M/S. DELHI AIRTECH SERVICES PVT. LTD. & ANR. v. STATE OF U.P. & ANR.

" ~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 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 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 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 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 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 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

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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 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 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."

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 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 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 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 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

64Copy pinpoint64. 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 its power within the framework of law, i.e., the provisions of the Act. H

310 SUPREME COURT REPORTS [2011] 12 S.C.R.

65Copy pinpoint65. 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.

66Copy pinpoint66. 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 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 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?

67Copy pinpoint67. The main thrust of submissions on behalf of the 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 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.

68Copy pinpoint68. 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

69Copy pinpoint69. 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 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 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 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.

70Copy pinpoint70. 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 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 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 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? ·"

71Copy pinpoint71. 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 activity had been carried out over the years and it is informed that Sector 88, NOIDA is fully developed and operational.

72Copy pinpoint72. 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 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 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.

73Copy pinpoint73. I must not be understood to say that in every case of delay, per se, the Court would decline to exercise its jurisdiction 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.

74Copy pinpoint74. It is not in dispute and, in fact, can hardly be disputed 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 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 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 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 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 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 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 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 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 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 the original owner if the same c13n be utilised for any public purpose other than the one for which it was acquired."

75Copy pinpoint75. 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.

76Copy pinpoint76. 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 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 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.

77Copy pinpoint77. 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 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 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 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 purpose.

78Copy pinpoint78. 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 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 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 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 answerable administration would be satisfied.

79Copy pinpoint79. 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 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.

80Copy pinpoint80. 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.

81Copy pinpoint81. 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.

82Copy pinpoint82. 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 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 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.

83Copy pinpoint83. 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 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 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 the land is taken, till the amount of 80 per cent of the estimated compensation is paid to the claimants.

84Copy pinpoint84. In the facts of the present case, it is clear that 80 per cent of the estimated compensation had been deposited by the 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 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 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 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.