Special Powers in Case of Urgency: Section 40

Every acquisition statute keeps an emergency power, and every abuse of Indian acquisition law before 2013 came through the old one: Section 17 of the 1894 Act, urgency as a label any project could wear. Section 40 is the chastened successor: three narrow heads, one of them needing Parliament, a thirty-day floor, an 80% tender before possession, a 75% premium after, and the minimum area rule throughout. This note covers the power, its costs, and the review that polices it.

1. The Power and Its Heads

The direction: in cases of urgency, the appropriate Government may direct the Collector, though no award has been made, to take possession of any land needed for a public purpose, on the expiration of thirty days from the publication of the Section 21 notice, whereupon the land vests absolutely in the Government, free from all encumbrances.
The heads: the power is confined to the minimum area required for: the defence of India or national security; emergencies arising out of natural calamities; and any other emergency with the approval of Parliament, the third head's parliamentary lock being the 2013 Act's direct answer to the township and bus-depot "urgencies" of the old regime.
The building safeguard: possession of a building or part of a building is not taken without giving its occupier at least forty-eight hours' notice, or such longer period as may be reasonably sufficient to enable the occupier to remove movable property without unnecessary inconvenience, even emergencies knock.

2. The Price of Speed

Discipline	Content
The 80% tender	Before taking possession, the Collector tenders payment of eighty per cent of the compensation for the land as estimated by him to the persons interested
The 75% premium	An additional seventy-five per cent of the total compensation is paid for urgency acquisitions, except projects concerning the sovereignty and integrity of India, the security and strategic interests of the State, or relations with foreign States
The SIA exemption, if taken	Section 9 permits, but does not require, exemption from the Social Impact Assessment for Section 40 acquisitions
The award still comes	The Section 23 and Section 31 awards follow in course; the 12% additional amount runs to the possession date, Section 80 interest runs from it on anything unpaid, and the balance is squared on the award
What never bends	Public purpose, the compensation formula, the R&R framework, the Scheduled Areas consent under Section 41, and Article 300A's floor

3. Review: The Colourability Doctrine

The 1894 Act's urgency clause produced the richest abuse jurisprudence in acquisition law, and it carries forward as the review standard. Radhy Shyam v. State of U.P. (2011) and Dev Sharan v. State of U.P. (2011) quashed acquisitions where urgency was invoked to skip the hearing for planned development that had gestated for years: urgency must be a real, demonstrable emergency, contemporaneous material must show the application of mind, and the elimination of the citizen's hearing is justified only where the delay of a hearing would itself defeat the purpose. Under the 2013 design the doctrine has less room to be needed, the heads are enumerated and the third requires Parliament, but it polices what remains: whether the project genuinely falls within a head, whether the area taken is the minimum required, and whether the Section 9 exemption, if exercised, was a considered act rather than a reflex. The narrowing of this power is, with the consent requirement and the solatium, one of the three changes that best measure the distance between 1894 and 2013: what was once the State's favourite shortcut is now a priced, enumerated, reviewable exception.

⚠ Key point

Section 40: urgency possession thirty days after the Section 21 notice, before any award, vesting the land absolutely, but only for the minimum area and only for defence and national security, natural-calamity emergencies, or another emergency approved by Parliament. The price: 80% of estimated compensation tendered before possession, an additional 75% of total compensation (sovereignty, security and foreign-relations projects excepted), 48 hours' notice before taking any occupied building, with the awards, the 12% amount and Section 80 interest completing the account. The Radhy Shyam and Dev Sharan colourability doctrine remains the review standard.

4. Related Topics and Provisions

SIA exemption (Topic 22): Section 9's companion discretion
Possession in order (Topic 61): the rule this excepts
Compensation before the award (Topic 44): the money mechanics
Defects of the 1894 Act (Topic 3): the history that narrowed the power