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

A Three Judges Bench of the Supreme Court, in a judgment delivered recently, answered a reference made to it on the issue whether the time frame contemplated under Section 11A of Land Acquisition Act 1894 is applicable to acquisition initiated by invoking urgency provision under Section 17.Section 11A and 17 Land Acquisition ActSection 11A provides that the award under section 11 shall be made within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceeding for the acquisition of the land shall lapse. Section 17 deals with the special powers of acquisition in case of urgency. Section 17(3A) provides that before taking possession of any land under Section 17(1) or (2), the Collector shall, the collector shall tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto.IssuesThe main issues which arose in this case are : (a) Is the requirement to tender payment of 80% of the estimated compensation as contemplated under subsection(3A) to Section 17 of Act, 1894, mandatory to ensure absolute vesting of the notified land (b Whether the requirement to pass the award within the time frame contemplated under Section 11A applicable to the acquisition notified under Section 17 of Act, 1894.?The bench of Justices S. Abdul Nazeer, AS Bopanna and V. Ramasubramanian made the following observations:It is a prerequisite conditionThe word employed in subsection (3A) of Section 17 of the Act, 1894 is "shall" and it is to be tendered and paid "before taking possession". Hence it cannot be understood as providing any discretion to the acquiring authority. In fact, the last sentence of subsection (1) of Section 17 uses the word "thereupon" with respect to vesting. This word "thereupon" is correlated to taking possession and payment in terms of subsection (3A) is a sine qua non for taking possession. Therefore (1) payment of 80% (2) taking over possession thereafter and (3) vesting of land in the government take place in a sequence. Absent anyone of these in the sequence, the emergency provision fails. It is a prerequisite condition to acquire and take possession of the land 14 since such acquisition is permitted by exempting the requirement of the procedure under Section 5A and possession is permitted to be taken prior to an award being passed under Section 11 of Act, 1894.to enable the land losers to exercise their right conferred on themEven if possession is taken, such possession cannot be considered as legal so as to vest the land absolutely if the prerequisite condition for payment of 80% before taking possession is not complied. In such circumstance, by legal fiction it looses its character as an acquisition under Section 17 and since the absolute vesting does not take place, it will lapse if the further process is not complied and the award is not passed within two years from the date of declaration. However, even when the precondition is not complied, if the land loser does not challenge the acquisition and/or taking of possession as illegal, but concedes to the position, the possession taken does not become perse illegal and the vesting will be absolute and in such event it cannot be considered to have lapsed until the land loser exercises the right. We consider it so, since, both Section 11A and subsection (3A) to Section 17 of Act, 1894 were inserted in Act,1894 to enable the land losers to exercise their right conferred on them. As such, the said right is to be exercised by the land loser and none other, not even the acquiring authority or beneficiary nor would the said 18 provision become automatically applicable unless it is triggered by the land loser.The Apex Court bench answered these issues by holding thus:(i) The provision contained in Section 11A of Act, 1894 shall be applicable to cases in which the acquiring authority has not complied with the requirement of subsection (3A) to Section 17 of Act, 1894 by tendering and paying eighty per centum of the estimated compensation before taking possession since possession in such cases cannot be considered to be taken in accordance with law and the vesting is not absolute. (ii) If the requirement is complied and possession is taken after tendering and paying eighty per centum, though there is need to pass an award and pay the balance compensation within a reasonable time, the rigour of Section 11A of Act, 1894 will not apply so as to render the entire proceedings for acquisition to lapse in the context of absolute vesting. The right of land loser in such case is to enforce passing of the award and recover the compensation.(iii) The decision...

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

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