Land Acquisition Act 1894 - Is Time Frame U/Section 11A Applicable To Acquisition Initiated By Invoking Urgency Provision U/Section 17? Supreme Court Answers

A Three Judges Bench of the Supreme Court, in a judgment delivered recently, answered a reference made to it on the issue whether the time frame contemplated under Section 11A of Land Acquisition Act 1894 is applicable to acquisition initiated by invoking urgency provision under Section 17.

Section 11A and 17 Land Acquisition Act

Section 11A provides that the award under section 11 shall be made 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. Section 17­ deals with the special powers of acquisition in case of urgency. Section 17(3A) provides that before taking possession of any land under Section 17(1) or (2), the Collector shall, the collector shall tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto.

Issues

The main issues which arose in this case are : (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.?

The bench of Justices S. Abdul Nazeer, AS Bopanna and V. Ramasubramanian made the following observations:

It is a prerequisite condition

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 prerequisite 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.

to enable the land losers to exercise their right conferred on them

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.

The Apex Court bench answered these issues by holding thus:

(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.

(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) The decision in this case based on the principle of law 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

Case details

Delhi Airtech Services Pvt. Ltd vs State of U.P | 2022 LiveLaw (SC) 888 | CA 24 OF 2009 | 14 October 2022 |  Justices S. Abdul Nazeer, AS Bopanna and V. Ramasubramanian

Headnotes

Land Acquisition Act, 1894 ; Section 11A, 17(3A) - The provision contained in Section 11A shall be applicable to cases in which the acquiring authority has not complied with the requirement of Section 17 (3A) 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 - 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 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 - The decision in this case 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. (Para 25-26)

Land Acquisition Act, 1894 ; Sections 11A and 6 - If the award is not made within the period of two years from the date of publication of the declaration under Section 6, 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. The computation of two years would however exclude the period if the process was stayed by an order of the Court - Referred to Yusufbhai Noormohmed 12 Nandoliya Vs. State of Gujarat and Anr. (1991) 4 SCC 531. (Para 11)

Land Acquisition Act, 1894 ; Section 17 - (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 cannot be understood as providing any discretion to the acquiring authority. (Para 12)

Interpretation of Statutes - 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. (Para 9)

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