M/S Delhi Airtech Services Pvt. Ltd & Anr. v. State of U.P. & Anr
A. S. BOPANNA, J.
1. This appeal has a chequered history.The appeal was heard by
a Bench consisting of two Hon’ble Judges (Justice A.K. Gangul y and
Justice Swatanter Kumar) and was decided by the Judgment dated
18.08.2011 with divergent opinion. In the process, after consideration,
Hon’ble Justice A.K. Ganguly arrived at the conclusion that taking over
possession of the 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 Sect ion 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 sub-section (3A) of Section 17
had been paid to the 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.
3. In that backdrop, in view of the divergence of opinion between
the learned Judges, they had ordered the matter to be placed be fore
Hon’ble the Chief Justice of India for reference to a l arger Bench to
765
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 three-member Bench. Hence, we have heard the matter
based on the factual aspects involved in this case de-novo, so as to
determine the legal aspects which touch upon the same.
4. It would therefore be necessary for us to at the outset t ake
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 w hich
purpose the requisite land was to be acquired. The project was envisaged
by the State of U.P–Respondent No.1 as a part of planned Industr ial
Development. Hence, Respondent No.1 being the appro priate
Government, issued the Notification dated 17.04.2002 invoking the special
power due to urgency. The Notification was therefore issued unde r
Section 4(1) read with Section 17(1) and (4) of Act, 1894, whereby the
requirement of procedure under Section 5A of the Ac t, 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 sub-section (1) of Section 9 of the A ct, 1894,
possession of the acquired land will be taken.
5. In the large extents of land that was notified, an extent measuring
2-06-1/3-0 Bighas situated in village Haldauni, Tehsil and Pargana Dadri,
District Gautam Budh Nagar, an ‘Abadi’ land was also include d. The
Appellant, a company incorporated under the provisions of the Companies
Act, 1956 claims to be the owner of the said small extent of lan d. The
Appellant alleges that they were not served with the notice 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 sub-section (3A)
to Section 17 of Act, 1894 was complied nor was the requireme nt 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
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
OF U.P. & ANR. [A. S. BOPANNA, J.]
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 proceedin gs for
acquisition in exercise of the power under Section 17 of Act, 18 94. In
that regard, the High Court relied on the decision of this Court in Satendra
Prasad Jain Vs. State of U.P (1993) 4 SCC 369 and dismissed the writ
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 Jain , rendered by a Bench of three Hon’ble Judges,
Justice A.K. Ganguly has found it to be sub-silentio and per incuriam
in the face of the provision contained in the statute. Justi ce Swatanter
Kumar, the other Hon’ble Judge however relied on the deci sion 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 th e same
since the entire matter has been placed before us and the 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.
8. In the light of the contentions urged, the following questions
arise for our consideration.
a. Is the requirement to tender payment of 80% of th e
estimated compensation as contemplated under
sub-section(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 th e time
frame contemplated under Section 11A applicable to the
acquisition notified under Section 17 of Act, 1894.
767
c. Can the case in Satendra Prasad Jain (supra) be
considered as a decision laying down ratio decidendi on
the above questions?
9. In order to decide the scope and ambit of the provisions under
consideration it would be appropriate to reproduce Secti on 11A and
Section 17 of the Act, 1894 in its entirety and kee p 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 publicatio n 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 direct s,
the Collector, though no such award has been made, may, on the
expiration of fifteen days from the publication of th e notice
mentioned in section 9, sub-section (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 river-side or ghat station, or of
providing convenient connection with or accesses to any suc h
station, [or the appropriate Government considers it necessary to
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
OF U.P. & ANR. [A. S. BOPANNA, J.]
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
sub-section (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 sub-section without giving
to the occupier thereof at least forty-eight hours’ notice of his
intention so to do, or such longer notice as may be reasona bly
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 sub-sect ions 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 caused
by such sudden dispossession and not excepted in section 24;
and, in case such offer is not accepted, the value of such cr ops
and trees and the amount of such other damage shall be allowed
for in awarding compensation for the land under the provisi ons
herein contained.
[(3A) Before taking possession of any land under
sub-section (1) or sub-section (2), the Collector shall, w ithout
prejudice to the provisions of sub-section (3)-
(a) tender payment of eighty per centum of the compensation
for such land as estimated by him to the persons interest ed
entitled thereto, and
(b) pay it to them, unless prevented by some one or more of
the contingencies mentioned in section 31, sub-section (2), and
where the Collector is so prevented, the provisions of section
31, sub-section (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
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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 sub-section (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 section
6 in respect of the land at any time [after the date of the
publication of the notification] under section 4, sub-section (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 o f 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 onl y in
accordance with law after appropriately compensating if s uch land is
required by the State for public purpose. Since such power of em inent
domain is not in dispute, we need not advert to the decision referred in
detail.
11. In the normal circumstance, the process for acquisition would
commence with the notification under Section 4, aft er 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 n o ambiguity
whatsoever that if the award is not made within the period of two years
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
OF U.P. & ANR. [A. S. BOPANNA, J.]
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 S ection 4 of
Act, 1894. The computation of two years would however exclude t he
period if the process was stayed by an order of the Court. T his aspect
has been clarified by this Court in Yusufbhai Noormohmed Nandoliya
Vs. State of Gujarat and Anr. (1991) 4 SCC 531, placed for our
consideration by the learned senior counsel for the appellant.
12. So far so good, the question however is as to whether the
rigour of Section 11A of Act, 1894 will apply when the appropriat e
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 possess ion. But
under Section 17 of Act, 1894, possession is permitted to be taken even
before the award is passed. Though such power was absolute ear lier,
sub-section (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 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 Sec tion
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 sub-section (3A) of Section
17 of the Act, 1894 is “shall” and it is to be tendered and paid “befo re
taking possession”. Hence it cannot be understood as providing any
discretion to the acquiring authority. In fact, the last sentence of
sub-section (1) of Section 17 uses the word “thereupon” with respect to
vesting. This word “thereupon” is correlated to taking possessi on and
payment in terms of sub-section (3A) is a sine qua non for taking
possession. Therefore (1) payment of 80% (2) taking over possession
771
thereafter and (3) vesting of land in the government tak e place in a
sequence. Absent anyone of these in the sequence, the e mergency
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 possessi on is
permitted to be taken prior to an award being passed under Section 11 of
Act, 1894.
13. That apart, sub-section (4) to Section 17 of Act, 1894 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 t o 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 not ice
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 to be paid in strict complianc e 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 sub-section
(3A) to Section 17 mandates payment of 80% of the e stimated
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 aw ard
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 non-applicability of ‘la psing’ as
contemplated under Section 11A of Act, 1894. This is so, since the terms
“vesting absolutely” and “lapsing” cannot co-exist and cannot go hand
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
OF U.P & ANR. [A. S. BOPANNA, J.]
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 sub-section (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 circum stance
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.
16. But it is a different matter altogether, when Section 17(1) is
invoked but the requirement thereunder which is a pre-requisite condition
is not complied. As noted, sub-section (3A) has been inserted w.e.f .
24.09.1984, whereunder it is made mandatory to tender and pay 80% of
the estimated 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 pre-requisite 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 l apse 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 pre-condition
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 per-se 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 Sec tion 11A and
sub-section (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 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)
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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. 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
pre-requisite condition to tender and pay as contem plated under
sub-section (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, i t 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
non-compliance cannot be permitted to be converted into a ‘virtue’.
18. Though the learned counsel for the beneficiary- Respondent
No.2 placed reliance on the decision in Indore Development Authority
Vs. Manoharlal & Others (2020) 8 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 consi dered
above is in the context of exercise of urgency provision which permits a
deviation from the normal process of acquisition and t he payment
envisaged is to take benefit of the said provision. In contradi stinction,
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 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
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
OF U.P. & ANR. [A. S. BOPANNA, J.]
be at liberty to withdraw from the acquisition of any land the
possession of which has not been taken”. The next sub-section
covers calculation of compensation for the aborted occupation.
26.1. The same position came to be reiterated in Satendra Prasad
Jain by a three-Judge Bench of this Court. The acquisitio n
proceedings including the exclusion of Section 5-A 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(3-A). 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 respe ct of
the said land within twelve weeks from today”. The
abovementioned discussion bears out that this Court was
concerned only with the issue of the land being returned by the
State to the erstwhile owner. It does not go so far as to lim it 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.
26.2. We think it justified to again refer to the opinion in Satendra
Prasad Jain that : (SCC p. 374, para 16)
“16 . … Section 11-A 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
775
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(3-A). 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 rep ulsed.
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 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 l argely
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 sit uation 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
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
OF U.P. & ANR. [A. S. BOPANNA, J.]
Section 11-A was for the landowners to have a remedy in the
event of an award not being passed expeditiously. If Satendra
Prasad Jain is interpreted to mean that Section 11-A 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 deca des.
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 whe re 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 i n
which the Government was attempting to set the acquisiti on of
the land at naught so that they would not have to pay compensation
to acquire it. Setting aside of the acquisition in those case s 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 holdi ng
that the land revert to the appellants, as the alternative of permitting
the Government to keep possession provided it reacquires th e
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 11-A even in
cases of acquisition under Section 17 while preserv ing the
requirement of Section 17 that the unencumbered possession of
the land remain vested in the Government. It also protects t he
rights of the landowners, thus fulfilling the intent of Section 11-A,
while allowing the Government to acquire land in cas es 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
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court to stop the Government from undoing an emerge ncy
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 La xmi
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 para-17, which reads as hereunder:
“17. In the instant case, even that 80 per cent of the estimat ed
compensation was not paid to the appellants although Section 17
(3-A) 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, fail ed to
make the necessary monies available and who has been in
occupation of the said land ever since its possessio n was
taken, to urge that the possession was taken illegall y and
that, therefore, the said land has not vested in th e 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 acquir ing
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 Satendra
Prasad Jain (supra) also this 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
Satendra Prasad Jain (supra) does not lay down the ratio 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.
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
OF U.P. & ANR. [A. S. BOPANNA, J.]
21. In the above background it is noted that in the instant acquisition
from which this case arises, an extent in all measuring 63.540 a cres
(101-15-17, 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 – Benefici ary,
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 t ender and
pay 80% of the estimated compensation or to pass an award, wh ich
prompted the appellant to file the writ petition before the High Court.
22. From the sequence of events, it is clear that the other l and
losers have entered into an agreement and received compensation. The
appellant on the other hand was neither tendered nor paid 80% of t he
estimated compensation as required under sub-section (3A) to Section
17 before taking possession nor was an award passed and compensation
paid within two years from the date of declaration under Secti on 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 aspe ct.
However, in the fact situation, the relief is required to be moulded. This
is for the reason that the land belonging to the app ellant is not a
stand-alone extent. As noted, the acquisition was for a planned industrial
layout and the total extent acquired and possession taken was 101-15-
17, 5/6 bighas of which, the land belonging to the appellant is only 2-06-1/
3-0 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 belong ing 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 ve ry 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 prevailing process is applied in determining the compensation.
Further, though after being nudged by the High Court, the award in any
779
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 awa rd was
ultimately passed), by applying the yardstick under Act, 1894. It is made
clear that only the market value be determined as on that da te but for
awarding the statutory benefits, it shall be calculated fro m the date of
the original notification since admittedly the appel lant 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 pursu ant 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 rise to any right in favour of any other land loser whos e land
was acquired under the same notification, to seek for re- determination
of compensation where the same has already attained finality.
25. 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 w hich 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 sub-section (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
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
OF U.P. & ANR. [A. S. BOPANNA, J.]
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.
(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
re-determination of compensation.
(e) The appellant shall be entitled to the cost incurred in
these proceedings.
27. The appeal is disposed of accordingly.
28.Pending application, if any, stands disposed of.
Divya Pandey and Anurag Bhaskar Appeal disposed of
(Assisted by : Iram Jan, LCRA)