The Supreme Court Bench comprising of Justice S. Abdul Nazeer, Justice A.S. Bopanna, and Justice V. Ramasubramanian clarified the applicability of Section 11A vis-à-vis Section 17(3A) of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) and held that compliance under Section 17(3A) is mandatory under all circumstances i.e. even in urgency matters where the appropriate government has invoked its special powers. (M/s Delhi Airtech Services Pvt. Ltd. & Anr. V. State of U.P & Anr. Civil Appeal No. 24 of 2009)
Facts of the Case
To implement a planned Industrial layout, a project envisaged by the State of UP, NOIDA had to acquire the requisite land. To acquire the said land, the State of UP invoked special powers vide Notification dated 17.04.2002 under Section 4(1) read with Section 17(1) and (4) of the Act to dispense with the procedure under Section 5A.
Another notification dated 22.08.2002 was published stating that the area was required by the Government for its project along with a declaration that after the expiry of 15 days, possession of the said acquired land will be taken as per Section 9(1). The said land included “Abadi land” which was claimed to be owned by the Appellant and gave rise to the present case.
Contentions of the Appellant:
The requirement of Section 17(3A) i.e. tendering and paying 80% of the estimated compensation and Section 11A i.e. passing of an award within 2 years from the date of the declaration under Section 6 is not complied with by the Respondents and therefore the acquisition should lapse and the land should revert to the Appellant.
History of the Case:
The Hon’ble High Court of Allahabad dismissed the appeal by pronouncing that the requirements of estimated compensation under Section 17(3A) of the Act are not mandatory and that Section 11A is not applicable to acquisition proceedings under Section 17.
An Appeal from the decision of the High Court went to the Hon’ble Supreme Court which was first heard by the division bench comprising Justice A.K. Ganguly and Justice Swatanter Kumar. Both had divergent opinions due to which the matter was referred to a larger bench and hence the present appeal.
Supreme Court’s observation
On the question of whether the requirement of Section 17(3A) is mandatory, the Court opined that firstly Section 17(3A) uses the word “shall” and that the compensation is to be paid “before taking possession”, therefore, there is no scope for any discretion with the acquiring authority. Secondly, the last word of Section 17(1) is “thereupon” which is used in reference to vesting and correlation with payment and possession as given in Section 17(3A). Hence 17(3A) is a sine qua non for taking possession. Since under urgency matters, requirements under Section 5A are dispensed with and possession is permitted even before passing of an award under Section 11, Section 17(3A) is a prerequisite condition and it is mandatory even if special powers are invoked during urgency.
On the question of whether Section 11A applies to the acquisition proceedings under Section 17(3A), the Court noted that “vesting absolutely” and lapsing do not go hand in hand and hence are mutually exclusive. Land vests completely with the government for public purposes as per Section 17 only when possession is taken and 80% of estimated compensation is tendered and paid before possession. Hence section 11A even though applicable will be ineffective. The only available right of the land loser would be to enforce the passing of the award which will include a balance of 20% of the compensation and to get adequately compensated for delay even if the award is passed after 2 years.
Simply put, Section 11A applies if Section 17(3A) is not complied with and Section 11A will be ineffective if Section 17(3A) requirements are fulfilled.
In cases when Section 17(3A) is not complied with, the Court held that the possession will be illegal and that a legal fiction will be created, under which, the acquisition would lose Section 17 character and as a result, it will lapse if the award is not passed within 2 years from the date of the declaration provided that the land loser challenges the legality of the acquisition and/or taking possession. If the land loser concedes, the possession will not per se become illegal and vesting will be considered to be absolute.
The Court finally concluded that the benefit of Sections 11A and 17(3A) can only be invoked by the land loser and not the acquiring authority or any other beneficiary. It also clarified that the application would be prospective to cases under Land Acquisition Act, 1894, or any other enactment relating to land containing pari materia provisions.
Judgment
In the present case, if the circumstances would have been normal, the acquisition would have lapsed, however since the land owned by the Appellants was not a stand-alone one and already a Mandi was constructed, the Court molded the relief and granted adequate compensation to the Appellant.
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(With input from news agency language)
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