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TMI Blog2011 (4) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... the acquisition of land including 1.87 acres belonging to the Appellants in C.A. No. 2730/2005 and 1.91 acres belonging to the Appellants in C.A. No. 2732 of 2005 for Habibpura Housing Scheme of the Varanasi Development Authority (for short, 'the VDA'). Declaration under Section 6(1) was published in the Official Gazette dated 30.11.1981. 3. The Appellants challenged the two notifications in CMWP No. 1769 of 1982 and CMWP No. 14885 of 1982. The first writ petition was dismissed in default on 10.9.1990 and the second writ petition was dismissed on merits on 18.11.1997. 4. Notwithstanding dismissal of the writ petitions, the Respondents neither took possession of the acquired land nor any award was passed within the period prescribed under Section 11A of the Act. In the year 2000, the Appellants filed CMWP Nos. 24326 and 23043 of 2000 respectively with the allegation that the Respondents are seeking to dispossess them. They prayed for grant of a declaration that the acquisition proceedings will be deemed to have lapsed because the award was not passed within two years of coming into force of the Land Acquisition (Amendment) Act, 1984. In paragraphs 12 to 15 of CMWP No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... award. 12. That the writ petition, referred to herein above kept pending and the interim order continued to be operative in favour of the Petitioners but the writ petition came to be ultimately dismissed on 18.11.1997 and a true copy of the judgment in Annexure-5. 13. That the Respondents had full and complete knowledge of the judgment dated 18.11.1997 as it had been delivered in open court in the presence of the learned standing counsel representing the State of U.P. as well as the counsel of the development Authority and as such, the Respondents had full knowledge of the aforesaid judgment. 14. That in spite of the writ petition having been dismissed on 16.11.1997, no proceedings were undertaken by the Respondents even thereafter to either take possession of the land or deliver the award in respect of the property under acquisition. It is thus clear that a period of almost more than 3 years was allowed to lapse by the Respondents themselves and neither any possession was taken from the Petitioners of the land in question nor any award delivered in respect thereof. 15. That on 10th May, 2000 certain officials of the Varanasi Development Authority at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner. 13. That contents of paragraph No. 12 of the writ petition are denied. It is denied that the deponent came to know about dismissal of the writ petition as alleged. It is submitted that the fact about dismissal of the writ petition came to the knowledge of the answering Respondent in the year, 2000 itself and thereafter acting promptly the possession of the land in question was taken in presence of the Petitioners. 7. In the rejoinder affidavit filed by him, Shri Laxman Pandya claimed that possession of the acquired land was not taken on 10.5.2000 or even thereafter and the contrary assertion made on behalf of the VDA was false. 8. In CMWP No. 23043 of 2000, counter affidavit was filed by Shri Raj Kumar, Special Land Acquisition Officer, Varanasi. He claimed that intimation regarding vacation of the stay order was received from the VDA in April/May 2000 and, thereafter, action was taken for passing the award. Paragraphs 10, 13 and 14 of the affidavit of Shri Raj Kumar are extracted below: 10. That in reply to the contents of para 8 of the writ petition, it is stated that as the Petitioner had produced the stay order dated 17.12.1982, the possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondents did not know about dismissal of the writ petitions filed in 1982. In the opinion of the High Court, Section 11A was not attracted in the case. The relevant portions of the order passed in Panchu Ram's case are extracted below: The learned Counsel for the Petitioner further submitted that after the dismissal of the writ petition, the Respondents did not take possession nor made the award within two years and, therefore, the provisions of Section 11A is attracted. The Petitioner since urged that the possession of the land was not taken nor the award was made within two years, the entire acquisition proceedings lapsed under Section 11A of the Act. 10. According to the Petitioner the last of the writ petition was dismissed on 25.11.1997 and excluding the period of stay, the limitation to make an award or take possession stood extended till 25.11.99. Neither possession was taken nor award was made till 25.11.99 and, therefore, the acquisition proceeding lapsed by operation of law as contemplated under Section 11A of the Act. In support of his contention, the Petitioner has placed reliance of a Division Bench judgment of this Court in Sushil Kumar and Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any action or proceeding in pursuance of the declaration under Section 6 of the said Act so that the Explanation covers only the cases of those landholders who do not obtain any order from a Court which would delay or prevent the making of the award or taking possession of the land acquired. 13. The principle laid down by the Supreme Court in the aforesaid decision (Supra), is that the owner of the land or a person who is interested in the land and wants to take advantage of Section 11A of the Act, must not have obtained an interim order. 14. In the present case the tenure holders including the co-sharer of the Petitioner had filed various writ petitions before this Hon'ble court challenging the acquisition proceedings thereby stalling the acquisition proceedings on account of interim orders granted by this Court. The tenure holders themselves contributed to the delay and did not allow the Respondents from taking possession of the land. Therefore, assuming that the possession of the land was not taken within the stipulated period, we are not inclined to quash the acquisition proceedings in exercise of the discretionary powers of this Court under Article 226 of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified in refusing to quash acquisition proceedings despite the fact that the award was not made within the period prescribed under Section 11A of the Act. That section reads as under: 11A. Period within which an award shall be made.- (1) 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 the period, the entire proceedings for the acquisition of the land shall lapse: Provided that in a 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. A reading of the above reproduced provision makes it clear that the Collector is required to pass an award within a period of two years from the date of the publication of the declaration and if award is not made within that period, the acquis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/1982 Bhagwan Das and Anr. v. State of U.P. and Ors., were dismissed by the Division Bench by common order dated 25.11.1997 after hearing the counsel for the Petitioners Shri A.N. Shukla and the Standing Counsel representing Respondent Nos. 1 and 2. It is, therefore, not possible to believe that the Special Land Acquisition Officer and the officers of the VDA did not know about dismissal of the writ petitions till April/ May 2000. The death of Shri G.C. Dwivedi, Advocate representing the VDA in 1996 has no bearing on the Respondents' claim that till 2000 they did not know about vacation of the interim order. It is neither the pleaded case of the Respondents nor it has been argued on their behalf that they were not aware of dismissal of the writ petitions filed by Ram Kishore and another in 1995 and by Smt. Tulia and Bhagwan Das in 1997. If that be so, how can the Respondents say that they were not aware of dismissal of the writ petitions filed by the Appellants till April/May 2000. Unfortunately, the High Court did not take cognizance of dismissal of various petitions in 1997 in the presence of the advocate representing the State Government and the VDA and accepted the asserti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Prasad Jain v. State of U.P. (supra) and Awadh Bihari Yadav v. State of Bihar (supra) for negating the Appellants' prayer because in those cases possession of the acquired land was taken within two years of the publication of the declaration issued under Section 6(1) and, as a result of that the acquired land vested in the State Government. In these cases, possession of the acquired land was not taken within two years of dismissal of the writ petitions. Therefore, the land cannot be said to have vested in the State Government. 23. In the result, the appeals are allowed. The impugned orders are set aside and it is declared that the acquisition proceedings will be deemed to have lapsed insofar as the Appellants are concerned, due to non-compliance of the mandate of Section 11A of the Act. However, the parties are left to bear their own costs. 24. In terms of signed order, the appeals are allowed. The impugned orders are set aside and it is declared that the acquisition proceedings will be deemed to have lapsed insofar as the Appellants are concerned, due to non-compliance of the mandate of Section 11A of the Act. However, the parties are left to bear their own costs. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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