ORDER
Motilal B. Naik, J.
1. Petitioners seek a mandamus directing the respondents to pass an award in pursuance of notification under Section 4(1) of the Land Acquisition Act published on 17-5-1991 and further seek such other reliefs in the circumstances of the case.
2. In all, there are seven petitioners in this writ petition. Petitioner No. 1 and late A. Suryanarayana Rao are brothers. Since A. Suryanarayana Rao died, his legal heirs-Petitioners 2 to 7 along with the first petitioner have filed this writ petition.
3. It is stated that in the year 1972, the fourth respondent initiated negotiations with the first petitioner and his brother A. Suryanarayarna Rao for acquiring the lands of the petitioners for the purpose of construction of staff quarters to its employees. The terms of the negotiations were reduced in writing between the petitioner No. 1 and his brother A. Suryanarayana Rao on one side and the fourth respondent on the other side on 28-8-1972 for acquiring the lands to an extent of Ac. 18.36 cents in S. Nos. 3/1, 3/2 and 4 in Kancherapalem Village of Visakhapatnam Mandal and District. As per the consent reached between the first petitioner and his brother A. Suryanarayan Rao on one side and the fourth respondent on the other side, the lands were given possession to tie fourth respondent – Port Trust Authority who took possession of the same on 29-8-1972 itself in anticipation of regular initiation of land acquisition proceedings by the competent authority. Though the lands were taken possession by the fourth respondent authority in the year 1972 itself, there was some delay in the initiation of land acquisition proceedings by the second respondent
4. In the mean time, the Urban Land Ceiling Act came into force in the State of Andhra Pradesh with effect from 17-2-1976 as a result of which the Port Trust Authorities informed the first petitioner and his brother A. Suryanarayana Rao to get these lands exempted from the purview of the Land Ceiling Act. As desired by the fourth respondent, the first petitioner and his brother Suryanarayana Rao approached the third respondent for exempting the lands which are subject matter of acquisition by the fourth respondent authorities. The third respondent was satisfied that the lands in question cannot be held to be surplus in the hands of the land owners as on the date of the Urban Land Ceiling Act being enforced in the State of Andhra Pradesh as by that time, the lands were taken possession by the fourth respondent in the year 1972 itself. Accordingly, the Urban Land Ceiling Authorities by a preliminary order dated 25-5-1981 cleared the said lands from the purview of Urban Land Ceiling Act.
5. “thereafter, the land acquisition proceedings were initiated by the competent authority by issuing notification under Section 4(1) of the Land Acquisition Act (for short ‘L.A. Act’) on 29-8-1981 through G.O. Rt. No. 760, which was also published in the A.P. Gazette Part-1 Extraordinary on 24-9-1981. It is stated that on 7-11-1981, the Special Officer-cum-competent authority under Urban Land Ceiling (for short ‘U.L.C.’) Visakhapatnam through his Final order decided that the lands in question do not become surplus lands in the hands of the land owners as the first petitioner and his brother A. Suryanarayana Rao surrendered the said lands to the fourth respondent in the year 1972 itself and since then the fourth respondent authorities were in possession of the said lands.
6. After the final order being passed by the U.L.C. Authority, the first petitioner and his brother late A. Satyanarayana Rao seem to have approached the second respondent for finalising the land acquisition proceedings. On 14-9-1984, the first petitioner and his brother Suryanarayana Rao seem to have addressed a letter to the District Collector, Visakhapatnam for passing appropriate award within a reasonable period as the lands in question were taken possession by the fourth respondent authorities in the year 1.972 itself. During this period, the first petitioner’s brother Suryanarayana Rao died in the year 1985. It is stated the second respondent pursuant to the letter written by the first petitioner and his brother on 14-9-1984 addressed a letter to the fifth respondent to send proposals under Section 11-A of the L.A. Act for the purpose of according permission for passing an award. His also stated that the Port Trust authorities had deposited an amount of Rs. 30 lakhs in the month of March, 1985 itself towards tentative compensation for the lands of the petitioners. In the letter addressed by the Port Trust authorities to the Collector on 29-8-1986, it is indicated that the Port Trust authorities have taken possession of the lands in the year 1972. It is alleged, despite the lands being taken possession in the year 1972 pursuant to consensus arrived at between the first petitioner and his brother Suryanarayana Rao with the fourth respondent and the lands being given possession to the Port Trust authorities on 29-8-1972, the petitioners have not received any compensation so far and therefore, are before this Court seeking appropriate direction.
7. It is alleged in the writ petition that the first notification under Section 4(1) of the L.A. Act was published on 21 -9-1981 and declaration under Section 6 of the Act was also published on 19-10-1982.The award could not be passed within a period of two years. The respondents under the mistaken impression that the proceedings got lapsed on account of the award could not be passed within two years, kept quite on the matter. However, again fresh notification under Section 4(1) of the Act was issued and got published in the Gazette on 11-2-1986 and declaration under Section 6 of the Act was also issued on 17-3-1986. This time again, the award could not be passed within a period of two years and the Land Acquisition authorities felt that the entire land acquisition proceedings got lapsed. However, yet another attempt was made by issuing notification Under Section 4(1) of the Act afresh which was published on 17-5-1991 and declaration under Section 6 of the Act was also published on 3-5-1992. This time, again award could not be passed within a period of two years and the concerned authorities felt mat the entire proceedings got lapsed as no award has been passed.
8. The emphasis of the petitioners is that while initiating land acquisition proceedings, emergency provisions under sub-section (4) of Section 17 of the Act were invoked, the lands were taken possession and when once the lands in question were taken possession in advance, not passing an award within a period of two years from the last date of the declaration Under Section 6 of the Act is not fatal. It is further contended that when the possession of the land is taken in advance and the lands are in possession of the beneficiary, even the land acquisition authority cannot issue withdrawal proceedings under Section 48(1) of the Land Acquisition Act as the lands vest with the fourth respondent authorities and therefore, the land acquisition authorities have no other go than to pass award and pay compensation to the petitioners whose lands have been taken possession in the year 1972.
9. On behalf of the respondents 4 and 5, detailed counters have been filed. It has been admitted by the fourth respondent that it entered into negotiations with the land owners i.e. the first petitioner and his brother for the purpose of acquiring the lands to the extent of Ac. 18.36 cents. It is also admitted that the lands in question were taken possession on 28-8-72 itself. But however, it is averred by the fourth respondent in the counter that it is not in actual possession of the lands. It is stated in the counter that as on the date of the land being taken possession, A.P. Vacant Land in Urban Areas (Prohibition of Alienation) Act 12 of 1972 was in force which fact was not noticed by the fourth respondent and the land taken possession by the fourth respondent is hit by the provisions contemplated under the said Act and therefore, it is pleaded that the fourth respondent is not responsible for the delay in passing the award. It is also admitted that certain moneys are deposited towards tentative compensation to be paid to the petitioners. The fourth respondent has also stated in the counter that since the U.L.C. Act came into force in the State of Andhra Pradesh in the year 1976 and as such, the extent of lands sought to be acquired by (sic. from) the petitioners become surplus in She hands of the petitioners.
10. On behalf of the fifth respondent, a separate counter has been filed. The fifth respondent has also admitted the fact of the Visakhapatnam Port Trust Authorities requisitioned for acquiring the lands on 26-9-1972 to an extent of Ac. 45.33 cents covered in S. Nos. 1/1,1/2, 2/1, 2/2, and 3/1, 3/2, and 4 of Kancherlapalem Village for construction of staff quarters. It is also admitted that the lands in question to the extent of Ac. 18.36 belonging to the Petitioners are situated in Sy. Nos. 3/1,3/2 and 4. The fifth respondent admits to the fact of issuance of three notices i.e., 4(1) and declaration Under Section 6 of the Act, but however, pleads that as the award could not be passed within a period of two years, the entire land acquisition proceedings got lapsed and therefore pleads that they cannot be held responsible. It is further stated in the counter that the U.L.C. authorities while issuing an order under Section 8(4) excluding the extent of lands from the holding of the petitioners through proceedings dated 2-5-1981 in CC.6143/76 have ignored the fact of the application of A.P. Vacant Land in Urban Areas (Prohibition of Alienation) Act 12 of 1972. It is further stated that the first respondent took objection as to the order of exemption issued by the third respondent exempting the lands from the purview of U.L.C. Act which have been taken possession by the fourth respondent. In this background, it is further stated that the Land Acquisition Officer has not taken possession of the lands, and as such it is open to the Government to withdraw the land acquisition proceedings by issuance of notification Under Section 48(l)of the Act.
11. Sri P.V. Seshaiah, learned counsel appearing on behalf of the petitioners states that the lands of the petitioners were acquired on negotiations by the fourth respondent – Port Trust authorities way back in the year 1972 and the possession of the lands was also delivered to them. Even after more than 24 years, no compensation is paid to the petitioners though the land acquisition proceedings were initiated on three occasions, the latest being in the year 1991, the a ward could not be passed as the respondents have deliberately allowed the entire land acquisition proceedings to lapse on one pretext or the other. It is contended that when once the possession of the lands is taken, the land acquisition proceedings never get lapsed and therefore the respondents ought to have passed the award and paid the compensation to the petitioners who have parted with their lands some 24 years ago.
12. The learned Government Pleader appearing on behalf of the fifth respondent and Sri K. Srinivasa Murthy, appearing on behalf of the fourth respondent have made submissions justifying their stands in accordance with the counter filed by them to say that the lands have not been actually taken possession. It has been stated by them that the petitioners are not entitled for compensation.
13. On hearing all the counsel elaborately, the following points emerge for consideration:
(1) Whether the taking possession of land by the fourth respondent authority pursuant to a consent reached between the first petitioner and his brother late Suryanarayana Rao on 28-8-1972 amounts to vesting of lands in the hands of the authorities? If so, whether it is open to the land acquisition authorities to deny the compensation to the petitioners in the guise of threat of issuance of notification under Section 48 of the Land Acquisition Act ?
(2) Whether the first respondent is competent to reopen the issue under Section 34 of the U.L.C. Act on the order passed by the third respondent – competent authority under U.L.C. Act in the year 1981 holding that the lands which are taken possession by the fourth respondent authority in the year 1972 does not attract the provisions of Urban Land Ceiling Act ?
(3) To what relief?
14. Insofar as the second point is concerned, petitioners have questioned the action of the first respondent in initiating proceedings under Section 34 of the L.A. Act in W.P. No. 3102/95, and therefore I wish to deal with this proposition in the said writ petition separately.
15. Coming to the first proposition, the intention of the respondents to say that the lands in question have not been taken possession actually and are entitled to withdraw the land acquisition proceedings by issuing notice under Section 48 of the Act, the law is well settled in so far as this aspect is concerned. When once the lands are taken possession, the property vests with the fourth respondent. Once the property vests with the Government, it is not open to the Government to say that it is entitled to issue withdrawal proceedings Under Section 48 of the L. A. Act. In Ch. Madhusudhan Reddy v. The Revenue Divisional Officer (L.A.O.) Warangal, , dealing with the similar situation, I have held that when once the possession of the land is taken, it is not open to the Government to say mat it is only paper possession and it is not further open to the authorities to seek recourse to withdrawing the land acquisition proceedings by issuing notification under Section 48 of the Act. When once the lands in question are taken possession while invoking the provisions Under Section 17 of the Act, such lands vest with the Government and the notification cannot be cancelled by whatever means. The decision cited above was subject matter of writ appeal and further challenge, in the Supreme Court by way of S.L.P. This Court was given to understand that the principle evolved in the said case was not interfered with by the Division Bench of this Court as well as the Supreme Court.
16. In this case, admittedly, the lands have been taken advance possession on 29-8-1972. However, a meek submission is made before this court to say mat the actual possession is not taken. The fact, however, remains that the fourth respondent has deposited a sum of Rs. 30 lakhs with the land acquisition authorities towards tentative compensation to be paid to the petitioners which fact is not disputed by the respondents. This itself is an indication and make it clear that the lands were taken advance possession and therefore, the plea that taking of possession is only a paper possession cannot be accepted in view of the ratio laid down in the decision cited (1) supra.
17. Coming to the relief aspect, petitioners have parted with their lands in the year 1972 to an extent of acs.18.36 cents on a consent reached between the fourth respondent and the first petitioner and his brother late Suryanarayana Rao. In the consent, it has been agreed that compensation would be paid to the land owners in pursuance of the land acquisition proceedings. Advance possession of lands were also given to the fourth respondent on 29-8-1972 itself. Normally, the land owners would expect compensation to be paid to them in a reasonable period. Unfortunately, for the petitioners, the Land Ceiling Act came into force in this State from 17-2-1976. Under the pretext of this Act, the fourth respondent authorities have again requested the land owners to get appropriate clearance from the Land Ceiling authorities so that compensation could be paid to them. The first petitioner and his brother late Suryanarayana Rao made efforts in this direction and the U.L.C authority by a preliminary order dated 25-5-1981 and final order dated 7-11-1981 cleared the lands in question from the purview of the U.L.C. Act. When once the authorities cleared the lands from the purview of the U.L.C. Act, it was expected that the fourth respondent requests the second and fifth respondents to complete the land acquisition proceedings as soon as possible. However, though notification Under Section 4(1) of the Act and declaration Under Section. 6 of the Act were issued on three occasions during the years 1981,1986 and the last in the year 1991-92, yet, the land acquisition authorities have not passed the award within the reasonable period. It is also seen from the counter of the fourth respondent that an amount of Rs. 30 lakhs has been deposited towards tentative compensation to be paid to the petitioners. The fourth respondent had tried to add some more confusion to the belated proceedings by stating that as on the date of taking possession by the Port Trust authorities in the year 1972, the implication of the A.P. Vacant Land in Urban Areas (Prohibition of Alienation) Act 12 of 1972 which came into force in the State of Andhra Pradesh on 5-6-1972 was not taken note of.
18. I do not think, the objections taken by the respondents to deny the petitioners reasonable compensation are sustainable. It is stated in the counter of the fourth respondent that an amount of Rs. 30 lakhs has been deposited towards tentative compensation to be paid to the petitioners. It is also admitted that the fourth respondent has already taken advance possession of the lands. When once advance possession of the lands is taken, it is not open to the fourth respondent to deny the compensation to the petitioners and is not entitled to beat around the busies.
19. Coming to the effect of the A.P. Vacant Land in Urban Areas (Prohibition of Alienation) Act 12 of 1972,1 do not think it is open to the respondents to say at this point of time that taking possession of the lands by the fourth respondent is improper. Having taken possession of the lands and having deposited tentative compensation of Rs. 30 lakhs, it is not open for the respondents to take this stand only for the purpose of depriving compensation So the petitioners. I have indicated with the power of the first respondent u /s 34 of the U.L.C. Act in W.P. No. 3102/95 and therefore, it is not necessary again to reiterate the same in this writ petition.
20. Failure on the part of the fifth respondent to proceed with the completion of land acquisition proceedings following declaration Under Section 6 of the Act seems to be improper inasmuch as when once advance possession of the lands is taken by invoking the emergency clause under sub-section (4) of Section 17 of the Act, the land acquisition proceedings do not get frustrated, as held by the Supreme Court in Satendra Prasad Jain v. State of U.P, . It has been held by the Supreme Court in the said case as under:
“The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by 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 making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17 (i) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner. Section 11-A cannot be so construed as to leave the Government holding title to the land without the obligation to determine compensation.”
21. It is dear from the above decision that when once the emergency provisions under Section 17 of the Act are invoked by reason of urgency, the land acquisition proceedings never get frustrated and obliges passing of the award basing on the last date of the notification..
22. The fourth respondent had negotiated to purchase a total extent of Ac. 45.33 gunt as from different land owners covered in S. Nos. 1/1, 1/2, 2/1.2/2, 3/1,2 and 4 of Kancherapalam village for construction of staff quarters. The land owners gave consent and the lands in question were given possession to the fourth respondent. The fourth respondent sent a requisition to the L.A.O. on 26-9-1972 requesting the L.A.O. to initiate land acquisition proceedings. Some of the land owners whose lands were also taken possession by the fourth respondent pursuant to the consent, aggrieved by the inaction of the respondents in completing the land acquisition proceedings approached this Court by filing Writ Petition No. 771/90. This Court disposed of the said writ petition by an order dated 21-12-1993 directing the respondents to initiate land acquisition proceedings including passing of award and payment of compensation within a period of three months from the date of receipt of a copy of the order. The said order of the Single judge (which order was passed by Justice Motilal B. Naik) has been carried in appeal by the respondents in Writ Appeal No. 672/94. A Division Bench of this Court dismissed the said writ appeal on 12-7-1994. However, the Government carried the matter to Supreme Court by way of S.L.P.No. 19737/94 which is also dismissed by the Supreme Court on 6-2-1995.
23. Pursuant to the dismissal of the S.L.P. by the Supreme Court, it is stated that the respondents initiated fresh proceedings by issuing notification Under Section 4(1) on 31-3-1995 and declaration Under Section 6 of the Act on 3-4-1995 and also passed the award. In view of the similarly placed persons succeeding in W.P.No. 771/90 and in Writ Appeal No. 672/94 pursuant to which fresh notification Under Section 4(1) and declaration Under Section 6 were issued on 31-3-1995 and 3-4-1995 respectively and also passing of award by the respondents, I am inclined to say that these petitioners are also entitled for similar treatment on par with the other land owners who had filed writ petition No. 771 /90.
24. The question is what shall be date of Section 4(1) notification for the purpose of passing the award. Though the fourth respondent has taken possession of these lands way back in 1972, for no fault of the petitioners, they have been made to suffer for all these 24 years without any compensation. In the circumstances of the case, I am inclined to say that the respondents are bound to issue fresh notification Under Section 4(1) of the L.A. Act and thereafter proceed to complete other requirement including that of passing award basing on Section 4(1) notification as is done in the case of the writ petitioners in W.P.No. 771 /90.
26. Accordingly, the respondents are directed to initiate fresh proceedings commencing from issuing Section 4(l) notification and complete the entire proceedings including passing of award and payment of compensation thereafter, within a period of three months from the date of receipt of a copy of this order.
27. The writ petition is allowed as indicated above, with costs of Rs. 5,000/-. The fourth and fifth respondents shall pay costs of Rs. 3,000/- and Rs. 2,000/- respectively to these petitioners within a period of two months from the date of receipt of a copy of this order.