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JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 168 of 19710/21/2011"17. Special powers in cases of urgency.- (1) In cases of urgency, whenever the appropriate Government sodirects, the Collector, though no such award has been made, may, on the expiration of fifteen days from thepublication of the notice mentioned in Section 9, sub- section (1), take possession of any land needed for publicpurpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.XXX XXX XXX(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 5-Ashall not be apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land atany time after the date of the publication of the notification under section 4, sub-section (1).""48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.-(1) Expect in the case provided for in Section 36, the Government shall be at liberty to withdraw from theAcquisition of any land of which possession has not been taken."It was contended that in view of Section 11-A of the Act the entire land acquisition proceedings lapsed as noaward under Section 11 had been made within 2 years from the date of commencement of the Land AcquisitionAmendment Act, 1984. We are of the view that the above plea has no force. In this case, the Government hadtaken possession of the land in question under Section 17(1) of the Act. It is not open to the Government towithdraw from the acquisition (Section 48 of the Act). In such a case, Section 11-A of the Act is not attracted andthe acquisition proceedings would not lapse, even if it is assumed that no award was made within the periodprescribed by Section 11-A of the Act. Delivering the Judgment of a Three Member Bench of this Court, inStander Prasad Jain and others vs. State of U.P. and others, 1993 (4) sc 369, S.P. Bharucha, J., at page 374,paragraph 15, stated the law thus:"Ordinarily, the Government can take possession of the land proposed to be acquired only after an award ofcompensation in respect thereof has been made under section 11. Upon the taking of possession, the land vestsin the Government, that is to say, the owner of the land loses to the Government the title to it. This is what section16 states. The provisions of section 11-A are intended to benefit the landowner and ensure that the award ismade within a period of two years from the date of the section 6 declaration. In the ordinary case, therefore, whenGovernment fails to make an award within two years of the declaration under section 6, the land has still notwasted in the Government and its title remains with the owner, the acquisition proceedings are still pending, andby virtue of the provisions of section 11-A, lapse. When section 17(1) is applied by reason of urgency,Government takes possession of the land prior to the making of the award under Section 11 and thereupon theowner is divested of the title to the land which is vested in the Government. Section 17(1) states so inunmistakable terms. Clearly, section 11- A can have no application to cases of acquisition under Section 17,because the lands have already vested in the Government and there is no provision in the said Act by which landstatutorily vested in the Government can revert to the owner."(Emphasis supplied)We, therefore, hold that the land acquisition proceedings in the instant case did not lapse."Recent judgment of the Supreme Court in M/s. Delhi Airtech Service Pvt. Ltd. & another Vs. State of U.P. andothers, J. T. 2011(9) S.C. 440 needs to be noted in this context. The provisions of Section 17(3A) as well as 11 Aof the Act came for consideration before the Apex Court. Submission was made that payment of 80%compensation as contemplated under Section 17(3A) is a condition precedent for taking possession underSection 17(1). It was contended that unless the provision is interpreted as mandatory the whole purpose andobject shall be frustrated . The two judge Bench which heard the matters in M/s Delhi Airtech Services Pvt. Ltd.deferred on the interpretation of Section 17(3-A). Hon. Justice Ashok Kumar Ganguli held the provisions ofSection 17(3A) mandatory. Following was laid down in paragraphs 72 and 74:"72. On the above premise, taking over a possession of land without complying with the requirement of section 17(3A) is clearly illegal and in clear violation of the statutory provision which automatically violates the constitutionalguarantee under Article 300A. A passing observation to the contrary in S.P. Jain (supra) must pass sub silentiobeing unnecessary in the facts of the case as otherwise such a finding is per incuriam, being in violation of thestatute. A fortiorari the said finding cannot be sustained as a binding precedent.74. This court further holds that in all cases of emergency acquisition under section 17, the requirement of
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 169 of 19710/21/2011payment under section 17(3A) must be complied with. As the provision of section 17(1) and section 17(2) cannotbe worked out without complying with requirement of payment under section 17(3A) which is in the nature ofcondition precedent. If section 17(3A) is not complied with, the vesting under section 17(1) and section 17(2)cannot take place. Therefore, emergency acquisition without complying with section 17(3 A) is illegal. This is theplain intention of the statute which must be strictly construed. Any other construction, in my opinion, would lead todiluting the Rule of Law."Hon. Justice Swatanter Kumar took a different opinion and relying on various judgment of this Court following theline of Satyendra Prasad Jain it was opined that Section 17(3-A) is not mandatory. Justice Swatanter Kumarfurther held that Section 11-A has no application to the acquisition proceedings under Section 17 of the Act.Following observation were made by Hon. Justice Swatanter Kumar in paragraph 117:"Consistent with the view expressed by this Court in the cases referred (supra), I am of the considered view thatthe provisions of Section 17(3A) of the Act are not mandatory. Such a conclusion can safely be arrived at, evenfor the reason that the Court would have to read into the provisions of Section 17(3A) consequences and a strictperiod of limitation within which amount should be deposited, which has not been provided by the Legislature itselfin that section. The consequences and contingencies arising from non-compliance of the said provisions have notbeen stated in the Act. Once the land has vested in the Government, non-compliance with the obligation ofpayment of 80 per cent of estimated compensation would not render the possession taken under Section 17(1) asillegal. The land cannot be re-vested or reverted back to the claimants as no provisions under the Act soprescribe. Furthermore, if the interpretation put forward by the appellants is accepted, it would completely frustratetheobjects and purpose of the Act, rather than advancing the same. The expression `shall' used in Section 17(3A)has to be understood in its correct perspective and is not to be construed as suggestive of the provisions beingabsolutely mandatory in its application. Inter alia for these reasons and as per the above discussions, I hold thatthe provisions of Section 17(3A) are not mandatory. They are directive provisions, though their compliance isnecessary in terms of the Act."There being difference of opinion the matter was directed to be placed before Hon. Chief Justice for reference tolarger bench to resolve the divergent views expressed in both the judgments and to answer the questions of lawframed. From the above, it is clear that the issue is yet to be considered by larger Bench of the Apex Court onSection 17(3A). However, we are bound to follow the law as it exists today which is a binding precedent underArticle 141 of the Constitution of India. The judgment in Sateyendra Prasad Jain will hold the field hence thesubmission of the petitioner at present that Section 17(3) A is mandatory, non compliance of which vitiate theacquisition can not be accepted.12. Waiver:Shri S.P. Gupta, learned Senior Advocate appearing for the intervenors has submitted that the petitioners afterhaving accepted the compensation under the 1997 Rules, and having not objected to the dispensation of inquiryunder Section 5A of the Act, 1894 they have waived their right to challenge the acquisition.Learned Counsel appearing for the State has also contended that the petitioners shall be treated to have waivedtheir right challenging the writ petition in view of the facts and circumstances of the present cases.Shri S.P. Gupta, learned Senior Advocate appearing for the intervenors, elaborating his submission contendedthat even though the inquiry under Section 5A of the Act, 1894 was dispensed with by invoking Sections 17(1)and 17(4) of the Act, the land owners ought to have objected against the said dispensation and no objectionshaving been filed by the land owners it will be presumed that the petitioners have waived their right to challengethe notifications. It is further contended that the petitioners after having accepted the compensation under the1997 Rules, they shall be treated to have relinquished all their rights against the acquisition. It is submitted by ShriS.P. Gupta, that if there are any grievances of the land owners regarding non-declaration of the amount ofcompensation taken by them they had the remedy to agitate under Section 18 of the Act, 1894. The land whichwas acquired by the Authority was developed and development was made in the knowledge of everyone. Noobjections having been raised, it will be presumed that that the petitioners have waived their right to challenge thenotifications. It is further submitted by Shri S.P. Gupta that certain land owners were also allotted plots/flats under6% allotment scheme of Abadi land which was subsequently transferred by them to other persons.Learned counsel for the petitioners has also placed reliance on the judgment of the Apex Court in Commissionerof Income Tax, Calcutta Vs. T.I. & M Sales Ltd., (1987) 3 SCC 132, Rajendra Singh Vs. State of M.P. & Ors,(1996) 5 SCC 460, M.C. Mehta Vs. Unioin of India & Ors., (1999) 6 SCC 237.
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