Calcutta High Court (Appellete Side)
West Bengal Housing Infrastructure ... vs Aeroheight Apartment Consultants ... on 1 December, 2025
Author: Supratim Bhattacharya
Bench: Sabyasachi Bhattacharyya, Supratim Bhattacharya
2025:CHC-AS:2168-DB
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
The Hon'ble Mr. Justice Sabyasachi Bhattacharyya
And
The Hon'ble Mr. Justice Supratim Bhattacharya
MAT No. 1407 of 2024
IA No: CAN 1 of 2024
West Bengal Housing Infrastructure Development Corporation
- Versus -
Aeroheight Apartment Consultants Private Limited and Others
For the appellant : Mr. Arindam Banerjee, Sr. Adv.,
Mr. Artira Basu,
Mr. Saaqib Siddiqui,
Mr. Dyutimoy Paul,
Mr. Samriddha Sen
For the
respondent nos. 1 to 20 : Mr. Jaydeep Kar, Sr. Adv.,
Ms. Manju Bhuteria Mr. Siddhartha Banerjee Mr. Biswaroop Bhattacharya Mr. Dwaipayan Basu Mullick Mr. Rajesh Upadhyay Ms. Jyoti Rauta Ms. Surabita Biswas For the KMDA/respondent nos. 26 & 27 : Mr. Satyajit Talukdar, Mr. Arindam Chatterjee For the State : Mr. Chandi Charan De, Mr. Sadhan Kr. Halder Heard on : 06.11.2025, 13.11.2025 & 18.11.2025 Reserved on : 18.11.2025 Judgment on : 01.12.2025 2 2025:CHC-AS:2168-DB Sabyasachi Bhattacharyya, J.:-
1. The present appeal arises out of a judgment dated October 6, 2023 passed in WPA No.9860 of 2023. The respondent nos.1 to 20/writ petitioners, upon purchasing the subject-property, sought a No Objection Certificate (NOC) from the appellant, namely the West Bengal Housing Infrastructure Development Corporation (for short, "HIDCO"). HIDCO refused to grant NOC on the ground that the subject-plot had already been acquired by the State under the Land Acquisition Act, 1894 (hereinafter referred to as the "LA Act").
2. The learned Single Judge, on the basis of a report filed by the State indicating that the acquisition process had lapsed in terms of the provision laid down under Section 11A of the LA Act, has disposed of the writ petition by directing the HIDCO to take necessary steps for issuance of NOC in favour of the petitioners.
3. Being thus aggrieved, the HIDCO has preferred the instant appeal.
4. Learned senior counsel appearing for the appellant submits that the writ petitioners/respondent nos.1 to 20 suppressed their dates of purchase, which happened much after the initiation of the acquisition proceeding. It is argued that the law is well-settled to the extent that it would not be open to any subsequent (post-vesting) transferee to challenge the acquisition on the ground of lapse of the acquisition proceeding, particularly if the transferor, during whose ownership tenure the said proceeding emanated and was dealt with, had not challenged the said proceeding. Learned senior counsel cites several judgments, relying on in particular on Government of 3 2025:CHC-AS:2168-DB NCT of Delhi and Another v. Karampal and Anr., reported at (2023) 1 SCC 39 and Govt. Of NCT of Delhi v. Sunil Jain, reported at 2023 SCC OnLine SC 39, in support of the proposition that a subsequent purchaser cannot challenge an acquisition proceeding on the ground of lapse of the same.
5. As such, it is contended, since the main relief in respect of lapse of the acquisition proceeding could not be granted in the writ petition at the behest of respondent nos. 1 to 20, none of the consequential reliefs could have been granted as well.
6. Learned senior counsel for the appellant further submits that the provisions of Section 11A of the LA Act are not attracted where the acquisition proceeding is initiated under the urgency provisions by issuing a combined notification under Section 4, read with Section 17(4), of the LA Act. In support of such contention, learned counsel cites the following judgments:
i) Indore Development Authority vs. Manoharlal & Others reported at (2020) 8 SCC 129;
ii) Awadh Bihari Yadav vs. State of Bihar & Ors. reported at (1995) 6 SCC 31;
iii) P.Chinnnanna vs. State of Andhra Pradesh reported at (1994) 5 SCC 486.
7. Although in a subsequent judgment of Delhi Airtech Services Pvt. Ltd and Another vs. State of U.P And Anr., reported at (2022) SCC OnLine Sc 1408, a three Judges‟ Bench, while ruling on a reference made on the divergence of opinion between two Hon‟ble Judges of the 4 2025:CHC-AS:2168-DB Supreme Court, had upheld the proposition that taking over possession of the land without complying with the requirement of Section 17(3A) of the LA Act is illegal, being in violation of the statutory provisions which automatically violate Article 300A of the Constitution of India, one of the learned Single Judges who differed, however, had taken a different view, concluding that Section 11A of the LA Act has no application to an acquisition under Section 17 of the said Act.
8. The three Judges‟ Bench, it is submitted, despite having been confronted with Indore Development Authority (supra)1, passed a verdict contrary thereto in Delhi Airtech Services Pvt. Ltd (supra)2 and, as such, the latter judgment cannot have a binding effect, since Indore Development Authority (supra)1 was delivered by a larger (Constitution) Bench. It is contended by the appellant that a judgment is per incuriam not only when it does not notice a co- ordinate or larger Bench judgment saying something to the contrary, but also when, despite noticing the same, the said judgment cannot be reconciled with the ratio of the co-ordinate or larger Bench decision. In support of such contention, the appellant cites some judgments, which are as follows:
(i) Hyder Consulting (UK) Limited v. Governor, State of Orissa, reported at (2015) 2 SCC 189;
1. Indore Development Authority vs. Manoharlal & Others reported at (2020) 8 SCC 129
2. Delhi Airtech Services Pvt. Ltd and Another vs. State of U.P And Anrs., reported at (2022) SCC OnLine Sc 1408 5 2025:CHC-AS:2168-DB
(ii) Roger Shashoua and Others v. Mukesh Sharma and Others, reported at (2017) 14 SCC 722;
(iii) Sundeep Kumar Bafna v. State of Maharashtra and Another, reported at (2014) 16 SCC 623.
9. It is argued that Delhi Airtech Services Pvt. Ltd (supra)3 does not answer the question as to whether in the event a notice under Section 4, read with Section 17(4), of the LA Act is followed by a valid declaration under Section 6 of the said Act, but an award under Section 11 has not been made within the stipulated time period, ipso facto lapse under Section 11A would apply. The said judgment, it is submitted, does not provide a complete answer to the poser at hand.
10. A judgment is a precedent for what it actually decides and not for anything that can be logically derived therefrom and accordingly, it would not be profitable to construe that the judgment of Delhi Airtech Services Pvt. Ltd (supra)3 answers the question raised in the present case.
11. Other vital issues such as whether a subsequent purchaser can raise a question of lapse have also not been answered in Delhi Airtech Services Pvt. Ltd (supra)3, the appellant argues.
12. Learned senior counsel for the appellant further contends that the said judgment has only prospective effect and cannot be applied retrospectively to acquisition proceedings initiated prior to delivery of the same.
3. Delhi Airtech Services Pvt. Ltd and Another vs. State of U.P And Anrs., reported at (2022) SCC OnLine Sc 1408 6 2025:CHC-AS:2168-DB
13. Learned senior counsel raises a question as to whether Section 11A would apply where a notice under Section 4, read with Section 17(4), of the LA Act is followed by a valid declaration under Section 6 of the said Act. In such context, it is argued that the law relating to legal fiction is that a legal fiction is a deeming provision for the purpose of assuming existence of a fact which does not really exist. Although full effect must be given to a full fiction, it should not be extended beyond the purpose for which it is created. In The State of Travancore-Cochin v. Shanmugha Vilas Cashew Nut Factory, reported at AIR 1953 SC 333, it was held that legal fictions are created only for some definite purpose and are to be limited to such purpose alone and not extended beyond that legitimate field. Other judgments of the Hon‟ble Supreme Court are cited where the said proposition has been accepted.
14. In tune with such decisions, it is argued that the fiction contained in Section 11A can only be brought into effect when all the conditions prescribed therein are met. However, by virtue of the emergency provisions of Section 17 of the LA Act, the question of award under Section 11 becomes irrelevant. Thus, the limited fiction contained in Section 11A cannot be stretched beyond its limited paradigm to cover a case beyond its jurisdictional parameters.
15. It is next argued that, in spite of having not raised such points before the learned Single Judge, the appellant is still entitled to 7 2025:CHC-AS:2168-DB raise the same before this Appellate Court for the first time, those being pure questions of law.
16. It is submitted that as an appeal is a continuation of the original writ petition, the appellant, being a Planning Authority within the meaning of West Bengal Town and Country (Planning and Development) Act, 1979, would definitely have a say in matters relating to title and compulsory acquisition of land, particularly when, owing to a misinterpretation of a non-applicable statutory provision, a land which may not be in law beyond the rigours of acquisition, has been construed by the court to be freehold land, in view of perceived lapse of acquisition proceedings.
17. In reply, learned senior counsel for the respondent nos. 1 to 20 contends that the cause of action of the writ petition lay in an NOC being refused by the appellant for the development of the property. Although the writ petitioners had made a detailed representation to the authorities, including the appellant, stating that the land was a freehold land and not subject to any acquisition proceedings, and requested the authorities not to create any hindrance or obstruction in the use or occupation or enjoyment of the said land, no reply was issued by the appellant, nor did it take any steps to issue appropriate clearances sought by the writ petitioner.
18. Secondly, it is argued that the State itself took a stand on oath, by filing a report in the form of an affidavit dated July 27, 2023 before the writ court, that the acquisition proceeding had lapsed, in view of the Government having not taken possession of any land for public 8 2025:CHC-AS:2168-DB purpose within the expiration of 15 days from the publication of notice mentioned in Section 9(1) of the LA Act.
19. In view of such stand of the State itself, the HIDCO does not have any right to make a contrary submission.
20. Learned senior counsel appearing for the respondent nos. 1 to 20 submits that under the scheme of the LA Act, a land-loser gets two chances to raise objections to land acquisition proceedings - the first at the stage of Section 5A and the second at the stage of Section 9. In the present case, the first right under Section 5A has been done away with in the notification under Section 4. After declaration under Section 6, the State had admittedly not taken any steps as per its own report for taking possession. Hence, even according to the State, the stage under Section 9 of the LA Act was not reached and consequently, the acquisition proceedings lapsed.
21. Under the scheme of Sections 17(1) to 17(3B), the State, upon notification, takes possession by giving 80 percent of compensation as estimated by the State and the balance compensation is computed at the stage of Section 11.
22. It is settled law that where the acquisition is in terms of the said Section, the provisions of Section 11A does not apply. However, such procedure was admittedly not followed in the instant case in respect of the subject-plots.
23. The other mode of acquisition is where the proceedings start with Section 4 and ends with Section 11, the only exception being invocation of Section 17(4), which overrides the right of objection 9 2025:CHC-AS:2168-DB under Section 5A. In this case, although Section 5A was done away with, Sections 6 to 11 of the LA Act applied in full force. Thus, Section 11A also applied and an award was required to be made within a period of two years from the date of publication of the declaration.
24. Learned senior counsel relies on Delhi Airtech Services Pvt. Ltd (supra)4 in such context. In the said judgment, the Hon‟ble Supreme Court considered the judgment passed in Indore Development Authority (supra)5.
25. Borrowing the logic from Delhi Airtech Services Pvt. Ltd (supra)4, learned senior counsel for the respondent nos. 1 to 20 contends that the State, being the acquiring authority, having taken a stand that the acquisition proceedings had lapsed, no appeal could be filed by the appellant contradicting such stand. The appellant has no power to acquire the property and they have to rely upon the State. Since the appellant has no independent right over the property, nor can they withhold issuance of No Objection Certificate in respect of the said plot, the learned Single Judge was justified in allowing the writ petition.
26. Learned senior counsel also seeks to distinguish the judgments cited by the appellant on grounds of factual disparity as well as inapplicability of the ratio laid down therein.
4. Delhi Airtech Services Pvt. Ltd and Another vs. State of U.P And Anrs., reported at (2022) SCC OnLine Sc 1408
5. Indore Development Authority vs. Manoharlal & Others reported at (2020) 8 SCC 129 10 2025:CHC-AS:2168-DB
27. Thus, it is submitted by the respondent nos. 1 to 20 that the appeal be dismissed.
28. Upon hearing learned senior counsel for the parties, this Court comes to the following conclusions:
29. Two primary issues fall for consideration in the present case -
(i) Whether the writ petitioners/respondent nos. 1 to 20 had locus standi to challenge the acquisition proceedings on the ground of the same having lapsed;
(ii) Whether the acquisition proceedings actually lapsed in the facts of the present case.
30. The said issues are dealt with as under:
(i) Whether the writ petitioners/respondent nos. 1 to 20 had locus standi to challenge the acquisition proceedings on the ground of the same having lapsed
31. The primary attack against the locus standi of the writ petitioners/respondent nos. 1 to 20 is that they are post-vesting transferees and, as such, are not entitled to challenge the acquisition proceeding, in view of the original land-owner/transferor having not challenged the same.
32. However, the lapse of the acquisition proceeding is by operation of law and could not have been waived by the land-owner. As such, it cannot be said that a subsequent purchaser from the land owner would be bound by such non-existent waiver from challenging the acquisition proceeding on the ground that it has lapsed. The 11 2025:CHC-AS:2168-DB governing provisions of the LA Act are required to be considered in such context. Under normal circumstances, the procedure of acquisition is initiated with the publication of a preliminary notification under Section 4 of the said Act, followed by a hearing of objections under Section 5A.
33. Thereafter, a declaration under Section 6 is to be made to the effect that the land is required for a public purpose. After such declaration, the Collector is to take an order for acquisition from the appropriate Government or some officer authorised for such purpose. Thereafter, the land is to be marked out, measured and planned under Section 8.
34. Under Section 9, which follows, the Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him. The notice shall require all persons interested to appear personally or by agent before the Collector at a time not earlier than 15 days after the date of publication of the notice.
35. Section 10 confers powers on the Collector to require and enforce the making of statements as to names and interests.
36. Importantly, Section 11 provides that upon such enquiry into the objections in response to the notice under Section 9, the compensation in respect of the concerned plots of land shall be determined and the Collector shall make an award in that regard. 12
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37. Section 11A (1) provides that the Collector shall make an award under Section 11 within two years from the date of the declaration (under Section 6) and if no award is made within that period, the entire proceedings for the acquisition shall lapse. The Explanation to Section 11A stipulates that in computing the period of two years referred to in the Section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded. Under normal circumstances, the acquisition process is complete upon the Collector, post-award, taking possession of the land under Section 16 of the LA Act, whereupon the land vests absolutely in the Government free from all encumbrances.
38. Section 17 of the LA Act carves out a special niche. Under sub- section (1) thereof, in cases of urgency, whenever the appropriate Government so directs, the Collector, though no award has been made, may, on the expiration of 15 days from the publication of the notice under Section 9(1), take possession of any land needed for a public purpose, which shall thereupon vest absolutely in the Government free from all encumbrances.
39. Sub-section (3) of Section 17 stipulates that in every such case, the Collector shall, at the time of taking possession, offer to the persons interested compensation from the standing crops and trees on such land and if such offer is not accepted, the value thereof and other damage shall be allowed for in awarding compensation for the land. 13
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40. As per sub-section (3A), before taking possession of the land under sub-sections (1) or (2) of Section 17, the Collector shall tender payment of 80 percent of the compensation for such land as estimated by him to the persons interested entitled thereto and pay it to them unless prevented by some one or more of the contingencies mentioned in Section 31(2).
41. Thus, Section 17 provides for an exceptional situation, solely on the ground of urgency and as per direction of the Government, where the Collector can take possession of any land upon notice being issued under Section 9(1) before passing of the award, in which case the vesting occurs simultaneously with such taking of possession, even before the award is passed.
42. In the present case, a combined notice under Section 4, read with Section 17(4), of the LA Act was published.
43. Section 17(4) provides that in cases where sub-sections (1) and (2) of Section 17 are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply, in which case, a declaration may be made under Section 6 in respect of the land at any time after the date of publication of the notification under Section 4(1).
44. Thus, in order to have the land vested in the State, possession has to be taken on the expiry of 15 days from the notice under Section 9(1), in which case the trappings of Section 17 are attracted. Notably, in the present case, such possession was admittedly not taken by the State.
14
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45. The consequence of a combined notice under Section 4(1) and Section 17(4) of the LA Act is merely that the stage of inviting objections under Section 5A is skipped. The next step would be for a declaration to be made under Section 6 of the said Act. However, in such a case, the provisions from Section 6 to Section 11 are not obviated but squarely apply unless, of course, notice is issued under Section 9 (1) and possession is taken within 15 days therefrom, upon 80 per cent of the estimated compensation being paid. It is only the hearing under Section 5A which is waived by publication of a composite notice under Sections 4(1) and 17(4) simpliciter, without anything else.
46. Thus, in the present case, although the Section 5A stage was rendered redundant by publication of a composite notice under Sections 4(1) and 17(4), followed by a Section 6 declaration, the other provisions up to publication of an award under Section 11 had to be complied with for a valid acquisition to occur, in the absence of the following consequential steps of publication of a notice under Section 9 (1), payment of 80 per cent estimated compensation and taking of possession within 15 days of such notice.
47. The position would have been otherwise if possession was taken in terms of Section 17(1), after 15 days from the issuance of notice under Section 9. However, in the case at hand, let alone such possession being taken or compensation under Section 17(3) having been paid, no notice was even issued under Section 9(1) of the LA 15 2025:CHC-AS:2168-DB Act. Thus, the rigours and consequences of the urgency provision of Section 17 were not attracted at all and the acquisition reverted back to the realm of a normal acquisition proceeding, making it the incumbent duty of the Collector to follow the successive steps from Section 6 onwards up to declaration of an award under Section 11 and the vesting and acquisition would only be complete upon possession being taken under Section 16 of the LA Act.
48. As such, the bar under Section 11A squarely comes into play, since if an award is not made under Section 11, the acquisition proceeding itself lapses.
49. A very important facet of the matter is that the State itself categorically admitted by filing a report in the form of an affidavit, on oath, that in the present case only a composite notice under Sections 4(1) and 17(4) of the LA Act was published, followed by a declaration under Section 6, without any further step being taken. Thus, in the absence of publication of any notice under Section 9(1), even the Section 9 stage had not been reached. Moreover, no possession was, naturally, taken under Section 17(1), after 15 days from any notice being published under Section 9(1), the latter having not been published in the first place, let alone 80 per cent of estimated compensation being paid.
50. Thus, by virtue of the stand taken by the State itself, the acquisition proceeding lapsed automatically by operation of Section 11A on the expiry of two years after the declaration under Section 6, since the 16 2025:CHC-AS:2168-DB trappings of Section 17 were not applicable at any point of time at all.
51. We cannot also overlook the fact that it is the State, which is the acquiring authority, which admitted before the Writ Court by filing an affidavit that no steps were taken for publication of notice under Section 9 or taking possession under Section 17(1). Thus, the question of locus standi of the writ petitioner/respondent no. 1, in any event, was rendered irrelevant.
52. The applicability of Section 17, in the present case, was a complete non-starter. Thus, the acquisition process lapsed automatically by operation of law.
53. Under Article 226 of the Constitution of India, the High Court has the prerogative writ jurisdiction to issue the different categories of writs contemplated under the Constitution even suo motu, without any application being filed. A writ petitioner only performs the function of bringing to the notice of the court any illegality or infringement of fundamental and legal rights. Moreover, the question of locus standi, by evolution of law, has been much diluted in recent years. Seen from such perspective, the petitioner had sufficient locus standi to point out the lapse of the acquisition proceeding, irrespective of being a subsequent purchaser.
54. Even the prefix "subsequent" cannot be applied in the present case, since there was no procedure undertaken under Section 9 or Section 17 of the LA Act and the acquisition proceeding automatically lapsed after two years from the Section 6 notice. 17
2025:CHC-AS:2168-DB Thus, there was no vesting by taking possession under Section 9, read with Section 17(1), subsequent to which the purchase was made by the respondent no. 1.
55. The appellant has laid special stress on Delhi Development Authority v. Damini Wadhwa and Others, reported at (2022) 10 SCC 519 and the two Government of NCT of Delhi cases (supra)6.
56. Yet, in the first of the said reports, the acquisition proceeding was already completed up to the stage of passing the award and, as such, it was held that a subsequent purchaser could not reopen the award.
57. On the other hand, in the two Government of NCT of Delhi cases (supra)6, possession had been taken by the Government and the name of the Government had been mutated in the records. Thus, the concept of „subsequent‟ purchaser was applicable.
58. However, in the present case no such procedure was adopted at any point of time and there was no vesting of the plots of land in the State at all. Thus, the respondent nos.1 to 20 could not be labelled as post-vesting transferees.
59. While dwelling on the issue of locus standi, it cannot be lost sight of that the locus standi of a writ petitioner is inextricably tied up with the cause of action. The two cannot be dissociated from each other
6. Government of NCT of Delhi and Another v. Karampal and Anrs, reported at (2023) 1 SCC 39 and Govt. Of NCT of Delhi v. Sunil Jain, reported at 2023 SCC OnLine SC 39 18 2025:CHC-AS:2168-DB and the locus standi of a party has to be understood in the context of the cause of action espoused in the writ petition.
60. In the present case, the cause of action of the writ petition was that the writ petitioners/respondent nos.1 to 20 sought a no objection from the appellant (HIDCO) for developing the subject-plot, which was refused by the HIDCO on the ground that the said plot had been acquired by the State.
61. Thus, the primary cause of action of the writ petition was not a challenge to the purported acquisition proceedings but the refusal on the part of the HIDCO to grant no objection on the premise of such purported acquisition of the land. The question of whether the acquisition proceeding lapsed arose only incidentally before the writ court. Since HIDCO relied on such acquisition for the purpose of its refusal to grant no objection to the writ petitioner, it was for HIDCO to establish a valid acquisition. Considered from such perspective, in view of the application for no objection of the writ petitioners being refused by HIDCO, the cause of action of the writ petition was such refusal. Thus, since it is the writ petitioners‟ application which was refused, the writ petitioners definitely had direct cause of action to challenge such refusal.
62. The appellant/HIDCO, by seeking to portray that lapse of the acquisition proceeding was the stimulus for the writ petitioner to move this Court, seeks to turn the cause of action on its head.
63. Seen in the context of the refusal of the writ petitioners‟ application for no objection, which was the cause of action for the writ petition, 19 2025:CHC-AS:2168-DB the question of locus standi cannot be tied up with the incidental issue of lapse of the acquisition proceeding.
64. Rather, it is the HIDCO which seeks to rely on the purported acquisition of the land and it is to be ascertained whether the HIDCO had the locus standi to assert the same, particularly in the teeth of the State having taken the categorical stand in its affidavit in the form of a report that there was no compliance of Section 9 of the LA Act by taking possession of the subject-land.
65. The State, being the acquirer, having taken such stand, the HIDCO, being a separate and independent authority having no connection with such acquisition process, does not have the right or the authority to look behind the stand of the State and assert that there was a valid acquisition process.
66. Accordingly, it is held that the writ petitioners/respondent nos. 1 to 20 had the locus standi to file the writ petition.
(ii) Whether the acquisition proceedings actually lapsed in the facts of the present case
67. From the report filed by the State before the writ court, it is evident that a composite notification under Sections 4 and 17(4) of the LA Act was published in the Official Gazette on January 21, 2008. Pursuant thereto, a declaration under Section 6 was also published in the Official Gazette on February 13, 2009. Subsequently, by an erratum to the declaration, the date of declaration was corrected. 20
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68. Thus, it is clear that the acquisition process, although initiated under Section 17(4) by a notification under Section 4 of the LA Act, followed directly by a declaration under Section 6 of the said Act [which was permissible in view of the waiver of Section 5A by dint of Section 17(4)], no possession was taken under Section 9, as contemplated in Section 17(1) of the LA Act. Needless to say, the requirement of payment of 80 percent of the compensation, as mandated under Section 17(3A), was not complied with.
69. Hence, the acquisition process was a non-starter from two different perspectives.
70. First, in view of possession having not been taken under Section 9 as stipulated under Section 17(1) and non-payment of 80 percent of compensation under Section 17(3A), the acquisition process was not a valid acquisition under the provisions of Section 17, which is an urgency provision.
71. Secondly, in view of possession having not been taken and compensation having not been paid under Section 17, read with Section 9, the acquisition process could at best be a regular acquisition, without the provisions of Section 17 being attracted at all. Thus, it was subject to the consequence embodied in Section 11A of the LA Act.
72. Sub-section (4) of Section 17 merely provides that when the initial notification under Section 4(1) is published under Section 17 on the ground of urgency, the provision of Section 5A, in respect of inviting objections and hearing them, is waived. However, the formalities 21 2025:CHC-AS:2168-DB post-Section 6 declaration have still to be complied with, thereby automatically taking the proposed acquisition process within the realm of Section 11A. Even from such viewpoint, since no award was passed within two years from the declaration under Section 6 of the LA Act, the acquisition proceedings lapsed under Section 11A (1).
73. In the absence of any stay by any court of law, the Explanation to Section 11A is not applicable at all.
74. Under such circumstances, the purported acquisition process, if construed to be under the urgency provisions of Section 17, was either a non-starter, since no steps were taken at all after publication of the declaration under Section 6. Alternatively, the acquisition slipped into the domain of a regular acquisition proceeding (as opposed to the urgency provision under Section 17) which lapsed by operation of law, that is, Section 11A of the LA Act, since no award was passed under Section 11 within two years from the Section 6 declaration.
75. The appellant/HIDCO cites Girnar Traders v. State of Maharashtra and others, reported at (2007) 7 SCC 555. However, in the same breath it argues that although full effect must be given to full fiction, it should not be extended beyond the purpose for which it is created. The premise of such argument is that the time-period stipulated in Section 11A, providing for lapse of an acquisition proceeding if an award is not made under Section 11 within two years from the declaration under Section 6 of the LA Act, is a legal 22 2025:CHC-AS:2168-DB fiction. The said two stands are mutually contradictory, since in Girnar Traders (supra)7, cited by the appellant itself, the Hon‟ble Supreme Court categorically held that Section 11A is a substantive provision and not merely procedural in nature. It was further held that the lapsing of the acquisition of the land results in the owner of the land retaining ownership right in the property and it is a substantive right which accrues to the owner of the land and that in view thereof, Section 11A of the LA Act is part of the law which creates and defines rights, not adjective law which defines the method of enforcing rights. It is a law, it was held, that creates, defines and regulates the rights and powers of the party.
76. Read in conjunction with Article 300A of the Constitution of India, which fell for consideration in Delhi Airtech Services Pvt. Ltd (supra)8, Section 11A cannot be relegated to the realm of legal fiction but is a substantive provision incorporated as a safeguard in the LA Act in consonance with the Constitutional guarantee embedded in Article 300A.
77. Thus, the „legal fiction‟ argument of the appellant falls flat and the judgments cited in such context are not attracted to the present case at all.
78. The appellant has also argued that the proposition laid down in Delhi Airtech Services Pvt. Ltd (supra)9 operates prospectively. However, it is well-settled that a judgment merely interprets the
7. Girnar Traders v. State of Maharashtra and others, reported at (2007) 7 SCC 555
8. Delhi Airtech Services Pvt. Ltd and Another vs. State of U.P And Anrs., reported at (2022) SCC OnLine Sc 1408
9. Delhi Airtech Services Pvt. Ltd and Another vs. State of U.P And Anrs., reported at (2022) SCC OnLine Sc 1408 23 2025:CHC-AS:2168-DB ramifications and scope of operation of the provisions of law which it deals with. The law would be applicable from the date of enactment of the statute containing the same and not from the date of the judgment, which merely interprets the law as it stood from its inception. It is not the judgment which creates or confers a right but the relevant statute and the judgment on the relevant provision of law merely interprets the effect of the law. Hence, such argument of the appellant is not tenable in the eye of law.
79. The appellant further contends that the judgment in Delhi Airtech Services Pvt. Ltd (supra)9 is in conflict with the previous judgments of the Supreme Court holding the field and, as such, cannot be treated to be a binding precedent. It has also been argued that the Delhi Airtech judgment is per incuriam in that sense. However, we are unable to accept such argument, since the Hon‟ble Supreme Court, in Delhi Airtech Services Pvt. Ltd (supra)9, categorically considers the decision in Indore Development Authority (supra)10 and interprets the same.
80. In Paragraph No. 18 of Delhi Airtech Services Pvt. Ltd (supra)9, the Hon‟ble Supreme Court held that in the said case, the requirement to tender and pay 80 percent of the estimated compensation and consequent lapsing is in the context of exercise of urgency provision which permits a deviation from the normal process of acquisition and the payment envisaged is to take benefit of the said provision. In contradistinction, it was observed, the consideration in Indore
10. Indore Development Authority vs. Manoharlal & Others reported at (2020) 8 SCC 129 24 2025:CHC-AS:2168-DB Development Authority (supra)11 was about the effect of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "the 2013 Act") in the circumstance contemplated therein.
81. In fact, an examination of the proposition laid down in Indore Development Authority (supra)11 would reveal that the said proposition is not germane in the present context at all, as it centered primarily around the effect of Section 24 of the 2013 Act on proceedings pending at different stages under the LA Act. As such, the line of judgments relied on by the appellant to the effect that a judgment is a binding precedent only for the proposition laid down therein and not anything which can be derived therefrom, is squarely applicable insofar as in Indore Development Authority (supra)11 is concerned.
82. The questions which fell for consideration in Indore Development Authority (supra)11 have been summed up in Paragraph Nos. 4.1 and 5 thereof, which are as follows:
"4.1. (1) What is the meaning of the expression "paid"/"tender" in Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ("the 2013 Act") and Section 31 of the Land Acquisition Act, 1894 ("the 1894 Act")? Whether non-deposit of compensation in court under Section 31(2) of the 1894 Act results into lapse of acquisition under Section 24(2) of the 2013 Act. What are the consequences of non-deposit in court especially when compensation has been tendered and refused under Section 31(1)
11. Indore Development Authority vs. Manoharlal & Others reported at (2020) 8 SCC 129 25 2025:CHC-AS:2168-DB of the 1894 Act and Section 24(2) of the 2013 Act? Whether such persons after refusal can take advantage of their wrong/conduct?
4.1. (2) Whether the word "or" should be read as conjunctive or disjunctive in Section 24(2) of the 2013 Act?
4.1. (3) What is the true effect of the proviso, does it form part of sub-section (2) or main Section 24 of the 2013 Act?
4.1. (4) What is mode of taking possession under the Land Acquisition Act and true meaning of expression „the physical possession of the land has not been taken‟ occurring in Section 24(2) of the 2013 Act?
4.1. (5) Whether the period covered by an interim order of a court concerning land acquisition proceedings ought to be excluded for the purpose of applicability of Section 24(2) of the 2013 Act?
4.1. (6) Whether Section 24 of the 2013 Act revives barred and stale claims?
5. In addition, question of per incuriam and other incidental questions also to be gone into."
83. Thus, the entire consideration in the said judgment was the interplay between the LA Act and the 2013 Act.
84. Section 24(1) of the 2013 Act, in sub-Clauses (a) and (b) thereof respectively, provides that where no award under Section 11 of the LA Act has been made, all provisions of the 2013 Act relating to the determination of compensation shall apply whereas, where an award under Section 11 has been made, such proceedings shall continue under the provisions of the LA Act, as if the said Act has not been repealed.
85. Such consideration in the said report was in the context of the argument that the 2013 Act repealed the LA Act and, as such, 26 2025:CHC-AS:2168-DB proceedings initiated under the LA Act would automatically lapse with the coming into force of the 2013 Act.
86. However, the consideration in the present case is entirely different, confined to the intra-statute operation of the LA Act alone and the eco-system created between its different Sections.
87. Paragraph No. 17 of Delhi Airtech Services Pvt. Ltd (supra)12 clearly lays down the ratio decided therein. The said paragraph is set out below:
"17. Therefore, we are of the considered view that Section 11A though applicable to the cases of acquisition initiated under Section 17(1) of Act, 1894 the consequence of it will not affect the case where the land has absolutely vested on compliance of sub- section (3A) to Section 17 of Act, 1894 and 80% of estimated compensation is tendered and paid. Hence, when there is a challenge by the land loser, each case will have to be considered on its own merits to determine whether the pre-requisite condition to tender and pay as contemplated under sub-section (3A) is made before possession is taken. If in the case concerned the mandatory prerequisite is not complied, such acquisition will lose its character as being under Section 17 and if the award is not passed within two years from the date of the declaration, it will lapse and not otherwise. The benefit of said provision is available only to be invoked by the land loser and cannot be invoked by the acquiring authority to claim lapse by pointing to non-compliance since the „vice‟ of non-compliance cannot be permitted to be converted into a „virtue‟."
88. Thus, applying the said proposition, we find that in the present case, the writ petitioners/private respondents have a better case
12. Delhi Airtech Services Pvt. Ltd and Another vs. State of U.P And Anrs., reported at (2022) SCC OnLine SC 1408 27 2025:CHC-AS:2168-DB than the land owners in Delhi Airtech Services Pvt. Ltd (supra)12. Whereas it was held in the said report that in case an award is not passed under Section 11 of the LA Act in a proceeding initiated under the said Act, the provisions of the 2013 Act would apply insofar as the calculation of compensation is concerned, it was further observed that in the event no possession is taken and/or payment of 80 percent of the estimated compensation paid, the urgency provision envisaged in Section 17 of the LA Act, which permits a deviation from the normal process of acquisition, would not apply. By default, in such a case, the usual process of acquisition as contemplated in Sections 6 to 11 of the LA Act would be attracted, thereby drawing the operation of Section 11A of the LA Act in the event the award is not passed within two years from the declaration under Section 6.
89. In the case at hand, let alone any compensation being paid or possession being taken, no notice under Section 9(1) was even issued.
90. Section 17(1) of the LA Act provides that in cases or urgency, whenever the appropriate Government so directs, the Collector shall, though no award has been made, on the expiration of 15 days from the publication of the notice mentioned in Section 9(1), take possession of any land needed for a public purpose, which, thereupon shall vest absolutely in the Government free from all encumbrances.
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91. Thus, the non-issuance of any notice under Section 9(1) obviates the applicability of Section 17(1) in its entirety.
92. As such, since the urgency provision under Section 17 of the LA Act did not apply, the acquisition proceedings, by default, came within the purview of a normal acquisition process as contemplated under the LA Act.
93. At best, it can be argued that the notification under Section 4(1), which was published in the present case, invoked Section 17 of the LA Act. However, the buck stopped there and admittedly there was no direction of the appropriate Government either to take possession, as contemplated under Section 17(1) or to the effect that the provisions of Section 5A shall not apply. Even taking the best-case scenario in favour of the appellant, only the hearing of objections under Section 5A would be waived by publication of the notification under Section 4(1), read with Section 17 of the LA Act. Thus, upon the declaration having been made under Section 6 on bypassing the procedure under Section 5A, the rest of the acquisition process had to adhere to the subsequent provisions of the LA Act up to Section 16 thereof. As a necessary corollary, Section 11A would apply, by virtue of which the entire acquisition proceedings stood lapsed on the expiry of two years from the date of the declaration under Section 6, in view of no award having been passed under Section 11.
94. Hence, it is beyond the pale of doubt that the acquisition proceeding lapsed and the ownership was retained by the land owner, who then 29 2025:CHC-AS:2168-DB transferred such ownership in the subject-property to the writ petitioners, since the land never vested in the State at all.
95. We cannot also overlook the fact that the appellant, being a third- party to the acquisition proceeding and in no way connected with such proceeding, cannot take a stand contrary to the State, the acquirer itself, which is that after publication of the composite notification under Section 4, read with Section 17, and declaration under Section 6, neither was possession taken nor any further steps taken to carry forward the proposed acquisition process in respect of the subject-land.
96. Hence, the appellant had no authority to reject the application of the writ petitioners for issuance of NOC on the ground that the land had been acquired.
97. Thus, this issue is also held against the appellant and in favour of the private respondents.
CONCLUSION
98. In view of the above, we hereby come to the conclusion that the writ petitioners/respondent nos. 1 to 20 had the locus standi to prefer the writ petition, being aggrieved by the refusal to grant no objection by the respondent/appellant, HIDCO, on the non-existent ground of acquisition of the land-in-question. We further hold, on the basis of the above discussions, that the acquisition process was a non- starter, since the urgency provision under Section 17 of the LA Act was not attracted at all, and automatically lapsed on the expiry of 30 2025:CHC-AS:2168-DB two years after the declaration under Section 6 of the said Act dated July 21, 2009, since no award was passed at all.
99. Furthermore, in the absence of possession being taken or 80 percent compensation being paid under Section 17, the land never vested in the State and was all along retained by the land owner, who transferred the property in favour of the writ petitioners/ respondent nos. 1 to 20.
100. Thus, we do not find any illegality or perversity in the judgment of the learned Single Judge whereby the appellant was directed to take necessary steps for issuance of No Objection Certificate in favour of the petitioners in respect of the plots-in-question.
101. Hence, MAT No. 1407 of 2024 is dismissed on contest.
Consequentially, CAN 1 of 2024 stands disposed of as well.
102. There will be no order as to costs.
103. Urgent certified copies of this judgment and order, if applied for, be supplied to the parties upon compliance of all formalities.
(Sabyasachi Bhattacharyya, J.) I agree.
(Supratim Bhattacharya, J.) 31 2025:CHC-AS:2168-DB Later After the above judgment is passed, a prayer for stay is made.
However, since we have dismissed the appeal and we do not find any substantial question of law involved, we refuse to grant such stay.
(Sabyasachi Bhattacharyya, J.) (Supratim Bhattacharya, J.)