Urgency Clause U/S 17 Of Land Acquisition Act 1894 For Taking Possession Of Property Not Violative Of Article 300A: Allahabad High Court

The Allahabad High Court has held that taking possession of property pursuant to proceedings under Section 17 of the Land Acquisition Act, 1894 is not violative of Article 300-A of the Constitution of India.

Section 17 of the Land Acquisition Act, 1894 empowers an appropriate Government to acquire land in case of urgency for public purpose. While acquiring land under Section 17, the land vests in the Government after 15 days from the date of notification without any encumbrances. Passing of an award under the Act is not necessary.

Keeping in mind the aforesaid provision, the bench comprising of Justice Ashwani Kumar Mishra and Justice Syed Qamar Hasan Rizvi held

“As a result of the above statutory scheme, it is clear that when the possession of the land is taken after issuance of notice under Section 9 of the Act, the tenure holder would be extinguished of any right, title or interest over such land. The statutory consequence, as is clearly enumerated in law, cannot be avoided or obstructed by the tenure holder, particularly when the acquisition proceedings itself are not under challenge.”

Since the land vested in the Government without any encumbrances under Section 17, the Court held that taking possession of the same after a few years did not amount to violation of rights under Article 300-A of the Constitution of India.

Factual Background

In 2006, the Government of Uttar Pradesh exercising its power of eminent domain issued a notification under Section 4(1)/17(4) (Urgency Clause) of the Land Acquisition Act, 1894 for acquisition of the plot in question. Since urgency clause was invoked, inquiry contemplated in Section 5-A of the Act was dispensed with and declaration under Section 6(1)/17(1) of the Act was made. In 2007, respondents took possession of the entire acquired land of plot no.534. However, award was passed by the District Magistrate in 2010.

Petitioner asserted the right of lease back of the portion of land. It was argued by virtue of Greater Noida Industrial Development Rural Abadi Sites (Management and Regularization) Regulation 2011 petitioner has a right of regularization of rural abadi site which existed before 30.6.2011.

It was argued that the order rejecting petitioner's claim to protect the abadi land was set aside by the High Court. However, the State had failed to pass fresh orders. It was submitted that without considering the claims of the petitioner, the land of the petitioner was sought to be physically possessed by the authorities.

It was further argued that the petitioner had settled possession over the land which could not be disturbed except by a suit under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.

Counsel for respondent-authority contended that since the acquisition proceedings having been concluded, the right, title or interest of the petitioner stood extinguished in the property. It was argued that no writ of mandamus could be issued by the Court to protect petitioner's possession over the land.

High Court Verdict

The Court observed that the land had already been acquired by the State invoking the urgency clause in Section 17 of the Act of 1894 and the proceedings to that extent were not challenged, they had attained finality. Accordingly, once possession was taken by the authorities, the Court held that the petitioner stood devolved of his right on the said plot.

“Section 17 of the Act of 1894 containing urgency clause has also been invoked while issuing declaration under Section 6 of the Act. Section 17(1) of the Act clearly provides that in case of urgency the State is free to take possession of the land on expiration of fifteen days from the date of notice mentioned under Section 9 of the Act upon payment of 80% estimated compensation. As a consequence such land shall thereupon vest absolutely in the Government free from all encumbrances.”

The Court held that since the land was acquired under the urgency clause, the land would vest in the Government even before passing of the award in 2011.

The Court relied on the Constitution Bench decision of the Supreme Court in Indore Development Authority v. Manoharlal and Others, wherein it was held that a landowner whose land has been acquired under Section 17 is a trespasser on such land acquired by the Government.

Accordingly, the Court held that writ of mandamus could not be issued to the State in respect of a land which has been already vested with the authority, free of any encumbrances.

“Writ of mandamus can only be issued for performance of a legal obligation on part of the State or its instrumental/authority. No writ of mandamus can be issued for restraining the State/authority from undertaking act which is, in accordance with law. Since the vesting of land is complete in the State consequent upon acquisition of land, it would not be open for the petitioner to claim issuance of a writ of mandamus for restraining the respondents from asserting their right over the acquired land.”

Further, the Court held that the argument of the petitioner regarding violation of Article 300-A of the Constitution of India cannot be sustained as violation of Article 300-A provides that “a person would not be deprived of his property except in accordance with law.” The Court held that since acquisition was in accordance with law, the vesting of land with the State is not violative of Article 300-A.

Case Title: Deepak Sharma vs. State Of Up And 2 Others 2024 LiveLaw (AB) 118 [WRIT - C No. - 2208 of 2024]

Case Citation: 2024 LiveLaw (AB) 118

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