Sunday, 10 January 2016

Leading Judgment on Doctrine of precedent and Ratio decidendi

Since heavy reliance has been placed by the State on Satendra Prasad Jain vs.
State of U.P. (1993) 4 SCC 369 and Lt. Governor of Himachal Pradesh v. Avinash
Sharma (1970) 2 SCC 149, we must sedulously determine their ratios. This would
therefore be the apposite time and place for a brief discussion on the contours and
connotations of the term ratio decidendi, which in Latin means “the reason for
deciding”. According to Glanville Williams in ‘Learning the Law’, this maxim “is
slightly ambiguous. It may mean either (1) rule that the judge who decided the case
intended to lay down and apply to the facts, or (2) the rule that a later Court concedes
him to have had the power to lay down.” In G.W. Patons’ Jurisprudence, ratio
decidendi has been conceptualised in a novel manner, in that these words are “almost
always used in contradistinction to obiter dictum. An obiter dictum, of course, is
always something said by a Judge. It is frequently easier to show that something said
in a Judgment is obiter and has no binding authority. Clearly something said by a
Judge about the law in his judgment, which is not part of the course of reasoning
leading to the decision of some question or issue presented to him for resolution, has
no binding authority however persuasive it may be, and it will be described as an
obiter dictum.” ‘Precedents in English Law’ by Rupert Cross and JW Harris states -
“First, it is necessary to determine all the facts of the case as seen by the Judge;
secondly, it is necessary to discover which of those facts were treated as material by
the Judge.” Black’s Law Dictionary, in somewhat similar vein to the aforegoing,
bisects this concept, firstly, as the principle or rule of law on which a Court’s decision
is founded and secondly, the rule of law on which a latter Court thinks that a previous
Court founded its decision; a general rule without which a case must have been
decided otherwise.
17 A Constitution Bench has also reflected on the true nature of ratio decidendi in
Krishena Kumar vs. Union of India, 1990 (4) SCC 207, as is discernable from the
following passages:
19. The doctrine of precedent, that is being bound by a previous
decision, is limited to the decision itself and as to what is necessarily
involved in it. It does not mean that this Court is bound by the various
reasons given in support of it, especially when they contain
“propositions wider than the case itself required”. This was what Lord
Selborne said in Caledonian Railway Co. v. Walker’s Trustees and
Lord Halsbury in Quinn v. Leathem. Sir Frederick Pollock has also
said : “Judicial authority belongs not to the exact words used in this or
that judgment, nor even to all the reasons given, but only to the
principles accepted and applied as necessary grounds of the decision.”
20. In other words, the enunciation of the reason or principle upon
which a question before a court has been decided is alone binding as a
precedent. The ratio decidendi is the underlying principle, namely, the
general reasons or the general grounds upon which the decision is
based on the test or abstract from the specific peculiarities of the
particular case which gives rise to the decision. The ratio decidendi
has to be ascertained by an analysis of the facts of the case and the
process of reasoning involving the major premise consisting of a
pre-existing rule of law, either statutory or judge-made, and a minor
premise consisting of the material facts of the case under immediate
consideration. If it is not clear, it is not the duty of the court to spell it
out with difficulty in order to be bound by it.
18 The following paragraph from the determination of the Three-Judge Bench in
Sanjay Singh vs. U.P. Public Service Commission, Allahabad, 2007 (3) SCC 720, is
instructive and is reproduced for this reason -
10. The contention of the Commission also overlooks the fundamentalPage 20
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difference between challenge to the final order forming part of the
judgment and challenge to the ratio decidendi of the judgment.
Broadly speaking, every judgment of superior courts has three
segments, namely, (i) the facts and the point at issue; (ii) the reasons
for the decision; and (iii) the final order containing the decision. The
reasons for the decision or the ratio decidendi is not the final order
containing the decision. In fact, in a judgment of this Court, though the
ratio decidendi may point to a particular result, the decision (final
order relating to relief) may be different and not a natural consequence
of the ratio decidendi of the judgment. This may happen either on
account of any subsequent event or the need to mould the relief to do
complete justice in the matter. It is the ratio decidendi of a judgment
and not the final order in the judgment, which forms a precedent...
19 We also commend a careful reading of the following paragraphs from the
decision of the Constitution Bench in Islamic Academy of Education vs. State of
Karnataka, 2003 (6) SCC 697, which we shall reproduce for facility:
139. A judgment, it is trite, is not to be read as a statute. The ratio
decidendi of a judgment is its reasoning which can be deciphered only
upon reading the same in its entirety. The ratio decidendi of a case or the
principles and reasons on which it is based is distinct from the relief
finally granted or the manner adopted for its disposal. (See Executive
Engineer, Dhenkanal Minor Irrigation Division v. N.C. Budharaj)
140. In Padma Sundara Rao v. State of T.N it is stated: (SCC p. 540,
paragraph 9)
“There is always peril in treating 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 setting of the facts of
a particular case, said Lord Morris in Herrington v. British Railways
Board(Sub nom British Railways Board v. Herrington). Circumstantial
flexibility, one additional or different fact may make a world of difference
between conclusions in two cases.”
(See also Haryana Financial Corpn. v. Jagdamba Oil Mills)
141. In General Electric Co. v. Renusagar Power Co it was held:
(SCC p. 157, paragraph 20)
“As often enough pointed out by us, words and expressions used in a
judgment are not to be construed in the same manner as statutes or as
words and expressions defined in statutes. We do not have any doubt that
when the words ‘adjudication of the merits of the controversy in the suit’
were used by this Court in State of U.P. v. Janki Saran Kailash Chandra
the words were not used to take in every adjudication which brought to an
end the proceeding before the court in whatever manner but were meant
to cover only such adjudication as touched upon the real dispute between
the parties which gave rise to the action. Objections to adjudication of the
disputes between the parties, on whatever ground, are in truth not aids to
the progress of the suit but hurdles to such progress. Adjudication of such
objections cannot be termed as adjudication of the merits of the
controversy in the suit. As we said earlier, a broad view has to be taken of
the principles involved and narrow and technical interpretation which
tends to defeat the object of the legislation must be avoided.”
142. In Rajeswar Prasad Misra v. State of W.B it was held:
“No doubt, the law declared by this Court binds courts in India but it
should always be remembered that this Court does not enact.”
(See also Amar Nath Om Prakash v. State of Punjab and Hameed
Joharan v. Abdul Salam)
143. It will not, therefore, be correct to contend, as has been contended
by Mr Nariman, that answers to the questions would be the ratio to a
judgment. The answers to the questions are merely conclusions. They
have to be interpreted, in a case of doubt or dispute with the reasons
assigned in support thereof in the body of the judgment, wherefor, it
would be essential to read the other paragraphs of the judgment also. It is
also permissible for this purpose (albeit only in certain cases and if there
exist strong and cogent reasons) to look to the pleadings of the parties.
144. In Keshav Chandra Joshi v. Union of India this Court when faced
with difficulties where specific guidelines had been laid down for
determination of seniority in Direct Recruit Class II Engg. Officers’ Assn.
v. State of Maharashtra held that the conclusions have to be read along
with the discussions and the reasons given in the body of the judgment.
145. It is further trite that a decision is an authority for what it
decides and not what can be logically deduced therefrom.”
(emphasis supplied)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3385 OF 2012
LAXMI DEVI .….. APPELLANT
VERSUS
STATE OF BIHAR & ORS. ….. RESPONDENTS
Dated;July 03, 2015.
VIKRAMAJIT SEN,J.
Citation;(2015) 10 SCC241

1. The legal nodus that we are called upon to unravel in this Appeal is whether the
Land Acquisition Act, 1894 (L.A. Act for brevity) as amended from time to time,
requires an Award to be passed even in respect of lands expropriated by the State
pursuant to the exercise of special powers in cases of urgency contained in Section 17
thereof. It is indeed ironical that what was, as far back as in 1987, perceived as an
imperative, urgent and exigent necessity, justifying the steamrolling of the rights of
citizens, has proved substantially to be a fallow and ill-conceived requirement even
after the passage of three decades; till date, tracts of the acquired land remain
unutilized; the initially declared purpose of construction of residential quarters for
State officials having novated to portions of the land being used as helipads for ‘State
Dignitaries’. We must not forget that even though ownership of property has ceased
to be conceived of as a Fundamental Right, it continues to receive Constitutional
protection. It is also the regrettable reality that Governments are increasingly relying
on rulings of this Court to the effect that even if the public purpose providing the
predication for the compulsory acquisition of a citizen’s land has proved to be an
illusion or misconception, another purpose can conveniently be discovered or devised
by the State for retention by it of the expropriated land. Our opinion intends to
insulate genuinely urgent projects from lapsing and not to annihilate the constitutional
rights of the individual from the might of the State even though it transgresses the
essence of the statute. It has become alarmingly commonplace for lands to be
expropriated under the banner of urgency or even under the normal procedure, only to
be followed by a withdrawal or retraction from this exercise enabling a favoured few
to harvest the ill-begotten windfall. The ambivalence or cleavage of opinion of this
Court in Delhi Airtech Services (P) Ltd. vs. State of U.P. (2011) 9 SCC 354 on the
necessity to pay the erstwhile owners of land of even its unilaterally assessed value
has emboldened and spurred the State into contending before us that no sooner the
urgency mantra is mouthed, no other provision of the L.A. Act has any relevance or
efficacy, including the legal necessity of passing an Award.
2. We shall succinctly narrate the salient facts of the Appeal before us. The State
Government had by means of Notification No.2/86-87 dated 18.11.1987 and 3/86-87
dated 18.11.1987 initiated steps for acquiring tracts of lands in Mouza Sansarpur and
in Hardas Chak. These Notifications had simultaneously excluded the provisions of
Section 5A of the L.A. Act from applying to the acquired lands, which, because of the
significance of its language, is reproduced below:
“This Notification is hereby issued under the provisions of
section 4 of the Bihar Act No.11, 1961 as amended Act No.1, 1894 forPage 3
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those persons who are concerned with it.
The map of the above land can be seen in the office of the Land
Acquisition Officer, Khagaria. Government of Bihar do hereby
authorize the Land Acquisition Officer, Khagaria and his staff and the
office bearers of the Executive Engineer Bhawan Nirman Khagaria in
the preliminary investigation of this project that they should conduct
the survey of the land after entering it and they are directed to all the
acts specified under section 2 of the Section 4 of the above Act.
And whereas it is the opinion of the Governor of Bihar that the
above mentioned barren land/agricultural land and its part thereof is
necessary for immediate acquisition. Therefore, it is directed under sub
section 4 of the section 17 of the above Act that the provisions of the
section 5A of the above act shall not apply to the above land/lands”.
3. This first Notification under Section 4 came to be followed by subsequent
Notifications, lucidly illustrating the understanding of the Respondent State that the
preceding Notification had lapsed by operation of the statute. The Respondent State
issued a Notification under Section 4 of the L.A. Act on 16.9.1999 in respect of which
the Appellants filed Objections under Section 5A on a consideration of which the
Land Acquisition Officer had opined that the Notification issued in 1987 could not be
continued with as the Award had not been passed within the stipulated time period
thereby making it necessary to issue the 1999 Notification. This Notification also
expired because a Declaration under Section 6 had not been promulgated within one
year. Hence yet another Notification was published on 13.8.2001, for which the
Appellants filed their Objections under Section 5A yet again. This Notification also
lapsed, since the sequence of events as contemplated in the L.A. Act had not been
duly completed. Once again, in 2004, fresh steps were initiated for acquisition which
also expired for the same reason. The Respondent State now vainly essays to take
unfair and ill-founded advantage of decisions and opinions of this Court to contendPage 4
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that the subject acquisition stands completed in all respects, thereby endeavouring,
illegally in our considered opinion, to avoid performance of their statutory obligations
of computing compensation and then paying it.
4. The Impugned Order accepts the version of the Respondent that large parcels of
these lands have been utilized for constructing residential quarters for senior Officers
of the State, and that the Appellant has been paid eighty per cent of the compensation,
although twenty per cent supposedly still remains outstanding. Per contra, it is the
contention of the Appellant that the incontrovertible position that portions of the land
have remained unutilized for decades is clearly indicative of the fact that they are not
required by the State any more. Within a week of the publication of the Section 4
Notification, that is on 24.11.1987, notices under Section 17(1) of the L.A. Act were
also issued, which resulted in the filing of writ petitions in the following year, in
which it was contended that resort to Section 17 of the L.A. Act was mala fide, and
that compensation, as envisaged in the statute itself, had not even been tendered to the
owners. It is significant that in CWJC No.4007 of 1988, a Division Bench of the High
Court of Judicature at Patna had directed on 12.7.1988 that the Award for
compensation must be made within four months. It is not in dispute that an Award has,
till date, not been passed even though that direction has attained finality. The Writ
Petition was disposed of observing - (i) possession of the land had already been taken
by the State; (ii) eighty per cent compensation had been paid to the Appellants; (iii)
the remainder twenty per cent along with interest would be paid to the owners on their
appearance before the Land Acquisition Officer; (iv) they would be entitled to raisePage 5
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the claim of higher interest considering that the land had been acquired in 1987; and
(v) Appellant was entitled to raise objections with respect to the value of the land. In
view of these directions, it was palpably clear to all the parties, especially the State
Government, that the entitlement to raise objections with respect to the value of the
land was possible only once proceedings connected with and preparatory to passing
an Award on Section 11 reached its culmination. It seems facially obvious to us that
since the State has not assailed these directions it ought not to be permitted to canvas
in this Appeal that the passing of an award is unnecessary in cases where the State has
taken recourse to the urgency provisions contained in Section 17 of the Act. A perusal
of the Counter Affidavit filed on behalf of the State of Bihar makes it patently evident
that an award as contemplated in Section 11 of the L.A. Act has not been passed; and
that Notifications under Section 4 have again been passed subsequent to the two
Notifications detailed above.
5. An overview of the L.A. Act discloses that it is divided into VIII
Parts/Chapters. Part II commences with Section 4, which postulates the publication of
a preliminary notification, whereupon Officers of the State are authorized to enter and
survey the lands proposed to be acquired and carry out activities ancillary to that
purpose; and Section 5 obligates the Officials to compensate for damages caused as a
consequence thereof. The right to file Objections to the Section 4 Notification,
recognized by Section 5A, was introduced into the L.A. Act by Act 38 of 1923, and
this provision was again amended by Act 68 of 1984 to mandate that Objection must
be filed within thirty days of the issuance of the Notification. Section 5A furtherPage 6
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obligates the Collector to submit a Report to the Government in respect of the
Objections preferred by persons interested in the land, as well as pertaining to any
aspect of the nature of the land proposed to be acquired.
6 The insertion of Section 5A seems to have been spurred on by the decision of
the Division Bench of the Calcutta High Court in J.E.D. Ezra vs. The Secretary of
State for India (1902-1903) 7 CWN 249. In that case, the properties of Ezra were
sought to be acquired under the pre-amended provision for expansion of the offices of
the Bank of Bengal. In the challenge to the said acquisition, it was argued that the
person whose property was going to be taken away should be allowed a hearing on
the principles of natural justice. However the Court held that it could not grant relief
in the absence of any provision in the Act enabling or envisaging or mandating that
such an opportunity should be made available to the landowners. In order to remedy
this shortcoming in Act of 1894, an amendment by way of incorporation of Section
5A was introduced on 11th July, 1923. The Statement of Objects and Reasons for the
said Amendment is as follows:
“The Land Acquisition Act 1 of 1894 does not provide that person
having an interest in land which it is proposed to acquire, shall have
the right of objecting to such acquisition; nor is Government bound to
enquire into and consider any objections that may reach them. The
object of this Bill is to provide that a Local Government shall not
declare, under section 6 of the Act, that any land is needed for a public
purpose unless time has been allowed after the notification under
section 4 for persons interested in the land to put in objections and for
such objections to be considered by the Local Government.” (Gazette
of India, Pt. V, dated 14th July, 1923, page 260)
The importance of Section 5A cannot be overemphasised. It is conceived fromPage 7
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natural justice and has matured into manhood in the maxim of audi alteram partem,
i.e. every person likely to be adversely affected by a decision must be granted a
meaningful opportunity of being heard. This right cannot be taken away by a side
wind, as so powerfully and pellucidly stated in Nandeshwar Prasad vs. State of U.P.,
AIR 1964 SC 1217. So stringent is this right that it mandates that the person who
heard and considered the Objections can alone decide them; and not even his
successor is competent to do so even on the basis of the materials collected by his
predecessor. Furthermore, the decision on the Objections should be available in a self
contained, speaking and reasoned order; reasons cannot be added to it later as that
would be akin to putting old wine in new bottles. We can do no better than commend
a careful perusal of Union of India vs. Shiv Raj (2014) 6 SCC 564, on these as well as
cognate considerations.
7 Section 6 envisages the making of a Declaration by the appropriate Government
to the effect that the specified lands are needed for a public purpose, or for a
Company; and post 1984, this Declaration has to be made within one year of the date
of the publication of the Section 4 Notification. We are not concerned in this Appeal
with the Provisos or Explanations to Section 6 or to other sub-Sections and shall
therefore not advert to them any further. Thereafter the Collector has to take Orders
for the acquisition of land and to mark and measure it. Section 9 enjoins the Collector
to cause public notice to be given of his intention to take possession of the land and to
entertain claims for compensation. Section 11 postulates the holding of an enquiry by
the Collector into Objections on sundry grounds. For the purposes with which we arePage 8
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presently concerned, amendments to Section 6 and the insertion of the new Section
11A, both of which prescribe a time limit within which requisite action has to be taken
by the Government justify special mention. The prefatory note – Statement of
Objects and Reasons of Act No.68 of 1984 as are relevant are reproduced: [Current
Central Legislation Vol.10 1984 - 3,5,6,9]
Prefatory Note – Statement of Objects and Reasons – With
the enormous expansion of the State’s role in promoting public welfare
and economic development since independence, acquisition of land for
public purposes, industrialisation, 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.
The main proposals for amendment are as follows:-
(iii) A time-limit of one year is proposed to be provided for
completion of all formalities between the issue of the preliminary
notification under Section 4(1) of the Act and the declaration for
acquisition of specified land under Section 6(1) of the Act.
(v) It is proposed to provide for a period of two years from the
date of publication of the declaration under Section 6 of the Act within
which the Collector should make his award under the Act. If no award is
made within that period, the entire proceedings for the acquisition of the
land would lapse. He has also been empowered to correct clerical or
arithmetical mistakes in the award within a certain period from the date
of the award.
(vi) The circumstances under which the Collector should take
possession of the land before the award is made in urgent cases are being
enlarged to include a larger variety of public purposes.
(ix) Considering that the right of reference to the civil court under
Section 18 of the Act is not usually taken advantage of by inarticulate
and poor people and is usually exercised only by the comparativelyPage 9
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affluent landowners and that this causes considerable inequality in the
payment of compensation for the same or similar quality of land to
different interested parties, it is proposed to provide an opportunity to all
aggrieved parties whose land is covered under the same notification to
seek re-determination of compensation, once any one of them has
obtained orders for payment of higher compensation from the reference
court under Section 18 of the Act.
 (Emphasis added)
8 Section 11A has been introduced by Act 68 of 1984 prescribing a limitation of
two years for the making of an Award by the Collector. It is only post this event that
Section 16 empowers the Collector to take possession of the land which thereupon
vests absolutely in the Government, free from all encumbrances. We may clarify that
the word ‘vest’ has two connotations – the first and primary one relates to possession
of land; and the second, an adjunctory one, pertains additionally to the title of that
land. But this distinction has not been drawn in India since this Court has held in
several cases that ‘vesting’ in the circumstances with which we are presently
concerned, covers and encompasses the possession as well as the title of the land.
9 It is in this progression that the L.A. Act provides for special powers in the case
of perceived urgency, in terms of Section 17, which we shall reproduce for facility of
reference.
“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 ofPage 10
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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.
(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 an awarding compensation for the
land under the provisions herein contained.
(3A) Before taking possession of any land under
sub-section (1) or sub-section 92), 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 ofPage 11
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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 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).”
Sub-sections (3A) and (3B) have been introduced into the L.A. Act by Act 68 of 1984
with effect from 24.9.1984.
10 The L.A. Act, as amended by the State of Bihar by the Bihar Act 11 of 1961, is
also being reproduced below for the purpose of clarity:
“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
declaration mentioned in section 6, or with the consent in
writing of the person interested, at any time after the
publication of the notification under Section 4 in the village in
which the land is situated, take possession of any waste or
arable land needed for public purposes or for a company. Such
land shall thereupon vest absolutely in the Government free
from all encumbrances.
Explanation.—This sub-section shall apply to any waste
or arable land, notwithstanding the existence thereon of forest,
orchard or trees.
(2)Whenever it becomes necessary for the purpose of
protecting life or property from flood, erosion or other natural
calamities or for the maintenance of communication other than
a railway communication or it becomes necessary for any
Railway Administration (other than the Railway Administration
of the Union), owing to any sudden change in the channel of
any navigable river or other unforeseen emergency for the
maintenance of their traffic or for the purpose of making
thereon a riverside or ghat station, or providing convenientPage 12
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connection with or access to any such station, to acquire the
immediate possession of any land, the Collector may,
immediately after the publication of the declaration mentioned
in s. 6 or, with the consent in writing of the person interested,
given in the presence of headman of the village or mukhiya
and sarpanch as defined in the Bihar Panchayat Raj Act, 1947
(Bihar Act VII of 1948), at any time after the publication of the
notification under section 4 in the village in which the land is
situated 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 to do so, or such longer notice as may be
reasonably sufficient to enable such occupier to remove his
movable property from such building without unnecessary
inconvenience.
(3) In every case under the proceeding sub-sections the
Collector shall, at the time of taking possession offer to the
persons interested, compensation for the standing crops on such
land and for any damage sustained by them caused by such
sudden dispossession and not accepted in section 24; and in
case such offer is not accepted, the value of such crops and the
amount of such other damage shall be allowed for in awarding
compensation for the land under the provisions herein
contained.
(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 provisions of section 5A
shall not apply where the appropriate Government so directs to
where possession of the land has been taken with the consent of
the person interested.
Sub-sections (3A) and (3B) have not been amended viz-a-viz the State of Bihar and
continue to apply even in that State.
11 Section 17 is not a pandect; it could have been devised by Parliament to be so,
inter alia, by the use of a non obstante clause, or in the alternative by clear and
unequivocal language. In Union of India v. G.M. Kokil 1984 (Supp) SCC 196 thisPage 13
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Court has opined that a “non obstante clause is a legislative device which is usually
employed to give overriding effect to certain provisions over some contrary
provisions that may be found either in the same enactment or some other enactment,
that is to say, to avoid the operation and effect of all contrary provisions.”
Alternatively, Sections 9, 11, 11A etc. could have been made subject to Section 17,
although both cumbersome and clumsy, but has not been so done.
12 The salient concomitants of Section 17(1) deserve enumeration. Firstly, the
Section is attracted even though an Award has not been made which, it appears to us,
clearly indicates that the completion of this exercise has not been obliterated or
dispensed with but has been merely deferred. An unambiguous and unequivocal
statement could have been made excluding the requirement of publishing an Award.
Secondly, it is available only on the expiration of fifteen days from the issuance of the
Section 9 notice. This hiatus of fifteen days must be honoured as its purpose appears
to be to enable the affected or aggrieved parties to seek appropriate remedy before
they are divested of the possession and the title over their land. The Government shall
perforce have to invite and then consider Objections preferred under Section 5A,
which procedure as painstakingly and steadfastly observed by this Court constitutes
the Constitutional right to property of every citizen; inasmuch as Section 17(4)
enables the obliteration of this valuable right, this Court has repeatedly restated that
valid and pressing reasons must be present to justify the invocation of these
provisions by the Government. Thirdly, possession of the land can be taken only if it
is needed for public purpose, which term stands defined in the preceding Section 3(f).Page 14
14
A conjoint reading of Sections 17 and 3(f) makes it apparent to us that urgency
provisions cannot be pressed into service or resorted to if the acquisition of land is for
Companies; however we must be quick to add that this question does not arise before
us. Fourthly, possession of such lands would vest in the Government only when the
foregoing factors have been formally and strictly complied with. This Section enables
the curtailment of a citizen’s Constitutional right to property and can be resorted to
only if the provisions and preconditions are punctiliously and meticulously adhered
to, lest the vesting be struck down and set aside by the Court in its writ jurisdiction,
on the application of the Taylor vs. Taylor (1875) 1 Ch D 426 and several judgments
of this Court which has followed this decision (supra).
13 Section 17(2) enables the use of the urgency provisions in some other
contingencies also, which we may term as ‘emergency’ in contradistinction to
‘urgency’, with which we are not currently concerned. Section 17(3) consists of
myriad ingredients; by using the word “shall” Parliament has clarified that what
follows compulsorily requires adherence, the non-compliance of which will lead to
vitiating all the action ostensibly taken under this provision. These requirements are
that at the time of taking possession of lands under the urgency provision the
Collector must offer compensation to the persons interested in those lands. It is
relevant to underscore that this provision does not postulate, as of first recourse,
depositing compensation with any branch of the Government or for that matter even
with the Reference Court. The compensation must first be tendered or offered to the
persons interested in the standing crops and trees etc. on the subject land.Page 15
15
14 Section 17(3A) came to be introduced into the statute by Act 68 of 1984. It
requires the Collector to tender payment of eighty per cent of the compensation
estimated by him, obviously and pointedly, to the person interested in compensation
for such land, unless the Collector is precluded or prevented from making such
payments because of exigencies enumerated in Section 31 of the L.A. Act. In other
words, the Collector cannot by way of first recourse deposit the estimated
compensation even in the Court to which the filing of a Reference under Section 18 is
provided. The use of the word “shall” indicates that the provisions are prima facie
mandatory in nature unless the statute or the language employed in the Section
indicates otherwise. The language of sub-Section (3A), inasmuch as it commences
with the words “Before taking possession of any land.....”, makes it incontrovertibly
clear that what follows are the prerequisities thereto. It is beyond cavil, therefore, that
the statute has ordained a precise and particular methodology which must be adhered
to as a precursor to divesting the owner of land of its possession and title. It is
axiomatic that if a statute prescribes the manner in which an action is to be performed,
it must be carried out strictly in consonance thereto or not at all. This legal principle
has been articulated over a century ago in Taylor v. Taylor and has admirably and in
fact unquestionably withstood the test of time. It was approved by the Privy Council
in Nazir Ahmad v. King Emperor (1935-36) 63 IA 372 and subsequently applied by
three Judge Benches in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh AIR
1954 SC 322, State of U.P. v. Singhara Singh AIR 1964 SC 358, Babu Verghese v. Bar
Council of Kerala (1999) 3 SCC 422 and most recently in Hussein Ghadially v. StatePage 16
16
of Gujarat (2014) 8 SCC 425. Simply put, but for the statutory enablement, the action
could not have been taken; ergo everything surrounding that empowerment must be
meticulously performed. Possession of the land can be taken on grounds of urgency if
and only if there is contemporaneous payment of eighty per cent of the estimated
compensation, otherwise making the acquisition vulnerable to vitiation because of the
Taylor v. Taylor principle. The use of the word “estimated” in the Section delineates
the distinction from “actual” compensation; an estimate always remains a rough or
approximate calculation only [Black’s Law Dictionary], or an approximate judgment
and /or a price specified as that which is likely to be charged. It would do violence to
the statute and fly in the face of common sense if an estimate is treated per se as a
conclusive calculation. Any doubt that may remain is immediately dispelled upon a
perusal of Section 17(3B) which clarifies that the estimated amount tendered/paid
under sub-Section (3A) will be taken into account for determining the amount of
compensation and thereafter logically permitting the shortfall or the excess to be
adjusted. In other words, the amount of compensation has to be determined and
computed under the relevant sections of the L.A. Act. A reading of sub-Section (4)
sounds the death knell to the arguments put forward for the Respondent State,
inasmuch as it allows the option to the appropriate Government to make the
provisions of Section 5A inapplicable. Paraphrased differently, even where the
urgency provisions contained in Section 17 are resorted to, ordinarily the provisions
of Section 5A have to be adhered to, i.e. inviting and then deciding the Objections
filed by the landowners. Significantly, sub-Section (4) of Section 17 does not, as itPage 17
17
very easily could have, exempt compliance with the publication of the Declaration
under Section 6 and the hearing of parties preparatory to the passing of an Award
under Sections 9 to 11 of the Act. There is, therefore, not even an iota of doubt that
remains pertaining to the absolute necessity of the passing of an Award under Section
11 of the L.A. Act. We are in no manner of doubt, and we reiterate, that the tender of
the estimated compensation is the precondition, the sine qua non, enabling the
Government to take possession of land under the foregoing subsections; and must be
followed by the exercise of computation of compensation in a procedure
corresponding to that in Section 11. We shall revert to the question of whether the
constraints contained in Section 11A will also apply to acquisitions in which Section
17 has been resorted to.
15 The L.A. Act postulates that the urgency clause can be pressed into service at
two stages. Firstly, ordinarily possession can be taken fifteen days after the
publication of the Section 9 notice. The decision to procure possession on an urgency
basis can be taken by the Government either at the very inception of the proceedings
or at any time preceding or contemporaneous to the date of the issuance of the Section
9 notice. In both these contingencies the valuable right of the landowner to file
Objections and resist the acquisition by virtue of Section 5A remains unimpaired.
Secondly, the Government can invoke sub-Section (4) and dispense with the valuable
Section 5A right; in which event, logical, cogent and well-reasoned notings must be
simultaneously articulated in writing for taking this momentous and monumental
decision. We must immediately clarify that in the case in hand, since the land isPage 18
18
located in the State of Bihar, Section 17(1) enables possession to be taken on the
expiry of fifteen days of the publication of the Section 6 Declaration.
16 Since heavy reliance has been placed by the State on Satendra Prasad Jain vs.
State of U.P. (1993) 4 SCC 369 and Lt. Governor of Himachal Pradesh v. Avinash
Sharma (1970) 2 SCC 149, we must sedulously determine their ratios. This would
therefore be the apposite time and place for a brief discussion on the contours and
connotations of the term ratio decidendi, which in Latin means “the reason for
deciding”. According to Glanville Williams in ‘Learning the Law’, this maxim “is
slightly ambiguous. It may mean either (1) rule that the judge who decided the case
intended to lay down and apply to the facts, or (2) the rule that a later Court concedes
him to have had the power to lay down.” In G.W. Patons’ Jurisprudence, ratio
decidendi has been conceptualised in a novel manner, in that these words are “almost
always used in contradistinction to obiter dictum. An obiter dictum, of course, is
always something said by a Judge. It is frequently easier to show that something said
in a Judgment is obiter and has no binding authority. Clearly something said by a
Judge about the law in his judgment, which is not part of the course of reasoning
leading to the decision of some question or issue presented to him for resolution, has
no binding authority however persuasive it may be, and it will be described as an
obiter dictum.” ‘Precedents in English Law’ by Rupert Cross and JW Harris states -
“First, it is necessary to determine all the facts of the case as seen by the Judge;
secondly, it is necessary to discover which of those facts were treated as material by
the Judge.” Black’s Law Dictionary, in somewhat similar vein to the aforegoing,Page 19
19
bisects this concept, firstly, as the principle or rule of law on which a Court’s decision
is founded and secondly, the rule of law on which a latter Court thinks that a previous
Court founded its decision; a general rule without which a case must have been
decided otherwise.
17 A Constitution Bench has also reflected on the true nature of ratio decidendi in
Krishena Kumar vs. Union of India, 1990 (4) SCC 207, as is discernable from the
following passages:
19. The doctrine of precedent, that is being bound by a previous
decision, is limited to the decision itself and as to what is necessarily
involved in it. It does not mean that this Court is bound by the various
reasons given in support of it, especially when they contain
“propositions wider than the case itself required”. This was what Lord
Selborne said in Caledonian Railway Co. v. Walker’s Trustees and
Lord Halsbury in Quinn v. Leathem. Sir Frederick Pollock has also
said : “Judicial authority belongs not to the exact words used in this or
that judgment, nor even to all the reasons given, but only to the
principles accepted and applied as necessary grounds of the decision.”
20. In other words, the enunciation of the reason or principle upon
which a question before a court has been decided is alone binding as a
precedent. The ratio decidendi is the underlying principle, namely, the
general reasons or the general grounds upon which the decision is
based on the test or abstract from the specific peculiarities of the
particular case which gives rise to the decision. The ratio decidendi
has to be ascertained by an analysis of the facts of the case and the
process of reasoning involving the major premise consisting of a
pre-existing rule of law, either statutory or judge-made, and a minor
premise consisting of the material facts of the case under immediate
consideration. If it is not clear, it is not the duty of the court to spell it
out with difficulty in order to be bound by it.
18 The following paragraph from the determination of the Three-Judge Bench in
Sanjay Singh vs. U.P. Public Service Commission, Allahabad, 2007 (3) SCC 720, is
instructive and is reproduced for this reason -
10. The contention of the Commission also overlooks the fundamentalPage 20
20
difference between challenge to the final order forming part of the
judgment and challenge to the ratio decidendi of the judgment.
Broadly speaking, every judgment of superior courts has three
segments, namely, (i) the facts and the point at issue; (ii) the reasons
for the decision; and (iii) the final order containing the decision. The
reasons for the decision or the ratio decidendi is not the final order
containing the decision. In fact, in a judgment of this Court, though the
ratio decidendi may point to a particular result, the decision (final
order relating to relief) may be different and not a natural consequence
of the ratio decidendi of the judgment. This may happen either on
account of any subsequent event or the need to mould the relief to do
complete justice in the matter. It is the ratio decidendi of a judgment
and not the final order in the judgment, which forms a precedent...
19 We also commend a careful reading of the following paragraphs from the
decision of the Constitution Bench in Islamic Academy of Education vs. State of
Karnataka, 2003 (6) SCC 697, which we shall reproduce for facility:
139. A judgment, it is trite, is not to be read as a statute. The ratio
decidendi of a judgment is its reasoning which can be deciphered only
upon reading the same in its entirety. The ratio decidendi of a case or the
principles and reasons on which it is based is distinct from the relief
finally granted or the manner adopted for its disposal. (See Executive
Engineer, Dhenkanal Minor Irrigation Division v. N.C. Budharaj)
140. In Padma Sundara Rao v. State of T.N it is stated: (SCC p. 540,
paragraph 9)
“There is always peril in treating 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 setting of the facts of
a particular case, said Lord Morris in Herrington v. British Railways
Board(Sub nom British Railways Board v. Herrington). Circumstantial
flexibility, one additional or different fact may make a world of difference
between conclusions in two cases.”
(See also Haryana Financial Corpn. v. Jagdamba Oil Mills)
141. In General Electric Co. v. Renusagar Power Co it was held:
(SCC p. 157, paragraph 20)
“As often enough pointed out by us, words and expressions used in a
judgment are not to be construed in the same manner as statutes or as
words and expressions defined in statutes. We do not have any doubt that
when the words ‘adjudication of the merits of the controversy in the suit’
were used by this Court in State of U.P. v. Janki Saran Kailash Chandra
the words were not used to take in every adjudication which brought to anPage 21
21
end the proceeding before the court in whatever manner but were meant
to cover only such adjudication as touched upon the real dispute between
the parties which gave rise to the action. Objections to adjudication of the
disputes between the parties, on whatever ground, are in truth not aids to
the progress of the suit but hurdles to such progress. Adjudication of such
objections cannot be termed as adjudication of the merits of the
controversy in the suit. As we said earlier, a broad view has to be taken of
the principles involved and narrow and technical interpretation which
tends to defeat the object of the legislation must be avoided.”
142. In Rajeswar Prasad Misra v. State of W.B it was held:
“No doubt, the law declared by this Court binds courts in India but it
should always be remembered that this Court does not enact.”
(See also Amar Nath Om Prakash v. State of Punjab and Hameed
Joharan v. Abdul Salam)
143. It will not, therefore, be correct to contend, as has been contended
by Mr Nariman, that answers to the questions would be the ratio to a
judgment. The answers to the questions are merely conclusions. They
have to be interpreted, in a case of doubt or dispute with the reasons
assigned in support thereof in the body of the judgment, wherefor, it
would be essential to read the other paragraphs of the judgment also. It is
also permissible for this purpose (albeit only in certain cases and if there
exist strong and cogent reasons) to look to the pleadings of the parties.
144. In Keshav Chandra Joshi v. Union of India this Court when faced
with difficulties where specific guidelines had been laid down for
determination of seniority in Direct Recruit Class II Engg. Officers’ Assn.
v. State of Maharashtra held that the conclusions have to be read along
with the discussions and the reasons given in the body of the judgment.
145. It is further trite that a decision is an authority for what it
decides and not what can be logically deduced therefrom.”
(emphasis supplied)
20 The plea before us from the Appellants is that the land should revert to them
under Section 11A, since an Award under Section 11 has still not been made despite
the passage of almost three decades from the date of the subject Notification. This
Court has continuously held that once land has vested in the State, the question of
re-vesting its possession in the erstwhile landowners is no longer available as an
option to the State. This legal position was enunciated close to a half century ago in
Avinash Sharma and has been subsequently reiterated in numerous judgments.Page 22
22
Paragraph 4 of the aforementioned Judgment is worthy of reproduction, and its
reading will bear out that what was primarily in the contemplation of this Court was
the possession of the land in contradistinction to its title.
“4. In the present case a notification under Section 17(1) and (4)
was issued by the State Government and possession which had
previously been taken must, from the date of expiry of fifteen days
from the publication of the notice under Section 9(1), be deemed to be
in the possession of the Government. We are unable to agree that where
the Government has obtained possession illegally or under some
unlawful transaction and a notification under Section 17(1) is issued the
land does not vest in the Government free from all encumbrances. We
are of the view that when a notification under Section 17(1) is issued,
on the expiration of fifteen days from the publication of the notice
mentioned in Section 9(1), the possession previously obtained will be
deemed to be the possession of the Government under Section 17(1) of
the Act and the land will vest in the Government free from all
encumbrances”.
Ordinarily, possession of land can only be taken after the expiry of fifteen days from
the publication of the notice envisaged in Section 9. We mention this for the reason
that the Act enables, in this statutory sequence of events, the owner of the land to
approach the Court in a challenge to the invocation of the urgency provisions. Ubi jus
ibi remedium, every grievance has a remedy in law, is a legal maxim which is
immediately recalled. We must hasten to add that the apparent infraction of the
provisions of Section 9 of the Act do not arise in the present case because of the Bihar
Amendment of Section 17.
21 This is also in line with a plain reading of Section 17(1), which states that “once
possession of the land is taken by the Government under Section 17, the land vests
absolutely in the Government, free from all encumbrances”. In Section 48(1) the
taking over of the possession of the land is of seminal significance in that thePage 23
23
provision succinctly states that “the Government shall be at liberty to withdraw from
the acquisition of any land the possession of which has not been taken”. The next
sub-Section covers calculation of compensation for the aborted occupation. The same
position came to be reiterated in Satendra Prasad Jain by a Three Judge Bench of
this Court. The acquisition proceedings including the exclusion of Section 5A had
obtained the imprimatur of the Allahabad High Court; the urgency and public purpose
had received curial concurrence. Possession of the land was taken by the State from
the landowners. Previously, the Special Leave Petition filed by the landowners had
been dismissed by this Court. Ironically, the subsequent stance of the State was that
the acquisition of land under the urgency provisions was required to be set aside for
the reason that the State had failed to pass an Award under Section 11 within two
years and had also failed to pay eighty per cent of the estimated compensation
required under Section 17(3A). Whilst the State endeavoured to withdraw from the
acquisition, the erstwhile landowners opposed it. This Court directed the State “to
make and publish an award in respect of the said land within twelve weeks from
today”. The abovementioned discussion bears out that this Court was concerned only
with the issue of the land being returned by the State to the erstwhile owner. It does
not go so far as to limit or restrict the rights of landowners to fair compensation for
their expropriated property, as that is a Constitutional right which cannot be nullified,
neutralised or diluted. We think it justified to again refer to the opinion in Satendra
Prasad Jain that - “Section 11A cannot be so construed as to leave the Government
holding title to the land without the obligation to determine compensation, make anPage 24
24
award and pay to the owner the difference between the amount of the award and the
amount of eighty per cent of the estimated compensation.” The second issue, one
that we feel must be kept in mind in the interpretation in the law laid down by this
Court, is the factual matrices involved in both Satendra Prasad Jain and Avinash
Sharma. In both these precedents, as well as in innumerable others that have relied
upon them, the Government’s attempt was to misuse its own omissions to achieve its
own oblique purposes. It was in this context that this Court declined to accede to the
pleas of the Government. This Court poignantly repelled the State’s attempt to nullify
the acquisition on the predication of its non-compliance with Sections 16 and 17(3A).
The judicial intent was not to cause any loss to landowners, but to protect them. The
pernicious practice that was becoming rampant, that is to make partial compliance
with the statute and to follow the acquisition procedure in a piecemeal manner, and
then to argue that its own lapses rendered its acquisition illegal, was roundly repulsed.
Although this strictly constitutes obiter, we think it appropriate to clarify that where
the landowners do not assail the acquisition, it may be open to them to seek a
mandamus for payment to them, after a reasonable period, of the remaining
compensation, which will thereupon metamorphose from a mere estimation to the
actual compensation for the expropriation.
22 The Constitution Bench of this Court had to interpret Section 17 in Raja Anand
Brahma Shah v. State of U.P. (1967) 1 SCR 373, but in somewhat different
circumstances. The State proposed to take over large tracts of land “for limestone
quarry” on urgency basis; by virtue of Section 17(4), Section 5A was held not to bePage 25
25
available. The Collector of Mirzapur was directed by the Notification under Section
17(1) of the Act to take possession of the “waste or arable land” even in the absence
of an Award being published. The Constitution Bench held that the limestone
quarries belonging to the Appellant, which were proposed to be acquired, could not
possibly be conceived of or categorised as “waste or arable land, the acquisition,
inasmuch as it proceeded under Section 17, could not pass muster of law. What is
very pertinent for the present purposes is that the Constitution Bench had declined
issuance of a mandamus commanding the State to restore possession of the land to the
Appellant, not because this was inconceivable or impermissible in law or because of
any provisions in the L.A. Act, but rather because the lands had validly vested in the
State of U.P. under the U.P. Zamindari Abolition and Land Reforms Act, 1951. The
conundrum of the restoration of the land had directly arisen before the Constitution
Bench and since it declined the prayer for other reasons, it follows that there is no
constraint or impediment for the grant of an appropriate Writ in this regard. This will
fortify our distillation of the ratio desidendi of Satendra Prasad Jain which is
circumscribed and restricted to the extent that the State is not empowered to withdraw
from an acquisition once it has taken possession of the said lands.
23 We do, however, recognize that Satendra Prasad Jain has been interpreted
more broadly in the past. In Allahabad Development Authority vs. Naziruzzaman
(1996) 6 SCC 424, General Manager, Telecommunication vs. Dr. Madan Mohan
Pradhan 1995 Supp (4) SCC 268, and Banda Development Authority, Banda vs. Mota
Lal Agarwal (2011) 5 SCC 394, this Court has dismissed the landowners’ challengesPage 26
26
to the respective acquisitions on the basis of Avinash Sharma and Satendra Prasad
Jain. It is pertinent to note that all three of these cases were brief in their
explanations of Avinash Sharma and Satendra Prasad Jain, and did not examine
their rationes decidendi, their innate contradictions, their intentions or their
consequences at any length. We thus feel it appropriate to rely on our own detailed
exploration of these cases, as opposed to simply placing reliance on the largely
contradictory case law that has developed over the years. It was for this reason that
we had revisited the curial concept of ratio decidendi.
24 The scenario before us depicts the carelessness and the callousness of the State,
quite different from the situation in Satendra Prasad Jain and Avinash Sharma.
The Appellants herein are being denied just and fair compensation for their land in
proceedings which commenced in 1987, despite the directions of the High Court
passed as early as in 1988 to pass an award within four months. The raison d’etre
behind the introduction of Section 11A was for the landowners to have a remedy in
the event of an award not being passed expeditiously. If Satendra Prasad Jain is
interpreted to mean that Section 11A will not apply to any acquisition under the
urgency provisions, landowners such as the Appellants before us will have no
protection, even if they are not paid full compensation for their land for decades. This
cannot be in keeping with the legislative intent behind this Section. Furthermore,
keeping empirical evidence in sight, we make bold to opine that circumstances require
this Court to reconsider its view that even if the stated public interest or cause has
ceased to exist, any other cause can substitute it, especially where the urgencyPage 27
27
provisions have been invoked.
25 We feel it imperative to distinguish between the setting aside of an acquisition
and the reversion of possession to the erstwhile landowners. While the L.A. Act and
the judgments discussed above do not allow for the latter, we are of the considered
opinion that this does not necessarily imply that the former is also not an option. Both
the abovementioned cases dealt with a factual situation in which the Government was
attempting to set the acquisition of the land at naught so that they would not have to
pay compensation to acquire it. Setting aside of the acquisition in those cases was
tantamount to reverting the possession to the original owners. In this scenario,
however, the two do not have to go hand in hand. In allowing the acquisition of land
that the Government finds necessary to be set aside, we would not necessarily be
holding that the land revert to the Appellants, as the alternative of permitting the
Government to keep possession provided it re-acquires the land with a new Section 4
notification exists. This option, particularly in the present factual matrix, does the
least violence to the intent and content of the L.A. Act, in that it upholds Section 11A
even in cases of acquisition under Section 17 while preserving the requirement of
Section 17 that the unencumbered possession of the land remain vested in the
Government. It also protects the rights of the landowners, thus fulfilling the intent of
Section 11A, while allowing the Government to acquire land in cases of emergencies
without its title being challenged, which is the avowed intention of Section 17. Any
other interpretation of the law would serve to protect only those landowners who had
approached the Court to stop the Government from undoing an emergencyPage 28
28
acquisition, while leaving in the cold equally aggrieved landowners seeking to enforce
their right to fair compensation for their land. Even equity demands that the party
bearing the consequence of the delay in the Award ought not to be the innocent
landowner, but the errant State.
26 While we presently refrain from passing any orders or direction pertaining to or
interfering with the possession of the Government over the subject land, the
acquisition dated 18.11.1987 is set aside for non-compliance with the provisions of
Section 11A of the L.A. Act. As all the subsequent Notifications by the Respondent
State having lapsed, the Respondent State is directed to issue a fresh Section 4
Notification within six weeks from today. The Respondent State is restrained from
contending that the land is no longer required by it or that it should revert to the
Appellants. The Appeal is allowed in these terms.
...................................................J.
(VIKRAMAJIT SEN)
...................................................J.
(ABHAY MANOHAR SAPRE)
New Delhi,
July 03, 2015.
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