TaxTMI 
TaxTMI 
2015 (7) TMI 1077
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....erty has ceased to be conceived of as a Fundamental Right, it continues to receive Constitutional protection. It is also the regrettable reality that Governments are increasingly relying on rulings of this Court to the effect that even if the public purpose providing the predication for the compulsory acquisition of a citizen's land has proved to be an illusion or misconception, another purpose can conveniently be discovered or devised by the State for retention by it of the expropriated land. Our opinion intends to insulate genuinely urgent projects from lapsing and not to annihilate the constitutional rights of the individual from the might of the State even though it transgresses the essence of the statute. It has become alarmingly commonplace for lands to be expropriated under the banner of urgency or even under the normal procedure, only to be followed by a withdrawal or retraction from this exercise enabling a favoured few to harvest the ill-begotten windfall. The ambivalence or cleavage of opinion of this Court in Delhi Airtech Services (P) Ltd. vs. State of U.P. (2011) 9 SCC 354 on the necessity to pay the erstwhile owners of land of even its unilaterally assessed value has....
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....6 had not been promulgated within one year. Hence yet another Notification was published on 13.8.2001, for which the Appellants filed their Objections under Section 5A yet again. This Notification also lapsed, since the sequence of events as contemplated in the L.A. Act had not been duly completed. Once again, in 2004, fresh steps were initiated for acquisition which also expired for the same reason. The Respondent State now vainly essays to take unfair and ill-founded advantage of decisions and opinions of this Court to contend that the subject acquisition stands completed in all respects, thereby endeavouring, illegally in our considered opinion, to avoid performance of their statutory obligations of computing compensation and then paying it. 4. The Impugned Order accepts the version of the Respondent that large parcels of these lands have been utilized for constructing residential quarters for senior Officers of the State, and that the Appellant has been paid eighty per cent of the compensation, although twenty per cent supposedly still remains outstanding. Per contra, it is the contention of the Appellant that the incontrovertible position that portions of the land have remain....
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.... of a preliminary notification, whereupon Officers of the State are authorized to enter and survey the lands proposed to be acquired and carry out activities ancillary to that purpose; and Section 5 obligates the Officials to compensate for damages caused as a consequence thereof. The right to file Objections to the Section 4 Notification, recognized by Section 5A, was introduced into the L.A. Act by Act 38 of 1923, and this provision was again amended by Act 68 of 1984 to mandate that Objection must be filed within thirty days of the issuance of the Notification. Section 5A further obligates the Collector to submit a Report to the Government in respect of the Objections preferred by persons interested in the land, as well as pertaining to any aspect of the nature of the land proposed to be acquired. 6 The insertion of Section 5A seems to have been spurred on by the decision of the Division Bench of the Calcutta High Court in J.E.D. Ezra vs. The Secretary of State for India (1902-1903) 7 CWN 249. In that case, the properties of Ezra were sought to be acquired under the pre-amended provision for expansion of the offices of the Bank of Bengal. In the challenge to the said acquisitio....
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.... for a Company; and post 1984, this Declaration has to be made within one year of the date of the publication of the Section 4 Notification. We are not concerned in this Appeal with the Provisos or Explanations to Section 6 or to other sub-Sections and shall therefore not advert to them any further. Thereafter the Collector has to take Orders for the acquisition of land and to mark and measure it. Section 9 enjoins the Collector to cause public notice to be given of his intention to take possession of the land and to entertain claims for compensation. Section 11 postulates the holding of an enquiry by the Collector into Objections on sundry grounds. For the purposes with which we are presently concerned, amendments to Section 6 and the insertion of the new Section 11A, both of which prescribe a time limit within which requisite action has to be taken by the Government justify special mention. The prefatory note - Statement of Objects and Reasons of Act No.68 of 1984 as are relevant are reproduced: [Current Central Legislation Vol.10 1984 - 3,5,6,9] Prefatory Note - Statement of Objects and Reasons - With the enormous expansion of the State's role in promoting public welfare and eco....
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....ation, once any one of them has obtained orders for payment of higher compensation from the reference court under Section 18 of the Act. (Emphasis added) 8 Section 11A has been introduced by Act 68 of 1984 prescribing a limitation of two years for the making of an Award by the Collector. It is only post this event that Section 16 empowers the Collector to take possession of the land which thereupon vests absolutely in the Government, free from all encumbrances. We may clarify that the word 'vest' has two connotations - the first and primary one relates to possession of land; and the second, an adjunctory one, pertains additionally to the title of that land. But this distinction has not been drawn in India since this Court has held in several cases that 'vesting' in the circumstances with which we are presently concerned, covers and encompasses the possession as well as the title of the land. 9 It is in this progression that the L.A. Act provides for special powers in the case of perceived urgency, in terms of Section 17, which we shall reproduce for facility of reference. "17. Special powers in cases of urgency. -(1) In cases of urgency, whenever the appropriate Government, so....
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....estimated by him to the persons interested entitled thereto, and (b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2) (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section. (3B) The amount paid or deposited under sub-section (3A), shall be taken into account for determining the amount of compensation required to be tendered under section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under section 11, the excess may, unless refunded within three months from the date of Collector's award, be recovered as an arrear of land revenue. (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the date of the publication of the notificatio....
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....ut giving to the occupier thereof at least forty-eight hours' notice of his intention to do so, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience. (3) In every case under the proceeding sub-sections the Collector shall, at the time of taking possession offer to the persons interested, compensation for the standing crops on such land and for any damage sustained by them caused by such sudden dispossession and not accepted in section 24; and in case such offer is not accepted, the value of such crops and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained. (4) In the case of any land to which in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the provisions of section 5A shall not apply where the appropriate Government so directs to where possession of the land has been taken with the consent of the person interested. Sub-sections (3A) and (3B) have not been amended viz-a-viz the State of Bihar and continue to apply even in that St....
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....oregoing factors have been formally and strictly complied with. This Section enables the curtailment of a citizen's Constitutional right to property and can be resorted to only if the provisions and preconditions are punctiliously and meticulously adhered to, lest the vesting be struck down and set aside by the Court in its writ jurisdiction, on the application of the Taylor vs. Taylor (1875) 1 Ch D 426 and several judgments of this Court which has followed this decision (supra). 13 Section 17(2) enables the use of the urgency provisions in some other contingencies also, which we may term as 'emergency' in contradistinction to 'urgency', with which we are not currently concerned. Section 17(3) consists of myriad ingredients; by using the word "shall" Parliament has clarified that what follows compulsorily requires adherence, the non-compliance of which will lead to vitiating all the action ostensibly taken under this provision. These requirements are that at the time of taking possession of lands under the urgency provision the Collector must offer compensation to the persons interested in those lands. It is relevant to underscore that this provision does not postulate, as of firs....
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....the estimated compensation, otherwise making the acquisition vulnerable to vitiation because of the Taylor v. Taylor principle. The use of the word "estimated" in the Section delineates the distinction from "actual" compensation; an estimate always remains a rough or approximate calculation only [Black's Law Dictionary], or an approximate judgment and /or a price specified as that which is likely to be charged. It would do violence to the statute and fly in the face of common sense if an estimate is treated per se as a conclusive calculation. Any doubt that may remain is immediately dispelled upon a perusal of Section 17(3B) which clarifies that the estimated amount tendered/paid under sub-Section (3A) will be taken into account for determining the amount of compensation and thereafter logically permitting the shortfall or the excess to be adjusted. In other words, the amount of compensation has to be determined and computed under the relevant sections of the L.A. Act. A reading of sub-Section (4) sounds the death knell to the arguments put forward for the Respondent State, inasmuch as it allows the option to the appropriate Government to make the provisions of Section 5A inapplica....
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.... 149, we must sedulously determine their ratios. This would therefore be the apposite time and place for a brief discussion on the contours and connotations of the term ratio decidendi, which in Latin means "the reason for deciding". According to Glanville Williams in 'Learning the Law', this maxim "is slightly ambiguous. It may mean either (1) rule that the judge who decided the case intended to lay down and apply to the facts, or (2) the rule that a later Court concedes him to have had the power to lay down." In G.W. Patons' Jurisprudence, ratio decidendi has been conceptualised in a novel manner, in that these words are "almost always used in contradistinction to obiter dictum. An obiter dictum, of course, is always something said by a Judge. It is frequently easier to show that something said in a Judgment is obiter and has no binding authority. Clearly something said by a Judge about the law in his judgment, which is not part of the course of reasoning leading to the decision of some question or issue presented to him for resolution, has no binding authority however persuasive it may be, and it will be described as an obiter dictum." 'Precedents in English Law' by Rupert Cross....
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...., is instructive and is reproduced for this reason - 10. The contention of the Commission also overlooks the fundamental difference between challenge to the final order forming part of the judgment and challenge to the ratio decidendi of the judgment. Broadly speaking, every judgment of superior courts has three segments, namely, (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision. The reasons for the decision or the ratio decidendi is not the final order containing the decision. In fact, in a judgment of this Court, though the ratio decidendi may point to a particular result, the decision (final order relating to relief) may be different and not a natural consequence of the ratio decidendi of the judgment. This may happen either on account of any subsequent event or the need to mould the relief to do complete justice in the matter. It is the ratio decidendi of a judgment and not the final order in the judgment, which forms a precedent... 19 We also commend a careful reading of the following paragraphs from the decision of the Constitution Bench in Islamic Academy of Education vs. State of Karnataka, 2003 (6)....
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.... always be remembered that this Court does not enact." (See also Amar Nath Om Prakash v. State of Punjab and Hameed Joharan v. Abdul Salam) 143. It will not, therefore, be correct to contend, as has been contended by Mr Nariman, that answers to the questions would be the ratio to a judgment. The answers to the questions are merely conclusions. They have to be interpreted, in a case of doubt or dispute with the reasons assigned in support thereof in the body of the judgment, wherefor, it would be essential to read the other paragraphs of the judgment also. It is also permissible for this purpose (albeit only in certain cases and if there exist strong and cogent reasons) to look to the pleadings of the parties. 144. In Keshav Chandra Joshi v. Union of India this Court when faced with difficulties where specific guidelines had been laid down for determination of seniority in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra held that the conclusions have to be read along with the discussions and the reasons given in the body of the judgment. 145. It is further trite that a decision is an authority for what it decides and not what can be logically deduced th....
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....f Section 17(1), which states that "once possession of the land is taken by the Government under Section 17, the land vests absolutely in the Government, free from all encumbrances". In Section 48(1) the taking over of the possession of the land is of seminal significance in that the provision succinctly states that "the Government shall be at liberty to withdraw from the acquisition of any land the possession of which has not been taken". The next sub-Section covers calculation of compensation for the aborted occupation. The same position came to be reiterated in Satendra Prasad Jain by a Three Judge Bench of this Court. The acquisition proceedings including the exclusion of Section 5A had obtained the imprimatur of the Allahabad High Court; the urgency and public purpose had received curial concurrence. Possession of the land was taken by the State from the landowners. Previously, the Special Leave Petition filed by the landowners had been dismissed by this Court. Ironically, the subsequent stance of the State was that the acquisition of land under the urgency provisions was required to be set aside for the reason that the State had failed to pass an Award under Section 11 within....
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....nstitution Bench of this Court had to interpret Section 17 in Raja Anand Brahma Shah v. State of U.P. (1967) 1 SCR 373, but in somewhat different circumstances. The State proposed to take over large tracts of land "for limestone quarry" on urgency basis; by virtue of Section 17(4), Section 5A was held not to be available. The Collector of Mirzapur was directed by the Notification under Section 17(1) of the Act to take possession of the "waste or arable land" even in the absence of an Award being published. The Constitution Bench held that the limestone quarries belonging to the Appellant, which were proposed to be acquired, could not possibly be conceived of or categorised as "waste or arable land, the acquisition, inasmuch as it proceeded under Section 17, could not pass muster of law. What is very pertinent for the present purposes is that the Constitution Bench had declined issuance of a mandamus commanding the State to restore possession of the land to the Appellant, not because this was inconceivable or impermissible in law or because of any provisions in the L.A. Act, but rather because the lands had validly vested in the State of U.P. under the U.P. Zamindari Abolition and L....
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....ntent behind this Section. Furthermore, keeping empirical evidence in sight, we make bold to opine that circumstances require this Court to reconsider its view that even if the stated public interest or cause has ceased to exist, any other cause can substitute it, especially where the urgency provisions have been invoked. 25 We feel it imperative to distinguish between the setting aside of an acquisition and the reversion of possession to the erstwhile landowners. While the L.A. Act and the judgments discussed above do not allow for the latter, we are of the considered opinion that this does not necessarily imply that the former is also not an option. Both the abovementioned cases dealt with a factual situation in which the Government was attempting to set the acquisition of the land at naught so that they would not have to pay compensation to acquire it. Setting aside of the acquisition in those cases was tantamount to reverting the possession to the original owners. In this scenario, however, the two do not have to go hand in hand. In allowing the acquisition of land that the Government finds necessary to be set aside, we would not necessarily be holding that the land revert to ....