- A three-Judge Bench of the Supreme Court in a recent judgment adjudged a case concerning the issue of applicability of the time frame contemplated under Section 11 A of the Land Acquisition Act, 1894 to acquisition initiated by invoking urgency provision under Section 17 of the Land Acquisition Act.
- Section 11 A deals with the award under Section 11 to be made within 2 years from the date of declaration and upon failure to abide by the speculated period, the entire proceeding for acquisition of land shall lapse while Section 17 provides for special powers of acquisition in cases of urgency.
- The main issue in the case was regarding the requirement to render 80% payment of estimated compensation before absolute vesting of land, as under Section 17 (3A), and about the eligibility of acquisition under Section 17 is subject to pass the award within the contemplated time under Section 11 A.
- The bench comprising Justices S. Abdul Nazeer, A.S. Bopanna, and V. Ramasubramanian observed that there is a pre-requisite condition for the land losers to exercise rights conferred on them.;
- The word “employed” in Section 17 (3A) of the Act contains the word “shall” which is to be tendered and paid before taking possession. This cannot be interpreted as providing any discretion to the acquiring authority.
- The term “thereupon” is used in Section 17 (1) with respect to vesting. This relates to taking possession and payment in terms of Section 17 (3A) would be sine qua non for taking possession.
- Thus payment of 80%, taking over possession, and vesting of land with the government are all a sequence.
- The emergency provision fails when one of the instances in the sequence is missing. This is the pre-requisite condition to acquire and take possession of land, as such acquisition is permitted by exempting the Section 5A procedural mandate. Possession can take place beforethe passing of the award under Section 11 of the Land Acquisition Act.
- Even if possession is taken, it cannot take legal possession to absolutely vest the land unless the pre-requisite of payment of 80% is done before taking possession.
- In case of non-compliance, it loses the character of acquisition under Section 17. In absence of absolute vesting, it will lapse upon non-compliance with subsequent procedures and when the award is not passed within two years from the date of declaration.
- Even when the pre-requisite is not complied with and if the land loser does not challenge the acquisition or illegal possession, but agreed to the position, it is not per se illegal and it vests absolutely. In such a case, the event shall not be deemed to have lapsed until the land loser exercises the right.
- Since both Section 11 A and Section 17 (3A) was inserted in the Land Acquisition Act, 1894 to enable land losers to exercise their rights. The rights conferred on the land losers are to be exercised only by them and no acquiring authority or beneficiary shall exercise it unless triggered by the land loser.
- The Supreme Court held that
- Provision in Section 11 A of the Act shall apply to cases where acquiring authority has not complied with Section 17 (3A) to pay 80% compensation before taking possession as possession cannot be by law or vested absolutely.
- If possession is taken after the requirement is complied with and paying the 80% sum, despite the need to pass an award and pay the balance within the reasonable time limit, Section 11 A shall not apply to render the entire acquisition proceeding for acquisition to lapse with regards to absolute vesting. Enforcement to pass award and recovery of compensation are the only rights of a land loser.
- If consideration arises for any other case under the act or any enactment related to land acquisition para material in provisions shall be applied prospectively. Cases that have reached finality cannot be reopened.
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