JUDGMENT
N.K. Patil, J.
1. The appellants herein aggrieved by the order dated 27-11-2000 passed by the learned Single Judge in Writ Petition No. 25196 of 1999 have preferred this appeal.
2. The said writ petition came up for consideration before the learned Single Judge on 27-11-2000. The writ petition was allowed and the impugned cancellation of notification dated 3-7-1998 under Section 48(1) of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) and published in Karnataka Gazette, dated 25th March, 1999, denotifying an extent of 32 guntas in Sy. No. 46/C was quashed. The appellants, who were respondents 5 to 10 in the writ petition, are before this Court.
3. The third respondent issued the preliminary notification dated 22nd May, 1986 under Section 4(1) of the Act, at the instance of the first respondent for the purpose of burial ground, which was followed by the final notification dated 11-7-1987 issued under Section 6(1) of the Act. It is stated by the appellants that though the extent of Sy. No. 46/C is 1 acre 16 guntas, 23 guntas were separately acquired for N.H. 4 and only 32 guntas were available. The final notification was issued in regard to 32 guntas and the award was passed to that extent only as early as on 29th September, 1987. Thereafter, the possession of the said land was taken on 9-10-1988 and handed over to the first respondent-society. Later necessary changes were made in the village records as per mutation entry No. 1834. The entire acquisition proceedings were completed strictly as per the relevant provisions of the Act.
4. The first respondent which is the registered sangha filed Writ Petition No. 25196 of 1999 challenging the notification dated 17-3-1999, the same was published in the Karnataka Gazette, dated 25-3-1999 issued by the 2nd respondent for withdrawing the land in question from acquisition.
5. The learned Counsel for the appellants contended that there is no notification issued under Section 16(2) of the Act in respect of the land in question and the learned Single Judge has not considered the fact that the appellants are the owners of the land in question. It was further contended that neither the appellants nor respondent 5 handed over possession to the Government or to the first respondent. It is further
submitted that the respondent 5 claiming to be the agreement holder from the original owner filed a suit in O.S. No. 595 of [1997] challenging the acquisition. The said suit was decreed. However, the appeal filed by the first respondent in R.A. No. 136 of 1991 was allowed and the suit filed by respondent 5 was dismissed. Respondent 5 has challenged the said judgment and decree in the second appeals viz., R.S.A. Nos. 860 and 622 of 1994, which also came to be dismissed on 13-3-1998.
6. It is pertinent to note that respondent 5 filed Writ Petition No. 29506 of 1998 challenging the acquisition of the land in question. The said writ petition came to be dismissed on 29-1-1999 holding that respondent 5 has not produced any material evidence to show that she was in possession and that the documents produced by the respondent showed that the land vested with the Government on taking possession. In view of unsuccessful attempts made by respondent 5 in the second appeal and the writ petition, it appears, she has made an application to the 2nd respondent for denotifying the land. The second respondent without notice to the 1st respondent issued the impugned notification dated 17-3-1999 denotifying the land in question from acquisition under Section 48 of the Act. Being aggrieved by the same, the 1st respondent filed Writ Petition No. 25196 of 1999. The said writ petition was allowed on 27-11-2000 by the learned Single Judge. Against the said order, the appellants have come up in appeal.
7. The main contention of the learned Counsel for the appellants is that there was no notification under Section 16(2) of the Act and hence, the land in question was not vested. It is, therefore, contended that the law permits withdrawal under Section 48 of the Act. The said submission of the learned Counsel has no legal substance in view of the clear provisions of Section 16(1) and (2) of the Act, which read thus:
“16. Power to take possession.–(1) When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.
(2) The fact of such taking possession may be notified by the Deputy Commissioner in the Official Gazette, and such notification shall be evidence of such fact”.
There is nothing to show that the publication in Official Gazette is mandatory. Section 16(2) only states that the notification shall be evidence of taking possession of land. Even without such notification, the effect of Section 16(1) holds the field. The operation of Section 16(1) is not subject to and dependent upon compliance with Section 16(2). In the instant case, the possession of the acquired land was taken by recording of a panchanama by the Land Acquisition Officer in the presence of the witnesses and that would constitute the taking possession of the land in question. Once we reach the conclusion that the possession of the land is vested with the Government under Section 16(1) of the Act, non-publica-
tion of notification in Gazette under sub-section (2) of Section 16 will not vitiate the acquisition proceedings. The Supreme Court held in the case of Tamil Nadu Housing Board v. A Viswam (dead) by L.Rs, that one of the accepted modes of taking possession of the acquired land is recording of memorandum or panchanama by the Land Acquisition Officer in the presence of the witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not co-operate in taking possession of the land. In the instant case, as observed by learned Single Judge on perusal of record, possession was taken on 9-10-1998 by preparing a panchanama and hence, as per Section 16(1) of the Act, the land got vested with the Government as early as on 9-10-1998. Therefore, the finding rendered by the learned Single Judge does not call for any interference. In our considered opinion, the submission of the learned Counsel for the appellants cannot be accepted in view of the dictum of the Supreme Court referred to supra.
8. In the instant case admittedly, the 2nd respondent has not issued any notice to the 1st respondent before denotifying the land in question. Therefore, the law laid down by the Supreme Court squarely applies to the facts of the present case. It is worthwhile to make reference to the decision in the case of M/s. Larsen and Toubro Limited v. State of Gujarat. The Supreme Court held while dealing with Sections 48 and 39 of the Act that for withdrawal from acquisition, prior notice to the affected party is not necessary when landowner is the affected party, but, necessary when a company for whose benefit land is acquired is the affected party.
9. We are constrained to make reference regarding conduct of the appellants, because these appellants have sold the land in question by way of agreement in favour of 5th respondent and 5th respondent in turn has agitated his right in the Original Suit, first appeal, second appeal and also in the writ petition. Since she could not succeed, the appellants have come up by way of this appeal contending that there is no notification issued under Section 16(2) of the Act. The appellants have not approached this Court with clean hands. There is inordinate delay in seeking relief before this Court. This writ appeal is liable to be rejected on the ground of delay and laches. In this connection, a reference may be made to the observations made by the Supreme Court in the case of Municipal Council, Ahmednagar v. Shah Hyder Beig. In paras 17 and 18 it is held thus:
“17. In any event after the award is passed, no writ can be filed challenging the acquisition notice or against any proceedings therein.
18. Similar is the view in an earlier decision of this Court in the case of Municipal Corporation of Greater Bombay v. The Industrial Development Investment Company Private Limited. Incidentally, the decision last noted was also on the land acquisition and requisition under the Maharashtra Regional and Town Planning Act, 1966 and in paragraph 29 of the report, this Court observed:
“It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But, it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches””.
Viewed from any angle, we do not find any merit in the appeal. Writ appeal is dismissed. No costs.