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

- **Citation:** [2011] 12 S.C.R. 191
- **Court:** Supreme Court of India
- **Decided:** 2011-08-18
- **Case number:** Civil Appeal No. 24 of 2009
- **Bench:** Asok Kumar Ganguly, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-delhi-airtech-services-pvt-ltd-anr-v-state-of-u-p-anr-27412
- **Pages:** 136

## Headnote

Land Acquisition Act, 1894 - ss. 17(3A), 17(1), 17(4),
A
B
11 A, 6 and 5A - Acquisition of abadi land for planned C
development - Issuance of Notification uls. 4(1) rw s. 17(1)
and 17(4) - Dispensation of provision of hearing uls. 5A -
Publication of declaration u/s. 6 in the year 2002 and
thereafter, the possession of the land was taken - Case of the
land owners that possession of the land was taken without
D
issuance of notification to them; that the award was not passed
within two years of making the declaration uls. 17(1); arid they
were not paid 80 per cent of the estimated compensation in
terms of s. 17(3A) at the time of taking of possession - Writ
petition seeking declaration that the said acquisition E
proceedings be declared void ab initio and the land be
returned to the land owners with damages - Dismissal of writ
petition - Issues arising before Supreme Court that when land
is acquired in exercise of emergency powers u/s. 17 and have
since vested in the State, would the acquisition proceeding
F
lapse and land be transferred to the owners/persons
interested in case of non-compliance of s. 11 A; whether the
provisions of s. 17(3A) are mandatory or directory and in
either event, would non-compliance of s. 17(3A) invalidate or
vitiate the entire acquisition proceedings, even where the land
G
has vested in the State; whether the emergency provisions are
to be construed strictly and the safeguards inbuilt ins. 17(3A)
are construed as conditions precedent and mandatory for a
valid exercise of emergency provisions; and whether the
191
H
192
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A provisions of the said Act are to be construed as a preconstitutional law in consonance with the fundamental tenets
of Article 14 -· Held: Per Ganguly J: Requirement of payment
u/s. 17(3A) is in the nature of condition precedent clamped
by the statute before taking possession under emergency
B acquisition by the State - Provision of s. 17(3A) indicates
mandatory compiiance - It is a law enacted to prevent
deprivation of property rights guaranteed under Article 300 A
- Thus, taking over possession of land without complying with
the requirement of s. 17(3A) is illegal and in violation of the
c statutory provision which automatically violates the
constitutional guarantee under Article 300A - Per Swatanter
Kumar J: Once the acquired land has vested in the
Government in terms of s. 16 or 17(1), possession of which
has already been taken, such land is incapable of being reD vested or reverted to the owners/persons interested therein,
for lack of any statutory provision for the same under the Act
- Provisions of s. 17(3A) suggests that it is mandatory but,
as no consequences of default have been prescribed by the
Legislature therein, thus, it would hardly be permissible for the
Court to read into the said provision any drastic
E consequences much less lapsing of entire acquisition
proceedings ·- s. 11 A has no application to the acquisition
proceedings conducted under the provisions of s. 17 - In
view of diver.qence of opinion, matter referred to the larger
bench - Reference to larger bench.
F
Land owned by appellant No. 1, Company (abadi land)
was sought to be acquired for the planned industrial
development of New Okhla Industrial Development Authority.
Notification was issued under Section 4(1) read with Sections
G 17(1) and 17(4) of the Land Acquisition Act, 1894, seeking
acquisition of the land. The provision of hearing under Section
5A was dispensed with. Pursuant thereto, declaration under
Section 6 was published in the year 2002 declaring the area
required by the Government and thereafter, the possession
H of the land was taken under Section 9(1) of the Act. The
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v.
193
STATE OF U.P. & ANR.
appellants alleged that they did not receive any notice under A
Section 9(1) of the Act but the possession of the land was
taken; that the Collector did not pass the award within two years
of making the declaration under

## Text

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[2011] 12 S.C.R. 191
M/S. DELHI AIRTECH SERVICES PVT. LTD. & ANR.
v.
STATE OF U.P. & ANR.
(Civil Appeal No. 24 of 2009)
AUGUST 18, 2011
[ASOK KUMAR GANGULY AND
SWATANTER KUMAR, JJ.]
Land Acquisition Act, 1894 - ss. 17(3A), 17(1), 17(4),
A
B
11 A, 6 and 5A - Acquisition of abadi land for planned C
development - Issuance of Notification uls. 4(1) rw s. 17(1)
and 17(4) - Dispensation of provision of hearing uls. 5A -
Publication of declaration u/s. 6 in the year 2002 and
thereafter, the possession of the land was taken - Case of the
land owners that possession of the land was taken without
D
issuance of notification to them; that the award was not passed
within two years of making the declaration uls. 17(1); arid they
were not paid 80 per cent of the estimated compensation in
terms of s. 17(3A) at the time of taking of possession - Writ
petition seeking declaration that the said acquisition E
proceedings be declared void ab initio and the land be
returned to the land owners with damages - Dismissal of writ
petition - Issues arising before Supreme Court that when land
is acquired in exercise of emergency powers u/s. 17 and have
since vested in the State, would the acquisition proceeding
F
lapse and land be transferred to the owners/persons
interested in case of non-compliance of s. 11 A; whether the
provisions of s. 17(3A) are mandatory or directory and in
either event, would non-compliance of s. 17(3A) invalidate or
vitiate the entire acquisition proceedings, even where the land
G
has vested in the State; whether the emergency provisions are
to be construed strictly and the safeguards inbuilt ins. 17(3A)
are construed as conditions precedent and mandatory for a
valid exercise of emergency provisions; and whether the
191
H
192
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A provisions of the said Act are to be construed as a preconstitutional law in consonance with the fundamental tenets
of Article 14 -· Held: Per Ganguly J: Requirement of payment
u/s. 17(3A) is in the nature of condition precedent clamped
by the statute before taking possession under emergency
B acquisition by the State - Provision of s. 17(3A) indicates
mandatory compiiance - It is a law enacted to prevent
deprivation of property rights guaranteed under Article 300 A
- Thus, taking over possession of land without complying with
the requirement of s. 17(3A) is illegal and in violation of the
c statutory provision which automatically violates the
constitutional guarantee under Article 300A - Per Swatanter
Kumar J: Once the acquired land has vested in the
Government in terms of s. 16 or 17(1), possession of which
has already been taken, such land is incapable of being reD vested or reverted to the owners/persons interested therein,
for lack of any statutory provision for the same under the Act
- Provisions of s. 17(3A) suggests that it is mandatory but,
as no consequences of default have been prescribed by the
Legislature therein, thus, it would hardly be permissible for the
Court to read into the said provision any drastic
E consequences much less lapsing of entire acquisition
proceedings ·- s. 11 A has no application to the acquisition
proceedings conducted under the provisions of s. 17 - In
view of diver.qence of opinion, matter referred to the larger
bench - Reference to larger bench.
F
Land owned by appellant No. 1, Company (abadi land)
was sought to be acquired for the planned industrial
development of New Okhla Industrial Development Authority.
Notification was issued under Section 4(1) read with Sections
G 17(1) and 17(4) of the Land Acquisition Act, 1894, seeking
acquisition of the land. The provision of hearing under Section
5A was dispensed with. Pursuant thereto, declaration under
Section 6 was published in the year 2002 declaring the area
required by the Government and thereafter, the possession
H of the land was taken under Section 9(1) of the Act. The
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v.
193
STATE OF U.P. & ANR.
appellants alleged that they did not receive any notice under A
Section 9(1) of the Act but the possession of the land was
taken; that the Collector did not pass the award within two years
of making the declaration under Section 17(1) as required by
Section 11 A of the Act; and that they were not paid 80 per cent
of the estimated compensation in terms of Section 17(3A) of B
the Act at the time of taking of possession. The appellants
filed a writ petition in the High Court seeking declaration that
the acquisition proceedings, relating to the land of the
appellant be declared void ab initio; and that the respondents
be directed to return the land from the possession of the c
Government to the owners and pay damages for use and
occupation of the land. The respondents contented that they
had deposited 80 per cent compensation in terms of Section
17(3A) of the Act with the authorities; that the land was not
abadi land and had been acquired for planned development
0
of NO/DA and was in the physical possession of the said
authority; and that the possession of the land had been taken
on 4th February, 2003 and no right had survived in favour of
the appellant. The High Court dismissed the writ petition
holding that the provisions of Section 11 A of the Act were not E
attracted to proceedings for acquisition taken by the
Government under Section 17 of the Act. Therefore, the
appellants filed the instant appeal.
The questions which arose for consideration in the
instant appeal are when the Government, in exercise of
F
its emergency powers under Section 17 of the Act
acquires lands, which have since vested in the State, can
such an acquisition proceeding lapse and consequently
the land can be transferred to the owners/persons
interested in the event of default by the State, in
G
complying with the provisions of Section 11A of the Act;
whether the provisions of Section 17(3A) of the Act are
mandatory or directory and in either event, would noncompliance with Section 17(3A) have the effect of
invalidating or vitiating the entire acquisition
H
194
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A proceedings, even where the land has vested in the State
in terms of Section 17(1) of the Act; whether with the
invoking of the emergency provisions which have the
effect of dispensing with the provision of hearing under
Section SA of the Act, the Court is entitled to construe the
B emergency provisions strictly and consider the
safeguards inbuilt in Section 17(3A) as conditions
precedent and mandatory for a valid exercise of
emergency provisions; and whether having regard to the
principle of reasonableness, the provisions of the said
c Act are to be construed, a pre-constitutional law in
consonance with reason and justice-the fundamental
tenets of Article 14 and thus, arrive at a balanced
interpretation of the interest of the State as against the
rights of citizens or land owners.
D
Referring the matter to the larger bench, the Court
HELD: PER GANGULY. J.
:1.1 Taking over a possession of land by invoking s.
E 17(1) and s. 17(2) of the land Acquisition Act, 1894 and
without complying with the requirement of Section 17(3A)
of making payment, is clearly illegal and in clear violation
of the statutory provision which automatically violates
the constitutional guarantee under Article 300A of the
Constitution. A passing observation to the contrary in *
F Satendra Prasad Jain's case, must pass sub silentio being
unnecessary in the facts of the case as otherwise such
a finding is per incuriam, being in violation of the statute.
A fortiorari the said finding cannot be sustained as a
binding precedent. Therefore, the writ petition cannot be
G dismissed in view of the decision in * Satendra Prasad
Jain's case which was decided on totally different facts.
The judgment of the High Court is set aside. [Paras 72
and 73] [257-F-G]
H
*Satendra Prasad Jain and Ors. v. State of UP. and Ors.
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v.
195
STATE OF U.P. & ANR.
AIR 1993 SC 2517: (1993) 4 SCC 369 - per incuriam.
A
1.2 In all cases of emergency acquisition under
Section 17, the requirement of payment under Section
17(3A) must be complied with as the provision of Section
17(1) and Section 17(2) cannot be worked out without
8
complying with requirement of payment under Section
17(3A) which is in the nature of condition precedent. If
Section 17(3A) is not complied with, the vesting under
Section 17(1) and Section 17(2) cannot take place.
Therefore, emergency acquisition without complying with
Section 17(3A) is.illegal. This is the plain intention of the
C
statute which must be strictly construed. Any other
construction, would lead to diluting the Rule of Law. [Para
74) [257-G-H; 258-A-B]
2.1 The reason behind enacting Section 17 (3A) of the
D
Act is clear from the Statement of Object and Reasons. It
is clear therefore, the provisions were incorporated in
order to strike a balan~e between the rights of the State
and those of the land owner. A clear legislative intent in
· Section 17(3A) was thus, expressed that before taking
E
possession of any land under sub-section (1) or subsection (2) of Section 17, the Collector shall tender
payment of 80% of the estimated compensation for such
land to the persons interested and entitled thereto. This
is the clear mandate of law. Reasonableness in law has F
to be its implicit content. When law gives a specific
mandate on the State to tender the payment before taking
possession under Section 17(1) and Section'17(2) by
invoking the emergency powers, to hold that the taking'
over of possession without complying with that mandate
G
is legal is clearly to return a finding whjch is contrary to
the express provision of the statute. Si.ich a finding is'
certainly not on a reasonable interpretation of Sectio_n 17
(3A). [Para 43) [244-D-F]
.: . · . 1 • •
·
i.
0 ,
''f1~'&._'~
,,I~~--··
R. C. Cooper v. Union of India (1970) 1 SCC 248;· H
196
SUPREME COURT REPORTS
(2011] 12 S.C.R.
A Maneka Gandfli v. Union of India & Anr. (1978) 1 SCC 248
- relied on.
Municipal Corporation of Delhi v. Gurnam Kaur AIR 1989
SC 38; Madhav Rao Jivaji Rao Scindia v. Union of India AIR
8 1971 SC 530; Padma Sundara Rao (Dead) & Ors., v. State
of Tamil Nadu & others (2002) 3 SCC 533 - referred to.
Gerard v. Worth of Paris Ltd. 1936 (2) AER 905 - referred
to.
c
Jurisprudence by Salmond "12th Edn - referred to
2.2 The emergency provisions of the statute which
empowers the State to acquire land by dispensing with
the provisions of making an enquiry, is a drastic
p.rovision. The provisions of the Act are expropriatory in
D nature and must be strictly construed. Section 17 of the
Act seeks to authorize acquisition and taking over of
possession without hearing the land owner. The right of
hearing which is given under Sertion SA of the Act and
which is taken away in view of the emergency acquisition
E is a very valuable right and is akin to a fundamental right.
Therefore, when that right is taken away and the land is
acquired by invoking the emergency provision of Section
17(3A) to hold that even the safeguards provided under
Section 17(3A) are not mandatory and taking over of
F possession without complying with the provisions of
Section 17 (3A) is not illegal, is to overlook the clear
provisions of the Act and come to a finding which is
contrary to the Act. [Para 44] [244-H; 245-A-D]
G
Dev Sharan & Ors. v. State of U.P. & Ors. JT 2011 (3)
H
SC 102 - referred to.
2.3 Section 17(3A) is not an isolated provision.
Section 17(3A) figures very prominently as part of the
statutory mechanism in Section 17 of the Act which
UELHI AIRTECH SERVICES PVT. LTD. & ANR. v.
197
STATE OF U.P. & ANR.
confers special powers in cases of urgency. Section 17
A
has four sub-sections and all these sub-sections
comprise a composite mechanism and are closely
intertwined. Power under one sub-section cannot be
exercised without complying with the conditions
imposed by the other sub-section. It is thus, clear that
B
sub-section (3A) of Section 17 read with sub-section (2)
of Section 31 of the Act form a composite statutory
scheme. The said scheme has been legislatively framed
to balance the promotion of public purpose in acquisition
with rights of the individual whose land is acquired. Thus, c
the provision of s. 17(3A) cannot be viewed in isolation.
It is an intrinsic and mandatory step in exercising special
powers in cases of emergency. Sections 17(1) and 17(2)
and 17(3A) must be read together. S~ction 17(1) and 17(2)
cannot be worked out in isolation. [Paras 45, 47 and 48)
0
[245-E-F; 248-E-H]
2.4 A statute has to be read as a whole and in its
c:.ontext. If the normal mode of vest_ing of acquired
property under Section 16 of the Act is compared with the
mode of vesting under emergency provisions of Section
E
17 thereof, it would be discerned that under the Act the
vesting of acquired property in the State presupposes
compliance with two conditions. Under Section 16, first
there has to be an award under Section 11 and then there
has to be taking over of possession. Only thereupon the
F
land shall vest absolutely in the State, free from all
encumbrances. However, in case of emergency
acquisition, possession is taken before the making of an
award. This is clear from Section 17(1) and Section 17(2).
But the intention of the legislature is that even though the
G
award is not made, payment mandated under Section
17(3A) must be made before possession is taken either
under Section 17(1) and 17(2) .. Therefore, the provision
relating to payment under Section 17(3A) is a condition
precedentto the vesting of land under Section 17(1) and
H
17(2).
198
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A
Union of India v. Sankalchand Himatlal Sheth & Anr.
B
(1977) 4 sec 193 - referred to.
Attorney General v. HRH Prince Earnest Augustus of
Hanover (1957) 1 AER 49 - referred to.
2.5 Judicial opinion is uniformly in favour of strict
construction of an expropriatory law which admittedly
Land Acquisition Act, 1894 is. The requirement of
payment under Section 17(3A) is in the nature of condition
precedent clamped by the statute before taking
C possession under emergency acquisition by the State.
The vesting contemplated either under Section 17(1) or
17(2) of the Act is conditioned upon payment mandated
under Section 17(3A). This is clear from the opening
words of Section 17(3A) namely "before taking
D possession of any land either under sub-section (1) or
(2), Collector shall ....... tender payment." Therefore, the
eminent domain concept is subject to the said statutory
.. condition and must be read subje~t to due process
·· concept introduced in the constitlltional law. If Section
E 17(3A) is read consistently with the constitutional
doctrine of due process as articulated in the expression
'authority of law' under Article 300A which constitutionally
protects deprivation of a right to property, save by
authority of law, the requirement of Section 17(3A)
F constitutes the authority of law within the mean,ng of
Article 300A. Therefore, in the context of the said
statutory dispensation and constitutional provision, the
debate whether the provision of Section 17(3A) is
mandatory or directory does not present much difficulty.
G Basically, the language used is 'shall' which primarily
indicates mandatory compliance. That apart, in the
context of the nature of statute which is admittedly
expropriatory in character and the nature of the statutory
requirement under Section 17(3A) which is clearly and
H undoubtedly a condition precedent to the taking over of
possession in emergency acquisition, there can be no
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v.
199
STATE OF U.P. & ANR.
doubt that the requirement under Section 17(3A) is
A
mandatory. [Paras 54, 66 and 67) [250-G; 255-B-H]
Secretary of State for India v. Birendra Kishore Manikya
ILR 44 Cal 328; Gujarat Electricity Board v Girdharlal Motilal
And Anr AIR 1969 SC 267; Nazir Ahmad v King Emperor AIR
B
1936 PC 253; Hindustan Petroleum Corpn. Ltd., v. Darius
Shapur Chenai and. others (2005) 7 SCC 627; Bharat
Petroleum Corporation Ltd. v Maddula Ratnavalli and Others
(2007) 6 SCC 81; Ji/ubhai Nanbhai Khachar and others v
State of Gujarat and Anr. 1995 Suppl (1) SCC 596 - referred
C
to.
Webb v. Manchester and Leeds Rail Co. (1339) 4 Myl
& Cr.116; Parkdale Corporation v. West (1887) 12 App. Cas.
602, 614; A.K. Gopalan v. State of Madras AIR 1950 SC 27;
Henry B. Stacey v The Vermont Central Raf/road Co. 27 Vt.
D
39 - referred to.
The Law of Compensation for Land Acquired under
Compulsory Powers by Cripps, Stevens and Sons, Ltd. 8th
Edn.; A Treatise on the Constitutional Limitations by Cooley
E
'Volume II, (Eight Edn);; Words and Phrases permanent
edition, Vol. 8. St. Paul, Minn, West Publishing Co., 1951,
p 629; Bouvier's Law Dictionary, A Concise encyclopedia of
the Law, Rawle's Third Revision, Vol. 1, Vernon Law Book
Company, 1914, p 584; Wharton's Law Lexicon, 1976,
reprint, p 228 - referred to.
2.6 Section 17(3A) has been enacted for protecting
F
the rights of deprived, land-loser in an emergency
acquisition. The said provision is therefore, based on
reason, justice and fairplay. Since the said provision has
G
been introduced by way of an amendment to balance the
right of the State as against the interest of the land-loser,
the State's power of eminent domain is ex!Jressly made
subject to said. statutory provision as also ~he
constitutional right to property protected under Article
H
200
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A 300A. [Para 68] [256·A·B]
Chairman, Indore Vikas Pradhikaran v. Pure Industrial
Coke & Chemicals Ltd. and Ors. (2007) 8 SCC 705 -
referred to.
B
2.7 The expression 'law' which figures both in Article
21 and Article 300A must be given the same meaning. In
both the cases the law would mean a validly enacted law.
In order to be valid law it must be just, fair and reasonable
having regard to the requirement of Article 14 and 21. This
C is especially so, as 'law' in both the Articles 21 and 300A
is meant to prevent deprivation of rights. Insofar as Article
21 is concerned, it is a Fundamental Right whereas in
Article 300A it is a constitutional right which has been
given a status of a basic human right. Therefore, Section
D 17(3A) of the Act is a law which has been enacted to
prevent deprivation of property rights guaranteed under
Article 300 A. This provision of Section 17(3A) must
therefore, be given a very broad interpretation to mean a
law that givEis a fafr, just and reasonable protection of the
E land-loser's constitutional right to property. Therefore,
the provisions of Section 17(3A) read with Article 300A
must be liberally construed. [Paras 69,70 and 71] [256-C·
G]
Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC
F 248 - relied on.
Madhav Rao Jivaji Rao Scindia v. Union of India AIR
1971 SC 530 - referred to.
G
3. As regards the question of relief, the possession
of the land has been taken and same has been handed
over to the beneficiary on which construction had taken
place and third party interests had arisen. It is very
difficult to put the hands of the clock back now, despite
H the said declaration of law by the Court. In the special
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v.
201
STATE OF U.P. & ANR.
facts of the case, compensation in respect of the land
A
acquired as regards the appellants, cannot be decided on
the basis of the date of notice under Section 4. The
compensation has to be fixed with regard to the value of
the appellant's land as on the date of filing of the writ ·
petition which was in March, 2006 before the High Court.
B
The Section 4 notification must be deemed to have been
issued on March 1, 2006 and the compensation must be
worked out on that basis. An award on that basis must
be passed by the Collector within four months from date
and the appellants are given liberty, if so advised, to c
challenge the same in appropriate proceedings. As the
respondent-acquiring authority has proceeded illegally in
the matter, it shall pay costs of Rupees one lakh in favour
of High Court Mediation Centre. The State is at liberty to
recover the same from the erring officials. [Paras 75, 76)
D
[258-C-H]
Dorothy Lynch v. Household Finance Corporation 405
US 538: 31 L Ed. 2d 424 - referred to.
Democracy, Equality and Freedom by Justice K.K.
E
Mathew (1978) - referred to.
PER SWATANTER KUMAR, J:
1. The four legal questions as· framed are answered
as follows:
F
A. Section 11A of the Land Acquisition Act, 1894 has
no application to the acquisition proceedings
conducted under the provisions of Section 17 of the
Act. Once the acquired land has vested in the G
Government in terms of Section 16 or 17(1) of the Act,
possession of which has already been taken, such
land is incapable of being re-vested or reverted to the
owners/persons interested therein, for lack of any
statutory provision for the same under the Act.
H
A
B
c
D
E
F
G
H
202
SUPREME COURT REPORTS
[2011] 12 S.C.R.
B. The provisions of Section 17(3A) of the Act, on
their bare reading, suggest that the said provision is
mandatory but, as no consequences of default have
been prescribed by the Legislature in that provision,
thus, it would hardly be permissible for the Court to
read into the said provision any drastic
consequences much less lapsing of entire
acquisition proceedings. Default in complying with
provisions of Section 17(3A) cannot result in
invalidating or vitiating the entire acquisition
proceedings, particularly when the possession of the
acquired land has been taken and it has vested in the
Government free from all encumbrances.
C. Keeping in view the scheme of the Act, the
provisions of Section 17 of the Act can be construed
strictly but such interpretation must be coupled with
the doctrine of literal and contextual interpretation,
while ensuring that the object of the legislation is not
defeated by such an interpretation. Strict compliance
to the conditions contemplated under Section 17 of
the Act should be given effect to but within the
framework of the statute, without making any
additions to the language of the section.
D. Once the righ.t to property ceases to be a
Fundamental Right after omission of Articles 19(1)(f)
of the Constitution of India, the addition of Articles
31A and 300A by the 44th Constitutional Amendment,
1978, cannot place the legal right to property at the
same pedestal to that of a fundamental right falling
under Chapter Ill of the Constitution. The provisions
of the Land Acquisition Act are not violative of Article
14 of the Constitution. The rights of the citizens and
interest of the State can be balanced under the
provisions of the Act, without any violation of the
Constitutional mandate. [Para 82) [323-E-H; 324-A-G]
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v.
203
STATE OF U.P. & ANR.
'
2. The reasons for taking different view are as
A
· follows:
(i) The ratio decidendi of the judgment of this Court
in the case of Satendra Prasad Jain is squarely
applicable to the instant case, on facts and law.
Satendra Prasad Jain & Ors. v. State of U.P. & Ors. AIR
1993 SC 2517 = (1993) 4 SCC 369 - followed.
8
(ii) From the facts recorded, it is clear that within the
prescribed period, the payments were deposited with c
the State office of the Collector/co~petent authority
and it was for the State to distribute the money in
accordance with the provisions of the Act. It is not
only the scheme of the Act but also an established
practice that the amounts are disbursed by the
0
Collector to the claimants and not directly by the
beneficiary, for whose benefit the land had been
acquired. The beneficiary had discharged its
obligation by depositing, in fact, in excess of 80 per
cent of due compensation with the competent
E
authority. De hors the approach that one may adopt
in regard to the interpretation of Section 17(3A), on
facts the notification is incapable of being invalidated
for non-compliance of the said Section.
(iii) The doctrine of strict construction does not per
F
se mandate that its application excludes the
simultaneous application of all other principles of
interpretation. It is permissible in law to apply the rule
of strict construction while reading the provisions of
law contextually or even purposively. The golden rule
G
of interpretation is the rule of plain language, while
preferring the interpretation which furthers the cause
of the Statute rather than that which defeats the
objects or purposes of the Act.
H
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SUPREME COURT REPORTS
[2011] 12 S.C.R.
A
Offshore Holdings Pvt. Ltd. v. Bangalore Development
Authority & Ors. (2011) 3 SCC 139; Tika Ram & Ors. v. State
of U.P. & Ors. (2009) 10 SCC 689; Banda Development
Authority, Banda v. Moti Lal Agarwal & Ors. 2011 (5) SCALE
173; Devinder Singh & Others v. State of Punjab and Others
B (2008)1 SCC 728 - referred to.
c
D
(iv) The 44th Constitutional Amendment, on the one
hand, omitted Article 19(1)(f) and Article 31 while
introducing Articles 31A and 300A to the Constitution
of India on the other. Right to property was deleted
as a fundamental right in the Constitution. Thus, this
right cannot be placed on equi terms, interpretatively
or otherwise, to the pre-constitutional amendments.
The right to eminent domain would operate on a
different sphere, interpretation and effect, pre and
post constitutional repealments of these Articles and
Introduction of Article 300A of the Constitution. [Para
1]
3.1 It is clear that it may not be possible to lay down
E any straitjacket formula, which could unanimously be
applied to all cases, irrespective of considering the facts,
legislation in question, object of such legislation,
intendment of the legislature and substance of the
enactment. It will always depend upon all these factors.
F Still, these precepts are not exhaustive and are merely
indicative. There could be cases where the word 'shall'
has been used to indicate the legislative intent that the
provisions should be mandatory, but when examined in
light of the scheme of the Act, language of the provisions,
G legislative intendment and the objects sought to be
achieved, such an interpretation may defeat the very
purpose of the Act and, thus, such interpretation may not
be acceptable in law and in public interest. Keeping in
mind the language of the provision, the Court has to
examine whether the provision is intended to regulate
H
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v.
205
STATE OF U.P. & ANR.
certain procedure or whether it vests private individuals
A
with certain rights and levies a corresponding duty on the
officers concerned. The Court will still have to examine
another aspect, even after holding that a particular
provision is mandatory or directory, as the case may be,
i.e., whether the effect or impact of such non-complianc~ B
would invalidate or render the proceedings void ab initio
or it would result in imposition of smaller penalties or in
issuance of directions to further protect and safeguard
the interests of the individual against the power of the
State. The language of the statute, intention of the c
legislature and other factors decide the results and
impacts of non-compliance in the facts and
circumstances of a given case, before the Court can
declare a provision capable of such strict construction,
to term it as absolutely mandatory or directory. [Para 27]
D
[278-D~H; 279-A-C]
May George v. Special Tehsildar and Ors. (2010) 13
SCC 98; Mis. Sainik Motors, Jodhpur & Others v. The State
of Rajasthan AIR 1961 SC 1480; Hindustan Petroleum
Corporation v. Darius Shapur Chennai and Ors. (2005) 7 SCC
E
627 - referred to
Attorney General's Reference (No. 3 of 1999) (2001) 1
All ER 577; R. v. Jones, exp. Daunton 1963(1) WLR 270R.
v. Bullock (1964)1 QB 481 - referred to.
F
'Principles of Statutory Interpretation' by Justice G.P.
Singh, 12th Edn, 2010 p 389; 'The Interpretation of Statutes'
by Maxwell Chapter 12, 12th Edn.; 'Principles of Statutory
Interpretation' by Justice G.P. Singh, 11th Edn, 2008; -
'Statutory Construction' by Crawford; Interpretation of Statutes' G
by Maxwell 12th Edition by P. St. J. Langan - referred to.
3.2 Under the scheme of Section 17 of the Act, the
Government can take possession of the property on the
. expiration of 15 days from publication of notice mentioned · H
206
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A in Section 9(1) of the Act. The provisions of Section 5 of
the Act, i.e., the right of the owner to file objection can be
declared to be inapplicable. Besides these two significant
distinctions, another important aspect that the land vests
in the Government under Section 16 of the Act only after
B the award is made and possession of the land is taken,
while under Section 17(1 ), at the threshold of the
acquisition itself, the land could vest absolutely in the
Government free from all encumbrances. The possession
of the acquired property has to be taken by the Collector
c in terms of Sections 17(2) and 17(3) of the Act. [Para 28]
[279-G-H; 280-A-B]
3.3 Section 17(3A) of the Act, was introduced by the
Amendment Act 68 of 1984 for the purposes of
safeguarding the interests of the claimants. Section
D 17(3A) makes it obligatory on the part of the authority
concerned to tender/pay 80 per .. ent of the compensation
for the acquired land, as estimated by the Collector, to the
persons interested and entitled thereto; unless prevented
by any of the contingencies mentioned under Section
E 31(2) of the Act. The use of the word 'shall' in Section
17(3A) indicates that the enactors of law desired that the
procedure stated should be complied with by the
authority concerned prior to takirtg of possession.
Deposit of amount is the condition precedent to taking
F of possession. The amount so deposited or paid in terms
of Section 17(3A) of the Act will be taken into account for
determining the amount of compensation required to be
tendered under Section 31 of the Act and provides for the
recovery of amounts if it exceeds the awarded amount.
G Section 17(3A) unambiguously provides a complete
mechanism of taking possession and the requirement of
payment of 80 per cent of estimated compensation to the
claimants. [Para 29] [281-E-H; 282-A-CJ
H
3.4 Section 17(3A) of the Act is completely silent on
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v.
207
STATE OF U.P. & ANR.
consequences of default in compliance of the provision.
A
. Where the Legislature has, in specific terms, provided for
the extent of payment, mode of payment and even the
difficulties which are likely to arise, i.e, where a person
may not be entitled to receive the compensation or in any
other eventuality such as where the compensation
cannot be paid for the reasons stated in Section 31(1) of
the Act, there the Legislature in its wisdom has provided
no contingencies and/or consequences of non-deposit
B
of this money. This is in complete contradistinction to the
provisions contained in Sections 6 and 11A of the Act. c
Section 6 provides that no declaration shall be issued
where the period specified in the first proviso to Section
6(1) of the Act has expired. Similarly, Section 11A of the
Act provides that the acquisition proceedings shall lapse
where the Collector fails to make an award within a period 0
of two years from the date of publication of declaration
under Section 6 of the Act. Thus, the legislative intent is
very clear. The legislature has provided for every
contingency for tendering payment, while
0·remaining
silent about consequences flowing from default under
some other provisions. When the framers of law have not E
provided for any penal consequences for default in
compliance to Section 17(3A), then it will be uncalled for
F
to provide such consequences by judicial_ interpretation.
While interpreting the provisions for compensation, the
Court can provide such interpretation as would help to
bridge the gaps left by the Legislature, if any, in
implementation of the provisions of the Act. But it would
hardly be permissible for the Court to ·introduce such
consequences by way of judicial dicta, like requiring
lapse of acquisition proceedings. This is not a matter G
covered by the principles of judicial interpretation. [Paras
30 and 31] [282-C-H; 283-A-D]
3.5 It is a well settled canon of statutory interpretation
that the courts would neither add nor subtract from the
H
208
SUPREME COURT REPORTS
[2011112 S.C.R.
A plain language of the statutory provision. In the instant
case also, there is hardly any justification for the courts
to take any contrary view. Once the land has vested in
the State and there being no provision for re-vesting the
land in the original owners under the provisions of the
B Act, then it would be in consonance with the scheme of
the Act and legislative intent to give an interpretation that
would allow provisions of Section 17(1) to operate
without undue impediment and keep the vesting of land
in the State intact Otherwise, in some cases the purpose
"' for which such lands were acquired might stand
>J frustrated, while in other cases the purpose of
acquisition might have already been achieved and,
therefore, divesting State of its title and possession in the
acquired land would be incapable of performance. Under
J such circumstances, then, to interpret Section 17(3A) of
the Act to be so mandatory in its absolute terms that the
non-payment of money would result in vitiating or lapsing
entire acquisition proceedings, can hardly be justified on
the strength of any known principle of interpretation of
statutes. It is a complete safeguard provided to the land
E owner inasmuch as the compensation stipulated under
Section 17(3A) of the Act should be paid in terms of the
provisions of the Act so that the owner is not made to
suffer on both counts i.e. he is deprived of his land as
well as compensation. It would be unfair for the
F authorities concerned not to pay the compensation as
contemplated under the provisions of the Act. It would be
just and fair to read into the provisions of the Section
17(3AJ as imposing an obligation on the part of the
authorities concerned/the Collector to pay the
G compensation within the time specified under Section
17(3A). Of course, no specific time, within which the
payment has to be made in terms of Section 17(1) has
been stated in the provision. But, wherever specific
limitations are not stated, the concept of 'reasonable time'
H would become applicable. So, even if it is submitted that
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v.
209
STAtE OF U.P. & ANR.
' there is no specific time contemplated for payment/ A
deposit of 80 per cent of the estimated compensation,
even then the claimants would be entitled to receive the
amount expeditiously and in any case within very
reasonable time. If the authorities are permitted to take
possession of the land without payment of the amounts
B
contemplated under Section 17(3A) of the Act, then it
would certainly amount to abuse of power of eminent
domain within its known legal limitations. The authorities
should discern the distinction spelt out under Section 16
of the Act on the one hand and Section 17(1) read with c
Section 17(3A) of the Act on the other. (Para 32). [283-EH; 284-A-G]
Banwari Lal & Sons Pvt. Ltd. vs. Union of India & Ors.
1991 (1) DRJ (Suppl.) 317; Union of India & Ors. v. Krishan
Lal Ameja & Ors. (2004) 8 SCC 453; Tika Ram & Ors. v. State · D
of U.P. & Ors. (2009) 10 SCC 689; Satender Prasad Jain
Pratap & Anr. v. State of Rajasthan (1996) 3 SCC 1; Rajend~r
Kishan Gupta v. Union;of India (2010) 9 SCC 46 - referred
to.
3.6 The provisions of Section 17(3A) of the Act are
not mandatory. Such a conclusion can safely be arrived
at, even for the reason that the Court would have to read
into the provisions of Section 17(3A) consequences and
E
a strict period of limitation within which amount should
F
be deposited, which has not been provided by the
Legislature itself in that section. The consequences and
contingencies arising from non-compliance of the said
provisions have not been stated in the Act. Once the land
has vested in the Government, non-compliance with the
G
obligation of payment of 80 per cent of estimated
compensation would not render the possession taken
under Section 17(1) as illegal. The land cannot be revested or reverted back to the claimants as no provisions
under the Act so prescribe. Furthermore, if the
H
210
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A interpretation put forward by the appellants is accepted,
it would completely frustrate the objects and purpose of
the Act, rather than advancing the same. The expression
'shall' used in Section 17(3A) has to be understood in its
correct perspective and is not to be construed as
B suggestive of the provisions being absolutely mandatory
in its application. Thus, the provisions of Section 17(3A)
are not mandatory. They are directive provisions, though
their compliance is necessary in terms of the Act. [Para
39) [290-G-H; 291-A-D]
c
3.7 The obligation on the part of the Government or
concerned authority to deposit the amount prior to taking
possession under Section 17(1) should essentially be
complied with. The amount of 80 % of the estimated
compensation in terms of Section 17(3A) should be
D deposited. Once the provisions of Sections 17(1) and
17(3A) is read conjunctively, it implies that the amounts
are to be deposited within 15 days from the publication
of the notice in terms of Section 9(1) of the Act and before
taking of possession of the acquired land. The
E Legislature has sufficiently indicated that the payment of
the due 80 per cent of compensation should be made at
the earliest and, particularly, before possession is taken.
Non-compliance of the provisions of Section 17(3A)
would not vitiate the acquisition proceedings, but
F depending on the facts of a given case, the payment
should be made within the time indicated and in any case
within a reasonable time, and the claimant should then
be entitled to additional benefits for such noncompliance. The Court would fill a part of the gap which
G has remained unfilled by the Legislature. [Para 40)
3.8 Irrespective of whether the provision is held to be
mandatory or directory, compliance with its substance is
equally important. In either case, the authority entrusted
H with a duty is not absolved of its obligation to perform
DELHI AIRTECH SERVICES PVT. LTD. & ANR. v.
211
STATE OF UP. & ANR.
the specified duty or obligation in the manner stated in
A
law. It is primarily the consequences which result from
non-performance of duty, which are of significance in
determining the impact of mandatory or directory nature
of a provision. Normally, in both cases, some
consequences should flow from non-performance. Even
9
if the provisions of Section 17(3A) are directory, the
deposit of 80 per cent of estimated compensation within
the period of limitation i.e. 15 days and prior to taking
possession of the land, has to be made. There is no
ambiguity in this requirement. Thus, it shall be the duty C
of the Court to fill the lacuna (i.e., the consequences of
non-payment of compensation) to complete the chain of
the legislative scheme contained in Section 17 of the Act.
Having taken recourse to the emergency provisions and
having taken possession of the land, the Government
and its authorities cannot be permitted to defer the
D
payment of the requisite amount, in terms of Section
17(3A) .ofthe Act, indefinitely or for an unduly long period.
A responsibility is cast upon the authorities concerned
to make· payments within time and not unduly cause
inconvenience and harassment to persons interested in
E
the compulsorily acquired land and who have been
deprived of possessory benefits also. The provisions of
Section 34 is to be read together with the provisions of
Sections 17(1) and 17(3A) of the Act. They have to be
construed harmoniously, keeping in mind the object
F
sought to be achieved by a conjoint reading of these
provisions. The expression 'before taking possession of
the land' has,been used in Section 17 read with Section
17(3A) and in Section 34 as well.