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2015 (7) TMI 1077 - SUPREME COURT

2015 (7) TMI 1077 - SUPREME COURT - TMI - Whether Land Acquisition Act, 1894 (L.A. Act for brevity) as amended from time to time, requires an Award to be passed even in respect of lands expropriated by the State pursuant to the exercise of special powers in cases of urgency contained in Section 17 thereof?

Held that:- In allowing the acquisition of land that the Government finds necessary to be set aside, we would not necessarily be holding that the land revert to the Appellants, as t .....

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andowners, 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. .....

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ed, 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 - VIKRAMAJIT SEN & ABHAY MANOHAR SAPRE, JJ. JUDGMENT VIKRAMAJIT SEN,J. 1. The legal nodus that we are called upon to unravel in this Appeal is whether the Land Acqu .....

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ter the passage of three decades; till date, tracts of the acquired land remain unutilized; the initially declared purpose of construction of residential quarters for State officials having novated to portions of the land being used as helipads for State Dignitaries . We must not forget that even though ownership of property has ceased to be conceived of as a Fundamental Right, it continues to receive Constitutional protection. It is also the regrettable reality that Governments are increasingly .....

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transgresses the essence of the statute. It has become alarmingly commonplace for lands to be expropriated under the banner of urgency or even under the normal procedure, only to be followed by a withdrawal or retraction from this exercise enabling a favoured few to harvest the ill-begotten windfall. The ambivalence or cleavage of opinion of this Court in Delhi Airtech Services (P) Ltd. vs. State of U.P. (2011) 9 SCC 354 on the necessity to pay the erstwhile owners of land of even its unilatera .....

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rdas 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 .....

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for immediate acquisition. Therefore, it is directed under sub section 4 of the section 17 of the above Act that the provisions of the section 5A of the above act shall not apply to the above land/lands . 3. This first Notification under Section 4 came to be followed by subsequent Notifications, lucidly illustrating the understanding of the Respondent State that the preceding Notification had lapsed by operation of the statute. The Respondent State issued a Notification under Section 4 of the L .....

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ished on 13.8.2001, for which the Appellants filed their Objections under Section 5A yet again. This Notification also lapsed, since the sequence of events as contemplated in the L.A. Act had not been duly completed. Once again, in 2004, fresh steps were initiated for acquisition which also expired for the same reason. The Respondent State now vainly essays to take unfair and ill-founded advantage of decisions and opinions of this Court to contend that the subject acquisition stands completed in .....

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ntra, it is the contention of the Appellant that the incontrovertible position that portions of the land have remained unutilized for decades is clearly indicative of the fact that they are not required by the State any more. Within a week of the publication of the Section 4 Notification, that is on 24.11.1987, notices under Section 17(1) of the L.A. Act were also issued, which resulted in the filing of writ petitions in the following year, in which it was contended that resort to Section 17 of .....

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ion 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, i .....

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course to the urgency provisions contained in Section 17 of the Act. A perusal of the Counter Affidavit filed on behalf of the State of Bihar makes it patently evident that an award as contemplated in Section 11 of the L.A. Act has not been passed; and that Notifications under Section 4 have again been passed subsequent to the two Notifications detailed above. 5. An overview of the L.A. Act discloses that it is divided into VIII Parts/Chapters. Part II commences with Section 4, which postulates .....

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that Objection must be filed within thirty days of the issuance of the Notification. Section 5A further obligates the Collector to submit a Report to the Government in respect of the Objections preferred by persons interested in the land, as well as pertaining to any aspect of the nature of the land proposed to be acquired. 6 The insertion of Section 5A seems to have been spurred on by the decision of the Division Bench of the Calcutta High Court in J.E.D. Ezra vs. The Secretary of State for In .....

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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 conside .....

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s conceived from natural justice and has matured into manhood in the maxim of audi alteram partem, i.e. every person likely to be adversely affected by a decision must be granted a meaningful opportunity of being heard. This right cannot be taken away by a side wind, as so powerfully and pellucidly stated in Nandeshwar Prasad vs. State of U.P., AIR 1964 SC 1217. So stringent is this right that it mandates that the person who heard and considered the Objections can alone decide them; and not even .....

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ion by the appropriate Government to the effect that the specified lands are needed for a public purpose, or for a Company; and post 1984, this Declaration has to be made within one year of the date of the publication of the Section 4 Notification. We are not concerned in this Appeal with the Provisos or Explanations to Section 6 or to other sub-Sections and shall therefore not advert to them any further. Thereafter the Collector has to take Orders for the acquisition of land and to mark and mea .....

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cial mention. The prefatory note - Statement of Objects and Reasons of Act No.68 of 1984 as are relevant are reproduced: [Current Central Legislation Vol.10 1984 - 3,5,6,9] Prefatory Note - Statement of Objects and Reasons - With the enormous expansion of the State s role in promoting public welfare and economic development since independence, acquisition of land for public purposes, industrialisation, building of institutions, etc., has become far more numerous than ever before. While this is i .....

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ce 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 speci .....

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ces under which the Collector should take possession of the land before the award is made in urgent cases are being enlarged to include a larger variety of public purposes. (ix) Considering that the right of reference to the civil court under Section 18 of the Act is not usually taken advantage of by inarticulate and poor people and is usually exercised only by the comparatively affluent landowners and that this causes considerable inequality in the payment of compensation for the same or simila .....

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y post this event that Section 16 empowers the Collector to take possession of the land which thereupon vests absolutely in the Government, free from all encumbrances. We may clarify that the word vest has two connotations - the first and primary one relates to possession of land; and the second, an adjunctory one, pertains additionally to the title of that land. But this distinction has not been drawn in India since this Court has held in several cases that vesting in the circumstances with whi .....

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publication of the notice mentioned in section 9, sub-section (1), take possession of any land needed for a public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a r .....

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enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconve .....

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nd under the provisions herein contained. (3A) Before taking possession of any land under sub-section (1) or sub-section 92), the Collector shall, without prejudice to the provisions of sub-section (3),- (a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and (b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prev .....

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from the date of Collector s award, be recovered as an arrear of land revenue. (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the date of the publication of the notification under section 4, sub- .....

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ation 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, .....

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riverside or ghat station, or providing convenient connection with or access to any such station, to acquire the immediate possession of any land, the Collector may, immediately after the publication of the declaration mentioned in s. 6 or, with the consent in writing of the person interested, given in the presence of headman of the village or mukhiya and sarpanch as defined in the Bihar Panchayat Raj Act, 1947 (Bihar Act VII of 1948), at any time after the publication of the notification under .....

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bly sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience. (3) In every case under the proceeding sub-sections the Collector shall, at the time of taking possession offer to the persons interested, compensation for the standing crops on such land and for any damage sustained by them caused by such sudden dispossession and not accepted in section 24; and in case such offer is not accepted, the value of such crops and the amount of s .....

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-viz the State of Bihar and continue to apply even in that State. 11 Section 17 is not a pandect; it could have been devised by Parliament to be so, inter alia, by the use of a non obstante clause, or in the alternative by clear and unequivocal language. In Union of India v. G.M. Kokil 1984 (Supp) SCC 196 this 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 foun .....

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has not been obliterated or dispensed with but has been merely deferred. An unambiguous and unequivocal statement could have been made excluding the requirement of publishing an Award. Secondly, it is available only on the expiration of fifteen days from the issuance of the Section 9 notice. This hiatus of fifteen days must be honoured as its purpose appears to be to enable the affected or aggrieved parties to seek appropriate remedy before they are divested of the possession and the title over .....

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he land can be taken only if it is needed for public purpose, which term stands defined in the preceding Section 3(f). A conjoint reading of Sections 17 and 3(f) makes it apparent to us that urgency provisions cannot be pressed into service or resorted to if the acquisition of land is for Companies; however we must be quick to add that this question does not arise before us. Fourthly, possession of such lands would vest in the Government only when the foregoing factors have been formally and str .....

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in some other contingencies also, which we may term as emergency in contradistinction to urgency , with which we are not currently concerned. Section 17(3) consists of myriad ingredients; by using the word shall Parliament has clarified that what follows compulsorily requires adherence, the non-compliance of which will lead to vitiating all the action ostensibly taken under this provision. These requirements are that at the time of taking possession of lands under the urgency provision the Coll .....

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llector 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 .....

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ing the owner of land of its possession and title. It is axiomatic that if a statute prescribes the manner in which an action is to be performed, it must be carried out strictly in consonance thereto or not at all. This legal principle has been articulated over a century ago in Taylor v. Taylor and has admirably and in fact unquestionably withstood the test of time. It was approved by the Privy Council in Nazir Ahmad v. King Emperor (1935-36) 63 IA 372 and subsequently applied by three Judge Ben .....

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contemporaneous payment of eighty per cent of the estimated compensation, otherwise making the acquisition vulnerable to vitiation because of the Taylor v. Taylor principle. The use of the word estimated in the Section delineates the distinction from actual compensation; an estimate always remains a rough or approximate calculation only [Black s Law Dictionary], or an approximate judgment and /or a price specified as that which is likely to be charged. It would do violence to the statute and fl .....

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sections of the L.A. Act. A reading of sub-Section (4) sounds the death knell to the arguments put forward for the Respondent State, inasmuch as it allows the option to the appropriate Government to make the provisions of Section 5A inapplicable. Paraphrased differently, even where the urgency provisions contained in Section 17 are resorted to, ordinarily the provisions of Section 5A have to be adhered to, i.e. inviting and then deciding the Objections filed by the landowners. Significantly, su .....

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e 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, o .....

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ent can invoke sub-Section (4) and dispense with the valuable Section 5A right; in which event, logical, cogent and well-reasoned notings must be simultaneously articulated in writing for taking this momentous and monumental decision. We must immediately clarify that in the case in hand, since the land is located in the State of Bihar, Section 17(1) enables possession to be taken on the expiry of fifteen days of the publication of the Section 6 Declaration. 16 Since heavy reliance has been place .....

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udge who decided the case intended to lay down and apply to the facts, or (2) the rule that a later Court concedes him to have had the power to lay down. In G.W. Patons Jurisprudence, ratio decidendi has been conceptualised in a novel manner, in that these words are almost always used in contradistinction to obiter dictum. An obiter dictum, of course, is always something said by a Judge. It is frequently easier to show that something said in a Judgment is obiter and has no binding authority. Cle .....

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ere 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 .....

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Leathem. Sir Frederick Pollock has also said : Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision. 20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds .....

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court to spell it out with difficulty in order to be bound by it. 18 The following paragraph from the determination of the Three-Judge Bench in Sanjay Singh vs. U.P. Public Service Commission, Allahabad, 2007 (3) SCC 720, is instructive and is reproduced for this reason - 10. The contention of the Commission also overlooks the fundamental difference between challenge to the final order forming part of the judgment and challenge to the ratio decidendi of the judgment. Broadly speaking, every jud .....

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udgment. This may happen either on account of any subsequent event or the need to mould the relief to do complete justice in the matter. It is the ratio decidendi of a judgment and not the final order in the judgment, which forms a precedent... 19 We also commend a careful reading of the following paragraphs from the decision of the Constitution Bench in Islamic Academy of Education vs. State of Karnataka, 2003 (6) SCC 697, which we shall reproduce for facility: 139. A judgment, it is trite, is .....

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reating 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. I .....

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brought to an end the proceeding before the court in whatever manner but were meant to cover only such adjudication as touched upon the real dispute between the parties which gave rise to the action. Objections to adjudication of the disputes between the parties, on whatever ground, are in truth not aids to the progress of the suit but hurdles to such progress. Adjudication of such objections cannot be termed as adjudication of the merits of the controversy in the suit. As we said earlier, a bro .....

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ntended by Mr Nariman, that answers to the questions would be the ratio to a judgment. The answers to the questions are merely conclusions. They have to be interpreted, in a case of doubt or dispute with the reasons assigned in support thereof in the body of the judgment, wherefor, it would be essential to read the other paragraphs of the judgment also. It is also permissible for this purpose (albeit only in certain cases and if there exist strong and cogent reasons) to look to the pleadings of .....

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sis supplied) 20 The plea before us from the Appellants is that the land should revert to them under Section 11A, since an Award under Section 11 has still not been made despite the passage of almost three decades from the date of the subject Notification. This Court has continuously held that once land has vested in the State, the question of re-vesting its possession in the erstwhile landowners is no longer available as an option to the State. This legal position was enunciated close to a half .....

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teen days from the publication of the notice under Section 9(1), be deemed to be in the possession of the Government. We are unable to agree that where the Government has obtained possession illegally or under some unlawful transaction and a notification under Section 17(1) is issued the land does not vest in the Government free from all encumbrances. We are of the view that when a notification under Section 17(1) is issued, on the expiration of fifteen days from the publication of the notice me .....

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lenge to the invocation of the urgency provisions. Ubi jus ibi remedium, every grievance has a remedy in law, is a legal maxim which is immediately recalled. We must hasten to add that the apparent infraction of the provisions of Section 9 of the Act do not arise in the present case because of the Bihar Amendment of Section 17. 21 This is also in line with a plain reading of Section 17(1), which states that once possession of the land is taken by the Government under Section 17, the land vests a .....

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rt. The acquisition proceedings including the exclusion of Section 5A had obtained the imprimatur of the Allahabad High Court; the urgency and public purpose had received curial concurrence. Possession of the land was taken by the State from the landowners. Previously, the Special Leave Petition filed by the landowners had been dismissed by this Court. Ironically, the subsequent stance of the State was that the acquisition of land under the urgency provisions was required to be set aside for the .....

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f 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 a .....

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oblique purposes. It was in this context that this Court declined to accede to the pleas of the Government. This Court poignantly repelled the State s attempt to nullify the acquisition on the predication of its non-compliance with Sections 16 and 17(3A). The judicial intent was not to cause any loss to landowners, but to protect them. The pernicious practice that was becoming rampant, that is to make partial compliance with the statute and to follow the acquisition procedure in a piecemeal mann .....

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had to interpret Section 17 in Raja Anand Brahma Shah v. State of U.P. (1967) 1 SCR 373, but in somewhat different circumstances. The State proposed to take over large tracts of land for limestone quarry on urgency basis; by virtue of Section 17(4), Section 5A was held not to be available. The Collector of Mirzapur was directed by the Notification under Section 17(1) of the Act to take possession of the waste or arable land even in the absence of an Award being published. The Constitution Bench .....

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le in law or because of any provisions in the L.A. Act, but rather because the lands had validly vested in the State of U.P. under the U.P. Zamindari Abolition and Land Reforms Act, 1951. The conundrum of the restoration of the land had directly arisen before the Constitution Bench and since it declined the prayer for other reasons, it follows that there is no constraint or impediment for the grant of an appropriate Writ in this regard. This will fortify our distillation of the ratio desidendi o .....

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rwal (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 detailed exploration of these c .....

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rections of the High Court passed as early as in 1988 to pass an award within four months. The raison d etre behind the introduction of Section 11A was for the landowners to have a remedy in the event of an award not being passed expeditiously. If Satendra Prasad Jain is interpreted to mean that Section 11A will not apply to any acquisition under the urgency provisions, landowners such as the Appellants before us will have no protection, even if they are not paid full compensation for their land .....

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n to the erstwhile landowners. While the L.A. Act and the judgments discussed above do not allow for the latter, we are of the considered opinion that this does not necessarily imply that the former is also not an option. Both the abovementioned cases dealt with a factual situation in which the Government was attempting to set the acquisition of the land at naught so that they would not have to pay compensation to acquire it. Setting aside of the acquisition in those cases was tantamount to reve .....

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