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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

J U D G M E N T

VIKRAMAJIT SEN,J.

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

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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 for

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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 contend

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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 raise

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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 further

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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  from

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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 are

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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  comparatively

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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 of

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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 of

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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  convenient

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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 this

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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).

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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.

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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. State

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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 it

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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 is

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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,

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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 fundamental

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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

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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.

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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  the

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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 an

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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 be

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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’ challenges

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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  urgency

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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  emergency

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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.