General Manager, Telecom, v. State Of Andhra Pradesh,

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO WRIT PETITION No.9952 of 2004 ORDER :

This Writ Petition is filed by the General Manager, Telecom, SSA, Vijayawada and Chief General manager, Telecom, Bharat Sanchar Nigam Limited (BSNL), Hyderabad challenging the award No.3 of 1998 dt.18-04-1988 passed by the Land Acquisition Officer and Special Collector, Vijayawada (3rd respondent) under the provisions of the Land Acquisition Act, 1894 (for short "the Act") in respect of the land admeasuring Ac. 5.92 cents in N.T.S No.9 for Block No.12 of Machavaram Village near Vijayawada Town of Krishna District.

2.

Respondent Nos.5 to 7 owned the said land.

3.

The BSNL had sought acquisition of the Ac.6.13 cts in NTS.No.9, Block 12 of Machavaram village for construction of a Telephone Exchange and residential quarters for its staff under the provisions of the Land Acquisition Act,1894.

4.

A draft notification under Section 4(1) of the said Act was approved on 13-09-1985 and was published in the Krishna District Gazette Extraordinary Issue No.71 dt.14-11-1985 and the substance of the notification was published in the locality on 18-12-1985. The Telugu version of the same was published on 12-01-1986 in Andhra Patrika Daily Newspaper.

-25.

Subsequently declaration under Section 6 of the Act was approved by the Government of Andhra Pradesh on 24-05-1985 and was published in the A.P. Gazette Extraordinary issue No.120 dt.11-03-1986. The substance of the declaration was published in the locality on 10-04-1986 and its Telugu version was published in the local newspapers on 19-04-1986 and 20-04-1986. 6.

Thereafter award enquiry under Section 9(1), 9(3) and 10 of the Act was held on 16-04-1988 and an Award was passed by the 3rd respondent on 18-04-1988. Under the said Award, the 5th respondent was paid Rs.37,53,568/-, 6th respondent was paid Rs.23,24,089-70 Ps and respondent Nos.7 and 8 were paid Rs.18,71,686-10 Ps. for the portions in the acquired land held by them respectively.

7.

Though the said land fell within the urban agglomeration of Vijayawada as defined under the Urban Land (Ceiling and Regulation) Act, 1976, having regard to the request of the Collector, Krishna District in letter No.G5/2923/82 dt.09-03-1984 and that of the Dy. General Manager (Plg), Telecommunications, A.P. in D.O. Lr.No.TA/BP/12-88 dt.12-07-1984, the Government of Andhra Pradesh, Transport Roads and Buildings (Ports) Department issued Memo No.1426/p2/84-8 dt.20-09-1985 exempting the above land from the guidelines issued under the Urban Land (Ceiling and Regulation) Act, 1976 in Government Memo No.1647/U.C.I./76-3 dt.02-09-1976.

-38.

It is important to note that an extent of 2500 sq. yards forming part of Ac 6.13 cts sought for acquisition by the BSNL was later deleted leaving only Ac.5.92 cts at the instance of the General Manager, Telecom, A.P.Circle so that this balance land was made over immediately to the BSNL. This is mentioned in the letter dt.1709-1986 addressed by the Telecom District Manager, Vijayawada to the Sub-Collector, Vijayawada. The said letter further requested for immediate handing over of the land acquired on the ground that it was urgently required for construction of Telephone Exchange and residential quarters and it is also stated therein that money was already deposited by the BSNL for the said acquisition. 9.

The Divisional Engineer (P& I), Vijayawada also addressed a letter No.B-171/LA/202 dt.21-10-1986 insisting that the land of Ac.5.92 cts be handed over immediately since it was required urgently for the Telecom Department.

10.

This was also reiterated in a further letter dt.29-12-1986 addressed by the Divisional Engineer (P&T), Office of the Telecom District Manager, Vijayawada addressed to the Collector and District Magistrate, Vijayawada.

11.

It is also not in dispute that a reference under Section 18 of the Act was sought by respondent Nos.5 to 7 seeking enhancement of compensation to Rs.1,000/- per square yard. This was numbered as LAOP No.263 of 1988 before the Principal Senior Civil Judge,

-4Vijayawada.

The reference court, however, enhanced the compensation to only Rs.232.50 ps. per sq. yard vide its judgment dt.25-01-2002. This was questioned by respondent Nos.5 to 7 and others in A.S.No.975 of 2002 before this Court under Section 54 of the Act. The said appeal was partly allowed on 28-03-2014 and the compensation was enhanced to Rs.336/- per sq. yard with all statutory benefits on the enhanced compensation including the interest on solatium.

12.

It is also to be noted that the 7th respondent was declared as surplus holder by the Special Officer and Competent Authority, ULC under the Urban Land (Ceiling and Regulation) Act, 1976 to the extent of 6067 sq. mts. She filed an appeal before the appellate authority i.e the Commissioner, Land Reforms and ULC, Hyderabad under the said Act, but the said appeal was dismissed on 28-02-1991. She then filed W.P.No.9121 of 1991 challenging the order dt.28-02-1991 of the appellate authority, but the said Writ Petition was dismissed on 30-07-1991.

13.

She then filed W.A.No.1019 of 1991 before this Court contending that 4977 sq. mts of land was acquired by the Government for the purpose of Telephone Exchange and quarters at the instance of BSNL as per notification under Section 4(1) of the Act approved on 13-09-1985 and which was published on 14-11-1985; that the declaration under Section 6 of the Act was published on 10-04-1986 and award No.3 of 1988 was passed on 18-04-1988; and possession of

-5the land was taken on 12-12-1988 and compensation was also paid to her; that in view of the exemption granted by the Government vide Memo No.1426/P2/84-8 dt.20-09-1985, she cannot be treated as holder of excess vacant land. This contention of 7th respondent was accepted by the Division Bench of this Court in their order dt.04-03-1997. The Bench held that the said Memo was issued by the Government granting exemption from the operation of the Urban Land (Ceiling and Regulation) Act, 1976 to the land notified for acquisition under the Act; that therefore the extent of land belonging to 7th respondent, which is part of notification issued under the Act has to be deducted; that if 4977 sq. mts is thus deducted from 6067 sq. mts, the 7th respondent would have only 1090 sq. mts of excess land. The other contentions raised by 7th respondent with regard to other land were not accepted.

14.

Later the Commissioner of Land Reforms and Urban Land Ceiling, Andhra Pradesh, Hyderabad and the Special Officer and Competent Authority, Urban Land Ceiling, Vijayawada filed Rev.W.A.M.P.No.1063 of 1997 to review the order dt.04-03-1997 in W.A.No.1049 of 1991, but the said Review petition was dismissed on 09-10-2000. The Bench held that the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 cannot be invoked in respect of the land belonging to 7th respondent, which was notified under Section 4(1) of the Act on 13-09-1985, and possession of which was taken on 12-12-1988.

-6Contentions in the Writ Petition 15.

The petitioners who are General Manager and Chief General Manager, Telecom of BSNL had filed this Writ Petition on 29-04-2004 challenging the award No.3 of 1988 dt.18-04-1988 passed by the 3rd respondent.

16.

They contend that since the land is situated in urban agglomeration of Vijayawada, the 3rd respondent erred in placing reliance on the Memo No.1426/p2/84-8 dt.20-09-1985 and treating the land notified as exempt from the Urban Land (Ceiling and regulation) Act,1976 and determining compensation for it under the Land Acquisition Act,1894; that the 3rd respondent did not consider whether the land is covered by the Urban Land (Ceiling and Regulation) Act, 1976 and due clearance was necessary from the competent authority under the said Act and also the question whether the land is surplus vacant land which vested in the State Government. 17.

It is further contended that the BSNL was not aware of the factual position with regard to the land acquired by the 3rd respondent under the impugned award at any time and they did not participate in the award enquiry or in the reference Court or in A.S.No.975 of 2002. 18.

It is contended that respondent Nos.5 to 10 had given a declaration as contemplated under the Urban Land (Ceiling and Regulation) Act, 1976 and therefore it was necessary for 3rd respondent to take note of the question whether the land claimed

-7by respondent Nos.5 to 10 is surplus vacant land or not before he determined compensation.

19.

It is contended that the Special Officer and Competent authority, Urban Land Ceiling, Vijayawada intimated the petitioners on 13-08-2003 enclosing the copy of letter No.B/2400/80 dt.31-05-1982 that the subject land is surplus land; that respondent Nos.5 to 10 were declared as surplus holders and the 6th respondent was entitled to retain only 1500 sq. mts; and only for this limited extent there could be an acquisition or an award under the Land Acquisition Act,1894. They contend that the 3rd respondent passed the impugned award without considering the import and impact of communication dt.31-05-1982 of the Special Officer and Competent Authority, Urban Land Ceiling addressed to the 3rd respondent. 20.

It is contended that the award conferred largesse on respondent Nos.5 to 10 and is an unjust enrichment defrauding the public exchequer by misrepresentation of respondent Nos.5 to 10. 21.

In regard to the delay in filing the Writ Petition, it is averred that the award dt.18-04-1988 was implemented by petitioners by depositing Rs.84,49,343.80 Ps, that till receipt of communication dt.08-11-2002 from 3rd respondent asking the petitioners to deposit a further amount of Rs.14,02,254/- by way of demand draft in favour of Principal Senior Civil Judge, Vijayawada in order to comply with the judgment and decree dt.25-01-2002 in L.A.O.P.No.263 of 1988, the

-8petitioners were not aware that there was such O.P. pending. They contend that after receipt of the said proceedings on 25-01-2002, the petitioners enquired about the factual position with regard to the land under acquisition, obtained requisite documents of acquisition and then filed this Writ Petition. It is therefore contended that the delay in filing of Writ Petition be condoned.

22.

Sri P.Venugopal, learned Senior Counsel appearing for Sri R.S.Murthy, Counsel for petitioners reiterated the said contentions. He also placed reliance on the judgment of a Division Bench of this Court in Birguban Singh and others Vs. Land Acquisition Officer, R.D.O., Hyderabad1 and contended that the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 override the provisions of the Land Acquisition Act,1894 in view of Section 42 of the Urban Land (Ceiling and Regulation) Act, 1976; that the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 should have been finalised in order to know the extent of land which respondent Nos.5 to 10 would be entitled to retain, and only for the said extent of land, compensation under the provisions of the Act should have been paid to them. He also contended that taking of possession under the Land Acquisition Act,1894 will not exclude the application of the Urban Land (Ceiling and Regulation) Act, 1976 for the purpose of determining compensation under the latter Act. 1 1993(2) ALT 173 (D.B.)

-9THE STAND OF THE STATE GOVERNMENT THE STAND OF RESPONDENT Nos.1-3 23.

Respondent Nos.1 to 3 filed a counter-affidavit refuting the contentions of petitioners. In particular, it is contended that the entire acquisition process was initiated on the request received from the BSNL and there was no necessity to inform it to participate in the above enquiry as there was no such provision in the Act to attend for the award enquiry or in the reference Court. It is stated that the petitioners never asked the 3rd respondent to give opportunity to it at every stage till award is passed or in the reference Court. It is further stated that as per G.O.Ms.No.370 Revenue (L.A.) Department dt.16-04-1993, the State Government issued orders to prefer appeal in the Supreme Court only if the enhanced amount exceeds 50% as against total amount of compensation awarded to the land losers and the said G.O.

further stated that appeal can be preferred in the Apex Court only if the requisition department had come forward to file an appeal within 90 days from the date of orders from the Civil Court. It is stated that the BSNL kept quiet and filed the Writ Petition long afterwards and therefore it is not entitled to any relief. THE COUNTER AFFIDAVIT OF RESPONDENT NO.3 24.

In the counter affidavit of the Land Acquisition Officer and Sub-Collector, Vijayawada (3rd respondent) it is contended that though the Special Officer, Urban Land Ceiling Authority,

-10Vijayawada in his letter dt.31-05-1982 had informed the 3rd respondent that the land proposed to be acquired, which belongs to respondent Nos.5 to 7 would be covered by the Urban Land (Ceiling and Regulation) Act, 1976, since the Government vide Memo No.1426/p2/84-8 dt.20-09-1985, Transport, Roads and Buildings (Ports) Department had exempted the subject land from the guidelines issued under the Urban Land (Ceiling and Regulation) Act, 1976 in Government Memo No.1647/U.C.I./76-3, Revenue Department dt.02-09-1976, the acquisition is valid under the Land Acquisition Act,1894.

25.

It is contended that at the instance of petitioners, 2500 sq. yards of area, which was notified was deleted and the impugned award was passed on 18-04-1988 for an extent of Ac.5.92 cents only and possession of the land was also handed over to petitioners on 13-12-1988.

26.

It is also stated that in O.P.No.263 of 1988, the Principal Senior Civil Judge, Vijayawada passed orders on 25-01-2002 enhancing the land value from Rs.200/- per sq. yard to Rs.232.50 ps per sq. yard; that this was informed to the petitioners; that the petitioners were also informed that the enhancement, being less than 50%, it was not mandatory to file appeal; and the petitioners should inform the then Sub-Collector whether any appeal should be preferred in High Court or not and if not, to release the decretal amount. It is stated that the petitioners neither deposited the decretal amount nor

-11informed the 3rd respondent to file an appeal against the orders of the reference Court.

27.

It is contended that the Government had issued the Memo No.1426/p2/84-8 dt.20-09-1985 exempting the land of respondent Nos.5-7 from provisions of the Urban Land (Ceiling and Regulation) Act,1976 only on the basis of the request of the Dy.General Manager (Plg), Telecommunications, A.P./the predecessor of the petitioners (BSNL) vide letter No.TA/BP/12-83 dt.12-07-1984. 28.

The 3rd respondent states that though as per the guidelines issued under the Urban Land (Ceiling and Regulation) Act, 1976 in Government Memo No.1647/U.C.I./76.3, Revenue Department dt.02-09-1976, in all cases relating to acquisition of land prior to the Act in the urban agglomeration coming under the purview of the Urban Land (Ceiling and Regulation) Act, 1976, the publication of notification under Section 4 of the Land Acquisition Act,1894 and declaration under Section 6 of the said Act should be proceeded without taking over possession of the land, having regard to the letter dt.12-07-1984 of the Dy.General Manager (Plg) of the Telecommunications Department and the Memo No.1426/P2/84-8 dt.20-09-1985 of the Government's Transport, Roads and Buildings (Ports) Department exempting the subject land from the guidelines issued under the Urban Land (Ceiling and Regulation) Act, 1976, possession of the land was taken and award was passed.

-1229.

It is denied by the 3rd respondent that he ignored the declarations filed by respondent Nos.5-7 under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and passed the impugned award. It is stated that the petitioners were well aware that the land proposed for acquisition is exempted from application of the Urban Land (Ceiling and Regulation) Act, 1976, but at no stage did the petitioners object to the acquisition process and time and again requested for advance possession of the lands. Having insisted on possession of land urgently in several letters addressed to the 3rd respondent, it is not open to petitioners to now rely on the guidelines issued under the Urban Land (Ceiling and Regulation) Act, 1976 and file the Writ Petition questioning the award. The 3rd respondent therefore prayed that the Writ Petition be dismissed. THE STAND OF RESPONDENT Nos.5-13 30.

Pending Writ Petition, the 6th respondent died and respondent Nos.11 to 13 were impleaded as his legal representations. 31.

Sri N.Subba Rao, learned counsel appearing for Sri P.Prabhakara Rao, learned counsel for respondent Nos.5 to 13 also refuted the contentions of petitioners. It is contended that if petitioners had been aggrieved by the award passed by the 3rd respondent, they could have sought a reference under Section 18 of the Land Acquisition Act,1894 or they could have preferred an appeal under Section 54 of the said Act, but they did not do so and so they cannot file this Writ Petition questioning the award.

-1332.

They also contended that once the Government Memo dt.20-09-1985 exempted the land notified for acquisition from the guidelines issued under the Urban Land (Ceiling and Regulation) Act, 1976, there is no illegality in the passing of award. 33.

It is contended that the above memo was issued on the basis of the request of the petitioners only and having sought exemption of the subject land from the purview of the guidelines under the Urban Land (Ceiling and Regulation) Act, 1976, the petitioners are disentitled to question the award.

34.

It is pointed out that the petitioners had sought exemption of the land from the purview of the Urban Land (Ceiling and Regulation) Act, 1976 in order to be able to take immediate possession of the land and to avoid the delay which would have entailed if possession of the same was to be taken under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and after obtaining such possession, they are now estopped from questioning the action of 3rd respondent in passing the award without reference to the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976. 35.

They contend that petitioners were aware that the land in question was being acquired under the provisions of the Land Acquisition Act and that under the provisions of the said Act, an award would be passed and if they intend to protect their interests, they should have asked the 3rd respondent to inform them before

-14quantifying the compensation, but they failed to do so. They contended that there is no provision under the Act to give intimation to the Requisitioning authority such as the petitioners before assessing the compensation.

36.

It is pointed out that petitioners themselves selected the land belonging to respondent Nos.5 to 10 and requested the acquisitioning authorities to acquire the same for their benefit and having made such request and having addressed a letter to the Government seeking exemption of the land under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, they are not entitled to file the Writ Petition. It is denied that there is any unjust enrichment for respondent Nos.5 to 10.

37.

It is also contended that the contentions regarding applicability of Urban Land (Ceiling and Regulation) Act, 1976 to the land notified for acquisition was concluded by the judgment rendered by this Court on 04-03-1997 in W.A.No.1049 of 1991 and also by the orders dt.0910-2000 in Rev.W.A.M.P.No.1063 of 1997; and more than a decade after conclusion of the proceedings, and having taken possession of the land in 1988 itself, the petitioners cannot seek cancellation of the award by filing the Writ Petition after 19 years. It is contended that there are laches on the part of petitioners and so the Writ Petition should also be dismissed on the said ground.

-1538.

Learned counsel for respondent Nos.5 to 13 relied upon the judgment of the Supreme Court in State of Uttar Pradesh Vs. Hari Ram2 and sought to contend that taking of possession under the Urban Land (Ceiling and Regulation) Act, 1976 had not occurred at all since statutory procedure there under for taking possession was not followed before its repeal in the State of Andhra Pradesh on 28-03-2008 by adoption of Urban Land (Ceiling and Regulation) Repeal Act, 1999 by the State legislature.

REPLY AFFIDAVIT OF PETITIONERS 39.

Reply affidavit was filed by petitioners stating that the Urban Land (Ceiling and Regulation) Act, 1976 came into force on 17-02-1976; thereafter a Memo No.614/02/76-D dt.30-03-1976 was issued by State Government laying down guidelines to the effect that in urban agglomeration of Vijayawada, the acquisition of land under the Land Acquisition Act,1894 should not be proceeded with unless possession of the land was taken under the Act prior to 28-01-1976; and that acquisition under the Act can be proceeded if the total holding of the person whose land is proposed to be acquired under the said Act is within ceiling limit prescribed under the Urban Land (Ceiling and Regulation) Act, 1976.

40.

It is further stated that the State Government issued another Memo No.1646/UC/76-3 dt.02-09-1976 wherein it stated that in all cases relating to acquisition of land prior to the Act in the urban 2 (2013) 4 SCC 280

-16agglomeration coming under the purview of the Urban Land (Ceiling and Regulation) Act, 1976, publication of notice under Section 4 of the Act and declaration under Section 6 of the Act should be proceeded without taking over possession of the land. It is contended that in this Memo, the Government had also stated that further action in regard to passing of award, payment of compensation and taking over possession of the land can be taken up after thorough verification of the holding under the Urban Land (Ceiling and Regulation) Act, 1976 in respect of land belonging to non-surplus holders and falling under item (1)(B) of the guidelines dt.31-03-1976. It is further contended that in the said Memo, it was also stated that as regards the land belonging to surplus holders, withdrawal notification under Section 48 of the Act should be published promptly so as to enable the 4th respondent to take over the surplus land under the Urban Land (Ceiling and Regulation) Act, 1976.

41.

It is contended that the request made by petitioners on 12-07-1984 and the exemption thereof vide Memo dt.20-09-1985 of the State Government has nexus to the guidelines dt.02-09-1976 for the purpose of acquisition under the Act and there is no exemption for the purpose of Urban Land (Ceiling and Regulation) Act, 1976 including Section 11 thereof as regards the payment of compensation for the non-surplus vacant land.

THE CONSIDERATION BY THE COURT 42.

I have noted the contentions of both sides.

-1743.

In view of the rival contentions, the following question arises for consideration:

"Whether the award No.3 of 1988 passed on 18-04-1988 by the 3rd respondent is liable to be set aside at the instance of petitioners or not?"

44.

The subject land which was notified for acquisition under the Land Acquisition Act,1894 admittedly belongs to respondent Nos.5 to

7. This was located in the urban agglomeration of Vijayawada and fell within the purview of the Urban Land (Ceiling and Regulation) Act, 1976.

45.

Admittedly, the said land was sought by petitioners by approaching the District Collector, Krishna for construction of Telephone Exchange and residential quarters for its staff under the provisions of the Act (as mentioned in para-3 of the Writ Petition affidavit).

46.

The petitioners now seek to rely upon the letter Rc.B2.400/80 dt.31-05-1982 of the Special Officer and Competent Authority, Urban Land Ceilings, Vijayawada addressed to the 3rd respondent stating that the land proposed for acquisition is covered by the Urban Land (Ceiling and Regulation) Act, 1976.They now seek to contend that respondent Nos.1 to 4 ought to have followed Memo No.614.G/76 dt.06-03-1976 and Memo No.614/02/76/5 dt.30-03-1976. According to the petitioners, guidelines were issued under the memoranda specified that acquisition of land under the Urban Land (Ceiling and

-18Regulation) Act, 1976 should not be proceeded with unless possession of the land was taken under the said Act prior to 28-01-1976 and in other cases, the land acquisition under the Act could be proceeded if the total holding of the person whose land is proposed to acquire is within the ceiling limit prescribed under the Urban Land (Ceiling and Regulation) Act, 1976. Reliance is also placed on Memo No.1646/UC/76-3 dt.02-09-1976 wherein the Government directed that in all cases relating to acquisition of land prior to the Act in the urban agglomeration coming under the purview of the Urban Land (Ceiling and Regulation) Act, 1976, which required to be finalised urgently, publication of notice under Section 4 and declarations under Section 6 of the Act be proceeded with without taking possession of the land.

According to the petitioners, the said memo also stated that further action in regard to passing of award, payment of compensation and taking over possession of the land can be taken after thorough verification of the holding under the Urban Land (Ceiling and Regulation) Act, 1976 in respect of the land belonging to non-surplus holders and falling under Item (1)(B) of the guidelines issued in the Government Memo dt.31-03-1976.

47.

Respondent Nos.5 to 13 however contended that in view of Memo No.1426/p2/84-8 dt.20-09-1985 issued by the Government of Andhra Pradesh, Transport, Roads & Buildings (Ports) Department specifically exempting the land admeasuring Ac.6.13 cents belonging to respondent Nos.5 to 13 which was notified for acquisition from the

-19guidelines issued under the Urban Land (Ceiling and Regulation) Act, in Government Memo No.1647/U.C.I./76-3 Revenue Department dt.02-09-1976, no illegality can be attributed to the proceedings under the Act and also to the impugned award. The said Memo No.1426/p2/84-8 dt.20-09-1985 states as under: "In the circumstances reported by the Collector Krishna and the Deputy General Manager, Telecommunication, in the 6.13 acres under N.T.S.No.9, Block No.12 of Ward 16 in Machavaram Village of Vijayawada town in Krishna District from the guidelines issued under the Urban Land (Ceiling and Regulation) Act, 1976, in Government Memo No.1647/U.C.I./76-3 Revenue Department dt.2-9-1976 so as to enable the Collector, Krishna to acquire the lands for the Telecommunications/Department for construction of Administrative Building for District Manager, Telephone Exchange and staff quarters..."

48.

A reading of the above memo indicates that it was issued at the instance of Deputy General Manager (Plg), Telecommunications, Andhra Pradesh vide D.O.Lr.No.TA/BP/12-83 dt.12-07-1984. Copy of the letter was not filed by petitioners though it emanated from them. Why this document was suppressed is not explained by petitioners.

49.

It is pertinent to note that according to the 3rd respondent's counter, requisition was made in August, 1980 by the Divisional Engineer (Phones), Vijayawada for acquisition of this subject land for construction of Telephone Exchange and staff quarters.

-2050.

The letter dt.31-05-1982 of the Special Officer and competent Authority, Urban Land Ceilings, Vijayawada addressed to the 3rd respondent refers to the subject land being covered by the Urban Land (Ceiling and Regulation) Act, 1976,but it specifically mentioned that possession of the land can be given only after publication of Section 10(1) and 10 (3) notifications in the Gazette as mandated under the Act.

51.

However, it appears that the petitioners were insisting on immediate possession of the land proposed for acquisition as can be seen from the letter dt.17-09-1986 addressed by the Telecom District Manager, Vijayawada to the 3rd respondent, letter dt.21-10-1986 addressed by the Divisional Engineer (P&I), Vijayawada to the Collector and District Manager, Krishna and letter dt.29-12-1986 addressed by the Divisional Engineer (P&I), Office of the Telecom District Manager, Vijayawada to the 2nd respondent. 52.

Thus it was clear that petitioners were not willing to wait till the proper procedure under the Urban Land (Ceiling and Regulation) Act, 1976 was followed to take possession of the land of respondent Nos.5 to 10 and were insisting on immediate delivery of possession, which could not have been done unless notifications are published under Section 10(1) and 10(3) of the Act and possession is taken after following Section 10(5) and 10(6) of the Act.

-2153.

It was probably this pressure put by petitioners which pressurised the Government to issue Memo No.1426/p2/84-8 dt.20-09-1985f exempting the lands sought by petitioners from the guidelines issued under the Urban Land (Ceiling and Regulation) Act, in Government Memo No.1647/U.C.I./76-3 Revenue Department dt.02-09-1976. That was why the possession of the land could be delivered to petitioners by 3rd respondent on 13-12-1988 after award No.3 of 1988 dt.18-04-1988 was passed for an extent of Ac.5.92 cents comprising 27192.57 sq. yds.

54.

The award itself refers to exemption granted vide Memo dt.20-09-1985 by the Government from the guidelines issued under the Urban Land (Ceiling and Regulation) Act, 1976. 55.

The petitioners however did not chose to challenge the said MemoNo.1426/P2/84-8 dt.20.9.1985 at that time or even now on any grounds.

56.

In Hari Ram (2 supra), the Supreme Court held that under Sec.10(3) of the Urban Land (Ceiling and Regulation) Act, 1976, after publication of notification under sub-Section (1) of Section 10, the competent authority has to declare that the excess land referred to in the notification published under sub-Section (1) of Section, shall, with effect from such date, as might be prescribed in the declaration, be deemed to have been acquired by the State Government; on publication of a declaration to that effect such land shall be deemed to

-22have been vested absolutely in the State Government, free from all encumbrances, with effect from the date so specified; that under subsection (5) of Section 10 where any land is vested in the State Government under sub-Section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it, to surrender or transfer possession to the State Government or to any other person duly authorised by the State Government; that such surrender of possession has to be applied voluntarily by the owner of the land or ought to be done by way of forceful dispossession under sub-Section (6) of Section 10. It held that requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory; and if the land owner is not surrendering possession voluntarily, under sub-section (3) of Section 10 or surrendering or delivering possession after notice, under sub-section

(5) of Section 10 or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land. 57.

This legal position is not disputed by petitioners. 58.

It is also not the case of petitioners that by the date they obtained possession on 13-12-1988 of the land belonging to respondent Nos.5 to 7, proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 had reached the stage of Section 10 of the Act.

-2359.

In view of this, having pressurised the 3rd respondent to immediately deliver possession of the land sought by them which resulted in the MemoNo.1426/P2/84-8 dt.20.9.1985 granting exemption from the guidelines issued under the Urban Land (Ceiling and Regulation) Act, 1976 , and thereafter securing possession without waiting for completion of procedure under the Urban Land (Ceiling and Regulation) Act, 1976, the petitioners are estopped from now questioning the action of respondent Nos.1 to 4 in acquiring land of respondent Nos.5 to 7 under the provisions of the Land Acquisition Act,1894 or to passing of the award No.3 of 1988 dt.18-04-1988. 60.

In W.A.No.1049 of 1991 filed by 7th respondent against the Special Officer and Competent Authority, Urban Land Ceilings, Vijayawada in respect of a portion of 6067 sq. mts belonging to her, of which 4977 sq. mts was notified for acquisition for benefit of BSNL /petitioners, a Division Bench of this Court relied on the MemoNo.1426/P2/84-8 dt.20-09-1985 and categorically held that the Government has got the power of suo motu granting exemption; whether such exemption is granted on the application of a party or otherwise, the land cannot be treated as vacant land under the Urban Land (Ceiling and Regulation) Act, 1976;and so the extent of 4977 sq. mts is to be deducted from 6067 sq. mts belonging to 7th respondent. 61.

Rev.W.A.M.P.No.1063 of 1997 filed by the Special Officer and Competent Authority, Urban Land Ceilings, Vijayawada and the Commissioner of Land Reforms and Urban Land Ceiling, A.P.,

-24Hyderabad was also dismissed on 09-10-2000 opining that in view of taking of possession on 13-12-1988 under the provisions of the Land Acquisition Act,1894 the question of invocation of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 did not arise. 62.

These 2 orders are also binding on petitioners since they are seeking to impugn the award under the Land Acquisition Act,1894 by contending that the acquired land would be ceiling surplus land under the Urban Land (Ceiling and Regulation) Act, 1976, which contention was rejected by the Division Bench of this Court in W.A.No.1049 of 1991 and in Rev.W.A.M.P.No.1063 of 1997.

63.

That apart, it is not as if the petitioners are unaware that the subject land is situated in urban agglomeration of Vijayawada, which they sought for acquisition by addressing letters to respondent Nos.1 to 4. It was in their interest therefore not to insist for immediate possession of the land and await for completion of proceedings under the Urban Land (Ceiling and Regulation) Act, 1976. 64.

They cannot plead ignorance of the proceedings under the Land Acquisition Act,1894 since it is they, who insisted on acquisition of subject land, though they are aware that the land notified for acquisition is also covered by the Urban Land (Ceiling and Regulation) Act, 1976.

65.

At no point of time did the petitioners oppose the passing of award or payment of compensation and in fact the petitioners

-25themselves admit that they deposited Rs.85,49,343.80 Ps. with the 3rd respondent for payment of compensation and that this was distributed to respondent Nos.5 to 8.

66.

If the petitioners intended to await for completion of proceedings under the Urban Land (Ceiling and Regulation) Act, 1976, they ought not to have deposited any amount for payment of compensation to respondent Nos.5 to 8. This conduct also indicates that petitioners intend to acquiesce in the land acquisition proceedings in order to quickly take possession of the subject land for setting up a Telephone Exchange and staff quarters.

67.

16 years after award of 1988 was passed, it is not open to petitioners to assail the said award. The reasons given by the petitioners for excusing the laches on their part cannot be accepted. 68.

If the petitioners had not sought information about the subject land and acquisition proceedings, they have only got themselves to blame and they cannot now be allowed to blow hot and cold and attack the impugned award.

69.

The decision in Birguban Singh (1 supra) cited by petitioners would have no application in the present case having regard to the MemoNo.1426/P2/84-8 dt.20.9.1985 issued by the State Government exempting the land of respondent Nos.5 to 8 from the guidelines issued under the Urban Land (Ceiling and Regulation) Act, 1976.

-2670.

I therefore see no merit in the Writ Petition and it is accordingly dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only) to be paid by petitioners to respondent Nos.5 to 13. 71.

As a sequel, miscellaneous petitions pending if any in this Writ Petition, shall stand closed.

__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date : 04-10-2017 Vsv