REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 24 OF 2009
M/s Delhi Airtech Services Pvt. Ltd & Anr. .… Appellant(s)
Versus
State of U.P & Anr. …. Respondent(s)
J U D G M E N T
A.S. BOPANNA, J.
This appeal has a chequered history. The appeal was
1.
heard by a Bench consisting of two Hon’ble Judges (Justice
A.K. Ganguly and Justice Swatanter Kumar) and was decided
by the Judgment dated 18.08.2011 with divergent opinion. In
Signature Not Verified
the process, after consideration, Hon’ble Justice A.K. Ganguly
Digitally signed by
DEEPAK SINGH
Date: 2022.10.15
10:22:53 IST
Reason:
arrived at the conclusion that taking over possession of the
1
land without complying the requirement under Section 17(3A)
of the Land Acquisition Act, 1894 (for short ‘Act, 1894’) is
clearly illegal and in violation of the statutory provision which
automatically violates the constitutional guarantee under
Article 300A of the Constitution. However, on taking note
that the land had been utilised and developed by the
beneficiary of the acquisition, had allowed the retention of the
land by directing to pass an award by construing the date of
filing the writ petition i.e. 01.03.2006 as the date of Section 4
notification to reckon the market value as against the actual
date of notification. Hence allowed the appeal in those terms.
2. On the other hand, Hon’ble Justice Swatanter Kumar,
however, disagreed with the said conclusion and for the
separate reasons assigned by the learned Judge, arrived at
the conclusion that Section 11A of Act, 1894 has no
application to acquisition under Section 17 of Act, 1894. It
was further held that the default in complying with Section
17(3A) of Act, 1894 does not invalidate or vitiate the entire
acquisition proceedings. The learned Judge while deciding so
had however misconstrued that 80% of the estimated value in
terms of subsection (3A) of Section 17 had been paid to the
2
land loser and in that context held that the interest provided
in terms of Section 34 will be payable. In that view, the
learned Judge ordered dismissal of the appeal in terms of the
directions issued.
In that backdrop, in view of the divergence of opinion
3.
between the learned Judges, they had ordered the matter to
be placed before Hon’ble the Chief Justice of India for
reference to a larger Bench to resolve the conflict. It is in that
circumstance Hon’ble the Chief Justice has ordered the
matter to be placed before a Bench consisting of three Judges.
However, no specific question has been formulated and
referred for decision by a threemember Bench. Hence, we
have heard the matter based on the factual aspects involved
in this case denovo, so as to determine the legal aspects
which touch upon the same.
4. It would therefore be necessary for us to at the outset
take note of the factual matrix involved in this case. The New
Okhla Industrial Development Authority (NOIDA) –
Respondent No.2 was to implement a planned Industrial
layout in Gautam Budh Nagar District for which purpose the
requisite land was to be acquired. The project was envisaged
3
by the State of U.P–Respondent No.1 as a part of planned
Industrial Development. Hence, Respondent No.1 being the
appropriate Government, issued the Notification dated
17.04.2002 invoking the special power due to urgency. The
Notification was therefore issued under Section 4(1) read with
Section 17(1) and (4) of Act, 1894, whereby the requirement of
procedure under Section 5A of the Act, 1894 was dispensed.
Pursuant thereto, the declaration under Section 6 of the Act,
1894 was notified and published on 22.08.2002 declaring that
the area was required by the Government for planned
industrial development. It was also stated that after the
expiry of 15 days from the date of publication of notification
under subsection (1) of Section 9 of the Act, 1894, possession
of the acquired land will be taken.
5. In the large extents of land that was notified, an extent
measuring 2061/30 Bighas situated in village Haldauni,
Tehsil and Pargana Dadri, District Gautam Budh Nagar, an
‘Abadi’ land was also included. The Appellant, a company
incorporated under the provisions of the Companies Act, 1956
claims to be the owner of the said small extent of land. The
Appellant alleges that they were not served with the notice
4
contemplated under Section 9(1) of Act, 1894. However, it is
not disputed that possession was nevertheless taken on
04.02.2003. But the grievance raised by the Appellant is that
neither the initial requirement of tendering and paying 80% of
the estimated compensation contemplated under subsection
(3A) to Section 17 of Act, 1894 was complied nor was the
requirement of Section 11A of the Act, 1894 to pass the award
within two years from the date of declaration under Section 6
of Act, 1894 complied. In that view, the Appellant filed the
writ petition on 01.03.2006 since more than three and half
years had elapsed and neither of the provisions had been
complied. The appellant therefore contended that the
acquisition in so far as the land belonging to the Appellant
has lapsed and the same should revert to the Appellant.
6. The High Court having considered the matter was of
the opinion that Section 11A of Act, 1894 is not attracted to
the proceedings for acquisition in exercise of the power under
Section 17 of Act, 1894. In that regard, the High Court relied
on the decision of this Court in Satendra Prasad Jain Vs.
(1993) 4 SCC 369 and dismissed the writ
State of U.P
5
petition by order dated 28.08.2006, which has given rise to
the above appeal which was earlier heard by a Bench
consisting of two Hon’ble Judges who have differed as noted
supra. While taking note of the decision in Satendra Prasad
, rendered by a Bench of three Hon’ble Judges, Justice
Jain
A.K. Ganguly has found it to be subsilentio and per incuriam
in the face of the provision contained in the statute. Justice
Swatanter Kumar, the other Hon’ble Judge however relied on
the decision in Satendra Prasad Jain (supra) holding that
compliance with Section 17(3A) of the Act, 1894 is not
mandatory. Hence even in the circumstance of non
compliance, the benefit of interest as provided in Section 34 of
the Act, 1894 was held as the entitlement. Section 11A of Act,
1894 was also held not applicable to the acquisition under
Section 17 of Act, 1894. Though detailed reasons have been
tendered by both the learned Judges for their respective
opinion and has also been referred to by the learned Senior
Counsel for the parties, we do not propose to go into the same
since the entire matter has been placed before us and the
6
case put forth by the parties is to be independently examined
by us.
7. In the above background we have heard Shri Sudhir
Chandra, learned senior counsel for the appellant, Shri
Ravindra Kumar, learned senior counsel for the Respondent
No.1, Shri Ravindra Raizada, learned senior counsel for
Respondent No.2, exhaustively and have perused the appeal
papers.
In the light of the contentions urged, the following
8.
questions arise for our consideration.
a. Is the requirement to tender payment of 80% of the
estimated compensation as contemplated under
subsection(3A) to Section 17 of Act, 1894,
mandatory to ensure absolute vesting of the notified
land.
b. Whether the requirement to pass the award within
the time frame contemplated under Section 11A
applicable to the acquisition notified under Section
17 of Act, 1894.
c. Can the case in Satendra Prasad Jain (supra) be
considered as a decision laying down ratio decidendi
on the above questions?
7
9. In order to decide the scope and ambit of the
provisions under consideration it would be appropriate to
reproduce Section 11A and Section 17 of the Act, 1894 in its
entirety and keep the same in perspective. Needless to
mention that if the plain meaning of the provision does not
admit of any ambiguity no other external aid will be necessary
to interpret the provision except to give it the plain meaning.
The relevant provision read as hereunder:
“ Section 11A Period within which an award
shall be made (1) The Collector shall make an
award under section 11 within a period of two
years from the date of the publication of the
declaration and if no award is made within that
period, the entire proceeding for the acquisition
of the land shall lapse:
Provided that in a case where the said
declaration has been published before the
commencement of the Land Acquisition
(Amendment) Act, 1984, the award shall be
made within a period of two years from such
commencement.
Explanation In computing the period of two
years referred to in this section, the period
during which any action or proceeding to be
taken in pursuance of the said declaration is
stayed by an order of a Court shall be excluded.”
“Section 17 Special powers in case of
urgency – (1) In cases of urgency whenever the
[appropriate Government], so directs, the
Collector, though no such award has been
made, may, on the expiration of fifteen days
8
from the publication of the notice mentioned in
section 9, subsection (1), [take possession of
any land needed for a public purpose]. Such
land shall thereupon [vest absolutely in the
[Government], free from all encumbrances.
(2) Whenever, owing to any sudden change
in the channel of any navigable river or other
unforeseen emergency, it becomes necessary for
any Railway Administration to acquire the
immediate possession of any land for the
maintenance of their traffic or for the purpose of
making thereon a riverside or ghat station, or of
providing convenient connection with or
accesses to any such station, [or the appropriate
Government considers it necessary to acquire
the immediate possession of any land for the
purpose of maintaining any structure or system
pertaining to irrigation, water supply, drainage,
road communication or electricity,] the Collector
may, immediately after the publication of the
notice mentioned in subsection (1) and with the
previous sanction of the [appropriate
Government], enter upon and take possession of
such land, which shall thereupon [vest
absolutely in the [Government]] free from all
encumbrances:
Provided that the Collector shall not take
possession of any building or part of a building
under this subsection without giving to the
occupier thereof at least fortyeight hours’ notice
of his intention so to do, or such longer notice as
may be reasonably sufficient to enable such
occupier to remove his movable property from
such building without unnecessary
inconvenience.
(3) In every case under either of the
preceding subsections the Collector shall at
that time of taking possession offer to the
persons interested compensation for the
standing crops and trees (if any) on such land
and from any other damage sustained by them
9
caused by such sudden dispossession and not
excepted in section 24; and, in case such offer is
not accepted, the value of such crops and trees
and the amount of such other damage shall be
allowed for in awarding compensation for the
land under the provisions herein contained.
[(3A) Before taking possession of any land
under subsection (1) or subsection (2), the
Collector shall, without prejudice to the
provisions of subsection (3)
(a) tender payment of eighty per centum of
the compensation for such land as
estimated by him to the persons interested
entitled thereto, and
(b) pay it to them, unless prevented by
some one or more of the contingencies
mentioned in section 31, subsection (2),
and where the Collector is so prevented,
the provisions of section 31, subsection (2)
(except the second proviso thereto), shall
apply as they apply to the payment of
compensation under that section.
(3B) The amount paid or deposited under
section (3A), shall be taken into account for
determining the amount of compensation
required to be tendered under section 31,
and where the amount so paid or deposited
exceeds the compensation awarded by the
Collector under section 11, the excess may,
unless refunded within three months from
the date of Collector's award, be recovered
as an arrear of land revenue].
[(4) In the case of any land to which, in the
opinion of the [appropriate Government],
the provisions of subsection (1) or sub
section (2) are applicable, the [appropriate
Government] may direct that the provisions
of section 5A shall not apply, and, if it does
so direct, a declaration may be made under
10
section 6 in respect of the land at any time
[after the date of the publication of the
notification] under section 4, subsection
(1).”
10. At the outset, the learned senior counsel for
Respondent No.1, in an attempt to sustain the acquisition
strenuously contended with regard to eminent domain of the
State in the matter of acquisition of land for public purpose
and relied upon the case in Coffee Board, Karnataka,
Bangalore Vs. Commissioner of Commercial Taxes,
Karnataka and Others (1988) 3 SCC 263. To be fair to him,
though we have noted, we are however clear on that aspect
that the State has the power. But the position of law is also
well established that in view of Articles 300A and 31A of the
Constitution, the owner of land can be divested only in
accordance with law after appropriately compensating if such
land is required by the State for public purpose. Since such
power of eminent domain is not in dispute, we need not advert
to the decision referred in detail.
In the normal circumstance, the process for
11.
acquisition would commence with the notification under
11
Section 4, after which the procedure under Section 5A is
complied. The declaration under Section 6 is thereafter made,
when the requirement of the land for public purpose is
confirmed. Thereafter, the process for determining the
compensation and taking possession through Section 11 and
Section 16 of Act, 1894 is contemplated, which is undertaken
after issue of notice under Section 9 of Act, 1894. In so far as
the said process, in order to protect the interest of the land
loser to be compensated within a time frame, failing which, to
give him benefit of his own land, Section 11A was inserted by
Act 68 of 1984, w.e.f 24.09.1984. The said provision leaves
no ambiguity whatsoever that if the award is not made within
the period of two years from the date of publication of the
declaration under Section 6 of Act, 1894, the entire
proceedings will stand lapsed. The only option for the
acquiring authority if the land is still required for the public
purpose is to notify afresh from the stage of issuing
notification under Section 4 of Act, 1894. The computation of
two years would however exclude the period if the process was
stayed by an order of the Court. This aspect has been
clarified by this Court in Yusufbhai Noormohmed
12
Nandoliya Vs. State of Gujarat and Anr. (1991) 4 SCC 531,
placed for our consideration by the learned senior counsel for
the appellant.
So far so good, the question however is as to whether
12.
the rigour of Section 11A of Act, 1894 will apply when the
appropriate Government exercises its special power in cases of
urgency, which does not contemplate the same procedure as
in the normal acquisition process noted above. In this regard
also this Court in
Yusufbhai Noormohmed Nandoliya
(supra) has held Section 11A is applicable to acquisition
under Section 17, though without detailed discussion. From
the provision of Section 17 reproduced supra, it is seen that
the acquiring authority will be entitled to take possession
without taking recourse to the procedure which is otherwise
provided under Section 16 of Act, 1894 wherein it
contemplates the passing of an award before taking
possession. But under Section 17 of Act, 1894, possession is
permitted to be taken even before the award is passed.
Though such power was absolute earlier, subsection (3A) was
inserted by Act 68 of 1984, w.e.f 24.09.1984 whereby the pre
condition imposed before taking possession is that 80% of the
13
estimated compensation is to be tendered and paid to the
persons interested in the land. The tendered amount should
be paid unless prevented by one or more of the contingencies
mentioned in Section 31(2) of Act, 1894. It would necessarily
mean that Section 31 will come into play and the 80% of the
estimated compensation amount, though no award is passed,
will have to be tendered and paid to the persons interested. If
tendered, but not able to pay due to valid reasons, it is to be
deposited in Court. The word employed in subsection (3A) of
Section 17 of the Act, 1894 is “shall” and it is to be tendered
and paid “before taking possession”. Hence it cannot be
understood as providing any discretion to the acquiring
authority. In fact, the last sentence of subsection (1) of
Section 17 uses the word “thereupon” with respect to vesting.
This word “thereupon” is correlated to taking possession and
payment in terms of subsection (3A) is a sine qua non for
taking possession. Therefore (1) payment of 80% (2) taking
over possession thereafter and (3) vesting of land in the
government take place in a sequence. Absent anyone of these
in the sequence, the emergency provision fails. It is a pre
requisite condition to acquire and take possession of the land
14
since such acquisition is permitted by exempting the
requirement of the procedure under Section 5A and
possession is permitted to be taken prior to an award being
passed under Section 11 of Act, 1894.
That apart, subsection (4) to Section 17 of Act, 1894
13.
provides the discretion to the appropriate Government to
waive the application of the provisions of Section 5A and make
the declaration under Section 6 in respect of the land at any
time after the initial publication of the notification under
Section 4 of Act, 1894. This makes it clear that even in a case
where the appropriate Government exercises its power to
invoke the special power in case of urgency, all other
procedure contemplated under the Act except the requirement
under Section 5A of Act, 1894 is to be complied. Therefore,
after issue of the initial notification under Section 4 read with
Section 17(1) and on taking possession after issue of notice
under Section 9, the declaration under Section 6 of Act, 1894
is to be made so as to complete the process of acquisition,
which indicates that the objection to acquisition of land shall
alone stand muted and not the right to compensation which is
15
to be paid in strict compliance of the requirement in that
regard.
14. Hence, insofar as payment of compensation for the
acquired land even if it is acquired under Section 17 of Act,
1894, it is evident that an award as contemplated under
Section 11 of Act, 1894 is required to be passed so as to
determine the compensation payable. Since subsection (3A)
to Section 17 mandates payment of 80% of the estimated
compensation, such amount paid would get included in the
amount to be determined and offered through the award. In
that context it is clear that Section 17(4) contemplates, that
the declaration is to be made under Section 6 even when an
urgency provision is invoked and an award under Section 11
is to be passed to determine the compensation.
15. However, on a careful composite perusal of all the
provisions noted above, it is evident that the requirement to
tender and pay 80% of the estimated compensation before
taking possession assumes significance so as to carve out an
exception for nonapplicability of ‘lapsing’ as contemplated
under Section 11A of Act, 1894. This is so, since the terms
“vesting absolutely” and “lapsing” cannot coexist and cannot
16
go hand in hand. Post amendment w.e.f 24.09.1984, two
elements have been inserted in Section 17 for the land to vest
absolutely in the Government for public purpose even before
the award is passed. One, is that possession should be taken.
The other is, by inserting subsection (3A) it has been made
mandatory to tender payment of 80% of estimated
compensation before taking possession. Therefore, 80% of the
estimated compensation, the payment of which only if
tendered and paid, the vesting would become absolute and in
such event the consequence of lapsing in respect of absolutely
vested land cannot occur and as such, in that circumstance
alone Section 11A though applicable will not take effect. The
right of the land loser would be to enforce passing of award
which will include the balance 20% of compensation even if it
is beyond two years and get adequately compensated in terms
of Section 23 and 34 of Act, 1894 for the delay if any.
But it is a different matter altogether, when Section
16.
17(1) is invoked but the requirement thereunder which is a
prerequisite condition is not complied. As noted, subsection
(3A) has been inserted w.e.f. 24.09.1984, whereunder it is
made mandatory to tender and pay 80% of the estimated
17
compensation before taking possession. Therefore, even if
possession is taken, such possession cannot be considered as
legal so as to vest the land absolutely if the prerequisite
condition for payment of 80% before taking possession is not
complied. In such circumstance, by legal fiction it looses its
character as an acquisition under Section 17 and since the
absolute vesting does not take place, it will lapse if the further
process is not complied and the award is not passed within
two years from the date of declaration. However, even when
the precondition is not complied, if the land loser does not
challenge the acquisition and/or taking of possession as
illegal, but concedes to the position, the possession taken
does not become perse illegal and the vesting will be absolute
and in such event it cannot be considered to have lapsed until
the land loser exercises the right. We consider it so, since,
both Section 11A and subsection (3A) to Section 17 of Act,
1894 were inserted in Act,1894 to enable the land losers to
exercise their right conferred on them. As such, the said right
is to be exercised by the land loser and none other, not even
the acquiring authority or beneficiary nor would the said
18
provision become automatically applicable unless it is
triggered by the land loser.
17. Therefore, we are of the considered view that Section
11A though applicable to the cases of acquisition initiated
under Section 17(1) of Act, 1894 the consequence of it will not
affect the case where the land has absolutely vested on
compliance of subsection (3A) to Section 17 of Act, 1894 and
80% of estimated compensation is tendered and paid. Hence,
when there is a challenge by the land loser, each case will
have to be considered on its own merits to determine whether
the prerequisite condition to tender and pay as contemplated
under subsection (3A) is made before possession is taken. If
in the case concerned the mandatory prerequisite is not
complied, such acquisition will loose its character as being
under Section 17 and if the award is not passed within two
years from the date of the declaration, it will lapse and not
otherwise. The benefit of said provision is available only to be
invoked by the land loser and cannot be invoked by the
acquiring authority to claim lapse by pointing to non
compliance since the ‘vice’ of noncompliance cannot be
permitted to be converted into a ‘virtue’.
19
Though the learned counsel for the beneficiary
18.
Respondent No.2 placed reliance on the decision in Indore
(2020) 8
Development Authority Vs. Manoharlal & Others
SCC 129 rendered by the Constitution Bench to contend that
it has been held therein that “paid” as contained in Section
24(2) of RFCTLARR Act, 2013 does not include deposit of
compensation in Court, we are of the considered opinion that
the same will not be applicable to the question under
consideration before us in this case. In the instant case, the
requirement to tender and pay 80% of the estimated
compensation and the consequent lapsing as considered
above is in the context of exercise of urgency provision which
permits a deviation from the normal process of acquisition
and the payment envisaged is to take benefit of the said
provision. In contradistinction, the consideration in the cited
case is about the effect of Section 24 (2) of Act, 2013 in the
circumstance contemplated therein.
19. In considering the effect of Satendra Prasad Jain
(supra) it would be appropriate to take note of the decision
relied on by the learned senior counsel for the appellant in
20
Laxmi Devi Vs. State of Bihar (2015) 10 SCC 241 wherein it
is analysed as hereunder:
| “26. | | This is also in line with a plain reading of | |
|---|
| Section 17(1), which states that “once | | | |
| possession of the land is taken by the | | | |
| Government under Section 17, the land vests | | | |
| absolutely in the Government, free from all | | | |
| encumbrances”. In Section 48(1) the taking over | | | |
| of the possession of the land is of seminal | | | |
| significance in that the provision succinctly | | | |
| states that “the Government shall be at liberty to | | | |
| withdraw from the acquisition of any land the | | | |
| possession of which has not been taken”. The | | | |
| next subsection covers calculation of | | | |
| compensation for the aborted occupation. | | | |
| 26.1. | | | | The same position came to be reiterated | | |
|---|
| in | | Satendra Prasad Jain | | | | by a threeJudge Bench |
| of this Court. The acquisition proceedings | | | | | | |
| including the exclusion of Section 5A had | | | | | | |
| obtained the imprimatur of the Allahabad High | | | | | | |
| Court; the urgency and public purpose had | | | | | | |
| received curial concurrence. Possession of the | | | | | | |
| land was taken by the State from the | | | | | | |
| landowners. Previously, the special leave petition | | | | | | |
| filed by the landowners had been dismissed by | | | | | | |
| this Court. Ironically, the subsequent stance of | | | | | | |
| the State was that the acquisition of land under | | | | | | |
| the urgency provisions was required to be set | | | | | | |
| aside for the reason that the State had failed to | | | | | | |
| pass an award under Section 11 within two | | | | | | |
| years and had also failed to pay eighty per cent | | | | | | |
| of the estimated compensation required under | | | | | | |
| Section 17(3A). Whilst the State endeavoured to | | | | | | |
| withdraw from the acquisition, the erstwhile | | | | | | |
| landowners opposed it. This Court directed the | | | | | | |
| State “to make and publish an award in respect | | | | | | |
| of the said land within twelve weeks from today”. | | | | | | |
| The abovementioned discussion bears out that | | | | | | |
| this Court was concerned only with the issue of | | | | | | |
21
| the land being returned by the State to the | |
|---|
| erstwhile owner. It does not go so far as to limit | |
| or restrict the rights of landowners to fair | |
| compensation for their expropriated property, as | |
| that is a constitutional right which cannot be | |
| nullified, neutralised or diluted. | |
We think it justified to again refer to the
26.2.
opinion in Satendra Prasad Jain that : (SCC p.
374, para 16)
“ 16 . … Section 11A cannot be so construed as
to leave the Government holding title to the land
without the obligation to determine
compensation, make an award and pay to the
owner the difference between the amount of the
award and the amount of eighty per cent of the
estimated compensation.”
| 26.3. | | | | The second issue, one that we feel must be | | | | | |
|---|
| kept in mind in the interpretation in the law laid | | | | | | | | | |
| down by this Court, is the factual matrices | | | | | | | | | |
| involved in both | | | | | | | | Satendra Prasad | |
| Jain | | and | | | | Avinash Sharma | | | . In both these |
| precedents, as well as in innumerable others | | | | | | | | | |
| that have relied upon them, the Government's | | | | | | | | | |
| attempt was to misuse its own omissions to | | | | | | | | | |
| achieve its own oblique purposes. It was in this | | | | | | | | | |
| context that this Court declined to accede to the | | | | | | | | | |
| pleas of the Government. This Court poignantly | | | | | | | | | |
| repelled the State's attempt to nullify the | | | | | | | | | |
| acquisition on the predication of its non | | | | | | | | | |
| compliance with Sections 16 and 17(3A). The | | | | | | | | | |
| judicial intent was not to cause any loss to | | | | | | | | | |
| landowners, but to protect them. The pernicious | | | | | | | | | |
| practice that was becoming rampant, that is to | | | | | | | | | |
| make partial compliance with the statute and to | | | | | | | | | |
| follow the acquisition procedure in a piecemeal | | | | | | | | | |
| manner, and then to argue that its own lapses | | | | | | | | | |
| rendered its acquisition illegal, was roundly | | | | | | | | | |
| repulsed. Although this strictly constitutes | | | | | | | | | |
| obiter, we think it appropriate to clarify that | | | | | | | | | |
| where the landowners do not assail the | | | | | | | | | |
| acquisition, it may be open to them to seek a | | | | | | | | | |
22
| mandamus for payment to them, after a | |
|---|
| reasonable period, of the remaining | |
| compensation, which will thereupon | |
| metamorphose from a mere estimation to the | |
| actual compensation for the expropriation. | |
| 28. | | We do, however, recognise that | | | | | | | | | | | | | | | | | | | | Satendra |
|---|
| Prasad Jain | | | | | | | | | has been interpreted more broadly | | | | | | | | | | | | | |
| in the past. In | | | | | | | | | | | | | | Allahabad Development | | | | | | | | |
| Authority | | | | | | v. | | Nasiruzzaman | | | | | | | , | | Deptt. of | | | | | |
| Telecommunications | | | | | | | | | | | | v. | | Madan Mohan | | | | | | | | |
| Pradhan | | | | | and | | | | | Banda Development | | | | | | | | | | | | |
| Authority | | | | | | v. | | Moti Lal Agarwal | | | | | | | | | | , this Court has | | | | |
| dismissed the landowners' challenges to the | | | | | | | | | | | | | | | | | | | | | | |
| respective acquisitions on the basis of | | | | | | | | | | | | | | | | | | | | | | Avinash |
| Sharma | | | | and | | | | | Satendra Prasad Jain | | | | | | | | | | | | . It is | |
| pertinent to note that all three of these cases | | | | | | | | | | | | | | | | | | | | | | |
| were brief in their explanations of | | | | | | | | | | | | | | | | | | | | | | Avinash |
| Sharma | | | | and | | | | | Satendra Prasad Jain | | | | | | | | | | | and did not | | |
| examine their rationes decidendi, their innate | | | | | | | | | | | | | | | | | | | | | | |
| contradictions, their intentions or their | | | | | | | | | | | | | | | | | | | | | | |
| consequences at any length. We thus feel it | | | | | | | | | | | | | | | | | | | | | | |
| appropriate to rely on our own detailed | | | | | | | | | | | | | | | | | | | | | | |
| exploration of these cases, as opposed to simply | | | | | | | | | | | | | | | | | | | | | | |
| placing reliance on the largely contradictory case | | | | | | | | | | | | | | | | | | | | | | |
| law that has developed over the years. It was for | | | | | | | | | | | | | | | | | | | | | | |
| this reason that we had revisited the curial | | | | | | | | | | | | | | | | | | | | | | |
| concept of ratio decidendi. | | | | | | | | | | | | | | | | | | | | | | |
| 29. | | The scenario before us depicts the | | | | | | | | | | |
|---|
| carelessness and the callousness of the State, | | | | | | | | | | | | |
| quite different from the situation in | | | | | | | | | | Satendra | | |
| Prasad Jain | | | | and | | Avinash Sharma | | | | . The | | |
| appellants herein are being denied just and fair | | | | | | | | | | | | |
| compensation for their land in proceedings | | | | | | | | | | | | |
| which commenced in 1987, despite the | | | | | | | | | | | | |
| directions of the High Court passed as early as | | | | | | | | | | | | |
| in 1988 to pass an award within four months. | | | | | | | | | | | | |
| The raison d'être behind the introduction of | | | | | | | | | | | | |
| Section 11A was for the landowners to have a | | | | | | | | | | | | |
| remedy in the event of an award not being | | | | | | | | | | | | |
| passed expeditiously. If | | | | | | | | Satendra Prasad Jain | | | | is |
23
| interpreted to mean that Section 11A will not | |
|---|
| apply to any acquisition under the urgency | |
| provisions, landowners such as the appellants | |
| before us will have no protection, even if they are | |
| not paid full compensation for their land for | |
| decades. This cannot be in keeping with the | |
| legislative intent behind this section. | |
| Furthermore, keeping empirical evidence in | |
| sight, we make bold to opine that circumstances | |
| require this Court to reconsider its view that | |
| even if the stated public interest or cause has | |
| ceased to exist, any other cause can substitute | |
| it, especially where the urgency provisions have | |
| been invoked. | |
| 30. | | We feel it imperative to distinguish between |
|---|
| the setting aside of an acquisition and the | | |
| reversion of possession to the erstwhile | | |
| landowners. While the LA Act and the judgments | | |
| discussed above do not allow for the latter, we | | |
| are of the considered opinion that this does not | | |
| necessarily imply that the former is also not an | | |
| option. Both the abovementioned cases dealt | | |
| with a factual situation in which the | | |
| Government was attempting to set the | | |
| acquisition of the land at naught so that they | | |
| would not have to pay compensation to acquire | | |
| it. Setting aside of the acquisition in those cases | | |
| was tantamount to reverting the possession to | | |
| the original owners. In this scenario, however, | | |
| the two do not have to go hand in hand. In | | |
| allowing the acquisition of land that the | | |
| Government finds necessary to be set aside, we | | |
| would not necessarily be holding that the land | | |
| revert to the appellants, as the alternative of | | |
| permitting the Government to keep possession | | |
| provided it reacquires the land with a new | | |
| Section 4 notification exists. This option, | | |
| particularly in the present factual matrix, does | | |
| the least violence to the intent and content of | | |
| the LA Act, in that it upholds Section 11A even | | |
| in cases of acquisition under Section 17 while | | |
24
| preserving the requirement of Section 17 that | | |
|---|
| the unencumbered possession of the land | | |
| remain vested in the Government. It also | | |
| protects the rights of the landowners, thus | | |
| fulfilling the intent of Section 11A, while | | |
| allowing the Government to acquire land in | | |
| cases of emergencies without its title being | | |
| challenged, which is the avowed intention of | | |
| Section 17. Any other interpretation of the law | | |
| would serve to protect only those landowners | | |
| who had approached the court to stop the | | |
| Government from undoing an emergency | | |
| acquisition, while leaving in the cold equally | | |
| aggrieved landowners seeking to enforce their | | |
| right to fair compensation for their land. Even | | |
| equity demands that the party bearing the | | |
| consequence of the delay in the award ought not | | |
| to be the innocent landowner, but the errant | | |
| State | .” | |
20. We are in agreement with the opinion expressed in
Laxmi Devi (supra) by a Bench of two Hon’ble Judges. In our
opinion also the philosophy based on which the decision in
Satendra Prasad Jain (supra) was rendered is as contained
in para17, which reads as hereunder:
"17. In the instant case, even that 80 per cent of
the estimated compensation was not paid to the
appellants although Section 17 (3A) required
that it should have been paid before possession
of the said land was taken but that does not
mean that the possession was taken illegally or
that the said land did not thereupon vest in the
first respondent. It is, at any rate, not open to
the third respondent, who, as the letter of
the Special Land Acquisition Officer dated
June 27, 1990 shows, failed to make the
necessary monies available and who has been
25
in occupation of the said land ever since its
possession was taken, to urge that the
possession was taken illegally and that,
therefore, the said land has not vested in the
first respondent and the first respondent is
under no obligation to make an award ."
(Emphasis supplied)
We have also in our view indicated above that the acquiring
authority and/or beneficiary cannot derive benefit of non
compliance of requirement of Section 17(3A) and take benefit
of Section 11A of Act, 1894. The benefit of the provision is for
the land loser. In (supra) also this
Satendra Prasad Jain
Court was of the opinion that it was not open for the acquiring
authority or the beneficiary to take benefit of Section 11A and
Section 17(3A) which is intended to benefit the land owner to
ensure that award be made within time. Hence it is clear that
(supra) does not lay down the ratio
Satendra Prasad Jain
that the acquisition does not lapse under any circumstance if
the urgency provision under Section 17 of Act, 1894 is
invoked but it only disapproved applying it against the land
loser.
In the above background it is noted that in the instant
21.
acquisition from which this case arises, an extent in all
26
measuring 63.540 acres (1011517, 5/6 Bighas) was
acquired through the declaration under Section 6 of Act, 1894
for which a sum of Rs. 7,48,67,857.73 being 80% is stated to
have been deposited by Respondent No.2 – Beneficiary, with
Respondent No.1 and the balance amount is also deposited on
21.12.2002 so as to enable the collector to enter into an
agreement with the landowners and pay compensation.
Insofar as the extent of land belonging to the appellant, it is
stated by Respondent No.1 that a letter dated 01.01.2003 was
issued calling upon the appellant to come forward and
execute an agreement. Thereafter there is no effort to tender
and pay 80% of the estimated compensation or to pass an
award, which prompted the appellant to file the writ petition
before the High Court.
22. From the sequence of events, it is clear that the other
land losers have entered into an agreement and received
compensation. The appellant on the other hand was neither
tendered nor paid 80% of the estimated compensation as
required under subsection (3A) to Section 17 before taking
possession nor was an award passed and compensation paid
27
within two years from the date of declaration under Section 6
of Act, 1894.
23. In the normal circumstance, the acquisition would
lapse insofar as the appellant’s land in view of our conclusion
on the legal aspect. However, in the fact situation, the relief is
required to be moulded. This is for the reason that the land
belonging to the appellant is not a standalone extent. As
noted, the acquisition was for a planned industrial layout and
the total extent acquired and possession taken was 10115
17, 5/6 bighas of which, the land belonging to the appellant is
only 2061/30 bighas. In the planned layout, the land has
been utilized for various purposes and amenities. A ‘Mandi’
has been constructed over a larger extent of land of which the
smaller extent of land belonging to the appellant also forms a
part. Hence reversion of the land does not arise. Further, the
course as suggested in Laxmi Devi (supra) to issue a fresh
notification also would not be appropriate, since the very
scheme of acquisition and determination of compensation
under the old regime has undergone a sea change. As such it
would be unjust not only to the state exchequer but also the
other land losers under the same notification if the present
28
prevailing process is applied in determining the
compensation. Further, though after being nudged by the
High Court, the award in any event was passed on 09.06.2008
under the old regime which is now to be substituted with
adequate compensation.
24. On weighing all aspects of the matter, we deem it
appropriate that it will serve the ends of justice to direct the
respondents to determine the market value insofar as the
appellant’s land is concerned by reckoning the relevant date
as 09.06.2008 (i.e. the date on which the award was
ultimately passed), by applying the yardstick under Act, 1894.
It is made clear that only the market value be determined as
on that date but for awarding the statutory benefits, it shall
be calculated from the date of the original notification since
admittedly the appellant has been dispossessed on
04.02.2003 pursuant to the notification dated 17.04.2002.
Further, from the date on which the fresh award is passed
pursuant to this judgment, the appellant would get the cause
of action for seeking reference if dissatisfied with the quantum
of compensation awarded. It is made clear that the
determination of compensation, in this case, shall not give
29
rise to any right in favour of any other land loser whose land
was acquired under the same notification, to seek for re
determination of compensation where the same has already
attained finality.
The decision in this case based on the principle of law
25.
settled herein, if it arises for consideration in any other case
under Act, 1894 or any other enactment relating to land
acquisition containing pari materia provisions shall be applied
only prospectively and cases which have attained finality shall
not be reopened.
26. In the result, we pass the following order:
(i)
The provision contained in Section 11A of Act,
1894 shall be applicable to cases in which the
acquiring authority has not complied with the
requirement of subsection (3A) to Section 17 of
Act, 1894 by tendering and paying eighty per
centum of the estimated compensation before
taking possession since possession in such cases
cannot be considered to be taken in accordance
with law and the vesting is not absolute.
30
(ii) If the requirement is complied and possession is
taken after tendering and paying eighty per
centum, though there is need to pass an award
and pay the balance compensation within a
reasonable time, the rigour of Section 11A of Act,
1894 will not apply so as to render the entire
proceedings for acquisition to lapse in the context
of absolute vesting. The right of land loser in
such case is to enforce passing of the award and
recover the compensation.
(iii)
In the instant case though Section 11A of Act,
1894 has become applicable, in the changed
circumstance we deem it proper to mould the
relief instead of holding the acquisition to have
lapsed. Hence for the reasons stated above, we
direct as follows:
(a)
The respondents shall construe 09.06.2008
as the relevant date and determine the market
value prevailing as on that date applying the
yardstick under Act, 1894 in respect of the
acquired land.
31
(b)
To calculate the statutory benefits on such
amount including interest, the same shall be
determined by taking into consideration the
date of the Section 4 notification dated
17.04.2002 since the appellant was
dispossessed on 04.02.2003 pursuant to the
same.
(c)
The date on which the fresh award is passed
pursuant to this judgment and communicated
shall be the date of cause of action for seeking
enhancement of compensation if the appellant
is dissatisfied with the quantum of
compensation offered.
(d)
The compensation determined in this case
shall not give the cause of action to any other
land loser whose land is acquired under the
same notification to seek redetermination of
compensation.
(e) The appellant shall be entitled to the cost
incurred in these proceedings.
32
27. The appeal is disposed of accordingly.
Pending application, if any, stands disposed of.
28.
….…………………………J.
(S. ABDUL NAZEER)
…...……………………….J.
(A.S. BOPANNA)
…..…….……………………J.
(V. RAMASUBRAMANIAN)
New Delhi,
October 14, 2022
33