absence of contract with regard to rate of interest = Where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute (along with the claim for principal amount or independently) is referred to the Arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes — or refer the dispute as to interest as such — to the Arbitrator, he shall have the power to award interest. This does not mean that in every case the Arbitrator should necessarily award interest pendente lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view. in the absence of contract with regard to rate of interest to be awarded in favour of the contractor and having regard to the facts and circumstances of the case, the High Court has come to the right conclusion and awarded interest at the rate of 12% per annum on the amounts due to the contractor on the basis of the rate of interest paid by the Banks to its customers on long term deposits prevailing in 1988. The same cannot be found fault with by this Court for the reason that the High Court taking relevant aspects into consideration has rightly reduced the rate of interest to 12% per annum from 16.5% per annum after holding that exercise of discretionary power by the Arbitrator under Section 34 of CPC is a discretionary power and the same cannot be interfered with by the High Court. In our considered view the reasons recorded by the High Court on the contentious issues while examining the claims allowed by the Arbitrator in the award with reasons which is affirmed by the civil court, wherein certain claims have been rightly disallowed, certain other claims accepted and yet some other claims modified by the High Court by adding certain amounts, are based on sound legal principles and after coming to the conclusion that the findings of the Arbitrator and the court are erroneous and contrary to law. Therefore, the High Court has held that the impugned award passed by the Arbitrator which was made the rule of the court by the civil court is erroneous in law and it amounts to misconduct. Accordingly, the High Court has rightly set aside certain claims of the contractor and affirmed the award 2 Page 28 and granted extra amount on certain claims. It has also interfered with the damages awarded in favour of NBCC and partly allowed the appeal of the respondent NBCC by allowing certain claims, setting aside certain other claims and also reducing the rate of interest at 12% from 16.5%. 22. In our considered view, we do not find any good reason whatsoever to interfere with the same in exercise of this Court’s jurisdiction in these appeals. Consequently, for the reasons stated above the appeals are dismissed, with no order as to costs.

Page 1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1393-1394 OF 2003
P. RADHAKRISHNA MURTHY … APPELLANT
VS.
M/S. N.B.C.C. LTD. … RESPONDENT
J U D G M E N T
V. Gopala Gowda, J.
The appellant contractor filed these Civil Appeals questioning the
common judgment and order passed by the High Court of Karnataka dated
29th August 2002 in Misc. First Appeal No. 4377 of 2000 (AA) along with
cross Objection No.34/2001 wherein the appeal of the National Buildings
Construction Corporation Ltd (hereinafter referred to as ‘NBCC’) was partly
allowed and award passed by the Arbitrator was modified in regard to claims
1(a), (b), (c) and 2(a), (c), (e), (f) and (g).
The High Court set aside the
award of Rs. 8,16,412/- in regard to claim Nos.1(a),(b), (c) and 2(a), (c), (e),
(f) and (g). Also, the rejection of claims under 1(d) and 1(e) is upheld and
award of Rs.13,050/- and 10,204/- against claims 2(c) and (d) are also
Page 2
upheld. Cross objection filed by the contractor regarding grant of certain
items of claims made by him is dismissed and consequently it is held that the
contractor will be entitled to Rs.9,01,871.53 with interest at the rate of 12%
per annum from 28.12.1987 till the date of deposit of payment by NBCC.
Also, the amount paid by the NBCC in pursuance of the interim order passed
by the High Court will be adjusted to the amounts payable and if excess has
been received by the contractor, then he shall repay the same within three
months to NBCC. 
This Order of the High Court is under challenge in these
appeals urging various facts and legal contentions.
For the purpose of
appreciating the rival legal contentions urged on behalf of the parties the
brief facts are stated here under.
2. NBCC is a public sector company with its headquarters in New Delhi
and is engaged in the business of 
(i) project management consultancy
services for civil construction projects 
(ii) civil infrastructure for power
sector and 
(iii) real estate development etc. 
It has 10 regional/zonal offices
across the country, with one such zonal/regional office at Bangalore,
Karnataka.
3. A notice was published in the newspapers by NBCC, Bangalore on
12.1.1985 with the purpose of inviting tenders for construction of five 5000
2Page 3
Metric Ton food storage godowns comprising of Group-I (Civil and
Structural Works) and Group-II (internal and external electrification and
sanitary work), structures at Bhimavaram, Phase II, West Godawari District,
Andhra Pradesh. 
Pursuant to the said tender notice, the contractor submitted
his tender for the said works and the offer of tender was accepted by NBCC.
4. It is the case of the contractor that in terms of the tender notification,
percentage of rate for tender works of Group-I and item rate tenders for
works of Group II referred to above were required to be submitted.
The
tender contained basic rate for work based on Central Public Works
Department (CPWD) Delhi Schedule of Rates, 1981, which is called as
‘DSR-1981’ for brevity.
5. It is the case of the contractor that for any construction work, schedule
of rates plays an important role in pre-construction stage like preparation of
estimate. To meet this objective, CPWD is publishing DSR since 1931 on
regular intervals based on the experiences and latest technologies which can
be adopted in the construction sector. 
The DSR were revised many times in
the subsequent years 1977, 1981, 1985, 1989, 1993, 1997, 2002, 2007 and
2010 based on the market rates of materials and labour prevailing during the
period. The CPWD Manual is a reference document of CPWD and
provides a basic frame work for planning, designing and execution of
3Page 4
construction works in CPWD. He further contends that the offer made by
the contractor pursuant to the tender notice was accepted and works were
awarded in his favour by NBCC on the basis of DSR-1981 and the
provisions of CPWD Works Manual apply with all vigor to the case in hand.
The contractor entered into a detailed agreement with NBCC on 26.6.1985
incorporating therein certain terms and conditions agreed upon by the
parties.
The following terms and conditions were agreed upon between the
parties:
(a) The rates of Group-I works are governed by DSR-1981.
(b) Tender was accepted at 58.5% above DSR-1981.
(c) Appellant to be sanctioned an interest free mobilization advance of
Rs.5 lakhs against bank guarantee, for which NBCC could avail
1% rebate.
(d) Additional rebate of 0.1% could be availed by NBCC for prompt
payment of bills submitted by the appellant.
(e) Work to be completed within 10 months from the date of work
order, i.e. 18.6.1985.
6. Pursuant to the said agreement, the contractor commenced the work
and completed the same.
The NBCC had failed to pay the amounts due to
him in terms of the agreement referred to above for all the works performed
by him. 
In response to the various representations submitted by the
Contractor to the NBCC, it had appointed Shri N.S.L. Rao as sole Arbitrator,
in terms of letter No.Engg. (CC/Gen/A/87-1363) dated 15.12.1987 to
examine the claims made by the contractor by invoking Clause 25 of the
4 Page 5
agreement which empowered NBCC to appoint an Arbitrator of their choice.
The contractor had submitted the statement of Claims on 25.1.1988 before
the Arbitrator claiming under various heads under Claim No. 1 and Claim
No.2 and Claim Nos. 3, 4, 5 and 6 and also prayed for interest at the rate of
24% from 28.12.1987 till the date of payment and further claimed a sum of
Rs.32,500/- towards the arbitration expenses.
7. NBCC, in response to the said claims of the contractor, filed its reply
before the Arbitrator on 22.2.1988. In the written statement filed by the
NBCC before the Arbitrator, it was stated for the first time that aforesaid
works were undertaken by them on behalf of FCI as their agent and they
were liable to pay liquidated damages to FCI on account of purported delay
in completion of the works by the appellant etc.
  The NBCC has denied the
liability to pay any amount claimed by the contractor before the Arbitrator and further stated that DSR-1981 does not govern the tender conditions of NBCC and therefore it is not liable to pay amounts to the contractor as per the said rates.
The contractor filed his rejoinder statement on 25.3.1988
inter alia stating that the NBCC never disclosed that the FCI was the real
beneficiary and NBCC was merely acting as their agent and further stated
that the discloser made by NBCC as above came as a rude shock to the
contractor.
5Page 6
8. Through the relevant terms and conditions of the agreement entered
into between the NBCC and FCI, it has been agreed that the works shall
have to follow CPWD Manual as amended from time to time and the NBCC
shall be paid 9% of the construction cost as remuneration and it shall not be
paid any other charges on whatever account, over and above the said
remuneration. Further it was agreed that in the event of failure of
execution of works in time, the liquidated damages at 1% of the contract
value or part thereof subject to a maximum of 5% of the contract value or
the actual amount recovered from the contractor by NBCC shall be payable
to FCI. As per the aforesaid terms and conditions between NBCC and FCI,
the respondent is an agent of FCI and is required to call for tenders and
contract and perform in accordance with the provisions of CPWD Manual
and DSR-1981 rates. 
9. The Arbitrator, after offering opportunity to both the parties to present
their respective cases in detail with all supporting documents passed an
award on 17.8.1988 granting the relief in Claim Nos. 1 & 2, items (a), (b) &
(c) of claim 1 and item Nos. (a), (b), (e), (f) and (g) of Claim No. 2 which
came to Rs.19,10,637.95.
10. It is the case of the contractor that he suffered from loss of some
additional amount which was spent by him on account of delay committed
6Page 7
by NBCC in handing over sites for godowns Nos. 10 and 11 as locations of
some of the structures were changed after the work was awarded in favour of
the contractor. The NBCC had categorically admitted that it could not
make timely payments of amounts due and that delayed payments were
made. The Arbitrator on the basis of submissions made by the NBCC and
admissions made by it, awarded a sum of Rs.8,16,412/- representing 10% as
normal provision for profit etc. in respect of claims relating to items (a),
(b) and (c) of Claim No.1 and items (a), (b), (e), (f) and (g) of Claim No.2.
Against item (c) of Claim No.2 the Arbitrator held that the claimant is also
entitled to refund of Rs.13,050/- deducted by NBCC from the contractors
bills for late recovery of mobilization advance. As regards item (d) of Claim
No.2, the respondents are not entitled to rebate at 2.35% on the claim of
Rs.2,39,796.07. The Arbitrator held that the said claim is not correct. The
rebate offered by the claimant for prompt payment is 0.1% and as such he
has held that claimant is entitled to refund of Rs.10,204/- and accordingly
awarded the said claim. The Arbitrator, against claim Nos. 1 and 2 under the
aforesaid items, has awarded Rs.8,39,666/- against his claim of
Rs.26,93,000/-.
11. Insofar as, claim No.3 is concerned, by recording reasons he granted
the same. As claim Nos.3(a) to (d) is concerned against the restricted claim
7Page 8
of Rs.18,45,568.90, the Arbitrator has awarded Rs.11,64,396.80 but he had
omitted to add 58.5% over and above DSR-1981. Insofar as, Claim No.4
regarding non-reimbursement of losses due to floods is concerned, the said
claim was rejected. The claim of interest at the rate of 24% p.a. as item
No.5 was rejected by the Arbitrator holding that the interest cannot be
granted on the amounts claimed by the contractor on the basis of the
judgment of this Court in Executive Engineer (Irrigation) v. Abhadutta
Jena AIR 1988 SC 1520.
12. As per the contractor, the award passed by the Arbitrator is elaborate
and takes into account numerous details and also that he had examined each
of the claim put forward by the parties with reference to the record
produced. The award of amount dated 17.8.1988 was granted to the
contractor on the basis of cogent material placed on record and on
admissions of NBCC.
According to the contractor, not awarding all items
under Claim No.3 and rejection of Claim Nos.4 and 5 is erroneous. 
13. Aggrieved by the award of the Arbitrator, appellant had filed petition
under Sections 15, 16, 17, 30 and 33 of the Arbitration Act, 1940 before the
VIth Additional City Civil Judge, Bangalore, Karnataka against NBCC to
modify the award. The said petition was registered as Arbitration Case
No.16 of 1989 subsequently converted into suit No.5 of 2000 as provided
8Page 9
under Rule 7 of Karnataka High Court Rules framed under the Arbitration
Act, 1940. 
In the proceedings, NBCC had also filed Arbitration Case No.25
of 1988 seeking to set aside award passed by the Arbitrator except to the
extent of the sum of Rs.2,40,000/- awarded in its favour towards liquidated
damages. The said arbitration case was clubbed with Suit No.5 of 2000.
Both were disposed of by learned City Civil Judge by common judgment
dated 24.6.2000 by elaborately dealing with all the issues and arrived at the
conclusions in affirming the award of the Arbitrator and modified the same
to the required extent on the basis of evidence on record by recording his
reasons. He also modified claim No. 3 holding that the contractor is entitled
for 18,45,568/- applying 58.5% over and above the rates quoted by the
contractor. The learned Judge of the civil court has awarded interest at the
rate of 16.5% from the date of reference till the realization regarding claim
no.5 after recording that the non awarding of interest claimed by the
contractor by the Arbitrator is erroneous in law as the Arbitrator has misread
the law laid down by this Court insofar as non awarding of interest by him is
concerned. The said award was challenged by the NBCC before the High
Court by filing Misc. First Appeal No. 4377 of 2000 (AA). The contractor
also preferred cross Objection No.34 of 2001 aggrieved by rejection of
certain items. Appeal filed by the NBCC was allowed to the extent as
9Page 10
indicated above and the cross objection filed by the contractor was dismissed
by common judgment. These appeals were filed by the contractor urging the
following grounds:
(i) That the High Court could not have appreciated evidence in
order to arrive at a conclusion different from the one arrived
at by the Arbitrator. Appreciation of evidence by the
Arbitrator is never a matter which court can question. In
proceeding to set-aside an award, High Court cannot sit in
appeal over the conclusions arrived at by the Arbitrator and
Learned City Civil Court. It is also not open to High Court
to sit as a court of appeal over the findings of the fora below,
to find out as to how the findings were arrived at. The High
Court while considering the legality of the award passed by
the Arbitrator which has been made the rule of the court, can
not examine the question as an appellate court.
(ii) That though the NBCC is liable to pay the Delhi Schedule of
Rates of 1981 to the Contractor, which governed the contract
between the parties, High Court had by a process of facile
reasoning arrived at the conclusion that corrections in DSR-
1Page 11
1981 were made before contract documents were signed by
the contractor. High Court had totally ignored the
provisions of CPWD Manual and also the agreement
executed by and between FCI and the NBCC, which clearly
stipulate the rates of work are governed by DSR-1981 and
that NBCC is entitled only for 9% remuneration of the
construction cost.
(iii) That NBCC having altered without authorization the DSR
1981 on certain claims of the contractor is not entitled to rely
upon the altered rates in respect of amount payable to
appellant. Further, it is urged that the High Court in dealing
with the issues involved had lost sight of the fact that
irrespective of the fact that whether corrections were
authorized or unauthorized in the agreement, the amounts
were agreed to be paid to appellant by the NBCC in
accordance with DSR 1981.
(iv) That the High Court overlooked the fact that the Arbitrator
appointed in the matter was a Retired Director General of
Central Public Works Department-CPWD, Govt. of India
and he was an expert well versed in civil engineering and an
1Page 12
award made by such a person should not therefore be
interfered with. Being a highly skilled technical person, he
has given reasons for awarding amounts under each of the
claims. When the Arbitrator came to the conclusion that
granting 10% as normal provision for contractor’s profit and
overheads, High Court could not have substituted the finding
of the Arbitrator by re-appreciating the evidence and should
not have held that the appellant is not entitled to 10% as that
would not be within the jurisdiction of High Court.
(v) That the law is well settled that an Arbitrator is not required
to give arithmetical calculation. If the reasons are adequate
and clear, it is not essential for him to give a detailed
reasoned decision indicating each minute step.
(vi) That in the particular facts and circumstances of the case, it
cannot be said that there is an error apparent on the face of
award.
(vii) That the NBCC has filed a statement itself showing details
of payment made to appellant before the Arbitrator. In the
said statement Column No.8, NBCC had calculated interest
@ 16.5% for delayed payments. The said statement was
1Page 13
filed and marked as Annexure IV by the Arbitrator.
Therefore, the NBCC cannot claim that rate of interest
should not exceed 6%.
(viii) That the High Court had failed to consider that appellant was
put to untold hardship, suffering and financial loss on
account of persistent conduct of NBCC in not paying
amount due to appellant for past 27 years, despite the works
having been completed as per schedule and in accordance
with the agreed quality.
14. Mr. GVR Choudhury, the learned counsel for the appellant has
contended that the judgment of the High Court is bad in law as the High
Court could not have appreciated the evidence in order to arrive at a
conclusion different from the one arrived at by the Arbitrator. Therefore,
setting aside the award of the Arbitrator which is affirmed by the trial court
for Rs.8,16,412/- in regard to the claim Nos. 1(a),(b),(c) and 2(a), (c),(e),(f)
and (g) are bad in law and the same is required to be interfered with by this
Court in these appeals. In the light of the findings and reasons recorded by
the High Court in the impugned judgment, we have examined the
correctness of allowing the claim under the different items of claim nos.1
and 2, which has been made the rule of the Court by the Civil Court by
1Page 14
recording valid reasons after referring to the various judgments of this Court
regarding the power of the High Court to examine the misconduct of the
Arbitrator in passing of the award. The various judgments of this Court are
referred by the High Court, viz Union of India v. Kalinga Construction
Company (AIR 1971 SC 1646), K.P. Poulose v. State of Kerala (AIR
1975 SC 1259), Sudarshan Trading v. Government of Kerala (AIR 1989
SC 890), Food Corporation of India v. Joginderpal Mohinderpal (AIR
1989 SC 1263, Bijendranath Srivastava v. Mayank Srivastava (1994) 6
SCC 117, Trustees of Port Trust of Madras v. Engineering Construction
Corporation Ltd. (AIR 1995 SC 2423).
15. The High Court has rightly held that the Arbitrator is not a conciliator
and his duty is to decide the disputes submitted to him according to the legal
rights of the parties and not according to what he may consider to be fair and
reasonable. The High Court has further rightly made observation in the
impugned judgment that an Arbitrator cannot ignore law or misapply it, nor
can he act arbitrarily, irrationally, capriciously or independent of the contract
while passing the award. Courts of law have a duty and obligation to
maintain purity of standards and preserve full faith and credit as well as to
inspire confidence in the minds of litigants while adjudicating the claims of
1Page 15
the parties by resorting to alternate dispute redressal method of arbitration
under the provisions of the Arbitration Act.
16. Further, the High Court with reference to Rajasthan State Mines &
Minerals Ltd. v. Eastern Engineering Enterprises (1999) 9 SCC 283 and
Sikkim Subba Associates v. State of Sikkim (2001) 5 SCC 629, clearly
enunciated the aforesaid proposition of law for its interference with the
erroneous findings of the Arbitrator and the Civil Court in the Award. The
High Court with reference to the item wise claim nos.1 (a),(b),(c) and 2 (a),
(b),(e),(f) &(g) examined the claims at threadbare in the backdrop of the
legal position laid down by this Court in the cases referred to supra with a
view to find out whether the award passed by the Arbitrator in allowing
certain claims was required to be interfered with on the ground that the
Arbitrator has committed misconduct in passing the award. The High Court
has examined the correctness of the above claims awarded at Rs.8,16,412.00
as loss of profits at 10% of the contract value against claim Nos.1 (a),(b),(c)
and 2 (a),(b),(e),(f) &(g) by assigning the reasons. In the impugned
judgment, the reasons assigned by the Arbitrator in allowing the said claims
have been examined by the High Court with reference to the delay in
handing over the sites of godown Nos.10 & 11 to the Contractor and
locations of some structures which were changed after the work was
1Page 16
awarded. The award of the above items of claims in favour of the contractor
is found fault with by the High Court for the reason that the Arbitrator
neither examined any of the claims made by the Contractor under claim nos.
1 (a),(b),(c) and 2 (a),(b),(e),(f) & (g) with reference to the evidence placed
before the Arbitrator nor has he recorded a finding as to whether the
contractor in fact suffered losses as claimed by him in the aforesaid items of
claims and as to whether NBCC was liable to pay to him. Therefore, it is a
finding of fact recorded by the High Court on the relevant aspect holding
that the Arbitrator did not record reasons regarding the delay in handing over
the location of the sites in favour of the contractor and rightly held that mere
delay in handing over sites will not entitle the contractor to claim damages
unless it is established that the same is the consequence of breach committed
by the other party. Further, with regard to the finding recorded by the High
Court as to whether the contractor had engaged skilled and unskilled labour
and that they were idle, that the contractor had collected large quantity of
material at original work site and had transported them to new site incurring
a huge expenditure by him and that the contractor had borrowed amounts
from Banks and private financiers and had paid interest on such borrowed
amount to them, that the contractor had engaged staff (establishment) and
was spending Rs.22,566/- per month for additional period of 18 months, that
1Page 17
the contractor traveled to Delhi and other places incurring Rs.77,000/- for
obtaining release of Bill amounts from NBCC, that the contractor had
organized men, machinery and material for carrying work of the value of
Rs.10 lakhs per month, that he suffered a loss of profit of 5% of the deficit
turnover, that the contractor would have made a profit of Rs.9 lakhs to 10
lakhs and as the data furnished by the NBCC showed that the net payment
made to the contractor was Rs.89,80,540.91, the contractor should be
awarded Rs.8,16,412 as 10% profits on the overheads, the High Court has
rightly recorded a finding holding that the claim due to delaying the amount
of 10% upon the overheads on the payment made by the NBCC to the
Contractor is illogical. The said reasoning of the High Court on the above
aspect of claims is perfectly legal and valid as it has assigned valid and
cogent reasons in support of the said conclusions arrived at and rightly
disallowed the claims.
17. Further the High Court has rightly held that the award of any sum in
addition to the contract amount does not arise as has been awarded by the
Arbitrator and made the rule of the court, more particularly when the
contractor did not claim 10% of loss of profits under specific claims. In that
view of the matter, the claim of the contractor on the loss of profit of 10% of
the total amount paid to him is rightly found fault with by the court. The
1Page 18
same is rightly set aside by the High Court by recording reasons stating that
the NBCC has claimed that the contractor has committed breach in
performing his obligations by delaying the completion of the work awarded
to him. The Arbitrator has accepted the contention of NBCC that the work
was delayed on account of the contractor and consequently awarded a sum
of Rs.2,40,000/- payable by the contractor to NBCC as damages on the
ground that the owner of the godown (FCI) had recovered an amount of
Rs.2,40,000/- from NBCC on account of delay in completion of the work by
the contractor. In that view of the matter, the High Court came to the
correct conclusion and held that sustaining the award of amount of
Rs.8,16,412/- under the aforesaid items of 10% profit on the total amount
made to the contractor would amount to upholding the decision of the
Arbitrator. This amounts to awarding damages in favour of the contractor
against the NBCC and the same cannot be found fault with by this Court.
18. Another contention urged by the learned counsel on behalf of the
appellant is that NBCC is liable to pay as per the DSR 1981, which
governed the contract between the parties and the High Court had by a
process of facile reasoning arrived at the conclusion that corrections in DSR
1981 were made before contract documents were signed by the contractor. It
is also contended that the High Court had totally ignored the provisions of
1Page 19
CPWD Manual and also the agreement executed by and between FCI and
NBCC, which clearly stipulate that the rates of work are governed by DSR
1981 and that NBCC is entitled only for 9% remuneration. Much emphasis
is placed upon the CPWD Manual regarding the procedure required to be
followed. The relevant clause 20.1.2 of CPWD Manual clearly provides that:
(1) The officer opening the tenders should encircle all corrections,
cuttings, conditions, additions and over-writings and number
them and attest them in red ink.
(2) In case of number of corrections in the rate of any one item,
either in words or in figures or in both, the number of
corrections marked should indicate the correction serially, that
is to say, in case of, say, three corrections in rates of any one
item, each of these corrections should be allotted independent
numbers serially and not one number to represent all the three
corrections.
(3) The number of corrections, cuttings, additions, conditions and
over writings must be clearly mentioned at the end of each
relevant page of the Schedule attached to the tender documents,
and they should be properly attested with date. Any omission
observed should also be brought out clearly on each relevant
page of the Schedule.
It is contended that this has not been followed by NBCC and hence, the
award passed by the Arbitrator by not granting the rates on the basis of DSR
1981 for various works is erroneous in law. On the other hand, the same
was sought to be justified on behalf of the NBCC. This aspect has been
examined in reference to the reasoning given by the High Court in the
impugned judgment. The High Court has referred to the items and
1Page 20
description of work as per DSR 1981, the amounts actually paid, the
quantity of work which is executed by the contractor and the amount of loss
paid in terms of DSR 1981 claim which is allowed by the Arbitrator and
accepted by the Court. These are carefully examined with reference to the
agreement as the Arbitrator has allowed the claim Nos.3(a) to (d) and has
awarded a sum of Rs.18,45,568.90 by assigning reasons and the correctness
of which is examined by the High Court. The High Court examined the
claims of four items referred to supra. The rates originally mentioned as per
DSR 1981 have been corrected by the NBCC and the basis of the claims in
the same is not mentioned and therefore, is not binding as the same is not in
regard to CPWD Manual as examined by the High Court with regard to the
item wise claim and the description in relation to the work. In this regard,
the High Court with reference to the tabular statement made in the judgment,
has elaborately referred to the same and examined the nature of the work
executed by the contractor on the basis of contract entered into between the
parties. The item wise findings are recorded in the impugned judgment by
the High Court on appreciation of both documents and oral evidence on
record and it was held that neither there is any pleading nor any evidence on
the part of NBCC before the Arbitrator to demonstrate that the description of
this item of work in the Bill of Quantities is different from 1981 DSR Item
2Page 21
Code No.2.35. It was further held that the contractor is entitled to 58.5%
over basic schedule rates over and above DSR 1981 and that the 1981 DSR
rate is Rs.56.36 per sq.m. and also considered the scope of interference by
the High Court in regard to award of the Arbitrator which is limited and the
court is not sitting in appeal over the award of the Arbitrator. Therefore, the
Court declined to interfere on that aspect of the matter and found fault with
only regarding DSR rates. Regarding the DSR rates, it was found to be
Rs.20 per s.qm for an area which works out to Rs. 6,35,512.27 as per 1981
DSR rates and therefore the Arbitrator has worked out the difference of
Rs.36.36 for 17223.24 sq.mtr, plus Rs.3,70,604.85 as awarded by allowing
the basic schedule rates over and above DSR 1981 of the amount, i.e. 58.5%
of Rs.6,33,512.57 and rightly held and awarded that the contractor is entitled
for Rs.10,04,117.42. Accordingly, claim no.3(a) of the contractor was
allowed. With regard to claim no.3(b) regarding the foundation and plinth, it
has been contended that the rate as per 1981 DSR is Rs.214.14. Also, the
Bill of quantities originally mentioned the rate as Rs.214.14 and the same
has been corrected as Rs.150.69 without authorization. The grant of said
rates by the Arbitrator was found fault by the High Court holding that the
Arbitrator committed an error apparent on the face of award by awarding the
rates mentioned in 1981 DSR for this item of work as Rs.214.14 by ignoring
2Page 22
the deduction of Rs.63.45 provided in the 1981 DSR, where the brick class
designation is at Rs.35. Therefore, the High Court found fault with the
award of Rs.2,26,315.19 and the addition of 58.5% above the schedule rate
was held to be not sustainable both on facts and in law and accordingly the
same is set aside. In the impugned judgment, with regard to item (c) of
claim No.3, the High Court has examined the correctness of allowing the
claim of the contractor and set aside the Arbitrator’s award of
Rs.2,32,328.59 and the addition of 58.5% thereof. With regard to claim item
no. 3(d) it was held to be valid in law with reference to DSR 1981 rates
holding the original rate as Rs.438.81 which has been corrected as
Rs.290.00. The said finding of fact, according to the High Court, is held
even if it is erroneous, to be binding upon the parties for the reasons that the
same is awarded under the 1981 DSR rates and hence, the award of the
claims on the basis of the above rates is accepted by the Arbitrator and is not
open to question. Therefore, the High Court held the contractor will be
entitled to the difference at the rate of Rs.148.81, that is, the difference
between Rs.438.81 and Rs.290 per sq.m. for 485.45 sq.m. which amounts to
Rs.72,239.82 as has been accepted by the Arbitrator. The Arbitrator did not
add 58.5% above the schedule rate to the amount and therefore the High
Court held that the court below was justified in adding that percentage and
2Page 23
rightly held that the Contractor is entitled for Rs.1,14,500.11 under claim no.
3(d). Further, the High Court has found fault with the award of the Arbitrator
in increasing the claim under items 3(a) to (d) to Rs.18,45,568.90 and
reduced the enhanced amount to Rs.10,04,117.42 plus Rs.1,14,500.11 which
amounts to Rs.1,14,500.11/- under claims 3(a) and (d) and rejected the
claims under 3(b) and (c). The challenge on the award of damages of
Rs.2,40,000/- against the contractor in favour of the NBCC which is
accepted by the trial court is rightly rejected by the High Court.
19. The rate of interest at the rate of 16.5% on the amounts awarded by the
civil court on the basis of the Constitution Bench judgment of this Court in
the case of Secretary, Irrigation Dept. Govt. of Orissa v. G.C.Roy (1992)
1 SCC 508, after examining the power of Arbitrator under Section 34 CPC,
with regard to award of interest, has rightly held that exercise of power by
the Arbitrator under Section 34 CPC in awarding the interest on the
commercial rates in the absence of clause of agreement regarding non
payment of interest on the amounts due to the contractor is held to be legally
valid. This court in the above case has overruled its earlier decision in the
case of Executive Engineer (Irrigation) v. Abhadutta Jena (AIR 1988
SC 1520) and enunciated the law regarding the award of interest on the
claims awarded in favour of the contractor. It is worthwhile to refer to the
2Page 24
relevant paragraphs of the above Constitution Bench decision, which read as
hereunder:-
“43. The question still remains whether Arbitrator has the
power to award interest pendente lite, and if so on what
principle. We must reiterate that we are dealing with the
situation where the agreement does not provide for grant
of such interest nor does it prohibit such grant. In other
words, we are dealing with a case where the agreement is
silent as to award of interest. On a conspectus of
aforementioned decisions, the following principles emerge:
(i) A person deprived of the use of money to which he is
legitimately entitled has a right to be compensated for the
deprivation, call it by any name. It may be called interest,
compensation or damages. This basic consideration is as
valid for the period the dispute is pending before the
Arbitrator as it is for the period prior to the Arbitrator
entering upon the reference. This is the principle of Section
34, Civil Procedure Code and there is no reason or
principle to hold otherwise in the case of Arbitrator.
(ii) An Arbitrator is an alternative form (sic forum) for
resolution of disputes arising between the parties. If so, he
must have the power to decide all the disputes or
differences arising between the parties. If the Arbitrator
has no power to award interest pendente lite, the party
claiming it would have to approach the court for that
purpose, even though he may have obtained satisfaction in
respect of other claims from the Arbitrator. This would lead
to multiplicity of proceedings.
(iii) An Arbitrator is the creature of an agreement. It is
open to the parties to confer upon him such powers and
prescribe such procedure for him to follow, as they think
fit, so long as they are not opposed to law. (The proviso to
Section 41 and Section 3 of Arbitration Act illustrate this
point). All the same, the agreement must be in conformity
with law. The Arbitrator must also act and make his award
in accordance with the general law of the land and the
agreement.
2Page 25
(iv) Over the years, the English and Indian courts have
acted on the assumption that where the agreement does
not prohibit and a party to the reference makes a claim for
interest, the Arbitrator must have the power to award
interest pendente lite. Thawardas has not been followed in
the later decisions of this Court. It has been explained and
distinguished on the basis that in that case there was no
claim for interest but only a claim for unliquidated
damages. It has been said repeatedly that observations in
the said judgment were not intended to lay down any such
absolute or universal rule as they appear to, on first
impression. Until Jena case almost all the courts in the
country had upheld the power of the Arbitrator to award
interest pendente lite. Continuity and certainty is a highly
desirable feature of law.
(v) Interest pendente lite is not a matter of substantive
law, like interest for the period anterior to reference (prereference period).
 For doing complete justice between the
parties, such power has always been inferred.
44. Having regard to the above consideration, we think
that the following is the correct principle which should be
followed in this behalf:
Where the agreement between the parties does not
prohibit grant of interest and where a party claims interest
and that dispute (along with the claim for principal amount
or independently) is referred to the Arbitrator, he shall
have the power to award interest pendente lite. This is for
the reason that in such a case it must be presumed that
interest was an implied term of the agreement between
the parties and therefore when the parties refer all their
disputes — or refer the dispute as to interest as such — to
the Arbitrator, he shall have the power to award interest.
This does not mean that in every case the Arbitrator
should necessarily award interest pendente lite. It is a
matter within his discretion to be exercised in the light of
all the facts and circumstances of the case, keeping the
ends of justice in view.
46. In view of the above discussion we hold that in two
appeals namely Civil Appeal No. 1403 of 1986 and Civil
2Page 26
Appeal No. 2586 of 1985 the Arbitrator acted with
jurisdiction in awarding pendente lite interest and the High
Court rightly upheld the award. In the result both the
appeals fail and are, accordingly, dismissed but there will
be no order as to costs. Even though we have held that the
decision in Jena case does not lay down good law, we
would like to direct that our decision shall only be
prospective in operation, which means that this decision
shall not entitle any party nor shall it empower any court
to reopen proceedings which have already become final. In
other words, the law declared herein shall apply only to
pending proceedings.”
20. The High Court has examined the rate of interest at 16.5% on the
amount awarded in favour of the Contractor by the civil court and has
considered the contention urged on behalf of NBCC that the rate of interest
awarded is excessive and also the contention that there is no contract of
payment of interest on the same and alternatively contended that the interest
rate should not normally exceed 6% per annum. 
These contentions have
been seriously contested by appellant’s counsel contending that the award of
interest between 15% to 18% per annum on the basis of bank lending rates
should be allowed as NBCC itself has claimed interest at the rate of 18.5%
per annum on the amount claimed from the contractor. 
Keeping the
aforesaid aspect in mind and in the absence of contract with regard to rate of
interest to be awarded in favour of the contractor and having regard to the
facts and circumstances of the case, the High Court has come to the right
2Page 27
conclusion and awarded interest at the rate of 12% per annum on the
amounts due to the contractor on the basis of the rate of interest paid by the
Banks to its customers on long term deposits prevailing in 1988. The same
cannot be found fault with by this Court for the reason that the High Court
taking relevant aspects into consideration has rightly reduced the rate of
interest to 12% per annum from 16.5% per annum after holding that exercise
of discretionary power by the Arbitrator under Section 34 of CPC is a
discretionary power and the same cannot be interfered with by the High
Court.
21. In our considered view the reasons recorded by the High Court on the
contentious issues while examining the claims allowed by the Arbitrator in
the award with reasons which is affirmed by the civil court, wherein certain
claims have been rightly disallowed, certain other claims accepted and yet
some other claims modified by the High Court by adding certain amounts,
are based on sound legal principles and after coming to the conclusion that
the findings of the Arbitrator and the court are erroneous and contrary to
law. Therefore, the High Court has held that the impugned award passed by
the Arbitrator which was made the rule of the court by the civil court is
erroneous in law and it amounts to misconduct. Accordingly, the High Court
has rightly set aside certain claims of the contractor and affirmed the award
2 Page 28
and granted extra amount on certain claims. It has also interfered with the
damages awarded in favour of NBCC and partly allowed the appeal of the
respondent NBCC by allowing certain claims, setting aside certain other
claims and also reducing the rate of interest at 12% from 16.5%.
22. In our considered view, we do not find any good reason whatsoever to
interfere with the same in exercise of this Court’s jurisdiction in these
appeals. Consequently, for the reasons stated above the appeals are
dismissed, with no order as to costs.
………………………..J.
[ Dr. B.S. CHAUHAN ]
………………………..J.
[ V. GOPALA GOWDA ]
New Delhi,
March 5, 2013.
2Page 29
2Page 30
3

The compulsory acquisition of the land = (i) Whether preliminary notification under Section 4 of the Rajasthan Land Acquisition Act, 1953 (for short, “1953 Act”) issued on 01.05.1980 has lapsed since declaration under Section 6 of that Act was made on 19.03.1987 after the expiry of two years from the commencement of 1Page 2 the Rajasthan Land Acquisition (Amendment and Validation) Act, 1981 (for short, “1981 Amendment Act”). (ii) Whether invocation of power of urgency and dispensation of inquiry under Section 5-A after 7 years of issuance of preliminary notification under Section 4 of the 1953 Act are legally sustainable? = Having regard to clear and unambiguous mandate of Section 5(2) of the 1981 Amendment Act that no declaration under Section 6 of the 1953 Act in respect of any land for the acquisition of which notice under Section 4(5) has been given before the commencement of the 1981 Amendment Act shall be made after the expiry of two years from the commencement of the 1981 Amendment Act, it has to be held and we hold that preliminary notification dated 01.05.1980, which was followed by notice under Section 4(5) before the commencement of the 1981 Amendment Act, has lapsed and does not survive since declaration under Section 6 has been made much beyond the time limit prescribed in law. Civil appeal is, accordingly, allowed. The impugned orders are set aside. It is declared that preliminary notification dated 01.05.1980 has lapsed and the declaration made on 19.03.1987 is legally unsustainable. If possession of the subject land has been taken from the appellants, the same shall be restored to them without any delay.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6392 OF 2003
Laxman Lal (Dead) Through LRs. and Anr. …… Appellants
 Vs.
State of Rajasthan and Ors. …… Respondents
JUDGMENT
R.M. LODHA, J.
The compulsory acquisition of the land admeasuring 4 bigha
and 2 biswa comprised in Khasra no. 1013 at Dungarpur (Rajasthan) is the
subject matter of this appeal by special leave.
The appellants were
unsuccessful in challenging the acquisition of the above land in the High
Court. They failed before the Single Judge as well as the Division Bench.
2. The two questions that arise for consideration are :
(i) Whether preliminary notification under Section 4 of the
Rajasthan Land Acquisition Act, 1953 (for short, “1953
Act”) issued on 01.05.1980 has lapsed since declaration
under Section 6 of that Act was made on 19.03.1987
after the expiry of two years from the commencement of
1Page 2
the Rajasthan Land Acquisition (Amendment and
Validation) Act, 1981 (for short, “1981 Amendment
Act”). 
(ii) Whether invocation of power of urgency and
dispensation of inquiry under Section 5-A after 7 years
of issuance of preliminary notification under Section 4 of
the 1953 Act are legally sustainable?
3. The above two questions arise from these facts: on
01.05.1980, the state government issued a preliminary notification under
Section 4 that the subject land was needed or likely to be needed for a
public purpose, namely, construction of bus stand. The state government
required and authorised Land Acquisition Officer (SDO), Dungarpur to
enter upon, do survey and all other acts necessary to ascertain whether
land was suitable for such public purpose and enquire into and ascertain
the particulars of the persons interested in such land.
4. On 19.03.1987, a notification was issued under Section 6 of
the 1953 Act. By that notification the state government also invoked its
powers conferred under Section 17(1) read with Section 17(4) of the 1953
Act and dispensed with the provisions of Section 5-A.
5. An important event occurred between 01.05.1980 and
19.03.1987. The State Legislature following the Ordinance promulgated by
2Page 3
the Governor amended the 1953 Act by the 1981 Amendment Act.
Effective from 27.06.1981, by the 1981 Amendment Act, Section 6 of 1953
Act was amended and the following proviso in Section 6 was inserted:
“Provided that no declaration in respect of any particular land
covered by a notice under section 4, sub-section 5, given
after the commencement of the Rajasthan Land Acquisition
(Amendment and Validation) Act, 1981, shall be made after
the expiry of three years from the date of giving of such
notice:”
6. Section 5 of the 1981 Amendment Act provides for validation
of certain acquisitions. Sub-sections 1(b) and (2) thereof, which are
relevant for the present controversy, read as follows :
“S. 5. Validation of certain acquisitions.—
(1) (a) xxx xxx xxx
(b) any acquisition in pursuance of any notice given
under sub-section (5) of section 4 of the principal Act before
the commencement of this Act may be made after such
commencement and no such acquisition and no action taken
or thing done (including any order made, agreement entered
into or notice given), whether before or after such
commencement, in connection with such acquisition shall be
deemed to be invalid merely on the grounds referred to in
clause (a) or any of them.
(2) Notwithstanding anything contained in clause (b) of
sub-section (1) no declaration under section 6 of the
principal Act in respect of any land for the acquisition of
which notice under sub-section (5) of section 4 of the
principal Act has been given before the commencement of
this Act, shall be made after the expiry of two yeas from the
commencement of the said Act.”
7. The above acquisition was challenged in three writ petitions
before the High Court. One of these writ petitions was filed by Laxman Lal
3Page 4
and Manohar Lal. Both these petitioners are dead and now represented by
their legal representatives who are appellants herein. The challenge to the
acquisition was laid on diverse grounds but none of the grounds
persuaded the Single Judge and all the three writ petitions were dismissed
by a common order dated 11.05.1999.
8. The order of the Single Judge was challenged in intra-court
appeal by the writ petitioners. Before the Division Bench, the following
three points were raised in support of the appeal:-
I) Proceedings could not be continued because
notification under Section 6 of the Act was issued after a
lapse of about 7 years. This was in view of the provisions of
sub-section (2) of Section 5 of the Rajasthan Land
Acquisition (Amendment and Validation) Act, 1981. The said
provisions provided a limitation of two years from the date of
commencement of the Validation Act for issuing the
declaration under Section 6. Since the declaration was
issued much beyond this period of limitation the same was
liable to be quashed. It was further contended that Section
17(4) notification could not be used to validate the
proceedings.
II) Notice under Section 17(4) was void ab initio because
the respondents failed to tender payment of 80 percent of
compensation as envisaged under sub-section (3)(a) of
Section 17 of the Land Acquisition Act.
III) The action of the respondents is highly arbitrary. By
issuing a notification under Section 4 of the Act in the year
1980 the appellants were being pegged down for purposes
of payment of compensation although effectively the
acquisition was being made in the year 1987.
9. Dealing with the first point, the Division Bench held as under:
It will be seen from the above that a declaration under
Section 6 in respect of the land can be made at any time
after the publication of the notification under Section 4(1). In
view of this specific statutory provision which is admittedly
applicable, it cannot be said that a declaration under Section
6 could not have been issued after a lapse of 7 years or
4Page 5
more. Learned counsel for the appellants fairly conceded
that Section 17 is a Code in itself. It contains complete
procedure for acquisition made under the said provision.
Section 17 is a provision to be resorted to in cases of
urgency. Notification under Section 4 of the Act already
stood issued with respect to the land in question as far back
as the year 1980. The Government felt the urgency for the
acquisition and, therefore, Section 17(4) notification, read
with Section 6, was issued on 19.03.1987. We find no
illegality in the procedure following in the facts of the case.
10. It is not necessary to deal with the second ground urged
before the Division Bench as it has not been pressed before us. As
regards the third ground, the Division Bench held as under:
“Lastly, the learned counsel raised an argument suggesting
arbitrariness on the part of the respondents. As already
noted, Section 17 permits the Government to invoke its
provisions at any time, therefore, there is no statutory bar so
far as the action is concerned. If the action of the
respondents results in some hardship to the landowners
normally, the provision regarding payment of interest takes
care of the hardship. The power of compulsory acquisition of
land is in the nature of a power of eminent domain which the
State is entitled to exercise keeping in view the larger public
interest as against individual interest.”
11. We shall deal with the second question first. Two basic facts
are not in dispute, namely, one, preliminary notification under Section 4
showing intention to acquire the subject land for a public purpose, namely,
construction of bus stand was issued by the state government on
01.05.1980 and two, the declaration under Section 6 of the 1953 Act was
made on 19.03.1987 and by means of that very notification the state
government exercised its power of urgency under Section 17(1) read with
Section 17(4) and dispensed with enquiry under Section 5A. Thus, the
5Page 6
power of urgency was invoked for the first time by the state government
after seven years of issuance of the preliminary notification under Section
4.
12. Section 4 of the 1953 Act is identical to Section 4 of the Land
Acquisition Act, 1894 (for short, “1894 Act”). It provides that whenever the
state government considers it necessary or expedient to acquire land in
any locality, needed or likely to be needed for a public purpose, it shall, by
an order published in accordance with the provisions of sub-section (4) of
Section 45, require any officer subordinate to it and generally or specially
authorised in this behalf, to enter upon or into any land in such locality
accompanied by his servants and workmen for the purpose stated therein.
Sub-section (5) of Section 4 empowers the Collector to issue notice to the
persons interested of the proposed acquisition and also issue a public
notice to that effect at convenient places on or near about the land
proposed to be acquired.
13. Section 5A enables the person interested in any land in
respect of which notice has been issued under Section 4 (5) to object to
acquisition of that land.
14. Section 6 is also similar to Section 6 of the 1894 Act. Inter alia,
it provides that when the state government is satisfied after considering the
report, if any, made under Section 5-A that any particular land is needed
for a public purpose, a declaration shall be made to that effect. Such
6Page 7
declaration is conclusive evidence that the land is needed for a public
purpose and after making such declaration the state government may
acquire the land in the manner provided in sub-section (4) thereof. As
noticed above, Section 6 came to be amended by the 1981 Amendment
Act and, inter alia, limitation of three years for issuance of notification
under Section 6 was fixed from the date of issuance of notice under
Section 4(5). As regards the notice issued under Section 4(5) prior to the
1981 Amendment Act, limitation of two years from coming into force of the
1981 Amendment Act was fixed.
15. Section 17 of the 1953 Act gives special powers to the state
government in the cases of urgency and emergency. To the extent it is
relevant, Section 17 reads as under:
“S. 17. Special powers in case of urgency.—In cases of
urgency, whenever the State Government so directs the
Collector though no such award has been made may, on the
expiration of fifteen days from the publication of the notice
mentioned in section 9, sub-section (1), take possession of
any waste or arable land needed for public purposes or for a
company. Such land shall thereupon vest absolutely in the
State Government free from all encumbrances.
xxx xxx xxx
2. xxx xxx xxx
3. xxx xxx xxx
4. In the case of any land to which in the opinion of the
State Government the provisions of sub-sections (1) or subsection (2) are applicable the State Government may direct
that the provisions of section 5-A 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 publication of the
order under sub-section (1) of section 4.
5. xxx xxx xxx
6. xxx xxx xxx
7. xxx xxx xxx”
7Page 8
16. The statutory provisions of compulsory acquisition contained
in the 1953 Act are not materially different from the 1894 Act. This Court
has explained the doctrine of eminent domain in series of cases. Eminent
domain is the right or power of a sovereign state to appropriate the private
property within the territorial sovereignty to public uses or purposes. It is an
attribute of sovereignty and essential to the sovereign government. The
power of eminent domain, being inherent in the government, is exercisable
in the public interest, general welfare and for public purpose. The
sovereign is entitled to reassert its dominion over any portion of the soil of
the state, including private property without its owner’s consent provided
that such assertion is on account of public exigency and for public good.
17. Article 300-A of the Constitution mandates that no person
shall be deprived of his property save by authority of law. Though right to
property is no longer a fundamental right but the constitutional protection
continues in as much as without the authority of law, a person cannot be
deprived of his property. Accordingly, if the state intends to appropriate
the private property without the owners’ consent by acting under the
statutory provisions for compulsory acquisition, the procedure authorised
by law has to be mandatorily and compulsorily followed. The power of
urgency which takes away the right to file objections can only be exercised
by the state government for such public purpose of real urgency which
cannot brook delay of few weeks or few months. This Court as early as in
8Page 9
1964 said that the right to file objections under Section 5-A is a substantial
right when a person’s property is being threatened with acquisition; such
right cannot be taken away as if by a side wind (Nandeshwar Prasad &
Ors. v. U.P. Govt. & Ors.1
).
18. In Munshi Singh & Ors. v. Union of India2
, this Court explained
the importance of Section 5-A in the following terms:
“7. Section 5-A embodies a very just and wholesome
principle that a person whose property is being or is intended
to be acquired should have a proper and reasonable
opportunity of persuading the authorities concerned that
acquisition of the property belonging to that person should
not be made. We may refer to the observation of this court in
Nandeshwar Prasad v. The State of U.P. [AIR 1964 SC
1217] that the right to file objections under Section 5-A is a
substantial right when a person's property is being
threatened with acquisition and that right cannot be taken
away as if by a side wind. Sub-section (2) of Section 5-A
makes it obligatory on the Collector to give an objector an
opportunity of being heard. After hearing all objections and
making further inquiry he is to make a report to the
appropriate Government containing his recommendation on
the objections. The decision of the appropriate Government
on the objections is then final. The declaration under Section
6 has to be made after the appropriate Government is
satisfied, on a consideration of the report, if any, made by
the Collector under Section 5-A(2). The legislature has,
therefore, made complete provisions for the persons
interested to file objections against the proposed acquisition
and for the disposal of their objections. It is only in cases of
urgency that special powers have been conferred on the
appropriate Government to dispense with the provisions of
Section 5-A: [See Section 17(4) of the Acquisition Act.]”
1
 AIR 1964 SC 1217
2
 (1973) 2 SCC 337
9Page 10
19. In Hindustan Petroleum Corporation Ltd. v. Darius Shapur
Chenai & Ors.3
, it was reiterated by this Court that Section 5-A confers a
valuable right in favour of a person whose lands are sought to be acquired.
20. We do not think it is necessary to multiply the authorities. In a
comparatively recent judgment, this Court speaking through one of us
(R.M. Lodha, J.) in Anand Singh and Another v. State of Uttar Pradesh
and Others4 explained the importance of Section 5-A in the following
words:
“41.……That Section 5-A of the Act confers a valuable right
to an individual is beyond any doubt. As a matter of fact, this
Court has time and again reiterated that Section 5-A confers
an important right in favour of a person whose land is sought
to be acquired.
42. When the Government proceeds for compulsory
acquisition of a particular property for public purpose, the
only right that the owner or the person interested in the
property has, is to submit his objections within the prescribed
time under Section 5-A of the Act and persuade the State
authorities to drop the acquisition of that particular land by
setting forth the reasons such as the unsuitability of the land
for the stated public purpose; the grave hardship that may be
caused to him by such expropriation, availability of
alternative land for achieving public purpose, etc. Moreover,
the right conferred on the owner or person interested to file
objections to the proposed acquisition is not only an
important and valuable right but also makes the provision for
compulsory acquisition just and in conformity with the
fundamental principles of natural justice.”
21. This Court has dealt with the scope, extent and ambit of the
power of the state government under Section 17(1) and (4) of the 1894 Act
from time to time. Narayan Govind Gavate & Ors. v. State of Maharashtra
3
 (2005) 7 SCC 627
4
 (2010) 11 SCC 242
10Page 11
& Ors.5
, Deepak Pahwa & Ors. v. Lt. Governor of Delhi & Ors.6
, State of
U.P. v. Smt. Pista Dev & Ors.7
, State of U.P. & Anr. v. Keshav Prasad
Singh8
, Chameli Singh & Ors. v. State of U.P. & Anr. 9
, Meerut
Development Authority & Ors. v. Satbir Singh & Ors.10, Om Prakash &
Anr. v. State of U.P. & Ors.11, Union of India & Ors. v. Mukesh Hans12
,
Union of India & Ors. v. Krishan Lal Arneja & Ors.13, Mahadevappa
Lachappa Kinagi & Ors. v. State of Karnataka & Ors.14, Babu Ram & Anr.
v. State of Haryana & Anr.15 and Tika Ram & Ors. v. State of U.P.16 have
been referred to in Anand Singh4
 and the legal position in paragraphs 43
to 48 of the Report (pgs. 265-266) is culled out as follows :
“43. The exceptional and extraordinary power of doing away
with an enquiry under Section 5-A in a case where
possession of the land is required urgently or in an
unforeseen emergency is provided in Section 17 of the Act.
Such power is not a routine power and save circumstances
warranting immediate possession it should not be lightly
invoked. The guideline is inbuilt in Section 17 itself for
exercise of the exceptional power in dispensing with enquiry
under Section 5-A. Exceptional the power, the more
circumspect the Government must be in its exercise. The
Government obviously, therefore, has to apply its mind
before it dispenses with enquiry under Section 5-A on the
aspect whether the urgency is of such a nature that justifies
elimination of summary enquiry under Section 5-A.
44. A repetition of the statutory phrase in the notification that
the State Government is satisfied that the land specified in
the notification is urgently needed and the provision
contained in Section 5-A shall not apply, though may initially
raise a presumption in favour of the Government that
5
 (1977) 1 SCC 133
6
 (1984) 4 SCC 308
7
 (1986) 4 SCC 251
8
 (1995) 5 SCC 587
9
 (1996) 2 SCC 549
10 (1996) 11 SCC462
11 (1998) 6 SCC 1
12 (2004) 8 SCC 14
13 (2004) 8 SCC 453
14 (2008) 12 SCC 418
15 (2009) 10 SCC 115
16 (2009) 10 SCC 689
11Page 12
prerequisite conditions for exercise of such power have been
satisfied, but such presumption may be displaced by the
circumstances themselves having no reasonable nexus with
the purpose for which the power has been exercised. Upon
challenge being made to the use of power under Section 17,
the Government must produce appropriate material before
the Court that the opinion for dispensing with the enquiry
under Section 5-A has been formed by the Government after
due application of mind on the material placed before it.
45. It is true that power conferred upon the Government
under Section 17 is administrative and its opinion is entitled
to due weight, but in a case where the opinion is formed
regarding the urgency based on considerations not germane
to the purpose, the judicial review of such administrative
decision may become necessary.
46. As to in what circumstances the power of emergency can
be invoked are specified in Section 17(2) but circumstances
necessitating invocation of urgency under Section 17(1) are
not stated in the provision itself. Generally speaking, the
development of an area (for residential purposes) or a
planned development of city, takes many years if not
decades and, therefore, there is no reason why summary
enquiry as contemplated under Section 5-A may not be held
and objections of landowners/persons interested may not be
considered. In many cases, on general assumption likely
delay in completion of enquiry under Section 5-A is set up as
a reason for invocation of extraordinary power in dispensing
with the enquiry little realising that an important and valuable
right of the person interested in the land is being taken away
and with some effort enquiry could always be completed
expeditiously.
47. The special provision has been made in Section 17 to
eliminate enquiry under Section 5-A in deserving and cases
of real urgency. The Government has to apply its mind on
the aspect that urgency is of such nature that necessitates
dispensation of enquiry under Section 5-A. We have already
noticed a few decisions of this Court. There is a conflict of
view in the two decisions of this Court viz. Narayan Govind
Gavate [(1977) 1 SCC 133] and Pista Devi [(1986) 4 SCC
251]. In Om Prakash [(1998) 6 SCC 1] this Court held that
the decision in Pista Devi [(1986) 4 SCC 251] must be
confined to the fact situation in those days when it was
rendered and the two-Judge Bench could not have laid down
a proposition contrary to the decision in Narayan Govind
Gavate [(1977) 1 SCC 133]. We agree.
48. As regards the issue whether pre-notification and postnotification delay would render the invocation of urgency
12Page 13
power void, again the case law is not consistent. The view of
this Court has differed on this aspect due to different fact
situation prevailing in those cases. In our opinion such delay
will have material bearing on the question of invocation of
urgency power, particularly in a situation where no material
has been placed by the appropriate Government before the
Court justifying that urgency was of such nature that
necessitated elimination of enquiry under Section 5-A.”
22. Anand Singh4 has been referred to in later cases, one of such
decisions is Radhy Shyam (Dead) Through LRs & Ors.. v. State of Uttar
Pradesh and Others17 wherein this Court in paragraph 77 (v) to (ix) of the
Report stated as follows:
“77(v) Section 17(1) read with Section 17(4) confers
extraordinary power upon the State to acquire private
property without complying with the mandate of Section 5-A.
These provisions can be invoked only when the purpose of
acquisition cannot brook the delay of even a few weeks or
months. Therefore, before excluding the application of
Section 5-A, the authority concerned must be fully satisfied
that time of few weeks or months likely to be taken in
conducting inquiry under Section 5-A will, in all probability,
frustrate the public purpose for which land is proposed to be
acquired.
(vi) The satisfaction of the Government on the issue of
urgency is subjective but is a condition precedent to the
exercise of power under Section 17(1) and the same can be
challenged on the ground that the purpose for which the
private property is sought to be acquired is not a public
purpose at all or that the exercise of power is vitiated due to
mala fides or that the authorities concerned did not apply
their mind to the relevant factors and the records.
(vii) The exercise of power by the Government under Section
17(1) does not necessarily result in exclusion of Section 5-A
of the Act in terms of which any person interested in land
can file objection and is entitled to be heard in support of his
objection. The use of word “may” in sub-section (4) of
Section 17 makes it clear that it merely enables the
Government to direct that the provisions of Section 5-A
would not apply to the cases covered under sub-section (1)
17 (2011) 5 SCC 553
13Page 14
or (2) of Section 17. In other words, invoking of Section 17(4)
is not a necessary concomitant of the exercise of power
under Section 17(1).
(viii) The acquisition of land for residential, commercial,
industrial or institutional purposes can be treated as an
acquisition for public purposes within the meaning of Section
4 but that, by itself, does not justify the exercise of power by
the Government under Sections 17(1) and/or 17(4). The
court can take judicial notice of the fact that planning,
execution and implementation of the schemes relating to
development of residential, commercial, industrial or
institutional areas usually take few years. Therefore, the
private property cannot be acquired for such purpose by
invoking the urgency provision contained in Section 17(1). In
any case, exclusion of the rule of audi alteram partem
embodied in Sections 5-A(1) and (2) is not at all warranted in
such matters.
(ix) If land is acquired for the benefit of private persons, the
court should view the invoking of Sections 17(1) and/or 17(4)
with suspicion and carefully scrutinise the relevant record
before adjudicating upon the legality of such acquisition.”
23. In light of the above legal position which is equally
applicable to Section 17(1) and (4) of the 1953 Act, we may turn to the fact
situation of the present matter. Section 4(5) notice under the 1953 Act was
issued by the state government in 1980. For almost seven years, no
steps were taken in taking the acquisition proceedings pursuant to the
Section 4(5) notice to the logical conclusion. Even inquiry under Section
5-A was not commenced, much less completed. Abruptly on 19.03.1987,
without following the procedure contemplated in Section 5-A,
the declaration under Section 6 was made and in that
notification the state government stated that it has invoked its power of
urgency under Section 17(1) and dispensed with inquiry under Section 5-A
14Page 15
in exercise of its power under Section 17(4). Can it be said that
an inquiry under Section 5-A could not have been completed in all
these years? We think that it could have been done easily and
conveniently in few months leave aside few years. There were not
large number of owners or persons interested in respect of the subject
land. Section 5-A, which gives a very limited right to an owner/person
interested, is not an empty formality. The substantial right under Section
5-A is the only right given to an owner/person interested to object to the
acquisition proceedings. Such right ought not to be taken away by the
State Government sans real urgency. The strong arm of the government
is not meant to be used nor it should be used against a citizen in
appropriating the property against his consent without giving him right to
file objections as incorporated under Section 5-A on any ostensible
ground. The dispensation of enquiry under Section 17(4) has to be
founded on considerations germane to the purpose and not in a routine
manner. Unless the circumstances warrant immediate possession, there
cannot be any justification in dispensing with an enquiry under Section 5-A.
As has been stated by this Court in Anand Singh4
, elimination of enquiry
under Section 5-A must only be in deserving and in the cases of real
urgency. Being an exceptional power, the government must be
circumspect in exercising power of urgency.
15Page 16
24. In Anand Singh4
, dealing with the issue whether the prenotification and post-notification delay would render the invocation of
urgency power void, this Court said that such delay would have material
bearing on the question of invocation of urgency power, more so, in a
situation where no material has been placed by the appropriate
government before the Court justifying that urgency was of such nature
that necessitated elimination of inquiry under Section 5-A.
25. In the counter affidavit filed on behalf of the respondent nos.
1 to 3 before this Court, in respect of invocation of power of urgency under
Section 17(1) and dispensation of inquiry under Section 17(4), it is stated
as follows:
“…….. Section 17 of the Rajasthan Land Acquisition Act
which is a code containing complete procedure for
acquisition made under the said provision in case of
urgency. In the present petition, urgency of the
acquisition has been shown by the respondent. For the
purpose of public interest, as a bus stand was to be put
up, hence the nature of urgency is quite apparent.
The government issued notification under Section
6 read with 17(4) of the Act on 19.03.1987 under the
compulsory need of the land ……..”.
26. The counter affidavit filed by the respondent no. 4, i.e.,
Rajasthan State Road Transport Corporation is not relevant as Section 17
confers power of urgency only on the state government alone and it is the
state government that has to justify that the urgency was so imminent that
dispensation of inquiry under Section 5-A was necessary.
16Page 17
27. The explanation by the state government unsupported by any
material indicates that the state government feels that power conferred on
it under Section 17(1) and (4) is unbridled and uncontrolled. The state
government seems to have some misconception that in the absence of any
time limit prescribed in Section 17(1) and (4) for exercise of such power
after issuance of notice under Section 4 of the 1953 Act, it can invoke the
power of urgency whenever it wants. We are afraid the whole
understanding of Section 17 by the state government is fallacious. This
Court has time and again said with regard to Section 17(1) read with
Section 17 (4) of the 1894 Act that the provisions contained therein confer
extraordinary power upon the state to appropriate the private property
without complying with the mandate of Section 5-A and, therefore, these
provisions can be invoked only when the purpose of acquisition cannot
brook the delay of even few weeks or months. This principle equally
applies to the exercise of power under Section 17(1) and (4) of the 1953
Act. The state government, therefore, has to apply its mind before it
invokes its power of urgency and dispensation of inquiry under Section 5-
A that the compliance of the mandate of Section 5-A may lead to precious
loss of time which may defeat the purpose for which land is sought to be
acquired. Any construction of building (institutional, industrial, residential,
commercial etc.) takes some time and, therefore, acquisition of land for
such purpose can always brook delay of few months. Ordinarily,
17Page 18
invocation of power of urgency by the state government for such
acquisition may not be legally sustainable.
28. In this case, as noted above, the preliminary notification under
Section 4 was issued on 01.5.1980. After lapse of about 7 years on
19.03.1987, one fine morning the state government issued declaration
under Section 6 without complying with the mandate of Section 5-A and in
that declaration it was stated that it has invoked its powers conferred under
Section 17(1) read with Section 17 (4) of the 1953 Act and dispensed with
the provisions of Section 5-A. Had the state government intended to hold
and complete the inquiry under Section 5-A, it could have been done in
few months. However, no steps for commencement of the inquiry under
Section 5-A were even taken by the state government. We find that a
very valuable right conferred on the land owner/person interested under
Section 5-A has been taken away without any justification. It is so
because the bus stand construction would have taken some time. The
exercise of the power by the state government under section 17(1) read
with Section 17(4) of the 1953 Act and dispensation of inquiry under
Section 5-A can not be legally sustained and has to be declared as such.
29. Now, coming to the first question, it will be seen that
preliminary notification under Section 4 was issued on 01.05.1980. At the
time of issuance of the preliminary notification, the 1953 Act did not
prescribe any time limit for issuance of declaration under Section 6.
18Page 19
However, with effect from 27.06.1981 by the 1981 Amendment Act,
Section 6 was amended and a proviso was inserted that no declaration in
respect of any land covered by notice under Section 4, sub-section (5),
given after the commencement of the 1981 Amendment Act shall be made
after the expiry of three years from the date of giving of such notice. This
proviso is obviously applicable to the acquisition proceedings initiated
after coming into force of the 1981 Amendment Act and has no application
to the present fact situation. As regards the acquisition proceedings which
had already commenced by issuance of preliminary notification before
coming into force of the 1981 Amendment Act, Section 5(1)(b) of the 1981
Amendment Act, inter alia, provides that acquisition pursuant to such
preliminary notification may be completed after commencement of the
1981 Amendment Act and no such acquisition and no action taken or thing
done including any order made, agreement entered into or notice given,
whether before or after such commencement, in connection with such
acquisition shall be deemed to be invalid merely on the grounds referred to
in clause (a) or any one of them. Sub-section (2) of Section 5 of the 1981
Amendment Act, however, provides that notwithstanding anything
contained in clause (b) of sub-section (1), no declaration under Section 6
of the 1953 Act in respect of any land for the acquisition of which notice
under sub-section (5) of Section 4 has been given before the
commencement of the 1981 Amendment Act shall be made after the expiry
19Page 20
of two years from the commencement of the 1981 Amendment Act. Subsection (2) of Section 5 of the 1981 Amendment Act begins with non
obstante clause. Section 5(2) of the 1981 Amendment Act thus mandates
that no declaration under Section 6 in respect of the notice issued under
Section 4(5) before the commencement of the 1981 Amendment Act shall
be made after expiry of two years from the commencement of the said Act.
The provision leaves no manner of doubt that two years’ time prescribed
for making declaration under Section 6 in respect of the notice issued
under Section 4(5) prior to the commencement of the 1981 Amendment
Act is mandatory and permits no departure. This is clear from the words
“no declaration” and “shall be made” used in Section 5(2). The intention of
the legislature admits of no ambiguity and it is clear that in respect of the
notice issued under Section 4(5) before the commencement of the 1981
Amendment Act, it is obligatory on the state government to make
declaration on or before the expiry of two years from the commencement
of the 1981 Amendment Act. The provision is imperative in nature and has
to be followed as it lays down the maximum time limit within which the
declaration under Section 6 of the 1953 Act can be made in respect of the
notice under Section 4(5) issued before the commencement of the 1981
Amendment Act.
30. On behalf of the respondents, two decisions of the Rajasthan
High Court, one, Indrapuri Grah Nirman Sahakari Samiti Ltd. v. State of
20Page 21
Rajasthan and others18 and the other, Chain Singh and etc., v. State of
Rajasthan and others19 were cited. We are afraid insofar as Indrapuri Grah
Nirman Sahakari Samiti Ltd.18 is concerned, it has no application
whatsoever. As regards Chain Singh19, the Division Bench of the
Rajasthan High Court was concerned with the provisions of the Land
Acquisition (Rajasthan Amendment) Act, 1987 amending the 1894 Act.
The provisions under consideration before the Rajasthan High Court in
Chain Singh19 were materially different and, therefore, that decision is of no
help to the respondents.
31. Learned counsel for the respondents also cited a decision of
this Court in Pesara Pushapmala Reddy v. G. Veera Swamy and Others20
.
In Pesara Pushpamala Reddy20, this Court was concerned with the
questions whether it was mandatory for the special tribunal or the special
court to call for a report of the Mandal Revenue Officer before taking
cognizance of a case under the Andhra Pradesh Land Grabbing
(Prohibition) Act, 1982 (for short, “Land Grabbing Act”) and whether it was
mandatory for the special tribunal or the special court to publish a
notification in the gazette notifying the fact of cognizance of a case under
the Act. This Court considered the provisions of the Land Grabbing Act. In
our view, Pesara Pushpamala Reddy20 is not even remotely relevant for the
present case and has no application at all.
18 2002 (3) WLN 122
19 AIR 1991 Rajasthan 17
20 (2011) 4 SCC 306
21Page 22
32. Having regard to clear and unambiguous mandate of Section
5(2) of the 1981 Amendment Act that no declaration under Section 6 of the
1953 Act in respect of any land for the acquisition of which notice under
Section 4(5) has been given before the commencement of the 1981
Amendment Act shall be made after the expiry of two years from the
commencement of the 1981 Amendment Act, it has to be held and we hold
that preliminary notification dated 01.05.1980, which was followed by
notice under Section 4(5) before the commencement of the 1981
Amendment Act, has lapsed and does not survive since declaration under
Section 6 has been made much beyond the time limit prescribed in law.
33. Civil appeal is, accordingly, allowed. The impugned orders are
set aside. It is declared that preliminary notification dated 01.05.1980 has lapsed and the declaration made on 19.03.1987 is legally unsustainable. 
If
possession of the subject land has been taken from the appellants, the same shall be restored to them without any delay. No orders as to costs.
…………………….J.
 (R.M. Lodha)
 .……………………...J.
 (J. Chelameswar)
NEW DELHI
MARCH 1, 2013.
22

discrimination towards female child - “यत्र ना्यरस्तुपूज्यन्ते रमन्ते तत्र देवता:” [“Yatra naryastu pujyante ramante tatra dewatah”] (where woman is worshipped, there is abode of God). We have mentioned about dowry thrice, because this demand is made on three occasions: (i) before marriage; (ii) at the time of marriage; and (iii) after the marriage. Greed being limitless, the demands become insatiable in many cases, followed by torture on the girl, leading to either suicide in some cases or murder in some.”- “I am the child. All the word waits for my coming. All the earth watches with interest to see what I shall become. Civilization hangs in the balance. For what I am, the world of tomorrow will be. I am the child. You hold in your hand my destiny. You determine, largely, whether I shall succeed or fail, Give me, I pray you, these things that make for happiness.- The persons involved in such awareness campaign are required to equip themselves with constitutional concepts, culture, philosophy, religion, scriptural commands and injunctions, the mandate of the law as engrafted under the Act and above all the development of modern science. It needs no special emphasis to state that in awareness camps while the deterrent facets of law are required to be accentuated upon, simultaneously the desirability of law to be followed with spiritual obeisance, regard being had to the purpose of the Act, has to be stressed upon. The seemly synchronization shall bring the required effect. That apart, documentary films can be shown to highlight the need; and instill the idea in the mind of the public at large, for when mind becomes strong, mountains do melt. The people involved in the awareness campaigns should have boldness and courage. There should not be any iota of confusion or perplexity in their thought or action. They should treat it as a problem and think that a problem has to be understood in a proper manner to afford a solution. They should bear in mind that they are required to change the mindset of the people, the grammar of the society and unacceptable beliefs inherent in the populace. It should be clearly spelt out that female foeticide is the worst type of dehumanisation of the human race. 23. I have highlighted the aforesaid aspects so that when awareness campaigns are held, they are kept in view, for that is the object and purpose to have real awareness. 24. The matter be listed as directed.

Page 1
1
Reportable
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY CIVIL WRIT JURISDICTION
WRIT PETITION (CIVIL) NO. 349 OF 2006
Voluntary Health Association of Punjab ..Petitioner
Versus
Union of India & Others .. Respondents
O R D E R
Indian society’s discrimination towards female child still
exists due to various reasons which has its roots in the social
behaviour and prejudices against the female child and, due to
the evils of the dowry system, still prevailing in the society, in
spite of its prohibition under the Dowry Prohibition Act.
The
decline in the female child ratio all over the country leads to an
irresistible conclusion that the practice of eliminating female
foetus by the use of pre-natal diagnostic techniques is widely
prevalent in this country. Complaints are many, where at least
few of the medical professionals do perform Sex Selective
Page 2
2
Abortion having full knowledge that the sole reason for abortion
is because it is a female foetus. The provisions of the Medical
Termination of Pregnancy Act, 1971 are also being consciously
violated and misused. 
The Parliament wanted to prevent the same and enacted
the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition on Sex-Selection) Act, 1994 (for short ‘the Act’)
which has its roots in Article 15(2) of the Constitution of India.
The Act is a welfare legislation. 
The Parliament was fully
conscious of the fact that the increasing imbalance between
men and women leads to increased crime against women,
trafficking, sexual assault, polygamy etc. Unfortunately, facts
reveal that perpetrators of the crime also belong to the
educated middle class and often they do not perceive the
gravity of the crime. 
This Court, as early as, in 2001 in Centre for Enquiry
into Health and Allied Themes v. Union of India (2001) 5
SCC 577 had noticed the misuse of the Act and gave various
Page 3
3
directions for its proper implementation. Non-compliance of
various directions was noticed by this Court again in Centre for
Enquiry into Health and Allied Themes v. Union of India
(2003) 8 SCC 398 and this Court gave various other directions.
Having noticed that those directions as well as the
provisions of the Act are not being properly implemented by the
various States and Union Territories, we passed an order on
8.1.2013 directing personal appearance of the Health
Secretaries of the States of Punjab, Haryana, NCT Delhi,
Rajasthan, Uttar Pradesh, Bihar and Maharashtra, to examine
what steps they have taken for the proper and effective
implementation of the provisions of the Act as well as the
various directions issued by this Court.
We notice that, even though, the Union of India has
constituted the Central Supervisory Board and most of the
States and Union Territories have constituted State Supervisory
Boards, Appropriate Authorities, Advisory Committees etc.
under the Act, but their functioning are far from satisfactory.
Page 4
4
2011 Census of India, published by the Office of the
Registrar General and Census Commissioner of India, would
show a decline in female child sex ratio in many States of India
from 2001-2011. The Annual Report on Registration of Births
and Deaths - 2009, published by the Chief Registrar of NCT of
Delhi would also indicate a sharp decline in the female sex ratio
in almost all the Districts. Above statistics is an indication that
the provisions of the Act are not properly and effectively being
implemented. There has been no effective supervision or follow
up action so as to achieve the object and purpose of the Act.
Mushrooming of various Sonography Centres, Genetic Clinics,
Genetic Counselling Centres, Genetic Laboratories, Ultrasonic
Clinics, Imaging Centres in almost all parts of the country calls
for more vigil and attention by the authorities under the Act.
But, unfortunately, their functioning is not being properly
monitored or supervised by the authorities under the Act or to
find out whether they are misusing the pre-natal diagnostic
techniques for determination of sex of foetus leading to
foeticide.
Page 5
5
The Union of India has filed an affidavit in September 2011
giving the details of the prosecutions launched under the Act
and the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition on Sex-Selection) Rules, 1996 (for short ‘the Rules’),
up to June 2011. We have gone through the chart as well as the
data made available by various States, which depicts a sorry
and an alarming state of affairs. Lack of proper supervision and
effective implementation of the Act by various States, are
clearly demonstrated by the details made available to this
Court. However, State of Maharashtra has comparatively a
better track record. Seldom, the ultrasound machines used for
such sex determination in violation of the provisions of the Act
are seized and, even if seized, they are being released to the
violators of the law only to repeat the crime. Hardly few cases
end in conviction. Cases booked under the Act are pending
disposal for several years in many Courts in the country and
nobody takes any interest in their disposal and hence, seldom,
those cases end in conviction and sentences, a fact well known
to the violators of law. Many of the ultra-sonography clinics
Page 6
6
seldom maintain any record as per rules and, in respect of the
pregnant women, no records are kept for their treatment and
the provisions of the Act and the Rules are being violated with
impunity. 
The Central Government vide GSR 80(E) dated 7.2.2002
issued a notification amending the Act and regulating usage of
mobile machines capable of detecting the sex of the foetus,
including portable ultrasonic machines, except in cases to
provide birth services to patients when used within its
registered premises as part of the Mobile Medical Unit offering a
bouquet or other medical and health services. The Central
Government also vide GSR 418(E) dated 4.6.2012 has notified
an amendment by inserting a new Rule 3.3(3) with an object to
regulate illegal registrations of medical practitioners in genetic
clinics, and also amended Rule 5(1) by increasing the
application fee for registration of every genetic clinic, genetic
counselling centre, genetic laboratory, ultrasound clinic or
imaging centre and amended Rule 13 by providing that an
advance notice by any centre for intimation of every change in
Page 7
7
place, intimation of employees and address. Many of the clinics
are totally unaware of those amendments and are carrying on
the same practises. In such circumstances, the following
directions are given:
1. The Central Supervisory Board and the State and Union
Territories Supervisory Boards, constituted under Sections
7 and 16A of PN&PNDT Act, would meet at least once in six
months, so as to supervise and oversee how effective is
the implementation of the PN&PNDT Act.
2. The State Advisory Committees and District Advisory
Committees should gather information relating to the
breach of the provisions of the PN&PNDT Act and the Rules
and take steps to seize records, seal machines and
institute legal proceedings, if they notice violation of the
provisions of the PN&PNDT Act.
3. The Committees mentioned above should report the
details of the charges framed and the conviction of the
persons who have committed the offence, to the State
Medical Councils for proper action, including suspension of
the registration of the unit and cancellation of licence to
practice. Page 8
8
4. The authorities should ensure also that all Genetic
Counselling Centres, Genetic Laboratories and Genetic
Clinics, Infertility Clinics, Scan Centres etc. using preconception
and pre-natal diagnostic techniques and
procedures should maintain all records and all forms,
required to be maintained under the Act and the Rules and
the duplicate copies of the same be sent to the concerned
District Authorities, in accordance with Rule 9(8) of the
Rules.
5. States and District Advisory Boards should ensure that all
manufacturers and sellers of ultra-sonography machines
do not sell any machine to any unregistered centre, as
provided under Rule 3-A and disclose, on a quarterly basis,
to the concerned State/Union Territory and Central
Government, a list of persons to whom the machines have
been sold, in accordance with Rule 3-A(2) of the Act.
6. There will be a direction to all Genetic Counselling Centres,
Genetic Laboratories, Clinics etc. to maintain forms A, E, H
and other Statutory forms provided under the Rules and if
these forms are not properly maintained, appropriate
action should be taken by the authorities concerned.Page 9
9
7. Steps should also be taken by the State Government and
the authorities under the Act for mapping of all registered
and unregistered ultra-sonography clinics, in three months
time.
8. Steps should be taken by the State Governments and the
Union Territories to educate the people of the necessity of
implementing the provisions of the Act by conducting
workshops as well as awareness camps at the State and
District levels.
9. Special Cell be constituted by the State Governments and
the Union Territories to monitor the progress of various
cases pending in the Courts under the Act and take steps
for their early disposal.
10. The authorities concerned should take steps to seize
the machines which have been used illegally and contrary
to the provisions of the Act and the Rules there under and
the seized machines can also be confiscated under the
provisions of the Code of Criminal Procedure and be sold,
in accordance with law.
11. The various Courts in this country should take steps
to dispose of all pending cases under the Act, within a
Page 10
10
period of six months. Communicate this order to the
Registrars of various High Courts, who will take
appropriate follow up action with due intimation to the
concerned Courts.
All the State Governments are directed to file a status
report within a period of three months from today.
Ordered accordingly.
............................................J.
(K. S. RADHAKRISHNAN)
New Delhi,
March 04, 2013.Page 11
11
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY CIVIL WRIT JURISDICTION
WRIT PETITION (CIVIL) NO. 349 OF 2006
Voluntary Health Association of Punjab ... Petitioner
Versus
Union of India and others ... Respondents
O R D E R
Dipak Misra, J.
I respectfully concur with the delineation and the
directions enumerated in seriatim by my respected
learned Brother. However, regard being had to the
signification of the issue, the magnitude of the problem in
praesenti, and the colossal cataclysm that can visit this
country in future unless apposite awareness is spread, I
intend to add something pertaining to the direction No. (8).
2. To have a comprehensive view I think it seemly to
reproduce the said direction: -Page 12
12
“8. Steps should be taken by the State
Governments and the Union Territories to
educate the people of the necessity of
implementing the provisions of the Act by
conducting workshops as well as awareness
camps at the State and District levels.”
3. It is common knowledge that the State Governments
and Union Territories some times hold workshops as
well as awareness camps at the State and District
levels which have the characteristic of a routine
performance, sans sincerity, bereft of seriousness
and shorn of meaning. It is embedded on dataorientation.
It does not require Solomon’s wisdom to
realize that there has not yet been effective
implementation of the provisions of the Act, for there
has not only been total lethargy and laxity but also
failure on the part of the authorities to give accent on
social, cultural, psychological and legal awareness
that a female foetus is not to be destroyed for many a
reason apart from command of the law. Needless to
emphasise, there has to be awareness of the legal
provisions and the consequences that have been
provided for violation of the Pre-Conception and Pre-
Page 13
13
Natal Diagnostic Techniques (Prohibition on SexSelection) Act, 1994 (for brevity “the Act”) but, a
significant one, the awareness in other spheres are
absolutely necessitous for concretizing the purposes
of the Act.
4. Be it noted, this is not for the first time that this Court
is showing its concern. It has also been done before.
In Centre for Enquiry into Health and Allied
Themes (CEHAT) and others v. Union of India
and others1
, the two-Judge Bench commenced the
judgment stating that the practice of female
infanticide still prevails despite the fact that the
gentle touch of a daughter and her voice has a
soothing effect on the parents. The Court also
commented on the immoral and unethical part of it
as well as on the involvement of the qualified and
unqualified doctors or compounders to abort the
foetus of a girl child. It is apposite to state here that
certain directions were given in the said decision.
1 (2001) 5 SCC 577Page 14
14
5. Female foeticide has its roots in the social thinking
which is fundamentally based on certain erroneous
notions, ego-centric traditions, pervert perception of
societal norms, and obsession with ideas which are
totally individualistic sans the collective good. All
involved in female foeticide deliberately forget to
realize that when the foetus of a girl child is
destroyed, a woman of future is crucified. To put it
differently, the present generation invites the
sufferings on its own and also sows the seeds of
suffering for the future generation, as in the ultimate
eventuate, the sex ratio gets affected and leads to
manifold social problems. I may hasten to add that
no awareness campaign can ever be complete unless
there is real focus on the prowess of women and the
need for women empowerment.
6. On many an occasion this Court has expressed its
anguish over this problem in many a realm. Dealing
with the unfortunate tradition of demand of dowry
from the girl’s parents at the time of marriage
Page 15
15
despite the same being a criminal offence, a two Judge Bench in State of H.P. v. Nikku Ram and
others2
 has expressed its agony thus: -
“Dowry, dowry and dowry. This is the
painful repetition which confronts, and at
times haunts, many parents of a girl child
in this holy land of ours where, in good old
days the belief was :
“यत्र ना्यरस्तुपूज्यन्ते रमन्ते
तत्र देवता:” [“Yatra naryastu pujyante
ramante tatra dewatah”] (where woman is
worshipped, there is abode of God). We
have mentioned about dowry thrice,
because this demand is made on three
occasions: (i) before marriage; (ii) at the
time of marriage; and (iii) after the
marriage. Greed being limitless, the
demands become insatiable in many
cases, followed by torture on the girl,
leading to either suicide in some cases or
murder in some.”
The aforesaid passage clearly reflects the degree of
anguish of this Court in regard to the treatment meted out
to the women in this country.
7. It is not out of place to state here that the restricted
and constricted thinking with regard to a girl child
2 (1995) 6 SCC 219Page 16
16
eventually leads to female foeticide. A foetus in the
womb, because she is likely to be born as a girl child,
is not allowed to see the mother earth. In M.C.
Mehta v. State of Tamil Nadu and others3
, a
three-Judge Bench, while dealing with the magnitude
of the problem in engagement of the child labour in
various hazardous factories or mines, etc., speaking
through Hansaria, J., commenced the judgment thus:
-
“I am the child.
All the word waits for my coming.
All the earth watches with interest to see
what I shall become.
Civilization hangs in the balance.
For what I am, the world of tomorrow will
be.
I am the child.
You hold in your hand my destiny.
You determine, largely, whether I shall
succeed or fail,
Give me, I pray you, these things that make
for happiness.
3 AIR 1997 SC 699Page 17
17
Train me, I beg you, that I may be a
blessing to the world.”
8. The aforesaid lines from Mamie Gene Cole were
treated as an appeal by this Court and the Bench
reproduced the famous line from William Wordsworth
“child is the father of the man”. I have reproduced
the same to highlight that this Court has laid special
emphasis on the term “child” as a child feels that the
entire world waits for his/her coming. A female child,
as stated earlier, becomes a woman. Its life-spark
cannot be extinguished in the womb, for such an act
would certainly bring disaster to the society. On such
an act the collective can neither laugh today nor
tomorrow. There shall be tears and tears all the way
because eventually the spirit of humanity is
comatosed.
9. Vishwakavi Rabindranath Tagore, while speaking
about a child, had said thus: -
“Every child comes with the message that
God is not yet discouraged of man.”Page 18
18
10. Long back, speaking about human baby, Charles
Dickens had said thus : -
“Every baby born into the world is a finer
one than the last.”
11. A woman has to be regarded as an equal partner in
the life of a man. It has to be borne in mind that she
has also the equal role in the society, i.e., thinking,
participating and leadership. The legislature has
brought the present piece of legislation with an
intention to provide for prohibition of sex selection
before or after conception and for regulation of prenatal diagnostic techniques for the purposes of
detecting genetic abnormalities or metabolic
disorders or chromosomal abnormalities or certain
congenital malformations or sex-linked disorders and
for the prevention of their misuse for sex
determination leading to female foeticide. The
purpose of the enactment can only be actualised and
its object fruitfully realized when the authorities
under the Act carry out their functions with devotion,Page 19
19
dedication and commitment and further there is
awakened awareness with regard to the role of
women in a society.
12. It would not be an exaggeration to say that a society
that does not respect its women cannot be treated to
be civilized. In the first part of the last century Swami
Vivekanand had said: -
“Just as a bird could not fly with one wing
only, a nation would not march forward if
the women are left behind.”
13. When a female foeticide takes place, every woman
who mothers the child must remember that she is
killing her own child despite being a mother. That is
what abortion would mean in social terms. Abortion
of a female child in its conceptual eventuality leads to
killing of a woman. Law prohibits it; scriptures forbid
it; philosophy condemns it; ethics deprecate it,
morality decries it and social science abhors it.
Henrik Ibsen emphasized on the individualism of
woman. John Milton treated her to be the best of allPage 20
20
God’s work. In this context, it will be appropriate to
quote a few lines from Democracy in America by
Alexis De Tocqueville: -
“If I were asked ... to what the singular
prosperity and growing strength of that
people [Americans] ought mainly to be
attributed, I should reply: to the superiority
of their women.”
14. At this stage, I may with profit reproduce two
paragraphs from Ajit Savant Majagvai v. State of
Karnataka4
: -
“3. Social thinkers, philosophers,
dramatists, poets and writers have
eulogised the female species of the human
race and have always used beautiful
epithets to describe her temperament and
personality and have not deviated from
that path even while speaking of her odd
behaviour, at times. Even in sarcasm, they
have not crossed the literary limit and have
adhered to a particular standard of nobility
of language. Even when a member of her
own species, Madame De Stael, remarked
“I am glad that I am not a man; for then I
should have to marry a woman”, there was
4 (1997) 7 SCC 110Page 21
21
wit in it.
When Shakespeare wrote, “Age
cannot wither her; nor custom stale, her
infinite variety”, there again was wit.
Notwithstanding that these writers have
cried hoarse for respect for “woman”,
notwithstanding that Schiller said “Honour
women! They entwine and weave heavenly
roses in our earthly life” and
notwithstanding that the Mahabharata
mentioned her as the source of salvation,
crime against “woman” continues to rise
and has, today undoubtedly, risen to
alarming proportions.
4. It is unfortunate that in an age where
people are described as civilised, crime
against “female” is committed even when
the child is in the womb as the “female”
foetus is often destroyed to prevent the
birth of a female child. If that child comes
into existence, she starts her life as a
daughter, then becomes a wife and in due
course, a mother. She rocks the cradle to
rear up her infant, bestows all her love on
the child and as the child grows in age, she
gives to the child all that she has in her
own personality. She shapes the destiny
and character of the child. To be cruel to
such a creature is unthinkable. To torment
a wife can only be described as the most
hated and derisive act of a human being.”
[Emphasis supplied]Page 22
22
15. In Madhu Kishwar v. State of Bihar5
 this Court
had stated that Indian women have suffered and are
suffering discrimination in silence. Self-sacrifice and
self-denial are their nobility and fortitude and yet
they have been subjected to all inequities, indignities,
inequality and discrimination.
16. The way women had suffered has been aptly
reflected by an author who has spoken with quite a
speck of sensibility: -
“Dowry is an intractable disease for women,
a bed of arrows for annihilating self-respect,
but without the boon of wishful death.”
17. Long back, Charles Fourier had stated “The extension
of women’s rights is the basic principle of all social
progress”.
18. Recapitulating from the past, I may refer to certain
sayings in the Smritis which put women in an
elevated position. This Court in Nikku Ram’s case
(supra) had already reproduced the first line of the
5 AIR 1996 SC 1864Page 23
23
“Shloka”. The second line of the same which is also
significant is as follows: -
“यत्र तास्तुन पूज्यन्ते स्वारस्तत्राफला: िक्रया:”
[Yatra tāstu na pūjyante sarvāstatraphalāh kriyāh]
A free translation of the aforesaid is reproduced
below:-
“All the actions become unproductive in a
place, where they are not treated with
proper respect and dignity.”
19 Another wise man of the past had his own way of
putting it:
“भतृभातृिपतृज ाितशवशू शवशु रदे वरै : |
बन धुिबशच िस्त्रय: पूज्या: भूषणाचछादनाशनै: ||”
[Bhārtr bhratr pitrijnāti śwaśrūswaśuradevaraih|
Bandhubhiśca striyah pūjyāh bhusnachhādanāśnaih||].
A free translation of the aforesaid is as follows:-
“The women are to be respected equally
on par with husbands, brothers, fathers,
relatives, in-laws and other kith and kin
and while respecting, the women gifts
like ornaments, garments, etc. should be
given as token of honour.”
Page 24
24
20. Yet again, the sagacity got reflected in following
lines: -
“अतुलं यत्र तत्तेज: स्वरदेव रीरजम शशशशश श |
एकस्थं तदभून्नारी व्याप्तलोकत्रयं ित्वषा ||”
[Atulam yatra tattejah śarvadevasarirajam| Ekastham
tadabhūnnāri vyāptalokatrayam tvisā||]
A free translation of the aforesaid is reproduced
below:-
“The incomparable valour (effulgence) born
from the physical frames of all the gods,
spreading the three worlds by its radiance
and combining together took the form of a
woman.”
21. From the past, I travel to the present and
respectfully notice what Lord Denning had to say about
the equality of women and their role in the society: -
“A woman feels as keenly, thinks as
clearly, as a man. She in her sphere
does work as useful as man does in his.
She has as much right to her freedom –
to develop her personality to the full as a
man. When she marries, she does not
become the husband’s servant but his
equal partner. If his work is more
Page 25
25
important in life of the community, her’s
is more important of the family. Neither
can do without the other. Neither is
above the other or under the other.
They are equals.”
22. I have referred to certain pronouncements of
this Court, the sayings of the sagacious ones, thinkers,
poets, philosophers and jurists about the child and
women only to emphasise that they play a seminal role
in the society. The innocence of a child and the
creative intelligence of a woman can never ever be
brushed aside or marginalized. Civilization of a country
is known how it respects its women. It is the requisite
of the present day that people are made aware that it
is obligatory to treat the women with respect and
dignity so that humanism in its conceptual essentiality
remains alive. Each member of the society is required
to develop a scientific temper in the modern context
because that is the social need of the present. A
cosmetic awareness campaign would never sub serve
the purpose. The authorities of the Government, the
Non-Governmental Organisations and other volunteers
Page 26
26
are required to remember that there has to be
awareness camps which are really effective. The
people involved with the same must take it up as a
service, a crusade. They must understand and accept
that it is an art as well as a science and not simple
arithmetic. It cannot take the colour of a routine
speech.
The awareness camps should not be founded
on the theory of Euclidian geometry. It must engulf the
concept of social vigilance with an analytical mind and
radiate into the marrows of the society. If awareness
campaigns are not appositely conducted, the needed
guidance for the people would be without meaning and
things shall fall apart and everyone would try to take
shelter in cynical escapism. It is difficult to precisely
state how an awareness camp is to be conducted. It
will depend upon what kind and strata of people are
being addressed to.
The persons involved in such
awareness campaign are required to equip themselves
with constitutional concepts, culture, philosophy,
religion, scriptural commands and injunctions, the
mandate of the law as engrafted under the Act and
Page 27
27
above all the development of modern science. It needs
no special emphasis to state that in awareness camps
while the deterrent facets of law are required to be
accentuated upon, simultaneously the desirability of
law to be followed with spiritual obeisance, regard
being had to the purpose of the Act, has to be stressed
upon. The seemly synchronization shall bring the
required effect. That apart, documentary films can be
shown to highlight the need; and instill the idea in the
mind of the public at large, for when mind becomes
strong, mountains do melt. The people involved in the
awareness campaigns should have boldness and
courage. There should not be any iota of confusion or
perplexity in their thought or action. They should treat
it as a problem and think that a problem has to be
understood in a proper manner to afford a solution.
They should bear in mind that they are required to
change the mindset of the people, the grammar of the
society and unacceptable beliefs inherent in the
populace. It should be clearly spelt out that female
Page 28
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foeticide is the worst type of dehumanisation of the
human race. 
23. I have highlighted the aforesaid aspects so that
when awareness campaigns are held, they are kept in
view, for that is the object and purpose to have real
awareness. 
24. The matter be listed as directed.
.............................J.
[Dipak Misra]
New Delhi;
March 04, 2013.