ORDER
B. Prakash Rao, J.
1. The petitioners filed this writ petition seeking a writ in the nature of mandamus assailing G.O. Rt. No. 120, Irrigation and Command Area Development (PW.NSP) Department, dated 17.2.1999 issued by the first respondent as illegal and for a direction to implement the orders in G.O. Rt. No. 1483, Revenue (LA) Department, dated 29.11.1995 issued by the 2nd respondent.
2. Heard Sri M.V.S. Suresh Kumar, learned Counsel appearing for the petitioners and the learned Government Pleader for Land Acquisition, appearing for the respondents.
3. The petitioners claim that one Kotari Venkateswarlu, the father of the petitioner No. (l), Kotari Venkataramaiah, the father of the Petitioners 2 to 6 and Smt. Chavali Ramanamma, the mother of the Petitioners 7 to 11 were the absolute
owners and possessors of the land in Sy.No.82/1B2 ad measuring Ac.10.98 Cents situated at Maridipalem Village, Ongole Mandal, Prakasam District. The said land was acquired for the purpose of construction of Circle Camp Colony for Nagarjunasagar staff during the year 1971 and accordingly an Award No. 78/1972 was passed. Further, the said land was leased out in their favour in the year 1972 and since then they have been in possession and enjoyment of the same. In the meanwhile, the Chief Engineer, Nagarjunasagar Project, vide his letter bearing No. 16533(T&I) 59, dated 28.11.1981 informed the Collector, Prakasam District, Ongole, that the above land was not required by them and that they have no objection for alienation of the same. Meanwhile, as against the issuance of notice for cancellation of lease, a writ in Writ Petition No. 8328 of 1982 was filed challenging the same and obtained stay of dispossession on 23-11-1982. However, the said writ was dismissed later. Having regard to the same, petitioner No. (1), father of Petitioners 2 to 6 and mother of the Petitioners 7 to 11 filed an application before the District Collector, Prakasam, Ongole on 27.10.1986 for reconveying the land as per Board Standing Order No. 90, Paragraph 32(3) thereof. Since the said application remained unconsidered for quite a long time, petitioners filed Writ Petition No. 1802 of 1987, wherein this Court as per orders dated 1.6.1987 directed the 3rd respondent to dispose of the application dated 27.10.1986 of the petitioners within four weeks from the date of receipt of the order. Thereupon, the 3rd respondent passed orders on 4.7.1987 rejecting the application of the petitioners on the ground that it is filed beyond twelve years. Again petitioners filed Writ Petition No. 10921 of 1987 challenging the said orders and this Court, by order dated 7.10.1994, directed the 3rd respondent to dispose of the representation of the petitioners in terms of Clause (3) of Paragraph 30 of Board Standing Order
No. 90, without reference to the bar of limitation. According to the petitioners, on 7.12.1994 they have repaid the compensation amount to the third respondent under a pay order but the same was returned to the petitioners. When no action was forthcoming from the 3rd respondent, petitioners issued a legal notice on 22.5.1995 to the third respondent and since no orders are passed, petitioners filed Contempt Case No. 706 of 1995. Subsequently, the first respondent issued G.O. Rt. No. 1483, Revenue (LA.) Department dated 29.11.1995 directing the third respondent to reconvey the land in favour of the petitioners. Subsequently the respondents have issued G.O. Ms. No. 75, Revenue (LA) Department, dated 23.1.1996 keeping the said orders issued in G.O. Rt. No. 1453, Revenue (L.A) Department dated 29.11.1995, in abeyance pending further decision in the matter. This was challenged by the petitioners in Writ Petition No. 26505 of 1997 and the said writ petition was allowed by this Court on 3.3.1999. Questioning the said order, the respondents filed Writ Appeal No. 1219 of 1999. During the course of hearing of the writ appeal, the learned Counsel for the respondents herein brought to the notice of this Court that G.O. Rt. No. 120 dated 17.2.1999 was issued by the Government cancelling G.O. Rt. No. 1483, dated 29.11.1995, which was not brought to the notice of the learned single Judge. In those circumstances Writ Appeal No. 1219 of 1999 was disposed of by this Court on 23.1.2002 setting aside the order of the learned single Judge in Writ Petition No. 26505 of 1997 giving liberty to the petitioners to question G.O. Rt. No. 120 dated 17.2.1999. Therefore, petitioners filed the present writ petition.
4. Sri M.V. Suresh Kumar, learned Counsel for the petitioners attacked the impugned Government Order on several grounds. He mainly contends that G.O. Rt. No. 120, dated 17.2.1999 is arbitrary inasmuch as it is based upon G.O. Ms. No. 783 dated
19.9.1998, amending B.S.O., which is prospective in nature and it cannot have retrospective operation. He also contends that the impugned G.O. Rt. No. 120 dated 17.2.1999, which is based on the judgment of the Supreme Court in Civil Appeal No. 3628 of 1997 arising out of SLP (C) No. 2604 of 1992 dated 5.5.1997 (State of Kerala v. M. Bhaskaran Pillai), , cannot be sustained because the aforesaid decision of the Supreme Court has no application to the facts of the present case.
5. Learned Government Pleader for Land Acquisition appearing on behalf of the respondents sought to sustain the impugned Order on the ground that once the land is acquired and later if it is found that the acquired land is not useful for the purpose for which it is acquired, such land should be put to any other use or put to public auction instead of disposing of the same by way of sale to erstwhile owner. He sought to place reliance on the judgment of the Apex Court in Gulam Mustafa v. State of Maharastra, . In that case, certain extent of land was acquired for the public purpose, viz., for holding a village market. The area acquired was challenged as being in excess of the requirement and it was alleged that the municipality has sold the excess area. In that context it was held that once the original acquisition is valid and title vested in the Municipality, how it uses excess land is no concern of the Courts.
6. In this case, it is evident from G.O. Rt. No. 1483, Revenue (L.A.) Department, dated 29.11.1995 issued by the respondent No. 1 that the respondents, by taking note of various aspects of the matter and after examining the case carefully and in consultation with the Law Department, took a decision to reconveny the unutilised land of Ac. 10-98 cents in Sy.No.82 of
Maridipalem Village, Ongole Mandal, Prakasam District in favour of the petitioners, which was earlier acquired for Nagarjuna Sagar Project Camp Colony. Accordingly, the District Collector, Prakasam District, Ongole, was directed to reconvey the land and recover the amount of compensation from the petitioners with interest as per Rules in force, in terms of BSO No. 90, Paragraph 32(3). Thereafter, reviewing these orders, the respondent No. (1) issued G.O. No. 75, Revenue LA Department, Dated 23-1-1996 keeping in abeyance. Though a writ was filed challenging the latter order, and allowed a writ appeal was filed by the respondents. During pendency of the said appeal, final orders were passed in G.O. Rt. No. 120, Dated 17-2-1999 and the appeal was disposed of with liberty to challenge the same afresh. Meanwhile, the BSO No. 90 in Para 32 was amended by way of G.O. Ms. No. 783, Revenue L.A. Department, dated 9-10-1998. Prior to the amendment, the relevant portion of BSO No. 90 read as follows:
“When land acquired for a public purpose, is subsequently relinquished it should be disposed of as follows:-
(i) If the land relinquished is likely to be again required for public purposes, it should be merely leased out for such term as may be considered desirable in each case. B.P.207, dated 19-6-97,
(ii) If the land is situated within half a mile of the boundary of a railway station, it should be dealt with under the special rules applicable to such land which are given in Standing Order No. 15, Paragraph 38, clause (x) If under those rules it can be assigned permanently it should be disposed of under clause (iv) below.
(iii) If the land does not fall under either of the above descriptions and was originally building site or town land, it should be disposed of under the rules-governing the disposal of Government land of this
kinds-vide Standing Order 21. Such lands relinquished by the Departments of the Central Government should be sold in auction like town sites through the agency of the Revenue Divisional Officers and the sale proceeds credited to the department to which the cost of acquisition was originally debited.
G.O. Ms. No,1763, Rev. dated 28-8-37. B.P.36, Press, dated 20-4-38.
*B.S. Os, Vol. I
(iv) If the land is not declared unfit for permanent occupation under clause (i) or (ii) above and was agricultural or pastoral land at the time of the acquisition, it should be disposed of in accordance with the following instructions which should not be deviated from without the previous sanction of the State Government:-
Such lands should be notified for sale in public auction by giving wide publicity in respect of the sales in the villages by beat of tom-tom and affixing notice of sales in conspicuous places in the villages concerned. The date of sale should be fixed allowing an interval of thirty days between the date of publicity and the date of sale. The land should be sold by public auction subject to the annual assessment. There shall be no upset price except in the case of railway relinquished lands where a minimum or upset price should be fixed in consultation with Railway Administration before auction. If at the time of sale anybody puts forth his claim in respect of any field either as an adjacent owner, or as an original owner or as heir of the original owner, the sale of that field should be stopped and his claim investigated and disposed of in the manner specified in Sub-clauses (2) and (3). If it is found that this claim is not proved, the field should be sold by public auction
G.O. Ms. No. 989, Rev., dated 17-5-45. B.P. Press 15, dated 2-6-1945
G.O. Ms. No. 2388, Rev.,dated 29-11-45. B.P.Mis.1702, Dated 11-12-1947.
(2) (a) Where the land is useless to anyone but the adjacent owner, or
(2) (b) Where its possession by any person other than the adjacent owner would interfere with the full enjoyment of the adjoining property by its owner, it should first be offered to the adjacent owner at full market value.
(3) In cases where the circumstances described in (2) (a) and (b) do not exist, or where the adjacent owner does not after due notice, accept the offer, the land should be offered at cost price to the parties to whom the proprietary right and the right or occupancy, if any, in the land originally belonged or to their heirs.
Note :–When action is taken under Sub-clause (3) above and where both kinds of rights, viz., proprietary rights and rights of occupancy coexisted and were held by different persons prior to the acquisition, the grant of the proprietary rights should be made subject to the occupancy rights under the provisions of the Government Grants Act (Act XV of 1895). The price at which these rights are offered to the original owner, should be the amount of compensation originally paid for them less the 15 per cent solatium if any. This price may be reduced if necessary, on account of any deterioration of the land that may have taken place while it was in the occupation of Government but it should not be increased on account of any rise in its market value during the period.”
Under the amendment, the aforesaid sub Clauses 2 (a), 2 (b) and 3 in Clause IV of Para 32 substituted with the following Sub-clauses 2 and 3.
“2. Where the land comes under Sub-clause (1) above, it should be offered first, at cost price to the parties to whom the proprietary right and the right of occupancy if any, in the land originally belonged or to their heirs provided the period then has lapsed since the acquisition does not exceed 12 years.
3. Where the circumstances described in Sub-clause (2) above do not exist or whether the original owners or their heirs do not after due notice accept the offer and where the land is useless to any one except the adjacent owner would interfere with the full enjoyment of the adjoining property by its owner, the land should be offered to the adjacent owner at full market value.”
7. Thus under the amended rule, a period of limitation is prescribed, fixing the outer limit at 12 years since the date of acquisition. This amendment was issued on 19-5-1975. The amending G.O. does not specifically makes it with retrospective application. It is now a settled principle that unless the amending provision is made applicable retrospectively, it will only have prospective application.
8. In regard to the decision of the Supreme Court in State of Kerala v. M. Bhaskaran Pillai, , the Apex Court was considering the provisions of Section 16 of the Land Acquisition Act in regard to acquisition of assigned land and it was held that if the land remains unutilised after achieving public purpose, the same should be put to public auction instead of disposal by way of sale to the erstwhile owner. However, in that case, neither the similar provisions of BSO No. 90 nor any identical/similar provision or any question similar to the one involved in this case, has fallen for consideration. Therefore, the decision has no application to the facts of this case.
9. In Gulam Mustafa v. State of Maharashtra, , wherein the land acquired for the Municipality found to be excessive than the required extent and the same was sold, it was held that once acquisition is valid, title rests in the Municipality, and how it was excess land is no concern of the Courts. There is no dispute as to the principles laid down. However, the question involved in this
case being in pursuance of specific law under BSO 90, the said decision has no application. However, in this case, Government have taken final decision saying that they do not require the land in question and have acceded to the request of the petitioners for reconveying the said land in pursuance of BSO No. 90. Therefore, the decision in Gulam Mustafa’s case (supra) relied on by the learned Government Pleader is also not applicable to the facts of this case.
10. Having found that the twin reasons assigned by the respondents in support of the impugned order are not sustainable, there is no other option to this Court except to allow this writ petition. Accordingly, this writ petition is allowed and the impugned G.O. Rt. No. 120, Irrigation and Command Area Development (PW.NSP) Department, dated 17-2-1999, is set aside. Therefore, it is open to the petitioners to re-deposit the entire amount payable by them to the respondents within a period of four weeks from the date of receipt of a copy of this order. There shall be no order as to costs.