Holding

Section 17(3A) is a mandatory condition precedent to taking possession under emergency acquisition, and non‑compliance renders the possession illegal, while Section 11A does not apply to acquisitions under Section 17.

Summary

The case concerned the acquisition of abadi land in Gautam Budh Nagar for the New Okhla Industrial Development Authority under the Land Acquisition Act, 1894. The State issued a notification invoking Section 17 (emergency powers) and took possession of the land on 4 February 2003 without, according to the appellants, paying the 80% compensation required by Section 17(3A) or making an award within two years as mandated by Section 11A. The appellants sought a declaration that the acquisition was void and the land be returned. The Supreme Court was divided: Justice Ganguly held that Section 17(3A) is a mandatory condition precedent, that taking possession without compliance is illegal, and that Section 11A does not apply to emergency acquisitions, ordering compensation and interest. Justice Swatanter Kumar held that Section 17(3A) is not mandatory, that the acquisition remains valid, and dismissed the appeal. The matter was referred to a larger bench for resolution.

Issues considered

When does Section 11A of the Land Acquisition Act apply to acquisitions made under emergency powers of Section 17, and can the acquisition lapse thereby reverting land to owners?
Whether Section 17(3A) is a mandatory or directory provision, and what are the legal consequences of non‑compliance, especially regarding the validity of the acquisition.
Whether the emergency provisions of Section 17 must be strictly construed as conditions precedent, given their expropriatory nature.
How the Land Acquisition Act, a pre‑constitutional law, should be interpreted in light of Articles 13, 14, 21 and 300A of the Constitution to balance State power and property rights.

Legislation cited

Constitution of Indias. Article 13, s. Article 14, s. Article 21, s. Article 300A, s. Article 366(10), s. Article 372
Land Acquisition Act, 1894s. 11, s. 11A, s. 16, s. 17(1), s. 17(2), s. 17(3), s. 17(3A), s. 17(4), s. 31(2), s. 34, s. 4(1), s. 48, s. 5A, s. 6, s. 9(1)

Subjects

Land acquisitionEmergency powersSection 17Section 17(3A)Section 11ACompensationProperty rightsArticle 300AStatutory interpretationMandatory vs directory provisionVesting of title

Judgment

[2011] 12 S.C.R. 191

M/S. DELHI AIRTECH SERVICES PVT. LTD. & ANR. A
v.
STATE OF U.P. & ANR.
(Civil Appeal No. 24 of 2009)

AUGUST 18, 2011
B
[ASOK KUMAR GANGULY AND
SWATANTER KUMAR, JJ.]

Land Acquisition Act, 1894 - ss. 17(3A), 17(1), 17(4),
11 A, 6 and 5A - Acquisition of abadi land for planned C
development - Issuance of Notification uls. 4(1) rw s. 17(1)
and 17(4) - Dispensation of provision of hearing uls. 5A -
Publication of declaration u/s. 6 in the year 2002 and
thereafter, the possession of the land was taken - Case of the
land owners that possession of the land was taken without D
issuance of notification to them; that the award was not passed
within two years of making the declaration uls. 17(1); arid they
were not paid 80 per cent of the estimated compensation in
terms of s. 17(3A) at the time of taking of possession - Writ
petition seeking declaration that the said acquisition E
proceedings be declared void ab initio and the land be
returned to the land owners with damages - Dismissal of writ
petition - Issues arising before Supreme Court that when land
is acquired in exercise of emergency powers u/s. 17 and have
since vested in the State, would the acquisition proceeding F
lapse and land be transferred to the owners/persons
interested in case of non-compliance of s. 11A; whether the
provisions of s. 17(3A) are mandatory or directory and in
either event, would non-compliance of s. 17(3A) invalidate or
vitiate the entire acquisition proceedings, even where the land G
has vested in the State; whether the emergency provisions are
to be construed strictly and the safeguards inbuilt ins. 17(3A)
are construed as conditions precedent and mandatory for a
valid exercise of emergency provisions; and whether the
191 H
192 SUPREME COURT REPORTS [2011] 12 S.C.R.

A provisions of the said Act are to be construed as a pre-
constitutional law in consonance with the fundamental tenets
of Article 14 -· Held: Per Ganguly J: Requirement of payment
u/s. 17(3A) is in the nature of condition precedent clamped
by the statute before taking possession under emergency
B acquisition by the State - Provision of s. 17(3A) indicates
mandatory compiiance - It is a law enacted to prevent
deprivation of property rights guaranteed under Article 300 A
- Thus, taking over possession of land without complying with
the requirement of s. 17(3A) is illegal and in violation of the
c statutory provision which automatically violates the
constitutional guarantee under Article 300A - Per Swatanter
Kumar J: Once the acquired land has vested in the
Government in terms of s. 16 or 17(1), possession of which
has already been taken, such land is incapable of being re-
D vested or reverted to the owners/persons interested therein,
for lack of any statutory provision for the same under the Act
- Provisions of s. 17(3A) suggests that it is mandatory but,
as no consequences of default have been prescribed by the
Legislature therein, thus, it would hardly be permissible for the
Court to read into the said provision any drastic
E consequences much less lapsing of entire acquisition
proceedings ·- s. 11 A has no application to the acquisition
proceedings conducted under the provisions of s. 17 - In
view of diver.qence of opinion, matter referred to the larger
bench - Reference to larger bench.
F
Land owned by appellant No. 1, Company (abadi land)
was sought to be acquired for the planned industrial
development of New Okhla Industrial Development Authority.
Notification was issued under Section 4(1) read with Sections
G 17(1) and 17(4) of the Land Acquisition Act, 1894, seeking
acquisition of the land. The provision of hearing under Section
5A was dispensed with. Pursuant thereto, declaration under
Section 6 was published in the year 2002 declaring the area
required by the Government and thereafter, the possession
H of the land was taken under Section 9(1) of the Act. The
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 193
STATE OF U.P. & ANR.
appellants alleged that they did not receive any notice under A
Section 9(1) of the Act but the possession of the land was
taken; that the Collector did not pass the award within two years
of making the declaration under Section 17(1) as required by
Section 11 A of the Act; and that they were not paid 80 per cent
of the estimated compensation in terms of Section 17(3A) of B
the Act at the time of taking of possession. The appellants
filed a writ petition in the High Court seeking declaration that
the acquisition proceedings, relating to the land of the
appellant be declared void ab initio; and that the respondents
be directed to return the land from the possession of the c
Government to the owners and pay damages for use and
occupation of the land. The respondents contented that they
had deposited 80 per cent compensation in terms of Section
17(3A) of the Act with the authorities; that the land was not
abadi land and had been acquired for planned development 0
of NO/DA and was in the physical possession of the said
authority; and that the possession of the land had been taken
on 4th February, 2003 and no right had survived in favour of
the appellant. The High Court dismissed the writ petition
holding that the provisions of Section 11 A of the Act were not E
attracted to proceedings for acquisition taken by the
Government under Section 17 of the Act. Therefore, the
appellants filed the instant appeal.

The questions which arose for consideration in the
instant appeal are when the Government, in exercise of F
its emergency powers under Section 17 of the Act
acquires lands, which have since vested in the State, can
such an acquisition proceeding lapse and consequently
the land can be transferred to the owners/persons
interested in the event of default by the State, in G
complying with the provisions of Section 11A of the Act;
whether the provisions of Section 17(3A) of the Act are
mandatory or directory and in either event, would non-
compliance with Section 17(3A) have the effect of
invalidating or vitiating the entire acquisition H
194 SUPREME COURT REPORTS [2011] 12 S.C.R.

A proceedings, even where the land has vested in the State
in terms of Section 17(1) of the Act; whether with the
invoking of the emergency provisions which have the
effect of dispensing with the provision of hearing under
Section SA of the Act, the Court is entitled to construe the
B emergency provisions strictly and consider the
safeguards inbuilt in Section 17(3A) as conditions
precedent and mandatory for a valid exercise of
emergency provisions; and whether having regard to the
principle of reasonableness, the provisions of the said
c Act are to be construed, a pre-constitutional law in
consonance with reason and justice-the fundamental
tenets of Article 14 and thus, arrive at a balanced
interpretation of the interest of the State as against the
rights of citizens or land owners.
D Referring the matter to the larger bench, the Court

HELD: PER GANGULY. J.

:1.1 Taking over a possession of land by invoking s.
E 17(1) and s. 17(2) of the land Acquisition Act, 1894 and
without complying with the requirement of Section 17(3A)
of making payment, is clearly illegal and in clear violation
of the statutory provision which automatically violates
the constitutional guarantee under Article 300A of the
Constitution. A passing observation to the contrary in *
F Satendra Prasad Jain's case, must pass sub silentio being
unnecessary in the facts of the case as otherwise such
a finding is per incuriam, being in violation of the statute.
A fortiorari the said finding cannot be sustained as a
binding precedent. Therefore, the writ petition cannot be
G dismissed in view of the decision in * Satendra Prasad
Jain's case which was decided on totally different facts.
The judgment of the High Court is set aside. [Paras 72
and 73] [257-F-G]

H *Satendra Prasad Jain and Ors. v. State of UP. and Ors.
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 195
STATE OF U.P. & ANR.
AIR 1993 SC 2517: (1993) 4 SCC 369 - per incuriam. A

1.2 In all cases of emergency acquisition under
Section 17, the requirement of payment under Section
17(3A) must be complied with as the provision of Section
17(1) and Section 17(2) cannot be worked out without
8
complying with requirement of payment under Section
17(3A) which is in the nature of condition precedent. If
Section 17(3A) is not complied with, the vesting under
Section 17(1) and Section 17(2) cannot take place.
Therefore, emergency acquisition without complying with
Section 17(3A) is.illegal. This is the plain intention of the C
statute which must be strictly construed. Any other
construction, would lead to diluting the Rule of Law. [Para
74) [257-G-H; 258-A-B]

2.1 The reason behind enacting Section 17 (3A) of the D
Act is clear from the Statement of Object and Reasons. It
is clear therefore, the provisions were incorporated in
order to strike a balan~e between the rights of the State
and those of the land owner. A clear legislative intent in
· Section 17(3A) was thus, expressed that before taking E
possession of any land under sub-section (1) or sub-
section (2) of Section 17, the Collector shall tender
payment of 80% of the estimated compensation for such
land to the persons interested and entitled thereto. This
is the clear mandate of law. Reasonableness in law has F
to be its implicit content. When law gives a specific
mandate on the State to tender the payment before taking
possession under Section 17(1) and Section'17(2) by
invoking the emergency powers, to hold that the taking'
over of possession without complying with that mandate G
is legal is clearly to return a finding whjch is contrary to
the express provision of the statute. Si.ich a finding is'
certainly not on a reasonable interpretation of Sectio_n 17
(3A). [Para 43) [244-D-F] .: . · .1• • · i. 0 ,
''f1~'&._'~ ,,I~~--··
R. C. Cooper v. Union of India (1970) 1 SCC 248;· H
196 SUPREME COURT REPORTS (2011] 12 S.C.R.

A Maneka Gandfli v. Union of India & Anr. (1978) 1 SCC 248
- relied on.

Municipal Corporation of Delhi v. Gurnam Kaur AIR 1989
SC 38; Madhav Rao Jivaji Rao Scindia v. Union of India AIR
1971 SC 530; Padma Sundara Rao (Dead) & Ors., v. State
8
of Tamil Nadu & others (2002) 3 SCC 533 - referred to.

Gerard v. Worth of Paris Ltd. 1936 (2) AER 905 - referred
to.

c Jurisprudence by Salmond "12th Edn - referred to

2.2 The emergency provisions of the statute which
empowers the State to acquire land by dispensing with
the provisions of making an enquiry, is a drastic
p.rovision. The provisions of the Act are expropriatory in
D nature and must be strictly construed. Section 17 of the
Act seeks to authorize acquisition and taking over of
possession without hearing the land owner. The right of
hearing which is given under Sertion SA of the Act and
which is taken away in view of the emergency acquisition
E is a very valuable right and is akin to a fundamental right.
Therefore, when that right is taken away and the land is
acquired by invoking the emergency provision of Section
17(3A) to hold that even the safeguards provided under
Section 17(3A) are not mandatory and taking over of
F possession without complying with the provisions of
Section 17 (3A) is not illegal, is to overlook the clear
provisions of the Act and come to a finding which is
contrary to the Act. [Para 44] [244-H; 245-A-D]

G Dev Sharan & Ors. v. State of U.P. & Ors. JT 2011 (3)
SC 102 - referred to.
2.3 Section 17(3A) is not an isolated provision.
Section 17(3A) figures very prominently as part of the
statutory mechanism in Section 17 of the Act which
H
UELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 197
STATE OF U.P. & ANR.
confers special powers in cases of urgency. Section 17 A
has four sub-sections and all these sub-sections
comprise a composite mechanism and are closely
intertwined. Power under one sub-section cannot be
exercised without complying with the conditions
imposed by the other sub-section. It is thus, clear that B
sub-section (3A) of Section 17 read with sub-section (2)
of Section 31 of the Act form a composite statutory
scheme. The said scheme has been legislatively framed
to balance the promotion of public purpose in acquisition
with rights of the individual whose land is acquired. Thus, c
the provision of s. 17(3A) cannot be viewed in isolation.
It is an intrinsic and mandatory step in exercising special
powers in cases of emergency. Sections 17(1) and 17(2)
and 17(3A) must be read together. S~ction 17(1) and 17(2)
cannot be worked out in isolation. [Paras 45, 47 and 48) 0
[245-E-F; 248-E-H]
2.4 A statute has to be read as a whole and in its
c:.ontext. If the normal mode of vest_ing of acquired
property under Section 16 of the Act is compared with the
mode of vesting under emergency provisions of Section E
17 thereof, it would be discerned that under the Act the
vesting of acquired property in the State presupposes
compliance with two conditions. Under Section 16, first
there has to be an award under Section 11 and then there
has to be taking over of possession. Only thereupon the F
land shall vest absolutely in the State, free from all
encumbrances. However, in case of emergency
acquisition, possession is taken before the making of an
award. This is clear from Section 17(1) and Section 17(2).
But the intention of the legislature is that even though the G
award is not made, payment mandated under Section
17(3A) must be made before possession is taken either
under Section 17(1) and 17(2)..Therefore, the provision
relating to payment under Section 17(3A) is a condition
precedentto the vesting of land under Section 17(1) and H
17(2).
198 SUPREME COURT REPORTS [2011] 12 S.C.R.

A Union of India v. Sankalchand Himatlal Sheth & Anr.
(1977) 4 sec 193 - referred to.
Attorney General v. HRH Prince Earnest Augustus of
Hanover (1957) 1 AER 49 - referred to.
B 2.5 Judicial opinion is uniformly in favour of strict
construction of an expropriatory law which admittedly
Land Acquisition Act, 1894 is. The requirement of
payment under Section 17(3A) is in the nature of condition
precedent clamped by the statute before taking
C possession under emergency acquisition by the State.
The vesting contemplated either under Section 17(1) or
17(2) of the Act is conditioned upon payment mandated
under Section 17(3A). This is clear from the opening
words of Section 17(3A) namely "before taking
D possession of any land either under sub-section (1) or
(2), Collector shall ....... tender payment." Therefore, the
eminent domain concept is subject to the said statutory
.. condition and must be read subje~t to due process
·· concept introduced in the constitlltional law. If Section
E 17(3A) is read consistently with the constitutional
doctrine of due process as articulated in the expression
'authority of law' under Article 300A which constitutionally
protects deprivation of a right to property, save by
authority of law, the requirement of Section 17(3A)
F constitutes the authority of law within the mean,ng of
Article 300A. Therefore, in the context of the said
statutory dispensation and constitutional provision, the
debate whether the provision of Section 17(3A) is
mandatory or directory does not present much difficulty.
G Basically, the language used is 'shall' which primarily
indicates mandatory compliance. That apart, in the
context of the nature of statute which is admittedly
expropriatory in character and the nature of the statutory
requirement under Section 17(3A) which is clearly and
H undoubtedly a condition precedent to the taking over of
possession in emergency acquisition, there can be no
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 199
STATE OF U.P. & ANR.
doubt that the requirement under Section 17(3A) is A
mandatory. [Paras 54, 66 and 67) [250-G; 255-B-H]

Secretary of State for India v. Birendra Kishore Manikya
ILR 44 Cal 328; Gujarat Electricity Board v Girdharlal Motilal
And Anr AIR 1969 SC 267; Nazir Ahmad v King Emperor AIR B
1936 PC 253; Hindustan Petroleum Corpn. Ltd., v. Darius
Shapur Chenai and. others (2005) 7 SCC 627; Bharat
Petroleum Corporation Ltd. v Maddula Ratnavalli and Others
(2007) 6 SCC 81; Ji/ubhai Nanbhai Khachar and others v
State of Gujarat and Anr. 1995 Suppl (1) SCC 596 - referred C
to.

Webb v. Manchester and Leeds Rail Co. (1339) 4 Myl
& Cr.116; Parkdale Corporation v. West (1887) 12 App. Cas.
602, 614; A.K. Gopalan v. State of Madras AIR 1950 SC 27;
Henry B. Stacey v The Vermont Central Raf/road Co. 27 Vt. D
39 - referred to.

The Law of Compensation for Land Acquired under
Compulsory Powers by Cripps, Stevens and Sons, Ltd. 8th
Edn.; A Treatise on the Constitutional Limitations by Cooley E
'Volume II, (Eight Edn);; Words and Phrases permanent
edition, Vol. 8. St. Paul, Minn, West Publishing Co., 1951,
p 629; Bouvier's Law Dictionary, A Concise encyclopedia of
the Law, Rawle's Third Revision, Vol. 1, Vernon Law Book
Company, 1914, p 584; Wharton's Law Lexicon, 1976,
F
reprint, p 228 - referred to.

2.6 Section 17(3A) has been enacted for protecting
the rights of deprived, land-loser in an emergency
acquisition. The said provision is therefore, based on
reason, justice and fairplay. Since the said provision has G
been introduced by way of an amendment to balance the
right of the State as against the interest of the land-loser,
the State's power of eminent domain is ex!Jressly made
subject to said. statutory provision as also ~he
constitutional right to property protected under Article H
200 SUPREME COURT REPORTS [2011] 12 S.C.R.

A 300A. [Para 68] [256·A·B]

Chairman, Indore Vikas Pradhikaran v. Pure Industrial
Coke & Chemicals Ltd. and Ors. (2007) 8 SCC 705 -
referred to.

B 2.7 The expression 'law' which figures both in Article
21 and Article 300A must be given the same meaning. In
both the cases the law would mean a validly enacted law.
In order to be valid law it must be just, fair and reasonable
having regard to the requirement of Article 14 and 21. This
C is especially so, as 'law' in both the Articles 21 and 300A
is meant to prevent deprivation of rights. Insofar as Article
21 is concerned, it is a Fundamental Right whereas in
Article 300A it is a constitutional right which has been
given a status of a basic human right. Therefore, Section
D 17(3A) of the Act is a law which has been enacted to
prevent deprivation of property rights guaranteed under
Article 300 A. This provision of Section 17(3A) must
therefore, be given a very broad interpretation to mean a
law that givEis a fafr, just and reasonable protection of the
E land-loser's constitutional right to property. Therefore,
the provisions of Section 17(3A) read with Article 300A
must be liberally construed. [Paras 69,70 and 71] [256-C·
G]
Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC
F 248 - relied on.
Madhav Rao Jivaji Rao Scindia v. Union of India AIR
1971 SC 530 - referred to.

G 3. As regards the question of relief, the possession
of the land has been taken and same has been handed
over to the beneficiary on which construction had taken
place and third party interests had arisen. It is very
difficult to put the hands of the clock back now, despite
H the said declaration of law by the Court. In the special
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 201
STATE OF U.P. & ANR.
facts of the case, compensation in respect of the land A
acquired as regards the appellants, cannot be decided on
the basis of the date of notice under Section 4. The
compensation has to be fixed with regard to the value of
the appellant's land as on the date of filing of the writ ·
petition which was in March, 2006 before the High Court. B
The Section 4 notification must be deemed to have been
issued on March 1, 2006 and the compensation must be
worked out on that basis. An award on that basis must
be passed by the Collector within four months from date
and the appellants are given liberty, if so advised, to c
challenge the same in appropriate proceedings. As the
respondent-acquiring authority has proceeded illegally in
the matter, it shall pay costs of Rupees one lakh in favour
of High Court Mediation Centre. The State is at liberty to
recover the same from the erring officials. [Paras 75, 76) D
[258-C-H]
Dorothy Lynch v. Household Finance Corporation 405
US 538: 31 L Ed. 2d 424 - referred to.

Democracy, Equality and Freedom by Justice K.K. E
Mathew (1978) - referred to.

PER SWATANTER KUMAR, J:

1. The four legal questions as· framed are answered
as follows: F

A. Section 11A of the Land Acquisition Act, 1894 has
no application to the acquisition proceedings
conducted under the provisions of Section 17 of the
Act. Once the acquired land has vested in the G
Government in terms of Section 16 or 17(1) of the Act,
possession of which has already been taken, such
land is incapable of being re-vested or reverted to the
owners/persons interested therein, for lack of any
statutory provision for the same under the Act. H
202 SUPREME COURT REPORTS [2011] 12 S.C.R.

A B. The provisions of Section 17(3A) of the Act, on
their bare reading, suggest that the said provision is
mandatory but, as no consequences of default have
been prescribed by the Legislature in that provision,
thus, it would hardly be permissible for the Court to
B read into the said provision any drastic
consequences much less lapsing of entire
acquisition proceedings. Default in complying with
provisions of Section 17(3A) cannot result in
invalidating or vitiating the entire acquisition
c proceedings, particularly when the possession of the
acquired land has been taken and it has vested in the
Government free from all encumbrances.

C. Keeping in view the scheme of the Act, the
provisions of Section 17 of the Act can be construed
D strictly but such interpretation must be coupled with
the doctrine of literal and contextual interpretation,
while ensuring that the object of the legislation is not
defeated by such an interpretation. Strict compliance
to the conditions contemplated under Section 17 of
E the Act should be given effect to but within the
framework of the statute, without making any
additions to the language of the section.

D. Once the righ.t to property ceases to be a
F Fundamental Right after omission of Articles 19(1)(f)
of the Constitution of India, the addition of Articles
31A and 300A by the 44th Constitutional Amendment,
1978, cannot place the legal right to property at the
same pedestal to that of a fundamental right falling
under Chapter Ill of the Constitution. The provisions
G
of the Land Acquisition Act are not violative of Article
14 of the Constitution. The rights of the citizens and
interest of the State can be balanced under the
provisions of the Act, without any violation of the
Constitutional mandate. [Para 82) [323-E-H; 324-A-G]
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 203
STATE OF U.P. & ANR.
'
2. The reasons for taking different view are as A
· follows:

(i) The ratio decidendi of the judgment of this Court
in the case of Satendra Prasad Jain is squarely
applicable to the instant case, on facts and law.
8
Satendra Prasad Jain & Ors. v. State of U.P. & Ors. AIR
=
1993 SC 2517 (1993) 4 SCC 369 - followed.

(ii) From the facts recorded, it is clear that within the
prescribed period, the payments were deposited with c
the State office of the Collector/co~petent authority
and it was for the State to distribute the money in
accordance with the provisions of the Act. It is not
only the scheme of the Act but also an established
practice that the amounts are disbursed by the 0
Collector to the claimants and not directly by the
beneficiary, for whose benefit the land had been
acquired. The beneficiary had discharged its
obligation by depositing, in fact, in excess of 80 per
cent of due compensation with the competent E
authority. De hors the approach that one may adopt
in regard to the interpretation of Section 17(3A), on
facts the notification is incapable of being invalidated
for non-compliance of the said Section.

(iii) The doctrine of strict construction does not per F
se mandate that its application excludes the
simultaneous application of all other principles of
interpretation. It is permissible in law to apply the rule
of strict construction while reading the provisions of
law contextually or even purposively. The golden rule G
of interpretation is the rule of plain language, while
preferring the interpretation which furthers the cause
of the Statute rather than that which defeats the
objects or purposes of the Act.
H
204 SUPREME COURT REPORTS [2011] 12 S.C.R.

A Offshore Holdings Pvt. Ltd. v. Bangalore Development
Authority & Ors. (2011) 3 SCC 139; Tika Ram & Ors. v. State
of U.P. & Ors. (2009) 10 SCC 689; Banda Development
Authority, Banda v. Moti Lal Agarwal & Ors. 2011 (5) SCALE
173; Devinder Singh & Others v. State of Punjab and Others
B (2008)1 SCC 728 - referred to.

(iv) The 44th Constitutional Amendment, on the one
hand, omitted Article 19(1)(f) and Article 31 while
introducing Articles 31A and 300A to the Constitution
of India on the other. Right to property was deleted
c as a fundamental right in the Constitution. Thus, this
right cannot be placed on equi terms, interpretatively
or otherwise, to the pre-constitutional amendments.
The right to eminent domain would operate on a
different sphere, interpretation and effect, pre and
D post constitutional repealments of these Articles and
Introduction of Article 300A of the Constitution. [Para
1]
3.1 It is clear that it may not be possible to lay down
E any straitjacket formula, which could unanimously be
applied to all cases, irrespective of considering the facts,
legislation in question, object of such legislation,
intendment of the legislature and substance of the
enactment. It will always depend upon all these factors.
F Still, these precepts are not exhaustive and are merely
indicative. There could be cases where the word 'shall'
has been used to indicate the legislative intent that the
provisions should be mandatory, but when examined in
light of the scheme of the Act, language of the provisions,
G legislative intendment and the objects sought to be
achieved, such an interpretation may defeat the very
purpose of the Act and, thus, such interpretation may not
be acceptable in law and in public interest. Keeping in
mind the language of the provision, the Court has to
examine whether the provision is intended to regulate
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 205
STATE OF U.P. & ANR.
certain procedure or whether it vests private individuals A
with certain rights and levies a corresponding duty on the
officers concerned. The Court will still have to examine
another aspect, even after holding that a particular
provision is mandatory or directory, as the case may be,
i.e., whether the effect or impact of such non-complianc~ B
would invalidate or render the proceedings void ab initio
or it would result in imposition of smaller penalties or in
issuance of directions to further protect and safeguard
the interests of the individual against the power of the
State. The language of the statute, intention of the c
legislature and other factors decide the results and
impacts of non-compliance in the facts and
circumstances of a given case, before the Court can
declare a provision capable of such strict construction,
to term it as absolutely mandatory or directory. [Para 27] D
[278-D~H; 279-A-C]

May George v. Special Tehsildar and Ors. (2010) 13
SCC 98; Mis. Sainik Motors, Jodhpur & Others v. The State
of Rajasthan AIR 1961 SC 1480; Hindustan Petroleum
Corporation v. Darius Shapur Chennai and Ors. (2005) 7 SCC E
627 - referred to

Attorney General's Reference (No. 3 of 1999) (2001) 1
All ER 577; R. v. Jones, exp. Daunton 1963(1) WLR 270R.
v. Bullock (1964)1 QB 481 - referred to. F

'Principles of Statutory Interpretation' by Justice G.P.
Singh, 12th Edn, 2010 p 389; 'The Interpretation of Statutes'
by Maxwell Chapter 12, 12th Edn.; 'Principles of Statutory
Interpretation' by Justice G.P. Singh, 11th Edn, 2008; -
'Statutory Construction' by Crawford; Interpretation of Statutes' G
by Maxwell 12th Edition by P. St. J. Langan - referred to.

3.2 Under the scheme of Section 17 of the Act, the
Government can take possession of the property on the
. expiration of 15 days from publication of notice mentioned · H
206 SUPREME COURT REPORTS [2011] 12 S.C.R.

A in Section 9(1) of the Act. The provisions of Section 5 of
the Act, i.e., the right of the owner to file objection can be
declared to be inapplicable. Besides these two significant
distinctions, another important aspect that the land vests
in the Government under Section 16 of the Act only after
B the award is made and possession of the land is taken,
while under Section 17(1 ), at the threshold of the
acquisition itself, the land could vest absolutely in the
Government free from all encumbrances. The possession
of the acquired property has to be taken by the Collector
c in terms of Sections 17(2) and 17(3) of the Act. [Para 28]
[279-G-H; 280-A-B]

3.3 Section 17(3A) of the Act, was introduced by the
Amendment Act 68 of 1984 for the purposes of
safeguarding the interests of the claimants. Section
D 17(3A) makes it obligatory on the part of the authority
concerned to tender/pay 80 per .. ent of the compensation
for the acquired land, as estimated by the Collector, to the
persons interested and entitled thereto; unless prevented
by any of the contingencies mentioned under Section
E 31(2) of the Act. The use of the word 'shall' in Section
17(3A) indicates that the enactors of law desired that the
procedure stated should be complied with by the
authority concerned prior to takirtg of possession.
Deposit of amount is the condition precedent to taking
F of possession. The amount so deposited or paid in terms
of Section 17(3A) of the Act will be taken into account for
determining the amount of compensation required to be
tendered under Section 31 of the Act and provides for the
recovery of amounts if it exceeds the awarded amount.
G Section 17(3A) unambiguously provides a complete
mechanism of taking possession and the requirement of
payment of 80 per cent of estimated compensation to the
claimants. [Para 29] [281-E-H; 282-A-CJ
3.4 Section 17(3A) of the Act is completely silent on
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 207
STATE OF U.P. & ANR.
consequences of default in compliance of the provision. A
. Where the Legislature has, in specific terms, provided for
the extent of payment, mode of payment and even the
difficulties which are likely to arise, i.e, where a person
may not be entitled to receive the compensation or in any
other eventuality such as where the compensation B
cannot be paid for the reasons stated in Section 31(1) of
the Act, there the Legislature in its wisdom has provided
no contingencies and/or consequences of non-deposit
of this money. This is in complete contradistinction to the
provisions contained in Sections 6 and 11A of the Act. c
Section 6 provides that no declaration shall be issued
where the period specified in the first proviso to Section
6(1) of the Act has expired. Similarly, Section 11A of the
Act provides that the acquisition proceedings shall lapse
where the Collector fails to make an award within a period
0
of two years from the date of publication of declaration
under Section 6 of the Act. Thus, the legislative intent is
very clear. The legislature has provided for every
contingency for tendering payment, while ·remaining
0

silent about consequences flowing from default under
some other provisions. When the framers of law have not E
provided for any penal consequences for default in
compliance to Section 17(3A), then it will be uncalled for
to provide such consequences by judicial_ interpretation.
While interpreting the provisions for compensation, the
Court can provide such interpretation as would help to F
bridge the gaps left by the Legislature, if any, in
implementation of the provisions of the Act. But it would
hardly be permissible for the Court to ·introduce such
consequences by way of judicial dicta, like requiring
lapse of acquisition proceedings. This is not a matter G
covered by the principles of judicial interpretation. [Paras
30 and 31] [282-C-H; 283-A-D]

3.5 It is a well settled canon of statutory interpretation
that the courts would neither add nor subtract from the H
208 SUPREME COURT REPORTS [2011112 S.C.R.

A plain language of the statutory provision. In the instant
case also, there is hardly any justification for the courts
to take any contrary view. Once the land has vested in
the State and there being no provision for re-vesting the
land in the original owners under the provisions of the
B Act, then it would be in consonance with the scheme of
the Act and legislative intent to give an interpretation that
would allow provisions of Section 17(1) to operate
without undue impediment and keep the vesting of land
in the State intact Otherwise, in some cases the purpose
"' for which such lands were acquired might stand
>J
frustrated, while in other cases the purpose of
acquisition might have already been achieved and,
therefore, divesting State of its title and possession in the
acquired land would be incapable of performance. Under
J such circumstances, then, to interpret Section 17(3A) of
the Act to be so mandatory in its absolute terms that the
non-payment of money would result in vitiating or lapsing
entire acquisition proceedings, can hardly be justified on
the strength of any known principle of interpretation of
statutes. It is a complete safeguard provided to the land
E owner inasmuch as the compensation stipulated under
Section 17(3A) of the Act should be paid in terms of the
provisions of the Act so that the owner is not made to
suffer on both counts i.e. he is deprived of his land as
well as compensation. It would be unfair for the
F authorities concerned not to pay the compensation as
contemplated under the provisions of the Act. It would be
just and fair to read into the provisions of the Section
17(3AJ as imposing an obligation on the part of the
authorities concerned/the Collector to pay the
G compensation within the time specified under Section
17(3A). Of course, no specific time, within which the
payment has to be made in terms of Section 17(1) has
been stated in the provision. But, wherever specific
limitations are not stated, the concept of 'reasonable time'
H would become applicable. So, even if it is submitted that
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 209
STAtE OF U.P. & ANR.
' there is no specific time contemplated for payment/ A
deposit of 80 per cent of the estimated compensation,
even then the claimants would be entitled to receive the
amount expeditiously and in any case within very
reasonable time. If the authorities are permitted to take
possession of the land without payment of the amounts B
contemplated under Section 17(3A) of the Act, then it
would certainly amount to abuse of power of eminent
domain within its known legal limitations. The authorities
should discern the distinction spelt out under Section 16
of the Act on the one hand and Section 17(1) read with c
Section 17(3A) of the Act on the other. (Para 32). [283-E-
H; 284-A-G]
Banwari Lal & Sons Pvt. Ltd. vs. Union of India & Ors.
1991 (1) DRJ (Suppl.) 317; Union of India & Ors. v. Krishan
Lal Ameja & Ors. (2004) 8 SCC 453; Tika Ram & Ors. v. State · D
of U.P. & Ors. (2009) 10 SCC 689; Satender Prasad Jain
Pratap & Anr. v. State of Rajasthan (1996) 3 SCC 1; Rajend~r
Kishan Gupta v. Union;of India (2010) 9 SCC 46 - referred
to.
E
3.6 The provisions of Section 17(3A) of the Act are
not mandatory. Such a conclusion can safely be arrived
at, even for the reason that the Court would have to read
into the provisions of Section 17(3A) consequences and
a strict period of limitation within which amount should F
be deposited, which has not been provided by the
Legislature itself in that section. The consequences and
contingencies arising from non-compliance of the said
provisions have not been stated in the Act. Once the land
has vested in the Government, non-compliance with the G
obligation of payment of 80 per cent of estimated
compensation would not render the possession taken
under Section 17(1) as illegal. The land cannot be re-
vested or reverted back to the claimants as no provisions
under the Act so prescribe. Furthermore, if the H
210 SUPREME COURT REPORTS [2011] 12 S.C.R.

A interpretation put forward by the appellants is accepted,
it would completely frustrate the objects and purpose of
the Act, rather than advancing the same. The expression
'shall' used in Section 17(3A) has to be understood in its
correct perspective and is not to be construed as
B suggestive of the provisions being absolutely mandatory
in its application. Thus, the provisions of Section 17(3A)
are not mandatory. They are directive provisions, though
their compliance is necessary in terms of the Act. [Para
39) [290-G-H; 291-A-D]
c 3.7 The obligation on the part of the Government or
concerned authority to deposit the amount prior to taking
possession under Section 17(1) should essentially be
complied with. The amount of 80 % of the estimated
compensation in terms of Section 17(3A) should be
D deposited. Once the provisions of Sections 17(1) and
17(3A) is read conjunctively, it implies that the amounts
are to be deposited within 15 days from the publication
of the notice in terms of Section 9(1) of the Act and before
taking of possession of the acquired land. The
E Legislature has sufficiently indicated that the payment of
the due 80 per cent of compensation should be made at
the earliest and, particularly, before possession is taken.
Non-compliance of the provisions of Section 17(3A)
would not vitiate the acquisition proceedings, but
F depending on the facts of a given case, the payment
should be made within the time indicated and in any case
within a reasonable time, and the claimant should then
be entitled to additional benefits for such non-
compliance. The Court would fill a part of the gap which
G has remained unfilled by the Legislature. [Para 40)

3.8 Irrespective of whether the provision is held to be
mandatory or directory, compliance with its substance is
equally important. In either case, the authority entrusted
H with a duty is not absolved of its obligation to perform
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 211
STATE OF UP. & ANR.
the specified duty or obligation in the manner stated in A
law. It is primarily the consequences which result from
non-performance of duty, which are of significance in
determining the impact of mandatory or directory nature
of a provision. Normally, in both cases, some
consequences should flow from non-performance. Even 9
if the provisions of Section 17(3A) are directory, the
deposit of 80 per cent of estimated compensation within
the period of limitation i.e. 15 days and prior to taking
possession of the land, has to be made. There is no
ambiguity in this requirement. Thus, it shall be the duty C
of the Court to fill the lacuna (i.e., the consequences of
non-payment of compensation) to complete the chain of
the legislative scheme contained in Section 17 of the Act.
Having taken recourse to the emergency provisions and
having taken possession of the land, the Government
and its authorities cannot be permitted to defer the D
payment of the requisite amount, in terms of Section
17(3A) .ofthe Act, indefinitely or for an unduly long period.
A responsibility is cast upon the authorities concerned
to make· payments within time and not unduly cause
inconvenience and harassment to persons interested in E
the compulsorily acquired land and who have been
deprived of possessory benefits also. The provisions of
Section 34 is to be read together with the provisions of
Sections 17(1) and 17(3A) of the Act. They have to be
construed harmoniously, keeping in mind the object F
sought to be achieved by a conjoint reading of these
provisions. The expression 'before taking possession of
the land' has,been used in Section 17 read with Section
17(3A) and in Section 34 as well. Once the Government
has invoked the emergency provisions, it is pre- G
supposed that the Government needs the land urgently
and, in its wisdom, has decided that it is not in public
interest to go through the normal procedure prescribed
for acquisition and payment of compensation under Part
H
212 SUPREME COURT REPORTS [2011] 12 S.C.R.

A II of the Act. It requires immediate possession of the land
for achievement of the purpose for which land was
required. As the Government would take possession by
depriving the land owners of some of their rights, as
would have been available to them under normal
8 acquisition procedure, the Legislature has created
special safeguards in their favour. Firstly, they would be
given 15 days notice prior to taking of possession of the
land (Section 9.(1) of the Act). Secondly, 80 per cent of the
estimated compensation shall be paid to them in terms
of Section 17(3A) of the Act, before the possession is
C taken. Thus, the Legislature has balanced the rights and
obligations between the parties. Section 34, therefore,
cannot be read so as to destroy the protections or
safeguards provided to claimants/owners of the land
under Section 17 of the Act. These provisions must be
D read harmoniously. These provisions should be
construed so as to give benefit to the owners of the land
against compulsory acquisition, rather than accepting an
interpretation which would defeat the benefits intended
by the Legislature. The Legislature was fully aware of the
E provisions of' Section 34 while introducing Section 17(3A)
into the Act, as both the provisions were introduced by
the same Amending Act of 1984. This clearly
demonstrates the legislative intent that the protections
specified under Section 17(1) would operate in their own
F field and the provisions of Section 34 would also apply
in its own sphere. It would be unfair, if the Government
takes possession of the property within 15 days of the
notice issued under Section 9(1) (as is contemplated
under Section 17(1) of the Act) and does not make
G payment of compensation for a long period, with no
additional liability whatsoever. This is not the legislative
intent that the Government would not be liable to pay
higher rate of interest where it has taken possession of
the land in exercise of its powers under Section 17 of the
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 213
STATE OF U.P. & ANR.
Act. It would be unfair if the liability to pay higher rate of A
interest in terms of Section 34 would arise only after a
period of one year from the date of possession even in
cases of emergent acquisition. Such an interpretation
may result in frustrating the balance sought to be created
by the Legislature. [Para 41] [292-A-F; 293-C-H; 294-A-E] B

3.9 The statutory benefit contained in Section 34 of
the Act should be made applicable to the provisions of
Section 17(1) read with Section 17(3A) ir:i the manner that
it would give the requisite benefit to the owners/claimants C
of the land rather than deprive them of both, their land
and income, without any additional benefit despite non-
compliance of the provisions of the Act. Thus, the
owners/claimants should be entitled to receive, on the
strength of these provisions and alike, the interest
payable under the proviso to Section 34 i.e. interest at the D
rate of 15 per cent per annum from the date of expiry of
the period of 15 days as stated under Section 17(1) and
from taking of possession of the land from the owners/
persons interested in the land till payment of
compensation in terms of Section 17(3A) of the Act. E
These conditions have to be satisfied cumulatively and
not alternatively, to give rise to the liability to pay interest
of 1.5 per cent from the date afore-stated. This approach
which is adopted is restricted in application to the
acquisitions made by the Government in exercise of its F
emergency powers under Section 17 of the Act. Section
34 would otherwise operate in its own sphere and only
after the lapse of the period specified in the proviso. The
conclusion is that non-compliance of provisions of
Section 17(1) read with Section 17(3A) would not render G
the acquisition proceedings invalid or void ab initio in law
however, liability to pay interest at the rate of 15 per cent
per annum would arise from the date and for the period
afore-noticed. [Para 41 & 42] [294-E-H; 295-A-C]
H
214 SUPREME COURT REPORTS [2011] 12 S.C.R.

A 4.1 A bare reading of Section 11A shows that the
Legislature places an obligation upon the Collector to
make an award at the earliest. Wherever the award under
Section 11 of the Act has not been made within two years
from the date of publication of the declaration, the entire
B proceedings for acquisition of land shall lapse.
Explanation to Section 11A of the Act further excludes
from this period, any period during which any action or
proceeding, to be taken in pursuance of the said
declaration, is stayed by an order of a Court which had
c been in force. Exclusion of no other period is
contemplated under this provision. Thus, a definite
intention of the framers of law is clear that the award
should be made at the earliest and, in any case, within a
maximum period of two years from the declaration under
Section 6 of the Act, if the acquisition proceedings are to
0
survive. The acquisition under the Act being compulsory
acquisition, a safeguard or right has been provided to the
private party against the State. Thus, the statute imposes
a duty upon the State to act wit'1in time and also provides
E for consequences that shall ensue in the event of default.
These consequences. are of a very serious nature,
whereby the entire acquisition proceedings shall stand
lapsed. This would render the land free from acquisition
or any restriction and title over the land would stand
reverted to the owners/persons interested. [Para 44] ·
F
4.2 It is clear from the substance of the language and
from the intention of the legislature that the right created
in favour of the citizen and the duties imposed on the
State should be construed strictly. Section 11A of the Act
G provides for discharge of obligations within the specified
time and there are serious consequences of such non-
fulfillment. This would clearly lead to the conclusion that
the provisions of Section 11A of the Act are capable of
strict construction and are mandatory in their application.
H [Para 45] [296-G-H; 297-A]
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 215
STATE OF U.P. & ANR.
Mohan & Anr. v. State of Maharahtra (2007) 9 SCC 431; A
Satendra Prasad Jain & Ors. v. State of U.P. & Ors. AIR 1993
SC 2517: (1993) 4 SCC 369; Yusufbhai Noormohmed
Nendoliya v. State of Gujarat (1991) 4 SCC 531 - Relied on.
Awadh Bihari Yadav & Ors. v. State of Bihar & Ors. (1995)
8
6 SCC 31; P. Chinnanna & Ors. v. State of A.P. & Ors. (1994)
5 SCC 486; Allahabad Development Authority v.
Nasiruzzaman & Ors. (1996) 6 SCC 424; Banda
Development Authority, Banda v. Moti Lal Agarwal & Ors.
2011 (5) SCALE 173 - referred to
c
4.3 Section 17(1) of the Act uses the expression
'though no such award has been made'. This clearly
demonstrates that making of an award is not a sine qua
non for issuance of a notification under Section 4(1) read
with Section 17(1) of the Act or even taking possession D
in terms thereof. After publication of a notification under
Section 4 read with Sections 17(1) and 17(4) of the Act,
the authority is obliged only to publish a notice under
Section 9(1) of the Act and comply with the provisions of
Section 17(3A) before it can take possession within the E
stipulated period. Once possession of the land is taken,
it shall thereupon vest absolutely in the Government free
from all encumbrances. In other words, Section 17(4)
itself is a permissible exception to the provisions of
Section 11 of the Act and, therefore, the question of
enforcing Section 11A against proceedings under F
Section 17 would not arise. Under Section 16, the land
shall vest in the Government free from all encumbrances
only after the award is made and possession is taken. In
contradistinction to this, under Section 17(1) the land
shall vest absolutely in the Government free from all G
encumbrances even when no award is made and
possession thereof is taken in terms of Sections 17(1) and
17(3A) of the Act. The language of Section 17(1) is to be
given its plain meaning, within the field of its operation.
Once such possession is taken and the land is so vested, H
216 SUPREME COURT REPORTS [2011] 12 S.C.R.

A the Act does not make any provision for re-vesting of land
in the owners/persons interested. Reversion of title or
possession of property acquired, which has vested in the
Government or in the authority for whose benefit such
lands are acquired, is unknown to the scheme of the Act.
B To introduce such a concept by interpretative process
would neither be permissible nor proper. [Para 53) [302-
E-H; 303-A-D]

5.1 No award is required to be made before the
provisions of Section 17(1) can be invoked. The amount
C of 80 per cent of the estimated compensation deposited
under Section 17(3A) of the Act is to be finally adjusted
against the award made under Section 11 in terms of
Section 17(38) of the Act. A cumulative reading of these
provisions clearly suggests that provisions of Section
D 11 A of the Act can hardly be applied to the acquisition
under Section 17 of the Act. [Para 55] [304-C-E]

5.2 Section 48 empowers the Government to
withdraw from the acquisition of the land of which
E possession has not been taken. Where the Government
withdraws from such an acquisition, it is its duty to
determine the amount of compensation for the damages
suffered by the owners as a consequence of the notice
or any other proceeding taken thereunder, which
F amounts have to be paid as per provisions of Part Ill.
Section 48, thus, is a clear indication that the power of
the Government to withdraw the acquisition is subject to
the limitation stated under Section 48 itself. There is no
ambiguity in the language of Section 48 of the Act to give
G it any other interpretation except that the Government is
not vested with the power of withdrawing from the
acquisition of any land, of which the possession has
been taken. Where the award has been made and
possession has been taken, the land vests in the
Government in terms of Section 16 of the Act. On the
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 217
STATE OF U.P. & ANR.
contrary, the land vests absolutely in the Government free A
from all encumbrances where award has not been made
· and only possession as contemplated under Section
17(1) of the Act has been taken. If the Government has
no power to withdraw from acquisition of any land, the
possession of which has been taken, then by no stretch B
of imagination can it be held that the Government will
have the power to withdraw from the acquisition of any
land where the land has vested in the Government or the
land has been subsequently transferred in favour of an
authority for whose development activity the lands were c
acquired. [Paras 55 and 56] [304-F-G; 305-C-F]

Offshore Holdings Pvt. Ltd. v. Bangalore Development
Authority & Ors. (2011) 3 SCC 139; Lt. Governor of Himachal
Pradesh and Anr. v. Avinash Sharma (1970) 2 SCC 149;
Rajasthan Housing Board and Others v. Shri Kishan and D
Others (1993) 2 SCC 84; Sanjeevanagar Medical & Health
Employees' Cooperative Housing Society v. Mohd. Abdul
Wahab and Others (1996) 3 SCC 600; Bangalore
Development Authority and Others v. R. Hanumaiah and
Others (2005) 12 SCC 508; National Thermal Power E
Corporation Limited v. Mahesh Dutta and Others (2009) 8
SCC 339; UP. Jal Nigam, Lucknow through its Chairman and
Another v. Kalra Properties (P) Ltd., Lucknow & Others'(1996)
3 sec 124 - referred to.
F
5.3 The lands which have been acquired under the
provisions of Section 17 of the Act are incapable of being
reverted to the owners/persons interested. The Act does
not make any such provision and, thus, the Court is
denuded of any such power. The Court must exercise G
its power within the framework of law, i.e., the provisions
of the Act. In the case of an ordinary acquisition, if the
land has vested in the State Government then neither the
Government nor the court can take recourse to the
provisions of Section 48(1) of the Act, there the question
H
218 SUPREME COURT REPORTS [2011] 12 S.C.R.

A of applying Section 11A of the Act to acquisition
proceedings under Section 17 of the Act cannot arise, as
it would tantamount to achieving something indirectly
which would be impermissible to be achieved directly.
Thus, Section 11A of the Act has no application to the
s acquisition proceedings under the provisions of Section
17 of the Act. [Paras 64 and 65] [309-G-H; 310-A-B]

5.4 There is no dispute in the instant case that the
provisions of Section 11A of the Act have not been
C complied with. Admittedly, the notification under Section
4(1) read with Section 17(4) was published on 17th April,
2002, declaration under Section 6 was made on 22nd
August, 2002 and the possession of the property wa,s ,
taken on 4th February, 2003. The award was made on
9th June, 2008, much after the expiry of the prescribed
D period of two years under Section 11A of the Act. There
being an admitted violation of the provisions of Section
11A of the Act, the natural consequence is that its rigours
would be attracted. [Para 66] [310-C-E]

E 5.5 In both the cases, acquisitions in exercise of
emergent powers under Section 17 of the Act and the
acquisitions made otherwise, notification under Section
4(1) has to be published in accordance with the
provisions of the Act. Notification under Section 4 is a
F sine qua non for commencement of the acquisition
proceedings. Where the lands are acquired in exercise of
emergent powers of the State under Section 17 of the Act,
a notification under Section 4(1) of the Act is issued and
the notification itself refers to the provisions of Section
G 17(1) as well as Section 17(4) of the Act. A specific power
is vested in the appropriate Government to declare that
provisions of Section 5A would not be applicable to such
acquisition. Therefore, there is no obligation upon the
Collector/authority concerned to invite and decide upon
H objections in terms of Section SA of the Act, prior to
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 219
STATE OF U.P. & ANR.
publication of a declaration under Section 6 of the Act. A
However, notice under Section 9(1) of the Act has to be
published to completely and fully invoke the powers
vested in the State for taking possession of the land, in
terms of Section 17(1) of the Act. After the expiry of 15
days from such publication under Section 9(1 ), the B
possession of the land can be validly taken by the
Government, whereupon the land would vest absolutely
in the Government, free from all encumbrances. In other
words, for proper computation of the specified period of
15 days, issuance of notification under Section 9(1) of the c
Act would be necessary, but it cannot be held to be
mandatory in its operation so as to render the execution
proceedings invalid. [Paras 68, 69] [311-E; 313-A; 312-D-
Hl
Narender Jeet Singh v. State of U.P. (1970) 1 SCC 125; D
May George - referred to.

5.6 Before the Government takes possession of the
land in exercise of its powers under Section 17(1) of the
Act, it has to comply with the requirements of Section E
17(3A) of the Act. The amount so paid, if falls short, and/
or is in excess of compensation actually due to the land
owners, the same shall be determined and adjusted while
making the final award under Section 11 of the Act. It is
evident that both these acquisitions have distinct F
schemes of acquisition. Section ~7 of the Actitself refers
to some other provisions, like Sections 5A, 9, 11, and 31
of the Act. Wherever such reference was considered
necessary by the Legislature, it has been so made. Thus,
there is no occasion for the Court to read into Section 17, G
the ianguage of Section 11 A of the Act which has not
been provided by the Legislature; more so when doing
so would destroy or frustrate the very object of the urgent
acquisition. Marked distinction between the
implementation of these two types of acquisition H
220 SUPREME COURT REPORTS [2011] 12 S.C.R.

A schemes contained in the Act is clearly suggestive that
these schemes operate in their respective fields without
any contradiction. Thus, the Court would adopt an
interpretation which would further such a cause, rather
than the one which will go contra to the very scheme of
B the Act. Thus, it cannot be held that the provisions of
Section 11A of the Act, despite being mandatory, would
apply to the scheme of acquisition contained under
Section 17 of the Act. [Para 70] [313-B-G]

6.1 Once the development activity has been
C completed in the entire sector, it would not be equitable
to release the lands from acquisition. It is settled canon
of equitable jurisdiction that the person who feels
aggrieved by an action of the State should approach the
Court without any unnecessary delay, particularly in
D cases such as the instant one. While the Notification
under Section 4 read with Sections 17(1) and 17(4) of the
Act was issued on 14th April, 2002 and possession taken
on 4th February, 2003 the writ petitions were filed four
years subsequent to the issuance of the Notification
E under Section 4. It was contended that the cause of action
to challenge the acquisition proceedings arose only after
the period of two years had lapsed from the date of
issuance of the notification. Even if that be so, still there
is an unexplained and undue delay of more than two
F years in approaching the Court. This would itself
disentitle the appellants to claim any equitable relief in the
facts and circumstances of the instant case. [Para 72]
[314-B-F]

G 6.2 It cannot be said that in every case of delay, per
se, the Court would decline to exercise its jurisdiction if
the party to the lis can otherwise be granted relief in
accordance with law. This has to be decided keeping in
view the facts and circumstances of a given case. [Para
H 73] [314-G]
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 221
STATE OF U.P. & ANR.

6.3 Undisputedly in the intervening period of nearly A
ten years, the acquired areas have fully developed. During
the course of hearing the award was finally made by the
authorities on 9th June, 2008 and has been accepted by
nearly 97 .6 per cent of the owners whose lands were
acquired vide the said Notification. Nearly all land owners B
have accepted the award and permitted the development
activity to be carried out. This conduct of the owners as
a whole would again be a factor which would weigh
against the grant of any relief to the appellants. Huge
amounts of money and resources of the State, as well as c
other bodies or persons have been invested on the
development of this sector which is stated to be an
industrial sector. It would be unjust and unfair to uproot
such a developed sector on the plea raised by the
appellants. There is no merit in the contentions of law 0
raised by the appellants. Even on equity, the appellants
has no case. [Paras 74 and 75] [314-H; 315-A-C]

Tamil Nadu Housing Board v. L. Chandrasekaran (Dead)
by Lrs. & Ors. (2010) 2 SCC 786; AS. Naidu v. State of Tamil
Nadu (2010) 2 SCC 801 - relied on. E

6.4 These authorities are instrumentalities of the State
and the officers are empowered to exercise the power on
behalf of the State~ Such exercise of power attains greater
significance when it arises from the statutory provisions. F
The level of expectation of timely and just performance
of duty is higher, as compared to the cases where the
power is executively exercised in discharge of its regular
business. Thus, all administrative norms and principles
of fair performance are applicable to them with equal G
force, as they are to the Government department, if not
with a greater rigour. [Para 77] [320-F-G]
Centre for Public Interest Litigation and Anr. v. Union of
India and Anr. (2005) 8 SCC 202 - referred to.
H
222 SUPREME COURT REPORTS [2011] 12 S.C.R.

A 6.5 The doctrine of 'full faith and credit' applies to the
acts done by the officers in the hierarchy of the State.
There is a presumptive evidence of regularity in official
acts, done or performed, and there should be faithful
discharge of duties to elongate public purpose in
B accordance with the procedure prescribed. Avoidance
and delay in decision making process in Government
hierarchy is a matter of growing concern. Sometimes
delayed decisions can cause prejudice to the rights of
the parties besides there being violation of the statutory
c rule. [Para 79] [321-F-H]
State of Bihar v. Subhash Singh (1997) 4 SCC 430;
State of Andhra Pradesh v. Food Corporation of India (2004)
13 sec 53 - referred to.

D 6.6 The concept of public accountability and
performance of functions takes in :ts ambit, proper and
timely action in accordance with law. Public duty and
public obligation both are essentials of good
administration whether by the State or its
E instrumentalities. Principles of public trust and pubic
· accountability are applicable to such officers/officials
with all their rigour. Greater the power to decide, higher
is the responsibility to be just and fair. The dimensions
of administrative law permit judicial intervention in
F decisions, though of administrative nature, which are ex
facie discriminatory. The adverse impact of lack of probity
in discharge of public duties can result in varied defects,
not only in the decision making process but in the final
decision as well. Every officer in the hierarchy of the State,
G by virtue of his being 'public officer' or 'public servant',
is accountable for his decisions to the public as well as
to the State. This concept of dual responsibility should
be applied with its rigours in the larger public interest and
for proper governance. [Paras 78 and 80] [321-C; 322-8-
.H D]
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 223
STATE OF U.P. & ANR.
6.7 Repeated default on the part of the Government A
Departments is causing undue inconvenience,
harassment, hardship and ultimately resulting in the
acquisition itself being inequitable against the land
owners/persons interested therein. In the normal course
and as per the requirements of the provisions of Section B
17(3A) read with Section 17(1 ), 80 per cent of the
estimated compensation ought to have been paid to the
owners of the land/persons interested, within that period
prior to taking possession and/or, in any case, within a
very limited and reasonable time. To do things within a c
reasonable time is an obligation of the State, as is
imposed by the Legislature itself and even otherwise as
per the canons of proper governance, i.e., vigilantibus,
non dormientibus, jura subveniunt, which means the
laws assist those who are vigilant, not those who sleep
0
over their rights. According to Respondent No.2, they had
deposited 10 per cent of the estimated compensation
prior to iss1:1ance of notification under Section 4, i.e., 17th
April, 2002 and 70 per cent of the amount was deposited
with the Government on 8/14th July, 2002 by a cheque.
The amount deposited was nearly Rs. 6,66,00,000/· and E
odd. The amount was made available to the Government
and its authorities for disbursement to the owner/
claimants prior to (or soon after) taking of the possession
but still the claimants were deprived of their legitimate
dues until passing of the award, without any justification F
or reason. It was also the duty of respondent No.2 to
ensure that the payments were made to the claimants
prior to taking of possession but, in any case, it was an
unequivocal statutory obligation on the part of the State/
Collector to ensure that the payments were made to the G
claimants in terms of Section 17(1) read with Section
17(3A) prior to taking of possession. There is no
justification, whatsoever, for the Government, for such an
intentional default and the casual attitude of the
concerned officers/officials in the State hierarchy that H
224 SUPREME COURT REPORTS [2011] 12 S.C.R.

A despite deposit by the beneficiary, not to pay 80 per cent
of the estimated compensation due to the claimants
within the requisite time and not even within the
reasonable time. It was breach of statutory and
governance obligation of the State's officers/officials to
B pay the amount to the claimants after more than five
years. It is expected of the State officers not to forget that
these are compulsory acquisitions in exercise of State's
power of eminent domain and the legislative intent behind
providing safeguards and some benefits against such
c acquisition ought not to be frustrated by inaction and
omissions on the part of the officers/officials. [Paras 76
and 81] [319-D-H; 320-A-D; 322-E-G]

7. To ensure the maintenance of balance between
the might of the State on the one hand and the rights of
D land owners on the other, the following directions are
issued:

(i) The Government/acquiring authority shall be liable
to pay interest at the rate of 15 per cent per· annum
E with reference to or alike the provisions of Section
34 of the Act, after the expiry of 15 days from
issuance of Notification under Section 9(1) of the Act,
and from the date on which the possession of the
land is taken, till the amount of 80 per cent of the
F estimated compensation is paid to the claimants. The
Government is also liable to pay interest as afore-
indicated on the balance amount determined upon
making of an award in accordance with Section 11
of the Act.
G (ii) The Central Government and all the State
Governments shall issue appropriate and uniform
guidelines, to ensure that the land owners and the
persons interested in the lands acquired by the State
or its instrumentalities are not put to any undue
H harassment, hardship and inequity because of
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. · 225
STATE OF U.P. & ANR.
inaction and omission on the. part of the acquiring A
authority, in cases of urgent acquisition, in exercise
of its powers of eminent domain under Section 17 of
the Act. The ~overnment should ensure timely action
for. acquisition and payment of compensation in
terms of Section 17(3A) of the Act. B

(iii) The concerned Government shall take
appropriate disciplinary action against the erring
officers/officials including making good the loss
caused to the Government revenue on account of the C
liabilities towards interest or otherwise, because of
such undue delay on the part of such officers/
officials;

(iv) The claimants would be entitled to the cost of '
1,00,000/- (Rupees one lakh only) which shall be D
deposited at the first instance by the State
. Government of Uttar Pradesh and then would be
recovered from the sala_ries of the defaulting/erring
officers/officials in accordance with law. [Para 83 and
84) [325-A-H; 326-A-E] E
Case Law Reference:
Per Ganguly, J.
(1978) 1 sec 248 Referred to Para 24, 29,30, F
31, 43
405 us 538 Referred to Para 26
AIR 1950 SC 27 Referred to Para 29
(1970) 1 sec 248 Referred to Para 32, 43 G
AIR 1989 SC 38 Referred to Para 38
1936 (2) AER 905 Referred to Para 39
AIR 1971 SC 530 Referred to Para 40 · H
226 SUPREME COURT REPORTS [2011] 12 S.C.R.

A (2002) 3 sec 533 Referred to Para 41
AIR 1993 SC 2517 Per incuriam Para 43, 72 73.
JT 2011 (3) SC 102 Referred to Para 44
(1957) 1 AER 49 Referred to Para 49
8
(1977) 4 sec 193 Referred to Para 51

(1839) 4 Myl & Cr.116 Referred to Para 54
ILR 44 Cal 328 Referred to Para 55
c
(1887) 12 App. Cas. 602 Referred to Para 57

27 Vt. 39 Referred to Para 61
AIR 1969 SC 267 Referred to Para 64
D AIR 1936 PC 253 Referred to Para 64
(2005) 1 sec 627 Referred to Para 64
(2001) 6 sec 81 Referred to Para 64

E 1995 Suppl (1) sec 596 Referred to Para 65
(2001) 8 sec 105 Referred to Para 68
(1978) 1 sec 248 Relied on Para 69
AIR 1971 SC 530 Referred to Para 71
F
Per Swatanter Kumar, J:

(1993) 4 sec 369 Referred to Para 1
(2011) 3 sec 139 Referred to Para 1
G
(2009) 1o sec 689 Referred to Para 1
2011 (5) SCALE 173 Referred to Para 1
(2008) 1 sec 128 Referred to Para 13
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 227
STATE OF U.P. & ANR.
(2010) 13 sec 98 Referred to Para 17 A
1963(1) WLR 270 Referred to Para 22
(1964) 1 QB 481 Referred to Para 22
AIR 1961 SC 1480 Referred to Para 23
B
(2005) 1 sec 621 Referred to Para 26
1991 (1) DRJ (Suppl.) 317 Referred to
Para 33
(2004) 8 sec 453 Referred to Para 34 c
(2009) 10 sec 689 Referred to Para 35
'
(1996) 3 sec 1 Referred to Para 36
(201 O) 9 sec 46 Referred to Para 37 D
c2001) 9 sec 431 Referred to Para 45
(1995) 6 sec 31 Referred to Para 47
(1994) 5 sec 486 Referred to Para 48
E
(1996) 6 sec 424 Referred to Para 48
2011 (5) SCALE 173 Referred to Para 49
(1991) 4 sec 531 Referred to Para 50
F
(2011) 3 sec 139 Referred to Para 54
(1970) 2 sec 149 Referred to Para 56
(1993) 2 sec 84 Referred to Para 57
(1996) 3 sec 600 Referred to Para 58 G
(2005) 12 sec 5os Referred to Para 59
(2009) s sec 339 Referred to Para 60
(1996) 3 sec 124 Referred to Para 61 H
228 SUPREME COURT REPORTS [2011] 12 S.C.R.

A (1970) 1 sec 125 Referred to Para 68

(2010) 2 sec 786 Referred to Para 74

(201 O) 2 sec 801 Referred to Para 74

(2005) 8 sec 202 Referred to Para 78
B
(2004) 13 sec 53 Referred to Para 79

CIVIL AP PELLATE JURISDICTION : Civil Appeal No. 24
of 2009.
c From the Judgment & Order dated 28.08.2006 of the High
Court of Judicature at Allahabd in Civil Misc. Writ Petition No.
22251 of 2006.

Sudhir Chadra, Arun K. Sinha, Siddhant Asthana, Rakesh
o Singh, Sumit Sinha, Dharmesh Misra for the Appellants.

S.R. Singh, S.K. Dwivedi, Manoj K. Dwivedi, G.V.
Venkateswara Rao, Ravindra Kumar for the Respondents.

The Judgment of the Court was delivered by
E
GANGULY, J. 1. The facts giving rise to the present
appeal are simple and fall within a narrow compass. However,
they raise questions which are of public importance and legal
significance. Thus, it will be appropriate for us to state the
F questions of law at the very threshold:

A. WhEm the Government, in exercise of its emergency
powers under Section 17 of the Land Acquisition
Act, 1894 (for short the 'Act') acquires lands, which
have since vested in the State, can such an
G acquisition proceeding lapse and consequently the
land can be transferred to the owners/persons
interested in the event of default by the State, in
complying with the provisions of Section 11A of the
Act?
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 229
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.]

B. Whether the provisions of Section 17(3A) of the Act A
are mandatory or directory? In either event, would
non-compliance v/:th this Section have the effect of
invalidating or vitiating the entire acquisition
proceedings, e:ven where the land has vested in
the State in terms of Section 17(1) of the Act? B

c. Whether with the invoking of the emergency
provisions which have the effect of dispensing with
the provision of hearing under Section SA of the Act,
the Court is entitled to construe the emergency C
provisions strictly, being drastic provisions in an
exproprietory law and consider the safeguards
inbuilt in Section 17{3A) against such drastic
provisions as conditions precedent and mandatory
for a valid exercise of emergency provisions ..
D
D. Whether having regard. to the principle of
reasonableness being a basic component of
fundamental rights under the Constitution, this Court
has to con-strue. the provisions of the said Act, a
pre-constitutional law in consonance with reason E
and justice-the fundamental tenets of Article 14 and
thus arrive at a balanced interpretation of the
interest of the State as against the rights of citizens
or land owners.
r-
r

2. The appellant No.1 is a company duly incorporated
under the provisions of the Indian Gompan!es Act, 1956 and
is alleged to be the owner of the land sought to be acquired by
the respondents. The appellant's land, admec.suring about 2- G
06-1 /3-0 Bighas situated in Village Haldauni, Tehsil and
Pargana Dadri, District Gautam Budh Nagar which is abadi
land, was sought to be acquired by the appropriat3 Government.
under a notification dated 17th April, _2002 issued under Section
4{1) read with Sections 17(1) and 17(4) of the Act. Tl)is land H
230 SUPREME COURT REPORTS [2011] 12 S.C.R.

A was acquired for the planned industrial development in District
Gautam Budh Nagar through the New Okhla Industrial
Development Authority (NOIDA). The notification also stated
that the provisions of Section SA of the Act shall not apply. In
pursuance to the said notification, a declaration under Section
B 6 of the Act was published on 22nd August, 2002, declaring
the area which was required by the Government. It also stated
that after expiry of 15 days from the date of the publication of
the notification under sub-section (1) of Section 9 of the Act,
possession of the acquired land shall be taken. The appellants
c have alleged that they did not receive any notice under Section
9(1) of the Act but possession of the land was nevertheless
taken on 4th February, 2003. According to the appellants, even
after a lapsE~ of more than three and a half years after the
declaration under Section 6 of the Act, no award had been
made and published.
0
3. The appellants further alleged that, despite inordinate
delay, they were neither paid 80 per cent of the estimated
compensation in terms of Section 17(3A) of the Act at the time.
of taking of possession, nor had the Collector passed an award
::: within two years of making the declaration under Section 17(1 ),
as required by Section 11A of the Act. It was the case of the
appellants that this has the effect of vitiating the entire
acquisition proce.:idings. · Non-payment of compensation and
conduct of the Government compelled the appellants to file a
F writ petition in the High Court of Allahabad praying for issuance
of an order or direction in the nature of certiorari or any other
writ, and not to create any encumbrance or interest on the land
of the appellants. Further, they prayed that the acquisition
proceedings, insofar as they relate to the land of the appellants,
G be declared void ab initio and that the respondents be directed
to return the land under the possession of the Government to
the owners. Lastly, the appellants pray that the respondents/
. Government be directed tc pay damages for use and
occupation of the land.
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 231
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.]

4. To this writ petition, on behalf of NOIDA a counter A
affidavit was filed in the High Court, denying that the acquired
land was in fact part of abadi land. NOIDA also stated that 80
per cent compensation in terms of Section 17(3A) had been
deposited with the state authorities. The land had been
acquired for planned development of NOIDA and it was in the B
physical possession of the said authority. Possession of the
land had been taken on 4th February, 2003 and no right had
survived in favour of the appellant as the land had vested in the
Government.

5. The High Court, vide its judgment dated 28th August,
c
2006, dismissed the writ petition. The High Court relied upon
the judgment of this Court in the case of Satendra Prasad Jain
=
& Ors. v. State of UP. & Ors., [AIR 1993 SC 2517 (1993) 4
SCC 369], and dismissed the petition as the High Court held
that provisions of Section 11A of the Act are not attracted to D
proceedings for acquisition by the Government under Section
17 of the Act. However, liberty was granted to the appellants
to pray for grant of appropriate compensation in accordance
with law before the competent forum.
E
6. Aggrieved by the said order of the High Court, the
appellants have filed the present appeal impugning the
i judgment dated 28th August, 2006.
· 7. In the counter affidavit filed before this Court by NOIDA,
F
the stand in the counter filed before the High Court has been
reiterated, with an additional fact that the sector in question was
designated as industrial area, and, after development activity
was completed, allotment has been made and possession of
these industrial plots has also handed over to such
entrepreneurs/allottees. This falls under Sector 88 of the NOIDA G
City. The rest of the allegations made in the writ petition, except
the dates in question, have been disputed.

8. It has also been stated at the Bar by the State Counsel,
on the basis of the record, without filing an affidavit, despite H
232 SUPREME COURT REPORTS [2011] 12 S.C.R.

A directions given to that effect by this Court on 5.1.2009, that
1O per cent of the estimated compensation was deposited by
NOIDA with the State Government even prior to the date of the
notification under Section 4(1) read with Section 17(4) of the
Act, issued by the Government on 17.4.2002. The remaining
B 70 per cent of the estimated compensation had been allegedly
deposited vide cheque dated 8/14th July, 2002 amounting to
approximately Rs.6,66,00,000/-. As such, it is claimed there is
compliance with the provisions of Section 17(3A) of the Act.
The Award was made on 9.6.2008, which has been accepted
c by a large number of owners, i.e., 97.6 per cent of all owners.
Some of these facts have also been averred in the counter
affidavit of NOIDA filed before the High Court.

9. It may be noted that neither before the High Court nor
before this Court any affidavit was filed either by the State or
D by the Collector. The assertion of the appellant about non-
payment of compensation as contemplated under Section
17(3A) of the Act has not been controverted. Such payment has
to be tendered by the Collector to the person interested and
entitled to the same, subject to certain statutory conditions.
E Assuming there has been deposit of 80% of the compensation
amount by NOIDA with the state authorities, that does not satisfy
the requirement of Section 17(3A) of the Act. From the above
pleadings of the parties, the admitted facts that emerge from
the record can be usefully recapitulated.
F
10. The Governor of State of Uttar Pradesh on 17th April,
2002, issued a notification under Section 4(1) of the Act,
expressing the intention of the Government to acquire the land
stated in the said Notification for a public purpose, namely, for
G the planned industrial development in District of Gautam Budha
Nagar through NOIDA. Vide the same notification the
emergency provisions contained in Section 17 of the Act,
specifically Section 17(4) of the Act, were also invoked,
intimating the public at large that the provisions of Section SA
of the. Act shall not be applicable. After issuance of the
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 233
STATE OF U~P. & ANR. [ASOK KUMAR GANGULY, J.]
declaration under Section 6 of the Act, admittedly the A
possession of the land in question was taken on 4th February,
2003. Another undisputed fact is that the claimants-owners of
the land were not paid 80 per cent of the estimated
compensation prior to taking of possession in terms of Section
17(3A) of the Act. B

11. The Collector had not made or published this award
even at the time of pronouncement of the judgment of the High
Court, in Writ Petition No. 22251 of 2006, on 28 August 2006.
The High Court, in the impugned judgment, directed respondent C
No.1 to ensure that the Award is made as early as possible,
preferably within a period of three months from the date of
production of the certified copy of that order. In the counter
affidavit filed before this Court by NOIDA, it has been stated
that the Award was finally made and published on 9th June,
2008. According to the appellant, in terms of Section 11A of D
the Act, 1he Award ought to have been pronounced on or before
26th August, 2004 as the declaration under Section 6 of the
Act was dated 22nd August, 2002.

Legal Issues E

12. If I may consider certain features of the said Act and
the constitutional provisions.

13. Enactment of the said Act was rooted in the colonial
past of this country having been brought on the statute book F
on 1894 as Act 1 of 1984. With enormous expansion of State's
role in promoting welfare and developmerrt activities since
independence, acquisition of land for public purposes increased
with the passage of time. Several decades after the enactment
of the Act, came Constitution in India in 1950. Along with it G
came the concept of social and economic justice based on
expansive values of human rights. Under article 366 (10) of the
Constitution the Act was an 'existing law' made before the
commencement of the Constitution.
H
234 SUPREME COURT REPORTS [2011] 12 S.C.R.

A Article 366(10) is quoted below:-

"366 (10) "existing law" means any law, Ordinance, order,
bye-law, rule or regulation passed or made before the
commencement of this Constitution by any Legislature,
authority or person having power to make such a law,
B
Ordinance, order, bye-law, rule or regulation;"

14. Article 372 of the Constitution provides for continuance
in force of such 'existing law' and their adaptation. Article 372
(1) of the Constitution makes it clear that notwithstanding the
C provision of the Article 395, but subject to the other provisions
of the Constitution, all laws in force in the territory of India
immediately before the commencement of the Constitution shall
continue in force until altered or repealed or amended by a
competent Legislature or other competent authority.
D
15. Article 13 of the Constitution, which is a part of
Fundamental Right (Part Ill), also defines 'laws in force' under
Article 13(3)(b). Article 13(3)(b) is set out:-

"13 (3) (b) "laws in force" includes laws passed or made
E by a Legislature or other competent authority in the territory
of India before the commencement of this Constitution and
not previously repealed, notwithstanding that any such law
or any part thereof may not be then in operation either at
all or in particular areas."
F
16. The said definition of 'laws in force' under Article
13(3)(b) with certain changes, is consistent with the definition
of 'existing laws' in Article 366(10).

G 17. The said Act is thus both an 'existing law' within the
meaning of Article 366(10) and 'laws in force' within the
meaning of Article 13(3)(b) of the Constitution.

18. Article 13(1 ), which is relevant in this context, is set out
below:
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 235
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.]
"Article 13. Laws inconsistent with or in derogation A
of the fundamental rights: (1) All laws in force in the
territory of India immediately before the commencement
of this Constitution, in sc far as they are inconsistent with
the provisions of this Part, shall, to the extent of such
inconsistency, be void." B

19. Under Article 372 such laws in force can continue with
some amendments, subject to 'the other provisions of this
Constitution'. Article 13 certainly comes within 'the other
provisions of the Constitution'.
c
20. Therefore, Article 372 and Article 13 must be read
together in as much as both the articles relate to continuance
of pre-constitutional laws validly made. Article 372 permits such
continuance and Article 13 stipulates the condition on which
they can continue. Article 13 is of greater importance as it is D
part of fundamental right and makes all laws, whether pre or
post-constitution, subject to the primacy, of fundamental rights.
The continuancegf the said Act is thus made to depend on its
compliance with the mandate of Article 13. The mandate· of
Article 13(1) is clear that such law can continue provided it is E
not inconsistent with the provision of Part Ill. In the event of such
laws becoming inconsistent with the provision of Part Ill, such
laws, to the extent of their inconsistency, shall be void. This is
the mandate of the Constitution.

21. Therefore, several amendments were made to the said F
Act keeping in view the broad concept of social and economic
justice which is one of the main constitutional goals. In the
instant case I am concerned with some amendments to the
said Act by amendment Act 68 of 1984 which took effect from
24th September 1984. Among several new sections, Section G
11 (A) and 17(3A) were introduced by amendment to the said
Act.
22. From the Statement of Objects and Reasons for the
H
236 SUPREME COURT REPORTS [2011] 12 S.C.R.

A said amendment it will be clear that the said amendment was
brought into existence to give effect to the message of social
and economic justice based on the concept of Social Welfare
State on broad principles of human rights. The Statements of
Objects and Reasons are as follows:
B
"With the enormous expansion of the State's role in
promoting public welfare and economic development since
independence, acquisition of land for public purposes,
industrialization, building of institutions, etc., has become
far more numerous than ever before. While this is
c 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
D 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
E acquisition proceedings for long periods often causes
hardship to the affected parties and renders unrealistic the
scale of compensation offered to them.

2. It is necessary, therefore, to restructure the legislative
F framework for acquisition of land so that it is more
adequately informed by this objective of serving the
interests of the community in harmony with the rights of
the individual. Keeping the above objects in view and
considering the recommendations of the Law
Commission, the Land Acquisition Review Committee as
G
well as the State Governments, institutions and individuals,
proposals for amendment to the Land Acquisition Act,
1894, were formulated and a Bill for this purpose was
introduced in the Lok Sabha on the 30th April, 1982. The
same has not been passed by either House of Parliament.
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 237
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.)

Since the introduction of the Bill, various other proposals A
for amendment .of the Act have been received and they
have also been considered in consultation with State
Governments and other agencies. It is now proposed to
include all these proposals in a fresh Bill after withdrawing
the pending Bill. ... " · B

(emphasis added)

23. It is clear from the aforesaid objects and reasons that
by introducing the provisions of Section 11A and 17(3A) by way
of amendment to the Act, greater responsibility was fastened C
upon the concerned State authorities, whereby they were
obliged to make an award within two years of the declaration
made under Section 6 of the Act. Thus the rights of the land
owners were sought to be protected by balancing the same
against the rights of the State. In respect of emergency D
provisions where land is acquired without a hearing, it is
provided under Section 17(3A) that before taking possession
either under Section 17(1) and 17(~) it was obligatory upon the
authorities concerned to pay 80 per cent of the estimated
compensation to the land owners. This was also for protecting E
the right of the land owners.

24. These amendments along with Statement, Objects and
Reasons are very crucial in interpretation of some of the
amended provisions. The amendment was brought about in F
1984 and by that time, the contents and reach of Fundamental
Rights in Part Ill, as interpreted by this Court had assumed a
very expansive profile. In view of the mandate of Article 13, the
provision of the said Act must be tested on the anvil of the broad
interpretation of Fundamental Rights given by this Court. In view
of the decision of this Court in Maneka Gandhi v. Union of G
India & Another- (1978) 1 SCC 248, the interpretation of Part
Ill rights namely rights under Article 14, 19 and 21 given therein
by this Court, read with Article 141, becomes the law of the
land. Therefore, the reach of Article 13(1) is correspondingly
widened. Thus, the 1984 amendments must be construed as H
238 SUPREME COURT REPORTS [2011] 12 S.C.R.

A a conscious attempt by the legislature being aware of the
expansive interpretation of Fundamental Rights by this Court,
to bring the said act consistent with the rights of the citizens
and persons in Part Ill.

25. Despite the fact that Right to Property in terms of
8
Article 19(1 )(f) of the Constitution stood deleted from Chapter
Ill of the Constitution, vide 44th Constitutional Amendment,
1978, Article 300A of the Constitution was added by the same
Constitutional Amendment, mandating that 'no person shall be
deprived of his property save by authority of law'. This
C indicates that the Constitution still mandates that right to
property may have ceased to be a fundamental right, but it is
still protected by the Constitution and is a Constitutional right.
Constitution also provides that deprivation of that right cannot
be brought about save by authority of law.
D
26. It is accepted in every jurisprudence and by different
political thinkers that some amount of property right is an
indispensable safeguard against tyranny and economic
oppression of the Government: Jefferson was of the view that
E liberty cannot long subsist without the support of property.
"Property must be secured, else liberty cannot subsist" was the
opinion of John Adams. Indeed the view that property itself is
the seed bed which must be conserved if other constitutional
values are to flourish is the consensus among political thinkers
F and jurists. The U.S. Supreme Court in Dorothy Lynch v.
Household Finance Corporation, 405 US 538: 31 L Ed. 2d
424 held:

" .... the dichotomy between personal liberties and property
rights is a false one. Property does not have rights. People
G have rights. The right to enjoy property without unlawful
deprivation, no less than the right to speak or the right to
travel, is in truth a "personal" right, whether the "property"
in question be a welfare check, a home, or a savings
account. In fact, a fundamental interdependence exists
H between the personal right to liberly and the personal
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 239
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.]
right in property. Neither could have meaning without the A
other. That rights in property are basic civil rights has long
been recognized. J. Locke, of Civil Government 82-85
(1924); J. Adams, A Defence of the Constitutions of
Government of the United States of America, in F. Coker,
Democracy, Liberty, and Property 121-132 (1942); 1 W. B
Blackstone, Commentaries 138-140 ... " (P.552 of the
report)

27. Justice K.K. Mathew in his treatise on "Democracy,
Equality and Freedom": (1978) very categorically expressed the C
view:

"In a Society with a mixed economy, who can be sure that
freedom in relation to property might not be regarded as
an aspect of individual freedom? People without property
have a tendency to become slaves. They become the D
property of others as they have no property themselves.
They will come to say: "Make us slaves, but feed us".
Lib~rty, independence, self-respect, have th_eir roots in
property. To denigrate the institution of property is to shut
one's eyes to the stark reality evidenced by the innate E
instinct and the steady object of pursuit of the vast majority
of people. Protection of property interest may quite fairly
be deemed in appropriate circumstances an aspect of
freedom." (P.38-39)

28. Explaining the interrelation between the right of property F
and personal liberty, Learned Hand ruled that property right is
a personal right. (Learned Hand : The Spirit of Liberty)

29. In our Constitution the word 'law' finds place both in
Article 21 and in Article 300A. The term 'law' in Article 21 has G
been interpreted by the Supreme Court from time to time. In
A.K. Gopalan v. State of Madras, (AIR 1950 SC 27), the
expression 'law' meant enacted law, meaning thereby if the law
was passed by a competent legislature and was not violative
of any other provision of the Constitution, the law would be H
240 SUPREME COURT REPORTS [2011] 12 S.C.R.

A valid. But the said interpretation does no longer hold good after
the epoch making decision of this Court in Maneka Gandhi
(supra), where this Court held the law does not mean any
enacted piece. According to the majority decision in Maneka
Gandhi (supra) "law is reasonable law not any enacted piece"
B (para 85 page 338 of the report)

30. In Maneka Gandhi (supra) this Court held that the
expression 'procedure established by law' in Article 21 means
a procedure established by a just, reasonable and fair law. Thus
the concept of due process of law was incorporated in our
C constitutional framework by way of judicial interpretation even
though it was rejected by the framers.

31. As a result of incorporation of this doctrine of 'due
process' in our constitutional framework, the concept of Articles
D 14 and 21 has undergone a sea-change. In Maneka Gandhi
(supra), Justice Bhagwati, as His Lordship then was, gave a
very dynamic interpretation of Articles' 14 and 21.

32. Even prior to the decision in Maneka Gandhi (supra),
E a Constitution Bench of this Court in R.C. Cooper v. Union of
India - (1970) 1 sec 248 also gave a composite and
integrated interpretation of rights under Part Ill of the
Constitution. The question before this Court in R.C. Cooper
(supra) was whether the rights under Articles 19(1 )(f) and 31 (2)
are mutually exclusive. Answering the said question, the
F majority of the Constitution Bench, speaking through Shah, J.
analysed the different features of Fundamental Rights in para
52 at page 289 of the report and came to a conclusion that part
Ill of the Constitution "weaves a pattern of guarantees on the
texture of basic human rights. The guarantees delimit the
G protection of those rights in their allotted fields: they do not
·attempt to enunciate distinct rights." (page 289)

33. In the following paragraph 53, the learned judges further
made it clear by saying:
rl
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 241
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.]
"acquisition must be under the _authority of a law and the A
expression "law" means a law which is within the
.competence of the Legislature, and does not impair the
guarantee of the rights in Part 111."

34. In view of this clear enunciation of law by two 8
Constitution Benches of this Court and the wording of Article
300A of the Constitution, let us examine the correctness of the
impugned Judgment of the High Court which relies only on S.P.
Jain's case (supra).

35. The facts are totally different in S.P. Jain (supra). It is ·C
clear from the facts in S.P. Jain (supra) that the third
respondent, the Krishi Utpadan Mandhi Samity, in whose
favour the land was acquired for construction of market-yard,
resolved on 13th January, 1989 to withdraw from the acquisition
as it was suffering from a fund crunch and the proposed Mandhi 0
site was far away from Baraut (para 5).

36. The second round of litigation, out of which the
judgment in S.P. Jain (supra) was rendered by this Court, was
filed after the aforesaid resolution of the third respondent was E
passed. Challenging the same, the writ petition was filed before
the High Court on 10th August, 1989 wherein the writ petitioner
prayed that the State of Uttar Pradesh (the first respondent),
The Collector, Merrut (the second respondent) and the Mandhi
(the third respondent) be directed by Writ of Mandamus to F
make and publish an award in respect of the land. In that context
this Court examined various provisions of the Act and gave a
direction upon the first and second respondents to publish an
award within 12 weeks and imposed a cost of Rs.10,000/- on
the third respondent. In fact the writ petition in terms of the prayer
was allowed. G

· 37. In coming to the aforesaid conclusion this Court held
that in a case where the emergency provisions are invoked
under Section 17 of the Act, the provisions of Section 11 A will
H
242 SUPREME COURT REPORTS [2011] 12 S.C.R.

A not apply. And this Court came to an incidental finding, though
it was not strictly in issue, that taking over the possession
without making payment under Section 17 (3A) of the Act is
not illegal. This finding was not at all necessary for deciding the
issue, namely whether prayer in the writ petition for publishing
B the award was correctly made or not.

38. It has been held in the decision. of this Court in
Municipal Corporation of Delhi v. Gurnam Kaur, reported in
AIR 1989 SC 38 that when a point does not fall for decision of
C a Court but incidentally arises for its consideration and is not
necessary to be decided for the ultimate decision of the case,
such a decision does not form a part of the ratio of the case
but the same is treated as a decision passed sub silentio. The
concept of 'sub silentio' has been explained by Salmond on
Jurisprudence "12th Edition" as follows:
D
"A decision passes sub silentio, in the technical sense that
has come to be attached to that phrase, when the particular
point of law involved in the decision is not perceived by
the Cou1i or present to its mind. The Court may consciously
E decide in favour of one party because of point A, which it
·considers and pronounces upon. It may be shown,
however, that logically the Court should not have decided
in favour of the particular party unless it·also decided point
B in his favour; but point B was not argued or considered
F by the Court. In such circumstances, although point B was
logically involved in the facts and although the case had a
specific outcome, the decision is not an authority on point
B. Point B is said to pass sub silentio." (page 43)

39. The aforesaid passage has been quoted with approval
G by the three Judge Bench in Gurnam Kaur (supra). This Court
in Gurnam Kaur (supra), in order to illustrate the aforesaid
proposition further relied on the decision of the English Court
in Gerard v. Worth of Paris Ltd., reported in 1936 (2) All
England Reports 905. In Gerard, the only point argued was on
H the question of priority of the claimant's debt. The Court found
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 243
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.]
that no consideration was given to the question wheth.er a A
garnishee order could be passed. Therefore, a point in respect
of which no argument was advanced and no citation of authority
was made is not binding and would not be followed. This Court
held that such decisions, which are treated having been passed
sub silentio and without argument, are of no moment. The Court B
further explained the position by saying that one of the chief
reasons behind the doctrine of precedent is that once a matter
is fully argued and decided the same should not be reopened
and mere casual expression carry no weight. In Gurnam Kaur
(supra) this Court conclusively held that not every passing c
expression of a Judge, however eminent, can be treated as "ex
cathedra statement, having the weight of authority" (see para
12 page 43)

40. Similarly, it has also been held by the majority opinion
in Constitution Bench of this Court in the case of Madhav Rao D
Jivaji Rao Scindia v. Union of India, reported in AIR 1971 SC
530 that "it is difficult to regard a word, a clause or a sentence
occurring in a judgment of this Court, divorced from its context,
as containing a full exposition of the law on a question when
the question did not even fall to be answered in that judgment." E
(page 578 of the report)

41. In another Constitution Bench decision of this court in
Padma Sundara Rao (Dead) & Ors., v. State of Tamil Nadu
& others reported in (2002) 3 SCC 533, similar views have F
been expressed by this Court in para 9, at page 540 of the
report wherein the unanimous Constitution Bench of this Court
opined:

"9. Court should not place reliance pn decisions without
discussing as to how the. factual situation fits in with the G
fact situation of the decision on which reliance is placed.
There is always peril in treting the words of a speech or
judgment as though they are words in a legislative
enactment, and it is to be remembered that judicial
utterances are made in the seting of the facts of a H
244 SUPREME COURT REPORTS [2011] 12 S.C.R.

A particular case, said Lord Morris in Herrington V. British
Railways Board - (1972) AC 877. Circumstantial flexibility,
one additional or different fact may make a world of
difference between conclusions in two cases."

B 42. The reason behind enacting Section 17 (3A) of the Act
is clear from the Statement of Object and Reasons extracted
above. It is clear therefore the provisions were incorporated in
order to strike a balance between the rights of the State and
those of the land owner. A clear legislative intent in Section
17(3A) was thus expressed that before taking possession of
C any land under sub-section (1) or sub-section (2) of Section 17,
the Collector shall tender payment of 80% of the estimated
compensation for such land to the persons interested and
entitled thereto. This is the clear mandate of law.

O 43. In view of the principles enunciated in R.C. Cooper
(supra) and Maneka Gandhi (supra), reasonableness in law
has to be its implicit content. Here no challenge to the
reasonableness of Section · 7 (3A) is either argued or
considered by this Court. But when law gives a specific
E mandate on the State to tender the payment before taking
possession under Section 17(1) and Section 17(2) by invoking
the emergency powers, to hold that the taking over of
possession without complying with that mandate is legal is
clearly to return a finding which is contrary to the express
F provision of the statute. Such a finding is certainly not on a
reasonable interpretation of Section 17 (3A). Therefore, the
casual observation in para 17 (page 375) in S.P. Jain (supra)
to the effect of taking possession of land under emergency
provision and without making the payment mandated under
G Section 17(3A) is a valid mode of taking possession is in clear
violation of Section 17(3A) and be regarded made per incuriam
and does not have the effect of a binding precedent.

44. If I look at the emergency provisions of the statute which
empowers the State to acquire land by dispensing with the
H provisions of making an enquiry it is clear that the said provision
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 245
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.]
is a drastic provision. It is well-known that the provisions of the A
said Act are expropriatory in nature and must be strictly
construed. In that expropriatory legislation, Section 17 is a very
drastic provision as Section 17 of the Act seeks to authorize
acquisition and taking over of possession without hearing the
land owner. This Court held that the right of hearing which is B
given under Section SA of the Act and which is taken away in
view of the emergency acquisition is a very valuable right and
is akin to a fundamental right. (See Dev Sharan & Ors. v. State
of UP.·& Ors. - JT 2011 (3) SC 102). Therefore, when that right
is taken away and the land is acquired by invoking the c
emergency provision of Section 17(3A) to hold that even the
safeguards provided under Section 17(3A) are not mandatory
and taking over of possession without complying with the
provisions of Section 17 (3A) is not illegal is to overlook the
clear provisions of the Act and come to a finding which is
0
contrary to the Act. This Court is unable to accept that the taking
over of the possession by invoking Section 17(1) or Section
17(2) of the Act and without making the payment under Section
17(3A) is legal taking over of possession.

45. This Court is of the view that Section 17(3A) is not an E
isolated provision. Section 17(3A) figures very prominently as
part of the statutory mechanism in Section 17 of the Act which
confers special powers in cases of urgency. Section 17 has
f.our sub sections and all these sub sections comprise a
composite mechanism and are closely intertwined. Power F
under one sub section cannot be exercised without complying
with the conditions imposed by the other sub section. For a
proper appreciation of this question, section 17 with all its sub
sections are set out:
G
"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 H
246 SUPREME C00RT REPORTS [2011] 12 S.C.R.

A 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
B
becomes necessary for any Railway administration to
acquire the immediate possession of any land for the
maintenance of their traffic or for the purpose of making
thereon a river-side or ghat station, or of providing
convenient connection with or access to any such station,
c or the appropriate Government considers it necessary to
acquire the immediate possession of any land for th~
purpose of maintaining any structure or system pertaining
to irrigation, water supply, drainage, road communication
or electricity, the Collector may, immediately after the
D 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 i~overnment free from all
encumbrances:
E
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
F 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
G 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
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 247
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.]
trees and the amount of such other damage shall be A
allowed for in awarding compensation for the land under
the provisions herein contained.

(3A) Before taking possession of any land under sub-
section (1) or sub-section (2), the Collector shall, without
8
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
c
(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 D
section 31, sub-section (2), (except the second proviso
thereto), shall apply as they apply to the payment of
compensation und~r that section.
/ .

(58) The amount paid or deposited under sub-section (3A),
shall be taken into account for determining the amount of E
compensation required to be tendered under section 31,
and where the amount so paid or deposited exceeds the
compensation awarded by the Collector under section 11,
the excess may, unless refunded within three months from
the date of the Collector's award, be recovered as an F
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 G
shall not apply, and, if it does so direct, a declaration may
be made under section 6 in respect of the land at any time
after the date of publication of the notification under
section 4, sub-section (1 )."
H
248 SUPREME COURT REPORTS [2011] 12 S.C.R.

A 46. Sub-section (3A) of Section 17 is linked with sub
section (2) of Section 31. Sub section (2) of Section 31 runs
thus:
"(2) If they shall not consent to receive it, or if there be no
person competent to alienate the land, or if there be any
B
dispute as to the title to receive the compensation or as
to the apportionment of it, the Collector shall deposit the
amount of the compensation in the Court to which a
reference under section 18 would be submitted:

c Provided that any person admitted to be interested may
receive such payment under protest as to the sufficiency
of the amount:

Provided also that no person who has received the amount
D otherwise than under protest shall be entitled to make any
application under section 18:

Provided also that nothing herein contained shall affect the
liability of any person, who may receive the whole or any
part of any compensation awarded under this Act, to pay
E the same to the person lawfully entitled thereto."

47. It is thus clear that s.ub section (3A) of Section 17 read
with sub section (2) of Section 31 of the Act form a composite
statutory scheme. The said scheme has been legislatively
F framed to balance the promotion of public purpose in
acquisition with rights of the individual whose land is acquired.
This is clear from the Statement of Objects and Reasons which
was kept in view for bringing about the amendment of the said
Act by Amendment Act 68 of 1984. By the said amendment
G Section 17(3A) was brought on the statute.

48. Therefore, the provision of Section 17(3A) cannot be
viewed in isolation as it is an intrinsic and mandatory step in
exercising special powers in cases of emergency. Sections
17(1) and 17(2) and 17(3A) must be red together. Section 17(1)
H and 17(2) cannot be worked out in isolation.
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 249
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.]
49. It is well settled as a canon of construction that a statute A
has to be read as a whole and in its context. In Attorney General
v. HRH Prince Earnest Augustus of Hanover, reported in
(1957) 1 AER 49, Lord Viscount Simonds very elegantly stated
the principle that it is the duty of Court to examine every word
of a statute in its context. The learned Law Lord further said B
that in understanding the meaning of the provision, the Court
must take into consideration "not only other enacting provisions
of the same statute, but its preamble, the existing state of the
law, other statutes in pari material, and the mischief which I can,
by those and other legitimate means, discern that the statute c
was intended to remedy" (page 53 of the report).

50. Lord Normand expressed the same view differently and
Which is equally pertinent and worth remembering and parts of
which are excerpted below:
D
"The key to the opening of every law is the reason and spirit
of the law - it is the animus imponentis, the intention of
the law maker, expressed in the law itself, taken as a
whole. Hence to arrive at the true meaning of any particular
phrase in a statute, that particular phrase is not to be E
viewed detached from its context ... meaning by this as
well the title and the preamble as the purview or enacting
part of the statute" (page 61 of the report).

51. These principles have been followed by this Court in
F
its Constitution Bench decision in Union of India v.
Sankalchand Himatlal Sheth & anr., [(1977) 4 SCC 193). At
page 240 of the report, Justice Bhagwati, as His Lordship then
was, in a concurring opinion held that words in a statute cannot
be read in isolation, their colour and content are derived from
their-context and every word in a statute is to be examined in G
its context. His Lordship explained that the word context has
to be taken in its widest sense and expressly quoted the
formulations of Lord Viscount Simonds, set out above. (See
para 54, P.241 of the report).
H
250 SUPREME COURT REPORTS [2011] 12 S.C.R.

A 52. In this connection, if I compare the normal mode of
vesting of acquired property under Section 16 of the Act with
the mode of vesting under emergency provisions of Section 17
thereof, I will discern that under the said Act the vesting of
acquired property in the State presupposes compliance with
B two conditions. Under Section 16, first there has to be an award
under section 11 and then there has to be taking over of
possession. Only thereupon the land shall vest absolutely in the
state, free from all encumbrances. Section 16 of the act which
makes it clear is as under:
c "16. Power to take possession.- When the Collector has
made an award under section 11, he may take possession
of the land, which shall thereupon vest absolutely in the
Government, free from all encumbrances.

D 53. But in case of emergency acquisition, possession is
taken before the making of an award. This is clear from section
17(1) and section 17(2). But the intention of the legislature is
that even though the award is not made, payment mandated
under Section 17(3A) must be made before possession is
E taken either under Section 17(1) and 17(2). Therefore this
provision relating to payment under Section 17(3A) is a
condition precedent to the vesting of land under Section 17( 1)
and 17(2). In the later part of this judgment, I shall discuss some
authorities which have opined that when poss.ession is illegally
F taken over without following the conditions precedent for taking
such possession, vesting of a property in law does not take
place in the authority which thus illegally enters upori the
property.

54. Judicial opinion is uniformly in favour of strict
G construction of an expropriatory law which admittedly Land
Acquisition Act, 1894 is. Reference in this connection can be
made to the observations of Cottenham, L.C. in Webb v.
Manchester and Leeds Rail Co., [(1839), 4 Myl. & Cr.116]
where the Lord Chancellor held:
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 251
STATE OF_U.P. & ANR. [ASOK KUMAR GANGULY, J.]
"The pow~rs are so large - it may be necessary for the A
benefi!A'f the people - but they are so large, and so
injurious to the interests of,the individuals, that I think it is
the duty 9t--every court to keep them most strictly within
those powers; and if there be any reasonable doubt as to
the extentof their powers, they must go elsewhere and get B
enlarged powers; but they will get none from me by way
of construction of their Act of Parliament."

55. In the Indian context, as early as in 1916. Judicial
committee of Privy Council in Secretary of State for India v.
Birendra,Kishore Manikya (ILR 44 Cal 328), speaking through C
Lord Dunedin held, 'the Act is drastic in its character and makes
invasion in private rights ... matter must be brought "strictly within
its provisions".' (p 343)

56. Cripps in "The Law of Compensation for Land D
Acquired under Compulsory Powers" (8th ed., Stevens and
Sons, Ltd.) has quoted the above opinion of the Lord
Chancellof and further dealt with this aspect of the matter at
page 27 of th~ book wherein the learned author said, "Where
the promoters of a public undertaking have authority from E
Parliament to interfere with private property on certain terms,
any person whose property is interfered with by virtue of that
authority has a right to require that the promoters shall comply
with the letter of the enactment, $0 far as it makes provisiori
on his behalf." Again at page 100, the learned author has F
stressed the ·above position very·strongly to the following effect:-

"lf no consent has been given, and the promoters have not
complied with the statutory conditions .as to entry on lands,
they can be proceeded against as trespassers by any
owner who has an interest in the lands. The principle is that G
all statutory conditions which have been· imposed as
condition precedent to an entry on lands must be fulfilled."

57. In support of this aforesaid proposition, the learned
H
252 SUPREME COURT REPORTS [2011] 12 S.C.R.

A author has relied on Parkdale Corporation v. West [(1887), 12
App. Cas. 602, 614].

58. And again at page 173, the learned author opines:

"It must be borne in mind that promoters have no powers,
B other than those comprised in their special Acts and the
Acts therewith incorporated, to enter upon or take lands
against the wish of the owners. It is incumbent on
promoters to comply with all conditions and limitations
imposed upon them, and, unless they have so complied,
c any interested owner can restrain them by injunction from
taking, as against him, further proceedings".

I am in respectful agreement with the aforesaid principles.

59. I find that same principles have been laid down in
D Cooley's 'A Treatise on the Constitutional Limitations' Volume
II, (Eight Edition). Cooley while dealing with the concept of
'Eminent Domain' in Chapter 15 opined (p.1120):

" ... whenever in pursuance of law the property of an
E individual is to be divested by proceedings against his will;
a strict compliance must be had with all the provisions of
law which are made for his protection and benefit, or the
proceeding will be ineffectual. Those provisions must be
regarded as in the nature of conditions precedent, which
F are not only to be observed and complied with before the
right of the property owner is disturbed, but the party
claiming authority under the adverse proceeding must
show affirmatively such compliance".

(emphasis added)
G
60. The learned author explained the aforesaid proposition
with _certain illustration which very closely fit in with the legal
framework with which I am concerned in this case. The learned
author said:
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 253
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.]
"So if the statute vests the title to lands appropriated in the A
state or in a corporation oh payment therefore being made,
it is evident that, under the rule stated, the payment is a
condition precedent to the passing of the title."

(Emphasis added) B

61. Reference in this connection should be made to the
decision of Supreme Court of Vermont in Henry B. Stacey v
The Vermont Central Railroad Co, (27 Vt. 39). In that case,
while discussing the concept of Eminent Domain, the court after
referring to various decisipns held "that this provision (relating C
to deposit of the appraised value) should be considered in the
nature of a condition precedent, not only to the acquisition of
the legal title to the land, but also to the right to enter and take
the permanent possession of the land for the use of the
corporation." D

62. The expression condition precedent has been defined
in Words and Phrases (permanent edition, Vol. 8. St. Paul,
Minn, West Publishing Co., 1951, p 629) as ttf6se which 'must
be punctually performed before the estate can vest'. Similarly, E
in Bouvier's Law Dictionary, (A Concise encyclopedia of the
Law, Rawle's Third Revision, Vol. 1, Vernon Law Book
Company, 1914, p 584), virtually the same prihciples have
been followed. The learned author expressed this even more
strongly by explaining-that:
F
"The effect of a Condition precedent is, when performed,
to. vest an estate, give rise to an obligation, or enlarge an
estate already ve~ted; [ ... ]. Unless a condition precedent
be performed, no estate will vest; and this even where the
performance is prejvented by the act of God or of the law; G
[... ]."
63. In Wharton's Law Lexicon, it ha,s been held that
conditions precedent in their primary meaning are those events,
but for the happenings of which rights will not arise. (Wharton's H
254 SUPREME COURT REPORTS (2011] 12 S.C.R

A Law Lexicon, 1976, reprint; p 228).
,
64:' In the case of Gujarat Electricity Board v Girdhar/al
Motilal And Anr (AIR 1969 SC 267), this court while dealing
· with the power of the State Electricity Board to purchase th'e
B property of the licensee held that right can be exercised only
in the manner provided in the act and not in any other way. The
court held that since this power of the Board under the law is
to interfere with the property rights of the licensee, such power
·will have to be strictly construed. In laying down the said
C principle this court relied on the well-known doctrine in case of
Nazir Ahmad v King Emperor [AIR 1936 PC 253] that when a
power is to be exercised in a manner it has to be exercised in
that manner alone and in no other manner. In two other recent
judgments, this court reiterated the same principle, and held
that expropriatory statute, as is well known, must be strictly
D construed. [See Hindustan Petroleum corpn. Ltd., v. Darius
Shapur Chenai and others reported in (2005) 7 sec 627]. The
said principle has also been followed by this Court in the case
of. Bharat Petroleum Corporation Ltd. v Maddula Ratnaval/i
and Others [(2007) 6 SCC 81] where learned judges relying
E on Hindustan Petroleum reiterated the same principle of strict
construction of expropriatory legislation (p 91 ).

65. In an earlier decision Jilubhai Nanbhai Khachar and
others v State of Gujarat and Anr [1995 Suppl (1) SCC 596],
F this Court while dealing with the concept of eminent domain and
right to property in Article 300A held as follows {para 50, p.
628):.
"50. 'All modern constitutions of democratic character
provide payment of compensation as the condition to
G exercise the right of expropriation. Commonwealth of
Australia Acf. a Frecnh Civil Code (Article 545), the 5th
Amendment of the Constitution of USA and the Italian
constitution provided principles of "just terms", "Just
indemnity", Just compensation" as reimbursement for the
H property taken, have been provided for. As pointed out in
I
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 255
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.]
M~lsbury's Law of England that "when Parliament has A
authorized the compulsory acquisition of land it is a)most
invariably provided for payment of a money compensation
to the person deprived of his interest in it."
66. On the basis of aforesaid principles, I hold that the
8
requirement of payment under section 17(3A) is in the nature
of condition precedent clamped by the statute before taking
possession under emergency acquisition by the State. The
vesting contemplated either under Section 17(1) or 17(2) of this
Act is conditioned upon payment mandated under Section
17(3A). This is clear from the opening words of Section 17(3A) C
,, namely "before taking possession of any land either under sub-·
section (1) or (2), Collector shall ....... tender payment."
Therefore, the eminent domain concept is subject to the
aforesaid statutory condition and must be read subject to due
process concept introduced in our constitutional law in Maneka D
Gandhi (supra). If I read, Section 17(3A) as I must, consistently
with the constitutional doctrine of due process as articulated in
the expression 'a_uthority of law' under Article 3COA whi.~f)
constitutionally protects deprivation of a right to property, save
by authority of law, the conclusion in my judgment is E
inescapable that the requirement of section 17(3A) constitutes
the authority of law within the meaning of Article 300A.
Therefore, in the context of aforesaid statutory dispensation and
constitutional provision, the debate whether the provision of
section 17(3A) is mandatory or directory does not present F
much difficulty for the reasons discussed above and also for
the following reasons.
67. Basically, the language used is 'shall' which primarily
indicates mandatory compliance. That apart, in the context of
the nature of statute which is admittedly expropriatory in . G
character and the nature of the statutory requirement under
section 17(3A) which is clearly and undoubtedly a condition
precedent to the taking over of possession in emergency
acquisition, there can be no doubt that the requirement under
section 17(3A) is mandatory. H
256 SUPREME COURT REPORTS [2011] 12 S.C.R.

A 68. Section 17(3A) has been enacted for protecting the
rights of deprived land-loser in an emergency acquisition. The
said provision is therefore based on reason, justice and
fairplay. Since the said provision has been introduced by way
of an amendment as noted above to balance the right of the
B state as against the interest of the land-loser, the State's power
of eminent domain is expressly made subject to aforesaid
statutory provision as also the constitutional right to property
protected under Article 300A. Right to property has been
pronounced as fundamental human right by this Court in
c Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke
& Chemicals Ltd., and others reported in (2007) 8 SCC 705.
69. The expression 'law' which figures both in Article 21
and Article 300A must be given the same meaning. In both the
cases the law would mean a validly enacted law. In order to be
D valid law it must be just, fair and reasonable having regard to
the requirement of Article 14 and 21 as explained in Maneka
Gandhi (supra). This is especially so, as 'law' in both the
Articles 21 and 300A is meant to prevent deprivation of rights.
Insofar as Article 21 is concerned, it is a Fundamental Right
E whereas in Article 300A it is a constitutional right which has
been given a status of a basic human right.

70. I, therefore, hold that Section 17(3A) of the Act is a law
which has been enacted to prevent deprivation of property
F rights guaranteed under Article 300 A. This provision of Section
17(3A) must therefore be given a very broad interpretation to
mean a law that gives a fair, just and reasonable protection of
the land-loser's constitutional right to property.

71. Therefore, the provisions of section 17(3A) read with
G Article 300A must be liberally construed. Reference in this
connection be made to the majority opinion in the Constitution
Bench decision in the case of Madhav Rao Jivaji Rao Scindia
(supra). Shah, J., speaking for the majority opinion observed
(para 33, p 576):
H
DELHI AIR-TECH SERVICES PVT. LTD. & ANR. v. 257
STATE OF U.P. & ANR. [ASOK KUMAR GANGULY, J.]
"The court will interpret a statute as far as possible, A
agreeably to justice and reason and that in case of two or
more interpretations, one which is more reasonable and
just will be adopted, for there is always a presumption
against the law maker intending injustice and unreason.
The court will avoid imputing to the Legislature an intention B
to enact a provision which flouts notions of justice and
norms of fairplay, unless a contrary intention is manifest
from words plain and unambiguous. A provision in a statute
will not be construed to defeat its manifest purpose and
general values which animate its structure. In an avowedly c
democratic polity, statutory provisions ensuring the security
of fundamental human rights including the right to property
will, unless the contrary mandate be precise and
unqualified, be construed liberally so as to uphold the right.
These rules apply to the interpretation of constitution and 0
statutory provisions. alike."
72. On the above premise, taking over a possession of
land without complying with the requirement of section 17(3A)
is clearly illegal and in clear violation of the statutory provision
which automatically violates the constitutional guarantee under E
Article 300A. A passing observation to the contrary in S.P. Jain
(supra) must pass sub silentio being unnecessary in the facts
of the case as otherwise such a finding is per incuriam, being
in violation of the statute. A fortiorari the said finding cannot be
sustained as a binding precedent. F

73. For the reason aforesaid, this Court holds that the writ
petition cannot be dismissed in view of the decision in S. P. Jain
(supra) which was decided on totally different facts. The
judgment of the High Court is set aside. G
74. This court further holds that in all cases of emergency
acquisition under section 17, the requirement of payment under
section 17(3A) must be complied. with. As the provision of
section 17(1) and section 17(2) cannot be worked out without
H·
258 SUPREME COURT REPORTS. [2011] 12 S.C:R.

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

75. However, coming to the question of relief in the instant
case, the Court has to take note of the fact situation.
C Admittedly, possession of the land has been taken and same
has been handed over to the beneficiary on which construction
had taken place and third party interests had arisen. It is very
difficult to put the hands of the clock back now, despite the
aforesaid declaration of law by the Court. This Court, therefore,
D has to think in terms of adequately compensating the
appellants. In the special facts of this case, compensation in
respect of the land acquired insofar as the appellants are
concerned cannot be decided onJhe basis of the date of notice
under Section 4.
E
76. In view of the discussions above, the compensation has
to be fixed with regard to the value of the appellant's land as
on the date of filing of the writ petition which was in March, 2006
before the High Court. The section 4 notification must be
F deemed to have been issued on March 1, 2006 and the
compensation must be worked out on that basis. An award on
that basis must be passed by the Collector within four months
. from date and the appellants are given liberty, if so advised, to
challenge the same in appropriate proceedings. All questions
G relating to compensation in aforesaid proceeding are kept
open for both the parties. As the respondent - the acquiring
authority has proceeded illegally in the matter, it must pay costs
of Rupees one lakh in favour of Allahabad High Court Mediation
Centre within a period of six weeks from date. The State is at
H liberty to recover the same from the erring officials.
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 259
STATE OF U.P. & ANR.
77. The appeal is, thus, allowed with costs as aforesaid. A

SWATANTER KUMAR, J. 1. I had the advantage of
reading the well-written judgment of my learned brother, A.K.
Ganguly, J. Regretfully but respectfully, I am unable to persuade
myself to concur with the findings recorded and the exposition B
of law expressed by my learned brother. In order to discernly
state the reasons for my expressing a contrary view and
dismissing the appeals of the appellants on merits, it has
become necessary for me to state the facts as well as the law
in some detail. It has been necessitated for the reason that
complete facts, as they appear from the record and the facts c
which were brought to the notice of the Court during the course
of hearing by the respondents, supported by the official records,
duly maintained by them in normal course of their business, have
not, in their entirety, and correctly been noticed in the judgment.
I am also of the considered view that, in fact, the questions D
framed (particularly question 'D') in the judgment by my learned
brother neither so comprehensively arise in the facts and
· circumstances of the present case nor were argued 1n that
manner and to that extent before the Court. Be that as it may,
I consider it necessary to restate the facts, deal with different E
legal aspects of the case and then record the conclusions which
would even provide answers to the questions framed by my
learned brother at the very beginning of his judgment. Before
I proceed to do so, let me briefly but, inter alia, state the
reasons for my taking a view contrary to the one recorded in F
the judgment of my learned brother:

I. I have already stated that complete and correct
facts, in their entirety, as they emerge from the
records produced before the Court (including the G
trial court record) as well as the documents referred
to during the course of arguments by the
respondents have not been correctly noticed. The
records refF?rred to have been maintained by the
authorities in the normal course of their business
H
260 SUPREME COURT REPORTS [2011) 12 S.C.R.

A and their authenticity can hardly be questioned.
These documents have been executed inter se
various institutions/departments, including the
Collector's office, who discharges quasi-judicial
functions under the Act.
B
II. The judgment of this court in the case of Satendra
Prasad Jain & Ors. v. State of U.P. & Ors. [AIR
1993 SC 2517 = (1993) 4 SCC 369), in my humble
view, cannot be ignored and the principle stated
therein cannot be avoided on the ground that the
c judgment was sub si/entio. This I say so, for the
reason that it is not a decision in which the point
was hot raised, argued and perceived by the Court.
On the contrary, the issue in relation to the
consequences of non-payment flowing from
D Section 17(3A) of the Land Acquisition Act (for
short, the 'Act') was specifically noticed by the
three-Judge Bench in paragraph 11 of the
judgment. It was discussed in some detail and a
definite finding was recorded thereby bringing the
E judgment well within the dimensions of good
precedent. Thus, I, with respect, would prefer to
follow the larger Bench judgment rather than
ignoring the same for the reasons stated by my
learned brother in his judgment do not apply in the
F facts of the present case.

Ill. The ratio decidendi of the judgment of this Court
in the case of Satendra Prasad Jain (supra) is
squarely applicable to the present case, on facts
and law.
G
IV. It has not been correctly noticed in the judgment that
80 per cent of due compensation, which even the
appellants did not dispute during the course of
hearing, had not been tendered or paid to the
H claimants, as contemplated under Section 17(3A)
DELHI Al RTE CH SERVICES PVT. LTD. & ANR. v. 261
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
of the Act. From the facts recorded hereinafter, it A
is clear that within the prescribed period, the
payments were deposited with the State office of
the Collector/competent authority and it was for the
State to distribute the money in accordance with the
provisions of the Act. It is not only the scheme of B
the Act but also an established practice that the
amounts are disbursed by the Collector to the
claimants and not directly by the beneficiary, for
whose benefit the land had been acquired. The
beneficiary had discharged its obligation by c
depositing, in fact, in excess of 80 per cent of due
compensation with the competent authority. De
hors the approach that one may adopt in regard to
the interpretation of Section 17(3A), on facts th,e
notification is incapable of being invalidated for
D
non-compliance of the said Section.

v. The doctrine of strict construction does not per se
mandate thaJ its application excludes the
simultaneous application of all other principles of
interpretation. It is permissible in law to apply the E
rule of strict construction while reading the
provisions of law contextually or even purposively.
The golden rule of interpretation is the rule of plain
language, while preferring the interpretation which
furthers the cause of the Statute rather than that F
which defeats the objects or purposes of the Act.

VI. Non-providing of consequences under Section
17(3A) of the Act, in contradistinction to Sections
6 and 11 of the same Act, in my considered view
G
is largely the determinative test for proper and
judicious interpretation of Section 17(3A).
'
VII. The judgment by my learned brother does not
consider the judgments of the Constitution Bench,
H
262 SUPREME COURT REPORTS [2011] 12 S.C.R.

A the larger Bench and even the equi-Bench, which
have to some extent a direct bearing on the matters
in issue before us. In this regard, reference can be
made to the Constitution Bench judgment of this
Court in the case of Offshqre Holdings Pvt. Ltd. v.
Bangalore Development Authority & Ors. [(2011)
.B
3 SCC 139], the three-Judge Bench judgment in the
case of Tika Ram & Ors. v. State of UP. & Ors.,
[(2009) 10 sec 689] and particularly the judgment
of another equi-Bench of this Court in the case of
Banda Development Authority, Banda v. Moti Lal
c Agarwal & Ors. [2011 (5) SCALE 173], to which my
learned brother (Ganguly, J.) was a member. The
latter case, inter alia, dealt with a question of
lapsing of proceedings under Section 11A on the
ground that the possession of the property had not
D
been taken as required under that provision. While
rejecting such a contention in that case, the Court
observed that if the beneficiary of the acquisition is
an agency or instrumentality of the State 80 per cent
of the total compensation is deposited in terms of
E Section 17(3A) and substantial portion of the
acquired land has been utilized in furtherance of the
particular public purpose, it could reasonably be
presumed that the possession of the acquired land
had been irrevocably taken. The Court then held
F that relief to the appellants (like the appellants in the
present case) of invalidating the acquisition
proceedings and restoring the land could not be
granted.

G VIII. The 44th Constitutional Amendment, on the one
hand, omitted Article 19(1)(f) and Article 31 while
introducing Articles 31A and 300A to the
Constitution of India on the other. Right to property
was deleted as a fundamental right in the
H Constitution. Thus, this right cannot be placed on
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 263
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
equi terms, interpretatively or otherwise, to the pre- A
constitutional amendments. The right to eminent
domain would operate on a different sphere,
interpretation and effect, pre and post constitutional
repealments of these Articles and introduction of
Article 300A of the Constitution. Even on this 8i
aspect, I respectfully disagree with the conclusions
recorded by my learned brother (Ganguly, J.).

FACTS:

2. Appellant No.1 is a company duly incorporated under C
the provisions of the Indian Companies Act, 1956 and is alleged
to be the owner of the land sought to be acquired by the
respondents. The land of the appellant, admeasuring about 2-
06-1 /3-0 Bighas situated in Village Haldauni, Tehsil and
Pargana Dadri, District Gautam Budh Nagar, which is an abadi o
land, was sought to be acquired by the appropriate Government
under a notification dated 17th April, 2002 issued under Section
4(1)Jead with Sections 17(1) and 17(4) of the, Act. This land
was acquired for the planned industrial development in District
Gautam Budh Nagar· through the New Okhla Industrial E
Development Authority (NOIDA). The notification also stated
that the provisions of Section SA of the Act shall not apply. In
pursuance to the said notification, a declaration under Section
6 of the Act was published on 22nd August, 2002, declaring
the area which was required by the Government. It also stated F
that after expiry of 15 days from the date of the publication of
the notification possl!lssion of the acquired land shall be taken
under sub-section (1) of Section 9 of the Act. The appellants
have alleged that they did not receive any notice under Section
9(1) of the Act but possession of the land was nevertheless
taken on 4th February, 2003. According to the appellants, even G
after lapse of more than three and a half years after publication
of declaration under Section 6 of the Act, the award had not
been made and published.

H
264 SUPREME COURT REPORTS [2011) 12 S.C.R.

A 3. The appellants also alleged in the petition that, despite
inordinate delay, they were neither paid 80 per cent of the
estimated compensation in terms of Section 17(3A) of the Act
at the time of taking of possession, nor had the Collector
passed an award within two years of making the declaration
under Section 17(1), as required by Section 11A of the Act. It
8
was the case of the appellants in the writ petition that this has
the effect of vitiating the entire acquisition proceedings. Non-
payment of the compensation and conduct of the Government
compelled the petitioners to file a writ petition in the High Court
C of Allahabad praying for issuance of an order or direction in
the nature of certiorari or any other writ, not to create any
encumbrance or interest on the land of the petitioners. Further,
they prayed that the acquisition proceedings, in so far as they
relate to the land of the petitioner, be declared void ab initio
and that the respondents be directed to return the land from the
D possession of the Government to the owners. Lastly, the
petitioners prayed that the respondents/Government be directed
to pay damages for use and occupation of the land.

4. To this writ petition, the respondents had filed a counter
E affidavit in the High Court, denying that the acquired land was
in fact a part of the abadi land. The respondent-authority has
also stated that 80 per cent compensation in terms of Section
17(3A) of the Act had been deposited with the authorities. The
land had been acquired for planned development of NOIDA and
F was in the physical possession of the said authority.
Possession of the land had been taken on 4th February, 2003
and no right had survived in favour of the petitioners as the land
vested in the Government.

5. The High Court, vide its judgment dated 28th August,
G 2006, dismissed the writ petition. The High Court relied upon
the judgment of this Court in the case of Satendra Prasad Jain
(supra) and dismissed the petition holding that the provisions
of Section 11A of the Act are not attracted to proceedings for
acquisition taken by the Government under Section 17 of the
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 265
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.] -
Act. However, liberty was granted to the petitioners to pray for A
grant of appropriate compensation in accordance with law
before the competent forum.

6. Aggrieved by the said order of the High Court, the
appellants have filed the present appeal impugning the
B
judgment dated 28th August, 2006.

7. In the counter affidavit filed by respondent No.2 before
this Court, the submissions made before the High Court have
been reiterated with an additional fact that the sector in question
was designated as industrial area and after the development C
activity was completed, allotment has been made and
possession of these industrial plots has also been handed over
.to such entrepreneurs/allottees. This land falls under Sector 88
of the NOIDA City. The rest of the allegations made in the writ
petition, except the dates in question, have been disputed. D

8. It has also been stated at the Bar, on the basis of the
record maintained in regular course of its business by the
respondent~authority, that 10 per cent of the estimated
compensation was deposited by the Authority with the State E
Government even prior to the date of the notification under
Section 4(1) read with Section 17(4) of the Act, issued by the
Government, i.e., 17th April, 2002. The remaining 70 per cent
of the estimated compensation had allegedly been deposited
vide cheque dated 8/14th July, 2002 amounting to
F
approximately Rs. 6,66,00,000/-. As such, there is complete
compliance with the provisions of Section 17(3A) of the Act by
the authority concerned. The Award was made on 9th June,
2008, which has been accepted by a large number of owners,
i.e., 97.6 per cent of all owners. Some of these facts have also
been averred in the counter affidavit filed before the High Court. G

9. From the above pleadings of the parties, the admitted
facts that emerge from the record can be usefully recapitulated.
The Governor of the State of Uttar Pradesh on 17th April, 2002,
issued a notification under Section 4( 1) of the Act, expressing H
266 SUPREME COURT REPORTS [2011] 12 S.C.R.

A the intention of the Government to acquire the land stated in
the said Notification for a public purpose, namely, for the
planned industrial development in District Gautam Budha Nagar
through NOIDA. Vide the same notification the emergent
provisions contained in Section 17 of the Act, specifically
B Section 17(4), were also invoked, intimating the public at large
that the provisions of Section 5A of the Act shall not be
applicable. After issuance of the declaration under Section 6
of the Act, admittedly the possession of the land in question
was taken on 4th February, 2003. However, it remains a matter
c of some dispute before the Court as to whether 80 per cent
compensation, which is deposited by the beneficiary with the
State, had actually been received by the land owners/claimants,
if so, to what extent and by how many.

10. The Collector had not made or published the award
D even at the time of pronouncement of the judgment of the High
Court, in Writ Petition No. 22251 of 2006, on 28th August, 2006.
The High Court, in the impugned judgment, has directed the
respondent No.1 to ~nsure that the Award is made as early as
possible, preferably within a period of three months from the
E date of production of the certified copy of that order. In the
counter affidavit filed before this Court, it has been stated by
the State of Uttar Pradesh that the Award was finally made and
published on 9th June, 2008. According to the appellant, given
the fact that the declaration under Section 6 of the Act was
F dated 22nd August, 2002, then in terms of Section 11A of the
Act, the acquisition proceedings had lapsed as the award ought
to have been pronounced on or before 21st August, 2004.

Discussion on objects and reasons of the Act
G 11. With the enormous expansion of the State's role in
promoting public welfare and economic development since
independence, the acquisition of land for public purposes, like
industrialization, building of institutions, etc., has become far
more numerous than ever before. This not only led to an
H increase in exercise of executive powers, but also to various
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 267
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
legislative amendments to the Act. The 1870 Act abolished A
the system of uncontrolled direction by arbitrators and in lieu
thereof, required the Collector, when unable to come to terms
with the persons interested in the land which it desired to
acquire, to refer these differences to the Civil Courts. It was also
felt necessary by the framers, to restructure the legislative B
framework for acquisition of land so that it is more adequately
informed by this objective of servicing the interests of the
community in harmony with the rights of the individual. Various
amendments were made and certain new provisions added to
the Act by Amendment Act, 68 of 1984, which took effect from C
24th September, 1984. Amongst others, Sections 11A and
17(3A) of the Act were new provisions added by this
enactment. The objects and reasons for amending the Act
were to bring a greater degree of harmony between the interests
of the owners of the land, on the one hand, and the acquiring D
authority on the other. In its recommendations, the Law
Commission also expressed a view that individuals and
institutions, who are unavoidably deprived of their property
rights, need to be adequately compensated for their loss
keeping in view the sacrifice they have had to make in the larger
interests of the community. The pendency of acquisition E
proceedings for long periods causes hardship to the affected
parties; so steps were required to be taken to truncate the
procedural aspect of acquisition proceedings on the one hand,
and to pay adequate compensation to the owners of the land
on the other. By introducing the provisions of Section 11A of F
the Act to the normal course of acquisition proceedings, greater
responsibility was intended to be fastened upon the concerned
authorities, whereby they were obliged to make an award within
two years of the declaration made under Section 6 of the Act.
The other obvious purpose of the amendment was that before G
emergency provisions are invoked by the State and possession
is taken in terms of Section 17(1) of the Act, as opposed to
the normal procedure of acquisition of land where possession
is taken after the making of an award, it was to be obligatory
upon the authorities concerned to pay 80 per cent of the H
268 SUPREME COURT REPORTS [2011) 12 S.C.R.

A estimated compensation to the land owners, prior to taking
possession of the land in terms of Section 17(3A) of the Act.
Despite the fact that Right to Property in terms of Article 19( 1)(f)
of the Constitution stood deleted from Chapter Ill of the
Constitution, vide 44th Constitutional Amendment, 1978, Article
8 300A of the Constitution was added by the same Constitutional
Amendment, mandating that 'no person shall be deprived of his
property save by authority of law'. This indicates that the
Constitution still mandates two aspects in relation to acquisition
of land by the exercise of power of eminent domain vested in
C the State. Firstly, such acquisition has to be by the authority of
law; in other words, it has to be in accordance with the law
enacted by the competent legislature and not by mere
executive action. Secondly, there has to be a public purpose
for acquisition of land and the person interested in such land
would be entitled to compensation.
D
12. The objects and reasons for introducing the Bill leading
to the Amendment Act 68 of 1984, have explained the
amendments made to the Act. It is not necessary for us to dwell
upon all the amendments carried out in the Act. Suffice it to refer
E to the amendment made in the definition of 'public purpose'
under Section 3(f) of the Act and to the provisions of Sections
11A and 17(3A), with which this Court is primarily concerned
in the present case. If I may put it in rather simple language,
the object of the legislation was to create greater balance
F between the exercise of power of eminent domain by the State
and the owner's deprivation of his property by way of
compulsory acquisition and the greater acceptability of
acquisition proceedings amongst land owners. This balance
is sought to be created by introducing higher responsibility and
G statutory obligations upon the acquiring authority. Expeditious
and proper payment of fair market value for the acquired land
to the claimants is required in the light of sacrifice made by
them in the larger public interest.

13. In the case of Devinder Sjngh & Others v. State of
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 269
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
Punjab and Others [(2008)1 SCC 728], a Bench of this Court A
took the view that the provisions of the Act should be strictly
construed. Referring to the provisions of the Act, it spelt out the
ingredients of valid acquisition to be, (a) the existence of a
public purpose; and (b) the payment of requisite compensation.
In cases of acquisition of land for a private company, the B
existence of a public purpose is not necessary but all other
statutory requirements were held to remain imperative in
character, requiring strict compliance.

Whether the provisions of Sections 17(3A) and 11A of the C
Act are mandatory or directory and to what effect?

14. Let us first examine the g1eneral principles that could
help the Court in determining whether a particular provision of
a statute is mandatory or directory.
D
15. In 'Principles of Statutory Interpretation', 12th Edition,
2010, Justice G.P. Singh, at page 389 states as follows:

"As approved by the Supreme Court: 'The question as to
whether a statute is mandatory of directory depends upon
the intent of the Legislature and not upon the language in E
which the intent is clothed. The meaning and intention of
the legislation must govern, and these are to be
ascertained not only from the phraseology of the provision,
but also by considering its nature, its design and the
consequences which would follow from construing it the F
one way or the other" "For ascertaining the real intention
of the Legislature", points out Subbarao, J, "the court may
consider inter alia, the nature and design of the statute, and
the consequences which would follow from construing it the
one way or the other; the impact of the other provisions G
whereby the necessity of complying with the provisions in
question is avoided; the circumstances, namely, that the
statute provides for a contingency of the non-compliance
with the provisions; the fact that the non-compliance with
H
270 SUPREME COURT REPORTS [2011) 12 S.C.R.

A the provisions is or is not visited by some penalty; the
serious or the trivial consequences, that flow therefrom;
and above all, whether the object of the legislation will be
defeated or furthered". If object of the enactment will be
defeated by holding the same directory, it will be construed
B as mandatory, whereas if by holding it mandatory, serious
general inconvenience will be created to innocent persons
without very much furthering the object of enactment, the
same will be construed as directory. But all this does not
mean that the language used is to be ignored, but only that
c the prima facie inference of the intention of the Legislature
arising from the words used may be displaced by
considering the nature of the enactment, its design and the
consequences flowing from alternative construction. Thus,
the use of the words 'as nearly as may be' in contrast to
the words 'at least' will prima facie indicate a directory
D
requirement, negative words a mandatory requirement
'may' a directory requirement and 'shall' a mandatory
requirement."

16. Maxwell, in Chapter 13 of his 12th Edition of 'The
E Interpretation of Statutes', used the word 'imperative' as
synonymous with 'mandatory' and drew a distinction between
imperative and directory enactments, at pages 314-315, as
follows:

F "Passing from the interpretation of the language of statutes,
it remains to consider what intentions are to be attributed
to the legislature on questions necessarily arising out of
its enactments and on which it has remained silent."

The first such question is: when a statute requires that
G something shall be done, or done in a particular manner
or form, without expressly declaring what shall be the
consequence of non-compliance, is the requirement to be
regarded as imperative (or mandatory) or forms
prescribed by the statute have been regarded as essential
H to the act or thing regulated .by it, and their omission has
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 271
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
been held fatal to its validity. In others, such prescriptions A
have been considered as merely directory, the neglect of
them involving nothing more than liability to a penalty, if any
were imposed, for breach of the enactment. "An absolute
enactment must be obeyed or fulfilled exactly, but it is
sufficient if a directory enactment be obeyed or fulfilled B
substantially".

It is impossible to lay down any general rule for determining
whether a provision is imperative or directory. "No
universal rule," said Lord Campbell LC., "can be laid down C
for the construction of statutes, as to whether mandatory
enactments shall be considered directory only or obligatory
· . with an implied nullification for disobedience. It is the duty
of Courts of Justice to try to get at the real intention of the
Legislature by carefully attending to the whole scope of the
statute to be construed." And Lord Penzance said: "I D
believe, as far as any rule is concerned, you cannot safely
go further than that in each case you must look to the
subject matter; consider the,importance of the provision
that has been disregarded, and the relation of that provision
to the general object intended to be secured by the Act; E
and upon a review of the case in that aspect decide
whether the matter is what is called imperative or only
pirectory."

17. In a recent j1,1dgment of this Court, May George v. F
Speci<Jf Tehsildar and Ors. [(2010) 13 SCC 98], the Court
stated the precepts, which can be summed up and usefully
applied by this Court, as follows:

(a) While determining whether a provision is
mandatory or directory, somewhat on similar lines G
as afore-noticed, the Court has to examine the
context in which the provision is used and the
purpose it seeks to achieve;

(b) To find out the intent of the legislature, it may also H
272 SUPREME COURT REPORTS [2011] 12 S.C.R.

A be necessary· to examine serious general
inconveniences or injustices which may be caused
to persons affected by the application of such
provision;

(c) Whether the provisions are enabling the State to do
B some things and/or whether they prescribe the
methodology or formalities for doing certain things;

(d) As a factor to determine legislative intent, the court
may also consider, inter alia, the nature and design
c of the statute and the consequences which would
flow from construing it, one way or the other;

(e) It is also permissible to examine the impact of other
provisions in the same statute. and the
consequences of non-compliance of such
D provisions;

(f) Physiology of the provisions is not by itself a
determinative factor. The use of the words 'shall'
or 'may', respectively would ordinarily indicate
E imperative or directory character, but not always.

(g} The test to be applied is whether non-compliance
with the provision would render the entire
proceedings invalid or not.
F (h) The Court has to give due weightage to whether the
interpretation intended to be given by the Court
woulq further the purpose of law or if this purpose
could be defe.ated by tt:irming it mandatory or
otherwise.
G
18. Reference can be made to the following paragraphs
of May George (supra) :

"16. In Dattatraya Moreshwar v. The State of Bombay and i
Ors. [AIR 1952 SC 181), this Court observed that law which
H creates public duties is directory but if it confers private
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 273
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
rights it is mandatory. Relevant passage from this A
judgment is quoted below:
•
'7 ........ It is well settled that generally speaking the
provisions of the statute creating public duties are
directory and those conferring private rights are 8
imperative. When the provisions of a statute relate
to the performance of a public duty and the case is
such that to hold null and void acts done in neglect
of this duty would work serious general
inconvenience or irijustice to persons who have no C
control over those entrusted with the duty and at the
same time would not promote the main object of
legislature, it has been the practice of the Courts
to hold such provisions to be directory only, the
neglect of them not affecting the validity of the acts
done.' D
17. A Constitution Bench of this Court in State of U.P. and
Ors._\(. Babu Ram Upadhya [AIR 1961 SC 751) decided
the issue observing:
E
'29 ..... For ascertaining the real intention of the
Legislature, the Court may consider, inter alia, the
nature and the design of the statute, and the
consequences which would follow from construing
it the one way or the other, the impact of other F
provision~ wh~reby the necessity of complying with
the provisions in question is avoided, the
circumstance, namely, that the statute provides for
a contingency of the non-compliance with the
provisions, the fact that the non-compliance with the
provisions is or is not visited by some penalty, the G
serious or trivial consequences that flow therefrom,
and, above all, whether the object of the legislation
will be defeated or furthered.'
22. In B.S. Khurana and Ors. v. Municipal Corporation of H
274 SUPREME COURT REPORTS [2011] 12 S.C.R.

A Delhi and Ors. [(2000) 7 SCC 679], this Court considered
the provisions of the Delhi Municipal Corporation Act,
1957, particularly those dealing with transfer of immovable
property owned by the Municipal Corporation. After
considering the scheme of the Act for the purpose of
B transferring the property belonging to the Corporation, the
Court held that the Commissioner could alienate the
property only on obtaining the prior sanction of the
Corporation and this condition was held to be mandatory
for the reason that the effect of non-observance of the
c statutory prescription would vitiate the transfer though no
specific power had been conferred upon the Corporation
to transfer the property.

23. In State of Haryana and Anr. v. Raghubir Dayal [(1995)
1 SCC 133], this Court has observed as under:
D
'5. The use of the word 'shall' is ordinarily
mandatory but it is sometimes not so interpreted if
the scope of the enactment, or consequences to
flow from such construction would not so demand.
E Normally, the word ·.shall' prima facie ought to be
considered mandatory but it is the function of the
Court to ascertain the real intention of the
legislature by a careful examination of the whole
scope of the statute, the purpose it seeks to serve
F and the consequences that would flow from the
construction to be placed thereon. The word 'shall',
therefore, ought to be construed not according to
the language with which it i1:1 clothed but in the
context in which it is used and the purpose it seeks
to serve. The meaning has to be described to the
G
word 'shall; as mandatory or as directory
accordingly. Equally, it is settled law that when a
statute is passed for the purpose of enabling the
doing of something and prescribes the formalities
which are to be attended for the purpose, those
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 275
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.)

prescribed formalities which are essential to the A
validity of such thing, would be mandatory. However,
if by holding them to be mandatory, serious general
inconvenience is caused to innocent persons or
general public, without very much furthering the
object of the Act, the same would be construed as B
directory.' "

19. The Legislature in Sections 11A and 17(3A) of the Act
I
has used the word 'shall' in contradistinction to the word 'may'
used in some other provisions of the Act. This also is a
relevant consideration to bear in mind while interpreting a C
provision.

20. The distinction between mandatory and directory
provisions is a well accepted norm of interpretation. The
general rule of interpretation would require the word to be given D
its own meaning and the word 'shall' would be read as 'must'
unless it was essential to read it as 'may' to achieve the ends
of legislative intent and l!Jlderstand the language of the
provisions. It is difficult to ·iay down any universal rule, but
wherever the word 'shall' is used in a substantive statute, it E
normally would indicate mandatory intent of the legislature.
Crawford on 'Statutory Construction' has specifically stated that
language of the provision is not the sole criteria; but the Courts
should consider its nature, design and the consequences which
could flow from construing it one way or the other.
F
21. Thus, the word 'shall' would normally be mandatory
while the word 'm(iy' would be directory. Consequences of non-
compliance would also be a relevant consideration. The word
'shall' raises a presumption that the particular provision is
imperative but this prima facie inference may be rebutted by G
other considerations such as object and scope of the enactment
and the consequences flowing from such construction. Where
a statute imposes a public duty and proceeds to lay down the .
manner and timeframe within which the duty shall be performed,
the injustice or inconvenience resulting from a rigid adherence H
276 SUPREME COURT REPORTS [2011] 12 S.C.R.

A to the statutory prescriptions may not be a relevant factor in
holding such prescription to be only directory. For example,
when dealing with the provisions relating to criminal law,
legislative purpose is to be borne in mind for its proper
interpretation. It is said that the purpose of criminal law is to
8 permit everyone to go about their daily lives without fear of harm
to person or property and it is in the interests of everyone that
serious crime be effectively investigated and prosecuted. There
must be fairness to all sides. (Attorney General's Reference
(No. 3 of 1999) (2001) 1 All ER 577 Reference: Justice G.P.
C Singh on 'Principles of Statutory Interpretation', 11th Edition
2008). In a criminal case, the court is required to consider the
triangulation of interests taking into consideration the position
of the accused, the victim and his or her family and the public.

22. The basic purpose of interpretation of statutes is further
D to aid in determining either the general object of the legislation
or the m_eaning of the language in any particular provision. It is
obvious that the intention which appears to be most In
accordance with convenience, reason, justice and legal
principles should, in all cases of doubtful interpretation, be
E presumed to be the true one. The intention to produce an
unreasonable result is not to be imputed to a statute. On the
other hand, it is not impermissible, but rather is acceptable, to
adopt a more reasonable construction and avoid anomalous
or unreasonable construction. A sense of the possible injustice
F of an interpretation ought not to induce Judges to do violence
to the well settled rules of construction, but ,t may properly lead
to the selettibn of one, rather than the other, of the two
reasonable interpretations. In earlier times, statutes imposing
criminal or other penalties were required to be construed
G narrowly in favour of the person proceeded against and were
more rigorously applied. The Courts were to see whether there
appeared any reasonable doubt or ambiguity in construing the
relevant provisions. Right from the case of R. v. Jones, ex p.
Daunton [1963(1) WLR 270], the basic principles state that
H even statutes dealing with jurisdiction and procedural law are,
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 277
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]

if they relate to infliction of penalties, to be strictly construed; A
compliance with the procedures will be stringently exacted from
those proceedings against the person liable to be penalized
and if there is any ambiguity or doubt, it will be resolved in
favour of the accused/such person. These principles have been
applied with approval by different courts even in India. B
Enactments relating to procedure in courts are usually
construed as imperative. A kind of duty is imposed on court or
a public officer when no general inconvenience or injustice is
·caused from different construction. A provision of a statute may
impose an absolute or qualified duty upon a public officer which c
itself may be a relevant consideration while understandir:ig the
provision itself. (See 'Maxwell on The Interpretation of Statutes',
12th Edition by P. St. J. Langan and R. v. Bullock, [(1964)1
QB 481))

23. One school of thought has accepted that the word D
'shall' ' raises a presumption that the particular provision is
imperative, while the other school of thought believes that such
presumption is merely prima facie, subject tQ,.,rebuttal by the
other considerations mentioned above. For example, in Mis.
Sainik Motors, Jodhpur & Others v. The State of Rajasthan E
[AIR 1961 SC 1480), the word 'shall' has been held to be merely
directory.

24. G.P. Singh in the same edition of the above-mentioned
book, at page '409, stated that the use of the word 'shall' with F
respect to one matter and use of word 'may' with respect to
another matter in the same section of a statute will normally
lead to the conclusion that the word 'shall' imposes an
obligation, whereas the word 'may' confers a discretionary
power. But that by itself is not decisive and the Court may, G
havingregard to the context and consequences, come to the
. conclusion that the part of the statute using 'shall' is also
directory. It is primarily the context in which the words are used
.which wilt be of significance and relevance for deciding this
issue.
H
278 SUPREME COURT REPORTS (2011] 12 S.C.R.

A 25. Statutes which encroach upon rights, whether as
regards person or property, are subject to strict construction in
the same way as penal Acts. It is a recognized rule that they
should be interpreted, if possible, so as to respect such rights
and if there is any ambiguity, the construction which is in favour
B of the freedom of the individual should be adopted. (See
'Maxwell on The Interpretation of Statutes', 12th Edition by P.
St. J. Langan)

26. This Court in the case of Devinder Singh (supra) held
C that the Land Acquisition Act is an expropriatory legislation and
followed the case of Hindustan Petroleum Corporation v.
Darius Shapur Chennai and Ors. ((2005) 7 SCC 627).
Therefore, it should be construed strictly. The Court has also
taken the view that even in cases of directory requirements,
substantial compliance with such provision would be
D necessary.

27. If I analyze the above principles and the various
ju_dgments of this Court, it is clear that it m~y not be possible
to lay down any straitjacket formula, which could unanimously
E be applied to all cases, irrespective of considering the facts,
legislation in question, object of such legislation, intendment of
the ,legislature and substance of the enactment. In my view, it
will always depend upon all these factors as stated by me
above. · Still, these precepts are not exhaustive and are merely
F indicative. There could be cases where the word 'shall' has
been used to indicate the legislative intent toat the provisions
should be mandatory, but when examined in light of the scheme
of the Act, language o~ the provisions, legislative intendment
and the objects sought to be achieved, such an interpretation
G may defeat the very purpose of the Act and, thus, such
interpretation may not be acceptable in law and in public
interest. Keeping in mind the language of the provision, the
Court has to examine whether the provision is intended to
regulate certain procedure or whether it vests private individuals
H with certain rights and levies a corresponding duty on the
officers concerned. The Court will still have to examine another
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 279
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
aspect, even after holding that a particular provision is A
mandatory or directory, as the case may be, i.e., whether the
effect or impact of such non-compliance would invalidate or
render the proceedings void ab initio or it would result in
imposition of$maller penalties or in issuance of directions to
further protect and safeguard the interests of the individual B
against the power of the State. The language of the statute,
intention of the legislature and other factors stated above
decide the results and impacts of non-compliance in the facts
and circumstances of a given case, before the Court can
declare a provision capable of such strict construction, to term c
it as absolutely mandatory or directory.

28. Having analysed the principles of statutory
interpretation, I will now refer to the provisions of Section 17(3A)
of the Act. Section 17 of the Act vests the appropriate
Government with special powers to be exercised in cases of D
urgency. This provision falls within Part II of the Act. Part II of
the Act deals with the entire scheme of acquisition of land by
the State, right from the,stage of issuance of a notification under
Section 4 of the Act till making of an award taking possession
of acquired land and its consequential vesting in the State. E
However, to some extent, the provisions of Section 17 of the
Act are an exception to the provisions under Sections 4 to 16
of the Act. The distinguishing features of normal acquisition
are that after the issuance of notification under Section 4 of the
Act, the State rhust provide an opportunity to the owners of the F
land to object to the acquisition in terms of Section 5A of the
Act, issue a declaration under Section 6 of the Act, issue notice
under Section 9 of the Act and determine compensation by
making an award under Section 11 of the Act. However, under
the scheme of Section 17 of the Act, the Government can take G
possession of the property on the expiration of 15 d~ys from
publication of notice mentioned in Section 9(1) of the Act.
Furthermore, the provisions of Section 5 of the Act, i.e., the right
of the owner to file objection can be declared to be
inapplicable. Besides these two significant distinctions, another H
280 SUPREME COURT REPORTS [2011] 12 S.C.R.

A important aspect that the land vests in the Government under
Section 16 of the Act only after the award is made and
possession of the land is taken, while under Section 17(1), at
the threshold of the acquisition itself, the land could vest
absolutely in the Government free from all encumbrances. The
9 possession of the acquired property has to be taken by the
Collector in terms of Sections 17(2) and 17(3) of the Act.
Section 17(3A) of the Act, as already noticed, was introduced
by the Amendment Act 68 of 1984 for the purposes of
safeguarding the interests of the claimants and required the
c payment of 80 per cent of the estimated compensation before
taking possession. At this stage itself, it will be useful to refer
to the relevant provisions of Section 17 of the Act.

Section 17 reads as under:

D "17. Special powers in case of urgency. - (1) In cases of
urgency whenever the appropriate Government, so directs,
the Collector, though no such award has been made, may,
on the expiration of fifteen days from the publication of the
notice mentioned in section 9, sub-section (1) take
E possession of any land needed for a public purpose. Such
land shall thereupon vest absolutely in the Government, free
from all encumbrances.

(2) )()()()()()(

F (3) xxxxxx
(3A) Before taking possession of any land under sub-
section (1) or sub-section (2), the Collector shall, without
prejudice to the provisions of sub-section (3)(a) tender
G payment of eighty per centum of the compensation for such
land as estimated by him to the person interested entitled
•thereto, and (b) pay it to them, unless prevented by some
one or more of the contingencies mentioned in section 31,
sub-section (2),and where the Collector is so prevented,
the provisions of section 31, sub-section (2), (except the
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 281
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
second proviso thereto), shall apply as they apply to the A
payment of compensation under that section.

(38) The amount paid or deposited under section (3A),
shall be taken into account for determining the amount of
compensation required to be tendered under section 31, 8
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_.
c
(4) In the case oi 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 SA
shall not apply, and, if it does so direct, a declaration may D
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 J."

29. Section 17(3A) of the Act makes it obligatory on the E
part of the authority concerned to tender/pay 80 p~r cent of the
compensation for the acquired land, as estimated by the
Collector, to the persons interested and entitled thereto; unless
prevented by any of the contingencies mentioned under Section
31 (2) of the Act. The use of the word 'shall' in Section 17(3A) F
indicates that the enactors of law desired that the above
mentioned procedure should be complied with by the authority
concerned prior to taking of possession. That is why the
legislature has even taken care to make a provision for deposit
of due compensation in court in terms of Section 31(2) of the
Act, where an authority is prevented from tendering the amount G
to the claimants for reasons stated in Section 31 (1) of the Act.
80 per cent of the estimated compensation is to be deposited
in the Court to which reference under Section 18 of the Act
would lie. This clearly shows that there is statutory obligation -
upon the authorities concerned to tender to the interested 'H
282 SUPREME COURT REPORTS [2011] 12 S.C.R.

A persons, compensation in accordance with law. Deposit of
money, certainly, is the condition precedent to taking o·f
possession as is amply clear from the language 'before taking
possession of any land'. The amount so deposited or paid in
terms of Section 17(3A) of the Act will be taken into account
B for determining the amount of compensation required to be
tendered under Section 31 of the Act and provides for the
recovery of amounts if it exceeds the awarded amount. Section
17(3A) unambiguously provides a complete mechanism of
taking possession and the requirement of payment of 80 per
c cent of estimated compensation to the claimants.

30. Now, I would examine WHAT ARE THE
CONSEQUENCES of default in compliance to the provisions
of Section 17(3A) of the Act. The said Section is completely
silent on such consequences. Where the Legislature has, in
D specific terms, provided for the extent of payment, mode of
payment and even the difficulties which are likely to arise, i.e,
where a person may not be entitled to receive the
compensation or in any other eventuality such as where the
compensation cannot be paid for the reasons stated in Section
E 31(1) of the Act, there the Legislature in its wisdom has
provided no contingencies and/or consequences of non-deposit
of this money. This is in complete contradistinction to the
provisions contained in Sections 6 and 11A of the Act. Section
6 provides that no declaration shall be issued where the period
F specified in the first proviso to Section 6(1) of the Act has
expired. In other words, it spells out the consequences of failure
to do an act within the stipulated period. Similarly, Section 11A
of the Act provides that the acquisition proceedings shall lapse
where the Collector fails to make an award within a period of
G two years from the date of publication of declaration under
Section 6 of the Act.

31. Thus, the legislative intent is very clear. Keeping the
objects and reasons for amendment in mind, the Act strives for
H a fair balance between the rights of private individuals and the
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 283
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
power of eminent domain of the State and also attempts to A
ensure expeditious disbursement of compensation1 as
determined in accordance With law, to the claimants. The
legislature has provided for every contingency for tendering
payment, while remaining silent about consequences flowing
from default under some other provisions. Sections 11A and B
17(3A) of the Act are clear illustrations of clarity and purpose
in legislative intent. When the framers of law have not provided
for any penal consequences for default in compliance to Section
17(3A), then it will be uncalled for to provide such
consequences by judicial interpretation. While interpreting the c
provisions for compensation, the Court can provide such
interpretation as would help to bridge the gaps left by the
Legislature, if any, in implementation of the provisions of the
Act. But it will hardly be permissible for the Court to introduce
such consequences by way of judicial dicta, like requiring lapse D
of acquisition proceedings. This is not a matter covered by the
principles of judicial interpretation.

32. It is a well settled canon of statutory interpretation;othat
the courts would neither add nor subtract from the plain
language of the statutory provision. In the present case also, E
there is hardly any justification for the courts to take any contrary
view. Once the land has vested in the State and there being
no provision for re-vesting the land in the original owners under
the provisions of the Act, then it will be in consonance with the
scheme of the Act and legislative intent to give an interpretation F
that would allow provisions of Section 17(1) to operate without
undue impediment and keep the vesting of land in the State
intact. Otherwise, in some cases the purpose for which such
lands were acquired might stand frustrated, while in other cases
the purpose of acquisition might have already been achieved G
and, therefore, divesting State of its title and possession in the
acquired land will be incapable of performance. Under such
circumstances, then, to interpret Section 17(3A) of the Act to
be so mandatory in its absolute terms that the non-payment of
money would result in vitiating or lapsing entire acquisition H
284 SUPREME COURT REPORTS [2011] 12 S.C.R.

A proceedings, can hardly be justified on the strength of any
known principle of interpretation of statutes. This question
arises more often, as the provisions of Section 17 of the Act
are being invoked by the Union of India and State Governments
very frequently, so, the consequences of this default, within the
B framework of law and anything short of invalidation of the
acquisition proceedings should be stated by the court with
reference to the facts and circumstances of each case. It is a
complete safeguard provided to the land owner inasmuch as
the compensation stipulated under Section 17(3A) of the Act
c should be paid in terms of the provisions of the Act so that the
owner is not made to suffer on both counts i.e. he is deprived
of his land as well as compensation. It will be unfair for the
authorities concerned not to pay the compensation as
contemplated under the provisions of the Act. It would be just
and fair to read into the provisions of the Section 17(3A) as
0
imposing an obligation on the part of the authorities concerned/
the Collector to pay the compensation within the time specified
under Section 17(3A). Of course, no specific time, within which
the payment has to be made in terms of Section 17(1) has been
stated in the provision. But, it is a settled principle of law that
E wherever specific limitations are not stated, the concept of
'reasonable time' would become applicable. So, even if it is
argued that there is no specific time contemplated for payment/
deposit of 80 per cent of the estimated compensation, even
then the claimants would be entitled to receive the amount
F expeditiously and in any case within very reasonable time. If the
authorities are permitted to take possession of the land without
payment of the amounts contemplated under Section 17(3A)
of the Act, then it would certainly amount to abuse of power of
eminent domain within its known legal limitations. The
G authorities should discern the distinction spelt out under Section
16 of the Act on the one hand and Section 17(1) read with
Section 17(3A) of the Act on the other.

33. Let me examine the judgment of this Court dealing with
H the provisions of Section 17(3A) of the Act. The judgments of
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 285
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.] ,
'
different High Courts have been brought to the notice of this A
Court, taking divergent views on the question whether the
provisions of Section 17(3A) are mandatory or directory.
Some of these judgments, -I would shortly refer to, ,if necessary.
However, I may notice that none of these judgments have
specifically discussed the consequences of non-adherence to B
the provisions of Section 17(3A) of the Act. A Bench of Delhi
High Court in the case of Banwari Lal & Sons Pvt. Ltd. vs.
Union of India & Ors., [1991 (1) DRJ (Suppl.) 317 (Delhi
Reported Journal)], whilst quashing the notification issued under
Section 4 read with Section 17(1) of the Act on the ground of c
factual lack of urgency for acquisition, held that there was non-
compliance to the provisions of Section 17(3A) of the Act. Of
course, the High Court took the view that the notification issued
under Section 4 read with Section 17(1) of the Act was not.
maintainable and while quashing the said notification, it also D
held that there was violation of provisions of Section SA of the
Act and, in fact, no urgency existed. There was no direct
discussion as to whether the provisions of Section 17(3A) of_
the Act are mandatory or directory. However, this judgment
neither provides any reasoning nor actually states the
consequences of non-compliance with the provisions of Section E
17(3A). For these reasons, this judgment is of no help to the
parties appearing in the present appeal. Against the judgment
of Delhi High Court in Banwari Lal (supra), the Special Leave
Petition preferred before this Court was dismissed at the
admission stage itself. F

34. In the case of Union of India & Ors. v. Krishan Lal
Arneja & Ors., [(2004) 8 SCC 453), a part of the acquisition
was challenged and writ petitions had been filed for quashing
the notification dated 6th March, 1987 issued under Section 4 G
and Section 17(1) of the Act by Banwari Lal and other owners
of the acquired lands. These writ petitions were allowed by a
learned Single Judge of the High Court, appeal against which
was dismissed by the Division Bench of the High Court. While
considering the appeal against the order of the Division Bench, H
286 SUPREME COURT REPORTS [2011] 12 S.C.R.

A this Court also dismissed the same. In the appeal, arguments
had also been advanced that since the Government before this
Court had not made the payment of 80 per cent of estimated
compensation in terms of Section 17(3A) of the Act, the
acquisition had lapsed. However, in paragraph 36 of that
B judgment, this Court declined to deal with these contentions as
it had dismissed the appeal on other grounds. The Court
incidentally observed that it was not a fair stand to be taken by
the State before the Court to argue that it could de-notify the
acquired land on the plea that it had failed to comply with the
c statutory provisions of the Act. In short, the question in
controversy in the present case was not actually pronounced
upon by the Court in that case.

35. The question of the provisions of Section 17(3A) of the
Act being mandatory or directory again fell for consideration
D before this Court in the case of Tika Ram & Ors. v. State of
U.P. & Ors. [(2009) 10 SCC 689]. In this case, challenge to
the constitutional validity of the provisions of Section 17 was
also made. The Court, while holding that the said provisions
are constitutional, also declared that the provisions of Section
E 17(3A) were not mandatory and their non-compliance would not
vitiate the whole acquisition proceedings. The following
paragraphs of the judgment are relevant:

"91. However, the question is as to what happens when
such payment is not made and the possession is taken.
F
Can the whole acquisition be set at naught?
92. In our opinion, this contention on the part of the
appellants is also incorrect. If we find fault with the whole
acquisition process on account of the non-payment of 80%
G ~ of the compensation, then the further question would be as
to whether the estimation of 80% of compensation is
correct or not. A further controversy can then be raised by
the landlords that what was paid was not 80% and was
short of 80% and therefore, the acquisition should be set
H at naught. Such extreme interpretation cannot be afforded
PELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 287
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
because indeed under Section 17 itself, the basic idea of A
avoiding the enquiry under Section 5-A is in view of the
urgent need on the part of the State Government for the
land to be acquired for any eventuality discovered by either
sub"section (1) or sub-section (2) of Section 17 of the Act.
93. The only question that would remain is that of the B
estimation of the compensation. In our considered view,
even if the compensation is not paid or is short of 80%,
the acquisition would not suffer. One could imagine the
unreasonableness of the situation. Now suppose, there is
state of emergency as contemplated in Section 17(2) of C
the Act and the compensation is not given, could
the whole acquisition come to a naught? It would entail
serious consequences.
94. This situation was considered, firstly, in Satendra
0
Prasad Jain v. State of U.P. It was held therein that once
the possession is taken as a matter of fact, then the owner
is divested of the title to the land. The Court held that there
waslhen no question of application of even Section 11-A.
Commenting upon Section 11-A, it was held that that the E
Section could not be so construed as to leave the
Government holding title or the land without an obligation
to determine the compensation, make an award and pay
to the ·owner the difference between the amount of the
;:iward i:!nd the amount of the 80% of the estimated
compemsation. The three-Judge Bench of the Court took F
the view that even where 80% of the estimated
compensation was not paid to the landowners, it did not
mean that the possession was taken illegally or that the
land did not vest in the Government. In short, this Court held
that the proceedings of acquisition are not affected by the G
nonpayment of compensation. In that case, the Krishi
Utpadan Mandi Samiti, for which the possession was
made, sought to escape from the liability to make the
payment. That was not allowed. The Court, in para 17, held
H
288 SUPREME COURT REPORTS [2011] 12 S.C.R.

A as under : (Satendra Prasad Jain case, SCC p. 375, para
17)
"17. In the instant case, even that 80% of the
estimated compensation was not paid to the
appellants although Section 17 (3-A) required that
8 it should have been paid before possession of the
said land was taken but that does not mean that the
possession was taken illegally or that the said land
did not thereupon vest in the first respondent. It is,
at any rate, not open to the third respondent, who,
c as the letter of the Special Land Acquisition Officer
dated 27.6.1990 shows, failed to make the
necessary monies available and who has been in
occupation of the said land ever since its
pos~ession was taken, to urge that the possession
D was taken illegally and that, therefore, the said land
has not vested in the first respondent and the first
respondent is under no obligation to make an
award."
95. Further, in a judgment of this Court in Pratap v. State
E
of Rajasthan, a similar view was reported. That was a case
under the Rajasthan Urban Improvement Act, 1987, under
A"'
which the acquisition was made using Section 17 of the
Act. The Court took the view that once the possession was
taken under Section 17 of the Act, the Government could
F not withdraw from that position under Section 18 and even
the provisions of Section 11-A were not attracted. That was
of course a case where the award was not passed under
Section 11-A after taking of the possession. A clear-cut
observation came to be made in that behalf in para 12, to
G the effect that the non-compliance with Section 17 of the
Act, insofar as payment of compensation is concerned, did
not result in lapsing of the land acquisition proceedings.
The law laid down by this Court in Satendra Prasad Jain
v. State of U.P. was approved. The Court also relied on
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 289
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
the decision in P. Chinnanna v. state of A.P. and Awadh A
Bihari Yadav v. State of f3ihar, where similar view was
taker) regarding the land acquisition proceedings not
getting lcip§ed. The on!y result that may follow by the non-
payment would be ·the payment of interest, as
contemplated in Section 34 and the proviso added thereto B
by the 1984 Act. In that view, we do not wish to further refer
the matter, as suggested by Shri Trivedi, learned Senior
Counsel and Shri Qamar Ahmad, learned counsel for the
appellants. Therefore, even on the sixth question, there is
no necessity of any reference."
c
36. As is obvious from the above paragraphs, there is an
indefeasible obligation on the part of the Government to make
the payment in terms of Section 17(3A) of the Act but non-
compliance thereto could not result in vitiation of the acquisition
proceedings. The observations made by this Court in the case D
of Satendra Prasad Jain (supra), in paragraph 17, suggest that
the Government was required to hold title to the acquired land
coupled with its obligation to determine the compensation,
make the award and then to pay to the owner the difference
between the amount of 80 per cent of the estimated E
compensation and the amount finally determined. The Court
even went to the extent of observing that non-payment of 80
per cent of the estimated compensation per se does not mean
that possession was taken illegally or that the said land did not
thereupon vest in the Government. This decision does provide F
any reasoning and conclusions which support the view that
Section 17(3A) of the Act is not a mandatory provision.
Following this juggment, another Bench of this Court in the case
pf Praf?P & Anr. v. State of Rajasthan ((1996) 3 SCC 1) took
the same view. G
37. However, another Bench of this Court, in the case of
Rajencfer Kishan Gupta v. Union of India ((2010) 9 SCC 46),
had made certain observations which were at some variance
to the dicta of this Court in the cases referred above. In that
case, neither the validity nor the effects of non-compliance with H
290 SUPREME COURT REPORTS [2011] 12 S.C.R.

A Section 17(3A) of the Act were directly in issue. The challenge
was to a notification issued under Section 4(1) of the Act for
the land which was subsequently needed for the Metro Project
in Delhi. The challenge was primarily based on the ground that
the land could only be acquired under the Metro Rail
B Construction Works Act, 1978 and the emergency clause could
not be used as a way to dispense with enquiry under Section
5A of the Act. The Court, while dismissing the appeal preferred
by the claimants and rejecting the contentions in paragraph 29,
made the following observations :
c "In the light of the above discussion, we are satisfied that
the existence of public purpose and urgency in executing
the project before the Commonwealth Games, the
adjoining land belonging to ODA being forest land as per
the notification and also of the fact that the respondents
D have fully complied with the mandatory requirements
including deposit of 80% of the compensation amount, we
are in entire agreement with the stand taken by the
respondents as well as the conclusion of the High Court."

E 38. The Bench, dealing with the matter, did use the
expression 'mandatory requirements, including deposit of 80
per cent of the compensation amount', but there was no
discussion or reasoning of the effects and consequences of
such default, anywhere in the judgment, before it has been
F concluded that the said provisions are mandatory. Thus, these
observations do not come to the aid of the appellants in
challenging the entire acquisition proceedings on this ground.
39. Consistent with the view expressed by this Court in the
cases referred (supra), I am of the 9onsidered view that the
G provisions of Section 17(3A) of the Act are not mandatory. Such
a conclusion can safely be arrived at, even for tha reason that
the Court would have to read into the provisions of Section
17(3A) consequences and a strict period of limitation within
which amount should be deposited, which has not been
H provided by the Legislature itself in that section. The
oE~8J;~l~1Eq~(s~~y~E~~fvf'1tJ"r~.1[~:~t:.J8'.~~ v:29f?q 3
STAT~ bF'U.P.; & ANR~[SWAlANfERt-KUMAR~~-1 J.J
:on'sequehces ·and ·contingencies fa rising .fr6m'Trforf:coii1plifnce n°!A, A
>f the'said'·provisions·,havfi not'f'ieeii1statecrif1rtt\e 1Aet. 'On'eeth<>
•he 1an8 'tfas· vested '1·n.:the'GovetnmE?nt.CnC!~compiiaAce'wffhthis
heS€Joliga ti on ''of 1payin'ent of' 80llpef 1c~'rtfl'bfl'(:i$ti"ffiatifd:my
;ompe'n'satiofwould 1not 'rende(ftfe" ~6sses Sibn"mkerY' u~a'.efl of
1

1
-3ect'ibh'i17(1)i~fa:iillega I! Tlie''fana rcannofl:ie 'fe!:v'estecll'ofe:>a b
·eveiteC:J't5ack to tile claima'nts'as ;no 1Pf-ovislons un<i~tth~'Aet 1.1 ·t,
.io prescribe. Furthermore; 'if the ·inte'rptetation put'forwafcJ tfy • ~
1

•he 'appellants is acceptedflit'wotila comP!kte:ly~frusffate-itl~?- -'
)bjects1arid purpose 'of the ActYrather tnan ·aciviincifig tne ·~ame~1 nn~
lfhe 1expresslc>n., is~a1(used-in 'se·c11c>n' 17(3AY ~as7fo~t>e<m<> c
1

Jndersfooa ~in ifs'1 correct' peri;'pective and' is ''n6ft6' b~cohstru.ed (' ~
""'1s sugge:stive ot 'ine provisions''8eing;abso1Ute1y'manaa1&y%' 51 Y
•ts application. Inter alia for these re·~sons\1na:~if pef the ·ao6ve0 rt
jiscussionsPi hold'tnafthi:Vprovisionsfof Section i7(3A)' ar~ 1'CJ
::ompliance is necessar'y1 in'terms ofthe Act.~ ,veil \.Id,_!;' ' . 0
1otlrriandatory:·-THey'are 'direetive proV:isions~·tHou'ghr(ui~ir"·L 0
f .,, ., 1 .: , ,.· _. n1i -·~ •.;! tr1.;; e"lP.• '.jer,cy nruv1s1pn.., 1. 1c; pre-
.,e.0~ l,1-:1ayi.~!:1t ~~Id .<ls._9~R~~! ,lt.~~~t~~ t?ri3~~.1t~.~·~· th~, "1
:>bli~~u,o.n pn t,he iP.W~_.9-tth~, ~p,y~r~!l"!~~~Br .?P~S~m.e~ 1 ~~tP.gri~ 9 0
...o a,~pQ~,iUh~..am.~~nt. prio~ !~~~~i ~g I PJ>~:~Jglb\1 )~~i:!_~, .?$g~jond .,d
17(~~j\9f1 ,the ,f-,~~ ~.~o~I~, ~~~~~\~~J;IY,.:~H ~ov'T1P.1!:9,cW.it~. rJh.~.re:E ::.
.am~HP~~~.~RP~~.~~n-~~f me._~sdt!ma~~RtfC?rnP~~~'!IJip"n)~ ~~rmstne
:>f ~~~!iSP.e 17.(3~~ J.9°~J~.rP~vc. ~P.9~j~~ftuOnf.~ t~e C~~fl.~}~r,ent
IP roy!~}p12,s :~t~~R_ti?!bt~ l.(1)J~,nfj.;,17.(~~~l~,o~j ~~Rt~vet~ni! ,ibllP,/iEl~ me
lthaUh~,.~·\TIRHm~. aJ~ t9.~r.)d~p9~1t~Q:o/.'t~tf'!,,~,?.>cta~s. fr~rn. t~~aer
IPub,f/R~WW 9.f.:.th~,np!i.r,eJn.:.t~.r'!1~ 1 ~f ~~gue~Jl~l~PJ~hr1 ~ft.~!!.~ t.-~~F ~
lbef9,~~ •. t~,klQ~-Rl~,POSS~~~!.on ,,9!)h~. ;,<t;?,9 .u~,r,~~ vl~O,d;. bhi1"en
•Legislaj~~~ ?~~.~~ftl~i;.nN_y1 i~~iYSt3p1 fb~t!Jb~:e.~YD:J~~,\ ?Jr~~~ ~Htuori
•80 P,rf lc11rt. ot ~O[l;ipen,~~-t~~nj~hot;i~? B,~. rr!~~f .a~ m~ t'3!~.i~~ched
-and,, iR~~ffi~~~~!~~ 1 o_,1f9.r.~: 8o~s.:,s~!C?~;_i:> ,t~~~r., r;·~PDr?Rn1P.'};~ n,q~ 3 A)
·of !D.~t~r~~,~~onJ,1::0!~f~~~o1_16 JZ<3,~)a'!"8~ld1 f:1R! ~!~~t_;-1,\h~•l•r:c; c
-acq_~~~1t13~.B~8~:e9,'Dg~;.~~t,d,~pe.,1'!~'!:1~t~P.1h~J~9!s~pf1a. g11v~n:es
-casE),J~~!(, 1 P.aym~_nJ ,S..~?uld 5>9,,n:i~,d~ ~w!!~j~ t~j ~J!Jlr)QSJ£~te,d t;ie
and0 i~.t~.~Y.c c~sj, ~it!J.i,~. i~,mas.o~.a,~,t~ 1 t~ui.~~l~n~.-!~.t\q!aJ~aD:t .tie
sho,~l.C:t t~~Ct:be0 ~.n.\~1.ed, 100 a9,9_i.ti~~~1 ~~P~.~t~ts>i.~HPn p~'].1 oe
con;i~lle~S~·1r!~;.1q~,l;lrt ~9Ml~ fVJ,~J~~11s>f.:,~R,e.igap0~~iq~~1~CJ.~ sr.H H
remained unfilled by the Legislature.
292 SUPREME COURT REPORTS [2011] 12 S.C.R.

A 41. Irrespective of whether the provision is held to be
mandatory or directory, compliance with its substance is equally 1
important. In either case, the authority entrusted with a duty is
not absolved of its obligation to perform the specified duty or
obligation in the manner stated in law. It is primarily the
B consequences which result from non-performance of duty, which
are of significance in determining the impact of mandatory or
directory nature of a provision. Normally, in both cases, some
consequences should flow from non-performance. Even if the
provisions of Section 17(3A) are directory, as held by me
c above, the deposit of 80 per cent of estimated compensation
within the period of limitation i.e. 15 days and prior to taking
possession of the land, has to be made. There is no ambiguity
in this requirement. Thus, it shall be the duty of the Court to fill
the lacuna (i.e., the consequences of non-payment of
compensation) to complete the chain of the legislative scheme
0
contained in Section 17 of the Act. Having taken recourse to
the emergency provisions and having taken possession of the
land, the Government and its authorities cannot be permitted
to defer the payment of the requisite amount, in terms of
Section 17(3A) of the Act, indefinitely or for an unduly long
E period. A responsibility is cast upon the authorities concerned
to make payments within time and not unduly cause
inconvenience and harassment to persons interested in the
compulsorily acquired land and who have been deprived of
possessory benefits also. Persons who are so deprived of their
F land and possessory benefits thereof, are not in a position to
carry out agricultural activity or derive any other benefit as they
might have been deriving prior to compulsory acquisition/taking
possession of the land. In other words, it is a case of deprivation
of property and to some extent deprivation of sources of
G income. Without hesitation, the claimants/owners of land
should be and ought to be entitled to certain additional benefits
within the legislative framework of the Act. Certain additional
and interest benefits are provided under Sections 23(1A),
23(2), 28 and 34 of the Act. The legislature has even taken care
H of providing higher rates of interest where the possession of
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 293
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]

the land has already been taken and compensation has not A
been paid or deposited within the specified time or in the
manner prescribed under Section 34 of the Act. Proviso to this
Section states that where the compensation payable, or any
part thereof, has not been paid or deposited within a period of
one year from the date on which possession is taken, interest B
at the rate of 15 per cent per annum shall be payable from the
date of expiry of the said period of one year, calculated on the
amount of compensation or part thereof which has not been
paid or deposited before the date of such expiry, until the time
such payment is finally made. We have to read the provisions c
of Section 34 together with the provisions of Sections 17(1)
and 17(3A) of the Act. They have to be construed harmoniously,
keeping in mind the object sought to be achieved by a conjoint
reading of these provisions. The expression 'before taking
possession of the land' has been used in Section 17 read with D
Section 17(3A) and in Section 34 as well. Once the
Government has invoked the emergency provisions, it is pre-
supposed that the Government needs the land urgently and, in
its wisdom, has decided that it is not in public interest to go·
through the normal procedure prescribed for acquisition and
payment of compensation under Part II of the Act. It requires E
immediate possession of the land for achievement of the
purpose for which land was required. As the Government
would take possession by depriving the land owners of some
of their rights, as would have been available to them under
normal acquisition procedure, the Legislature has created F
special safeguards in their favour. _Firstly, they would be given
_, days notice prior to taking of possession of the land (Section
9(1) of the Act). Secondly, 80 per cent of the estimated
compensation shall be paid to them in terms of Section 17(3A)
of the Act, before the possession is taken. Thus, the Legislature G
has balanced the rights and obligations between the parties.
Section 34, therefore, cannot be read so as to destroy the
protections or safeguards provided to claimants/owners of the
land under Section 17 of the Act. These provisions must be
read harmoniously. These provisions should be construed so H
294 SUPREME COURT REPORTS - [2011) 12 S.CR.

A ~s to give benefit to the owners of the land against compulsory
acquisition, _rather than accepting an interpretation which would
defeat the benefits intended by the legislature. The Legislature
was.fully aware of the provisions of Section 34 while introduciOg.
Section 17(3A) into the Act, as both the provisions wer.e
B introduced by the sama Amending Act of j984. This clearly
demonstrates the legislative intent that the protections specified
under Section 17(1) would operate in their own field and the
provisions of Section 34 would also apply in its own sphere. It
will be unfair, if the Government takes pos~ession of the
c property within 15 days of the notice issued under Section 9(1)
(as is contemplated under Section 17(1) of the Act) and does "
not make payment of compensation for a long period, with no
addi,tional liability whatsoever. It appears to me that this is not
the legislative intent that the Government would not be liable to
pay higher rate of interest where it has taken possession of the
0
land in exercise of its powers under Section 17 of the Act. It
will be unfair if the liability to pay higher rate of interest in terms
of se,ction 34 would arise only after a period of one year from
the ~ate of possession even in cases of emergent acquisition.
E Such an interpretation may result in frustrating the balance
sought to be created by the legislature. For these reasons, I
am of the considered view that the statutory benefit contained
in Section 34 of the Act should be made applicable to the
provisions of Section 17(1) read with Section 17(3A) iri\ the .
manner that it would give the requisite benefit to the owners/
F claim~nts of the land rather than deprive them of both, their land
and income, without any additional benefit despite non-
compliance of the provisions of the Act. Thus, the owners/
claimants should be entitled to receive, on the strength of these"
provisions and alike, the interest payable under the proviso to
G Section 34 i.e. interest at the rate of 15 per cent per annum
from the date of expiry of the period of 15 days as stated under
Section 17(1) and from taking of possession of the land from
the ov.iners/persons interested in the land till payment of
compensation in terms of Section 17(3A) of the Act. ·
'.
H
'.'
uEoELAi'."A1~T~cH-sER'v1cE"s p\)r~f[ro. ti,. 1ANR v~lj ;295
sTsTft.rE?di=·u.F>. 1&~XNR~\[swA1AKi9~R 1 r<urliiAR) J.J
This wo~i_ 'rtiege co11liitfbhs~tfavetorbers~H~fig(f cuffil!fi~t~~lyfand'\ A
Serrtt}falterhatiJely, ft0: 1give risWffiltne'1fiat)illtY torp~y,:iniePest 'Bf 15
areperJCerit!from1·the\:fate"'af8re?Sfated. 1Thisrappfoactffhru1· am
1nc1adopfing£iS-festrfctetf 4n 2applidation' to'>tfie~ acq'Oisitfori's 'lnade
1

l'2r5fthe Gove{hm~n't 1n ex~rci~1of Tt$E>eRt~rgency'poVJsFs'uRder
11!section ·~il6f tti'e 'AB!0 section5 34°woaf8r>otfierwl$e ropifg{e
in3 B
!~1 eits·own1 %ptler'eilnC:t1'.rily afi~fihe"lapse of the period specified
in4t!1.e ,Prex~e· .:L/?.f9SO.!JC}l.~§!_or:i,. ~flt~~ @P~xe::Gli~_Gl!S§JPJl: isA~at
sa.?~li1~P~P.J1~nc11 c.9!! 1n~YJ.SJ9'1~3 ~f ~~9ttqn~o17,(H :rea<:tiYJlth
c0r8~tq~\0n1J ~(~~):i~9in9 ~r~,o.Lr~~er ·!Q.e ~C!<!quj!)jti.Qn.,pi:s>c~~9.irigs
11 ,1~~~1,i~.P!\~p\~6?8 iff{({gd~JaiY1 D~~~Y.~r;;J!i~b,iJ!ty tt().:p<!Y iLl1t~rest: c
be ~t11~&/~~~ie!-J§~P1¥r;&~r~ri>~rtaQn,Mm.:~9!:1Jsl.·.ar!s~,((rpm~!tleJdate
Ian~~~ 1IBfo~~~.P..~~!C?9 C!fore::,n9~i9~9Gcvernmant under Secticn
11oo'tfie\prov'isions 1of sectiorl 1 11..\rai>P1Y''£li1'ilf~''a'2tju'fsition
in :pfo'cee'cfing~ceohlmenced bY th e"'Govefnrnerit'.'ln" exercise'
6

\ht of'its Ipowers ,..of urgency under. Section 1·7 of
the. Act? · . D
'/hj .~ d';1 rrorn _lt; ..• ,4u. ·:. '" l., uu. - .:;•·,I) <tb •JI tr<, I'\<, ro. •
c!":J•m th~~_.,_l ·h_av~;;alreqqy, noti~d that.SectionJ 1,1 Aiotthe,Act was
u 1 cJnJro,du~ce.P int9 ~~~}statute. book,py ,th~ ,L:egislatureivide .!.!and
d!c~9~uisition (Amendment) Act (68of1984). This provision was
.,
~n~r~~u~~~' p~i-~~r~~}or.i;_ro,.,~i~~, ;~.f~~ u.a rg~ a~~.,,t~. ~~~~r~)he:: E
interests' of ewners/persoiis interested~ twlieneverttie1t land was
acquirea 'Under' the-provisiq'ifs"of .tti'erAbt. L 'secfiori1 'ffA~clf the
1

AcfYteaasias'underJ:'.:lsoF c, tr>N~ ct r.::.is oeP". madi:: ... J~r
Secfrun 11 U ;0:1' t~e i. .1c,1g of oossession the land vests
in il1,1~.;:8eri9d:wi.thin1which,,ai:t award1shallfbelrnade.-
1,05(:1J t1'~e'-C91lector,sh<ill: make. an 1award11:1nden seatiom 11 F F
16 ~l~~_ir:ta p~rjqsj 19fitw9 y,e;usJc-0m ,the "date: of the:pliblication
be.<?!1t~~,~~c9lar_c:ttiq.n· and ifraoraward'!is made withimthat
witR~riQ.d,the·.e11tire.pro~edings· for:the acquisition of. the :land
6 §~~lblaP.S~: In the ord1nr.ry LdSe l'i'3'f'for'? '.'.her
Gc~""'ll""'d.""d"•th'"'t·1
r-rov1 e a -::in·tna r.1ak~
case w,.h.,ere
""'t,lird n.~1\'..,aravrt.ion
witdhrr;uec
e sa1 1r~hof
. as'.b'eeenG G
def;'ui>Hstie'cP b~t6'F,f 1
ffi'e lbd'm~rl(JWce1iie''Wt' i:lf" tli~":Cand
in 'A' ''·"' ·t''"'"'(;6t
acr•~j!~~ 1
9:~t~h
1
"·,8 '1
" rf"E.-A• t 1984"''iH '"~' u\'J~t huif
11
1 b
... .}6W.~t1We~)d.,1.~f~>1::t',, .,, ,!.J c11~oa'ffflf. ~.11~..} uf eh
maue w1 in a peno o wo ·years~· rom sue
the !)r"'"<:.l"n"' 0t St ccur:n ·1 , ·A 1ap:.t: IJ, 1•<.1 • ;:,e;.:.;11un
commenc.emen . · J
17( 1) 1s appueo by rt""ison of urgen..,1· Go·:~•.,rnent ta It es h H
296 SUPREME COURT REPORTS [2011] 12 S.C.R.

A Explanation.-ln computing the period of two years referred
to in this section the period during which any action or
proceeding to be taken in pursuance of the said
declaration is stayed by an order of a Court shall be
excluded."
B 44. A bare reading of the above provision shows that the
Legislature places an obligation upon the Collector to make an
award at the earliest. Wherever the award under Section 11 of
the Act has not been made within two years from the date of
publication of the declaration, the entire proceedings for
C acquisition of land shall lapse. Explanation to SeGtion 11A of
the Act further excludes from this period, any period during
which any action or proceeding, to be taken in pursuance of
the said declaration, is stayed by an order of a Court which had
been in force. Exclusion of no other period is contemplated
D under this provision. Thus, a definite intention of the framers
of law is clear that the award should be made at the earliest
and, in any case, within a maximum period of two years from
the declaration under Section 6 of the Act, if the acquisition
proceedings are to survive. The acquisition under the Act being
E compulsory acquisition, a safeguard or right has been provided
to the private party against the State. Thus, the statute imposes
a duty upon the State to act within time and also provides for
consequences that shall ensue in the event of default. These
consequences are of a very serious nature, whereby the entire
F acquisition proceedings shall stand lapsed. This would render
the land free from acquisition or any restriction and title over
the land would stand reverted to the owners/persons interested.
45. I have already discussed in some detail the principles
which will help the Court in determining whether a provision is
G directory or mandatory. It is clear from the substance of the
language and from the intention of the legislature that the right
created in favour of the citizen and the duties imposed on the
State should be construed strictly. Section 11A of the Act
provides for discharge of obligations within the specified time
H and there are serious consequences of such non-fulfillment.
DELH1 AIRTECH SERVICES PVT.. LTD. & ANR. v. 297
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
This would clearly lead to the conclusion that the provisions of A
Section 11A of the Act are capable of strict construction and
are mandatory in their application. In number of cases,
including the case of Mohan & Anr. v. State of Maharahtra
[(2007) 9 SCC 431], this Court has already held that Section
11A of the Act is mandatory. This view, with respect, and for s
the reasons recorded above, I follow.
46. A three-Judge Bench of this Court in the case of
Satendra Prasad Jain (supra) went further to specifically
· consider the question as to whether the provisions of Section
• 11A of the Act were attracted and, if so, whether they should · C
be strictly construed and where the possession of the acquired
land is taken and it is vested in the Government under Section
17 of the Act, whether the acquisition proceedings could lapse
in terms of Section 11A of the Act. Answering the question in
the negative, the Court stated that the Government could not D
withdraw from the acquisition under Section 48 of the Act and
claim the benefit of its own default in not making an award within
the period of two years. The Court laid down the following
dictum: ·
E
"15. Ordinarily, the Government can take possession of
the land proposed to be acquired only after an award of
compensation in respect thereof has been made under
Section 11. Upon the taking of possession the land vests
in the Government, that is to say, the owner of the land
loses to the Government the title to it. This is what Section F
16 states. The provisions of Section 11-A are intended to
benefit the landowner and ensure that the award is made
wittlin a period of two years from the date of the Section
6 declaration. In the ordinary case, therefore, when
Government fails to make an award within two years of the G
declaration under Section 6, the land has still not vested
in the Government and its title remains with the owner, the
acquisition proceedings are still pending and, by virtue of
the provisions of Section 11-A, lapse. When Section
17(1) is applied by reason of urgency, Government takes H
298 _.SUPREME COIJRT· REPORTS [2011] 12 S.C.R.
'

, A possession Qf-the land prior to the making of the award
under Section. 11 and thereupon the owner is divested of
the title to the land which is vested in the Government.
Section ,1((1)1states,so in ur;imistakable terms. Clearly,
'": Se~ti 0 n 11-A can have no application to cases of
.1 B acquisitions under Section 17 because the lands have
• already vested·in the Government and there iS no provision
·-'-"' in the said Act by which land statutorily vested in the
• · Government can revert to the owner. ~ ·
; ,(. ""'!

·. C . 16.-Further, Section, 17(3-A) postulates -that the.owner will
,, be offered an amount equivalent to 80 per cent of the
estimated (;ompensation for the lan9 before the
Government takes possession of it under-Section 17(1 ).
Section 11-A cann9~ be so construed as to leave the
- Government holding title to the land without the obligation
D to determine compensation, make an award and pay to
the owner the differ~nce be~een the amount of the award
.. , ~nd th_e amount of 80 per cent of tl:le estimated
cqmp~11s.ati911."· ·

E · __ 47': This judgment w~s followed by another_ Bench of this
Court in the case of Awadh Biha(i Yadav & Ors. v. State of
·' Blhar& brs. [(199'5) 6 SCC-31], which held, ".:.we, therefore,
'hold that the land ·acquisition proceedings in the instant case
·_ did not'lapse .. .'1•• - ' ' ' ' .

F _, . 48. The principle of law stated in Satendra Prasad Jain
(supra) was again followed by this Court in the case of P.
Chinnanna & Ors. v. State of A.P. & Ors. [(1994) 5 SCC 486]
and Pratap (supra) and in the case of Allahabad Development
Authority v. Nasiruzzaman & Ors. [(1996) 6 SCC 424], this
G Court held as under : ·

"In the impugned judgment, it would appear that the
learned Judges asked the counsel to verify whether the
' award came to be made within two years, as indicated.
. j' I The counsel on verification had stated that the award was
H ~ ~ 1 .1

' '
00.~F_LH,l:~l~T.l;~lj:S~~VICES.P,VT.rL:rD. &. ANR. v. ..m 299
s1?.TAT~f()JJ :w.e. ,&-h.N~~·[SWATANTf:R~KUMAR,1J.]

notificatlJlqt rpa_d_e withi_f1Jwo_years fiom:th~ com.menoe01ent,of.the•. A
m its s~me;icilIT-!_eQ:t-,f'.ct, ,1"1Pniely;i24~9;- 1~84h0on,s~quently;1the
prcceeJ:!e~l_a~atiOfl wa~;giyenit.haht~e:noJificationfundecSe.ction
a·
This .,~(1 )ran~,tQ~2.c1~cl~_rntioncuflder- Sectionrfostoo~hlap~ed.
this C,.,J~,i~,~qu.e§Jiqn.. wa_s'"'f?X:a,mip_ed~by,this1 Court1iric.$aJ~ndra
the :ntr R_rq~(!g;_.Jaif1 tl!'<~tat~·P.f#.:P;.and.:Awadh ,f3j/:Jari.,rYCIQ<W V3 B
w<..::. r: ~$fa,(~,p~~!~.at;;.~ridlhel~: th,at.$13cti90 t:l.1 rA-.does npt·apply
.-::c;r 1-•t.ttoJ qia~se.s .:ofu,?cquisiti 011s ,.u n~:teJ rLS~c.tiond1t7Jrwhe re
m 3 king p9s§eS§(og ·'!"as .alreadY:~k.el'),;anqe the J<:tnc:! ;§tooc:l vested
contranin'"""~t:i~sStgte,.ii.,IQ~; [IOtificaJio_nc;.unq,erc.Se.ctions4(1):·and
rn 3 C:E ac:le.c\a[atto~n'.~89~x·?e.Gti9f13(),_qto1no.td~pse due:t~»failur;e tee c
the ,Act rp_a_kf?,La!l award within two years from the date of the
decla!ation. The view of the High Court ls erroneous in
ln1aw:'"••st µn;e as th'id by the 1ea•r ..::d :.:>:ngle Judge
!1,,n:->e!f whu.: .~"' c'\~~ 1r coverea bv Section 17. th:
0 " 1.~· )~.a, ,v.ery rece~~ i:l!dg~~t ofa .Di~i.sio~ B~_nch of this
Court" (to
)- .
which,
' . one of
,
us,
. Asok
- ...
Kumar
... . Ganguly,
' . . J.
-..,; .. was
' .. ...., a D
m~rri~~r) i!1 t,t]e; ca~~ ~f, B~nd§1 f?~'{e{opm~a~ (l.y.fhorf!Y: ,?a_nda
v. /'!ptJr~f!!,~f!8,'J(.al ,~)?.rE: C~91JiJ~) ;§~l\~~~!78J. !'2J~,.g9urt
fol!~~d t.~.e,,afo~~sai9.~e~1w~m. f~rt_h,~r; c:.l~Ji~c~ti~n.., ~~Etf~lly,
pa~~-9f~~h§i~~u3~~~[19 ~8,~0~t..§~.i~jY,<~9~.!!1~!I;Re;5~f~lfed
to~at1th/~,~t~f!';u~R!Eh flr8J}, ?~iH~9~fo: ''d :apse arc'. tr e i:'!r.d i: E
,:Cf·3s.r -xxx 'xxx.:xxxt·· 1:.:.,.... ·.
51 .. Jtv)• If :behefidary1 of tlfe :-acqOisition;fis~a:n ;;a-gency/
01.JSt I v~nstrilrnentality~f11the C.State-t.rn:a c86%~16f i th•e\ t6ta I
2.::qu's1compensation'is"depo'sited1rrterrns-0fSe"ction 17(3Arand- F
before ~substantiallpdrtioh~'of the~ acquirediia na •nEis<beerf utilized.
it eve .1 in:,furtherance'of2the"-partitular~pliblic)ptfrpose~thencthe
b"'t"··c·!Court~may :reasoi'fab'lyipresume!that p·ossessioiiCof'the
of ll'e f!bquired1land has-b'een taken_0pon 1:s -;:ir ,. ~~ior m
paragrq.Jh ti of th,, 1udament and cannct be tr~ated as ra\o
dec.Jc:ridi of ~~~.X.~~.~¥0:- a preccden< for the proposifa•n G G
ra1~ed '36t10nce'itris ctield that "p'os'session IOfittieiacqu1rea land
arg ... __ was handed oVer:to'the 1BDNonl30.62001\ the view taken
Sec!iurby '.the High,Cou'rtAhat•tn-ecacquisitioh ~prooeedings 'tlad
1,w tr.olapsed:due'to nor:i,:cdmpliance 1of Sectioni11A,cannot•be .
· d
sus tame ...... H H
300 SUPREME COURT REPORTS [2011] 12 S.C.R.

A xxx xxx xxx
38. In the result, the appeal is allowed. The impugned order
is set aside and the writ petition filed by Respondent No.
1 is dismissed with cost quantified at Rs. 1,00,000/-.
Respondent No. 1 shall deposit the amount of cost with
B
the Appellant within a period of two months from today."

50. However, the learned counsel appearing for the
appellant has placed reliance upon a judgment of this Court in
the case of Yusufbhai Noormohmed Nendo/iya v. State of
C Gujarat [(1991) 4 SCC 531] to contend that the provisions of
Section I 1A of the Act are applicable to the acquisition under
Section 17 as well. For non-adherence to those provisions, the
entire acql!isition proceeding should be declared to have
lapsed and the applicants should be entitled to their lands free
D from any encumbrance. Let me analyze this judgment to
appreciate the contention raised by the counsel appearing for
the appellants. In this case, the appellants were occupants of
the lands sought to be acquired by the State of Gujarat for the
purposes of establishing North Gujarat University and
E notification under Section 6 of the Act in respect of the said
land was issued on 12th May, 1988. An interim order restraining
the State from taking possession was granted by the Court.
However, the Acquisition Officer proceeded to issue a notice
under Section 9(1) of the Act and determined the compensation
F payable. As the award had not been made, the appellants
therein had made a representation to the Government that the
award had not been made within the period of two years
mentioned under Section 11A of the Act and, therefore, the
acquisition proceedings had lapsed. This plea was rejected.
G The appellants filed an application challenging the said
decision, praying for a declaration that the acquisition
proceedings had lapsed. The Division Bench of the Gujarat
High Court took the view that the explanation to Section 11A
is not confined to stay of making of the award pursuant to

H
" ~DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 301
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.] .

notification under Section 6, but it is widely worded and covers A
in its sweep the entire period during which any matter or
proceedings due to be taken are stayed by a competent Court.
This decision was challenged before. this Court. In other words,
this Court, in Yusufbhai (supra), was primarily concerned with
the interpretation of Explanation to Section 11A of the Act and B
was determining the period which needs to be excluded while
computing _the lir.iitation period of two years provided for the
making of an award. While rejecting the view taken to the
contrary by a Single Judge of the Kerala High Court, this Court
made a reference to taking of possession under Section 17 of C
the Act and held :

"In the first place, as held by the learned Single Judge
himself, where the case is covered by Section 17, the
possession can be taken before an award is made and
we see no reason why the aforesaid expression in the D
Explanation should be given a different meaning
depending upon whether the case is covered by Section
17 or otherwise
. ... The benefit is that the award must. be
made within a period of two years of the declaration, failing
which the acquisition proceedings would lapse and the land E
would revert to the landholder. .. ".

51. lt is obvious from a bare reading of the above
observation that the question of applicability of Section 11A to
acquisition proceedings under Section 17 was not in issue
before the Court. This controversy was neither argued nor was F
it even remotely necessary for the adjudication of the dispute
between the parties. These observations are merely an obiter
of the Court, which is made to support its conclusion in
paragraph 8 of the judgment and cannot be treated as ratio
decidendi of the judgment or a precedent for the proposition G
raised in the present case. The learned counsel attempted to
argue that the expression 'whether the case is covered by
Section 11 or otherwise' unequivocally states the principle of
law that Section 11A is applicable to the present case. I am
H
'.C 302 SUPREME COURT REPORTS [2011J 12 S.C.R.

A unable to accept this contention as it is not an authority for the
proposition,. This controversy ,was never raised before the
Bench. The argument raised on behalf of the appellants is,
therefore, misplaced. -
52. A half.hearted attempt was also made by the learned
8
counsel for the appellants to advance the argument that there
is difference of opinion by equi Benches
.
of this Court,
~ -.
in the
case bf Satenara Prasad Jain (s'upra) on the one_ hand and
'. Yusufbhai Noormohmed Nehdolia (supra) on the other and,
therefore, this matter should be referred to a larger Bench. I
Gt am not impressed with this ·contention at ·all. There is no
;e; conflict. Satendra Prasad'Jain (supra) lays down the law and
·- on true application of the-principle of raiio decidehdi, it is a
r direct precedent for the proposition 'involved in the present
r
p case. can squarely answer the questions of law arising in the
D present case with reference to the settled principles and,
therefore, have no hesitation in rejecting this request made on
behalf of the appellants. · '
' ·1

53. Let me also examine the othe.r reascms1which will
E ._. support the view taken by this Court in Satendra Prasad Jain
(supra) and followed in subsequent cases referred. above.
£:Section 17(1) of the Act uses the expression 'though no such
c award has been made'. This clearly demonstrates thatmaking
, of an .award .is not a sine qua non for issuance.of a notification
= ~,under Section 4(1) read with Section 17(1) of -the ~ct or even
taking possession· in terms thereof. . After publication of a
..notification under Section 4 read with Sections 17(1) and 1-7(4)
·~of the Act, the authority is obliged only to publish a notice under
crSection 9(1) of the Act and comply with the provisions of
.-,;Section 17(3A) before it can take possession within the
3 <-_stipulated period. Once possession of the land is taken, it
· ·:shall thereupon vest absolutely in the Government free from
•(.all encumbrances. In other words, Section 17(4) itself is a
;permissible exception to the provisions of Section 11 of the Act
and, therefore, the question of enforcing Section 11A against
H
DELtt!;~l~lZ!;Gtt.::_§,F-:RY!.Cs~:l:Y;TF~TDt {!c:_A~giJI{,< 1,303305
STAtEF1~f: l:l.P.L&rANR: [Syvf.-JAf~{fE.~1KUM~R;;,:J.;], J l
proceedings ung~u§>:t?ctionJ7,w9ulcj 1 oot arise. Under Section A
16, the land shall vest in the Government free from all
encumbrances bhly:iafter'tfie"'.Jaward' ls rmade' ~hdri:ibgs&s'Sfon'ecr
is taken. In contrta'diStinction to this, under Section 17(1) the land
shall ves_!, ab~olyt~!¥,1 L~ntrve 11 G9,ver11m~~Lrfr;~-e.J£.gl1'! 1 ~.!I thF•
encumbrances e')i~.r.\..i~D~~ 1.m~~flW!lrd i~. ma,d~ ~Q.(! ROSSe~§i0_!1 -rB g
thereof is taken~in, 1e.~rn~ . . ~f,~7ction~ A?O) -.a.~~ 1 ~_7(3A) pf the
Act. We have t~ giy~~!h.~1 .l_an_g:uag~.::.~f,~~~E2nJ?.(1),!t~ plain
meaning, within.Jhe ,field of its operation. Another reason in
VI I ( . • l I.'•

support of taking such a view is that, once such possession is
taken ana·cthe~1and1:ts~o<vested/tthe· Act Cf()(55Jf.16t~mak'e"'.any., 4c c
provision Ioli te-:Vesting ·ot <1ant1 in'the~o·wnerstpers6Lns t.<e
inte restedJ mReversi6n·£ of ttitle itort'possessi oh vo'f i property r .:; ,...,
acquired;•whichthas vested in theiGovetrinient orlri theiauthotitY ,, f'n
for Whose bei'iefit such:ilands ;are acquiredfiis ·urtkri6wn·t<i'the ha"
~cheme1 ?f'.1the -~ct. 'l•ifo'•in_~·roduC'e~ s~~~~.'~ ~on~~pFbY 1 r 0
interpretative processwould he1ther be perm1ss1ble nor-proper.L !r-.)
1

1n UiP r,ol •l'lr'1'JJ1I Let '')I"', a;' e.-curr,t,r.;1r·~,_):' "•t\."'E. •· ·.• ·'
DiSCi!~sjq~ 8~·rex~..'1,ir;t9 1 ~.~c~.J?f~:Ja~~!..~giJ~~~O~!l~[S-!!1 • .,,
terms of.Section
'q ·
t...sll\,.l\;OJ
48 of the..J,Act,
U\,.l1
· .. t h ....• 5 ·,ee
u•- •-'-'
'\'' 1 ,1
~ ta"" c2 ·.
1;
. : '1

54:'W'Gonstitiitiofi(Benchrof'this"Ccfurt: (fo'wHichi 1'was a . ,. '
r.
member)l;iri tnesrecent(jtidgme'nrin'tfhetcase t{jfr0ffsh6re · _E
Holdings rwt.:;ft'i:l., V.'Ba'ngaiBre't)~vei5firffenrAWh'orlty& brs? •~ tl
[(2on r•3"s-ccu1391~ while '(iea1in-9· with1 m~2 provisiori'~fcot ;.'~
1

sections 211md ·36 'of ·the"Bati9a·1ofe' oevelopfiienf :A.utfiofity'?"'
Act fea'<:Vwith"'the provisionsiof 'tlie~1 12aiid,rAcquisfiion•tAct}anc:f10 s 3
whil~refefring 1t6 1 non~reversio'n 'of"pfoperty'tcrowner$nwtiere'we •F. F
is vested:ifi'the Govern'riierif tield a!Hi'nder :1 "! 4 -'r v f, • 1'1a 11
Sh3rma L\ iq70) 2 sec ;49' t•is c",/t took •re view th.:it cr.ce
i\W~~[~n l}PO!J ·CQmpleti9ri:of.,the i~c9uisition ,proceedings; a ".a
.-- !tp~}i:in<!(has 1 "'.e,st~d)l}tt~e,st~te Government in1terms<ofit1on
,?_eiction ,116 of,,th_e 1Land...: t.cqui~ition_;A~t.1 ttie acquisition,e. G Ci
~R.Ul~.:f!Ot.lap~~!or.termin~te ;C!Sla ,result1of,·le1psing of the·'£.· ...
,§9!/e_1!1~~!-Jnd~r 1 S.~c_tiqn 27tof th~Jl?DA..:tict:i 1J~.i1Jargument n . ~
!9 t,!i~ ~c;:optfary"-caQnot b~, ac,cepted f9r J~e:r,eason, that: on
vesting, the land stands transferred and vested in the
stateiAutlioritY·tre'a tromrah encumbrances'and1sucn'Status
1
t"H
304 SUPREME COURT REPORTS [2011] 12 S.C.R.

A of the property is incapable of being altered by fiction of
law either by the State Act or by the Central Act. Both
these Acts do not contain any provision in terms of which
property, once and absolutely, vested in the State can be
reverted to the owner on any condition. There is no
B reversal of the title and possession of the State. However,
this may not be true in cases where acquisition
proceedings are still pending and land has not been vested
in the Government in terms of Section 16 of the Land
Acquisition Act.•
c 55. As already discussed, no award is required to be
made before the provisions of Section 17(1) can be invoked.
Such an approach is further buttressed by another factor that
is reflected under Section 17(38) of the Act. The amount of
80 per cent of the estimated compensation deposited under
D Section 17(3A) of the Act is to be finally adjusted against the
award made under Section 11 in terms of Section 17(38) of
the Act. A cumulative reading of these provisions clearly
suggests that provisions of Section 11A of the Act can hardly
be applied to the acquisition under Section 17 of the Act.
E
Another point which would support the view that I am taking
is with reference to the provisions of Section 48 of the Act.
Section 48 empowers the Government to withdraw from the
acquisition of the land of which possession has not been taken.
F Where the Government withdraws from such an acquisition, it
is its duty to determine the amount of compensation for the
damages suffered by the owners as a consequence of the
notice or any other proceeding taken thereunder, which amounts
have to be paid as per provisions of Part Ill. Section 48, thus,
is a clear indication that the power of the Government to
G withdraw the acquisition is subject to the limitation stated under
Section 48 itself. The scheme of Section 48 can be
summarized as follows:
A. Except in cases provided under Section 36, the
H Government has the power to withdraw from the
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 305
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
acquisition of any land; A
B. "' Provided the possession of such land had not been
taken;
C. Government is liable to pay compensation for the
damages suffered by the owner as a consequence B
of notice or any proceeding thereunder which have
to be computed in accordance with the provisions
of Part Ill.

56. There is no ambiguity in the language of Section 48
of the Act to give it any other interpretation except that the C
Government is not vested with the power of withdrawing from
the acquisition of any land, of which the possession has been
taken. Where the award has been made and possession has
been taken, the land vests in the Government in terms of
Section 16 of the Act. On the contrary, the land vests absolutely D
in the Government free from all encumbrances where award
has not been made and only possession as contempiated
under Section 17(1) of the Act has b~en taken. If the
Government has no power to withdraw from acquisition of any
land, the possession of which has been taken, then by no stretch E
of imagination can it be held that the Government will have the
power to withdraw from the acquisition of any land where the
land has vested in the Government or the land has been
subsequently transferred in favour of an authority for whose
development activity the lands were acquired. In the case of F
Lt. Governor of Himachal Pradesh and Anr. v. A vinash
Sharma [(1970) 2 SCC 149 ], this Court took the view that once
the notification under Section 17(1) of the Act is issued and
land accordingly vested with the Government, the notification
can neither be cancelled under Section 21 of the General G
Clauses Act nor can it be withdrawn in exercise of powers
conferred by the Government under Section 48 of the Act. This
Court in Avinash Sharma's case (supra) held as under:
"But these observations do not assist the case of the
H
3062 SUPREME COURT REPORTS (2011] 12 S.CR.

A appellants. It is clearly implicit in the observations that after
possession has been taken pursuant to a notification
under Section 17(1) the land is vested in the Government,
and the notification cannot be cancelled under Section 21
of the General Clauses Act, nor can the notification be
B withdrawn in exercise of the powers under Section 48 of
the Land Acquisition Act. Any other view would enable the
State Government to circumvent the specific provision by
relying upon a general power. When possession of the
land is taken under Section 17(1 ), the land vests in the
c Government. There is no provision by which land statutorily
_vested in the Government reverts to the original owner by
mere cancellation of the notification."

57. In another case titled Rajasthan Housing Board and
Others v. Shri Kishan and Others [(1993) 2 SCC 84], this
D Court was concerned with a notification issued under Section
4 of the Act and also a notification issued a few days after the
issuance of the first notification, under Section 17(4) of the Act.
Thesewere challenged on the ground tha_t there was no urgency
and so, the provisions of Section SA of the Act could not be
E dispensed with and that there were structures on the land which
coul~ not have been acquired. An argument was also rajsed
that the Government had intended and, in fact, issued letters .
de-notifying the lands acquired and, thus, they should_ be
treated as having been de-notified as per the decision of the
F Government. In these circumstances, the Court held as under:
~ '

"26. We are of the further opinion that in any event the
government could not have withdrawn from the acquisition
under Section 48 of the Act inasmuch as the Government
had taken possession of the land. Once the possession
G of the land is taken it is not open to the government to
withdrawn from the acquisition. The very letter dated
24.2.1990 relied upon by the counsel for the petitioner
recites that "before restoring the possession to the society
the amount of development charges will have to be returned
H
DELHI AtRTECH SERVICES PVT. LTD. & ANR. v. 307.
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
back... : This shows clearty that possession was taken over A
by the Housing Board. Indeed the very tenor of the letter
is, asking the Housing Board as to what development work
they had carried out on the land and how much expenditure
they had incurred thereon, which could not have been done
unless the Board was in possession of the land. The B
Housing Board was asked to send the full particulars of
the expenditure and not to carry on any further development
works on that land. Reading the letter as a whole, it' cannot
but be said that the possession of the land was taken by
the government and was also delivered to the Housing c
Board. Since the possession of the land was taken, there
could be no question of withdrawing from the acquisition
under Section 48 of the Land Acquisition Act, 1894."

58. In the case of Sanjeevanagar Medical & Health
Employees' Cooperative Housing Society v. Mohd. Abdul D
Wahab and Others [(1996) 3 SCC 600), it was held that the
acquired land had already been transferred to the society for
the benefit of whlch the lands were acquired, by invoking the
urgency clauses. The question of reverting acquired land had
not arisen in this case directly, as the Court was primarily E
concerned with the contention that the notification issued under
Section 4 was liable to be quashed. A question, with regard
to inconsistency between the Central and the State Acts, was
also raised. The Court, in paragraph 12 of the judgment, held
that by operation of Section 16, land had been vested in the F
State free from all encumbrances and while referring to the
judgment of this Court in Satendra Prasad Jain (supra)
reiterated the principle that 'Divesting the title to the land
statutorily vested in the Government and reverting the same to
the owner is not contemplated under the Act. Only Section 48 G
gives power to withdraw from acquisition that too before
possession is taken.'
59. This principle was followed by another Bench of this
Court in the case of Bangalore Development Authority and
H
308. SUPREME COURT REPORTS [2011) 12 S.C.R.

A Others v. R. Hanumaiah and Others ((2005) 12 SCC 508)
wherein, it was held as follows:
"46. The possession of the land in question was taken in
the year 1966 after the passing of the award by tha Land
Acquisition Officer. Thereafter, the land vested in the
B
Government which was then transferred to CITS,
predecessor-in-interest of the appellant. After the vesting
of the land and taking possession thereof, the notification
for acquiring the land could not be withdrawn or cancelled
in exercise of powers under Section 48 of the Land
c Acquisition Act. Power under Section 21 of the General
Clauses Act cannot be exercised after vesting of the land
statutorily in the State Government."

60. Similarly, even in the case of National Thermal Power
o Corporation Limited v. Mahesh Dutta and Others [(2009) 8
SCC 339), the Government had desired to withdraw lands from
acquisition after the lands had vested in it, in exercise of its
power under Section 48 of the Act. Rejecting the contention
of the State in paragraph 16 of the judgment, the Court stated
E that 'it is a well settled proposition of law that in the event the
possession of the land, in respect whereof a notification had
been issued, had been taken over, the State would be denuded
of its power to withdraw from the acquisition in terms of Section
48 of the Act.' The Court then went to the extent of expressing
F the view that the possession taken may be symbolic or actual.

61. I must notice that in the case of U.P. Jal Nigam,
Lucknow through its Chairman and A.nother v. Kalra
Properties (P) Ltd., Lucknow & Others [(1996) 3 SCC 124), a
Bench of this Court had made a passing observation in
G paragraph 3 of the judgment:
"It is further settled law that once possession is taken by
operation of Section 17(2), the land vests in the State free
from all encumbrances unless a notification under Section
48(1) is published in the Gazette withdrawing from the
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 309
STATE OF U.P. & ANR. [SWATANTE:R KUMAR, J.]
acquisition. Section 11A, as amended t>y the Act of 68 A
of 1984, 1herefore, does not apply and the acquisition does
not lapse".
62. The aforesaid observations that the State may issue
'a notification under Section 48(1)' and this notification may be
'published in the Gazette withdrawing from the acquisition', are 8
nothing but an obiter of the Court without any discussion
thereto. The question whether the acquisition proceedings
lapse or that the notification cancelling acquisition could be
issued after the possession is taken, where the land has
vested in the Government did not arise in that case. The Court C
was primarily concerned with three main questions:
1. What was the effect of possession of land
subsequent to notification issued under Section
4(1) of the Act?
D
2. Whether the provisions of Section 11A of the Act
would apply to the acquisition under Section 17(1)
, read with Section 17(4~.of the Act? and
3. How the market value should be determined?
E
63. Firstly, if the said interpretation is given, it shall be
contrary to the specific language of Section 48 of the Act.
Secondly, the learned Judges did not refer to any judgment of
this Court while making the observation that 'it is further settled
law'. I have referred to the consistent view of this Court right F
from the year 1970 till 2011 and no judgment to the contrary
has been brought to the notice of the Court. Thus, I must hold
that the observations made in paragraph 3, as reproduced, are
merely an obiter and not a binding precedent
64. The lands which have been acquired under the G
provisions of Section 17 of the Act are incapable of being
reverted to the owners/persons interested. The Act does not
make any such provision and, thus, the Court is denuded of any-
such power. The Court must exercise its power within the
framework of law, i.e., the provisions of the Act. H
310 SUPREME COURT REPORTS [2011] 12 S.C.R.

A 65. In the case of an ordinary acquisition, if the land has
vested in the State Government then neither the Government
nor the court can take recourse to the provisions of Section
48(1) of the Act, there the question of applying Section 11A of
the Act to acquisition proceedings under Section 17 of the Act
B cannot arise, as it would tantamount to achieving something
indirectly which would be impermissible to be achieved directly.
For all the above reasons, I hold that Section 11A of the Act
has no application to the acquisition proceedings under the
provisions of Section 17 of the Act.
C 66. There is no dispute in the present case that the
provisions of Section 11A of the Act have not been complied
with. Admittedly, the notification under Section 4(1) r~ad with
Section 17(4) was published on 17th April, 2002, declaration
under Section 6 was made on 22nd August, 2002 and the
D possession of the property was taken on 4th February, 2003.
The award has been made on 9th June, 2008, much after the
expiry of the prescribed period of two years under Section 11 A
of the Act. There being an admitted violation of the provisions
of Section 11A of the Act, the natural consequence is that its
E rigours would be attracted. However, the most pertinent
question that arises for consideration is: whether the provisions
of Section 11A of the Act are applicable to the acquisition of
land under Section 17 of the Act?
67. The main thrust of submissions on behalf of the
F appellants is that the provisions of Section 11A of the Act would
be attracted even to the acquisition proceedings undertaken
by the appropriate Government in exercise of powers vested
in it under Section 17 of the Act. It is contended that Section
17 in the scheme of the Act is at parity to the normal and
G ordinary process of acquisition except that it is a power to be
exercised in urgent basis. The other provisions like publication
of notification under Section 4, declaration under Section 6,
notice under Sections 9 and 12 and passing of award under
Section 11 of the Act are argued to be essential features of
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 311
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
an acquisition made under Section 17 of the Ad. as wen. Thus, A
it is submitted that the provisions of Section 11A of the Act
would also apply to an acquisition made under Section 17 of
the Act. If an award is hot made within two years from the date
of declaration under Section 6 of the Act, the acquisition
proceedings should lapse irrespective of whether the B
acquisition had commenced under Section 4 by invoking
powers of urgency or otherwise. It is argued that there is no
justification, whatsoever, for excluding the application of Section
11A of the Act from acquisitions made under Section 17 of the
Act. On the contrary, the contention on behalf of the c
respondents is that provisions of Section 11 A of the Act have
no application to the provisions of Section 17 of the Act. In fact,
there is an apparent, though limited, conflict between these
provisions. The very purpose and object of the Act would stand
defeated if provisions of Section 11A of the Act are applied to
0
the acquisitions under Section 17 of the Act.
68. I may now examine the scheme of the Act, with
particular reference to the difference between acquisitions in
exercise of emergent powers under Section 17 of the Act and
the acquisitions made otherwise. In both the cases, notification E
under Section 4(1) has to be published in accordance with the
provisions of the Act. Notification under Section 4 is a sine
qua non for commencement of the acquisition proceedings and
this has been the consistent view of this Court right from the
case of Narender Jeet Singh v. State of U.P. ((1970) 1 SCC F
125] wherein the Court clearly held that issuance of a
notification under sub-section· ( 1) of Section 4 is a condition
precedent to exercise of any further powers under the Act and
the notification issued under that provision should comply with
the essential requirements of law under that provision. G
Thereafter, the owners/persons interested have to be given an
opportunity to file objections as contemplated under Section 5A
of the Act and after granting them hearing, a declaration under
Section 6 of the Act has to be published. Subsequent to the
publication of such a declaration, notice under Section 9(1) of H
' 312 SUPREME COURT REPORTS [2011) 12 S.C.R.

A the Act has to be issued stating the intention of the Government
to take possession of the land and that claims for compensation
and for all interests in such land may be made to the competent
authority. Following the procedure prescribed, an award has
to be made under Section 11 of the Act awarding
B compensation for acquisition of the land with its complete
details. Under the scheme of the Act, in the event of an ordinary
acquisition in contradistinction to acquisition in exercise of
emergent powers, if the award is not made within a period of
two years from publication of the declaration under Section 6,
c the acquisition proceedings would lapse. In these proceedings,
the possession of the land remains with the claimant/owners
of the land and it is only when the award becomes final in terms
of Section 12 of the Act, possession of the land is taken and
the acquired land vests in the Government free from all
encumbrances under Section 16 of the Act.
0
69. Where the lands are acquired in exercise of emergent
powers of the State under Section 17 of the Act, a notification
under Section 4(1) of the Act is issued and the notification itself
refers to the provisions of Section 17(1) as well as Section
E 17(4) of the Act. A specific power is vested in the appropriate
Government to declare that provisions of Section 5A woul,d not
be applicable to such acquisition. Therefore, there is no
obligation upon the Collector/authority concerned to invite and
decide upon objections in terms of Section 5A of the Act, prior
F to publication of a declaration under Section 6 of the Act.
However, notice under Section 9(1) of the Act has to be
published to completely and fully invoke the powers vested in
the State for taking possession of the land, in terms of Section ·
17(1) of the Act. After the expiry of 15 days from such
G publication under Section 9(1), the possession of the land can
be validly taken by the Government, whereupon the land would
vest absolutely in the Government, free from all encumbrances.
In other words, for proper computation of the specified period
of 15 days, issuance of notification under Section 9(1) of the
Act would be necessary, but it cannot be held to be mandatory
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 313
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
in its operation so as to render the execution proceedings A
invalid. In the case of May George (supra), a Bench of this
Court has expressed the view that the notification under Section
9(1) of the Act as contemplated under Section 17(1) of the Act
is not mandatory.
70. Before the Government takes possession of the land B
in exercise of its powers under Section 17(1) of the Act, it has
to comply with the requirements of Section 17(3A) of the Act.
· The amount so paid, if falls short, and/or is in excess of
compensation actually due to the land owners, the same shall
be determined and adjusted while making the final award under C
Section 11 of the Act. It is evident that both these acquisitions
have distinct schemes of acquisition. Section 17 of the Act
itself refers to some other provisions, like Sections 5A, 9, 11,
·and 31 of the Act. Wherever such reference was considered
necessary by the Legislature, it has been so made. Thus, there D
is no occasion for the Court to read into Section 17, the
language of Section 11 A of the Act which has not been provided
by the Legislature; more so.,,,when doing so would destroy or
frustrate the very object of the urgent acquisition. Marked
distinction between the implementation of these two types of E
acquisition schemes contained in the Act is clearly suggestive
that these schemes operate in their respective fields without
any contradiction. Hence, the Court would adopt an
interpretation which would further such a cause, rather than the
one which will go contra to the very scheme of the Act. F
In my considered view, it will be difficult for me to hold that
.the provisions of Section 11 A of the Act, despite being
mandatory; would apply to the scheme of acquisition contained
under Section 17 of the Act.
Whetherthe ClaimantS can be granted any relief even on G
equitable grounds? ·"
71. The facts, as already noticed by me above, are hardly
in dispute. Admittedly, the possession of the land had been
H
314 SUPREME COURT REPORTS [2011] 12 S.C.R.

A taken on 4th February, 2002 and the Writ Petition No. 2225 was
filed by the petitioners in the year 2006 i.e. after the possession
has been taken. In terms of Section 17(1) of the Act, the land
has been vested absolutely and free from all encumbrances in
the Government. After vesting of the land, the development
B activity had been carried out over the years and it is informed
that Sector 88, NOIDA is fully developed and operational.
72. Once the development activity has been completed in
the entire sector, will it be equitable to release the lands from
acquisition? Even if for the sake of argument, it is assumed
C that there is some merit in the contention raised on behalf of
the appellant, the answer has to be in the negative. It is settled
canon of equitable jurisdiction that the person who feels
aggrieved by an action of the State should approach the Court
without any unnecessary delay, particularly in cases such as the
D present one. While the notification under Section 4 read with
Sections 17(1) and 17(4) of the Act was issued on 14th April,
2002 and possession taken on 4th February, 2003 the writ
petitions in question were filed in August 2006, i.e., more than
four years subsequent to the issuance of the notification under
E Section 4. It was contended that the cause of action to
challenge the acquisition proceedings arose only after the
period of two years had lapsed from the date of issuance of
the notification. Even if that be so, still there is an unexplained
and undue delay of more than two years in approaching the
F Court. This would itself disentitle the appellants to claim any
equitable relief in the facts and circumstances of the present
case.
73. I must not be understood to say that in every case of
delay, per se, the Court would decline to exercise its jurisdiction
G if the party to the /is can otherwise be granted relief in
accordance with law. This has to be decided keeping in view
the facts and circumstances of a given case.
74. It is not in dispute and, in fact, can hardly be disputed
H that in the intervening period of nearly ten years, the acquired
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 315
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
areas have fully developed. Not only this, it is informed during A
the course of hearing that the award was finally made by the
authorities
I
on 9th June, 2008 and has been accepted by nearly
97.6 per cent of the owners whose lands were acquired vide
the said notification. In other words, nearly all land owners have
accepted the award and permitted the development activity to B
be carried out. This conduct of the owners as a whole would
again be a factor which will weigh against the grant of any relief
to the appellants. Huge amounts of money and resources of
the State, as well as other bodies or persons have been
invested on the development of this sector which is stated to c
be an industrial sector. It will be unjust and unfair to uproot such
a developed sector on-the plea raised by the present
appellants. In this view, I am fully supported by the judgment of
a Division Bench of this Court, to which my learned brqther
(Ganguly, J.) was a member, in the case of Tamil Nadu D
Housing Board v. L. Chandrasekaran (Dead) by Lrs. & Ors.
[(2010) 2 SCC 786]. The Bench was primarily dealing with the
question of re-conveyance of the acquired lands on the grounds
of discrimination and arbitrariness. The High Court had
passed a direction against the Board to re-convey the acquired
land, which was held by this Court, on appeal, to be contrary E
to the provisions of Section 48 of the Act. This Court settled
the point of law holding that it is not appropriate for the Court
to quash the acquisition proceedings at the instance of one or
two land owners, where the development had taken place and
majority of the land owners had not challenged the acquisition. F
The Court, while relying upon the case of A. S. Naidu v. State
of Tamil Nadu [(2010) 2 SCC 801] held as under:
"15. The first issue which requires consideration is whether
the order passed by this Court in A. S. Naidu case has the G
effect of nullifying the acquisition in its entirety. In this
context, it is apposite to mention that neither the appellant
Board nor have the respondents placed before the Court
copies of the writ petitions in which--tne--ac_Qujsition
proceedings were challenged. order(s) passed by the High H.
316 SUPREME COURT REPORTS [2011) 12 S.C.R.

A Court and the special leave petitions which were disposed
of by this Court on 21-8-1990 3 and without going through
those documents, it is not possible to record a finding that
while disposing of the special leave petitions preferred by
A.S. Naidu and others, this Court had quashed the entire
B acquisition proceedings. So far as A.S. Naidu is
concerned, he did not even make a prayer before the High
Court for quashing the preliminary notification issued under
Section 4(1) of the Act.
16. This is evident from the prayer made by him in Writ
c Petition No. 7499 of 1983, which reads as under:
"For the reasons stated in the accompanying
affidavit, it is most respectfully prayed that this
Hon'ble Court may be pleased to issue a writ of
certiorari or any other proceeding or any other
D
appropriate writ or direction or order in the nature
of a writ to call for the records of the first respondent
relating to GOMs No. 1502, Housing and Urban
Development Department dated 7-11-1978
published in the Tamil Nadu Government Gazette
E Extraordinary dated 10-11-1978 in Part II Section
2 on pp. 22 to 26 and quash the said notification
issued under Section 6 of the Land Acquisition Act,
1894 insofar as it relates to the land in the
petitioners' layout approved by the Director of Town
F Planning in LPDM/DTP/2/75 dated 7-3-1975 in
Survey Nos. 254, 257, 258, 260, 268 and 271 in
Mogapperi Village, No. 81, Block V, Saidapet
Taluk, Chingleput District and render justice."
From the above reproduced prayer clause, it is crystal
clear that the only relief sought by Shri A.S. Naidu was for
quashing the notification issued under Section 6 insofar it
related to the land falling in Survey Nos. 254, 257, 258,
260, 268 and 271 in Mogapperi Village, No. 81, Block V,
Saidapet Taluk and in the absence of a specific prayer
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 317
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]

having been made in that regard, neither the High Court A
nor this Court could have quashed the entire acquisition.
This appears to be the reason why the Division Bench of
the High Court, while disposing of Writ Appeals Nos. 676
of 1997 and 8-9 of 1998 observed that quashing of
acquisition by this Court was only in relation to the land of B
the petitioner of that case and, at this belated stage, we
are not inclined to declare that order dated 21-8-19903
passed by this Court had the effect of nullifying the entire
acquisition and that too by ignoring that the appellant
Board has already utilised portion of the acquired land for c
housing and other purposes. Any such inferential
conclusion will have disastrous consequences inasmuch
as it will result in uprooting those who may have settled in
the flats or houses constructed by the appellant Board or
who may have built their houses on the allotted plots or D
undertaken other activities.
xxx xxx xxx
26. A glance at' the impugned order shows that the.
Division Bench did not at all advert to the factual matrix of
the case and the reasons incorporated in the
E
Government's decision not to reconvey the acquired land
to the respondents. The Division Bench also did not
examine the correctness or otherwise of the order passed
by the learned Single Judge and allowed the appeals
preferred by the respondents simply by relying upon order F
dated 18~2-2000 passed in Writ Appeal No. 2430 of 1999
and that too without even making an endeavour to find out
whether the two cases 'were similar. In our view, thi:i
direction given by the Division Bench to the appellant
Board to reconvey the acquired land to the respondents G
is per se against the plain language of Section 48-B of the
Act in terms of which only the Government can transfer the
acquired land if it is satisfied that the same is not required
for the purpose for which it was acquired or for any other ·
public purpose. The appellant Board is not an authority H
318 SUPREME COURT REPORTS [2011] 12 S.C.R.

A competent to transfer the acquired land to the original
owner. Therefore, the Division Bench of the High Court
could not have issued a mandamus to the appellant Board
to reconvey the acquired land to the respondents. As a
matter of fact, the High Court could not have issued such
B direction even to the Government because the acquired
land had already been transferred to the appellant Board
and the latter had utilised substantial portion thereof for
execution of the housing scheme and other public
purposes.
C 27. There is one more reason why the impugned judgment
deserves to be set aside. Undisputedly, the land of the
respondents forms part of large chunk which was acquired
for execution of the housing scheme. The report sent by
the appellant Board to the State Government shows that
D the purpose for which the land was acquired is still
subsisting. The respondents had neither pleaded before
the High Court nor was any material produced by them to
show that ttte report which formed basis of the
Government's decision not to entertain their prayer for
E reconveyance of the land was vitiated by mala tides or that
any extraneous or irrelevant factor had influenced the
decision-making process or that there was violation of the
rules of natural justice. Therefore, the Division Bench of the
High Court could not have exercised the power of judicial
F review and indirectly annulled the decision contained in
communication dated 18-3-1999.
28. It need no emphasis that in exercise of power under
Section 48-B of the Act, the Government can release the
acquired land only till the same continues to vest in it and
G that too if it is satisfied that the acquired land is not needed
for the purpose for which it was acquired or for any other
public purpose. To put it differently, if the acquired land has
already been transferred to other agency, the Government
cannot exercise power under Section 48-8 of the Act and
H reconvey the same to the original owner. In any case, the
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 319
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
Government cannot be compelled to reconvey the land to A
the original owner if the same c13n be utilised for any public
purpose other than the one for which it was acquired."
75. I am of the considered view that what has been stated
by the learned Judges in that case is squarely applicable, evfm
on facts, to the present case. Firstly, there is no merit in the B
c0ntentions of law raised by the appellants, which I have already
rejected. Secondly, even on equity, the appellants have no case.
76. Before I part with this file, I cannot ignore one very
important aspect which has come to my notice during the c
hearing of the case and which, as stated at the Bar, is an often
repeated default on the part of the Government Departments
causing undue inconvenience, harassment, hardship and
ultimately resulting in the acquisition itself being inequitable
against the land owners/persons interested therein. The D
declaration under Section 6 was made on 22nd August, 2002,
the notice under Section 9(1) had been issued and possession
of the land was taken on 4th February, 2003. In the normal
course and as per the requirements of the provisions of Section
17(3A) read with Section 17(1 ), 80 per cent of the estimated
compensation ought to have been paid to the owners of the E
land/persons interested, within that period prior to taking
possession and/or, in any case, within a very limited and
reasonable time. This I am only noticing subject to my finding
that then~ is unequivocal statutory obligation upon the
respondents to pay the amount prior to taking possession of F
the land in question. However, the award made on 9th June,
2008 would have otherwise vitiated the entire acquisition
proceedings, but for the fact that, as held by me above and for
reasons recorded supra that Section 11A does not apply to the
acquisition made in exercise of emergent pow~rs in terms of G
Section 17 of the Act. Still, to do things within _a reasonable
time is an obligation of the State, as is imposed by the
Legislature itself and even otherwise as per the canons of
proper governance, i.e., vigilantibus, non dormientibus, jura
subveniunt, which means the laws assist those who are vigilant. H
320 SUPREME COURT REPORTS (2011] 12 S.C.R.

A not those who sleep over their rights. According to Respondent
No.2, they had deposited 10 per cent of the estimated
compensation prior to issuance of notification under Section
4, i.e., 17th April, 2002 and 70 per cent of the amount was
deposited with the Government on 8/14th July, 2002 by a
B cheque. The amount deposited was nearly Rs. 6,66,00,000/-
and odd. For reasons best known to the State Government,
this amount was not disbursed to the claimants until passing
of the award. In other words, the amount was made available
to the Government and its authorities for disbursement to the
c owner/claimants prior to (or soon after) taking of the
possession, which was taken on 4th February, 2003, but still
the claimants were deprived of their legitimate dues without any
justification or reason. In order to show this, learned counsel
appearing for respondent No.2 had even shown the records to
the Court. It was also the duty of respondent No.2 to ensure
0
that the payments were made to the claimants prior to taking
of possession but, in any case, it was an unequivocal statutory
obligation on the part of the State/Collector to ensure that the
payments were made to the claimants ·in terms of Section 17(1)
0

read with Section 17(3A) prior to taking of possession. No
E justification whatsoever had been advanced and can be
advanced for such an intentional default and the casual attitude
of the concerned officers/officials in the State hierarchy.
77. These authorities are instrumentalities of the State and
F the officers are empowered to exercise the power on behalf of
the State. Such exercise of power attains greater significance
when it arises from the statutory provi$ions. The level of
expectation of timely and just performance of duty Is higher, as
compared to the cases where the power is executively
G exercised in discharge of its regular business. Thus, all
administrative norms and principles of fair performance are
applicable to them with equal force, as they are to the
Government department, if not with a greater rigour. The well
established precepts of public trust and public accountability
H are fully applicable to the functions which emerge from the
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 321
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]

public servants or even the persons holding public office. In A
the 1,::a§e of Staff? of Bihcir v. Subhash Singh [(1997) 4 SCC
430], this Court, in exercise of the powers of judicial review,
stated that the doctrine of 'full faith .and credit' applies to the
acts done by the officers in the hierarchy of the State. They
have to faithfully discharge their duties to elongate public B
purpose.
78. The concept of public accountability and performance
of functions takes in its ambit, proper and timely action in
accordance with law, Public 9uty and public obligation both are
essentials of good administration whether by the State or its C
instrumentalities. In the case of Centre for Public Interest
Litigation & Anr. v. Union of India & Anr. [(2005) 8 SCC 202],
this Court declared the dictum that State actions causing loss
are actionable under public law~ This is a result of innovation,
a new tool with the courts which are the protectors of civil D
liberties of the citizens and would ensure protection against
devastating results of State action. The principles of public
accountability and transparency in State action are applic;;tble
to cases of executive or statutory exercise of power, besides
requiring that such actions also not lack bona tides. All these E
principles enµnciated by the Court over a passage of time
clearly mandate that public officers are answerable for both
their inaction and irresponsible actions. If what ought to have
been done is not done, responsibility should be fixed on the
erring officers; then alone, the real public purpose of an F
answerable administration would be satisfied.
79. The doctrine of 'full faith and credit' applies to the acts
done by the officers. There is .~presumptive evidence of
regularity in official acts, done or performed, and there should
be faithful discharge of duties to elongate public purpose in G
accordance with the procedure prescribed. Avoidance and
delay in decision making process in Government hierarchy is
a matter of growing concern. Sometimes delayed decisions
can cause prejudice to the rights of the parties besides there
b~ing violation of the statutory rule. This Court had occasion H
322 SUPREME COURT REPORTS [2011] 12 S.C.R.

A to express its concern in different cases from time to time in
relation to such matters. In the case of State of Andhra Pradesh
v. Food Corporation of India [(2004) 13 SCC 53), this Court
observed that it is a known fact that in transactions of
Government business, no one would own personal
B responsibility and decisions would be leisurely taken at various
levels.
80. Principles of public accountability are applicable to
such officers/officials with all their rigour. Greater the power to
decide, higher is the responsibility to be just and fair. The
C dimensions of administrative law permit judicial intervention in
decisions, though of administrative nature, which are ex facie
discriminatory. The adverse impact of lack of probity in
discharge of public duties can result in varied defects, not only
in the decision making process but in the final decision as well.
D Every officer in the hierarchy of the State, by virtue of his being
'public officer' or 'public servant', is accountable for his
decisions to the public as well as to the State. This concept of
dual responsibility should be applied with its rigours jn the
larger public-interest and for proper governance.
E 81. I find no justification, whatsoever, for the Government,
despite deposit by the beneficiary, not to pay 80 per cent of
the estimated compensation due to the claimants within the
requisite time and not even within the reasonable time. It was
breach of statutory and governance obligation of the State's
F officers/officials to pay the amount to the claimants after more
than five years. It is expected of the State officers not to forget
that these are compulsory acquisitions in exercise of State's
power of eminent domain and the legislative intent behind
providing safeguards and some benefits against such
G acquisition ought not to be frustrated by inaction and omissions
on the part of the officers/officials. There being patent
unexplained mistakes, omissions and errors, committed by the
officers/officials in the State of Uttar Pradesh in dealing with
this entire matter, I hereby impose cost of' 1,00,000/- on the
H State Government which at the first instance shall be paid by
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 323
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]

the State to the owners of the land, i.e., present appellants or A
persons situated alike: However this amount shall be recovered
from the salary of all the officers/officials found guilty by the State
which shall conduct an inquiry for that purpose in accordance
with law. The inquiry shall be completed within a period of six
months from today and a report shall be submitted to the B
'Secretary General of this Court on the administrative side.
Imperatively, it must follow that the Central Government and all
State Governments must issue appropriate directions to ensure
that there is no harassment, hardship or inequality caused to
the owners/persons interested in the lands acquired by the c
State, in exercise of its powers of eminent domain under
Section 17(1) of the Act. Wherever the payments are not made
within time and appropriate steps are not taken to finalize the
acquisition of the land, the concerned Government should take
appropriate disciplinary action against the erring officers/ D
officials involved in and responsible for the process of
acquisition.
82. I will prefer to record my~conclusions and also answer
the four legal questions ('A' to 'D') as framed in the judgment
by my learned brother. They are as follows: E
(A) I hold and declare that Section 11A of the Act has
no application to the acquisition proceedings
conducted under the provisions of Section 17 of the
Act;
F
Once the acquired land has vested in the
Government in terms of Section.16 or 17(1) of the
Act, possession of which has already been taken,
such land is incapable of being re-vested or
reverted to the owners/persons interested therein, G
for lack of any statutory provision for the same under
the Act.
(8) The provisions of Section 17(3A) of the Act, on their
bare reading, suggest that the said provision is
H
324 SUPREME COURT REPORTS [2011] 12 S.C.R.

A mandatory but, as no consequences of default have
been prescribed by the Legislature in that
provision, thus, it will hardly be permissible for the
Court to read into the said provision any drastic
consequences much less lapsing of entire
B acquisition proceedings. In other words, default in
complying with provisions of Section 17(3A) cannot
result in invalidating or vitiating the entire acquisition
proceedings, particularly when the possession of
the acquired land has been taken and it has vested
c in the Government free from all encumbrances.
(C) Keeping in view the scheme of the Act, the
provisions of Section 17 of the Act can be
construed strictly but such interpretation m.ust be
coupled with the doctrine of literal and contextual
D interpretation, while ensuring that the object of the
legislation is not defeated by such an interpretation.
Strict compliance to the conditions contemplated
under Section 17 qf the Act should be given effect
to but within the framework of the statute, without
E making any additions to the language of the section.
(D) Once the right to property ceases to be a
Funda.mental Right after omission of Articles
19(1 )(f) of the Constitution of India, the addition of
Articles 31A and 300A by the 44th Constitutional
F Amendment, 1978, cannot plqce the legal right to
property at the same pedestal to that of a
fundamental right falling under Chapter Ill of the
Constitution. It has been clearly held by the Courts
that the provisions of the Land Acquisition Act are
G not violative of Article 14 of the Constitution. The
rights of the citizens and interest of the State can
be balanced under the provisions of the Act,
without any violation of the Constitutional mandate.
83. Besides answering the questions of law and stating
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. 325
STATE OF U.P. & ANR. [SWATANTER KUMAR, J.]
my conclusions as above,jt is both appropriate and necessary A
to pass certain directive orders to ensure the maintenance of
balance between the might of the State on the one hand and
the rights of land owners on the other. It is, therefore, necessary
to issue the following directions :
(i) The Government/acquiring authority shall be liable B
to pay interest at the rate of 15 per cent per annum
with reference to or alike the provisions of Section
34 of the Act, after the expiry of 15 days from
issuance of notification under Section 9( 1) of the
Act, and from the date on which the possession of C
the land is taken, till the amount of 80 per cent of
the estimated compensation is paid to the
claimants.
84. In the facts of the present case, it is clear that 80 per
cent of the estimated compensation had been deposited by the D
beneficiary. However, it is no way clear on record that these
amounts had actually been received by the owners/interested
persons: Where the amounts have been paidcbeyond the
period as stated in Section 17(3A), the claimants still would be
entitled to the rate of interest afore-indicated. Interest should E
be computed from the date of the notification till the date of
payment to the claimants. The Government is also liable to pay
interest as afore-indicated on the balance amount determined
upon making of an award in accordance with Section 11 of the
Act. F
(ii) The Central Government and all the State
Governments shall issue appropriate and uniform
guidelines, within 8 weeks from today, to ensure that
the !and owners and the persons interested in the
lands cquired by the State or its instrumentalities G
are not put to any undue harassment, hardship and
inequity because of inaction and omission on the
part of the acquiring authority, in cases of urgent
acquisition under Section 17 of the Act. The
H
326 SUPREME COURT REPORTS [2011] 12 S.C.R.

A Government should ensure timely action for
acquisition and payment of compensation in terms
of the provisions of the Act, particularly Section
17(3A) of the Act, as explained in this judgment.
(iii) Wherever the Government exercises its power
B under Section 17(1) of the Act and there is default
in deposit of the amount in terms of Section 17(3A)
of the Act, as explained in this judgment, the
concerned Government shall take appropriate
disciplinary action against the erring officers/
c officials including making good the loss caused to
the Government revenue on account of the liabilities
towards interest or otherwise, because of such
undue delay on the part of such officers/officials;
(iv) In this case, the claimants would be entitled to the
D cost of Rs. 1,00,000/- (Rupees one lakh only) which
shall be deposited at the first instance by the State
Government of Uttar Pradesh and then would be
recovered from the salaries of the defaulting/erring
officers/officials in accordance with law. The inquiry
E shall be completed within a period of six months
from today and a report shall be submitted to the
Secretary General of this Court on the
administrative side immediately thereafter.
F In result, the appeal is accordingly dismissed with the
above directions.
ORDER
In view of the divergence of opinion on conclusions and
also on various legal questions discussed in two separate
G judgments by us, the matter is required to be placed before the
Hon'ble the Chief Justice of India for reference to a larger Bench
to resolve the divergent views expressed in both the judgments
and to answer the questions of law framed.

H N.J. Matter Referred to Larger Bench.