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in all cases of emergency acquisition under section 17, the requirement of payment under section 17(3A) must be complied with. As the provision of section 17(1) and section 17(2) cannot be worked out without complying with requirement of payment under section 17(3A) which is in the nature of condition precedent. If section 17(3A) is not complied with, the vesting under section 17(1) and section 17(2) cannot take place. Therefore, emergency acquisition without complying with section 17(3A) is illegal. This is the plain intention of the statute which must be strictly construed. Any other construction, in my opinion, would lead to diluting the Rule of Law.

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                                                            REPORTABLE

               IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL NO.24 OF 2009

M/s. Delhi Airtech Services 

Pvt. Ltd. & Anr.                                      ... Appellants

                                    Versus

State of U.P. & Anr.                                  ... Respondents

                                J U D G M E N T

Swatanter Kumar, J.

1.    I had the advantage of reading the well-written judgment 

of   my   learned   brother,   A.K.   Ganguly,   J.     Regretfully   but 

respectfully,   I   am   unable   to   persuade   myself   to   concur   with 

the   findings   recorded   and   the   exposition   of   law   expressed   by 

my learned brother.  In order to discernly state the reasons for 

my  expressing   a  contrary   view   and  dismissing   the   appeals  of 

the   appellants   on   merits,   it   has   become   necessary   for   me   to 

state the facts as well as the law in some detail.   It has been 

necessitated for the reason that complete facts, as they appear 

                                         2

from the record and the facts which were brought to the notice 

of the Court during the course of hearing by the respondents, 

supported by the official records, duly maintained by them in 

normal   course   of   their   business,   have   not,   in   their   entirety, 

and correctly been noticed  in the judgment.   I am also of the 

considered   view   that,   in   fact,   the   questions   framed 

(particularly   question   `D')   in   the   judgment   by   my   learned 

brother  neither   so   comprehensively   arise   in   the   facts   and 

circumstances   of   the   present   case   nor   were   argued   in   that 

manner   and   to   that   extent   before   the   Court.     Be   that   as   it 

may,   I   consider   it   necessary   to   restate   the   facts,   deal   with 

different   legal   aspects   of   the   case   and   then   record   the 

conclusions   which   would   even   provide   answers   to   the 

questions framed by my learned brother at the very beginning 

of his judgment.   Before I proceed to do so, let me briefly but, 

inter   alia,   state   the   reasons   for   my   taking   a   view   contrary   to 

the one recorded in the judgment of my learned brother:

I.          I have already stated that complete and correct facts, 

           in   their   entirety,   as   they   emerge   from   the   records 

                                    3

       produced   before   the   Court   (including   the   trial   court 

       record)   as   well   as   the   documents   referred   to   during 

       the course of arguments by the respondents have not 

       been   correctly   noticed.     The   records   referred  to   have 

       been   maintained   by   the   authorities   in   the   normal 

       course   of   their   business   and   their   authenticity   can 

       hardly   be   questioned.     These   documents   have   been 

       executed  inter   se  various   institutions/departments, 

       including the Collector's office, who discharges quasi-

       judicial functions under the Act.   

II.      The  judgment  of this  court  in the  case  of  Satendra  

       Prasad   Jain   &   Ors.   v.  State   of   U.P.   &   Ors.  [AIR   1993 

       SC   2517   =   (1993)   4   SCC   369],   in   my   humble   view, 

       cannot   be   ignored   and   the   principle   stated   therein 

       cannot   be   avoided   on   the   ground   that   the   judgment 

       was  sub silentio.   This I say so, for the reason that it 

       is   not   a   decision   in   which   the   point   was   not   raised, 

       argued and perceived by the Court.   On the contrary, 

       the   issue   in   relation   to   the   consequences   of   non-

                                    4

        payment   flowing   from   Section   17(3A)   of   the   Land 

        Acquisition   Act   (for   short,   the   `Act')   was   specifically 

        noticed by the three-Judge Bench in paragraph 11 of 

        the judgment.   It was discussed in some detail and a 

        definite   finding   was   recorded   thereby   bringing   the 

        judgment   well   within   the   dimensions   of   good 

        precedent.     Thus,   I,   with   respect,   would   prefer   to 

        follow the larger Bench judgment rather than ignoring 

        the same for the reasons stated by my learned brother 

        in   his   judgment   do   not   apply   in   the   facts   of   the 

        present case.

III.      The ratio decidendi of the judgment of this Court in 

        the   case   of  Satendra   Prasad   Jain  (supra)   is   squarely 

        applicable to the present case, on facts and law.

IV.       It   has   not   been   correctly   noticed   in   the   judgment 

        that 80 per cent of due compensation, which even the 

        appellants   did   not   dispute   during   the   course   of 

        hearing,   had   not   been   tendered   or   paid   to   the 

        claimants,   as   contemplated   under   Section   17(3A)   of 

                                  5

      the   Act.     From   the   facts   recorded   hereinafter,   it   is 

      clear that within the prescribed period, the payments 

      were   deposited   with   the   State   office   of   the 

      Collector/competent authority and it was for the State 

      to   distribute   the   money   in   accordance   with   the 

      provisions of the Act.  It is not only the scheme of the 

      Act but also an established practice that the amounts 

      are   disbursed   by   the   Collector   to   the   claimants   and 

      not   directly   by   the   beneficiary,   for   whose   benefit   the 

      land   had   been   acquired.     The   beneficiary   had 

      discharged   its   obligation   by   depositing,   in   fact,   in 

      excess   of   80   per   cent   of   due   compensation   with   the 

      competent authority.   De hors  the approach that one 

      may   adopt   in   regard   to   the   interpretation   of   Section 

      17(3A),  on  facts  the notification is  incapable of being 

      invalidated for non-compliance of the said Section.

V.      The   doctrine   of   strict   construction   does   not  per   se 

      mandate   that   its   application   excludes   the 

      simultaneous   application   of   all   other   principles   of 

                                     6

        interpretation.     It   is   permissible   in   law   to   apply   the 

        rule of strict construction while reading the provisions 

        of   law   contextually   or   even   purposively.     The   golden 

        rule   of   interpretation   is   the   rule   of   plain   language, 

        while preferring the interpretation which furthers the 

        cause   of   the   Statute   rather   than   that   which   defeats 

        the objects or purposes of the Act.  

VI.        Non-providing   of   consequences   under   Section 

        17(3A)   of   the   Act,   in   contradistinction   to   Sections   6 

        and   11   of   the   same   Act,   in   my   considered   view   is 

        largely the determinative test for proper and judicious 

        interpretation of Section 17(3A).

VII.       The   judgment   by   my   learned   brother   does   not 

        consider   the   judgments   of   the   Constitution   Bench, 

        the   larger   Bench   and   even   the   equi-Bench,   which 

        have to some extent a direct bearing on the matters in 

        issue before us.  In this regard, reference can be made 

        to   the   Constitution   Bench   judgment   of   this   Court   in 

        the   case   of  Offshore   Holdings   Pvt.   Ltd.  v.  Bangalore  

                             7

Development Authority & Ors.  [(2011) 3 SCC 139], the 

three-Judge Bench judgment in the case of Tika Ram  

& Ors. v. State of U.P. & Ors., [(2009) 10 SCC 689] and 

particularly   the   judgment   of   another   equi-Bench   of 

this   Court   in   the   case   of    Banda   Development  

Authority, Banda  v.  Moti Lal Agarwal  & Ors.  [2011 (5) 

SCALE   173],   to   which   my   learned   brother   (Ganguly, 

J.)   was   a   member.     The   latter   case,  inter   alia,   dealt 

with   a   question   of   lapsing   of   proceedings   under 

Section 11A on the ground that the possession of the 

property   had   not   been   taken   as   required   under   that 

provision.     While   rejecting   such   a   contention   in   that 

case, the Court observed that if the beneficiary of the 

acquisition   is   an   agency   or   instrumentality   of   the 

State   80   per   cent   of   the   total   compensation   is 

deposited   in   terms   of   Section   17(3A)   and   substantial 

portion   of   the   acquired   land   has   been   utilized   in 

furtherance of the particular public purpose, it could 

reasonably   be   presumed   that   the   possession   of   the 

acquired land had been irrevocably taken.  The Court 

                                      8

          then   held   that   relief   to   the   appellants   (like   the 

          appellants   in   the   present   case)   of   invalidating   the 

          acquisition   proceedings   and   restoring   the   land   could 

          not be granted.

VIII.         The   44th  Constitutional   Amendment,   on   the   one 

          hand,   omitted   Article   19(1)(f)   and   Article   31   while 

          introducing Articles 31A and 300A to the Constitution 

          of  India  on  the   other.     Right   to   property   was  deleted 

          as   a   fundamental   right   in   the   Constitution.     Thus, 

          this   right   cannot   be   placed   on   equi   terms, 

          interpretatively or otherwise, to the pre-constitutional 

          amendments.     The   right   to   eminent   domain   would 

          operate   on   a   different   sphere,   interpretation   and 

          effect,   pre   and   post   constitutional   repealments   of 

          these Articles and introduction of Article 300A of the 

          Constitution.     Even   on   this   aspect,   I   respectfully 

          disagree with the conclusions recorded by my learned 

          brother (Ganguly, J.).

FACTS:

                                        9

2.    Appellant No.1 is a company duly incorporated under the 

provisions of the Indian Companies Act, 1956 and is alleged to 

be   the   owner   of   the   land   sought   to   be   acquired   by   the 

respondents.  The land of the appellant, admeasuring about 2-

06-1/3-0   Bighas   situated   in   Village   Haldauni,   Tehsil   and 

Pargana   Dadri,   District   Gautam   Budh   Nagar,   which   is   an 

abadi  land,   was   sought   to   be   acquired   by   the   appropriate 

Government under a notification dated 17th April, 2002 issued 

under   Section   4(1)   read   with   Sections   17(1)   and   17(4)   of   the 

Act.   This   land   was   acquired   for   the   planned   industrial 

development in District Gautam Budh Nagar through the New 

Okhla   Industrial   Development   Authority   (NOIDA).   The 

notification also stated that the provisions of Section 5A of the 

Act   shall   not   apply.     In   pursuance   to   the   said   notification,   a 

declaration under Section 6 of the Act was published on 22nd 

August,   2002,   declaring   the   area   which   was   required   by   the 

Government.     It  also  stated  that  after   expiry   of  15  days   from 

the date of the publication of the notification possession of the 

acquired land shall be taken under sub-section (1) of Section 9 

of   the   Act.     The   appellants   have   alleged   that   they   did   not 

                                        10

receive any notice under Section 9(1) of the Act but possession 

of   the   land   was   nevertheless   taken   on   4th  February,   2003. 

According   to   the   appellants,   even   after   lapse   of   more   than 

three   and   a   half   years   after   publication   of   declaration   under 

Section   6   of   the   Act,   the   award   had   not   been   made   and 

published.  

      The   appellants   also   alleged   in   the   petition   that,   despite 

inordinate   delay,   they   were   neither   paid   80   per   cent   of   the 

estimated compensation in terms of Section 17(3A) of the Act 

at   the   time   of   taking   of   possession,   nor   had   the   Collector 

passed   an   award   within   two   years   of   making   the   declaration 

under Section 17(1), as required by Section 11A of the Act. It 

was the case of the appellants in the writ petition that this has 

the effect of vitiating the entire acquisition proceedings.   Non-

payment of the compensation and conduct of the Government 

compelled   the   petitioners   to   file   a   writ   petition   in   the   High 

Court   of   Allahabad   praying   for   issuance   of   an   order   or 

direction   in   the   nature   of  certiorari  or   any   other   writ,   not   to 

create   any   encumbrance   or   interest   on   the   land   of   the 

                                       11

petitioners.   Further,   they   prayed   that   the   acquisition 

proceedings,   in   so   far   as   they   relate   to   the   land   of   the 

petitioner, be declared void  ab initio  and that the respondents 

be   directed   to   return   the   land   from   the   possession   of   the 

Government to the owners. Lastly, the petitioners prayed that 

the   respondents/Government   be   directed   to   pay   damages   for 

use and occupation of the land.

      To this writ petition, the respondents had filed a counter 

affidavit in the High Court, denying that the acquired land was 

in fact a part of the abadi land.  The respondent-authority has 

also stated that 80 per cent compensation in terms of Section 

17(3A) of the Act had been deposited with the authorities.  The 

land   had   been   acquired   for   planned   development   of   NOIDA 

and   was   in   the   physical   possession   of   the   said   authority. 

Possession of the land had been taken on 4th  February, 2003 

and   no  right   had   survived   in   favour   of   the   petitioners   as   the 

land vested in the Government.  

      The   High   Court,   vide   its   judgment   dated   28th  August, 

2006, dismissed the writ petition. The High Court relied upon 

                                     12

the judgment of this Court in the case of Satendra Prasad Jain  

(supra) and dismissed the petition holding that the provisions 

of  Section  11A of  the Act are  not attracted  to proceedings for 

acquisition taken by the Government under Section 17 of the 

Act.  However, liberty was granted to the petitioners to pray for 

grant   of   appropriate   compensation   in   accordance   with   law 

before the competent forum.

      Aggrieved   by   the   said   order   of   the   High   Court,   the 

appellants   have   filed   the   present   appeal   impugning   the 

judgment dated 28th August, 2006. 

      In   the   counter   affidavit   filed   by   respondent   No.2   before 

this Court, the submissions made before the High Court have 

been   reiterated   with   an   additional   fact   that   the   sector   in 

question   was   designated   as   industrial   area   and   after   the 

development activity was completed, allotment has been made 

and possession of these industrial plots has also been handed 

over   to   such   entrepreneurs/allottees.   This   land   falls   under 

Sector 88 of the NOIDA City. The rest of the allegations made 

                                        13

in   the   writ   petition,   except   the   dates   in   question,   have   been 

disputed.

      It   has   also   been   stated   at   the   Bar,   on   the   basis   of   the 

record   maintained   in   regular   course   of   its   business   by   the 

respondent-authority,   that   10   per   cent   of   the   estimated 

compensation   was   deposited   by   the   Authority   with   the   State 

Government   even   prior   to   the   date   of   the   notification   under 

Section  4(1)  read with Section  17(4) of the Act, issued   by  the 

Government, i.e., 17th  April, 2002. The remaining 70 per cent 

of   the   estimated   compensation   had   allegedly   been   deposited 

vide   cheque   dated   8/14th                July,   2002   amounting   to 

approximately  `6,66,00,000/-.   As   such,   there   is   complete 

compliance with the provisions of Section 17(3A) of the Act by 

the   authority   concerned.     The   Award   was   made   on   9th  June, 

2008, which has been accepted by a large number of owners, 

i.e., 97.6 per cent of all owners. Some of these facts have also 

been   averred   in   the   counter   affidavit   filed   before   the   High 

Court.  

                                      14

      From   the   above   pleadings   of   the   parties,   the   admitted 

facts   that   emerge   from   the   record   can   be   usefully 

recapitulated.   The Governor of the State of Uttar Pradesh on 

17th April, 2002, issued a notification under Section 4(1) of the 

Act, expressing the intention of the Government to acquire the 

land   stated   in   the   said   Notification   for   a   public   purpose, 

namely,   for   the   planned   industrial   development   in   District 

Gautam   Budha   Nagar   through   NOIDA.   Vide   the   same 

notification the emergent provisions contained in Section 17 of 

the   Act,   specifically   Section   17(4),   were   also   invoked, 

intimating the public at large that the provisions of Section 5A 

of   the   Act   shall   not   be   applicable.   After   issuance   of   the 

declaration   under   Section   6   of   the   Act,   admittedly   the 

possession of the land in question was taken on 4th  February, 

2003.  However, it remains a matter of some dispute before the 

Court   as   to   whether   80   per   cent   compensation,   which   is 

deposited by the beneficiary with the State, had actually been 

received   by   the   land   owners/claimants,   if   so,   to   what   extent 

and by how many.

                                       15

      The Collector had not made or published the award even 

at   the   time   of   pronouncement   of   the   judgment   of   the   High 

Court,   in   Writ   Petition   No.   22251   of   2006,   on   28th  August, 

2006.   The   High   Court,   in   the   impugned   judgment,   has 

directed the respondent No.1 to ensure that the Award is made 

as early as possible, preferably within a period of three months 

from the date of production of the certified copy of that order. 

In   the   counter   affidavit   filed   before   this   Court,   it   has   been 

stated by the State of Uttar Pradesh that the Award was finally 

made   and   published   on   9th  June,   2008.     According   to   the 

appellant, given the fact that the declaration under  Section  6 

of   the   Act   was   dated   22nd  August,   2002,   then   in   terms   of 

Section 11A of the Act, the acquisition proceedings had lapsed 

as the award ought to have been pronounced on or before 21st 

August, 2004.

Discussion on objects and reasons of the Act

      With   the   enormous   expansion   of   the   State's   role   in 

promoting   public   welfare   and   economic   development   since 

independence, the acquisition of land for public purposes, like 

                                        16

industrialization, building of institutions, etc., has become far 

more   numerous   than   ever   before.     This   not   only   led   to   an 

increase   in   exercise   of   executive   powers,   but   also   to   various 

legislative amendments to the Act.  The 1870 Act abolished the 

system   of   uncontrolled   direction   by   arbitrators   and   in   lieu 

thereof, required the Collector, when unable to come to terms 

with   the   persons   interested   in   the   land   which   it   desired   to 

acquire,   to   refer   these   differences   to   the   Civil   Courts.   It   was 

also felt necessary by the framers, to restructure the legislative 

framework for acquisition of land so that it is more adequately 

informed   by   this   objective   of   servicing   the   interests   of   the 

community   in   harmony   with   the   rights   of   the   individual. 

Various   amendments   were   made   and   certain   new   provisions 

added  to the  Act by Amendment  Act,  68 of 1984,  which took 

effect   from   24th  September,   1984.     Amongst   others,   Sections 

11A and 17(3A) of the Act were new provisions added by this 

enactment.     The   objects   and   reasons   for   amending   the   Act 

were   to   bring   a   greater   degree   of   harmony   between   the 

interests of the owners of the land, on the one hand, and the 

acquiring authority on the other.  In its recommendations, the 

                                      17

Law   Commission   also   expressed   a   view   that   individuals   and 

institutions,   who   are   unavoidably   deprived   of   their   property 

rights,   need   to   be   adequately   compensated   for   their   loss 

keeping   in   view   the   sacrifice   they   have   had   to   make   in   the 

larger interests of the community. The pendency of acquisition 

proceedings   for   long   periods   causes   hardship   to   the   affected 

parties;   so   steps   were   required   to   be   taken   to   truncate   the 

procedural aspect of acquisition proceedings on the one hand, 

and  to  pay  adequate   compensation  to  the  owners  of the  land 

on the other.   By introducing the provisions of Section 11A of 

the   Act   to   the   normal   course   of   acquisition   proceedings, 

greater   responsibility   was   intended   to   be   fastened   upon   the 

concerned authorities, whereby they were obliged to make an 

award within two years of the declaration made under Section 

6   of   the   Act.     The   other   obvious   purpose   of   the   amendment 

was that before emergency provisions are invoked by the State 

and possession is taken in terms of Section 17(1) of the Act, as 

opposed to the normal procedure of acquisition of land where 

possession is taken after the making of an award, it was to be 

obligatory   upon  the   authorities  concerned  to  pay   80  per  cent 

                                       18

of   the   estimated   compensation   to   the   land   owners,   prior   to 

taking possession of the land in terms of Section 17(3A) of the 

Act.  Despite the fact that Right to Property in terms of Article 

19(1)(f)   of   the   Constitution   stood   deleted   from   Chapter   III   of 

the   Constitution,   vide   44th  Constitutional   Amendment,   1978, 

Article   300A   of   the   Constitution   was   added   by   the   same 

Constitutional   Amendment,   mandating   that   `no   person   shall 

be   deprived   of   his   property   save   by   authority   of   law'.     This 

indicates   that   the   Constitution   still   mandates   two   aspects   in 

relation   to   acquisition   of   land   by   the   exercise   of   power   of 

eminent domain vested in the State.   Firstly, such acquisition 

has to be by the authority of law; in other words, it has to be 

in   accordance   with   the   law   enacted   by   the   competent 

legislature and not by mere executive action.   Secondly, there 

has   to   be   a   public   purpose   for   acquisition   of   land   and   the 

person   interested   in   such   land   would   be   entitled   to 

compensation. 

      The   objects   and   reasons   for   introducing   the   Bill   leading 

to   the   Amendment   Act   68   of   1984,   have   explained   the 

                                       19

amendments   made   to   the   Act.     It   is   not   necessary   for   us   to 

dwell upon all the amendments carried out in the Act. Suffice 

it to refer to the amendment made in the definition of `public 

purpose' under Section 3(f) of the Act and to the provisions of 

Sections   11A   and   17(3A),   with   which   this   Court   is   primarily 

concerned in the present case.  If I may put it in rather simple 

language,   the   object   of   the   legislation   was   to   create   greater 

balance   between   the   exercise   of   power   of   eminent   domain   by 

the State and the owner's deprivation of his property by way of 

compulsory   acquisition   and   the   greater   acceptability   of 

acquisition proceedings amongst land owners.  This balance is 

sought to be created  by introducing higher  responsibility and 

statutory   obligations   upon   the   acquiring   authority. 

Expeditious   and   proper   payment   of   fair   market   value   for   the 

acquired   land   to   the   claimants   is   required   in   the   light   of 

sacrifice made by them in the larger public interest.

      In the case of Devinder Singh & Others v. State  of Punjab  

and Others  [(2008)1 SCC 728],  a Bench of this Court took the 

view   that   the   provisions   of   the   Act   should   be   strictly 

                                        20

construed.   Referring   to   the   provisions   of   the   Act,   it   spelt   out 

the ingredients of valid acquisition to be, (a) the existence of a 

public   purpose;   and   (b)   the   payment   of   requisite 

compensation.   In   cases   of   acquisition   of   land   for   a   private 

company,   the   existence   of   a   public   purpose   is   not   necessary 

but   all   other   statutory   requirements   were   held   to   remain 

imperative in character, requiring strict compliance.

Whether the provisions of Sections 17(3A) and 11A of the 

Act are mandatory or directory and to what effect?

      Let   us   first   examine   the   general   principles   that   could 

help   the   Court   in  determining   whether   a   particular   provision 

of a statute is mandatory or directory. 

      In   `Principles   of   Statutory   Interpretation',   12th  Edition, 

2010, Justice G.P. Singh, at page 389 states as follows:

             "As approved by the Supreme Court: "The 

             question   as   to   whether   a   statute   is 

             mandatory of directory depends upon the 

             intent of the Legislature and not upon the 

             language   in   which   the   intent   is   clothed. 

             The   meaning   and   intention   of   the 

             legislation must govern, and these are to 

             be   ascertained   not   only   from   the 

             phraseology  of  the   provision,   but  also  by 

                          21

considering its nature, its design and the 

consequences   which   would   follow   from 

construing   it   the   one   way   or   the   other" 

"For ascertaining the real intention of the 

Legislature", points out Subbarao, J, "the 

court may consider inter alia, the nature 

and   design   of   the   statute,   and   the 

consequences   which   would   follow   from 

construing   it   the   one   way   or   the   other; 

the   impact   of   the   other   provisions 

whereby   the   necessity   of   complying   with 

the provisions in question is avoided; the 

circumstances,   namely,   that   the   statute 

provides   for   a   contingency   of   the   non-

compliance   with   the   provisions;   the   fact 

that   the   non-compliance   with   the 

provisions   is   or   is   not   visited   by   some 

penalty;   the   serious   or   the   trivial 

consequences,   that   flow   therefrom;   and 

above   all,   whether   the   object   of   the 

legislation   will   be   defeated   or   furthered". 

If object of the enactment will be defeated 

by   holding   the   same   directory,   it   will   be 

construed   as   mandatory,   whereas   if   by 

holding   it   mandatory,   serious   general 

inconvenience will be created to innocent 

persons without very much furthering the 

object   of   enactment,   the   same   will   be 

construed as directory.   But all this does 

not mean that the language used is to be 

ignored,   but   only   that   the   prima   facie 

inference   of   the   intention   of   the 

Legislature   arising   from   the   words   used 

may   be   displaced   by   considering   the 

nature   of   the   enactment,   its   design   and 

the consequences flowing from alternative 

construction.  Thus, the use of the words 

`as   nearly   as   may   be'   in   contrast   to   the 

words `at least' will prima facie indicate a 

                                      22

            directory   requirement,   negative   words   a 

            mandatory   requirement   `may'   a   directory 

            requirement   and   `shall'   a   mandatory 

            requirement."

      Maxwell,   in   Chapter   13   of   his   12th  Edition   of   `The 

Interpretation   of   Statutes',   used   the   word   `imperative'   as 

synonymous with `mandatory' and drew a distinction between 

imperative   and   directory   enactments,   at   pages   314-315,   as 

follows:

            "Passing   from   the   interpretation   of   the 

            language   of   statutes,   it   remains   to 

            consider   what   intentions   are   to   be 

            attributed to the legislature on questions 

            necessarily   arising   out   of   its   enactments 

            and on which it has remained silent."

            The first such question is: when a statute 

            requires that something shall be done, or 

            done   in   a   particular   manner   or   form, 

            without expressly declaring what shall be 

            the   consequence   of   non-compliance,   is 

            the   requirement   to   be   regarded   as 

            imperative   (or   mandatory)   or   forms 

            prescribed   by   the   statute   have   been 

            regarded   as   essential   to   the   act   or   thing 

            regulated   by   it,   and   their   omission   has 

            been  held   fatal  to  its  validity.     In  others, 

            such   prescriptions   have   been   considered 

            as   merely   directory,   the   neglect   of   them 

            involving nothing more than liability to a 

            penalty,   if   any   were   imposed,   for   breach 

                                           23

             of         the         enactment.         "An         absolute 

             enactment   must   be   obeyed   or   fulfilled 

             exactly,   but   it   is   sufficient   if   a   directory 

             enactment   be   obeyed   or   fulfilled 

             substantially".

             It   is   impossible   to   lay   down   any   general 

             rule   for   determining   whether   a   provision 

             is   imperative   or  directory.     "No   universal 

             rule,"   said   Lord   Campbell   L.C.,   "can   be 

             laid down for the construction of statutes, 

             as   to   whether   mandatory   enactments 

             shall   be   considered   directory   only   or 

             obligatory with an implied nullification for 

             disobedience.     It  is  the  duty  of Courts  of 

             Justice   to  try  to   get  at  the  real  intention 

             of   the   Legislature   by   carefully   attending 

             to   the   whole   scope   of   the   statute   to   be 

             construed."   And   Lord   Penzance   said:   "I 

             believe,   as   far   as   any   rule   is   concerned, 

             you cannot safely go further than that in 

             each   case   you   must   look   to   the   subject 

             matter;   consider   the   importance   of   the 

             provision that has been disregarded, and 

             the   relation   of   that   provision   to   the 

             general   object   intended   to   be   secured  by 

             the Act; and upon a review of the case in 

             that   aspect   decide   whether   the   matter   is 

             what   is   called   imperative   or   only 

             directory."

      In a recent judgment of this Court, May George v. Special  

Tehsildar   and   Ors.  [(2010)   13   SCC   98],   the   Court   stated   the 

precepts,   which   can   be   summed   up   and   usefully   applied   by 

this Court, as follows: 

                                          24

(a)     While   determining   whether   a   provision   is   mandatory   or 

        directory,     somewhat   on   similar   lines   as   afore-noticed, 

        the   Court   has   to   examine   the   context   in   which   the 

        provision is used and the purpose it seeks to achieve;

(b)     To   find   out   the   intent   of   the   legislature,   it   may   also   be 

        necessary   to   examine   serious   general   inconveniences   or 

        injustices   which   may   be   caused   to   persons   affected   by 

        the application of such provision; 

(c)     Whether the provisions are enabling the State to do some 

        things and/or whether they prescribe the methodology or 

        formalities for doing certain things; 

(d)     As a factor to determine legislative intent, the court may 

        also   consider,  inter   alia,   the   nature   and   design   of   the 

        statute   and   the   consequences   which   would   flow   from 

        construing it, one way or the other;

(e)     It   is   also   permissible   to   examine   the   impact   of   other 

        provisions   in   the   same   statute   and   the   consequences  of 

        non-compliance of such provisions;

                                        25

(f)     Physiology   of   the   provisions   is   not   by   itself   a 

        determinative   factor.     The   use   of   the   words   `shall'   or 

        `may', respectively would ordinarily indicate imperative or 

        directory character, but not always.

(g)     The   test   to   be   applied   is   whether   non-compliance   with 

        the provision would render the entire proceedings invalid 

        or not.

(h)     The   Court   has   to   give   due   weightage   to   whether   the 

        interpretation   intended   to   be   given   by   the   Court   would 

        further   the   purpose   of   law   or   if   this   purpose   could   be 

        defeated by terming it mandatory or otherwise.

        Reference   can   be   made   to   the   following   paragraphs   of 

May George (supra) :

              "16.   In  Dattatraya  Moreshwar   v.   The 

              State   of   Bombay   and   Ors.  [AIR   1952   SC 

              181], this Court observed that law which 

              creates public duties is directory but if it 

              confers   private   rights   it   is   mandatory. 

              Relevant   passage   from   this   judgment   is 

              quoted below:

                     `7........It   is   well   settled   that 

                     generally   speaking  the   provisions   of 

                           26

      the   statute   creating   public   duties 

      are   directory   and   those   conferring 

      private   rights   are   imperative.   When 

      the   provisions   of   a   statute   relate   to 

      the   performance   of   a   public   duty 

      and   the   case   is   such   that   to   hold 

      null and void acts done in neglect of 

      this   duty   would   work   serious 

      general inconvenience or injustice to 

      persons   who   have   no   control   over 

      those   entrusted   with   the   duty   and 

      at the same time would not promote 

      the main object of legislature, it has 

      been   the   practice   of   the   Courts   to 

      hold such provisions to be directory 

      only,   the   neglect   of   them   not 

      affecting   the   validity   of   the   acts 

      done.'

17. A Constitution Bench of this Court in 

State   of   U.P.   and   Ors.   v.   Babu   Ram 

Upadhya  [AIR   1961   SC   751]   decided   the 

issue observing:

      `29.....For   ascertaining   the   real 

      intention   of   the   Legislature,   the 

      Court   may   consider,   inter   alia,   the 

      nature and the design of the statute, 

      and   the   consequences   which   would 

      follow   from   construing   it   the   one 

      way or the other, the impact of other 

      provisions   whereby   the   necessity   of 

      complying   with   the   provisions   in 

      question            is          avoided,                  the 

      circumstance,   namely,   that   the 

      statute provides for a contingency of 

      the         non-compliance              with              the 

      provisions,   the   fact   that   the   non-

      compliance with the provisions is or 

                         27

      is   not   visited   by   some   penalty,   the 

      serious   or   trivial   consequences   that 

      flow   therefrom,   and,   above   all, 

      whether  the object  of the legislation 

      will be defeated or furthered.'

22.   In     B.S.   Khurana        and   Ors.   v. 

Municipal   Corporation   of   Delhi   and   Ors. 

[(2000) 7 SCC 679], this Court considered 

the   provisions   of   the   Delhi   Municipal 

Corporation Act, 1957, particularly those 

dealing   with   transfer   of   immovable 

property   owned   by   the   Municipal 

Corporation.   After   considering   the 

scheme   of   the   Act   for   the   purpose   of 

transferring the property belonging to the 

Corporation,   the   Court   held   that   the 

Commissioner could alienate the property 

only   on   obtaining   the   prior   sanction   of 

the   Corporation   and   this   condition   was 

held to be mandatory for the reason that 

the   effect   of   non-observance   of   the 

statutory   prescription   would   vitiate   the 

transfer   though   no   specific   power   had 

been   conferred   upon   the   Corporation   to 

transfer the property.

23.   In  State   of   Haryana   and   Anr.   v. 

Raghubir   Dayal  [(1995)   1  SCC   133],   this 

Court has observed as under:

      `5.   The   use   of   the   word   `shall'   is 

      ordinarily   mandatory   but   it   is 

      sometimes   not   so   interpreted   if   the 

      scope   of   the   enactment,   or 

      consequences   to   flow   from   such 

      construction   would   not   so   demand. 

      Normally,   the   word   `shall'   prima 

      facie   ought   to   be   considered 

                                          28

                    mandatory   but   it   is   the   function   of 

                    the   Court   to   ascertain   the   real 

                    intention   of   the   legislature   by   a 

                    careful   examination   of   the   whole 

                    scope   of   the   statute,   the   purpose   it 

                    seeks to serve and the consequences 

                    that         would          flow         from         the 

                    construction   to   be   placed   thereon. 

                    The word `shall', therefore, ought to 

                    be   construed   not   according   to   the 

                    language   with   which   it   is   clothed 

                    but   in   the   context   in   which   it   is 

                    used   and   the   purpose   it   seeks   to 

                    serve.   The   meaning   has   to   be 

                    described   to   the   word   `shall;   as 

                    mandatory             or          as          directory 

                    accordingly. Equally, it is settled law 

                    that when a statute is passed for the 

                    purpose   of   enabling   the   doing   of 

                    something   and   prescribes   the 

                    formalities which are to be attended 

                    for   the   purpose,   those   prescribed 

                    formalities   which   are   essential   to 

                    the  validity   of  such  thing,  would  be 

                    mandatory.   However,   if   by   holding 

                    them   to   be   mandatory,   serious 

                    general   inconvenience   is   caused   to 

                    innocent   persons   or   general   public, 

                    without   very   much   furthering   the 

                    object of the Act, the same would be 

                    construed as directory.' "

      The Legislature in Sections 11A and 17(3A) of the Act has 

used   the   word   `shall'   in   contradistinction   to   the   word   `may' 

used   in   some   other   provisions   of   the   Act.     This   also   is   a 

                                        29

relevant   consideration   to   bear   in   mind   while   interpreting   a 

provision.

      The   distinction   between             mandatory   and   directory 

provisions   is   a   well   accepted   norm   of   interpretation.   The 

general   rule   of   interpretation   would   require   the   word   to   be 

given   its own  meaning  and  the  word  `shall'  would   be  read  as 

`must' unless it was essential to read it as `may' to achieve the 

ends   of  legislative   intent   and  understand   the  language  of  the 

provisions.   It   is   difficult   to   lay   down   any   universal   rule,   but 

wherever   the   word   `shall'   is   used   in   a   substantive   statute,   it 

normally   would   indicate   mandatory   intent   of   the   legislature. 

Crawford   on   `Statutory   Construction'   has   specifically   stated 

that language of the provision is not the sole criteria; but the 

Courts   should   consider   its   nature,   design   and   the 

consequences which could flow from construing it one way or 

the other.

      Thus,   the   word   `shall'   would   normally   be   mandatory 

while the word `may' would be directory. Consequences of non-

compliance   would   also   be   a   relevant   consideration.   The   word 

                                        30

`shall'   raises   a   presumption   that   the   particular   provision   is 

imperative   but   this  prima   facie  inference   may   be   rebutted   by 

other   considerations   such   as   object   and   scope   of   the 

enactment   and   the   consequences   flowing   from   such 

construction.   Where   a   statute   imposes   a   public   duty   and 

proceeds to lay down the manner and timeframe within which 

the   duty   shall   be   performed,   the   injustice   or   inconvenience 

resulting from a rigid adherence to the statutory prescriptions 

may not be a relevant factor in holding such prescription to be 

only directory. For example, when dealing with the provisions 

relating   to   criminal   law,   legislative   purpose   is   to   be   borne   in 

mind for its proper interpretation. It is said that the purpose of 

criminal law is to permit everyone to go about their daily lives 

without   fear   of   harm   to   person   or   property   and   it   is   in   the 

interests   of   everyone   that   serious   crime   be   effectively 

investigated   and   prosecuted.   There   must   be   fairness   to   all 

sides. (Attorney General's Reference (No. 3 of 1999) (2001) 1 All 

ER   577   Reference   :   Justice   G.P.   Singh   on   `Principles   of 

Statutory   Interpretation',   11th   Edition   2008).   In   a   criminal 

case,   the   court   is   required   to   consider   the   triangulation   of 

                                      31

interests taking into consideration the position of the accused, 

the victim and his or her family and the public.

      The basic purpose of interpretation of statutes is further 

to aid in determining either the general object of the legislation 

or the meaning of the language in any particular provision. It 

is   obvious   that   the   intention   which   appears   to   be   most   in 

accordance   with   convenience,   reason,   justice   and   legal 

principles   should,   in   all   cases  of   doubtful   interpretation,   be 

presumed   to   be   the   true   one.   The   intention   to   produce   an 

unreasonable result is not to be imputed to a statute. On the 

other hand, it is not impermissible, but rather is acceptable, to 

adopt a more reasonable construction and avoid anomalous or 

unreasonable construction. A sense of the possible injustice of 

an interpretation ought not to induce Judges to do violence to 

the well settled rules of construction, but it may properly lead 

to   the   selection   of   one,   rather   than   the   other,   of   the   two 

reasonable interpretations. In earlier times, statutes imposing 

criminal   or   other   penalties   were   required   to   be   construed 

narrowly   in   favour   of   the   person   proceeded   against   and   were 

                                        32

more rigorously applied. The Courts were to see whether there 

appeared any reasonable doubt or ambiguity in construing the 

relevant   provisions.   Right   from   the   case   of  R.   v.   Jones,   ex   p.  

Daunton  [1963(1)   WLR   270],   the   basic   principles   state   that 

even statutes dealing with jurisdiction and procedural law are, 

if they relate to infliction of penalties, to be strictly construed; 

compliance   with   the   procedures   will   be   stringently   exacted 

from   those   proceedings   against   the   person   liable   to   be 

penalized   and   if   there   is   any   ambiguity   or   doubt,   it   will   be 

resolved   in   favour   of   the   accused/such   person.   These 

principles have been applied with approval by different courts 

even in India. Enactments relating to procedure in courts are 

usually construed as imperative. A kind of duty is imposed on 

court   or   a   public   officer   when   no   general   inconvenience   or 

injustice is caused from different construction. A provision of a 

statute   may   impose   an   absolute   or   qualified   duty   upon   a 

public   officer   which   itself   may   be   a   relevant   consideration 

while understanding the provision itself. (See `Maxwell on The 

Interpretation of Statutes', 12th Edition by P. St. J. Langan and 

R. v. Bullock, [(1964)1 QB 481]) 

                                        33

      One school of thought has accepted that the word `shall' 

raises   a   presumption   that   the   particular   provision   is 

imperative,   while   the   other   school   of   thought   believes   that 

such presumption is merely prima facie, subject to rebuttal by 

the   other   considerations   mentioned   above.     For   example,   in 

M/s.   Sainik   Motors,   Jodhpur   &   Others   v.   The   State   of  

Rajasthan  [AIR 1961 SC 1480], the word `shall' has been held 

to be merely directory.

      G.P.   Singh   in   the   same   edition   of   the   above-mentioned 

book, at page 409, stated that the use of the word `shall' with 

respect   to   one   matter   and   use   of   word   `may'   with   respect   to 

another  matter in the same  section of  a statute will  normally 

lead   to   the   conclusion   that   the   word   `shall'   imposes   an 

obligation,   whereas   the   word   `may'   confers   a   discretionary 

power.     But   that   by   itself   is   not  decisive   and   the   Court   may, 

having   regard   to   the   context   and   consequences,   come   to   the 

conclusion   that   the   part   of   the   statute   using   `shall'   is   also 

directory.     It is primarily the context in which the words are 

                                      34

used   which   will   be   of   significance   and   relevance   for   deciding 

this issue.  

      Statutes which encroach upon rights, whether as regards 

person   or   property,   are   subject   to   strict   construction   in   the 

same   way   as   penal   Acts.   It   is   a   recognized   rule   that   they 

should be interpreted, if possible, so as to respect such rights 

and   if   there   is   any   ambiguity,   the   construction   which   is   in 

favour of the freedom of the individual should be adopted. (See 

`Maxwell on The Interpretation of Statutes', 12th  Edition by P. 

St. J. Langan)

      This Court in the case of Devinder Singh (supra) held that 

the   Land   Acquisition   Act   is   an   expropriatory   legislation   and 

followed the case of Hindustan Petroleum Corporation v. Darius  

Shapur   Chennai   and   Ors.  [(2005)   7   SCC   627].   Therefore,   it 

should   be   construed   strictly.   The   Court   has   also   taken   the 

view that even in cases of directory requirements, substantial 

compliance with such provision would be necessary. 

                                       35

      If   I   analyze   the   above   principles   and   the   various 

judgments of this Court, it is clear that it may not be possible 

to   lay   down   any   straitjacket   formula,   which   could 

unanimously   be   applied   to   all   cases,   irrespective   of 

considering   the   facts,   legislation   in   question,   object   of   such 

legislation, intendment of the legislature and substance of the 

enactment.     In  my   view,   it  will   always  depend  upon  all  these 

factors   as   stated   by   me   above.     Still,   these   precepts   are   not 

exhaustive   and   are   merely   negative.     There   could   be   cases 

where the word `shall' has been used to indicate the legislative 

intent   that   the   provisions   should   be   mandatory,   but   when 

examined   in   light   of   the   scheme   of   the   Act,   language   of   the 

provisions, legislative intendment and the objects sought to be 

achieved, such an interpretation may defeat the very purpose 

of   the   Act   and,   thus,   such   interpretation   may   not   be 

acceptable in law and in public interest.   Keeping in mind the 

language   of   the   provision,   the   Court   has   to   examine   whether 

the   provision   is   intended   to   regulate   certain   procedure   or 

whether   it   vests   private   individuals   with   certain   rights   and 

levies   a   corresponding   duty   on   the   officers   concerned.     The 

                                         36

Court   will   still   have   to   examine   another   aspect,   even   after 

holding  that a  particular  provision   is  mandatory  or  directory, 

as the case may  be, i.e., whether the effect or impact of such 

non-compliance   would   invalidate   or   render   the   proceedings 

void   ab   initio  or   it   would   result   in   imposition   of   smaller 

penalties   or   in   issuance   of   directions   to   further   protect   and 

safeguard  the  interests  of  the  individual   against  the  power   of 

the   State.     The   language   of   the   statute,   intention   of   the 

legislature   and   other   factors   stated   above   decide   the   results 

and impacts of non-compliance in the facts and circumstances 

of   a   given   case,   before   the   Court   can   declare   a   provision 

capable   of   such   strict   construction,   to   term   it   as   absolutely 

mandatory or directory.

      Having          analysed         the          principles         of         statutory 

interpretation,   I   will   now   refer   to   the   provisions   of   Section 

17(3A) of the Act.   Section 17 of the Act vests the appropriate 

Government   with   special   powers   to   be   exercised   in   cases   of 

urgency.   This provision falls within Part II of the Act.   Part II 

of  the Act deals  with the  entire  scheme of  acquisition of  land 

                                       37

by the State, right from the stage of issuance of a notification 

under   Section   4   of   the   Act   till   making   of   an   award   taking 

possession   of   acquired   land   and   its   consequential   vesting   in 

the State.   However, to some extent, the provisions of Section 

17 of the Act are an exception to the provisions under Sections 

4   to   16   of   the   Act.     The   distinguishing   features   of   normal 

acquisition   are   that   after   the   issuance   of   notification   under 

Section 4 of the Act, the State must provide an opportunity to 

the owners of the land to object to the acquisition in terms of 

Section   5A   of   the   Act,   issue   a   declaration   under   Section   6  of 

the Act, issue notice under Section 9 of the Act and determine 

compensation   by   making   an   award   under   Section   11   of   the 

Act.   However, under the scheme of Section 17 of the Act, the 

Government   can   take   possession   of   the   property   on   the 

expiration of 15 days from publication of notice mentioned in 

Section 9(1) of the Act.  Furthermore, the provisions of Section 

5 of the Act, i.e., the right of the owner to file objection can be 

declared   to   be   inapplicable.     Besides   these   two   significant 

distinctions,   another   important   aspect   that   the   land   vests   in 

the   Government   under   Section   16   of   the   Act   only   after   the 

                                       38

award   is   made   and   possession   of   the   land   is   taken,   while 

under Section 17(1), at the threshold of the acquisition itself, 

the land could vest absolutely in the Government free from all 

encumbrances.     The   possession   of   the   acquired   property   has 

to   be   taken   by   the   Collector   in   terms   of   Sections   17(2)   and 

17(3) of the Act.  Section 17(3A) of the Act, as already noticed, 

was   introduced   by   the   Amendment   Act   68   of   1984   for   the 

purposes   of   safeguarding   the   interests   of   the   claimants   and 

required   the   payment   of   80   per   cent  of   the   estimated 

compensation before taking possession.   At this stage itself, it 

will be useful to refer to the relevant provisions of Section  17 

of the Act.

      Section 17 reads as under:

               "17. Special powers in case of urgency. - 

               (1)   In   cases   of   urgency   whenever   the 

               appropriate   Government,   so   directs,   the 

               Collector,   though   no   such   award   has 

               been   made,   may,   on   the   expiration   of 

               fifteen   days   from   the   publication   of   the 

               notice   mentioned   in   section   9,   sub-

               section   (1)   take   possession   of   any   land 

               needed   for   a   public   purpose.   Such   land 

               shall   thereupon   vest   absolutely   in   the 

               Government, free from all encumbrances.

                                  39

(2)             xxxxxx

(3)            xxxxxx

(3A) Before taking possession of any land 

under   sub-section   (1)   or   sub-section   (2), 

the   Collector   shall,   without   prejudice   to 

the provisions of sub-section (3)(a) tender 

payment   of   eighty   per   centum   of   the 

compensation for such land as estimated 

by   him   to   the   person   interested   entitled 

thereto,   and   (b)   pay   it   to   them,   unless 

prevented   by   some   one   or   more   of   the 

contingencies   mentioned   in   section   31, 

sub-section (2),and where the Collector is 

so   prevented,   the   provisions   of   section 

31,   sub-section   (2),   (except   the   second 

proviso thereto), shall apply as they apply 

to   the   payment   of   compensation   under 

that section.

(3B) The amount paid or deposited under 

section   (3A),   shall   be   taken   into   account 

for         determining                 the         amount           of 

compensation   required   to   be   tendered 

under section 31, and where the amount 

so   paid   or   deposited   exceeds   the 

compensation   awarded   by   the   Collector 

under section 11, the excess may, unless 

refunded   within   three   months   from   the 

date of Collector's award, be recovered as 

an arrear of land revenue.

(4)   In   the   case   of   any   land   to   which,   in 

the         opinion         of           the             appropriate 

Government,   the   provisions   of   sub-

section   (1)   or   sub-section   (2)   are 

applicable,   the   appropriate   Government 

                                       40

             may   direct   that   the   provisions   of   section 

             5A   shall   not   apply,   and,   if   it   does   so 

             direct,  a declaration  may  be made under 

             section   6   in   respect   of   the   land   at   any 

             time   after   the   date   of   the   publication   of 

             the   notification   under   section   4,   sub-

             section (1)."

      Section 17(3A) of the Act makes it obligatory on the part 

of   the   authority   concerned   to   tender/pay   80   per   cent   of   the 

compensation   for   the   acquired   land,   as   estimated   by   the 

Collector,   to   the   persons   interested   and   entitled   thereto; 

unless prevented by any of the contingencies mentioned under 

Section 31(2) of the Act.  The use of the word `shall' in Section 

17(3A)   indicates   that   the   enactors   of   law   desired   that   the 

above   mentioned   procedure   should   be   complied   with   by   the 

authority   concerned   prior   to   taking   of   possession.       That   is 

why   the   legislature   has   even   taken   care   to   make   a   provision 

for   deposit   of   due   compensation   in   court   in   terms   of   Section 

31(2)   of   the   Act,   where   an   authority   is   prevented   from 

tendering   the   amount   to   the   claimants   for   reasons   stated   in 

Section   31(1)   of   the   Act.     80   per   cent  of   the   estimated 

compensation   is   to   be   deposited   in   the   Court   to   which 

                                             41

reference   under   Section   18  of  the   Act  would  lie.     This  clearly 

shows   that   there   is   statutory   obligation   upon   the   authorities 

concerned   to   tender   to   the   interested   persons,   compensation 

in   accordance   with   law.     Deposit   of   money,   certainly,   is   the 

condition   precedent to   taking  of  possession   as  is  amply   clear 

from the language `before taking possession of any land'.   The 

amount so deposited or paid in  terms of Section 17(3A) of the 

Act  will  be  taken  into  account  for   determining  the  amount  of 

compensation required to be tendered under Section 31 of the 

Act and provides for the recovery of amounts if it exceeds the 

awarded   amount.     Section   17(3A)   unambiguously   provides   a 

complete   mechanism   of   taking   possession   and   the 

requirement   of   payment   of   80   per   cent                   of   estimated 

compensation to the claimants.

      Now,         I         would         examine     WHAT         ARE         THE 

CONSEQUENCES of default in compliance to the provisions of 

Section 17(3A) of the Act.  The said Section is completely silent 

on such consequences. Where the Legislature has, in specific 

terms,   provided   for   the   extent   of   payment,   mode   of   payment 

                                         42

and even the difficulties which are likely to arise, i.e, where a 

person may  not be entitled  to  receive the compensation  or in 

any other eventuality such as where the compensation cannot 

be paid for the reasons stated in Section 31(1) of the Act, there 

the   Legislature   in   its   wisdom   has   provided   no   contingencies 

and/or consequences of non-deposit of this money.  This is in 

complete   contradistinction   to   the   provisions   contained   in 

Sections   6   and   11A   of   the   Act.     Section   6   provides   that   no 

declaration   shall   be   issued   where   the   period   specified   in   the 

first   proviso   to   Section   6(1)   of   the   Act   has   expired.     In   other 

words,   it   spells   out   the   consequences   of   failure   to   do   an   act 

within the stipulated period. Similarly, Section 11A of the Act 

provides that the acquisition proceedings shall lapse where the 

Collector fails to make an award within a period of two years 

from the date of publication of declaration under Section 6 of 

the Act.

       Thus,   the   legislative   intent   is   very   clear.     Keeping   the 

objects   and   reasons   for   amendment   in   mind,   the   Act   strives 

for a fair balance between the rights of private individuals and 

                                      43

the power of eminent domain of the State and also attempts to 

ensure   expeditious   disbursement   of   compensation,   as 

determined   in   accordance   with   law,   to   the   claimants.   The 

legislature   has   provided   for   every   contingency   for   tendering 

payment,   while   remaining   silent   about   consequences   flowing 

from default under some other provisions.    Sections  11A  and 

17(3A) of the Act are clear illustrations of clarity and purpose 

in   legislative   intent.     When   the   framers   of   law   have   not 

provided for any penal consequences for default in compliance 

to Section 17(3A), then it will be uncalled for to provide such 

consequences by judicial interpretation. While interpreting the 

provisions   for   compensation,   the   Court   can   provide   such 

interpretation   as   would   help   to   bridge   the   gaps   left   by   the 

Legislature,  if  any, in  implementation of  the provisions  of the 

Act.     But   it   will   hardly   be   permissible   for   the   Court   to 

introduce   such   consequences   by   way   of   judicial   dicta,   like 

requiring   lapse   of   acquisition   proceedings.     This   is   not   a 

matter covered by the principles of judicial interpretation. 

                                        44

       It is a well  settled canon  of statutory  interpretation  that 

the   courts   would   neither   add   nor   subtract   from   the   plain 

language of the statutory provision.   In the present case also, 

there   is   hardly   any   justification   for   the   courts   to   take   any 

contrary   view.     Once   the   land   has   vested   in   the   State   and 

there being no provision for re-vesting the land in the original 

owners   under   the   provisions   of   the   Act,   then   it   will   be   in 

consonance with the scheme of the Act and legislative intent to 

give   an   interpretation   that   would   allow   provisions   of   Section 

17(1)   to   operate   without   undue   impediment   and   keep   the 

vesting of land in the State intact.   Otherwise, in some cases 

the purpose for which such lands were  acquired  might stand 

frustrated,   while   in   other   cases   the   purpose   of   acquisition 

might   have   already   been   achieved   and,   therefore,   divesting 

State   of   its   title   and   possession   in   the   acquired   land   will   be 

incapable   of   performance.     Under   such   circumstances,   then, 

to interpret Section 17(3A) of the Act to be so mandatory in its 

absolute terms that the non-payment of money would result in 

vitiating   or   lapsing   entire  acquisition   proceedings,  can   hardly 

be   justified   on   the   strength   of   any   known   principle   of 

                                        45

interpretation of statutes.   This question arises more often, as 

the provisions of Section 17 of the Act are being invoked by the 

Union of India and State Governments very frequently, so, the 

consequences of this default, within the framework of law and 

anything   short   of   invalidation   of   the   acquisition   proceedings 

should be stated  by the court with reference to the  facts  and 

circumstances   of   each   case.     It   is   a   complete   safeguard 

provided   to   the   land   owner   inasmuch   as   the   compensation 

stipulated   under   Section   17(3A)   of   the   Act   should   be   paid   in 

terms   of   the   provisions   of   the   Act   so   that   the   owner   is   not 

made to suffer on both counts i.e. he is deprived of his land as 

well   as   compensation.     It   will   be   unfair   for   the   authorities 

concerned   not   to   pay   the   compensation   as   contemplated 

under   the   provisions   of  the   Act.    It   would   be   just  and   fair   to 

read into the provisions of the Section 17(3A) as imposing an 

obligation   on   the   part   of   the   authorities   concerned/the 

Collector   to   pay   the   compensation   within   the   time   specified 

under   Section   17(3A).     Of   course,   no   specific   time,   within 

which   the   payment  has   to  be  made   in  terms   of  Section  17(1) 

has been stated in the provision.   But, it is a settled principle 

                                       46

of   law   that   wherever   specific   limitations   are   not   stated,   the 

concept   of   `reasonable   time'   would   become   applicable.     So, 

even if it is argued that there is no specific time contemplated 

for   payment/deposit   of   80   per   cent             of   the   estimated 

compensation,   even   then   the   claimants   would   be   entitled   to 

receive the amount expeditiously and in any case within very 

reasonable   time.   If   the   authorities   are   permitted   to   take 

possession   of   the   land   without   payment   of   the   amounts 

contemplated   under   Section   17(3A)   of   the   Act,   then   it   would 

certainly amount to abuse of power of  eminent domain  within 

its known legal limitations.  The authorities should discern the 

distinction   spelt   out   under   Section   16   of   the   Act   on   the   one 

hand and Section 17(1) read with Section 17(3A) of the Act on 

the other.

      Let me examine the judgment of this Court dealing with 

the provisions of Section 17(3A) of the Act.   The judgments of 

different  High  Courts   have   been brought  to   the   notice   of  this 

Court,   taking   divergent   views   on   the   question   whether   the 

provisions of Section 17(3A) are mandatory or directory.  Some 

                                       47

of   these   judgments,   I   would   shortly   refer   to,   if   necessary. 

However,   I   may   notice   that   none   of   these   judgments   have 

specifically   discussed   the   consequences   of   non-adherence   to 

the provisions of Section 17(3A) of the Act.   A Bench of Delhi 

High   Court   in   the   case   of  Banwari   Lal   &   Sons   Pvt.   Ltd.   vs.  

Union   of   India   &   Ors.,   [1991   (1)   DRJ   (Suppl.)   317   (Delhi 

Reported   Journal)],  whilst   quashing   the   notification   issued 

under   Section   4   read   with   Section   17(1)   of   the   Act   on   the 

ground   of   factual   lack   of   urgency   for   acquisition,   held   that 

there  was non-compliance  to the provisions  of Section  17(3A) 

of  the  Act.    Of  course,   the  High  Court   took  the   view  that  the 

notification issued under Section 4 read with Section 17(1) of 

the   Act   was   not   maintainable   and   while   quashing   the   said 

notification, it also held that there was violation of provisions 

of Section 5A of the Act and, in fact, no urgency existed.  There 

was   no   direct   discussion   as   to   whether   the   provisions   of 

Section 17(3A) of the Act are mandatory or directory. However, 

this   judgment   neither   provides   any   reasoning   nor   actually 

states the consequences of non-compliance with the provisions 

of   Section   17(3A).     For   these   reasons,   this   judgment   is   of   no 

                                       48

help to the parties appearing in the present appeal.     Against 

the judgment of Delhi High Court in  Banwari  Lal  (supra), the 

Special   Leave   Petition   preferred   before   this   Court   was 

dismissed at the admission stage itself. 

      In the case of Union of India & Ors. v. Krishan Lal Arneja  

&   Ors.,   [(2004)   8   SCC   453],   a   part   of   the   acquisition   was 

challenged  and writ  petitions  had  been filed for  quashing  the 

notification dated 6th March, 1987 issued under Section 4 and 

Section   17(1)   of   the   Act   by   Banwari   Lal   and   other   owners   of 

the   acquired   lands.   These   writ   petitions   were   allowed   by   a 

learned Single Judge of the High Court, appeal against which 

was dismissed by the Division Bench of the High Court. While 

considering the appeal against the order of the Division Bench, 

this Court also dismissed the same. In the appeal, arguments 

had also been advanced that since the Government before this 

Court had not made the payment of 80 per cent of estimated 

compensation   in   terms   of   Section   17(3A)   of   the   Act,   the 

acquisition   had   lapsed.   However,   in   paragraph   36   of   that 

judgment,   this   Court   declined   to   deal   with   these   contentions 

                                          49

as   it   had   dismissed   the   appeal   on   other   grounds.   The   Court 

incidentally  observed  that it was not  a  fair  stand to be  taken 

by  the   State   before  the  Court  to  argue   that  it could  de-notify 

the acquired land on the plea that it had failed to comply with 

the  statutory  provisions  of the  Act.    In  short, the  question  in 

controversy   in   the   present   case   was   not  actually   pronounced 

upon by the Court in that case.

       The question of the provisions of Section 17(3A) of the Act 

being mandatory or directory again fell for consideration before 

this   Court   in   the   case   of  Tika  Ram   &   Ors.   v.   State   of   U.P.   &  

Ors.   [(2009)   10   SCC   689].   In   this   case,   challenge   to   the 

constitutional validity of the provisions of Section 17 was also 

made.     The   Court,   while   holding   that   the   said   provisions   are 

constitutional,   also   declared   that   the   provisions   of   Section 

17(3A)   were   not   mandatory   and   their   non-compliance   would 

not   vitiate   the   whole   acquisition   proceedings.   The   following 

paragraphs of the judgment are relevant:

              "91. However, the question is as to what 

              happens when such payment is not made 

                                     50

and   the   possession   is   taken.   Can   the 

whole acquisition be set at naught?

92.     In   our   opinion,   this   contention   on 

the   part   of   the   appellants   is   also 

incorrect.   If   we   find   fault   with   the   whole 

acquisition   process   on   account   of   the 

non-payment                    of          80%               of         the 

compensation,   then   the   further   question 

would be as to whether the estimation of 

80% of compensation is correct or not. A 

further controversy can then be raised by 

the landlords that what was paid was not 

80% and was short of 80% and therefore, 

the   acquisition   should   be   set   at   naught. 

Such   extreme   interpretation   cannot   be 

afforded because indeed under Section 17 

itself,   the   basic   idea   of   avoiding   the 

enquiry   under   Section   5-A   is   in   view   of 

the   urgent   need   on   the   part   of   the   State 

Government   for   the   land   to   be   acquired 

for   any   eventuality   discovered   by   either 

sub-section   (1)   or   sub-section   (2)   of 

Section 17 of the Act.

93.

The   only   question   that   would   remain   is 

that         of         the          estimation              of         the 

compensation.   In   our   considered   view, 

even if the compensation is not paid or is 

short   of   80%,   the   acquisition   would   not 

suffer.            One         could            imagine                 the 

unreasonableness   of   the   situation.   Now 

suppose,   there   is   state   of   emergency   as 

contemplated   in   Section   17(2)   of   the   Act 

and the compensation is not given, could

the   whole   acquisition   come  to  a   naught? 

It would entail serious consequences.

                              51

94.

This   situation   was   considered,   firstly,   in 

Satendra   Prasad   Jain  v.   State   of   U.P.  It 

was held therein that once the possession 

is   taken   as   a   matter   of   fact,   then   the 

owner is divested of the title to the land. 

The   Court   held   that   there   was   then   no 

question   of   application   of   even   Section 

11-A.   Commenting   upon  Section   11-A,   it 

was  held  that  that  the   Section   could  not 

be   so   construed   as   to   leave   the 

Government   holding   title   or   the   land 

without   an   obligation   to   determine   the 

compensation, make an award and pay to 

the   owner   the   difference   between   the 

amount   of  the   award  and   the   amount   of 

the   80%   of   the   estimated   compensation. 

The three-Judge Bench of the Court took 

the   view   that   even   where   80%   of   the 

estimated   compensation   was   not   paid   to 

the landowners, it did not mean that the 

possession was taken illegally or that the 

land   did   not   vest   in   the   Government.   In 

short,   this   Court   held   that   the 

proceedings   of   acquisition   are   not 

affected         by         the          nonpayment         of 

compensation.   In   that   case,   the   Krishi 

Utpadan   Mandi   Samiti,   for   which   the 

possession   was   made,   sought   to   escape 

from   the   liability   to   make   the   payment. 

That was not allowed. The Court, in para 

17, held as under : (Satendra Prasad Jain 

case, SCC p. 375, para 17)

       "17.   In   the   instant   case,   even   that 

       80%   of   the   estimated   compensation 

       was   not   paid   to   the   appellants 

       although   Section   17   (3-A)   required 

                                52

       that it should have been paid before 

       possession   of   the   said   land   was 

       taken   but   that   does   not   mean   that 

       the possession was taken illegally or 

       that the said land did not thereupon 

       vest in the first respondent. It is, at 

       any   rate,   not   open   to   the   third 

       respondent, who, as the letter of the 

       Special   Land   Acquisition   Officer 

       dated   27.6.1990   shows,   failed   to 

       make         the          necessary         monies 

       available   and   who   has   been   in 

       occupation   of   the   said   land   ever 

       since   its   possession   was   taken,   to 

       urge   that   the   possession   was   taken 

       illegally and that, therefore, the said 

       land   has   not   vested   in   the   first 

       respondent and the first respondent 

       is   under   no   obligation   to   make   an 

       award."

95.    Further, in a judgment of this Court 

in Pratap v. State of Rajasthan, a similar 

view was reported. That was a case under 

the   Rajasthan   Urban   Improvement   Act, 

1987,   under   which   the   acquisition   was 

made   using   Section   17   of   the   Act.   The 

Court   took   the   view   that   once   the 

possession was taken under Section 17 of 

the   Act,   the   Government   could   not 

withdraw   from   that   position   under 

Section   18   and   even   the   provisions   of 

Section 11-A were not attracted. That was 

of course a case where the award was not 

passed under Section 11-A after taking of 

the   possession.   A   clear-cut   observation 

came   to   be   made   in   that   behalf   in   para 

12, to the effect that the non-compliance 

with   Section   17   of   the   Act,   insofar   as 

                                      53

             payment   of   compensation   is   concerned, 

             did   not   result   in   lapsing   of   the   land 

             acquisition   proceedings.   The   law   laid 

             down   by   this   Court   in   Satendra   Prasad 

             Jain   v.   State   of   U.P.   was   approved.   The 

             Court   also   relied   on   the   decision   in   P. 

             Chinnanna   v.   state   of   A.P.   and   Awadh 

             Bihari   Yadav   v.   State   of   Bihar,   where 

             similar view was taken regarding the land 

             acquisition   proceedings   not   getting 

             lapsed. The only result that may follow by 

             the   non-payment   would   be   the   payment 

             of interest, as contemplated in Section 34 

             and   the   proviso   added   thereto   by   the 

             1984 Act. In that view, we do not wish to 

             further   refer  the   matter,  as  suggested   by 

             Shri  Trivedi,   learned  Senior   Counsel   and 

             Shri   Qamar   Ahmad,   learned   counsel   for 

             the   appellants.   Therefore,   even   on   the 

             sixth   question,   there   is   no   necessity   of 

             any reference."

      As   is   obvious   from   the   above   paragraphs,   there   is   an 

indefeasible obligation on the part of the Government to make 

the   payment   in   terms   of   Section   17(3A)   of   the   Act   but   non-

compliance   thereto   could   not   result   in   vitiation   of   the 

acquisition proceedings. The observations made by this Court 

in the case of  Satendra Prasad  Jain  (supra), in paragraph 17, 

suggest  that the Government was required to hold title to the 

acquired   land   coupled   with   its   obligation   to   determine   the 

                                        54

compensation,  make the award and then to pay to the owner 

the   difference   between   the   amount   of   80   per   cent   of   the 

estimated   compensation   and   the   amount   finally   determined. 

The   Court   even   went   to   the   extent   of   observing   that   non-

payment of 80 per cent of the estimated compensation  per se 

does not mean that possession was taken illegally or that the 

said   land   did   not   thereupon   vest   in   the   Government.   This 

decision   does   provide   any   reasoning   and   conclusions   which 

support   the   view   that   Section   17(3A)   of   the   Act   is   not   a 

mandatory provision. Following this judgment, another Bench 

of this Court in the case of Pratap & Anr. v. State of Rajasthan 

[(1996) 3 SCC 1] took the same view. 

       However,   another   Bench   of   this   Court,   in   the   case   of 

Rajender   Kishan   Gupta  v.  Union   of   India  [(2010)   9   SCC   46], 

had made certain observations which were at some variance to 

the   dicta   of   this   Court   in   the   cases   referred   above.     In   that 

case,   neither   the   validity   nor   the   effects   of   non-compliance 

with   Section   17(3A)   of   the   Act   were   directly   in   issue.   The 

challenge was to a notification issued under Section 4(1) of the 

                                       55

Act for the land which was subsequently needed for the Metro 

Project   in   Delhi.   The   challenge   was   primarily   based   on   the 

ground that the land could only be acquired under the Metro 

Rail Construction Works Act, 1978 and the emergency clause 

could   not   be   used   as   a   way   to   dispense   with   enquiry   under 

Section 5A of the Act. The Court, while dismissing the appeal 

preferred   by   the   claimants   and   rejecting   the   contentions   in 

paragraph 29, made the following observations :

             "In   the   light   of   the   above   discussion,   we 

             are   satisfied   that   the   existence   of   public 

             purpose   and   urgency   in   executing   the 

             project before the Commonwealth Games, 

             the   adjoining   land   belonging   to   DDA 

             being   forest   land   as   per   the   notification 

             and also of the fact that the respondents 

             have   fully   complied   with   the   mandatory 

             requirements including deposit of 80% of 

             the   compensation   amount,   we   are   in 

             entire agreement with the stand taken by 

             the respondents as well as the conclusion 

             of the High Court."

      The   Bench,   dealing   with   the   matter,   did   use   the 

expression   `mandatory   requirements,   including   deposit   of   80 

per   cent   of   the   compensation   amount',   but   there   was   no 

discussion   or   reasoning   of   the   effects   and   consequences   of 

                                       56

such   default,   anywhere   in   the   judgment,   before   it   has   been 

concluded   that   the   said   provisions   are   mandatory.         Thus, 

these observations do not come to the aid of the appellants in 

challenging the entire acquisition proceedings on this ground.

      Consistent   with   the   view   expressed  by  this  Court   in  the 

cases   referred   (supra),   I   am   of   the   considered   view   that   the 

provisions   of   Section   17(3A)   of   the   Act   are   not   mandatory. 

Such a conclusion can safely be arrived at, even for the reason 

that   the   Court   would   have   to   read   into   the   provisions   of 

Section   17(3A)   consequences   and   a   strict   period   of   limitation 

within which amount should be deposited, which has not been 

provided   by   the   Legislature   itself   in   that   section.     The 

consequences and contingencies arising from non-compliance 

of   the   said   provisions   have   not   been   stated   in   the   Act.   Once 

the land  has vested  in the Government, non-compliance  with 

the   obligation   of   payment   of   80   per   cent   of   estimated 

compensation   would   not   render   the   possession   taken   under 

Section   17(1)   as   illegal.   The   land   cannot   be   re-vested   or 

reverted back to the claimants as no provisions under the Act 

                                      57

so prescribe. Furthermore, if the interpretation put forward by 

the   appellants   is   accepted,   it   would   completely   frustrate   the 

objects   and   purpose   of   the   Act,   rather   than   advancing   the 

same. The expression `shall' used in Section 17(3A) has to be 

understood   in   its   correct   perspective   and   is   not   to   be 

construed   as   suggestive   of   the   provisions   being   absolutely 

mandatory   in  its  application.  Inter  alia  for   these   reasons   and 

as   per   the   above   discussions,   I   hold   that   the   provisions   of 

Section   17(3A)   are   not   mandatory.   They   are   directive 

provisions,   though   their   compliance   is   necessary   in   terms   of 

the Act.

      Having held as above, I hasten to add that the obligation 

on   the   part   of   the   Government   or   concerned   authority   to 

deposit   the   amount   prior   to   taking   possession   under   Section 

17(1)   of   the   Act   should   essentially   be   complied   with.   The 

amount of 80 per cent of the estimated compensation in terms 

of   Section   17(3A)   should   be   deposited.   Once     we   read   the 

provisions   of   Sections   17(1)   and   17(3A)   conjunctively,   it 

implies   that  the   amounts   are   to   be   deposited  within   15   days 

                                        58

from   the   publication   of   the   notice   in   terms   of   Section   9(1)   of 

the  Act and  before  taking  of  possession  of  the  acquired land. 

The Legislature has sufficiently indicated that the payment of 

the   due   80   per   cent   of   compensation   should   be   made   at   the 

earliest   and,   particularly,   before   possession   is   taken.   Non-

compliance   of   the   provisions   of   Section   17(3A)   would   not 

vitiate the acquisition proceedings, but depending on the facts 

of a given case, the payment should be made within the time 

indicated   and   in   any   case   within   a   reasonable   time,   and   the 

claimant   should   then   be   entitled   to   additional   benefits   for 

such   non-compliance.   The   Court   would   fill   a   part   of   the   gap 

which has remained unfilled by the Legislature.

       Irrespective   of   whether   the   provision   is   held   to   be 

mandatory   or   directory,   compliance   with   its   substance   is 

equally important.  In either case, the authority entrusted with 

a duty is not absolved of its obligation to perform the specified 

duty or obligation in the manner stated in law.  It is primarily 

the consequences which result from non-performance of duty, 

which   are   of   significance   in   determining   the   impact   of 

                                         59

mandatory   or   directory   nature   of   a   provision.   Normally,   in 

both   cases,   some   consequences   should   flow   from   non-

performance.     Even   if   the   provisions   of   Section   17(3A)   are 

directory,   as   held   by   me   above,   the   deposit   of   80   per   cent   of 

estimated compensation within the period of limitation i.e. 15 

days   and   prior   to   taking   possession   of   the   land,   has   to   be 

made.     There   is   no   ambiguity   in   this   requirement.     Thus,   it 

shall   be   the   duty   of   the   Court   to   fill   the   lacuna   (i.e.,   the 

consequences   of   non-payment   of   compensation)   to   complete 

the chain of the legislative scheme contained in Section 17 of 

the   Act.     Having   taken   recourse   to   the   emergency   provisions 

and having taken possession of the land, the Government and 

its authorities cannot be permitted to defer the payment of the 

requisite   amount,   in   terms   of   Section   17(3A)   of   the   Act, 

indefinitely   or   for   an   unduly   long   period.   A   responsibility   is 

cast upon the authorities concerned to make payments within 

time and not unduly cause inconvenience and harassment to 

persons interested in the compulsorily acquired land and who 

have been deprived  of possessory benefits also.   Persons who 

are  so  deprived  of their   land and possessory  benefits thereof, 

                                      60

are not in a position to carry out agricultural activity or derive 

any   other   benefit   as   they   might   have   been   deriving   prior   to 

compulsory   acquisition/taking   possession   of   the   land.     In 

other words, it is a case of deprivation of property and to some 

extent   deprivation   of   sources   of   income.     Without   hesitation, 

the   claimants/owners   of   land   should   be   and   ought   to   be 

entitled   to   certain   additional   benefits   within   the   legislative 

framework of the Act.  Certain additional and interest benefits 

are   provided   under   Sections   23(1A),   23(2),   28   and   34   of   the 

Act.   The   legislature   has   even   taken   care   of   providing   higher 

rates of interest where the possession of the land has already 

been taken and compensation has not been paid or deposited 

within   the   specified   time   or   in   the   manner   prescribed   under 

Section 34 of the Act.  Proviso to this Section states that where 

the   compensation   payable,   or   any   part   thereof,   has   not   been 

paid or deposited within a period of one year from the date on 

which possession is taken, interest at the rate of 15 per cent 

per annum shall be payable from the date of expiry of the said 

period of one year, calculated on the amount of compensation 

or   part   thereof   which   has   not   been   paid   or   deposited   before 

                                       61

the date of such expiry, until the time such payment is finally 

made.   We   have   to   read   the   provisions   of   Section   34   together 

with   the   provisions   of   Sections   17(1)   and   17(3A)   of   the   Act. 

They have to be construed harmoniously, keeping in mind the 

object   sought   to   be   achieved   by   a   conjoint   reading   of   these 

provisions.   The   expression   `before   taking   possession   of   the 

land'  has   been   used   in   Section   17   read   with   Section   17(3A) 

and in Section 34 as well.   Once the Government has invoked 

the   emergency   provisions,   it   is   pre-supposed   that   the 

Government   needs  the   land   urgently   and,   in   its   wisdom,   has 

decided   that   it   is   not   in   public   interest   to   go   through   the 

normal   procedure   prescribed   for   acquisition   and   payment   of 

compensation under Part II of the Act.   It requires immediate 

possession   of   the   land   for   achievement   of   the   purpose   for 

which   land   was   required.     As   the   Government   would   take 

possession   by   depriving   the   land   owners   of   some   of   their 

rights,   as   would   have   been  available   to   them   under   normal 

acquisition   procedure,   the   Legislature   has   created   special 

safeguards   in   their   favour.     Firstly,   they   would   be   given   15 

days   notice   prior   to   taking   of   possession   of   the   land   (Section 

                                       62

9(1)   of   the   Act).   Secondly,   80   per   cent   of   the   estimated 

compensation shall be paid to them in terms of Section 17(3A) 

of   the   Act,   before   the   possession   is   taken.     Thus,   the 

Legislature   has   balanced   the   rights   and   obligations   between 

the   parties.     Section   34,   therefore,   cannot   be   read   so   as   to 

destroy   the   protections   or   safeguards   provided   to 

claimants/owners   of   the   land   under   Section   17   of   the   Act. 

These   provisions   must   be   read   harmoniously.                    These 

provisions   should   be   construed   so   as   to   give   benefit   to   the 

owners   of   the   land   against   compulsory   acquisition,   rather 

than   accepting   an   interpretation   which   would   defeat   the 

benefits intended by the Legislature.  The Legislature was fully 

aware of the provisions of Section 34 while introducing Section 

17(3A) into the Act, as both the provisions were introduced by 

the   same   Amending   Act   of   1984.     This   clearly   demonstrates 

the   legislative   intent   that   the   protections   specified   under 

Section   17(1)   would   operate   in   their   own   field   and   the 

provisions of Section 34 would also apply in its own sphere.  It 

will   be   unfair,   if   the   Government   takes   possession   of   the 

property within 15 days of the notice issued under Section 9(1) 

                                      63

(as   is   contemplated   under   Section   17(1)   of   the   Act)   and   does 

not make payment of compensation for a long period, with no 

additional liability whatsoever. It appears to me that this is not 

the legislative intent that the Government would not be liable 

to pay higher rate of interest where it has taken possession of 

the land in exercise of its powers under Section 17 of the Act. 

It will be unfair if the liability to pay higher rate of interest in 

terms of Section 34 would arise only after a period of one year 

from   the   date   of   possession   even   in   cases   of   emergent 

acquisition.     Such  an  interpretation  may   result  in  frustrating 

the balance sought to be created by the Legislature. For these 

reasons, I am of the considered view that the statutory benefit 

contained in Section 34 of the Act should be made applicable 

to  the  provisions  of  Section  17(1)  read with Section 17(3A)  in 

the   manner   that   it   would   give   the   requisite   benefit   to   the 

owners/claimants   of   the   land   rather   than   deprive   them   of 

both,   their   land   and   income,   without   any   additional   benefit 

despite non-compliance of the provisions of the Act.  Thus, the 

owners/claimants   should   be   entitled   to   receive,   on   the 

strength   of   these   provisions   and   alike,   the   interest   payable 

                                        64

under  the  proviso  to  Section  34  i.e.  interest   at  the  rate  of  15 

per cent per annum from the date of expiry of the period of 15 

days   as   stated   under   Section   17(1)   and   from   taking   of 

possession of the land from the owners/persons interested in 

the   land   till   payment   of   compensation   in   terms   of   Section 

17(3A) of the Act.

       These   conditions   have   to   be   satisfied   cumulatively   and 

not  alternatively,  to  give  rise  to  the  liability  to  pay   interest  of 

15  per  cent  from  the  date  afore-stated.    This approach  that  I 

am   adopting   is   restricted   in   application   to   the   acquisitions 

made by the Government in exercise of its emergency powers 

under   Section   17   of   the   Act.     Section   34   would   otherwise 

operate in its own sphere and only after the lapse of the period 

specified   in   the   proviso.   The   conclusion   of   the   above 

discussion   is   that   non-compliance   of   provisions   of   Section 

17(1)   read   with   Section   17(3A)   would   not   render   the 

acquisition proceedings invalid or void ab initio in law however, 

liability   to   pay   interest  at   the   rate   of  15   per   cent   per   annum 

would arise from the date and for the period afore-noticed.  

                                      65

Do the provisions of Section 11A apply to the acquisition 

proceedings commenced by the Government in exercise of 

its powers of urgency under Section 17 of the Act?

      I   have   already   noticed   that   Section   11A   of   the   Act   was 

introduced into the statute book by the Legislature vide Land 

Acquisition (Amendment) Act (68 of 1984).  This provision was 

introduced   primarily   to   provide   safeguards   and   to   secure   the 

interests   of   owners/persons   interested,   whenever   their   land 

was acquired under the provisions of the Act.   Section 11A of 

the Act reads as under :

            "11A.   Period   within   which   an   award 

            shall   be   made.--(1)   The   Collector   shall 

            make an award under section 11 within a 

            period   of   two   years   from   the   date   of   the 

            publication   of   the   declaration   and   if   no 

            award   is   made   within   that   period,   the 

            entire   proceedings   for   the   acquisition   of 

            the land shall lapse:

            Provided   that   in   a   case   where   the   said 

            declaration has been published before the 

            commencement   of   the   Land   Acquisition 

            (Amendment)   Act,   1984,   the   award   shall 

            be made within a period of two years from 

            such commencement.

            Explanation.-In   computing   the   period   of 

            two   years   referred   to   in   this   section   the 

            period   during   which   any   action   or 

            proceeding   to   be   taken   in   pursuance   of 

                                        66

             the said declaration is stayed by an order 

             of a Court shall be excluded."

      A   bare   reading   of   the   above   provision   shows   that   the 

Legislature places an obligation upon the Collector to make an 

award at the earliest. Wherever the award under Section 11 of 

the Act has not been  made within two years from the date of 

publication   of   the   declaration,   the   entire   proceedings   for 

acquisition of land shall lapse.   Explanation to Section 11A of 

the   Act   further   excludes   from   this   period,   any   period   during 

which   any   action   or   proceeding,   to   be   taken   in   pursuance   of 

the   said   declaration,   is   stayed   by   an   order   of   a   Court   which 

had   been   in   force.     Exclusion   of   no   other   period   is 

contemplated under this provision.   Thus, a definite intention 

of the framers of law is clear that the award should be made at 

the earliest and, in any case, within a maximum period of two 

years   from   the   declaration   under   Section   6   of   the   Act,   if   the 

acquisition proceedings are to survive.   The acquisition under 

the Act being compulsory acquisition, a safeguard or right has 

been provided to the private party against the State. Thus, the 

statute imposes a duty upon the State to act within time and 

                                      67

also provides for consequences that shall ensue in the event of 

default.     These   consequences   are   of   a   very   serious   nature, 

whereby the entire acquisition proceedings shall stand lapsed. 

This   would   render   the   land   free   from   acquisition   or   any 

restriction and title over the land would stand reverted to the 

owners/persons interested.

      I   have   already   discussed   in   some   detail   the   principles 

which will  help  the Court in  determining whether  a provision 

is directory or mandatory.  It is clear from the substance of the 

language   and   from   the   intention   of   the   legislature   that   the 

right created in favour of the citizen and the duties imposed on 

the State should be construed strictly.  Section 11A of the Act 

provides  for  discharge of  obligations  within the specified  time 

and   there   are   serious   consequences   of   such   non-fulfillment. 

This would clearly lead to the conclusion that the provisions of 

Section   11A   of  the   Act   are   capable   of   strict   construction   and 

are   mandatory   in   their   application.     In   number   of   cases, 

including   the   case   of  Mohan   &   Anr.  v.  State   of   Maharahtra 

[(2007)   9  SCC   431],   this   Court   has   already   held   that  Section 

                                       68

11A of the Act is mandatory.   This view, with respect, and for 

the reasons recorded above, I follow.  

      A   three-Judge   Bench   of   this   Court   in   the   case   of 

Satendra   Prasad   Jain  (supra)   went   further   to   specifically 

consider the question  as to whether the provisions  of Section 

11A of the Act were attracted and, if so, whether they should 

be strictly construed and where the possession of the acquired 

land is taken and it is vested in the Government under Section 

17 of the Act, whether the acquisition proceedings could lapse 

in terms of Section 11A of the Act.  Answering the question in 

the negative, the Court stated that the Government could not 

withdraw from the acquisition under Section 48 of the Act and 

claim   the   benefit   of   its   own   default   in   not   making   an   award 

within   the   period   of   two   years.     The   Court   laid   down   the 

following dictum:

             "15. Ordinarily, the Government can take
             possession   of   the   land   proposed   to   be 

             acquired   only   after   an   award   of 

             compensation in respect thereof has been 

             made under Section 11. Upon the taking 

             of   possession   the   land   vests   in   the 

             Government,  that  is  to  say,  the  owner   of 

             the land loses to the Government the title 

                              69

to it. This is what Section  16 states. The 

provisions of Section 11-A are intended to 

benefit   the   landowner   and   ensure   that 

the award is made within a period of two 

years   from   the   date   of   the   Section   6 

declaration.   In   the   ordinary   case, 

therefore, when Government fails to make 

an   award   within   two   years   of   the 

declaration under Section 6, the land has 

still not vested in the Government and its 

title   remains   with   the   owner,   the 

acquisition   proceedings   are   still   pending 

and, by virtue of the provisions of Section 

11-A, lapse. When Section                        17(1)         is 

applied          by         reason         of         urgency, 

Government takes possession of the land 

prior   to   the   making   of   the   award   under 

Section   11   and   thereupon   the   owner   is 

divested   of   the   title   to   the   land   which   is 

vested   in   the   Government.   Section   17(1) 

states so in unmistakable terms. Clearly, 

Section   11-A   can   have   no   application   to 

cases   of   acquisitions   under   Section   17 

because the lands have already vested in 

the Government and there is no provision 

in  the   said  Act  by  which   land  statutorily 

vested   in   the   Government   can   revert   to 

the owner.

16.  Further,   Section   17(3-A)   postulates
that the owner will be offered an amount 

equivalent to 80 per cent of the estimated 

compensation   for   the   land   before   the 

Government takes possession of it under 

Section   17(1).   Section   11-A   cannot  be  so 

construed   as   to   leave   the   Government 

holding   title   to   the   land   without   the 

obligation   to   determine   compensation, 

make an award and pay to the owner the 

difference   between   the   amount   of   the 

award   and   the   amount   of   80   per   cent   of 

the estimated compensation."

                                      70

      This   judgment   was   followed   by   another   Bench   of   this 

Court   in   the   case   of  Awadh   Bihari   Yadav   &   Ors.  v.  State   of  

Bihar  &  Ors.  [(1995) 6 SCC 31],  which held,  "...we,  therefore, 

hold that the land acquisition proceedings in the instant case 

did not lapse...".  

      The   principle   of   law   stated   in  Satendra   Prasad   Jain  

(supra)   was   again   followed   by   this   Court   in   the   case   of  P.  

Chinnanna   &   Ors.  v.  State   of   A.P.   &   Ors.  [(1994)   5   SCC   486] 

and  Pratap  (supra) and in the case of  Allahabad  Development  

Authority  v.  Nasiruzzaman   &   Ors.    [(1996)   6   SCC   424],   this 

Court held as under :

             "In   the   impugned   judgment,   it   would
             appear that the learned Judges asked the
             counsel to verify whether the award came
             to   be   made   within   two   years,   as
             indicated. The counsel on verification had
             stated   that   the   award   was   not   made
             within two years from the commencement
             of   the   Amendment   Act,   namely,   24-9-
             1984.   Consequently,   the   declaration   was
             given   that   the   notification   under   Section
             4(1)   and   the   declaration   under   Section   6
             stood   lapsed.   This   question   was
             examined   by   this   Court   in  Satendra
             Prasad   Jain  v.  State   of   U.P.  and  Awadh
             Bihari   Yadav  v.  State   of   Bihar  and   held
             that Section 11-A does not apply to cases
             of   acquisitions   under   Section   17   where
             possession   was   already   taken   and   the
             land   stood   vested   in   the   State.   The 

                                      71

             notification   under   Section   4(1)   and
             declaration  under  Section  6  do  not lapse
             due   to   failure   to   make   an   award   within
             two   years   from   the   date   of   the
             declaration. The view of the High Court is
             erroneous in law."

      In   a   very   recent   judgment   of   a   Division   Bench   of   this 

Court,   (to   which,   one   of   us,   Asok   Kumar   Ganguly,   J.   was   a 

member) in the case of Banda Development Authority, Banda v. 

Moti   Lal   Agarwal   &   Ors.  [2011   (5)   SCALE   173],   this   Court 

followed the aforesaid view with further clarification.  Usefully, 

paragraphs 33, 36 and 38 of the said judgment can be referred 

to at this stage, which read as under :

             "33.         XXX          XXX          XXX

             ... v) If beneficiary of the acquisition is an 

             agency/instrumentality   of   the   State   and 

             80%   of   the   total   compensation   is 

             deposited   in   terms   of   Section  17(3A)  and 

             substantial   portion   of   the   acquired   land 

             has   been   utilized   in   furtherance   of   the 

             particular public purpose, then the Court 

             may reasonably presume that possession 

             of the acquired land has been taken.

                          XXX          XXX          XXX  

             36. Once it is held that possession of the 

             acquired   land   was   handed   over   to   the 

             BDA on 30.6.2001, the view taken by the 

             High   Court   that   the   acquisition 

                                       72

             proceedings   had   lapsed   due   to   non-

             compliance   of   Section   11A   cannot   be 

             sustained......

                           XXX          XXX           XXX

             38.    In  the  result,  the   appeal  is   allowed. 

             The impugned order is  set aside  and the 

             writ petition filed by Respondent No. 1 is 

             dismissed   with   cost   quantified   at   Rs. 

             1,00,000/-.   Respondent   No.   1   shall 

             deposit   the   amount   of   cost   with   the 

             Appellant   within   a   period   of   two   months 

             from today."

      However, the learned counsel appearing for the appellant 

has placed reliance upon a judgment of this Court in the case 

of Yusufbhai Noormohmed Nendoliya v. State of Gujarat [(1991) 

4   SCC   531]   to   contend   that   the   provisions   of   Section   11A   of 

the  Act are  applicable  to  the  acquisition  under   Section   17  as 

well.     For   non-adherence   to   those   provisions,   the   entire 

acquisition proceeding should be declared to have lapsed and 

the applicants should be entitled to their lands free from any 

encumbrance.  Let me analyze this judgment to appreciate the 

contention raised by the counsel appearing for the appellants. 

In   this   case,   the   appellants   were   occupants   of   the   lands 

                                      73

sought to be acquired by the State of Gujarat for the purposes 

of establishing North Gujarat University and notification under 

Section 6 of the Act in respect of the said land was issued on 

12th  May,   1988.     An   interim   order   restraining   the   State   from 

taking   possession   was   granted   by   the   Court.     However,   the 

Acquisition   Officer   proceeded   to   issue   a   notice   under   Section 

9(1) of the Act and determined the compensation payable.   As 

the   award   had   not   been   made,   the   appellants   therein   had 

made a representation to the Government that the award had 

not been made within the period of two years mentioned under 

Section   11A   of   the   Act   and,   therefore,   the   acquisition 

proceedings   had   lapsed.     This   plea   was   rejected.     The 

appellants   filed   an   application   challenging   the   said   decision, 

praying for a declaration that the acquisition proceedings had 

lapsed.  The Division Bench of the Gujarat High Court took the 

view   that   the   explanation   to   Section   11A   is   not   confined   to 

stay   of   making   of   the   award   pursuant   to   notification   under 

Section 6, but it is widely worded and covers in its sweep the 

entire   period   during   which   any   matter   or   proceedings   due   to 

be taken are stayed by a competent Court.   This decision was 

                                      74

challenged   before   this   Court.     In   other   words,   this   Court,   in 

Yusufbhai      (supra),     was   primarily   concerned   with   the 

interpretation   of   Explanation   to   Section   11A   of   the   Act   and 

was determining the period which needs to be excluded while 

computing   the  limitation   period  of  two   years   provided for   the 

making   of   an   award.     While   rejecting   the   view   taken   to   the 

contrary   by   a   Single   Judge   of   the   Kerala   High   Court,   this 

Court made a reference to taking of possession under Section 

17 of the Act and held : 

             "In the first place, as held by the learned 

             Single   Judge   himself,   where   the   case   is 

             covered by Section 17, the possession can 

             be taken before an award is made and we 

             see   no   reason   why   the   aforesaid 

             expression   in   the   Explanation   should   be 

             given   a   different   meaning   depending 

             upon   whether   the   case   is   covered   by 

             Section   17   or   otherwise...   The   benefit   is 

             that   the   award   must   be   made   within   a 

             period   of   two   years   of   the   declaration, 

             failing   which   the   acquisition   proceedings 

             would lapse and the land would revert to 

             the landholder...".

      It is obvious from a bare reading of the above observation 

that the question  of applicability of Section 11A to acquisition 

                                      75

proceedings   under   Section   17   was   not   in   issue   before   the 

Court.     This   controversy   was   neither   argued   nor   was   it   even 

remotely necessary for the adjudication of the dispute between 

the   parties.     These   observations   are   merely   an  obiter  of   the 

Court, which is made to support its conclusion in paragraph 8 

of the judgment and cannot be treated as ratio decidendi of the 

judgment   or   a   precedent   for   the   proposition   raised   in   the 

present case.  The learned counsel attempted to argue that the 

expression   `whether   the   case   is   covered   by   Section   11   or 

otherwise'   unequivocally   states   the   principle   of   law   that 

Section 11A is applicable to the present case.   I am unable to 

accept   this   contention   as   it   is   not   an   authority   for   the 

proposition.     This   controversy   was   never   raised   before   the 

Bench.     The   argument   raised   on   behalf   of   the   appellants   is, 

therefore, misplaced.  

      A   half   hearted   attempt   was   also   made   by   the   learned 

counsel for the appellants to advance the argument that there 

is   difference   of  opinion  by   equi  Benches  of  this   Court,   in  the 

case   of  Satendra   Prasad   Jain  (supra)   on   the   one   hand   and 

                                        76

Yusufbhai   Noormohmed   Nendolia  (supra)   on   the   other   and, 

therefore, this matter should be referred to a larger Bench.   I 

am   not   impressed   with   this   contention   at   all.     There   is   no 

conflict.   Satendra Prasad  Jain  (supra) lays down the law and 

on   true   application   of   the   principle   of  ratio   decidendi,  it   is   a 

direct   precedent   for   the   proposition   involved   in   the   present 

case.  I can squarely answer the questions of law arising in the 

present   case   with   reference   to   the   settled   principles   and, 

therefore, have no hesitation in rejecting this request made on 

behalf of the appellants.

       Let me also examine the other reasons which will support 

the view taken by this Court in  Satendra Prasad  Jain  (supra) 

and   followed   in   subsequent   cases   referred   above.     Section 

17(1)   of   the   Act   uses   the   expression   `though   no   such   award 

has been made'.   This clearly demonstrates that making of an 

award   is   not   a  sine   qua   non  for   issuance   of   a   notification 

under  Section  4(1)   read with  Section  17(1)   of  the   Act  or even 

taking   possession   in   terms   thereof.       After   publication   of   a 

notification under Section 4 read with Sections 17(1) and 17(4) 

                                        77

of   the   Act,   the   authority   is   obliged   only   to   publish   a   notice 

under Section 9(1) of the Act and comply with the provisions of 

Section   17(3A)   before   it   can   take   possession   within   the 

stipulated   period.    Once   possession   of   the   land   is   taken,   it 

shall   thereupon   vest   absolutely   in   the   Government   free   from 

all   encumbrances.     In   other   words,   Section   17(4)   itself   is   a 

permissible exception to the provisions of Section 11 of the Act 

and,   therefore,   the   question   of   enforcing   Section   11A   against 

proceedings under Section 17 would not arise.   Under Section 

16,   the   land   shall   vest   in   the   Government   free   from   all 

encumbrances only after the award is made and possession is 

taken.   In   contradistinction   to   this,   under   Section   17(1)   the 

land   shall   vest   absolutely   in   the   Government   free   from   all 

encumbrances   even   when   no   award   is   made   and   possession 

thereof   is   taken   in   terms   of   Sections   17(1)   and   17(3A)   of   the 

Act.     We   have   to   give   the   language   of   Section   17(1)   its   plain 

meaning, within   the  field  of  its  operation.     Another reason  in 

support of taking such a view is that, once such possession is 

taken   and   the   land   is   so   vested,   the   Act   does   not   make   any 

provision   for   re-vesting   of   land   in   the   owners/persons 

                                      78

interested.     Reversion   of   title   or   possession   of   property 

acquired,   which   has   vested   in   the   Government   or   in   the 

authority   for   whose   benefit   such   lands   are   acquired,   is 

unknown   to   the   scheme   of   the   Act.     To   introduce   such   a 

concept by interpretative process would neither be permissible 

nor proper.

Discussion   on   reverting   back   of   land   to   the   owners   in 

terms of Section 48 of the Act

      A   Constitution   Bench   of   this   Court   (to   which   I   was   a 

member)   in   the   recent   judgment   in   the   case   of  Offshore  

Holdings   Pvt.   Ltd.  v.  Bangalore   Development   Authority   &   Ors. 

[(2011)   3   SCC   139],   while   dealing   with   the   provisions   of 

Sections   27   and   36   of   the   Bangalore   Development   Authority 

Act   read   with   the   provisions   of  the   Land   Acquisition   Act   and 

while referring to non-reversion of property to owners where it 

is vested in the Government, held as under :

             "Where,   upon   completion   of   the 

             acquisition   proceedings,   the   land   has 

             vested  in   the   State  Government   in  terms 

             of Section 16 of the Land Acquisition Act, 

             the   acquisition   would   not   lapse   or 

                                     79

            terminate   as   a   result   of   lapsing   of   the 

            scheme under Section 27 of the BDA Act. 

            An   argument   to   the   contrary   cannot   be 

            accepted   for   the   reason   that   on   vesting, 

            the land stands transferred and vested in 

            the   State/Authority   free   from   all 

            encumbrances   and   such   status   of   the 

            property   is   incapable   of   being   altered   by 

            fiction of law either by the State Act or by 

            the   Central   Act.     Both   these   Acts  do   not 

            contain   any   provision   in   terms   of   which 

            property,   once   and   absolutely,   vested   in 

            the State can be reverted to the owner on 

            any condition.  There is no reversal of the 

            title   and   possession   of   the   State. 

            However,   this   may   not   be   true   in   cases 

            where   acquisition   proceedings   are   still 

            pending and land has not been vested in 

            the Government in terms of Section 16 of 

            the Land Acquisition Act."

      As   already   discussed,   no   award   is   required   to   be   made 

before the provisions of Section 17(1) can be invoked.  Such an 

approach   is   further   buttressed   by   another   factor   that   is 

reflected  under  Section   17(3B)   of  the   Act.    The  amount  of  80 

per   cent   of   the   estimated   compensation   deposited   under 

Section  17(3A)  of  the  Act  is to  be finally  adjusted   against  the 

award made under Section 11 in terms of Section 17(3B) of the 

Act.  A cumulative reading of these provisions clearly suggests 

                                         80

that provisions of Section 11A of the Act can hardly be applied 

to the acquisition under Section 17 of the Act.

       Another   point   which   would   support   the   view   that   I   am 

taking is with reference to the provisions of Section  48 of the 

Act.   Section  48 empowers the Government to withdraw from 

the   acquisition   of  the  land  of   which   possession   has   not  been 

taken.   Where   the   Government   withdraws   from   such   an 

acquisition,   it   is   its   duty   to   determine   the   amount   of 

compensation   for   the   damages   suffered   by   the   owners   as   a 

consequence   of   the   notice   or   any   other   proceeding   taken 

thereunder, which amounts have to be paid as per provisions 

of   Part   III.     Section   48,   thus,   is   a   clear   indication   that   the 

power   of   the   Government   to   withdraw   the   acquisition   is 

subject   to   the   limitation   stated   under   Section   48   itself.     The 

scheme of Section 48 can be summarized as follows:

A. Except in cases provided under Section 36, the Government 

   has the power to withdraw from the acquisition of any land;

B. Provided the possession of such land had not been taken;

                                      81

C. Government is liable to pay compensation for the damages 

   suffered   by   the   owner   as   a   consequence   of   notice   or   any 

   proceeding   thereunder   which   have   to   be   computed   in 

   accordance with the provisions of Part III.

      There is no ambiguity in the language of Section 48 of the 

Act   to   give   it   any   other   interpretation   except   that   the 

Government is not vested with the power of withdrawing from 

the acquisition of any land, of which the possession has been 

taken.   Where   the   award   has   been   made   and   possession   has 

been   taken,   the   land   vests   in   the   Government   in   terms   of 

Section   16   of   the   Act.     On   the   contrary,   the   land   vests 

absolutely   in   the   Government   free   from   all   encumbrances 

where   award   has   not   been   made   and   only   possession   as 

contemplated  under   Section   17(1)   of  the   Act  has  been  taken. 

If the Government has no power to withdraw from acquisition 

of any land, the possession of which has been taken, then by 

no stretch of imagination can it be held that the Government 

will   have   the   power   to   withdraw   from   the   acquisition   of   any 

land where the land has vested in the Government or the land 

                                      82

has   been   subsequently   transferred   in   favour   of   an   authority 

for   whose   development   activity   the   lands   were   acquired.     In 

the   case   of  Lt.   Governor   of   Himachal   Pradesh   and   Anr.   v.  

Avinash Sharma [(1970) 2 SCC 149 ], this Court took the view 

that   once   the   notification   under   Section   17(1)   of   the   Act   is 

issued and land accordingly vested with the Government, the 

notification   can   neither   be   cancelled   under   Section   21   of   the 

General   Clauses   Act   nor   can   it   be   withdrawn   in   exercise   of 

powers conferred by the Government under Section 48 of the 

Act.     This   Court   in  Avinash   Sharma's   case  (supra)   held   as 

under :

             "But these observations do not assist the 

             case   of   the   appellants.   It   is   clearly 

             implicit   in   the   observations   that   after 

             possession has been taken pursuant to a 

             notification   under   Section   17(1)   the   land 

             is   vested   in   the   Government,   and   the 

             notification   cannot   be   cancelled   under 

             Section   21   of   the   General   Clauses   Act, 

             nor   can   the   notification   be   withdrawn   in 

             exercise   of   the   powers   under   Section   48 

             of   the   Land   Acquisition   Act.   Any   other 

             view would  enable  the  State  Government 

             to   circumvent   the   specific   provision   by 

             relying   upon   a   general   power.   When 

             possession   of   the   land   is   taken   under 

             Section   17(1),   the   land   vests   in   the 

                                       83

             Government.   There   is   no   provision   by 

             which   land   statutorily   vested   in   the 

             Government reverts to the original owner 

             by mere cancellation of the notification."

      In   another   case   titled  Rajasthan   Housing   Board   and  

Others v. Shri Kishan  and Others [(1993) 2 SCC 84], this Court 

was   concerned   with   a   notification   issued   under   Section   4   of 

the   Act   and   also   a   notification   issued   a   few   days   after   the 

issuance   of   the   first   notification,   under   Section   17(4)   of   the 

Act.   These   were   challenged   on   the   ground   that   there   was   no 

urgency and so, the provisions of Section 5A of the Act could 

not   be   dispensed  with   and   that  there   were   structures   on   the 

land which could  not have  been  acquired.   An  argument  was 

also   raised   that   the   Government   had   intended   and,   in   fact, 

issued  letters de-notifying the  lands acquired and, thus,  they 

should   be   treated   as   having   been   de-notified   as   per   the 

decision   of   the   Government.     In   these   circumstances,   the 

Court held as under:

             "26.  We are of the  further opinion that in 

             any event the government could not have 

             withdrawn   from   the   acquisition   under 

             Section   48   of   the   Act   inasmuch   as   the 

             Government  had taken  possession  of  the 

                                   84

          land.   Once   the   possession   of   the   land   is 

          taken it is not open to the government to 

          withdrawn from the acquisition. The very 

          letter dated 24.2.1990 relied upon by the 

          counsel   for   the   petitioner   recites   that 

          "before   restoring   the   possession   to   the 

          society   the   amount   of   development 

          charges will have to be returned back...." 

          This   shows   clearly   that   possession   was 

          taken over by the Housing Board. Indeed 

          the very tenor of the letter  is,  asking  the 

          Housing   Board   as   to   what   development 

          work   they   had   carried   out   on   the   land 

          and   how   much   expenditure   they   had 

          incurred   thereon,   which   could   not   have 

          been   done   unless   the   Board   was   in 

          possession   of   the   land.   The   Housing 

          Board   was   asked   to   send   the   full 

          particulars of the expenditure and not to 

          carry   on   any   further   development   works 

          on   that   land.   Reading   the   letter   as   a 

          whole,   it'   cannot   but   be   said   that   the 

          possession   of   the   land   was   taken   by   the 

          government and was also delivered to the 

          Housing   Board.   Since   the   possession   of 

          the   land   was   taken,   there   could   be   no 

          question   of   withdrawing   from   the 

          acquisition under Section 48 of the Land 

          Acquisition Act, 1894."

     In   the   case   of     Sanjeevanagar   Medical   &   Health  

Employees' Cooperative Housing Society v. Mohd. Abdul Wahab  

and  Others  [(1996) 3 SCC 600], it was held  that the acquired 

land had already been transferred to the society for the benefit 

                                      85

of   which   the   lands   were   acquired,   by   invoking   the   urgency 

clauses.    The   question   of   reverting   acquired   land   had   not 

arisen   in   this   case   directly,  as   the   Court   was   primarily 

concerned   with   the   contention   that   the   notification   issued 

under   Section   4   was   liable   to   be   quashed.     A   question,   with 

regard   to   inconsistency   between   the   Central   and   the   State 

Acts,   was   also   raised.   The   Court,   in   paragraph   12   of   the 

judgment, held that by operation of Section 16, land had been 

vested   in   the   State   free   from   all   encumbrances   and   while 

referring   to   the   judgment   of   this   Court   in  Satendra   Prasad  

Jain  (supra) reiterated the principle that `Divesting the title to 

the   land   statutorily   vested   in   the   Government   and   reverting 

the same to the owner is not contemplated under the Act. Only 

Section   48  gives   power   to   withdraw  from   acquisition   that  too 

before possession is taken.' 

      This   principle   was   followed   by   another   Bench   of   this 

Court   in   the   case   of  Bangalore   Development   Authority   and  

Others   v.   R.   Hanumaiah   and   Others  [(2005)   12   SCC   508] 

wherein, it was held as follows:

                                          86

              "46.   The   possession   of   the   land   in 

              question was taken in the year 1966 after 

              the   passing   of   the   award   by   the   Land 

              Acquisition   Officer.   Thereafter,   the   land 

              vested in the Government which was then 

              transferred   to   CITB,   predecessor-in-

              interest of the appellant. After the vesting 

              of the land and taking possession thereof, 

              the   notification   for   acquiring   the   land 

              could   not   be   withdrawn   or   cancelled   in 

              exercise   of   powers   under   Section   48   of 

              the   Land   Acquisition   Act.   Power   under 

              Section   21   of   the   General   Clauses   Act 

              cannot   be   exercised   after   vesting   of   the 

              land         statutorily          in         the         State 

              Government."

       Similarly,   even   in   the   case   of  National   Thermal   Power  

Corporation Limited v.  Mahesh Dutta and Others [(2009) 8 SCC 

339],   the   Government   had   desired   to   withdraw   lands   from 

acquisition   after   the   lands   had   vested   in   it,   in   exercise   of   its 

power under Section 48 of the Act.  Rejecting the contention of 

the   State   in   paragraph   16   of   the   judgment,   the   Court   stated 

that `it is a well settled proposition of law that in the event the 

possession   of   the   land,   in   respect   whereof   a   notification   had 

been issued, had been taken over, the State would be denuded 

of   its   power   to   withdraw   from   the   acquisition   in   terms   of 

Section   48  of  the   Act.'    The   Court   then   went   to   the   extent  of 

                                       87

expressing   the   view   that   the   possession   taken   may   be 

symbolic or actual.

      I must notice that in the case of U.P. Jal Nigam, Lucknow  

through   its   Chairman   and   Another   v.   Kalra   Properties   (P)   Ltd.,  

Lucknow & Others  [(1996) 3 SCC 124], a Bench of this Court 

had   made   a   passing   observation   in   paragraph   3   of   the 

judgment: 

             "It   is   further   settled   law   that   once 

             possession   is   taken   by   operation   of 

             Section 17(2), the land vests in the State 

             free   from   all   encumbrances   unless   a 

             notification   under   Section   48(1)   is 

             published   in   the   Gazette   withdrawing 

             from   the   acquisition.     Section   11A,   as 

             amended   by   the   Act   of   68   of   1984, 

             therefore,   does   not   apply   and   the 

             acquisition does not lapse".

      The   aforesaid   observations   that   the   State   may   issue   `a 

notification   under   Section   48(1)'   and   this   notification   may   be 

`published   in   the   Gazette   withdrawing   from   the   acquisition', 

are nothing but an  obiter  of the Court without any discussion 

thereto.     The   question   whether   the   acquisition   proceedings 

lapse   or   that   the   notification   cancelling   acquisition   could   be 

                                       88

issued after the possession is taken, where the land has vested 

in the Government did not arise in that case.   The Court was 

primarily concerned with three main questions: 

1. What   was   the   effect   of   possession   of   land   subsequent   to 

   notification issued under Section 4(1) of the Act? 

2. Whether   the   provisions   of   Section   11A   of   the   Act   would 

   apply   to   the   acquisition   under   Section   17(1)   read   with 

   Section 17(4) of the Act? and 

3. How the market value should be determined?

      Firstly,   if   the   said   interpretation   is   given,   it   shall   be 

contrary   to   the   specific   language   of   Section   48   of   the   Act. 

Secondly, the learned Judges did not refer to any judgment of 

this   Court   while   making   the   observation   that   `it   is   further 

settled   law'.     I   have   referred   to   the   consistent   view   of   this 

Court   right   from   the   year   1970   till   2011   and  no  judgment   to 

the   contrary   has   been   brought   to   the   notice   of   the   Court. 

Thus, I must hold that the observations made in paragraph 3, 

                                       89

as   reproduced,   are   merely   an  obiter  and   not   a   binding 

precedent.

      The lands which have been acquired under the provisions 

of Section 17 of the Act are incapable of being reverted to the 

owners/persons interested.   The Act does not make any such 

provision and, thus, the Court is denuded of any such power. 

The   Court   must   exercise   its   power   within   the   framework   of 

law, i.e., the provisions of the Act. 

      In   the   case   of   an   ordinary   acquisition,   if   the   land   has 

vested  in the State Government then neither  the Government 

nor   the   court   can   take   recourse   to   the   provisions   of   Section 

48(1) of the Act, there the question of applying Section 11A of 

the Act to acquisition proceedings under Section 17 of the Act 

cannot   arise,   as  it   would   tantamount   to   achieving   something 

indirectly   which   would   be   impermissible   to   be   achieved 

directly.   For all the above reasons, I hold that Section 11A of 

the   Act   has   no   application   to   the   acquisition   proceedings 

under the provisions of Section 17 of the Act.

                                      90

      There   is   no   dispute   in   the   present   case   that   the 

provisions   of   Section   11A   of   the   Act   have   not   been   complied 

with.  Admittedly, the notification under Section 4(1) read with 

Section   17(4)   was   published   on   17th  April,   2002,   declaration 

under   Section   6   was   made   on   22nd  August,   2002   and   the 

possession   of   the   property   was   taken   on   4th  February,   2003. 

The award has been made on 9th  June, 2008, much after the 

expiry of the prescribed period of two years under Section 11A 

of the Act.  There being an admitted violation of the provisions 

of Section 11A of the Act, the natural consequence is that its 

rigours   would   be   attracted.   However,   the   most   pertinent 

question   that   arises   for   consideration   is:   whether   the 

provisions   of   Section   11A   of   the   Act   are   applicable   to   the 

acquisition of land under Section 17 of the Act?

      The   main   thrust   of   submissions   on   behalf   of   the 

appellants   is   that   the   provisions   of   Section   11A   of   the   Act 

would   be   attracted   even   to   the   acquisition   proceedings 

undertaken   by   the   appropriate   Government   in   exercise   of 

powers   vested   in   it   under   Section   17   of   the   Act.     It   is 

                                        91

contended that Section 17 in the scheme of the Act is at parity 

to the normal and ordinary process of acquisition except that 

it   is   a   power   to   be   exercised   in   urgent   basis.     The   other 

provisions   like   publication   of   notification   under   Section   4, 

declaration   under   Section   6,   notice   under   Sections   9   and   12 

and passing of award under Section 11 of the Act are argued 

to be essential features of an acquisition made under Section 

17 of the Act as well.  Thus, it is submitted that the provisions 

of   Section   11A   of   the   Act   would   also   apply   to   an   acquisition 

made   under   Section   17   of   the   Act.     If   an   award   is   not   made 

within two years from the date of declaration under Section 6 

of   the   Act,   the   acquisition   proceedings   should   lapse 

irrespective of whether the acquisition had commenced under 

Section   4   by   invoking   powers   of   urgency   or   otherwise.     It   is 

argued that there is no justification, whatsoever, for excluding 

the   application   of   Section   11A   of   the   Act   from   acquisitions 

made   under   Section   17   of   the   Act.     On   the   contrary,   the 

contention   on   behalf   of   the   respondents   is   that   provisions   of 

Section 11A of the Act have no application to the provisions of 

Section   17   of   the   Act.     In   fact,   there   is   an   apparent,   though 

                                        92

limited,   conflict   between   these   provisions.     The   very   purpose 

and   object   of   the   Act   would   stand   defeated   if   provisions   of 

Section   11A   of   the   Act   are   applied   to   the   acquisitions   under 

Section 17 of the Act.

      I may now examine the scheme of the Act, with particular 

reference to the  difference between acquisitions in exercise of 

emergent   powers   under   Section   17   of   the   Act   and   the 

acquisitions   made   otherwise.     In   both   the   cases,   notification 

under Section 4(1) has to be published in accordance with the 

provisions   of   the   Act.     Notification   under   Section   4   is   a  sine  

qua non for commencement of the acquisition proceedings and 

this has been the consistent view of this Court right from the 

case of Narender Jeet Singh v. State of U.P. [(1970) 1 SCC 125] 

wherein  the  Court   clearly   held   that  issuance   of  a  notification 

under sub-section (1) of Section 4 is a condition precedent to 

exercise   of   any   further   powers   under   the   Act   and   the 

notification   issued   under   that   provision   should   comply   with 

the   essential   requirements   of   law   under   that   provision. 

Thereafter, the owners/persons interested have to be given an 

                                         93

opportunity   to   file   objections   as   contemplated   under   Section 

5A   of   the   Act   and   after   granting   them   hearing,   a   declaration 

under Section 6 of the Act has to be published.  Subsequent to 

the   publication   of   such   a   declaration,   notice   under   Section 

9(1)   of   the   Act   has   to   be   issued   stating   the   intention   of   the 

Government to take possession of the land and that claims for 

compensation and for all interests in such land may be made 

to   the   competent   authority.                Following   the   procedure 

prescribed, an award has to be made under Section 11 of the 

Act awarding compensation for acquisition of the land with its 

complete details.  Under the scheme of the Act, in the event of 

an   ordinary   acquisition   in   contradistinction   to   acquisition   in 

exercise of emergent powers, if the award is not made within a 

period  of two  years  from  publication  of  the  declaration  under 

Section   6,   the   acquisition   proceedings   would   lapse.     In  these 

proceedings,   the   possession   of   the   land   remains   with   the 

claimant/owners   of   the   land   and   it   is   only   when   the   award 

becomes final in terms of Section 12 of the Act, possession of 

the   land   is   taken   and   the   acquired   land   vests   in   the 

Government   free   from   all   encumbrances   under   Section   16   of 

                                      94

the Act.

      Where   the   lands   are   acquired   in   exercise   of   emergent 

powers of the State under Section 17 of the Act, a notification 

under   Section   4(1)   of   the   Act   is   issued   and   the   notification 

itself refers to the provisions of Section 17(1) as well as Section 

17(4) of the Act.   A specific power is vested in the appropriate 

Government to declare that provisions of Section 5A would not 

be   applicable   to   such   acquisition.     Therefore,   there   is   no 

obligation   upon   the   Collector/authority   concerned   to   invite 

and decide upon objections in terms of Section 5A of the Act, 

prior to publication of a declaration under Section 6 of the Act. 

However,   notice   under   Section   9(1)   of   the   Act   has   to   be 

published to completely and fully invoke the powers vested in 

the State for taking possession of the land, in terms of Section 

17(1)   of   the   Act.     After   the   expiry   of   15   days   from   such 

publication under Section 9(1), the possession of the land can 

be   validly   taken   by   the   Government,   whereupon   the   land 

would   vest   absolutely   in   the   Government,   free   from   all 

encumbrances.  In other words, for proper computation of the 

                                       95

specified   period   of   15   days,   issuance   of   notification   under 

Section   9(1)   of   the   Act   would   be   necessary,   but   it   cannot   be 

held   to   be   mandatory   in   its   operation   so   as   to   render   the 

execution   proceedings   invalid.     In   the   case   of  May   George 

(supra), a Bench of this Court has expressed the view that the 

notification   under   Section   9(1)   of   the   Act   as   contemplated 

under Section 17(1) of the Act is not mandatory.

      Before   the   Government   takes   possession   of   the   land   in 

exercise of its powers under Section 17(1) of the Act, it has to 

comply   with   the   requirements   of   Section   17(3A)   of   the   Act. 

The   amount   so   paid,   if   falls   short,   and/or   is   in   excess   of 

compensation actually due to the land owners, the same shall 

be   determined   and   adjusted   while   making   the   final   award 

under   Section   11   of   the   Act.     It   is   evident   that   both   these 

acquisitions have distinct schemes of acquisition.   Section 17 

of  the   Act   itself   refers  to   some   other   provisions,   like   Sections 

5A,   9,   11,   and   31   of   the   Act.     Wherever   such   reference   was 

considered necessary by the Legislature, it has been so made. 

Thus,  there  is   no  occasion   for   the   Court   to   read  into  Section 

                                       96

17, the language of Section 11A of the Act which has not been 

provided   by   the   Legislature;   more   so   when   doing   so   would 

destroy   or   frustrate   the   very   object   of   the   urgent   acquisition. 

Marked   distinction   between   the   implementation   of   these   two 

types   of   acquisition   schemes   contained   in   the   Act   is   clearly 

suggestive that these schemes operate in their respective fields 

without any contradiction.   Hence, the Court would adopt an 

interpretation which would further such a cause, rather than 

the one which will go contra to the very scheme of the Act. 

      In  my   considered   view,  it   will   be   difficult   for   me  to  hold 

that   the   provisions   of   Section   11A   of   the   Act,   despite   being 

mandatory,   would   apply   to   the   scheme   of   acquisition 

contained under Section 17 of the Act.

Whether the Claimants can be granted any relief even on 

equitable grounds?

      The facts, as already noticed by me above, are hardly in 

dispute.     Admittedly,   the   possession   of   the   land   had   been 

taken   on   4th  February,   2002   and   the   Writ   Petition   No.   2225 

was   filed   by   the   petitioners   in   the   year   2006   i.e.   after   the 

                                        97

possession   has   been   taken.     In   terms   of   Section   17(1)   of   the 

Act,   the   land   has   been   vested   absolutely   and   free   from   all 

encumbrances   in   the   Government.     After   vesting   of   the   land, 

the   development   activity   had   been   carried   out   over   the   years 

and   it   is   informed   that   Sector   88,   NOIDA   is   fully   developed 

and operational.

      Once the development activity has been completed in the 

entire   sector,   will   it   be   equitable   to   release   the   lands   from 

acquisition?     Even  if   for  the   sake  of  argument,   it  is   assumed 

that there is some merit in the contention raised on behalf of 

the   appellant,   the   answer   has   to   be   in   the   negative.     It   is 

settled   canon   of   equitable   jurisdiction   that   the   person   who 

feels aggrieved by an action of the State should approach the 

Court   without   any   unnecessary  delay,   particularly   in   cases 

such as the present one.  While the notification under Section 

4 read with Sections 17(1) and 17(4) of the Act was issued on 

14th  April,   2002   and   possession   taken   on   4th  February,   2003 

the   writ   petitions   in   question   were   filed   in   August   2006,   i.e., 

more   than   four   years   subsequent   to   the   issuance   of   the 

                                       98

notification under Section 4.   It was contended that the cause 

of   action   to   challenge   the   acquisition   proceedings   arose   only 

after   the   period   of   two   years   had   lapsed   from   the   date   of 

issuance of the notification.  Even if that be so, still there is an 

unexplained   and   undue   delay   of   more   than   two   years   in 

approaching   the   Court.     This   would   itself   disentitle   the 

appellants   to   claim   any   equitable   relief   in   the   facts   and 

circumstances of the present case. 

      I   must   not   be   understood   to   say   that   in   every   case   of 

delay,  per   se,   the   Court   would   decline   to   exercise   its 

jurisdiction   if   the   party   to   the  lis  can   otherwise   be   granted 

relief in accordance with law.   This has to be decided keeping 

in view the facts and circumstances of a given case.  

      It   is   not  in  dispute   and,   in  fact,   can   hardly   be   disputed 

that in the intervening period of nearly ten years, the acquired 

areas have fully developed. Not only this, it is informed during 

the course of hearing that the award was finally  made by the 

authorities on 9th June, 2008 and has been accepted by nearly 

97.6   per   cent   of   the   owners   whose   lands   were   acquired   vide 

                                        99

the   said   notification.     In   other   words,   nearly   all   land   owners 

have   accepted   the   award   and   permitted   the   development 

activity   to   be   carried   out.     This   conduct   of   the   owners   as   a 

whole   would   again   be   a   factor   which   will   weigh   against   the 

grant of any relief to the appellants.   Huge amounts of money 

and resources of  the State, as well as other bodies or persons 

have been invested on the development of this sector which is 

stated to be an industrial sector.   It will be unjust and unfair 

to   uproot   such   a   developed   sector   on   the   plea   raised   by   the 

present appellants.     In this  view, I am fully supported  by  the 

judgment   of   a   Division   Bench   of   this   Court,   to   which   my 

learned   brother   (Ganguly,   J.)   was   a   member,   in   the   case   of 

Tamil   Nadu   Housing   Board  v.  L.   Chandrasekaran   (Dead)   by  

Lrs.   &   Ors.  [(2010)   2   SCC   786].     The   Bench   was   primarily 

dealing   with   the   question   of   re-conveyance   of   the   acquired 

lands on the grounds of discrimination and arbitrariness.  The 

High   Court   had   passed   a   direction   against   the   Board   to   re-

convey   the   acquired   land,   which   was   held   by   this   Court,   on 

appeal,  to   be   contrary   to   the   provisions   of   Section   48   of   the 

Act.   This Court settled the point of law holding  that it is not 

                                            100

appropriate for the Court to quash the acquisition proceedings 

at   the   instance   of   one   or   two   land   owners,   where   the 

development had taken place and majority of the land owners 

had   not   challenged   the   acquisition.     The   Court,   while   relying 

upon   the   case   of  A.S.   Naidu  v.  State   of   Tamil   Nadu  [(2010)   2 

SCC 801] held as under: 

             "15.      The   first   issue   which   requires
             consideration is whether the order passed
             by this  Court  in  A.S. Naidu  case  has the
             effect   of   nullifying   the   acquisition   in   its
             entirety.   In  this   context,   it   is   apposite   to
             mention that neither the appellant Board
             nor   have   the   respondents   placed   before
             the   Court   copies   of   the   writ   petitions   in
             which   the   acquisition   proceedings   were
             challenged,   order(s)   passed   by   the   High
             Court   and   the   special   leave   petitions
             which   were   disposed   of   by   this   Court   on
             21-8-19903  and   without   going   through
             those   documents,   it   is   not   possible   to
             record   a   finding   that   while   disposing   of
             the   special   leave   petitions   preferred   by
             A.S.   Naidu   and   others,   this   Court   had
             quashed            the          entire         acquisition
             proceedings.   So   far   as   A.S.   Naidu   is
             concerned, he did not even make a prayer
             before   the   High   Court   for   quashing   the
             preliminary   notification   issued   under
             Section 4(1) of the Act.

             16.  This is evident from the prayer made
             by him in Writ Petition No. 7499 of 1983,
             which reads as under:

                      "For   the   reasons   stated   in   the
                      accompanying   affidavit,   it   is   most
                      respectfully prayed that this Hon'ble
                      Court may be pleased to issue a writ 

                         101

      of certiorari or any other proceeding
      or   any   other   appropriate   writ   or
      direction or order in the nature of a
      writ to call for the records of the first
      respondent   relating   to   GOMs   No.
      1502,           Housing         and           Urban
      Development   Department   dated   7-
      11-1978   published   in   the   Tamil
      Nadu             Government                  Gazette
      Extraordinary   dated   10-11-1978   in
      Part II Section 2 on pp. 22 to 26 and
      quash   the   said   notification   issued
      under   Section   6   of   the   Land
      Acquisition   Act,   1894   insofar   as   it
      relates to the land in the petitioners'
      layout   approved   by   the   Director   of
      Town   Planning   in   LPDM/DTP/2/75
      dated 7-3-1975 in Survey Nos. 254,
      257,   258,   260,   268   and   271   in
      Mogapperi   Village,   No.   81,   Block   V,
      Saidapet   Taluk,   Chingleput   District
      and render justice."

From   the   above   reproduced   prayer 

clause,   it   is   crystal   clear   that   the   only 

relief   sought   by   Shri   A.S.   Naidu   was   for 

quashing   the   notification   issued   under 

Section   6   insofar   it   related   to   the   land 

falling in Survey Nos. 254, 257, 258, 260, 

268   and   271   in   Mogapperi   Village,   No. 

81,   Block   V,   Saidapet   Taluk   and   in   the 

absence   of   a   specific   prayer   having   been 

made   in   that   regard,   neither   the   High 

Court nor this Court could have quashed 

the entire acquisition. This appears to be 

the reason why the Division Bench of the 

High   Court,   while   disposing   of   Writ 

Appeals   Nos.   676   of   1997   and   8-9   of 

1998   observed   that   quashing   of 

acquisition   by   this   Court   was   only   in 

relation   to   the   land   of   the   petitioner   of 

that   case   and,   at   this   belated   stage,   we 

are   not   inclined   to   declare   that   order 

dated   21-8-19903  passed   by   this   Court 

had   the   effect   of   nullifying   the   entire 

acquisition   and  that  too  by  ignoring  that 

                             102

the   appellant   Board   has   already   utilised 

portion   of   the   acquired   land   for   housing 

and other purposes. Any such inferential 

conclusion           will           have         disastrous 

consequences   inasmuch   as   it   will   result 

in uprooting  those who may  have settled 

in the flats or houses constructed by the 

appellant   Board   or   who   may   have   built 

their   houses   on   the   allotted   plots   or 

undertaken other activities.

   XXX                       XXX                   XXX

26.  A   glance   at   the   impugned   order
shows that the Division Bench did not at
all advert to the factual matrix of the case
and   the   reasons   incorporated   in   the
Government's   decision   not   to   reconvey
the acquired land to the respondents. The
Division   Bench   also   did   not   examine   the
correctness   or   otherwise   of   the   order
passed   by   the   learned   Single   Judge   and
allowed   the   appeals   preferred   by   the
respondents simply by relying upon order
dated   18-2-2000   passed   in   Writ   Appeal
No.   2430   of   1999   and   that   too   without
even   making   an   endeavour   to   find   out
whether   the   two   cases   were   similar.   In
our   view,   the   direction   given   by   the
Division Bench to the appellant Board to
reconvey   the   acquired   land   to   the
respondents   is   per   se   against   the   plain
language   of   Section   48-B   of   the   Act   in
terms of which only the Government can
transfer the acquired land if it is satisfied
that   the   same   is   not   required   for   the
purpose   for   which   it   was   acquired   or   for
any   other   public   purpose.   The   appellant
Board   is   not   an   authority   competent   to
transfer the acquired land to the original
owner.   Therefore,   the   Division   Bench   of
the   High   Court   could   not   have   issued   a
mandamus   to   the   appellant   Board   to
reconvey   the   acquired   land   to   the
respondents. As a matter of fact, the High
Court   could   not   have   issued   such
direction   even   to   the   Government 

                         103

because   the   acquired   land   had   already
been   transferred   to   the   appellant   Board
and   the   latter   had   utilised   substantial
portion   thereof   for   execution   of   the
housing   scheme   and   other   public
purposes.

27.  There   is   one   more   reason   why   the
impugned   judgment   deserves   to   be   set
aside.   Undisputedly,   the   land   of   the
respondents   forms   part   of   large   chunk
which   was   acquired   for   execution   of   the
housing   scheme.   The   report   sent   by   the
appellant Board to the State Government
shows   that   the   purpose   for   which   the
land was acquired is still subsisting. The
respondents   had   neither   pleaded   before
the   High   Court   nor   was   any   material
produced by them to show that the report
which   formed   basis   of   the   Government's
decision   not   to   entertain   their   prayer   for
reconveyance   of   the   land   was   vitiated   by
mala   fides   or   that   any   extraneous   or
irrelevant   factor   had   influenced   the
decision-making   process   or   that   there
was   violation   of   the   rules   of   natural
justice.   Therefore,   the   Division   Bench   of
the   High   Court   could   not   have   exercised
the power of judicial review and indirectly
annulled   the   decision   contained   in
communication dated 18-3-1999.

28.  It need no emphasis that in exercise
of   power   under   Section   48-B   of   the   Act,
the Government can release the acquired
land   only   till   the   same   continues   to   vest
in it and that too if it is satisfied that the
acquired   land   is   not   needed   for   the
purpose   for   which   it   was   acquired   or   for
any   other   public   purpose.   To   put   it
differently,   if   the   acquired   land   has
already been transferred to other agency,
the   Government   cannot   exercise   power
under   Section   48-B   of   the   Act   and
reconvey   the   same   to   the   original   owner.
In   any   case,   the   Government   cannot   be
compelled   to   reconvey   the   land   to   the
original owner if the same can be utilised 

                                        104

              for any public purpose other than the one
              for which it was acquired."

       I am of the considered view that what has been stated by 

the learned Judges in that case is squarely applicable, even on 

facts,   to   the   present   case.     Firstly,   there   is   no   merit   in   the 

contentions   of   law   raised   by   the   appellants,   which   I   have 

already rejected. Secondly, even on equity, the appellants have 

no case.

       Before   I   part   with   this   file,   I   cannot   ignore   one   very 

important   aspect   which   has   come   to   my   notice   during   the 

hearing of the case and which, as stated at the Bar, is an often 

repeated   default   on  the   part   of   the   Government   Departments 

causing   undue   inconvenience,   harassment,   hardship   and 

ultimately   resulting   in   the   acquisition   itself   being   inequitable 

against   the   land   owners/persons   interested   therein.     The 

declaration under  Section 6 was made on 22nd  August, 2002, 

the notice under Section 9(1) had been issued and possession 

of   the   land   was   taken   on   4th  February,   2003.     In   the   normal 

course   and   as   per   the   requirements   of   the   provisions   of 

Section   17(3A)   read   with   Section   17(1),   80   per   cent   of   the 

                                      105

estimated   compensation   ought   to   have   been   paid   to   the 

owners of the land/persons interested, within that period prior 

to taking possession and/or, in any case, within a very limited 

and   reasonable   time.     This   I   am   only   noticing   subject   to   my 

finding that there is unequivocal statutory obligation upon the 

respondents   to   pay   the   amount   prior   to   taking   possession   of 

the land in question.   However, the award made on 9th  June, 

2008   would   have   otherwise   vitiated   the   entire   acquisition 

proceedings, but for the fact that, as held by me above and for 

reasons recorded supra that Section 11A does not apply to the 

acquisition   made   in   exercise   of   emergent   powers   in   terms   of 

Section  17  of the  Act.   Still,  to  do things  within a  reasonable 

time   is   an   obligation   of   the   State,   as   is   imposed   by   the 

Legislature   itself   and   even   otherwise   as   per   the   canons   of 

proper   governance,   i.e.,  vigilantibus,   non   dormientibus,   jura  

subveniunt,   which   means   the   laws   assist   those   who   are 

vigilant,   not   those   who   sleep   over   their   rights.     According   to 

Respondent   No.2,   they   had   deposited   10   per   cent   of   the 

estimated compensation prior to issuance of notification under 

Section 4, i.e., 17th April, 2002 and 70 per cent of the amount 

                                      106

was deposited with the Government on 8/14th July, 2002 by a 

cheque.     The   amount   deposited   was   nearly  `  6,66,00,000/- 

and   odd.     For   reasons   best   known   to   the   State   Government, 

this amount was not disbursed to the claimants until passing 

of the award.  In other words, the amount was made available 

to the Government and its authorities for disbursement to the 

owner/claimants   prior   to   (or   soon   after)   taking   of   the 

possession, which was taken on 4th  February, 2003,   but still 

the   claimants   were   deprived   of   their   legitimate   dues   without 

any   justification   or   reason.     In   order   to   show   this,   learned 

counsel   appearing   for   respondent   No.2   had   even   shown   the 

records to the Court.   It was also the duty of respondent No.2 

to ensure that the payments were made to the claimants prior 

to taking of possession but, in any case, it was an unequivocal 

statutory   obligation   on   the   part   of   the   State/Collector   to 

ensure that the payments were made to the claimants in terms 

of   Section   17(1)   read   with   Section   17(3A)   prior   to   taking   of 

possession.     No   justification   whatsoever   had   been   advanced 

and  can be advanced for  such  an intentional  default  and the 

casual attitude of the concerned  officers/officials in the  State 

                                         107

hierarchy.  

       These   authorities   are   instrumentalities   of   the   State   and 

the officers are empowered to exercise the power on behalf of 

the State.   Such exercise of power attains greater significance 

when   it   arises   from   the   statutory   provisions.   The   level   of 

expectation   of   timely   and   just   performance   of   duty   is   higher, 

as   compared   to   the   cases   where   the   power   is   executively 

exercised   in   discharge   of   its   regular   business.     Thus,   all 

administrative   norms   and   principles   of   fair   performance   are 

applicable   to   them   with   equal   force,   as   they   are   to   the 

Government department, if not with a greater rigour.   The well 

established precepts of public trust and public accountability 

are   fully   applicable   to   the   functions   which   emerge   from   the 

public   servants  or  even  the   persons  holding   public  office.     In 

the case of State of Bihar v. Subhash Singh [(1997) 4 SCC 430], 

this Court, in exercise of the powers of judicial review, stated 

that   the   doctrine   of   `full   faith   and   credit'   applies   to   the   acts 

done by the officers in the hierarchy of the State.  They have to 

faithfully discharge their duties to elongate public purpose.

                                       108

      The concept of public accountability and performance of 

functions   takes   in   its   ambit,   proper   and   timely   action   in 

accordance   with   law.   Public   duty  and   public  obligation   both 

are essentials of good administration whether by the State or 

its  instrumentalities.    In the case of  Centre  for Public Interest  

Litigation   &  Anr.  v.  Union of  India   & Anr.  [(2005)  8  SCC  202], 

this Court declared the dictum that State actions causing loss 

are actionable under public law. This is a result of innovation, 

a   new   tool   with   the   courts   which   are   the   protectors   of   civil 

liberties   of   the   citizens   and   would   ensure   protection   against 

devastating   results   of   State   action.   The   principles   of   public 

accountability and transparency in State action are applicable 

to   cases   of   executive   or   statutory   exercise   of   power,   besides 

requiring that such actions also not lack bona fides.  All these 

principles   enunciated   by   the   Court   over   a   passage   of   time 

clearly   mandate   that   public   officers   are   answerable   for   both 

their inaction and irresponsible actions.  If what ought to have 

been   done   is   not   done,   responsibility   should   be   fixed   on   the 

erring   officers;   then   alone,   the   real   public   purpose   of   an 

answerable administration would be satisfied.

                                        109

      The   doctrine   of   `full   faith   and   credit'   applies   to   the   acts 

done   by   the   officers.   There   is   a   presumptive   evidence   of 

regularity in official acts, done or performed, and there should 

be   faithful   discharge   of   duties   to   elongate   public   purpose   in 

accordance   with   the   procedure   prescribed.     Avoidance   and 

delay in decision making process in Government hierarchy is a 

matter of growing concern.   Sometimes delayed decisions can 

cause prejudice to the rights of the parties besides there being 

violation   of   the   statutory   rule.     This   Court   had   occasion   to 

express   its   concern   in   different   cases   from   time   to   time   in 

relation   to   such   matters.     In   the   case   of  State   of   Andhra  

Pradesh  v. Food Corporation   of   India  [(2004)  13  SCC 53], this 

Court observed that it is a known fact that in transactions of 

Government   business,   no   one   would   own   personal 

responsibility   and   decisions   would   be   leisurely   taken   at 

various levels. 

      Principles of public accountability are applicable to such 

officers/officials   with   all   their   rigour.     Greater   the   power   to 

decide,   higher   is   the   responsibility   to   be   just   and   fair.     The 

                                         110

dimensions   of   administrative   law   permit   judicial   intervention 

in   decisions,   though   of   administrative   nature,   which   are  ex  

facie  discriminatory.   The adverse impact of lack of probity in 

discharge of public duties can result in varied defects, not only 

in   the   decision   making   process   but   in   the   final   decision   as 

well.     Every   officer   in   the   hierarchy   of   the   State,   by   virtue   of 

his being `public officer' or `public servant', is accountable for 

his   decisions   to   the   public   as   well   as   to   the   State.     This 

concept   of   dual   responsibility   should   be   applied   with   its 

rigours in the larger public interest and for proper governance. 

       I   find   no   justification,   whatsoever,   for   the   Government, 

despite deposit by the beneficiary, not to pay 80 per cent of the 

estimated   compensation  due   to   the   claimants   within   the 

requisite time and not even within the reasonable time.  It was 

breach   of   statutory   and   governance   obligation   of   the   State's 

officers/officials to pay the amount to the claimants after more 

than five years.  It is expected of the State officers not to forget 

that   these   are   compulsory   acquisitions   in   exercise   of   State's 

power   of   eminent   domain   and   the   legislative   intent   behind 

                                     111

providing   safeguards   and   some   benefits   against                such 

acquisition   ought   not   to   be   frustrated   by   inaction   and 

omissions   on   the   part   of   the   officers/officials.     There   being 

patent   unexplained   mistakes,   omissions   and   errors, 

committed   by   the   officers/officials   in   the   State   of   Uttar 

Pradesh   in   dealing   with   this   entire   matter,   I   hereby   impose 

cost of ` 1,00,000/- on the State Government which at the first 

instance shall be paid by the State to the owners of the land, 

i.e., present appellants or persons situated alike. However this 

amount   shall   be   recovered   from   the   salary   of   all   the 

officers/officials found guilty by the State which shall conduct 

an   inquiry   for   that   purpose   in   accordance   with   law.     The 

inquiry shall be completed within a period of six months from 

today and a report shall be submitted to the Secretary General 

of this Court on the administrative side.  Imperatively, it must 

follow that the Central Government and all State Governments 

must   issue   appropriate   directions   to   ensure   that   there   is   no 

harassment,   hardship   or   inequality   caused   to   the 

owners/persons interested in the lands acquired by the State, 

in   exercise   of   its   powers   of   eminent   domain   under   Section 

                                        112

17(1) of the Act.   Wherever the payments are not made within 

time   and   appropriate   steps   are   not   taken   to   finalize   the 

acquisition   of   the   land,   the   concerned   Government   should 

take   appropriate   disciplinary   action   against   the   erring 

officers/officials involved in and responsible for the process of 

acquisition.

       I will prefer to record my conclusions and also answer the 

four   legal   questions   (`A'   to   `D')   as   framed   in   the   judgment   by 

my learned brother.  They are as follows:

(A)I   hold   and   declare   that   Section   11A   of   the   Act   has   no 

   application to the acquisition proceedings conducted under 

   the provisions of Section 17 of the Act;

       Once the acquired land has vested in the Government in 

       terms   of   Section   16   or   17(1)   of   the   Act,   possession   of 

       which has already been taken, such land is incapable of 

       being   re-vested   or   reverted   to   the   owners/persons 

       interested therein, for lack of any statutory provision for 

       the same under the Act.

                                      113

(B)The   provisions   of   Section   17(3A)   of   the   Act,   on   their   bare 

   reading,   suggest  that  the   said   provision   is   mandatory   but, 

   as no consequences of default have been prescribed by the 

   Legislature   in   that   provision,   thus,   it   will   hardly   be 

   permissible for the Court to read into the said provision any 

   drastic   consequences   much   less   lapsing   of   entire 

   acquisition   proceedings.     In   other   words,   default   in 

   complying with provisions of Section 17(3A) cannot result in 

   invalidating   or   vitiating   the   entire   acquisition   proceedings, 

   particularly   when   the   possession   of   the   acquired   land   has 

   been  taken   and it  has  vested  in  the   Government  free  from 

   all encumbrances.

(C)Keeping   in   view   the   scheme   of   the   Act,   the   provisions   of 

   Section   17   of   the   Act   can   be   construed   strictly   but   such 

   interpretation   must   be   coupled   with   the   doctrine   of   literal 

   and   contextual   interpretation,   while   ensuring   that   the 

   object   of   the   legislation   is   not   defeated   by   such   an 

   interpretation.          Strict   compliance   to   the   conditions 

   contemplated   under   Section   17   of  the   Act  should   be   given 

                                      114

   effect   to   but   within   the   framework   of   the   statute,   without 

   making any additions to the language of the section. 

(D) Once   the   right   to   property   ceases   to   be   a   Fundamental 

   Right after omission of Articles 19(1)(f) of the Constitution of 

   India,   the   addition   of   Articles   31A   and   300A   by   the   44th 

   Constitutional   Amendment,   1978,   cannot   place   the   legal 

   right   to   property   at   the   same   pedestal   to   that   of   a 

   fundamental   right   falling   under   Chapter   III   of   the 

   Constitution.     It   has   been   clearly   held   by   the   Courts   that 

   the provisions of the Land Acquisition Act are not violative 

   of Article 14 of the Constitution.   The rights of the citizens 

   and   interest   of   the   State   can   be   balanced   under   the 

   provisions   of   the   Act,   without   any   violation   of   the 

   Constitutional mandate.

      Besides   answering   the   questions   of   law   and   stating   my 

conclusions as above, it is both appropriate and necessary to 

pass   certain   directive   orders   to   ensure   the   maintenance   of 

balance between the might of the State on the one hand and 

                                          115

the   rights   of   land   owners   on   the   other.     It   is,   therefore, 

necessary to issue the following directions :

(i)    The   Government/acquiring   authority   shall   be   liable   to 

       pay   interest   at   the   rate   of   15   per   cent  per   annum   with 

       reference   to   or   alike   the   provisions   of   Section   34   of   the 

       Act,   after   the   expiry   of   15   days   from   issuance   of 

       notification   under   Section   9(1)   of   the   Act,   and   from   the 

       date on which the possession of the land is taken, till the 

       amount of 80 per cent  of the estimated compensation is 

       paid to the claimants.  

       In   the   facts   of   the   present   case,   it   is   clear   that   80   per 

       cent   of   the   estimated   compensation   had   been   deposited 

       by the beneficiary.  However, it is no way clear on record 

       that   these   amounts   had   actually   been   received   by   the 

       owners/interested   persons.     Where   the   amounts   have 

       been paid beyond the period as stated in Section 17(3A), 

       the claimants still would be entitled to the rate of interest 

       afore-indicated.     Interest   should   be   computed   from   the 

       date   of   the   notification   till   the   date   of   payment   to   the 

                                        116

         claimants.   The Government is also liable to pay interest 

         as   afore-indicated   on   the   balance   amount   determined 

         upon making of an award in accordance with Section 11 

         of the Act.  

(ii)     The   Central   Government   and   all   the   State   Governments 

         shall issue appropriate and uniform  guidelines, within 8 

         weeks   from   today,  to   ensure   that   the   land   owners   and 

         the persons interested in the lands cquired by the State 

         or   its   instrumentalities   are   not   put   to   any   undue 

         harassment,   hardship   and   inequity   because   of   inaction 

         and   omission   on   the   part   of   the   acquiring   authority,   in 

         cases  of  urgent   acquisition  under   Section   17  of  the  Act. 

         The   Government   should   ensure   timely   action   for 

         acquisition and payment of compensation in terms of the 

         provisions   of   the   Act,   particularly   Section   17(3A)   of   the 

         Act, as explained in this judgment. 

(iii)    Wherever   the   Government   exercises   its   power   under 

         Section 17(1) of the Act and there is default in deposit of 

         the   amount   in   terms   of   Section   17(3A)   of   the   Act,   as 

                                       117

        explained   in   this   judgment,   the   concerned   Government 

        shall   take   appropriate   disciplinary   action   against   the 

        erring   officers/officials   including   making   good   the   loss 

        caused   to   the   Government   revenue   on   account   of   the 

        liabilities towards interest  or otherwise, because of such 

        undue delay on the part of such officers/officials;  

(iv)    In  this case, the  claimants would be entitled  to the cost 

        of  `  1,00,000/-   (Rupees   one   lakh   only)   which   shall   be 

        deposited at the first instance by the State Government of 

        Uttar   Pradesh   and   then   would   be   recovered   from   the 

        salaries   of   the   defaulting/erring   officers/officials   in 

        accordance   with   law.   The   inquiry   shall   be   completed 

        within   a   period   of   six   months   from   today   and   a   report 

        shall be submitted to the Secretary General of this Court 

        on the administrative side immediately thereafter.

        In   result,   the   appeal   is   accordingly   dismissed   with   the 

above directions.

                         118

                                                                         ..

                                ...........................................J.

                            [Swatanter Kumar]

New Delhi;

August 18, 2011

                                                          REPORTABLE

             IN THE SUPREME COURT OF INDIA

               CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL NO.24 OF 2009

M/s. Delhi Airtech Services 

Pvt. Ltd. & Anr.                                       ... Appellants

                                  Versus

State of U.P. & Anr.                                   ... Respondents

                           J U D G M E N T

Ganguly, J.

1.    The   facts   giving   rise   to   the   present   appeal   are   simple 

and   fall   within   a   narrow   compass.   However,   they   raise 

questions   which   are   of   public   importance   and   legal 

significance.   Thus, it will be appropriate for us to state the 

questions of law at the very threshold:

A.    When   the   Government,   in   exercise   of   its   emergency 

      powers   under  Section   17   of  the   Land  Acquisition   Act, 

      1894   (for   short   the   `Act')   acquires   lands,   which   have 

      since   vested   in   the   State,   can   such   an   acquisition 

      proceeding   lapse  and   consequently   the   land   can   be 

                                    119

      transferred   to   the   owners/persons   interested   in   the 

      event   of  default   by   the   State,   in   complying  with   the 

      provisions of Section 11A of the Act?

B.    Whether the provisions of Section 17(3A) of the Act are 

      mandatory   or   directory?     In   either   event,   would  non-

      compliance   with   this   Section  have   the   effect   of 

      invalidating   or   vitiating   the   entire   acquisition 

      proceedings,   even   where   the   land   has     vested   in   the 

      State in terms of Section 17(1) of the Act?

C.    Whether with the invoking of the emergency provisions 

      which have the effect of dispensing with the provision 

      of   hearing   under   Section   5A   of   the   Act,   the   Court   is 

      entitled   to  construe   the   emergency   provisions   strictly, 

      being   drastic   provisions   in   an   exproprietory   law   and 

      consider   the   safeguards   inbuilt   in   Section   17(3A) 

      against   such   drastic   provisions   as   conditions 

      precedent   and   mandatory   for   a   valid   exercise   of 

      emergency provisions.

D.    Whether   having   regard   to   the   principle   of 

      reasonableness   being   a   basic   component   of 

                                    120

      fundamental rights under the Constitution, this Court 

      has   to   construe   the   provisions   of   the   said   Act,   a   pre-

      constitutional   law   in   consonance   with   reason   and 

      justice-the   fundamental   tenets   of   Article   14   and   thus 

      arrive at a balanced interpretation of the interest of the 

      State as against the rights of citizens or land owners. 

FACTS:

2.    The   appellant   No.1   is   a   company   duly   incorporated 

      under   the   provisions   of   the   Indian   Companies   Act, 

      1956 and is alleged to be the owner of the land sought 

      to   be   acquired   by   the   respondents.     The   appellant's 

      land,   admeasuring   about   2-06-1/3-0   Bighas   situated 

      in Village Haldauni, Tehsil and Pargana Dadri, District 

      Gautam Budh Nagar which is  abadi  land, was sought 

      to be acquired by the appropriate Government under a 

      notification   dated   17th  April,   2002   issued   under 

      Section   4(1)   read with  Sections  17(1)  and  17(4)   of  the 

      Act.  This land was acquired for the planned industrial 

      development   in   District   Gautam   Budh   Nagar   through 

      the   New   Okhla   Industrial   Development   Authority 

                                     121

      (NOIDA).        The   notification   also   stated   that   the 

      provisions of Section 5A of the Act shall not apply.   In 

      pursuance to the said notification, a declaration under 

      Section   6   of   the   Act   was   published   on   22nd  August, 

      2002,   declaring   the   area   which   was   required   by   the 

      Government. It also stated that after expiry of 15 days 

      from   the   date   of   the   publication   of   the   notification 

      under   sub-section   (1)   of   Section   9   of   the   Act, 

      possession   of   the   acquired   land   shall   be   taken.     The 

      appellants   have   alleged   that   they   did   not   receive   any 

      notice under  Section 9(1) of the Act but possession of 

      the land was nevertheless taken on 4th February, 2003. 

      According to the appellants, even after a lapse of more 

      than three and a half years after the declaration under 

      Section   6   of   the   Act,   no   award   had   been   made   and 

      published.

3.    The appellants further alleged that, despite inordinate 

      delay,   they   were   neither   paid   80   per   cent   of   the 

      estimated   compensation   in   terms   of   Section   17(3A)   of 

      the Act at the time of taking of possession, nor had the 

      Collector passed an award within two years of making 

                                   122

      the   declaration   under   Section   17(1),   as   required   by 

      Section   11A   of   the   Act.   It   was   the   case   of   the 

      appellants that this has the effect of vitiating the entire 

      acquisition          proceedings.                Non-payment            of 

      compensation   and   conduct   of   the   Government 

      compelled   the   appellants   to   file   a   writ   petition   in   the 

      High   Court   of   Allahabad   praying   for   issuance   of   an 

      order   or   direction   in   the   nature   of  certiorari  or   any 

      other   writ,   and   not   to   create   any   encumbrance   or 

      interest   on   the   land   of   the   appellants.   Further,   they 

      prayed   that   the   acquisition   proceedings,   insofar   as 

      they   relate   to   the   land   of   the   appellants,   be   declared 

      void  ab  initio  and   that  the   respondents   be   directed  to 

      return   the   land   under   the   possession   of   the 

      Government to the owners. Lastly, the appellants pray 

      that   the   respondents/Government   be   directed   to   pay 

      damages for use and occupation of the land.

4.    To   this   writ   petition,   on   behalf   of   NOIDA   a   counter 

      affidavit was filed in the High Court, denying that the 

      acquired  land   was  in  fact  part   of  abadi  land.    NOIDA 

      also stated that 80 per cent compensation in terms of 

                                     123

      Section   17(3A)   had   been   deposited   with   the   state 

      authorities.     The   land   had   been   acquired   for   planned 

      development   of   NOIDA   and   it   was   in   the   physical 

      possession   of   the   said   authority.     Possession   of   the 

      land   had   been   taken   on   4th  February,   2003   and   no 

      right   had   survived   in   favour   of   the   appellant   as   the 

      land had vested in the Government.

5.    The   High   Court,   vide   its   judgment   dated   28th  August, 

      2006,   dismissed   the   writ   petition.   The   High   Court 

      relied   upon  the   judgment   of   this   Court   in   the   case   of 

      Satendra   Prasad   Jain   &   Ors.  v.  State   of   U.P.   &  

      Ors.,   [AIR   1993   SC   2517   =   (1993)   4   SCC   369],   and 

      dismissed   the   petition   as   the   High   Court   held   that 

      provisions   of  Section   11A   of  the   Act  are   not   attracted 

      to   proceedings   for   acquisition   by   the   Government 

      under   Section   17   of   the   Act.     However,   liberty   was 

      granted   to   the   appellants   to   pray   for   grant   of 

      appropriate   compensation   in   accordance   with   law 

      before the competent forum.

                                    124

6.    Aggrieved   by   the   said   order   of   the   High   Court,   the 

      appellants have filed the present appeal impugning the 

      judgment dated 28th August, 2006. 

7.    In   the   counter   affidavit   filed   before   this   Court   by 

      NOIDA, the stand in the counter filed  before the High 

      Court has been reiterated, with an additional fact that 

      the   sector   in   question   was   designated   as   industrial 

      area,   and,   after   development   activity   was   completed, 

      allotment   has   been   made   and   possession   of   these 

      industrial   plots   has   also   handed   over   to   such 

      entrepreneurs/allottees.   This   falls   under   Sector   88   of 

      the NOIDA City. The rest of the allegations made in the 

      writ   petition,   except   the   dates   in   question,   have   been 

      disputed.

8.    It   has   also   been   stated   at   the   Bar   by   the   State 

      Counsel,   on  the   basis   of   the   record,   without   filing   an 

      affidavit, despite directions given to that effect by this 

      Court   on   5.1.2009,   that   10   per   cent   of   the   estimated 

      compensation was deposited by NOIDA with the State 

      Government   even   prior   to   the   date   of   the   notification 

                                    125

      under   Section   4(1)   read with   Section   17(4)   of  the   Act, 

      issued   by   the   Government   on   17.4.2002.   The 

      remaining  70   per   cent   of   the   estimated   compensation 

      had been allegedly deposited vide cheque dated 8/14th 

      July,         2002         amounting           to         approximately 

      Rs.6,66,00,000/-.   As   such,   it   is   claimed   there   is 

      compliance with the provisions of Section 17(3A) of the 

      Act.     The   Award   was   made   on   9.6.2008,   which   has 

      been accepted by a large number of owners, i.e., 97.6 

      per   cent   of   all   owners.   Some   of   these   facts   have   also 

      been   averred   in   the   counter   affidavit   of   NOIDA   filed 

      before the High Court.

9.    It may be noted that neither before the High Court nor 

      before   this   Court   any   affidavit   was   filed   either   by   the 

      State or by the Collector. The assertion of the appellant 

      about   non-payment   of   compensation   as   contemplated 

      under   Section   17(3A)   of   the   Act   has   not   been 

      controverted. Such payment has to be tendered by the 

      Collector   to   the   person   interested   and   entitled   to   the 

      same,   subject   to   certain   statutory   conditions. 

      Assuming   there   has   been   deposit   of   80%   of   the 

                                     126

       compensation   amount   by   NOIDA   with   the   state 

       authorities,   that   does   not   satisfy   the   requirement   of 

       Section 17(3A) of the Act. From the above pleadings of 

       the   parties,   the   admitted   facts   that   emerge   from   the 

       record can be usefully recapitulated.

10.    The   Governor   of   State   of   Uttar   Pradesh   on   17th  April, 

       2002,   issued   a   notification   under   Section   4(1)   of   the 

       Act,   expressing   the   intention   of   the   Government   to 

       acquire   the   land   stated   in   the   said   Notification   for   a 

       public   purpose,   namely,   for   the   planned   industrial 

       development   in   District   of   Gautam   Budha   Nagar 

       through   NOIDA.   Vide   the   same   notification   the 

       emergency   provisions   contained   in   Section   17   of   the 

       Act,   specifically   Section   17(4)   of   the   Act,   were   also 

       invoked,   intimating   the   public   at   large   that   the 

       provisions   of   Section   5A   of   the   Act   shall   not   be 

       applicable.   After   issuance   of   the   declaration   under 

       Section   6  of  the   Act,  admittedly   the   possession   of  the 

       land   in   question   was   taken   on   4th  February,   2003. 

       Another   undisputed   fact   is   that   the   claimants-owners 

       of the land were not paid 80 per cent of the estimated 

                                     127

       compensation prior to taking of possession in terms of 

       Section 17(3A) of the Act.

11.    The   Collector   had   not   made   or   published   this   award 

       even at the time of pronouncement of the judgment of 

       the High Court, in Writ Petition No. 22251 of 2006, on 

       28   August   2006.   The   High   Court,   in   the   impugned 

       judgment, directed respondent No.1 to ensure that the 

       Award is made as early as possible, preferably within a 

       period of three months from the date of production of 

       the certified copy of that order.  In the counter affidavit 

       filed   before   this   Court   by   NOIDA,   it   has   been   stated 

       that the Award was finally made and published on 9th 

       June,   2008.     According   to   the   appellant,   in   terms   of 

       Section 11A of the Act, the Award ought to have been 

       pronounced   on   or   before   26th  August,   2004   as   the 

       declaration under Section 6 of the Act was dated 22nd 

       August, 2002.

Legal Issues

12.    If   I   may   consider   certain   features   of   the   said   Act   and 

       the constitutional provisions. 

                                      128

13.    Enactment   of   the   said   Act   was   rooted   in   the   colonial 

       past   of   this   country   having   been   brought   on   the 

       statute   book   on   1894   as   Act   1   of   1984.     With 

       enormous   expansion   of   State's   role   in   promoting 

       welfare and development activities since independence, 

       acquisition of land for public purposes increased with 

       the   passage   of   time.   Several   decades   after   the 

       enactment   of   the   Act,   came   Constitution   in   India   in 

       1950.   Along   with   it   came   the   concept   of   social   and 

       economic justice based on expansive values of human 

       rights.   Under   article   366   (10)   of   the   Constitution   the 

       Act   was   an   `existing   law'   made   before   the 

       commencement of the Constitution.

       Article 366(10) is quoted below:-

             "366 (10)    "existing   law"   means   any   law, 

       Ordinance,   order,   bye-law,   rule   or   regulation 

       passed   or   made   before   the   commencement   of 

       this Constitution by any Legislature, authority 

       or   person   having   power   to   make   such   a   law, 

       Ordinance, order, bye-law, rule or regulation;"

                                     129

14.    Article   372   of   the   Constitution   provides   for 

       continuance   in   force   of   such   `existing   law'   and   their 

       adaptation. Article 372 (1) of the Constitution makes it 

       clear  that notwithstanding   the  provision  of the  Article 

       395,   but   subject   to   the     other   provisions   of   the 

       Constitution,   all  laws  in   force   in   the   territory   of  India 

       immediately   before   the   commencement   of   the 

       Constitution   shall   continue   in   force   until   altered   or 

       repealed   or   amended   by   a   competent   Legislature   or 

       other competent authority.

15.    Article   13   of   the   Constitution,   which   is   a   part   of 

       Fundamental Right (Part III), also defines `laws in force' 

       under Article 13(3)(b).   Article 13(3)(b) is set out:-

       "13 (3) (b) "laws in force" includes laws passed 

       or   made   by   a   Legislature   or   other   competent 

       authority   in   the   territory   of   India   before   the 

       commencement   of   this   Constitution   and   not 

       previously   repealed,   notwithstanding   that   any 

       such law or any part thereof may not be then 

       in   operation   either   at   all   or   in   particular 

       areas."

                                     130

16.    The   said   definition   of   `laws   in   force'   under   Article 

       13(3)(b)   with   certain   changes,   is   consistent   with   the 

       definition of `existing laws' in  Article 366(10). 

17.    The   said   Act   is   thus   both   an   `existing   law'   within   the 

       meaning   of   Article   366(10)   and   `laws   in   force'   within 

       the meaning of Article 13(3)(b) of the Constitution.

18.    Article   13(1),   which   is   relevant   in   this   context,   is   set 

       out below:

        "Article 13.        Laws   inconsistent   with   or   in 

       derogation of the fundamental rights: (1) All 

       laws   in   force   in   the   territory   of   India 

       immediately  before  the  commencement  of this 

       Constitution, in so far as they are inconsistent 

       with   the   provisions   of   this   Part,   shall,   to   the 

       extent of such inconsistency, be void."

19.    Under Article 372 such laws in force can continue with 

       some   amendments,   subject   to   `the   other   provisions   of 

       this   Constitution'.   Article   13   certainly   comes   within 

       `the other provisions of the Constitution'.

20.    Therefore,   Article   372   and   Article   13   must   be   read 

       together   in   as   much   as   both   the   articles   relate   to 

       continuance   of   pre-constitutional   laws   validly   made. 

                                      131

       Article   372   permits   such   continuance   and   Article   13 

       stipulates   the   condition   on   which   they   can   continue. 

       Article   13   is   of   greater   importance   as   it   is   part   of 

       fundamental right and makes all laws, whether pre or 

       post-constitution,   subject   to   the   primacy   of 

       fundamental rights. The continuance of the said Act is 

       thus   made   to   depend   on   its   compliance   with   the 

       mandate of Article 13. The mandate of Article 13(1) is 

       clear   that   such   law   can   continue   provided   it   is   not 

       inconsistent with the provision of Part III. In the event 

       of such laws becoming inconsistent with the provision 

       of   Part   III,   such   laws,   to   the   extent   of   their 

       inconsistency, shall be void. This is the mandate of the 

       Constitution.

21.    Therefore, several amendments were made to the said 

       Act   keeping   in   view   the   broad   concept   of   social   and 

       economic   justice   which   is   one   of   the   main 

       constitutional   goals.   In   the   instant   case   I   am 

       concerned   with   some   amendments   to   the   said   Act   by 

       amendment Act 68 of 1984 which took effect from 24th 

       September 1984. Among several new sections, Section 

                                     132

       11(A)   and   17(3A)   were   introduced   by   amendment   to 

       the said Act.

22.    From   the   Statement   of   Objects   and   Reasons   for   the 

       said   amendment   it   will   be   clear   that   the   said 

       amendment was brought into existence to give effect to 

       the   message   of   social   and   economic   justice   based   on 

       the concept of Social Welfare State on broad principles 

       of   human   rights.   The   Statements   of   Objects   and 

       Reasons are as follows:

       "With the enormous expansion of the State's role 

       in   promoting   public   welfare   and   economic 

       development   since   independence,   acquisition   of 

       land   for   public   purposes,   industrialization, 

       building of institutions, etc., has become far more 

       numerous   than   ever   before.   While   this   is 

       inevitable, promotion of public purpose has to be 

       balanced  with  the  rights  of  the  individual   whose 

       land   is   acquired,   thereby   often   depriving   him   of 

       his means of livelihood. Again, acquisition of land 

       for private enterprises ought not to be placed on 

       the   same   footing   as   acquisition   for   the   State   or 

       for   an   enterprise   under   it.   The   individual   and 

       institutions   who   are   unavoidably   to   be   deprived 

       of   their   property   rights   in   land   need   to   be 

       adequately   compensated   for   the   loss   keeping   in 

       view the sacrifice they have to make for the larger 

       interests   of   the   community.   The   pendency   of 

       acquisition   proceedings   for   long   periods   often 

       causes   hardship   to   the   affected   parties   and 

       renders   unrealistic   the   scale   of   compensation 

       offered to them.

                                     133

       2.    It is necessary, therefore, to restructure the 

       legislative   framework   for   acquisition   of   land   so 

       that   it   is   more   adequately   informed   by   this 

       objective   of      serving   the   interests   of   the 

       community   in   harmony   with   the   rights   of   the 

       individual.  Keeping the above objects in view and 

       considering   the   recommendations   of   the   Law 

       Commission,   the   Land   Acquisition   Review 

       Committee   as   well   as   the   State   Governments, 

       institutions   and   individuals,   proposals   for 

       amendment   to   the   Land   Acquisition   Act,   1894, 

       were   formulated   and   a   Bill   for   this   purpose   was 

       introduced   in   the   Lok   Sabha   on   the   30th  April, 

       1982.   The   same   has   not   been   passed   by   either 

       House   of   Parliament.   Since   the   introduction   of 

       the   Bill,   various   other   proposals   for   amendment 

       of the Act have been received and they have also 

       been   considered   in   consultation   with   State 

       Governments   and   other   agencies.   It   is   now 

       proposed to include all these proposals in a fresh 

       Bill after withdrawing the pending Bill...."

                                                     (emphasis added)

23.    It is clear from the aforesaid objects and reasons that 

       by   introducing   the   provisions   of   Section   11A   and 

       17(3A)   by   way   of   amendment   to   the   Act,   greater 

       responsibility was   fastened upon the concerned State 

       authorities,   whereby   they   were   obliged   to   make   an 

       award within two years of the declaration made under 

       Section 6 of the Act. Thus the rights of the land owners 

       were   sought   to   be   protected   by   balancing   the   same 

       against the rights of the State. In respect of emergency 

                                      134

       provisions where land is acquired without a hearing, it 

       is   provided   under   Section   17(3A)   that   before   taking 

       possession either under Section 17(1) and 17(2) it was 

       obligatory   upon   the   authorities   concerned   to   pay   80 

       per   cent   of   the   estimated   compensation   to   the   land 

       owners.   This   was   also   for   protecting   the   right   of   the 

       land owners.

24.    These amendments along with Statement, Objects and 

       Reasons   are   very   crucial   in   interpretation   of   some   of 

       the amended provisions. The amendment was brought 

       about   in   1984   and   by   that   time,   the   contents   and 

       reach of Fundamental Rights in Part III, as interpreted 

       by this Court had assumed a very expansive profile. In 

       view of the mandate of Article 13, the provision of the 

       said   Act   must   be   tested   on   the   anvil   of   the   broad 

       interpretation   of   Fundamental   Rights   given   by   this 

       Court. In view of the decision of this Court in  Maneka 

       Gandhi  v.  Union of India & Another  - (1978) 1 SCC 

       248, the interpretation of Part  III rights namely rights 

       under   Article   14,   19   and   21   given   therein   by   this 

       Court,   read   with   Article   141,   becomes   the   law   of   the 

                                     135

       land.   Therefore,   the   reach   of   Article   13(1)   is 

       correspondingly widened. Thus, the 1984 amendments 

       must   be   construed   as   a   conscious   attempt   by   the 

       legislature being aware of the expansive interpretation 

       of Fundamental Rights by this  Court, to bring the said 

       act   consistent   with   the   rights   of   the   citizens   and 

       persons in Part III.

25.    Despite   the   fact   that   Right   to   Property   in   terms   of 

       Article   19(1)(f)   of   the   Constitution   stood   deleted   from 

       Chapter III of the Constitution, vide 44th Constitutional 

       Amendment,   1978,     Article   300A   of   the   Constitution 

       was   added   by   the   same   Constitutional   Amendment, 

       mandating   that   `no   person   shall   be   deprived   of   his 

       property save by authority of law'.   This indicates that 

       the   Constitution   still   mandates   that   right   to   property 

       may   have   ceased   to   be   a   fundamental   right,   but   it   is 

       still   protected   by   the   Constitution   and   is   a 

       Constitutional   right.   Constitution   also   provides   that 

       deprivation of that right cannot be brought about save 

       by authority of law.  

                                     136

26.    It   is   accepted   in   every   jurisprudence   and   by   different 

       political thinkers that some amount of property right is 

       an   indispensable   safeguard   against   tyranny   and 

       economic oppression of the Government. Jefferson was 

       of the view that liberty cannot long subsist without the 

       support   of   property.   "Property   must   be   secured,   else 

       liberty cannot subsist" was the opinion of John Adams. 

       Indeed   the   view   that   property   itself   is   the   seed   bed 

       which must be conserved if other constitutional values 

       are   to   flourish   is   the   consensus   among   political 

       thinkers   and   jurists.   The   U.S.   Supreme   Court   in 

       Dorothy   Lynch  v.  Household   Finance   Corporation, 

       405 US 538: 31 L Ed. 2d 424  held:

       "....the dichotomy between personal liberties and 

       property rights is a false one. Property does not 

       have   rights.   People   have   rights.   The   right   to 

       enjoy property  without unlawful  deprivation,  no 

       less than the right to speak or the right to travel, 

       is   in   truth   a   "personal"   right,   whether   the 

       "property"   in   question   be   a   welfare   check,   a 

       home,   or   a   savings   account.           In   fact,   a 

       fundamental interdependence exists between the 

       personal   right   to   liberty   and   the   personal   right 

       in property. Neither could have meaning without 

       the other. That rights in property are basic civil 

       rights   has   long   been   recognized.  J.   Locke,   of 

       Civil   Government   82-85   (1924);   J.   Adams,   A 

       Defence   of   the   Constitutions   of   Government   of 

                                     137

       the   United   States   of   America,   in   F.   Coker, 

       Democracy,   Liberty,   and   Property   121-132 

       (1942);   1   W.   Blackstone,   Commentaries   138-

       140..."  (P.552 of the report)

27.    Justice   K.K.   Mathew   in   his   treatise   on   "Democracy, 

       Equality   and   Freedom":   (1978)   very   categorically 

       expressed the view:

       "In a Society with a mixed economy, who can be 

       sure   that   freedom   in   relation   to   property   might 

       not   be   regarded   as   an   aspect   of   individual 

       freedom?   People   without   property   have   a 

       tendency   to   become   slaves.   They   become   the 

       property   of   others   as   they   have   no   property 

       themselves.   They   will   come   to   say:   "Make   us 

       slaves,   but   feed   us".   Liberty,   independence,   self-

       respect, have their roots in property. To denigrate 

       the institution of property is to shut one's eyes to 

       the stark reality evidenced by the innate instinct 

       and   the   steady   object   of   pursuit   of   the   vast 

       majority of people. Protection of property interest 

       may   quite   fairly   be   deemed   in   appropriate 

       circumstances an aspect of freedom." (P.38-39)

28.    Explaining   the   interrelation   between   the   right   of 

       property and personal liberty, Learned Hand ruled that 

       property right is a personal right. (Learned Hand : The 

       Spirit of Liberty)

                                    138

29.    In  our  Constitution   the   word  `law'  finds   place   both   in 

       Article 21 and in Article 300A. The term `law' in Article 

       21   has   been   interpreted   by   the   Supreme   Court   from 

       time   to   time.   In    A.K.   Gopalan  v.  State   of   Madras, 

       (AIR  1950  SC  27),  the  expression  `law' meant enacted 

       law,   meaning   thereby   if   the   law   was   passed   by   a 

       competent   legislature   and   was   not   violative   of   any 

       other   provision   of   the   Constitution,   the   law   would   be 

       valid.   But   the   said   interpretation   does   no   longer   hold 

       good after  the  epoch making decision of this Court  in 

       Maneka Gandhi (supra), where this Court held the law 

       does   not   mean   any   enacted   piece.   According   to   the 

       majority   decision   in  Maneka   Gandhi  (supra)   "law   is 

       reasonable   law   not   any   enacted   piece"   (para   85   page 

       338 of the report)

30.    In  Maneka   Gandhi  (supra)   this   Court   held   that   the 

       expression `procedure established by law' in Article 21 

       means   a   procedure   established   by   a   just,   reasonable 

       and   fair   law.   Thus   the   concept   of   due   process   of   law 

       was   incorporated   in   our   constitutional   framework   by 

                                     139

       way   of   judicial   interpretation   even   though   it   was 

       rejected by the framers.

31.    As   a   result   of   incorporation   of   this   doctrine   of   `due 

       process'   in   our   constitutional   framework,   the   concept 

       of Articles 14 and 21 has undergone a sea-change. In 

       Maneka   Gandhi  (supra),   Justice   Bhagwati,   as   His 

       Lordship then was, gave a very dynamic interpretation 

       of Articles 14 and 21.

32.    Even prior to the decision in  Maneka Gandhi  (supra), 

       a   Constitution   Bench   of  this  Court   in  R.C.   Cooper  v. 

       Union   of   India  -   (1970)   1   SCC   248   also   gave   a 

       composite and integrated interpretation of rights under 

       Part   III   of   the   Constitution.   The   question   before   this 

       Court   in  R.C.   Cooper  (supra)   was   whether   the   rights 

       under   Articles   19(1)(f)   and   31(2)   are   mutually 

       exclusive.  Answering the said question, the majority of 

       the   Constitution   Bench,   speaking   through   Shah,   J. 

       analysed the different features  of Fundamental Rights 

       in   para   52   at   page   289   of   the   report   and   came   to   a 

       conclusion   that   part   III   of   the   Constitution   "weaves   a 

                                      140

       pattern   of   guarantees   on   the   texture   of   basic   human 

       rights.   The   guarantees   delimit   the   protection   of   those 

       rights   in   their   allotted   fields:   they   do   not   attempt   to 

       enunciate distinct rights." (page 289)

33.    In   the   following   paragraph   53,   the   learned   judges 

       further made it clear by saying:

       "acquisition must be under the authority of a law 

       and   the   expression   "law"   means   a   law   which   is 

       within   the   competence   of   the   Legislature,   and 

       does   not   impair   the   guarantee   of   the   rights   in 

       Part III."

34.    In   view   of   this   clear   enunciation   of   law   by   two 

       Constitution Benches of this Court and the wording of 

       Article   300A   of   the   Constitution,   let   us   examine   the 

       correctness   of   the   impugned   Judgment   of   the   High 

       Court which relies only on S.P. Jain's case (supra).

35.    The facts are totally different in S.P. Jain (supra).  It is 

       clear from the facts in  S.P. Jain  (supra) that the third 

       respondent,   the  Krishi   Utpadan   Mandhi   Samity,   in 

       whose favour the land was acquired for construction of 

       market-yard,   resolved   on   13th  January,   1989   to 

       withdraw from the acquisition as it was suffering from 

                                      141

       a   fund   crunch   and   the   proposed   Mandhi   site   was   far 

       away from Baraut (para 5).

36.    The   second   round   of   litigation,   out   of   which   the 

       judgment   in  S.P.   Jain  (supra)   was   rendered   by   this 

       Court,   was   filed   after   the   aforesaid   resolution   of   the 

       third   respondent   was   passed.   Challenging   the   same, 

       the writ petition was filed before the High Court on 10th 

       August,   1989   wherein   the   writ   petitioner   prayed   that 

       the   State   of   Uttar   Pradesh   (the   first   respondent),   The 

       Collector,   Merrut   (the   second   respondent)   and   the 

       Mandhi   (the   third   respondent)   be   directed   by   Writ   of 

       Mandamus   to   make   and   publish   an   award   in   respect 

       of   the   land.   In   that   context   this   Court   examined 

       various provisions of the Act and gave a direction upon 

       the first and second respondents to publish an award 

       within 12 weeks and imposed a cost of Rs.10,000/- on 

       the third respondent. In fact the writ petition in terms 

       of the prayer was allowed.

37.    In  coming   to  the   aforesaid   conclusion  this  Court   held 

       that   in   a   case   where   the   emergency   provisions   are 

                                     142

       invoked under Section 17 of the Act, the provisions of 

       Section 11A will not apply. And this Court came to an 

       incidental   finding,   though   it  was   not  strictly   in   issue, 

       that   taking   over   the   possession   without   making 

       payment under Section 17 (3A) of the Act is not illegal. 

       This   finding   was   not   at   all   necessary   for   deciding   the 

       issue,   namely   whether   prayer   in   the   writ   petition   for 

       publishing the award was correctly made or not.

38.    It   has   been   held   in   the   decision   of   this   Court   in 

       Municipal   Corporation   of   Delhi  v.  Gurnam   Kaur, 

       reported in AIR 1989 SC 38 that when a point does not 

       fall for decision of a Court but incidentally arises for its 

       consideration   and   is   not   necessary   to   be   decided   for 

       the ultimate decision of the case, such a decision does 

       not form a part of the ratio of the case but the same is 

       treated as a decision passed sub silentio. The concept 

       of   `sub   silentio'   has   been   explained   by   Salmond   on 

       Jurisprudence "12th Edition" as follows:

       "A decision passes sub silentio, in the technical 

       sense   that   has   come   to   be   attached   to   that 

       phrase, when the particular point of law involved 

       in the  decision is not perceived by  the Court  or 

                                     143

       present to its mind. The Court may consciously 

       decide in favour of one party because of point A, 

       which it considers and pronounces upon. It may 

       be   shown,   however,   that   logically   the   Court 

       should   not   have   decided   in   favour   of   the 

       particular party unless it also decided point B in 

       his   favour;   but   point   B   was   not   argued   or 

       considered by the Court. In such circumstances, 

       although   point   B   was   logically   involved   in   the 

       facts   and   although   the   case   had   a   specific 

       outcome,   the   decision   is   not   an   authority   on 

       point   B.   Point   B   is   said   to   pass   sub   silentio." 

       (page 43)

39.    The   aforesaid   passage   has   been  quoted   with   approval 

       by   the   three   Judge   Bench   in  Gurnam   Kaur  (supra). 

       This   Court   in  Gurnam   Kaur  (supra),   in   order   to 

       illustrate the aforesaid proposition further relied on the 

       decision   of   the   English   Court   in  Gerard  v.  Worth   of 

       Paris   Ltd.,  reported   in   1936   (2)   All   England   Reports 

       905.   In   Gerard,   the   only   point   argued   was   on   the 

       question   of   priority   of   the   claimant's   debt.   The   Court 

       found that no consideration was given to the question 

       whether a garnishee order could be passed. Therefore, 

       a point in respect of which no argument was advanced 

       and   no   citation   of   authority   was   made   is   not   binding 

       and would not be followed. This Court held that such 

       decisions,   which   are   treated   having   been   passed   sub 

                                      144

       silentio and without argument, are of no moment. The 

       Court further explained the position by saying that one 

       of the chief reasons behind the doctrine of precedent is 

       that   once   a   matter   is   fully   argued   and   decided   the 

       same   should   not   be   reopened   and   mere   casual 

       expression   carry   no   weight.   In  Gurnam   Kaur  (supra) 

       this   Court   conclusively   held   that   not   every   passing 

       expression   of   a   Judge,   however   eminent,   can   be 

       treated as "ex cathedra statement, having the weight of 

       authority" (see para 12 page 43)

40.    Similarly, it has also been held by the majority opinion 

       in   Constitution   Bench   of   this   Court   in   the   case   of 

       Madhav   Rao   Jivaji   Rao   Scindia  v.  Union   of   India, 

       reported   in   AIR   1971   SC   530   that   "it   is   difficult   to 

       regard   a   word,   a   clause   or   a   sentence   occurring   in   a 

       judgment   of   this   Court,   divorced   from   its   context,   as 

       containing   a   full   exposition   of   the   law   on   a   question 

       when the question did not even fall to be answered in 

       that judgment." (page 578 of the report)

                                     145

41.    In another Constitution Bench decision of this court in 

       Padma Sundara Rao (Dead) & Ors., v. State of Tamil 

       Nadu & others  reported in (2002) 3 SCC 533, similar 

       views have been expressed by this Court in para 9, at 

       page   540   of   the   report   wherein   the   unanimous 

       Constitution Bench of this Court opined:

       "9.   Court   should   not   place   reliance   on  decisions 

       without   discussing   as   to   how   the   factual 

       situation   fits   in   with   the   fact   situation   of   the 

       decision   on   which   reliance   is   placed.   There   is 

       always   peril   in   treting   the   words   of   a   speech   or 

       judgment   as   though   they   are   words   in   a 

       legislative enactment, and it is to be remembered 

       that judicial utterances are made in the seting of 

       the facts of a particular case, said Lord Morris in 

       Herrington V. British Railways Board - (1972) AC 

       877.   Circumstantial   flexibility,   one   additional   or 

       different   fact   may   make   a   world   of   difference 

       between conclusions in two cases."

42.    The reason behind enacting Section 17 (3A) of the Act 

       is   clear   from   the   Statement   of   Object   and   Reasons 

       extracted   above.   It   is   clear   therefore   the   provisions 

       were incorporated in order to strike a balance between 

       the rights of the State and those of the land owner. A 

       clear   legislative   intent   in   Section   17(3A)   was   thus 

       expressed   that   before   taking   possession   of   any   land 

                                      146

       under sub-section (1) or sub-section (2) of Section 17, 

       the   Collector   shall   tender   payment   of   80%   of   the 

       estimated   compensation   for   such   land   to   the   persons 

       interested   and   entitled   thereto.   This   is   the   clear 

       mandate of law. 

43.    In   view   of   the   principles   enunciated   in  R.C.   Cooper 

       (supra)   and  Maneka   Gandhi  (supra),   reasonableness 

       in law has to be its implicit content. Here no challenge 

       to   the   reasonableness   of   Section   17   (3A)   is   either 

       argued   or   considered   by   this   Court.   But   when   law 

       gives   a   specific   mandate   on   the   State   to   tender   the 

       payment before taking possession under Section 17(1) 

       and   Section   17(2)   by   invoking   the   emergency   powers, 

       to   hold   that   the   taking   over   of   possession   without 

       complying   with   that   mandate   is   legal   is   clearly   to 

       return   a   finding   which   is   contrary   to   the   express 

       provision of the statute. Such a finding is certainly not 

       on   a   reasonable   interpretation   of   Section   17   (3A). 

       Therefore, the casual observation in para 17 (page 375) 

       in  S.P.  Jain  (supra)   to  the   effect  of   taking  possession 

       of   land   under   emergency   provision   and   without 

                                    147

       making the payment mandated under Section 17(3A) is 

       a valid  mode of taking possession is  in clear  violation 

       of Section  17(3A)  and be regarded  made  per  incuriam 

       and does not have the effect of a binding precedent.

44.    If   I   look   at   the   emergency   provisions   of   the   statute 

       which   empowers   the   State   to   acquire   land   by 

       dispensing with the provisions of making an enquiry it 

       is clear that the said provision is a drastic provision. It 

       is   well-known   that   the   provisions   of   the   said   Act   are 

       expropriatory   in   nature   and   must   be   strictly 

       construed. In that expropriatory legislation, Section 17 

       is   a   very   drastic   provision   as   Section   17   of   the   Act 

       seeks   to   authorize   acquisition   and   taking   over   of 

       possession without hearing the land owner. This Court 

       held   that   the   right   of   hearing   which   is   given   under 

       Section 5A of the Act and which is taken away in view 

       of   the   emergency   acquisition   is   a   very   valuable   right 

       and is akin to a fundamental right. (See Dev Sharan & 

       Ors.  v.  State  of  U.P.  &  Ors.  - JT  2011  (3)  SC  102). 

       Therefore, when that right is taken away and the land 

       is   acquired   by   invoking   the   emergency   provision   of 

                                     148

       Section   17(3A)   to   hold   that   even   the   safeguards 

       provided under Section 17(3A) are not mandatory and 

       taking   over   of   possession   without   complying   with   the 

       provisions of Section 17 (3A) is not illegal is to overlook 

       the   clear   provisions   of   the   Act   and   come   to   a   finding 

       which   is   contrary   to   the   Act.   This   Court   is   unable   to 

       accept   that   the   taking   over   of   the   possession   by 

       invoking Section  17(1) or Section 17(2) of the Act and 

       without   making   the   payment   under   Section   17(3A)   is 

       legal taking over of possession.  

45.    This Court is of the view that Section 17(3A) is not an 

       isolated   provision.   Section   17(3A)   figures   very 

       prominently   as   part   of   the   statutory   mechanism   in 

       Section   17  of  the   Act  which  confers  special  powers   in 

       cases of urgency. Section 17 has four sub sections and 

       all   these   sub   sections   comprise   a   composite 

       mechanism   and   are   closely   intertwined.   Power   under 

       one sub section cannot be exercised without complying 

       with the conditions imposed by the other sub section. 

       For   a  proper   appreciation   of  this  question,   section   17 

       with all its sub sections are set out:

                                      149

"17.   Special   powers   in   cases   of   urgency.   (1)   In 

cases   of   urgency,   whenever   the   appropriate 

Government, so directs, the Collector, though no 

such   award   has   been   made,   may,   on   the 

expiration   of   fifteen   days   from   the   publication   of 

the notice mentioned in section 9, sub-section (1), 

take   possession   of   any   land   needed   for   a   public 

purpose.   Such   land   shall   thereupon   vest 

absolutely   in   the   Government,   free   from   all 

encumbrances. 

(2) Whenever, owing to any sudden change in the 

channel   of   any   navigable   river   or   other 

unforeseen   emergency,   it   becomes   necessary   for 

any   Railway   administration   to   acquire   the 

immediate   possession   of   any   land   for   the 

maintenance of their traffic  or for the purpose of 

making thereon a river-side or ghat station, or of 

providing convenient connection with or access to 

any such station, or the appropriate Government 

considers   it   necessary   to   acquire   the   immediate 

possession   of   any   land   for   the   purpose   of 

maintaining   any   structure   or   system   pertaining 

to   irrigation,   water   supply,   drainage,   road 

communication   or   electricity,   the   Collector   may, 

immediately   after   the   publication   of   the   notice 

mentioned   in   sub-section   (1)   and   with   the 

previous sanction of the appropriate Government, 

enter   upon   and   take   possession   of   such   land, 

which   shall   thereupon   vest   absolutely   in   the 

Government free from all encumbrances: 

Provided   that   the   Collector   shall   not   take 

possession   of   any   building   or   part   of   a   building 

under   this   sub-section   without   giving   to   the 

occupier thereof at least forty-eight hours'  notice 

of his intention so to do, or such longer notice as 

may   be   reasonably   sufficient   to   enable   such 

occupier   to   remove   his   movable   property   from 

such          building          without          unnecessary 

inconvenience. 

                                150

(3)   In   every   case   under   either   of   the   preceding 

sub-sections   the   Collector   shall   at   the   time   of 

taking   possession   offer   to   the   persons   interested 

compensation for the standing crops and trees (if 

any)   on   such   land   and   for   any   other   damage 

sustained   by   them   caused   by   such   sudden 

dispossession   and   not   excepted   in   section   24; 

and, in case such offer is not accepted, the value 

of such crops and trees and the amount of such 

other   damage   shall   be   allowed   for   in   awarding 

compensation   for   the   land   under   the   provisions 

herein contained. 

(3A)   Before   taking   possession   of   any   land   under 

sub-section   (1)   or   sub-section   (2),   the   Collector 

shall, without prejudice to the provisions of sub-

section (3),- 

(a)   tender   payment   of   eighty   per   centum   of   the 

compensation for such land as estimated by him 

to the persons interested entitled thereto, and 

(b) pay it to them, unless prevented by some one 

or more of the contingencies mentioned in section 

31, sub-section (2), 

and   where   the   Collector   is   so   prevented,   the 

provisions   of   section   31,   sub-section   (2),   (except 

the   second   proviso   thereto),   shall   apply   as   they 

apply to the payment of compensation under that 

section. 

(3B)   The   amount   paid   or   deposited   under   sub-

section   (3A),   shall   be   taken   into   account   for 

determining   the   amount   of   compensation 

required   to   be   tendered   under   section   31,   and 

where   the   amount   so   paid   or   deposited   exceeds 

the compensation awarded by the Collector under 

section   11,   the   excess   may,   unless   refunded 

within   three   months   from   the   date   of   the 

Collector's   award,   be   recovered   as   an   arrear   of 

land revenue. 

                             151

       (4)   In   the   case   of   any   land   to   which,   in   the 

       opinion   of   the   appropriate   Government,   the 

       provisions of sub-section (1) or sub-section (2) are 

       applicable,   the   appropriate   Government   may 

       direct   that  the  provisions  of  section 5A  shall not 

       apply, and, if it does so direct, a declaration may 

       be made under section 6 in respect of the land at 

       any   time   after   the   date   of   publication   of   the 

       notification under section 4, sub-section (1)."

46.    Sub-section   (3A)   of   Section   17   is   linked   with   sub 

       section (2) of Section 31. Sub section (2) of Section 31 

       runs thus:

       "(2)   If   they   shall   not   consent   to   receive   it,   or   if 

       there   be   no   person   competent   to   alienate   the 

       land,  or  if  there  be  any  dispute   as  to  the  title   to 

       receive   the   compensation   or   as   to   the 

       apportionment   of   it,   the   Collector   shall   deposit 

       the   amount  of  the   compensation  in  the   Court   to 

       which   a   reference   under   section   18   would   be 

       submitted: 

       Provided   that   any   person   admitted   to   be 

       interested   may   receive   such   payment   under 

       protest as to the sufficiency of the amount: 

       Provided   also   that   no   person   who   has   received 

       the amount otherwise than under protest shall be 

       entitled   to   make   any   application   under   section 

       18: 

       Provided also that nothing herein contained shall 

       affect the liability of any person, who may receive 

       the   whole   or   any   part   of   any   compensation 

       awarded   under   this   Act,   to   pay   the   same   to   the 

       person lawfully entitled thereto."

                                        152

47.    It is thus clear that sub section (3A) of Section 17 read 

       with   sub   section   (2)   of   Section   31   of   the   Act   form   a 

       composite   statutory   scheme.   The   said   scheme   has 

       been   legislatively   framed   to   balance   the   promotion   of 

       public   purpose   in   acquisition   with   rights   of   the 

       individual   whose   land   is   acquired.   This   is   clear   from 

       the Statement of Objects and Reasons which was kept 

       in view for  bringing  about the  amendment of the said 

       Act   by   Amendment   Act   68   of   1984.   By   the   said 

       amendment   Section   17(3A)   was   brought   on   the 

       statute.

48.    Therefore,   the   provision   of   Section   17(3A)   cannot   be 

       viewed in isolation as it is an intrinsic and mandatory 

       step   in   exercising   special   powers   in   cases   of 

       emergency.   Sections   17(1)   and  17(2)  and   17(3A)   must 

       be   red   together.   Section   17(1)   and   17(2)   cannot   be 

       worked out in isolation.

49.    It   is   well   settled   as   a   canon   of   construction   that   a 

       statute has to be read as a whole and in its context. In 

       Attorney   General  v.  HRH   Prince   Earnest   Augustus 

                                      153

       of   Hanover,   reported   in   (1957)   1   AER   49,   Lord 

       Viscount   Simonds   very   elegantly   stated   the   principle 

       that it is the duty of Court to examine every word of a 

       statute   in   its   context.   The   learned   Law   Lord   further 

       said   that   in   understanding   the   meaning   of   the 

       provision, the Court must take into consideration "not 

       only other enacting provisions of the same statute, but 

       its   preamble,   the   existing   state   of   the   law,   other 

       statutes in pari material, and the mischief which I can, 

       by those and other legitimate means, discern that the 

       statute   was   intended   to   remedy"   (page   53   of   the 

       report). 

50.    Lord Normand expressed the same view differently and 

       which is equally pertinent and worth remembering and 

       parts of which are excerpted below:

       "The key to the opening of every law is the reason 

       and   spirit   of   the   law   -   it   is   the   animus 

       imponentis,   the   intention   of   the   law   maker, 

       expressed   in   the   law   itself,   taken   as   a   whole. 

       Hence   to   arrive   at   the   true   meaning   of   any 

       particular   phrase   in   a   statute,   that   particular 

       phrase   is   not   to   be   viewed   detached   from   its 

       context   ...   meaning   by   this   as   well   the   title   and 

       the   preamble   as   the   purview   or   enacting   part   of 

       the statute" (page 61 of the report).

                                     154

51.    These principles have been followed by this Court in its 

       Constitution   Bench   decision   in  Union   of   India  v. 

       Sankalchand   Himatlal   Sheth   &   anr.,  [(1977)   4   SCC 

       193].   At page 240 of the report, Justice Bhagwati, as 

       His   Lordship   then   was,   in   a   concurring   opinion   held 

       that   words   in   a   statute   cannot   be   read   in   isolation, 

       their colour and content are derived from their context 

       and   every   word   in   a   statute   is   to   be   examined   in   its 

       context. His Lordship explained  that the word context 

       has   to   be   taken   in   its   widest   sense   and   expressly 

       quoted the formulations of Lord Viscount Simonds, set 

       out above. (See para 54, P.241 of the report).

52.    In   this   connection,   if   I   compare   the   normal   mode   of 

       vesting   of   acquired   property   under   Section   16   of   the 

       Act   with   the   mode   of   vesting   under   emergency 

       provisions   of   Section   17   thereof,   I   will   discern   that 

       under the said Act the vesting of acquired property in 

       the State presupposes compliance with two conditions. 

       Under Section 16, first there has to be an award under 

                                      155

       section   11   and   then   there   has   to   be   taking   over   of 

       possession.   Only   thereupon   the   land   shall   vest 

       absolutely   in   the   state,   free   from   all   encumbrances. 

       Section 16 of the act which makes it clear is as under:

              "16.     Power   to   take   possession.-   When 

       the   Collector   has   made   an   award   under 

       section   11,   he   may   take   possession   of   the 

       land, which shall thereupon vest absolutely in 

       the Government, free from all encumbrances."

53.    But   in   case   of   emergency   acquisition,   possession   is 

       taken   before   the   making   of   an   award.   This   is   clear 

       from section 17(1) and section 17(2). But the intention 

       of the legislature is that even though the award is not 

       made,   payment   mandated   under   Section   17(3A)   must 

       be   made   before   possession   is   taken   either   under 

       Section   17(1)   and   17(2).   Therefore   this   provision 

       relating to payment under Section 17(3A) is a condition  

       precedent  to   the   vesting   of   land   under   Section   17(1) 

       and   17(2).   In   the   later   part   of   this   judgment,   I   shall 

       discuss some authorities which have opined that when 

       possession is illegally taken over without following the 

       conditions   precedent   for   taking   such   possession, 

                                      156

       vesting of a property in law does not take place in the 

       authority   which   thus   illegally   enters   upon   the 

       property. 

54.    Judicial   opinion   is   uniformly   in   favour   of   strict 

       construction of an expropriatory law which admittedly 

       Land   Acquisition   Act,   1894   is.       Reference   in   this 

       connection   can   be   made   to   the   observations   of 

       Cottenham,   L.C.   in  Webb  v.  Manchester   and   Leeds  

       Rail
                 Co.,
                       [(1839),   4   Myl.   &   Cr.116]   where   the   Lord 

       Chancellor held:

       "The powers are so large - it may be necessary for 

       the benefit of the people - but they are so large, 

       and   so   injurious   to   the   interests   of   the 

       individuals,   that   I   think   it   is   the   duty   of   every 

       court   to   keep   them   most   strictly   within   those 

       powers; and if there be any reasonable doubt as 

       to   the   extent   of   their   powers,   they   must   go 

       elsewhere and get enlarged powers; but they will 

       get none from me by way of construction of their 

       Act of Parliament."

55.    In   the   Indian   context,   as   early   as   in   1916.     Judicial 

       committee of Privy Council in  Secretary of State for  

       India v. Birendra Kishore Manikya (ILR 44 Cal 328), 

       speaking   through   Lord   Dunedin   held,   `the   Act   is 

                                      157

       drastic in its character and makes invasion in private 

       rights...matter   must   be   brought   "strictly   within   its 

       provisions".' (p 343)

56.    Cripps in "The Law of Compensation for Land Acquired  

       under Compulsory Powers"  (8th  ed., Stevens and Sons, 

       Ltd.)   has   quoted   the   above   opinion   of   the   Lord 

       Chancellor   and   further   dealt   with   this   aspect   of   the 

       matter   at   page   27   of   the   book   wherein   the   learned 

       author   said,   "Where   the   promoters   of   a   public 

       undertaking   have   authority   from   Parliament   to 

       interfere   with   private   property   on   certain   terms,   any 

       person   whose   property   is   interfered   with   by   virtue   of 

       that authority has a right to require that the promoters 

       shall comply with the letter of the enactment, so far as 

       it   makes   provision   on   his   behalf."   Again   at   page   100, 

       the   learned   author   has   stressed   the   above   position 

       very strongly to the following effect:-

       "If   no   consent   has   been   given,   and   the 

       promoters  have not complied with the statutory 

       conditions   as   to   entry   on   lands,   they   can   be 

       proceeded   against   as   trespassers   by   any   owner 

       who   has   an   interest   in   the   lands.  The   principle 

       is that all statutory conditions which have been 

                                     158

       imposed   as   condition   precedent   to   an   entry   on 

       lands must be fulfilled."

57.    In   support   of   this   aforesaid   proposition,   the   learned 

       author   has   relied   on  Parkdale   Corporation  v.  West 

       [(1887), 12 App. Cas. 602, 614].

58.    And again at page 173, the learned author opines:

       "It   must   be   borne   in   mind   that   promoters   have 

       no   powers,   other   than   those   comprised   in   their 

       special Acts and the Acts therewith incorporated, 

       to   enter   upon   or   take   lands   against   the   wish   of 

       the   owners.   It   is   incumbent   on   promoters   to 

       comply   with   all   conditions   and   limitations 

       imposed   upon   them,   and,   unless   they   have   so 

       complied, any interested owner can restrain them 

       by injunction from taking, as against him, further 

       proceedings".

       I   am   in   respectful   agreement   with   the   aforesaid 

principles.

59.    I   find   that   same   principles   have   been   laid   down   in 

       Cooley's   `A   Treatise   on   the   Constitutional   Limitations'  

       Volume II,  (Eight Edition). Cooley while dealing with the 

       concept   of   `Eminent   Domain'   in   Chapter   15   opined 

       (p.1120):

       "...whenever in pursuance of law the property of 

       an   individual   is   to   be   divested   by   proceedings 

                                     159

       against his will, a strict compliance must be had 

       with all the provisions of law which are made for 

       his protection and benefit, or the proceeding will 

       be   ineffectual.      Those   provisions   must   be 

       regarded   as   in   the   nature   of   conditions 

       precedent,   which   are   not   only   to   be   observed 

       and   complied   with   before   the   right   of   the 

       property   owner   is   disturbed,   but   the   party 

       claiming authority under the adverse proceeding 

       must show affirmatively such compliance".

                                                (emphasis added)

60.    The learned author explained the aforesaid proposition 

       with   certain   illustration   which   very   closely   fit   in   with 

       the legal framework with which I am concerned in this 

       case. The learned author said:

       "So   if   the   statute   vests   the   title   to   lands 

       appropriated   in   the   state   or   in   a   corporation   on 

       payment therefore being made, it is evident that, 

       under the rule stated, the payment is a condition 

       precedent to the passing of the title." 

                                                (Emphasis added)

61.    Reference   in   this   connection   should   be   made   to   the 

       decision   of   Supreme   Court   of   Vermont   in  Henry   B.  

       Stacey  v  The Vermont Central Railroad Co, (27 Vt. 

       39).   In   that   case,   while   discussing   the   concept   of 

       Eminent   Domain,   the   court   after   referring   to   various 

       decisions   held   "that   this   provision   (relating   to   deposit 

                                     160

       of   the   appraised   value)   should   be   considered   in   the 

       nature   of   a   condition   precedent,   not   only   to   the 

       acquisition of the legal title to the land, but also to the 

       right   to   enter   and   take   the   permanent   possession   of 

       the land for the use of the corporation."

62.    The expression condition precedent has been defined in 

       Words   and   Phrases   (permanent   edition,   Vol.   8.   St. 

       Paul, Minn, West Publishing Co., 1951, p 629) as those 

       which `must be punctually performed before the estate 

       can   vest'.   Similarly,   in   Bouvier's   Law   Dictionary,   (A 

       Concise   encyclopedia   of   the   Law,   Rawle's   Third 

       Revision, Vol. 1, Vernon Law Book Company, 1914, p 

       584), virtually the same principles have been followed. 

       The learned author expressed this even more strongly 

       by explaining that:

       "The   effect   of   a   Condition   precedent   is,   when 

       performed,   to   vest   an   estate,   give   rise   to   an 

       obligation,   or   enlarge   an   estate   already   vested; 

       [...].   Unless   a   condition   precedent   be   performed, 

       no   estate   will   vest;   and   this   even   where   the 

       performance is prevented by the act of God or of 

       the law; [...]."

                                    161

63.    In   Wharton's   Law   Lexicon,   it   has   been   held   that 

       conditions   precedent   in   their   primary   meaning   are 

       those   events,   but   for   the   happenings   of   which   rights 

       will not arise. (Wharton's Law Lexicon, 1976, reprint, p 

       228).

64.    In the case of Gujarat Electricity Board v Girdharlal  

       Motilal And Anr  (AIR 1969 SC 267), this court while 

       dealing with the power of the State Electricity Board to 

       purchase   the   property   of   the   licensee   held   that   right 

       can   be   exercised   only   in   the   manner   provided   in   the 

       act and not in any other way. The court held that since 

       this   power   of   the   Board   under   the   law   is   to   interfere 

       with   the   property   rights   of   the   licensee,   such   power 

       will   have   to   be   strictly   construed.   In   laying   down   the 

       said   principle   this   court   relied   on   the   well-known 

       doctrine in case of Nazir Ahmad v King Emperor [AIR 

       1936 PC 253] that when a power is to be exercised in a 

       manner   it   has   to   be   exercised   in   that   manner   alone 

       and   in   no   other   manner.   In   two   other   recent 

       judgments,   this   court   reiterated   the   same   principle, 

       and held that expropriatory statute, as is well known, 

                                      162

       must be strictly construed. [See Hindustan Petroleum 

       corpn.   Ltd.,   v.  Darius   Shapur   Chenai   and   others 

       reported in (2005) 7 SCC 627]. The said principle has 

       also been followed by this Court in the case of Bharat  

       Petroleum   Corporation   Ltd.  v  Maddula   Ratnavalli  

       and Others  [(2007)  6 SCC 81]   where  learned  judges 

       relying   on   Hindustan   Petroleum   reiterated   the   same 

       principle   of   strict   construction   of   expropriatory 

       legislation (p 91).

65.    In   an   earlier   decision  Jilubhai   Nanbhai   Khachar  

       and others  v  State of Gujarat and Anr  [1995 Suppl 

       (1) SCC 596], this Court while dealing with the concept 

       of   eminent   domain   and   right   to   property   in   Article 

       300A held as follows (para 50, p. 628):

       "50.   All   modern   constitutions   of   democratic 

       character   provide   payment   of   compensation   as 

       the   condition   to   exercise   the   right   of 

       expropriation. Commonwealth of Australia Act, a 

       Frecnh   Civil   Code   (Article   545),   the   5th 

       Amendment   of   the   Constitution   of   USA   and   the 

       Italian   constitution   provided   principles   of   "just 

       terms", "Just indemnity", Just compensation" as 

       reimbursement for the property taken, have been 

       provided for. As pointed out in Halsbury's Law of 

       England   that   "when   Parliament   has   authorized 

       the   compulsory   acquisition   of   land   it   is   almost 

       invariably   provided   for   payment   of   a   money 

                                    163

       compensation   to   the   person   deprived   of   his 

       interest in it."

66.    On   the   basis   of   aforesaid   principles,   I   hold   that   the 

       requirement of payment under section 17(3A) is in the 

       nature   of   condition   precedent   clamped   by   the   statute 

       before  taking possession  under   emergency  acquisition 

       by   the   State.   The   vesting   contemplated   either   under 

       Section   17(1)   or   17(2)   of   this   Act   is   conditioned   upon 

       payment mandated under Section 17(3A).  This is clear 

       from   the   opening   words   of   Section   17(3A)   namely 

       "before   taking   possession   of   any   land   either   under 

       sub-section   (1)   or   (2),   Collector   shall.......   tender 

       payment."     Therefore,   the   eminent   domain   concept   is 

       subject   to   the   aforesaid   statutory   condition   and   must 

       be   read   subject   to   due   process   concept   introduced   in 

       our constitutional  law in  Maneka Gandhi  (supra). If I 

       read,   Section   17(3A)   as   I   must,   consistently   with   the 

       constitutional doctrine of due process as articulated in 

       the   expression   `authority   of   law'   under   Article   300A 

       which constitutionally protects deprivation of a right to 

                                     164

       property,   save   by   authority   of   law,   the   conclusion   in 

       my   judgment   is   inescapable   that   the   requirement   of 

       section   17(3A)   constitutes   the   authority   of   law   within 

       the meaning of Article 300A. Therefore, in the context 

       of   aforesaid   statutory   dispensation   and   constitutional 

       provision,   the  debate  whether   the   provision  of  section 

       17(3A)   is   mandatory   or   directory   does   not   present 

       much   difficulty   for   the   reasons   discussed   above   and 

       also for the following reasons.

67.    Basically,  the language used  is `shall' which  primarily 

       indicates   mandatory   compliance.   That   apart,   in   the 

       context   of   the   nature   of   statute   which   is   admittedly 

       expropriatory   in   character   and   the   nature   of   the 

       statutory   requirement   under   section   17(3A)   which   is 

       clearly   and   undoubtedly   a   condition   precedent   to   the 

       taking   over   of   possession   in   emergency   acquisition, 

       there   can   be   no   doubt   that   the   requirement   under 

       section 17(3A) is mandatory.

68.    Section   17(3A)   has   been   enacted   for   protecting   the 

       rights   of   deprived   land-loser   in   an   emergency 

                                    165

       acquisition.   The   said   provision   is   therefore   based   on 

       reason,   justice   and   fairplay.   Since   the   said   provision 

       has   been   introduced   by   way   of   an   amendment   as 

       noted above to balance the right of the state as against 

       the   interest   of   the   land-loser,   the   State's   power   of 

       eminent domain is expressly made subject to aforesaid 

       statutory   provision   as   also   the   constitutional   right   to 

       property   protected   under   Article   300A.   Right   to 

       property has been pronounced as fundamental human 

       right   by   this   Court   in  Chairman,   Indore   Vikas 

       Pradhikaran  v.  Pure   Industrial   Coke   &   Chemicals 

       Ltd., and others reported in (2007) 8 SCC 705.

69.    The   expression   `law'   which   figures   both   in   Article   21 

       and Article 300A must be given the same meaning. In 

       both   the   cases   the   law   would   mean   a   validly   enacted 

       law.  In  order   to   be   valid   law   it  must   be  just,   fair   and 

       reasonable having regard to the requirement of Article 

       14   and   21   as   explained   in  Maneka   Gandhi  (supra). 

       This   is   especially   so,   as   `law'   in   both   the   Articles   21 

       and   300A   is   meant   to   prevent   deprivation   of   rights. 

       Insofar as Article 21 is concerned, it is a Fundamental 

                                       166

       Right   whereas   in   Article   300A   it   is   a   constitutional 

       right which has been given a status of a basic human 

       right.

70.    I, therefore, hold that Section 17(3A) of the Act is a law 

       which   has   been   enacted   to   prevent   deprivation   of 

       property   rights   guaranteed   under   Article   300   A.   This 

       provision   of   Section   17(3A)   must   therefore   be   given   a 

       very   broad   interpretation   to   mean   a   law   that   gives   a 

       fair, just and reasonable  protection  of the  land-loser's 

       constitutional right to property. 

71.    Therefore,   the   provisions   of   section   17(3A)   read   with 

       Article 300A must be liberally construed. Reference in 

       this connection be made to the majority opinion in the 

       Constitution   Bench   decision   in   the   case   of  Madhav 

       Rao   Jivaji   Rao   Scindia  (supra).     Shah,   J.,   speaking 

       for the majority opinion observed (para 33, p 576):

       "The   court   will   interpret   a   statute   as   far   as 

       possible, agreeably to justice and reason and that 

       in case of two or more interpretations, one which 

       is   more   reasonable   and   just   will   be   adopted,   for 

       there   is   always   a   presumption   against   the   law 

       maker   intending   injustice   and   unreason.   The 

       court   will   avoid   imputing   to   the   Legislature   an 

       intention   to   enact   a   provision   which   flouts 

                                     167

       notions of justice and norms of fairplay, unless a 

       contrary   intention   is   manifest   from   words   plain 

       and   unambiguous.   A   provision   in   a   statute   will 

       not   be   construed   to   defeat   its   manifest   purpose 

       and   general   values   which   animate   its   structure. 

       In   an   avowedly   democratic   polity,   statutory 

       provisions   ensuring   the   security   of   fundamental 

       human rights including the right to property will, 

       unless   the   contrary   mandate   be   precise   and 

       unqualified,   be   construed   liberally   so   as   to 

       uphold   the   right.   These   rules   apply   to   the 

       interpretation   of   constitution   and   statutory 

       provisions alike."

72.    On the above premise, taking over a possession of land 

       without   complying   with   the   requirement   of   section 

       17(3A)   is   clearly   illegal   and   in   clear   violation   of   the 

       statutory   provision   which   automatically   violates   the 

       constitutional guarantee under Article 300A. A passing 

       observation   to   the   contrary   in  S.P.   Jain  (supra)  must 

       pass  sub silentio  being unnecessary in the facts of the 

       case as otherwise such a finding is per incuriam, being 

       in violation  of  the  statute.  A fortiorari  the said  finding 

       cannot be sustained as a binding precedent.

73.    For the reason aforesaid, this Court holds that the writ 

       petition cannot be dismissed in view of the decision in 

       S.P.   Jain  (supra)   which   was   decided   on   totally 

                                      168

       different facts.   The judgment of the High Court is set 

       aside.

74.    This court further holds that in all cases of emergency 

       acquisition   under   section   17,   the   requirement   of 

       payment under section 17(3A) must be complied with. 

       As   the   provision   of   section   17(1)   and   section   17(2) 

       cannot   be   worked   out   without   complying   with 

       requirement of payment under section 17(3A) which is 

       in the nature of  condition  precedent.   If section 17(3A) 

       is   not   complied   with,   the   vesting   under   section   17(1) 

       and   section   17(2)   cannot   take   place.   Therefore, 

       emergency acquisition  without  complying   with section 

       17(3A)   is   illegal.   This   is   the   plain   intention   of   the 

       statute   which   must   be   strictly   construed.     Any   other 

       construction, in my opinion, would lead to diluting the 

       Rule of Law.

75.    However, coming to the question of relief in the instant 

       case,  the  Court has  to take note of the  fact situation. 

       Admittedly, possession of the land has been taken and 

       same   has   been   handed   over   to   the   beneficiary   on 

                                     169

       which   construction   had   taken   place   and   third   party 

       interests   had   arisen.   It   is   very   difficult   to   put   the 

       hands   of   the   clock   back   now,   despite   the   aforesaid 

       declaration of law by the Court. This Court, therefore, 

       has to think in terms of adequately compensating the 

       appellants.   In   the   special   facts   of   this   case, 

       compensation   in   respect   of   the   land   acquired   insofar 

       as the appellants are concerned cannot be decided on 

       the basis of the date of notice under Section 4.

76.    In   view   of   the   discussions   above,   the   compensation 

       has   to   be   fixed   with   regard   to   the   value   of   the 

       appellant's   land   as   on   the   date   of   filing   of   the   writ 

       petition   which   was   in   March,   2006   before   the   High 

       Court.   The   section   4   notification   must   be   deemed   to 

       have   been   issued   on   March   1,   2006   and   the 

       compensation   must   be   worked   out   on   that   basis.   An 

       award   on   that   basis   must   be   passed   by   the   Collector 

       within   four   months   from   date   and   the   appellants   are 

       given   liberty,   if   so   advised,   to   challenge   the   same   in 

       appropriate   proceedings.   All   questions   relating   to 

       compensation   in   aforesaid   proceeding   are   kept   open 

                                      170

       for both the parties. As the respondent - the acquiring 

       authority has proceeded illegally in the matter, it must 

       pay   costs   of   Rupees   one   lakh   in   favour   of   Allahabad 

       High   Court   Mediation   Centre   within   a   period   of   six 

       weeks from date. The State is at liberty to recover the 

       same from the erring officials. 

77.    The appeal is, thus, allowed with costs as aforesaid. 

                                     .............................................J.

                                       [Asok Kumar Ganguly]  

New Delhi

August 18, 2011

                                    171

                                                                       REPORTABLE

                 IN THE SUPREME COURT OF INDIA

                   CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.24 OF 2009

M/s. Delhi Airtech Services 

Pvt. Ltd. & Anr.                                                    ... Appellants

                                          Versus

State of U.P. & Anr.                                                ... Respondents

                                       O R D E R 

        In view  of the  divergence  of opinion  on conclusions   and  also  on 

various   legal   questions   discussed   in   two   separate   judgments   by   us,   the 

matter   is   required   to   be   placed   before   the   Hon'ble   the   Chief   Justice   of 

India   for   reference   to   a   larger   Bench   to   resolve   the   divergent   views 

expressed   in   both   the   judgments   and   to   answer   the   questions   of   law 

framed.

                                              .............................................J.

                                               [Asok Kumar Ganguly]  

                                              .............................................J.

                                                    [Swatanter Kumar]  

New Delhi

August 18, 2011                                             172

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