*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + Writ Petition Nos.13705, 13706, 16382, 16387, 16392, 16665, 16669, 16671, 16674, 16834, 16837, 16839, 17603, 17609, 17611, 17775, 17777, 17783, 18227, 18231, 18236, 19364, 20032, 20035, 23979, 23982, 24248 and 24309 of 2009 of 2009 %09.12.2009 #Syed Mehdi and others. ..Petitioners Vs. $Hyderabad Metropolitan Development Authority and another. ..Respondents. !Counsel for the petitioners : Sri Harender Pershad ^Counsel for the Respondents : Sri M.Dhanunjaya Reddy & GP for Revenue. <Gist : >Head Note: ?Cases Referred: (1993) 4 SCC 369 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition Nos.13705, 13706, 16382, 16387, 16392, 16665, 16669, 16671, 16674, 16834, 16837, 16839, 17603, 17609, 17611, 17775, 17777, 17783, 18227, 18231, 18236, 19364, 20032, 20035, 23979, 23982, 24248 and 24309 of 2009 of 2009 COMMON ORDER: The petitioners are the owners of an extent of Acs.10.10 guntas of land in survey Nos.362, 366, 373 and 374 of Manchirevula Village, Rajendranagar Mandal, Ranga Reddy District. They submitted applications to the Hyderabad Metropolitan Development Authority (for short, ‘the Authority’), with a request to regularize the layout, in terms of G.O.Ms.No.902, dated 31.12.2007. It was pleaded that the land was divided into plots in anticipation of the layout and that they are entitled for the benefit provided for under the said G.O. Requisite amounts were remitted. Through letters of different dates, the authority returned the applications, on the ground that the land is under acquisition by the State Government. The petitioners feel aggrieved by the same. The petitioners contend that an extent of Acs.10.10 guntas of land in survey Nos.362, 366, 373 and 374 of Manchirevula Village was proposed to be acquired for the purpose of establishing a Commando Training Centre for Gray Hounds and that notifications under Section 4(1) and 6 of the Land Acquisition Act, 1894 (for short ‘the Act’), were published on 23.02.2004 and 08.03.2004, respectively. According to them, the declaration under Section 6 of the Act was set aside by this Court, through its order, dated 06.09.2005 in W.P.No.20462 of 2004, in respect of part of the said land and that the same was followed in W.P.No.10872 of 2005, filed as regards the other part of the land. They submit that though enquiry under Section 5-A of the Act was conducted, the Government did not publish notification under Section 6 of the Act and in view of lapse of time and by operation of proviso to Section 6 of the Act, the entire land acquisition proceedings have lapsed. The 2nd respondent filed a counter-affidavit, which covers facts of almost all the cases. The publication of notifications under Sections 4 and 6 of the Act and the orders passed by this Court in W.P.Nos.20462 of 2004 and 10872 of 2005 are mentioned. According to them, the enquiry under Section 5-A of the Act was conducted and that the proposals for publication of draft declaration under Section 6 are pending with the Government for approval. The 2nd respondent contends that the possession of the land was taken on 16.04.2005, by invoking the urgency clause, under Section 17(1) of the Act, and that once the land has vested in the Government, the petitioners cannot seek regularization of the layout, as provided for under G.O.Ms.No.902 (Municipal Administration and Urban Development (M1) Department, dated 31.12.2007. Learned counsel for the petitioners submit that the ground, on which, their applications were rejected, is untenable and non-existent in law. They contend that once the invocation of urgency clause of the respondents was found fault with by this Court and the declaration under Section 6 of the Act is set aside, possession of the land taken by invoking urgency clause, cannot be sustained. It is also pleaded that the vesting of land in the Government by operation of sub-section (1) of Section 17 of the Act would only relieve the rigour under Section 11-A of the Act, in the context of passing an award within a stipulated time, but not the basic requirement, as to existence of a declaration under Section 6 of the Act. Learned Government Pleader for Land Acquisition, on the other hand, submits that the enquiry under Section 5-A of the Act, that was ordered by this Court has been completed and that the proposals for approval and publication of the declaration are pending with the Government. Placing reliance upon certain precedents, he submits that once the land is vested in the Government by operation of Section 17(1) of the Act, the petitioners cannot claim any rights in respect of that. According to him, the proviso to Section 6 of the Act, which requires publication of a declaration within one year from the date of publication of notification under 4(1), does not apply to cases where the possession of the land was taken by invoking urgency clause. Learned Standing Counsel for the 1st respondent i.e. the Hyderabad Metropolitan Development Authority, contends that the applications submitted by the petitioners were not processed, in view of the information received from the Government. The petitioners purchased plots from out of the land in survey Nos.362, 366, 373 and 374 of Manchirevula Village. There was no approved layout for that land. In the recent past, the Government of A.P. issued G.O.Ms.No.902, dated 31.12.2007, providing for regularization of unauthorized layouts, subject to certain conditions, such as by collecting development charges and penalty. The petitioners intend to avail that benefit and accordingly made applications duly remitting the requisite amounts. However, the applications were rejected, only on the ground that the land was notified under the Act for the benefit of Gray Hounds Organization. If the acquisition is still in force, the petitioners cannot claim any rights over the land covered by such proceedings. It is a matter of record that the land in survey Nos.362, 366, 373 and 374 of Manchirevula Village, to an extent of Acs.10.10 guntas, was chosen for acquisition for the benefit of Gray Hounds. Draft notification under Section 4(1) of the Act was published vide G.O.Rt.No.255, Home Department, dated 23.02.2004. Urgency clause was invoked and enquiry under Section 5-A of the Act was dispensed with. Declaration under Section 6 of the Act was published vide Memo dated, 13.03.2004. Possession is said to have been taken on 16.04.2005. W.P.No.20462 of 2004 was filed before this Court by M/s.Russell’s Institute of Spoken English Private Limited, Hyderabad, challenging the acquisition proceedings, in respect of part of the land. Several contentions were urged, including the one relating to the invocation of urgency clause. The writ petition was allowed on 06.09.2005 and the declaration under Section 6 of the Act was set aside. It was held that there was no basis for invoking urgency clause. Direction was issued to conduct enquiry under Section 5-A of the Act. The owners of the remaining land filed W.P.No.10872 of 2005. Same result ensued and this Writ Petition was allowed on 01.02.2006 in terms of W.P.No.20462 of 2004. The orders passed by this Court in the writ petitions, referred to above, have become final. According to the 2nd respondent, enquiry under Section 5-A of the Act was taken up and a report was submitted. The fact remains that the declaration under Section 6 of the Act was not published as yet. Section 6 of the Act reads as under: “Declaration that land is required for a public purpose: (1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied after considering the report, if any, made under Section 5A, sub- section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4, sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5A, sub-section (2): Provided that no declaration in respect of any particular land covered by a notification under Section 4, sub- section (1), - (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967) but before the commencement of the Land Acquisition (Amendment Act), 1984 (68 o 1984) shall be made after the expiry of three years from the date of the publication of the notification; or (ii) published after the commencement of the Land Acquisition (Amendment Act), 1984, shall be made after the expiry of one year from the date of the publication of the notification: (remaining part of section is not necessary. Hence, omitted)” The first proviso in the present form was introduced through Act 6 of 1984. It prohibits the issuance or publication of declaration after expiry of one year from the date of publication of draft notification under Section 4(1) of the Act. Initially, the declaration was published within the stipulated time. Since it was set aside by this Court, through orders, dated 01.02.2006, as regards, the land of the petitioners, the period has to be reckoned from that date. More than three years have elapsed from that date. Therefore, it becomes impossible or impermissible for the Government to publish declaration. The inevitable consequence is that the notification under Section 4(1) of the Act ceases to be effective. The only ground, on which the 2nd respondent proposes to save the situation, is by relying upon the fact that the possession of the land was taken on 16.04.2005. Normally, possession of land proposed to be taken is to be taken, after the award is passed. This is evident from Section 18 of the Act. Sub-section (1) of Section 17 of the Act, however, provides for taking possession of the land, before the award is passed, if there exists urgency. In such cases, the land would vest in the Government, subject to the payment of 80% of the estimated compensation under sub-section (3A) of Section 17 of the Act. Though it may not be necessary, the said compensation is paid before taking possession, a possibility as such, must exist for the same to be paid. It hardly needs any mention that the proposal to acquire a piece of land transforms into a declaration, connoting, final decision to acquire, only on publication of the relevant notification under Section 6 of the Act. It is axiomatic that no acquisition under the Act can take place, either in the normal course or by invoking urgency clause, in the absence of a declaration under Section 6 of the Act. In the instant case, not only there does not exist any declaration under Section 6 of the Act, but also there is no possibility for it to come into existence. The reason is that the prohibition contained in proviso to Section 6 of the Act, has operated. I n Satendra Prasad Jain v. State of U.P.[1], the Hon’ble Supreme Court held that Section 11-A of the Act, which prohibits an award from being passed after lapse of stipulated period, from the date of publication of draft declaration under Section 6 of the Act, has no application, whenever an urgency clause is invoked. Paragraphs 15 and 16 of that judgment are important and they read as under: “15. Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title of it. This is what section 16 states. The provisions of Section 11-A are intended to benefit the landowner 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 the 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(1) 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. 16. Further, Section 17(3-A) postulates that the owner will be offered an amount equivalent to 80 per cent of the estimated compensation for the land before the Government takes possession of it under Section 17(1). Section 11-A cannot be so construed as to leave the Government holding title to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of the estimated compensation.” From the judgment, it cannot be culled out that the Supreme Court permitted the acquisition of a land in the absence of a declaration under Section 6 of the Act. The exemption, if at all, is only as to operation of Section 11-A of the Act. When the declaration itself is not there, the respondents cannot continue the proceedings under the Act. The possession taken in such proceedings becomes totally untenable and contrary to law. Hence, the Writ Petitions are allowed, and it is declared that the land of the petitioners in survey Nos. 362, 366, 373 and 374 of Manchirevula Village, Rajendranagar Mandal, Ranga Reddy District, is no longer under acquisition. The 1st respondent-Hyderabad Metropolitan Development Authority is directed to process the applications of the petitioners in accordance with law, and pass appropriate orders within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs. _____________________ L. NARASIMHA REDDY, J. Dt.09-12-2009. L.R. copy to be marked. GJ [1] (1993) 4 Suprme Court Cases 369