by this Court)
Further in the case of Shyam Sunder v. Ram Kumar &
Anr.14, the Constitution Bench of this Court held thus:
“26.
In Hitendra
Vishnu
Tahkur
&
ors. vs. State
of
Maharashtra
&
ors.
1995CriLJ517 this Court laid down the
ambit and scope of an amending act and its
retrospective option as follows:
‘(i)A
statute
which
affects
substantive rights is presumed to be
prospective in operation unless made
retrospective, either expressly or by
necessary
intendment,
whereas
a
statute
which
merely
affects
procedure,
unless
such
as
construction is textually impossible,
is presumed to be retrospective in
its application, should not be given
an extended meaning and should be
strictly confined to its clearly
defined limits.
(ii) Law relating to forum and
limitation is procedural in nature,
whereas law relating to right of
action and right of appeal even
though remedial is substantive in
14
(2001)8 SCC 24
Page 24
25
nature.
(iii) Every litigant has a vested
right in substantive law but no such
right exists in procedural law.
(iv) a procedural statute should not
generally
speaking
be
applied
retrospective where the result would
be to create new disabilities or
obligations or to impose new duties
in respect of of transactions already
accomplished.
(v) a statute which not only changes
the procedure but also creates new
rights and liabilities shall be
construed
to
be
prospective
in
operation unless otherwise provided,
either expressly or by necessary
implication.’
27.
In K.S.
Paripoornan vs. State
of
Kerala & others AIR1995SC1012, this Court
while considering the effect of amendment
in the Land Acquisition Act in pending
proceedings held thus:
"... In the instant case we are
concerned with the application of the
provisions of sub-section 1(1-A) of
S. 23 as introduced by the Amending
Act of acquisition proceedings which
were
pending
on
the
date
of
commencement of the Amending act. In
relation pending proceedings, the
approach of the courts in England is
that the same are unaffected by the
changers in the law so far as they
relate to the determination of the
substantive rights and in the absence
of a clear indication of a contrary
intention in an amending enactment,
the substantive rights of the parties
to an action fall to the determined
Page 25
26
by the law as it existed when the
action was commenced and this is so
whether the law is change before the
hearing of the case at the first
instance or while an appeal is
pending (See Halsbury's Laws of
England, 4th Edn., Vol. 44, para
922).’
28. From the aforesaid decisions the legal
position that emerges is that when a
repeal of an enactment is followed by a
fresh legislation such legislation does
not effect the substantive rights of the
parties
on
the
date
of
suit
or
adjudication
of
suit
unless
such
a
legislation is retrospective and a court
of appeal cannot take into consideration a
new law brought into existence after the
judgment appealed from has been rendered
because the rights of the parties in an
appeal are determined under the law in
force on the date of suit. However, the
position in law would be different in the
matters which relate to procedural law but
so far as substantive rights of parties
are concerned they remain unaffected by
the amendment in the enactment. We are,
therefore, of the view that where a repeal
of provisions of an enactment is followed
by fresh legislation by an amending Act
such
legislation
is
prospective
in
operation and does not effect substantive
or vested rights of the parties unless
made retrospective either expressly or by
necessary intendment. We are further of
the view that there is a presumption
against the retrospective operation of a
statue and further a statute is not to be
construed t have a greater retrospective
operation
than
its
language
renders
necessary, but an amending act which
affects the procedure is presumed to be
retrospective,
unless
amending
act
provides otherwise. .......”
Page 26
27
(emphasis laid by this Court)
22.
In view of the aforesaid findings and reasons
recorded by us, the acquisition proceedings in respect
of the appellants’ land have lapsed.
The aforesaid applications are allowed in the
above
said
terms
and
consequently,
the
appeals
referred to above are also allowed by quashing the
land acquisition proceedings notification in so far as
the land of the appellants are concerned. No costs.
I.A. No. 6 in C.A. No.7424 of 2013 for impleadment
is dismissed with liberty to approach the appropriate
forum in accordance with law.
I.A. Nos. 9 and 10 in C.A. No. 7424 of 2013 for
intervention
and
direction
are
dismissed
as
not
maintainable.
.....................................................................J.
[V. GOPALA GOWDA]
Page 27
28
.....................................................................J.
[C. NAGAPPAN]
New Delhi,
January 22, 2015


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