On 14th October 2022, the Supreme Court in a division bench comprising of Justice S. Abdul Nazeer, Justice A.S. Bopanna and Justice V. Ramasubramanian observed that 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 sub-section (3A) to Section 17 of Act, 1894. (M/s Delhi Airtech Services Pvt. Ltd & Anr. V. State of U.P & Anr.)
Facts of the Case:
The respondent no.2 was to implement a planned Industrial layout for which purpose the requisite land was to be acquired. The project was envisaged by 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 The Land Acquisition Act, 1894 whereby the requirement of procedure under Section 5A of the Act, 1894 was dispensed. The appellant’s land was also included in the acquisition land. They alleged that they were not served with the notice contemplated under Section 9(1) of Act, 1894 but the possession was taken on 04.02.2003. According to the appellants neither the initial requirement of tendering and paying 80% of the estimated compensation contemplated under sub¬section (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. Hence, a writ petition was filed by the appellants which was dismissed but the HC while relying upon the case of Satendra Prasad Jain Vs. State of U.P. and had an 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. Aggrieved by the same an appeal was filed in the SC but the bench consisting of two judges differed in their opinions. So, the matter was placed before the bench consisting of three judges.
Contentions of the Appellants:
The counsel for the appellants submitted that “neither the initial requirement of tendering and paying 80% of the estimated compensation contemplated under sub¬section (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. Moreover, more than three and half years had elapsed and neither of the provisions had been complied. Hence, the acquisition in so far as the land belonging to the Appellant has lapsed and the same should revert to the Appellant.” It was also contended by the counsel that the appellants were also not served with the notice contemplated under Section 9(1) of Act, 1894. The case of Yusufbhai Noormohmed Nandoliya Vs. State of Gujarat and Anr.was also used for supporting the arguments.
Contentions of the Respondents:
The counsel for the respondent No.1 relied upon the case Coffee Board, Karnataka, Bangalore Vs. Commissioner of Commercial Taxes, Karnataka and Others and 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. The counsel for respondent no.2 while relying upon the case Indore Development Authority Vs. Manoharlal & Others contended 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.”
Observations and Judgement of the Court:
The hon’ble court observed that “From the provision of Section 17 a, 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 but insertion of sub-section (3A) imposed a pre-condition that 80% of the estimated compensation is to be tendered and paid to the persons interested in the land. The word employed in sub-section (3A) of Section 17 of the Act, 1894 is “shall” and it is to be tendered and paid “before taking possession”. Sub-section (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 sub-section (3A) is a sine qua non for taking possession. Therefore, payment of 80%, taking over possession thereafter and 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 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. Therefore, we are of the considered view that Section 11A though applicable to the cases of acquisition initiated under Section 17(1) of Act, 1894 the consequence of it will not affect the case where the land has absolutely vested on compliance of sub-section (3A) to Section 17 of Act, 1894 and 80% of estimated compensation is tendered and paid.” Cases Indore Development Authority Vs. Manoharlal & Others, Laxmi Devi Vs. State of Bihar, and Satendra Prasad Jain Vs. State of U.P were referred.
The appeal was disposed of and instead of holding the acquisition to have lapsed, the appellant was compensated according to the market value prevailing as on 09.06.2008, applying the yardstick under Act, 1894 in respect of the acquired land.
Case: M/s Delhi Airtech Services Pvt. Ltd & Anr. Vs. State of U.P & Anr.
Citation: Civil Appeal No. 24 Of 2009
Bench: Justice S. Abdul Nazeer, Justice A.S. Bopanna and Justice V. Ramasubramanian
Date: October 14, 2022
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