THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.13918 of 2002 27.2.2008 Between: Sri Venugopalaswamy and Venkateswaraswamy Vaari Temple, Kanumuru village, represented by its Trust Board Chairman, Sri P.Venkateswara Rao … Petitioner and The Revenue Divisional Officer (Land Acquisition Officer), Gudivada, Krishna District And others … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.13918 of 2002 ORDER: Sri Venugopalaswamy and Venkateswaraswamy Vaari Temple, Kanumuru village (hereafter called, Temple) is petitioner. Writ petition is filed seeking a writ of Mandamus declaring land acquisition proceedings relating to Acs.3.00 of temple land in R.S.No.78 situated at Kanumuru village of Pamarru Mandal in Krishna District, as illegal and arbitrary. A consequential direction is also sought directing respondent to restore possession of Temple land. District Collector issued notification under Section 4(1) of the Land Acquisition Act, 1894 (the Act, for brevity), proposing to acquire land for the purpose of providing house sites to weaker sections. Notification was published in District Gazette No.15/96, dated 04.3.1996. Urgency clause under Section 17(4) of the Act was invoked and possession of Temple land was taken in 1996. It is alleged that the land was being cultivated by one Bhujanga Rao as tenant of Temple and for his eviction Temple filed ATC No.12 of 1999 before Tenancy Tribunal, Gudivada. It is further alleged that on 14.6.2002 purportedly acting under Section 17 (3A) of the Act, respondents offered a sum of Rs.2,79,456/- being compensation at the rate of Rs.82,000/- per acre to petitioner Temple. They refused to receive compensation. The amount was offered along with proceedings dated 14.6.2002 of third respondent. On enquiries, petitioner Temple came to know that though acquisition proceedings were initiated on 04.3.1996, enquiry was not conducted and award was not passed. Therefore, they filed instant writ petition contending that land acquisition proceedings have lapsed under Section 11A of the Act, that if compensation was taken in 1996 payment of 80% in 2002 is not in accordance with provisions of the Act and that respondents are liable to restore possession to Temple. Second respondent filed counter. It is stated that Bhujanga Rao filed W.P.No.15355 of 1996 assailing notification under Section 4(1) and declaration under Section 6 of the Act. An order was passed in WPMP No.18823 of 1996 in W.P.No.15355 of 1996 dated 05.8.1996, staying dispossession without due process of law. He again filed W.P.No.34661 of 1998, which was dismissed on 14.12.1998. Earlier writ petition was also dismissed. Thereafter notice was issued to Bhujanga Rao, who appeared before Land Acquisition Officer (LAO) on 29.12.1998. Actual possession of land was taken on 30.12.1998 by MRO, Pamarru Mandal, though executive officer of Temple has already handed over possession on 18.3.1996. Bhujanga Rao filed another writ petition being W.P.No.231 of 1999. He also filed contempt case being C.C.No.115 of 1999. The writ petition and contempt case were dismissed by this Court on 05.12.2001 holding that a tenant cannot agitate right over the land before LAO. Accordingly proceedings were issued to pay a sum of Rs.2,46,000/- at the rate of Rs.82,000/- per acre along with solatium at 30% and additional market value at 12%. Cheque was also sent to Executive Officer (EO) of Temple but the same was returned by postal authorities, as not served. Thereafter, Chairman of Temple filed instant writ petition. It is further stated that notification was issued, declaration was published on 08.3.1996, that from 05.8.1996 to 05.12.2001 there was stay granted by this Court, and therefore, Section11A of the Act is not attracted, as possession was handed over by Temple on 18.3.1996 within a period of two years from the date of publication of declaration. Learned Counsel for petitioner contends that when possession was not taken as required under Section 17(1) read with 17(3) of the Act, in law, there is no taking of possession validly, and therefore, as per Section 11A of the Act, proceedings have been lapsed. He secondly submits that proceedings of LAO dated 14.6.2002 cannot be treated as Award. These contentions are refuted by learned Assistant Government Pleader for Land Acquisition. There is no serious dispute that possession was handed over to respondents by EO on 18.3.1996 to enable them to provide house sites to weaker sections. Therefore, applying the ratio laid down by Supreme Court in Satendra Prasad Jain v State of U.P.[1], it must be held that land acquisition proceedings do not lapse under Section 11A of the Act. Whether possession taken is actual possession or paper possession, is only material. In B.N.Bhagde v M.D.Bhagwat[2], Supreme Court while considering the question whether taking possession of the land without notice under Section 9(1) as contemplated under Section 17(1) would amount to actual possession, it was held as under. It is, therefore, clear that taking of possession within the meaning of Ss. 16 or 17 (1) means taking of possession on the spot. It is neither a possession on paper nor a "symbolical" possession as generally understood in Civil Law. But the question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9 (1) of the Act is required. When possession has been taken the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the Government. In this case, possession willingly handed over by EO of Temple and therefore even if such possession was not preceded by Section 9(1) notice, the same is not material nor possession becomes illegal. When once actual possession is taken by second respondent under the provisions of Section 17(4) of the Act, land acquisition proceedings do not lapse. It is now open to second respondent to pass award. The writ petition is accordingly disposed of, directing second respondent to pass formal award within a period of two months from the date of receipt of a copy of this order. No costs. ______________ February 27, 2008 (V.V.S.RAO, J) YS [1] AIR 1993 SC 2517 [2] AIR 1975 SC 1767