M/s Delhi Airtech Services Pvt. Ltd & Anr. vs State of U.P. & Anr.

Constitution of India – Articles 300A, 31A – Held: 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. Disposing of the appeal, the Court

HELD: 1.1 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][767-B-C]

1.2 In the normal circumstance, the process for acquisition would commence with the notification under 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. [Para 11][769F-H; 770-A-B]

1.3 So far so good, the question however is as to whether the rigour of Section 11A of Act, 1894 will apply when the appropriate Government exercises its special power in cases of OF U.P & ANR.

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 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, 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 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 sub-section (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 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 (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 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. [Para 12][770C-H; 771-A-B]

1.4 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 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 to be paid in strict compliance of the requirement in that regard. 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 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. 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 ‘lapsing’ 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 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 OF U.P. & ANR.

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 hough 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. [Paras 13-15][771-B-H; 772-A-C]

1.5 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. 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 contemplated 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, 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 non-compliance cannot be permitted to be converted into a ‘virtue’. 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 Satendra Prasad Jain 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 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. [Paras 17, 20][772-H; 777-F-H]

Satendra Prasad Jain vs. State of U.P (1993) 4 SCC

369 : [1993] Supp 2 SCR 336 – clarified.

1.6 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. 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. 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. 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, it is directed as follows: 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. 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. 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 OF U.P. & ANR.

the quantum of compensation offered. 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. [Paras 25 and 26][779-D-H; 780-A-F]

Coffee Board, Karnataka, Bangalore vs. Commissioner of Commercial Taxes, Karnataka and Others (1988) 3 SCC 263 : [1988] 1 Suppl. SCR 348; Yusufbhai

Noormohmed Nandoliya vs. State of Gujarat and Anr. (1991) 4 SCC 531 : [1991] 1 Suppl. SCR 158; Indore Development Authority vs. Manoharlal & Others (2020)

8 SCC 129 : [2020] 3 SCR 1; Laxmi Devi vs. State of Bihar (2015) 10 SCC 241 : [2015] 11 SCR 179;

Allahabad Development Authority vs. Nasiruzzaman & Ors (1996) 6 SCC 424 : [1996] 5 Suppl. SCR 435; Deptt. of Telecommunications vs. Madan Mohan

Pradhan (1995) 4 Suppl. SCC 268 : [1995] 5 Suppl. SCR 1; Banda Development Authority vs. Moti Lal Agarwal (2011) 5 SCC 394 : [2011] 7 SCR 435 referred to.