# M/S DELHI AIRTECH SERVICES PVT. LTD & ANR v. STATE OF U.P. & ANR

- **Citation:** [2022] 19 S.C.R. 757
- **Court:** Supreme Court of India
- **Decided:** 2022-10-14
- **Case number:** Civil Appeal No. 24 of 2009
- **Bench:** S. Abdul Nazeer, A. S. Bopanna, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-delhi-airtech-services-pvt-ltd-anr-v-state-of-u-p-anr-36003
- **Pages:** 24

## Headnote

Land Acquisition Act, 1894 - ss.11A, 17(3A) - Is the
requirement to tender payment of 80% of the estimated compensation
as contemplated under sub-section(3A) to s.17 of, 1894 Act,
mandatory to ensure absolute vesting of the notified land; Whether
the requirement to pass the award within the time frame contemplated
u/s.11A applicable to the acquisition notified u/s.17 of 1894 Act -
Held: Provision contained in s.11 of 1894 Act, shall be applicable
to cases in which the acquiring authority has not complied with the
requirement of sub-section (3A) to s.17 of 1894 Act 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 s.11A of 1894 Act 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.
Land Acquisition Act, 1894 - s.17(1), (3A) - "shall", "before
taking possession", "thereupon" - Purport of - Held: The word
employed in sub-section (3A) of s.17 of 1894 Act 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 s.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.
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Interpretation of Statutes - Held: 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.
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][76

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 [2022] 19 S.C.R. 757
757
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR.
v.
STATE OF U.P. & ANR.
(Civil Appeal No. 24 of 2009)
OCTOBER 14, 2022
[S. ABDUL NAZEER, A. S. BOPANNA AND
V. RAMASUBRAMANIAN, JJ.]
Land Acquisition Act, 1894 - ss.11A, 17(3A) - Is the
requirement to tender payment of 80% of the estimated compensation
as contemplated under sub-section(3A) to s.17 of, 1894 Act,
mandatory to ensure absolute vesting of the notified land; Whether
the requirement to pass the award within the time frame contemplated
u/s.11A applicable to the acquisition notified u/s.17 of 1894 Act -
Held: Provision contained in s.11 of 1894 Act, shall be applicable
to cases in which the acquiring authority has not complied with the
requirement of sub-section (3A) to s.17 of 1894 Act 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 s.11A of 1894 Act 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.
Land Acquisition Act, 1894 - s.17(1), (3A) - "shall", "before
taking possession", "thereupon" - Purport of - Held: The word
employed in sub-section (3A) of s.17 of 1894 Act 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 s.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.
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Interpretation of Statutes - Held: 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.
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
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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]
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
OF U.P & ANR.
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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
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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
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
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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
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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.
Case Law Reference
[1988] 1 Suppl. SCR 348
referred to
Para 10
[1991] 1 Suppl. SCR 158
referred to
Para 10
[2020] 3 SCR 1
referred to
Para 18
[2015] 11 SCR 179
referred to
Para 19
[1996] 5 Suppl. SCR 435
referred to
Para 19
[1995] 5 Suppl. SCR 1
referred to
Para 19
[2011] 7 SCR 435
referred to
Para 19
[1993] Supp 2 SCR 336
clarified
Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No.24 of
2009.
From the Judgment and Order dated 28.08.2006 of the High Court
of Judicature at Allahabad in Civil Misc. Writ Petition No.22251 of 2006.
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
OF U.P. & ANR.
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Sudhir Chandra, Sr. Adv., Rakesh Singh, Arun K. Sinha, Bhagabati
Prasad Padhy, Achintya Dvivedi, Advs. for the Appellants.
Ravindra Raizada, ASG, Ravindra Kumar, Sr. Adv., Binay Kumar
Das, Ms. Priyanka Das, Ms. Neha Das, Ajai Kumar, Ms. Saloni Sharan,
Rajeev Kumar Dubey, Ashiwan Mishra, Ms. Vaidruti Mishra, Kamlendra
Mishra, Dinesh Kumar Garg, Dhananjay Garg, Abhishek Garg, Ishaan
Tiwari, Advs. for the Respondents.
The Judgment of the Court was delivered by
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. Ganguly 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 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 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 before
Hon'ble the Chief Justice of India for reference to a larger Bench to
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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 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
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 sub-section (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
2-06-1/3-0 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 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 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
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
OF U.P. & ANR. [A. S. BOPANNA, J.]
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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. 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. 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 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 the
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 the time
frame contemplated under Section 11A applicable to the
acquisition notified under Section 17 of Act, 1894.
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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 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 from the publication of the 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 such
station, [or the appropriate Government considers it necessary to
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
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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 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 sub-sections 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 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
sub-section (1) or sub-section (2), the Collector shall, without
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 interested
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 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.
11. 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
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
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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 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 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,
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
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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.
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 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.
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 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 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
M/S DELHI AIRTECH SERVICES PVT. LTD & ANR. v. STATE
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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 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.
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 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 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 Section 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 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'.
18.