Compliance with Section 17(3-A) of the Land Acquisition Act, 1894 is mandatory for absolute vesting of the notified land, and the requirement to pass the award within the time frame contemplated under Section 11-A is applicable to the acquisition notified under Section 17.

JUDGMENT :

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(3-A) 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 11-A 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(3-A) 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 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 denovo, 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