*THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY +Writ Petition Nos.3957 of 2006 and 24105 of 2006 % 26-10-2010 # Vallabhaneni Madhava Rao and others …Petitioners Vs. $ State of Andhra Pradesh, rep. by District Collector, Krishna District at Machilipatnam and others …Respondents ! Counsel for the Petitioners: Sri S.R.Ashok Senior Counsel & Ashok Anand Kumar Counsel for the Respondents: G.P for Land Acquisition P.Roy Reddy (SC for APIIC) P.Rajagopala Rao < Gist: > Head Note: ? Cases referred: (2004) 4 SCC 322 AIR 2006 S.C. 1132 2008(6) ALT 617 (D.B) 2002(2) ALT 180 (D.B) (1996)11 Supreme Court Cases 698 AIR 1996 SUPREME COURT 520 (1996) 10 Supreme Court Cases 721 AIR 1996 SUPREME COURT 1170 (2008)9 Supreme Court Cases 177 2010(6) SCALE 71 1998(5) ALD 644 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition Nos.3957 of 2006 & 24105 of 2006 (Dated: 26-10-2010) W.P.No.3957 of 2006 Vallabhaneni Madhava Rao and others …Petitioners A n d State of Andhra Pradesh, rep. by District Collector, Krishna District at Machilipatnam and others …Respondents W.P.No.24105 of 2006 Malladi Venkata Ramana Devi and others …Petitioners A n d State of Andhra Pradesh, rep. by District Collector, Krishna District at Machilipatnam and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition Nos.3957 of 2006 & 24105 of 2006 COMMON ORDER: Writ Petition No.3957 of 2006 is filed by Vallabhaneni Madhava Rao, Ch.Nirmala, V.Swarupa Rani, V.Ramprasad and V.Rajesh and whereas Writ Petition No.24105 of 2006 is filed by Malladi Venkata Ramana Devi, Malladi Seetharamayya, Kanchubatla Manibala, Y.Ravikumar, M.Rama Krishna and Sobha Manikanth. 2. The petitioners in these two writ petitions challenge award No.5 of 2005 dated 5.8.2005 passed by the Land Acquisition Officer-cum-Sub-Collector, Vijayawada, Krishna District. The writ petitioners in W.P.No.3957 of 2006 are concerned with land admeasuring Ac.15.59 cents comprising Sy.No.60/2 of Kanuru village, Penamaluru Mandal, Krishna District, and whereas petitioners in W.P.No.24105 of 2006 are concerned with land admeasuring Ac.8.37 cents comprising Survey Nos.61 and 63 of Kanuru village, Penamaluru Mandal, Krishna District. 3. Background facts leading to filing of these two writ petitions assailing the award 5 of 2005 so far as it relates to the extents indicated above, in brief, are:- The Andhra Pradesh Industrial Infrastructure Corporation (for short, ‘the Corporation’) intended to establish an Automobile Workshop at Kanuru Village, near Vijayawada. At the request of the Corporation, the District Collector, Krishna-1st respondent published notification proposing to acquire the land admeasuring Acs.148.34 cents comprising R.S.Nos.181, 182, 183, 184 etc. of Kanuru village, Penamaluru Mandal. The said notification came to be quashed by this Court in Writ Petition No.2370 of 1988. Subsequently, the District Collector, Krishna, notified an extent of Ac.152.08 cents comprising R.S.Nos.60/2, 61, 62, 63 etc. of Kanuru village of Penamaluru Mandal. Notification under Section 4(1) of Land Acquisition Act, 1894 (for brevity, `the Act’) was published in the Gazette on 24.4.1995. The enquiry under Section 5-A of the Act was dispensed with, and declaration under Section 6 of the Act was published on 28.4.1995. Two writ petitions came to be filed questioning the notification issued under Section 4(1) of the Act and Section 6 declaration. One writ petition being W.P.No.10651 of 1995 filed by Malladi Krishna Mohan and another writ petition being W.P.No.10652 of 1995 filed by Vallabhaneni Madhava Rao, V.Venkata Rao and Ch.Nirmala. Malladi Krishna Mohan died pending disposal of W.P.No.10651 of 1995. M.V.Rama Devi, M.Sitaramayya and Smt. Mani Bala came on record as petitioners 2 to 4. V.Venkat Rao, who is the 2nd petitioner in W.P.No.10652 of 1995 died pending disposal of the said writ petition and his legal representatives came on record as petitioners 4 to 6. Both the writ petitions ended in dismissal by a common judgment dated 12.8.2003. The contention advanced by the petitioners that the land proposed to be acquired was not for public purpose came to be negatived by this Court in judgment dated 12.8.2003 passed in the above two writ petitions. For better appreciation, I may refer the relevant portion of the order dated 12.8.2003, which reads as hereunder:- “ That takes me to the submission made by the learned Senior Counsel that the land acquisition proceedings lapsed by reason of Section 11 A of the Act. Be it noted, if an award is not passed within a period of two years from the date of two years from the date of last publication of declaration under Section 6(1) of the Act, the land acquisition proceedings would lapse. In computing the period of two years, the time during which stay granted by this Court operates has to be excluded. The submission of the learned Senior Counsel is that as there is no stay in relation to half of the land comprised in Sy.Nos.61 and 63 and as no award was passed within two years from the date of declaration under Section 6(1),i.e., 28-4-1995, the land acquisition proceedings are lapsed. This is refuted by the learned Govt. Pleader, Sri P.Rajagopala Rao. His contention is that the petitioner’s share has not been delineated and that if an award is not passed within two years, the aggrieved person is his brother and, therefore, the contention cannot be entertained at the instance of the person who obtained stay in relation to his undivided half share. Alternatively, he submits that when a notification is issued showing the joint ownership of two brothers, even if there is an order of stay in relation to any portion of the land, the same would operate as stay of the proceedings in relation to other portion of the land. Reliance is placed by the learned Govt. Pleader on the decisions of the Supreme Court in State of Tamil Nadu v. Mahalakshmi Ammaml [AIR 1996 SC 866] and Abhey Ram v. Union of India [(1997)5 SCC 421]. The submission of the learned Senior Counsel cannot be accepted. In the affidavit accompanying W.P.No.10651 of 1995, the petitioner admits that he owns half share in Acs.5.33 cents comprised in Sy.No.61 and half share in Acs.11.42 cents in sy.No.63 of Kanuru village. He also admits that he has an undivided share. Indeed, the notification issued under Section 4(1) by the District Collector would show that in respect of the land comprised in Sy.No.61 as well as Sy.No.63, the name of the petitioner and the name of his brother Malladi Lakshminarayana are shown. There is no sub-division nor there is partition of undivided share. Therefore, there is force in the submission made by Sri P.Rajagopala Rao that when there is joint ownership, stay granted in favour of one joint owner will also operate as stay in respect of other land. In Abhey Ram v. Union of India (supra), a notification under Section 4(1) of the Act for acquiring large extent of 50,000 bighas situated in several villages was challenged inter alia on the ground that declaration under Section 6(1) published after three years is barred by law. A Full Bench of Delhi High Court upheld the validity of the notification on the ground that some of the land owners who land also was proposed for acquisition approached the High Court and obtained stay of further proceedings as a consequence of which the period of stay stood excluded by operation of Explanation II to Section 6(1) of the Act. Accordingly, the declaration was upheld. Subsequently, a Division Bench passed an order validating the notification against which an appeal was carried to the Supreme Court. Before the apex Court, it was contended that as the appellants had not obtained any stay pending the writ petition qua the appellants, there was no prohibition for the Government to proceed further for publication of declaration under Section 6 and, therefore, the declaration made after three years is invalid in law. The Hon’ble apex Court rejected the contention and dismissed the appeal of the land owners. It is apposite to excerpt the following observations on the declaration of law by the Supreme Court. ……..The question that arises for consideration is whether the stay obtained by some of the persons who prohibited the respondents from publication of the declaration under Section 6 would equally be extendible to the cases relating to the appellants. We proceed on the premise that the appellants had not obtained any stay of the publication of the declaration but since the High Court in some of the cases, has, in fact, prohibited them as extracted hereinbefore, from publication of the declaration, necessarily, when the court has not restricted the declaration in the impugned orders in support of the petitioners therein, the officers had to hold back their hands till the matters were disposed of. In fact, this Court has given extended meaning to the orders of stay or proceeding in various cases, namely, Yusufbhai Noormohmed Nendoliya v. State of Gujarat [ (1991)4 SCC 531], Hansraj H.Jain v. State of Maharashtra [ (1993) 3 SCC 634], Sangappa Gurulingappa Sajjan v. State of Karnataka [ 1994) 4 SCC 145], Gandhi Grah Nirman Sahkari Samiti Ltd. Vs. State of Rajasthan [ (1993) 2 SCC 662], G.Narayanaswamy Reddy v. Govt. of Karnataka[ (1991)3 SCC 261] and Roshnara Begum v. Union of India [ (1986) 1 Apex Dec 6]. The words “ stay of the action or proceeding” have been widely interpreted by this Court and mean that any type of the orders passed by this Court would be an inhibitive action on the part of the authorities to proceed further. When the action of conducting an enquiry under Section 5-A was put in issue and the declaration under Section 6 was questioned, necessarily unless the Court holds that enquiry under Section 5-A was properly conducted and the declaration published under Section 6 was valid, if would not be open to the officers to proceed further into the matter. As a consequence, the stay granted in respect of some would be applicable to others also who had not obtained stay in that behalf (emphasis supplied) There is yet another reason to reject the contention of the learned Senior Counsel on this aspect. As held by the Supreme Court in State of Tamil Nadu v. Mahalakshmi Ammal (supra), if a large extent of land is acquired and in relation to some extent of the land an award is passed within a period of two years, any delay in passing the award in relation to other land would not render the award invalid. It was held: It is well-settled law that publication of the declaration under Section 6 gives conclusiveness to public purpose. Award was made on 26/9/1986 and for Survey No.2/11 award was made on August 31, 1990. Possession having already been undertaken on November 24, 1986, it stands vested in the State under Section 16 of the Act free from all encumbrances and thereby the Government acquired absolute title to the land. The initial award having been made within two years under Section 11 of the Act, the fact that subsequent award was made on 31st August, 1990 does not render the initial award invalid. It is also to be seen that there is stay of dispossession. Once there is stay of dispossession, all further proceedings necessarily could not be proceeded with as laid down by this Court. Therefore, the limitation also does not stand as an impediment as provided in the proviso to Section 11-A of the Act. Equally, even if there is an irregularity in service of notice under Sections 9 and 10, it would be a curable irregularity and on account thereof, award made under Section 11 does not become invalid. In view of the above, the submission of the learned Senior Counsel is liable to be rejected as without any merit.” 4. The petitioners in Writ Petition No.10652 of 1995 carried the matter in appeal by filing Writ Appeal No.1503 of 2003. The said writ appeal came to be dismissed on 8.9.2003. The petitioners in W.P.No.10651 of 1995 also carried the matter in appeal being Writ Appeal 2036 of 2003 and the said appeal came to be dismissed on 7.12.2003. The dust and din of the dispute with regard to the validity of Section 4(1) notification and Section 6 declaration was set at rest with the dismissal of the writ appeals upholding the notification under Section 4(1) and declaration under Section 6 of the Act. After dismissal of the writ appeals, the Land Acquisition Officer issued notices under Sections 9(1) and (3) and 10 of the Act. Thereafter, an award being 5 of 2005 came to be passed on 5.8.2005. The said award is under challenge in these two writ petitions. 5. As most of the grounds urged in support of the writ petitions are similar and as in both the petitions the challenge is to the self same award, both the matters are being disposed of by this common order. 6. The principle grounds of challenge are: firstly; notices under Sections 9(1) and (3) and 10 were not served on the land owners as contemplated under the provisions of the Act, and secondly; the award is contrary to Section 11-A of the Act and that the entire proceedings lapsed, on account of the failure of the respondents to pass award within two years from the date of publication of the declaration under Section 6 of the Act. Apart from these grounds, certain other grounds also urged. For better understanding of the grievance of the writ petitioners, I deem it appropriate to refer the relevant portion of the affidavit filed in support of W.P.No.24105 of 2006, which reads as hereunder:- “ I submit that we also filed a representation to the Zonal Manager APIIC on 29.1.2005 requesting clarification regarding the Award No.4 of 96, Mutation, Nature of land etc. As there was no response we have filed Writ petition No.3080 of 2005. This Hon’le Court by order dated 22.2.2005 directed the respondents to pass orders on the representation. The Sub-Collector, Vijayawada by endorsement in RC B1/31889/94, dt.15.7.2005 answered the queries. In this endorsement the Sub Collector has given several details relating to Sec 4(1) notification, Section 6 declaration and also clarified that the Award 4 of 96 dated 23.5.96 does not cover the land of ac.8.37 cents in Sy.Nos.61, 63. I submit that there were no further proceeding with regard to the acquisition of our lands. He has forwarded the copy of the endorsement to all the petitioners and the same was received by the petitioners on 10.9.2005. In this endorsement no reference is made to the award 5 of 2005 though it was dispatched subsequent to 5.8.2005. I submit that while so we received a notice from the Sub Collector under Section 12(2) of the Land Acquisition Act stating that an Award bearing No.5/2005 dated 5.8.2005 was passed. This notice was signed on 20.8.2005 and dispatched to us on 9.9.2005 and we received the same on 14.9.2005. After receipt of the said notice we approached the Land Acquisition Officer for issuance of the copy of the Award but he has not granted the copy and therefore we were constrained to file a writ petition in W.P.No.21223/2005 on 28.9.2005. In this writ petition it was specifically stated that the non supply of the Award copy would prove our suspicion that there is something fishy about the Award. This Hon’ble Court by order dated 11.11.2005 allowed the writ petition. Thereafter, enclosing the copy of the judgment approached the Land Acquisition Officer and the Award copy was supplied to us”. 7. The respondents in the two writ petitions filed counter affidavits. It is suffice to refer the counter affidavit of the 2nd respondent in W.P.No.24105 of 2006. It is stated in the counter affidavit that the award dated 5.8.2005 has been passed within two years of the date of dismissal of the writ petitions being W.P.Nos.10651 and 10652 of 1995. The period of interim stay is liable to be excluded in computing the period for passing the award under Section 11A of the Act. It is also stated in the counter affidavit that notices under Sections 9(1) (3) and 10 of the Act were published and served as contemplated under the provisions of the Act and that the initial award being 4/96 dated 23.5.1996 in respect of Ac.115.94 cents out of Ac.153.33 cents and the subsequent award dated 05.08.2005 in respect of Ac.36.34 cents is to be treated as supplementary award in which case even if there is any delay in passing the supplementary award, it does not invalidate the supplementary award. Para 14 of the counter needs to be noted and it is thus:- “ In answer to the grounds raised in para 6(g) of the petitioners affidavit, it is submitted that the notices U/s 9(1) and 10 of the Act were issued on 2.7.04 and were duly published in the prescribed places strictly as per the provisions of the LA Act. Notices issued U/s 9(3) and 10 of the Act were sought to be served on the tenant of the petitioners as the petitioners were not residing in the village, but the tenant refused to take the notice. The petitioners having not attended the award enquiry cannot blame the respondents at later stage”. 8. According to the respondents, after passing the award on 5.8.2005, possession of the land has been delivered to the Dy. Zonal Manager, APIIC, Vijayawada on 13.9.2005 and the APIIC in turn developed the land with basic infrastructure facilities and allotted the plots to different small scale entrepreneurs. 9. The 4th respondent filed counter affidavit. The sum and substance of the counter affidavit filed by 4th respondent, in brief, is:- After handing over possession of the land admeasuring Ac.115.94 cents to APIIC, the Zonal Manager, APIIC made an application for sanction of lay out and in order to fulfill the conditions stipulated by the Vijayawada-Guntur-Tenali Urban Development Authority, Vijayawada, this respondent entered into an agreement with APIIC for development of the land and for laying of roads and maintaining greenery. It is further stated that the award was passed on 5.8.2005 and possession was taken over on 13.9.05. Under Section 16 of the Act, once possession is taken over after passing of the award, the question of divesting the property to the landowners does not arise. It is further stated that the last date of Section 6 declaration in the locality was given on 25.5.1995. The petitioners obtained stay on 30.5.1995 and it remained in operation till 12.08.2003 and therefore, the award passed on 5.8.2005 is within two years of the date of declaration under Section 6 of the Act. 10. The petitioners filed reply affidavit reiterating the grounds urged by them in the writ affidavits. 11. Heard leaned counsel appearing for the parties. 12. Sri S.R.Ashok, learned senior counsel appearing for the petitioners submits that the award is not passed within two years from the date of Section 6 declaration, and therefore, Award 5 of 05 dated 5.8.05 is non est in law. Learned Senior Counsel refers various endorsements on the note file maintained by the Land Acquisition Officer to buttress his submission that the award is ante dated. Learned senior counsel also contends that the award enquiry notices as contemplated under Sections 9(1) and (3) are not published/served on the interested persons and in which case, the award even if passed on 5.8.05 is vitiated for non-compliance of mandatory provisions of the Act. In support of his contentions, reliance has been placed on certain judgments of this Court as well as the Supreme Court. 13. Sri Ashok Anand Kumar supplementing the contentions advanced by the learned Senior Counsel has raised various large number of issues and made an attempt to challenge the entire acquisition proceedings though the limited prayer of quashing the award No.5 of 2005, dated 05.08.2005 has been sought for in the writ petitions. The learned counsel vehemently argued that the petitioners were not put on notice during award enquiry and proceedings during the award enquiry were conducted behind the back of the petitioners. He would also contend that the Land Acquisition Officer knowing fully well that the petitioners in W.P.No.3957 of 2006 reside in Divya Shakthi Apartments failed to send notice under Section 9(3) to their proper address and that itself is sufficient to conclude that the petitioners were not given proper opportunity to participate in the award enquiry and therefore, the award 5 of 2005 dated 5.8.2005 is liable to be set aside and the proceedings initiated for acquisition of lands under the Act are to be declared as lapsed. A further contention has been advanced that the panchanama dated 13.9.2005 regarding delivery of possession is only a make believe thing and no delivery has been effected in favour of APIIC, and in which case, the contention of APIIC that lands have been developed and subsequently converted into plots and allotted to the members of the 4th respondent does not stand to reason. 14. Sri P.Raja Gopala Rao, learned counsel appearing for the 4th respondent submits that the petitioners tried their best to delay the completion of the acquisition proceedings by filing series of writ petitions and in all the writ petitions, this Court negatived their contention and that they having failed in their attempts to stall the acquisition proceedings, resorted to filing this batch of writ petitions contending that they are not put on notice in the award enquiry. He would also submit that if the period of stay is excluded, the award passed by the Land Acquisition Officer is well within time and therefore, the writ petitions are liable to be dismissed with exemplary costs. A further submission has been made that the last publication under Section 6 was dated 25.5.1995. The petitioners filed writ petition and obtained interim order on 30.5.1995 and ultimately, the writ petitions ended in dismissal on 12.8.2003. In view of the interim orders passed by this Court in respect of Ac.36-34 cents, award for the remaining extent of Ac.115-94 cents came to be passed on 23.05.1996. If the period during which stay order in operation is excluded as per Explanation to Section 11 A, the award dated 5.8.2005 is well within the period of two years from the date of declaration under Section 6 of the Act. He would also contend that the Land Acquisition Officer signed the award on 5.8.2005 and subsequent approval of the award by the Joint Collector is only a ministerial act and the approval dates back to the date of award. 15. Two questions that arise for consideration are:- (1) Whether the award 5 of 2005 dated 5.8.2005 is passed within the period of two years from the date of publication of declaration under Section 6 of the Act ? (2) Whether the award enquiry conducted by the Land Acquisition Officer suffers from any infirmities or illegalities? 16. POINT NO.1: At the cost of repetition, I may state that the petitioners in earlier round of litigation obtained stay of dispossession on 30.5.1995 and ultimately, the writ petitions ended in dismissal on 12.8.2003. Thereafter, award 5 of 2005 came to be passed in respect of the lands owned by the petitioners on 5.8.2005. Section 11A of the Act reads as hereunder:- “ 11A.Period within which an award shall be made: The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse; PROVIDED that in case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement, Explanation: In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.” 17. It is not the case of the petitioners that notification under Section 4 and declaration under Section 6 of the Act were not published or given publicity as mandatorily required