TMI Blog2015 (7) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... t its title being challenged, which is the avowed intention of Section 17. Any other interpretation of the law would serve to protect only those landowners who had approached the Court to stop the Government from undoing an emergency acquisition, while leaving in the cold equally aggrieved landowners seeking to enforce their right to fair compensation for their land. Even equity demands that the party bearing the consequence of the delay in the Award ought not to be the innocent landowner, but the errant State. While we presently refrain from passing any orders or direction pertaining to or interfering with the possession of the Government over the subject land, the acquisition dated 18.11.1987 is set aside for non-compliance with the provisions of Section 11A of the L.A. Act. As all the subsequent Notifications by the Respondent State having lapsed, the Respondent State is directed to issue a fresh Section 4 Notification within six weeks from today. The Respondent State is restrained from contending that the land is no longer required by it or that it should revert to the Appellants. The Appeal is allowed in these terms. - CIVIL APPEAL No. 3385 OF 2012 - - - Dated:- 3-7-2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessity of passing an Award. 2. We shall succinctly narrate the salient facts of the Appeal before us. The State Government had by means of Notification No.2/86-87 dated 18.11.1987 and 3/86-87 dated 18.11.1987 initiated steps for acquiring tracts of lands in Mouza Sansarpur and in Hardas Chak. These Notifications had simultaneously excluded the provisions of Section 5A of the L.A. Act from applying to the acquired lands, which, because of the significance of its language, is reproduced below: This Notification is hereby issued under the provisions of section 4 of the Bihar Act No.11, 1961 as amended Act No.1, 1894 for those persons who are concerned with it. The map of the above land can be seen in the office of the Land Acquisition Officer, Khagaria. Government of Bihar do hereby authorize the Land Acquisition Officer, Khagaria and his staff and the office bearers of the Executive Engineer Bhawan Nirman Khagaria in the preliminary investigation of this project that they should conduct the survey of the land after entering it and they are directed to all the acts specified under section 2 of the Section 4 of the above Act. And whereas it is the opinion of the Governor of Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.11.1987, notices under Section 17(1) of the L.A. Act were also issued, which resulted in the filing of writ petitions in the following year, in which it was contended that resort to Section 17 of the L.A. Act was mala fide, and that compensation, as envisaged in the statute itself, had not even been tendered to the owners. It is significant that in CWJC No.4007 of 1988, a Division Bench of the High Court of Judicature at Patna had directed on 12.7.1988 that the Award for compensation must be made within four months. It is not in dispute that an Award has, till date, not been passed even though that direction has attained finality. The Writ Petition was disposed of observing - (i) possession of the land had already been taken by the State; (ii) eighty per cent compensation had been paid to the Appellants; (iii) the remainder twenty per cent along with interest would be paid to the owners on their appearance before the Land Acquisition Officer; (iv) they would be entitled to raise the claim of higher interest considering that the land had been acquired in 1987; and (v) Appellant was entitled to raise objections with respect to the value of the land. In view of these directions, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant relief in the absence of any provision in the Act enabling or envisaging or mandating that such an opportunity should be made available to the landowners. In order to remedy this shortcoming in Act of 1894, an amendment by way of incorporation of Section 5A was introduced on 11th July, 1923. The Statement of Objects and Reasons for the said Amendment is as follows: The Land Acquisition Act 1 of 1894 does not provide that person having an interest in land which it is proposed to acquire, shall have the right of objecting to such acquisition; nor is Government bound to enquire into and consider any objections that may reach them. The object of this Bill is to provide that a Local Government shall not declare, under section 6 of the Act, that any land is needed for a public purpose unless time has been allowed after the notification under section 4 for persons interested in the land to put in objections and for such objections to be considered by the Local Government. (Gazette of India, Pt. V, dated 14th July, 1923, page 260) The importance of Section 5A cannot be overemphasised. It is conceived from natural justice and has matured into manhood in the maxim of audi alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While this is inevitable, promotion of public purpose has to be balanced with the rights of the individual whose land is acquired, thereby often depriving him of his means of livelihood. Again, acquisition of land for private enterprises ought not to be placed on the same footing as acquisition for the State or for an enterprise under it. The individual and institutions who are unavoidably to be deprived of their property rights in land need to be adequately compensated for the loss keeping in view the sacrifice they have to make for the larger interests of the community. The pendency of acquisition proceedings for long periods often causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them. The main proposals for amendment are as follows:- (iii) A time-limit of one year is proposed to be provided for completion of all formalities between the issue of the preliminary notification under Section 4(1) of the Act and the declaration for acquisition of specified land under Section 6(1) of the Act. (v) It is proposed to provide for a period of two years from the date of publication of the declaration under Section 6 of the Act within whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1), take possession of any land needed for a public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity, the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government , enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this sub-section without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .A. Act, as amended by the State of Bihar by the Bihar Act 11 of 1961, is also being reproduced below for the purpose of clarity: 17. Special powers in cases of urgency. (1) In cases of urgency, whenever the appropriate Government so directs the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the declaration mentioned in section 6, or with the consent in writing of the person interested, at any time after the publication of the notification under Section 4 in the village in which the land is situated, take possession of any waste or arable land needed for public purposes or for a company. Such land shall thereupon vest absolutely in the Government free from all encumbrances. Explanation.-This sub-section shall apply to any waste or arable land, notwithstanding the existence thereon of forest, orchard or trees. (2)Whenever it becomes necessary for the purpose of protecting life or property from flood, erosion or other natural calamities or for the maintenance of communication other than a railway communication or it becomes necessary for any Railway Administration (other than the Railway Administration of the U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternative by clear and unequivocal language. In Union of India v. G.M. Kokil 1984 (Supp) SCC 196 this Court has opined that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Alternatively, Sections 9, 11, 11A etc. could have been made subject to Section 17, although both cumbersome and clumsy, but has not been so done. 12 The salient concomitants of Section 17(1) deserve enumeration. Firstly, the Section is attracted even though an Award has not been made which, it appears to us, clearly indicates that the completion of this exercise has not been obliterated or dispensed with but has been merely deferred. An unambiguous and unequivocal statement could have been made excluding the requirement of publishing an Award. Secondly, it is available only on the expiration of fifteen days from the issuance of the Section 9 notice. This hiatus of fifteen days must be honoured as its purpose appears to be to enable the affected or aggrieved pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be tendered or offered to the persons interested in the standing crops and trees etc. on the subject land. 14 Section 17(3A) came to be introduced into the statute by Act 68 of 1984. It requires the Collector to tender payment of eighty per cent of the compensation estimated by him, obviously and pointedly, to the person interested in compensation for such land, unless the Collector is precluded or prevented from making such payments because of exigencies enumerated in Section 31 of the L.A. Act. In other words, the Collector cannot by way of first recourse deposit the estimated compensation even in the Court to which the filing of a Reference under Section 18 is provided. The use of the word shall indicates that the provisions are prima facie mandatory in nature unless the statute or the language employed in the Section indicates otherwise. The language of sub-Section (3A), inasmuch as it commences with the words Before taking possession of any land..... , makes it incontrovertibly clear that what follows are the prerequisities thereto. It is beyond cavil, therefore, that the statute has ordained a precise and particular methodology which must be adhered to as a precursor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be adhered to, i.e. inviting and then deciding the Objections filed by the landowners. Significantly, sub-Section (4) of Section 17 does not, as it very easily could have, exempt compliance with the publication of the Declaration under Section 6 and the hearing of parties preparatory to the passing of an Award under Sections 9 to 11 of the Act. There is, therefore, not even an iota of doubt that remains pertaining to the absolute necessity of the passing of an Award under Section 11 of the L.A. Act. We are in no manner of doubt, and we reiterate, that the tender of the estimated compensation is the precondition, the sine qua non, enabling the Government to take possession of land under the foregoing subsections; and must be followed by the exercise of computation of compensation in a procedure corresponding to that in Section 11. We shall revert to the question of whether the constraints contained in Section 11A will also apply to acquisitions in which Section 17 has been resorted to. 15 The L.A. Act postulates that the urgency clause can be pressed into service at two stages. Firstly, ordinarily possession can be taken fifteen days after the publication of the Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scover which of those facts were treated as material by the Judge. Black s Law Dictionary, in somewhat similar vein to the aforegoing, bisects this concept, firstly, as the principle or rule of law on which a Court s decision is founded and secondly, the rule of law on which a latter Court thinks that a previous Court founded its decision; a general rule without which a case must have been decided otherwise. 17 A Constitution Bench has also reflected on the true nature of ratio decidendi in Krishena Kumar vs. Union of India, 1990 (4) SCC 207, as is discernable from the following passages: 19. The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain propositions wider than the case itself required . This was what Lord Selborne said in Caledonian Railway Co. v. Walker s Trustees and Lord Halsbury in Quinn v. Leathem. Sir Frederick Pollock has also said : Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... di of a judgment is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. (See Executive Engineer, Dhenkanal Minor Irrigation Division v. N.C. Budharaj) 140. In Padma Sundara Rao v. State of T.N it is stated: (SCC p. 540, paragraph 9) There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board(Sub nom British Railways Board v. Herrington). Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. (See also Haryana Financial Corpn. v. Jagdamba Oil Mills) 141. In General Electric Co. v. Renusagar Power Co it was held: (SCC p. 157, paragraph 20) As often enough pointed out by us, words and expressions used in a judgment are not to be construed in the same manner as statutes or as words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 11A, since an Award under Section 11 has still not been made despite the passage of almost three decades from the date of the subject Notification. This Court has continuously held that once land has vested in the State, the question of re-vesting its possession in the erstwhile landowners is no longer available as an option to the State. This legal position was enunciated close to a half century ago in Avinash Sharma and has been subsequently reiterated in numerous judgments. Paragraph 4 of the aforementioned Judgment is worthy of reproduction, and its reading will bear out that what was primarily in the contemplation of this Court was the possession of the land in contradistinction to its title. 4. In the present case a notification under Section 17(1) and (4) was issued by the State Government and possession which had previously been taken must, from the date of expiry of fifteen days from the publication of the notice under Section 9(1), be deemed to be in the possession of the Government. We are unable to agree that where the Government has obtained possession illegally or under some unlawful transaction and a notification under Section 17(1) is issued the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A). Whilst the State endeavoured to withdraw from the acquisition, the erstwhile landowners opposed it. This Court directed the State to make and publish an award in respect of the said land within twelve weeks from today . The abovementioned discussion bears out that this Court was concerned only with the issue of the land being returned by the State to the erstwhile owner. It does not go so far as to limit or restrict the rights of landowners to fair compensation for their expropriated property, as that is a Constitutional right which cannot be nullified, neutralised or diluted. We think it justified to again refer to the opinion in Satendra Prasad Jain that - Section 11A cannot be so construed as to leave the Government holding title to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of eighty per cent of the estimated compensation. The second issue, one that we feel must be kept in mind in the interpretation in the law laid down by this Court, is the factual matrices involved in both Satendra Prasad Jain and Avinash Sharma. In both these precedents, as well as in innum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench and since it declined the prayer for other reasons, it follows that there is no constraint or impediment for the grant of an appropriate Writ in this regard. This will fortify our distillation of the ratio desidendi of Satendra Prasad Jain which is circumscribed and restricted to the extent that the State is not empowered to withdraw from an acquisition once it has taken possession of the said lands. 23 We do, however, recognize that Satendra Prasad Jain has been interpreted more broadly in the past. In Allahabad Development Authority vs. Naziruzzaman (1996) 6 SCC 424, General Manager, Telecommunication vs. Dr. Madan Mohan Pradhan 1995 Supp (4) SCC 268, and Banda Development Authority, Banda vs. Mota Lal Agarwal (2011) 5 SCC 394, this Court has dismissed the landowners challenges to the respective acquisitions on the basis of Avinash Sharma and Satendra Prasad Jain. It is pertinent to note that all three of these cases were brief in their explanations of Avinash Sharma and Satendra Prasad Jain, and did not examine their rationes decidendi, their innate contradictions, their intentions or their consequences at any length. We thus feel it appropriate to rely on our own d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res the land with a new Section 4 notification exists. This option, particularly in the present factual matrix, does the least violence to the intent and content of the L.A. Act, in that it upholds Section 11A even in cases of acquisition under Section 17 while preserving the requirement of Section 17 that the unencumbered possession of the land remain vested in the Government. It also protects the rights of the landowners, thus fulfilling the intent of Section 11A, while allowing the Government to acquire land in cases of emergencies without its title being challenged, which is the avowed intention of Section 17. Any other interpretation of the law would serve to protect only those landowners who had approached the Court to stop the Government from undoing an emergency acquisition, while leaving in the cold equally aggrieved landowners seeking to enforce their right to fair compensation for their land. Even equity demands that the party bearing the consequence of the delay in the Award ought not to be the innocent landowner, but the errant State. 26 While we presently refrain from passing any orders or direction pertaining to or interfering with the possession of the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X
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