ORDER
R. Subhash Reddy, J.
1. This writ petition is filed questioning, the Notification dated 30-9-1994 issued under Section 4(1) of the Land Acquisition Act, 1894, notifying the land of the petitioners, for the purpose of developing industrial area, and, the consequential declaration published under Section 6 of the Land Acquisition Act, 1894, and, the award dated 3.10.1996 passed by the 6th respondent.
2. The Andhra Pradesh Industrial Infrastructure Corporation Limited has sent a requisition to the Collector, East Godavari District, for acquisition of land, to an extent of Ac.623-78 cents in Rayabhupalapatnam Village, for the purpose of developing industrial area. On such requisition, after deleting the extents of land covered by poramboke, an extent of Ac.573-79 cents was identified for acquisition, and, the same was divided into four blocks for administrative convenience. The land owned by the petitioners in Sy.Nos.447/3, 448/1, 448/2, 447/1 and 437/A, admeasuring Ac.17.92 cents, covered by Blocks-IV, is notified vide 4(1) Notification, dated 30-9-1994, issued by the District Collector. In the said notification, total extent of Ac.126.55 cents of land was notified for public purpose, namely, to wit for establishment of Industrial Development area, and, authorization was given to the third respondent-Revenue Divisional Officer, Peddapuram, and, his staff, to exercise powers under Section 4(2) of the Land Acquisition Act, 1894. The notification under Section 4(1) of the Land Acquisition Act, 1894, was, subsequently, published in the newspapers on 10.10.1994 and 11.10.1994 and, consequential declaration as required under Section 6 of the Land Acquisition Act, 1894, was published on 6.10.1994. Consequent to the declaration, award enquiry was initiated by issuing notice under Section 9(1) and (3) of the Land Acquisition Act, 1894, and enquiry was posted on 17.12.1994. The petitioners herein, who are protesting acquisition of the land, did not attend the said enquiry, and, filed this writ petition on 16.2.1995. Initially, the writ petition was filed questioning the Notification and declaration, but, as much as during the pendency of the writ petition, as award was passed, subsequently, the relief sought for is amended by questioning the award also passed by the 6th respondent-Special Deputy Collector-cum-Land Acquisition Officer, on 3.10.1996.
3. As stated in the affidavit filed in support of the writ petition, it is the case of the petitioners, that the land owned by the petitioners, admeasuring Ac.17.92 cents, is an agricultural land, and, they have developed the same by digging bore-wells and they are growing cash crops in the above said land. It is stated, the agricultural income from the above said land is only the source of income for them. It is stated, that the above said land was acquired only for the benefit of the fourth respondent, i.e., M/s. D.C.L. Polyesters Limited, a private limited company, without following the procedure as contemplated under Chapter VII of the Land Acquisition Act, 1894. It is also their case, that as much as the acquisition is for the fourth respondent-company, the District Collector is not the Competent Authority to issue notification under Section 4(1) of the Land Acquisition Act, 1894. It is stated in the affidavit, that having regard to the nature of acquisition, no urgency is involved so as to dispense with the enquiry as contemplated under Section 5A of the Land Acquisition Act, 1894, and, to invoke the urgency Clause under Section 17 of the Act. The Award is also questioned on the ground, that in absence of consent of the petitioners, impugned award is passed under Section 11(2) of the Land Acquisition Act, 1894, without conducting award enquiry as required under Section 11(1) of the Land Acquisition Act, 1894.
4. With reference to the above said grounds, it is submitted by Sri G. Krishna Murthy, the learned Counsel appearing for the petitioners, that the land of the petitioners is acquired only for the purpose of fourth respondent-company; in that view of the matter, the respondent authorities have not followed the procedure as contemplated under Chapter VII of the Land Acquisition Act, 1894. It is further submitted by the learned Counsel, that though 4(1) notification was published in the newspapers on 10-10-1994 and 11-10-1994, and, even before the same, declaration was published under Section 6 of the Land Acquisition Act, 1894, on 6-10-1994; as such, the same is in violation of the provisions under Section 17(4) of the Land Acquisition Act, 1894. It is submitted by the learned Counsel, that in any event, as much as the petitioners have not given consent for passing the Award, the impugned award passed by the 6th respondent under Section 11(2) of the Land Acquisition Act, 1894, is illegal. The learned Counsel, in support of his arguments, has placed reliance on the judgment of the Supreme Court in the case of State of Uttar Pradesh v. Radhey Shyam Nigam, : [1989]1SCR92 , judgment of the Division Bench of this Court in the case of Government of A.P. v. K. Sivananda Reddy, 1996 (2) ALD 930 (D.B.), judgment of the Division Bench of this Court in the case of Katari Satyanarayana v. The District Collector, Krishna, : AIR1990AP326 and judgment of the learned Single Judge of this Court in the case of E. Rama Murthy v. Government of Andhra Pradesh, : 2000(4)ALD74 .
5. Separate counter-affidavits are filed by 3rd, 4th and 5th respondents. In the affidavit filed by the A.P. Industrial Infrastructure Corporation Limited, it is stated that the entire acquisition of land, to the extent of Ac.573.79 cents, in four Blocks, is on their requisition. It is stated, the land of the petitioners, to the extent of Ac.17.92 cents, is in the middle of Block No. IV of the acquired land. To support the authority of the District Collector to notify the land, it is stated, that for the purpose of acquisition of the land to establish industrial estates, and to industrial development areas etc., the Government delegated the powers to the District Collector, vide G.O.Ms.No. 235, Revenue (K) Department, dated 10-3-1987; in that view of the matter, the District Collector had jurisdiction to notify the land. The fifth respondent also denied the allegation of the petitioners that the land is notified for the purpose of fourth respondent-company. It is their case, that as the acquisition is for the purpose of Corporation, which is owned by the State Government, and, in that view of the matter, it cannot be construed as 'company' within the meaning of Section 3(e) of the Land Acquisition Act, 1894, so as to follow the procedure as contemplated under Chapter-VII of the Land Acquisition Act, 1894. It is stated, pursuant to the notification issued under Section 4(1) of the Land Acquisition Act, 1894, the same was published in the newspapers on 10-10-1994 and 11-10-1994, and possession of the land was taken on 7-1-1995, after advance payment of Rs. 56,000/- per acre. It is stated, as much as the land of the petitioners, admeasuring Ac.17.92 cents, is in the middle of the Blocks-IV, as such, it is not possible and feasible to delete the said extent of land from the acquisition proceedings. To explain the urgency, it is stated that in East Godavari District, Kakinada Port was under development with ADB Finance, and, overstretched with regard to its capacity of handling the ships, and, to give competition to West Coast, in respect of industrial development, and to synchronize the pace of industrial development with development activities of port, and, having regard to such requirement, enquiry under Section 5A of the Land Acquisition Act, 1894, was dispensed with, and urgency Clause under Section 17 of the Act was invoked. It is also stated, that consequent to the declaration, award enquiry was conducted on 17-12-1994 by issuing notice to the petitioners. Though all others have participated in the enquiry, but, the petitioners did not participate in such enquiry.
6. The 4th respondent-M/s. D.C.L. Polyesters Limited also filed separate counter-affidavit, disputing the allegation of the petitioners, that the land is notified only for the purpose of their company. In their counter-affidavit, it is stated, that the land is acquired on the requisition sent by the A.P. Industrial Infrastructure Corporation Limited, and, the fourth respondent is one of the applicants for allotment of part of the land for their purpose. As such, it is their case, that as much as the land is not acquired for their company, the procedure as contemplated under Chapter-VII of the Land Acquisition Act, 1894, is not applicable. They also reiterated the authority of the District Collector, basing on the G.O. issued by the Government, delegating the powers to the District Collector.
7. The third respondent-Revenue Divisional Officer, has also filed separate counter-affidavit, wherein it is stated, that consequent to the authorization conferred on him, and, notification issued by the District Collector, after issuing notice as required under Sections 9(3) and 10 of the Land Acquisition Act, 1894, award enquiry was conducted on 17-12-1994. In the counter-affidavit, it is also stated, that advance possession was taken on 17-1-1995, after paying an amount of Rs. 56,000/- per acre. It is stated, though opportunity was given to the petitioners, they have not responded to the enquiry notice, and, thereafter, they have filed this writ petition and obtained interim orders.
8. It is submitted by Sri R. Subba Rao, the learned Counsel appearing for the 4th respondent-Company, that necessary procedure has been followed as contemplated under the provisions of the Land Acquisition Act, 1894, while notifying the land of the petitioners, and, there are absolutely no grounds to challenge the notification issued under Section 4(1) of the Land Acquisition Act, 1894, or, declaration issued under Section 6 of the Land Acquisition Act, 1894. It is the submission of the learned Counsel that in view of the powers delegated by the Government, the District Collector had authority to issue notification under Section 4(1) of the Land Acquisition Act, 1894. Further, it is submitted, that as much as acquisition was not for the fourth respondent-Company, the procedure as contemplated under Chapter VII of the Land Acquisition Act, 1894, need not be followed. It is submitted, that having regard to immediate requirement of the land for development of Industrial Development Area, on pace with the development of Kakinada Port, urgency Clause was invoked by dispensing with the enquiry as provided under Section 5A of the Land Acquisition Act, 1894. It is further submitted, that consequent to the Notification under Section 4(1) of the Land Acquisition Act, 1894, all the required consequential steps have been taken within the prescribed time, and, declaration was also published under Section 6 of the Land Acquisition Act, 1894, and, same is not in violation of Section 17(4) of the Land Acquisition Act, 1894, as alleged. It is submitted by the learned Counsel that 'last of the date of such publication' under Section 4(1) of the Land Acquisition Act, 1894 is for the purpose of limitation under Section 6 of the Act, and the same will not apply to exercise the powers under Section 17(4) of the Land Acquisition Act, 1894. Lastly, it is submitted, that as much as the petitioners have failed to participate in the enquiry, in spite of giving opportunity, it is not open for them to question the award proceedings at this belated stage, as much as the acquisition for major extent of land is already finalized, and, compensation was disbursed. The learned Counsel for the respondents has placed reliance on the judgments of the Supreme Court in the cases of Mohan Singh v. International Airport Authority of India, : (1997)9SCC132 and, M. Ramalinga Thevar v. State of Tamilnadu, : (2000)4SCC322 .
9. Having regard to the above submissions, at the outset, in this case, it is to be seen, that the notification under Section 4(1) of the Land Acquisition Act, 1894, itself is issued, for acquisition of the land, indicating public purpose, namely, to wit for establishment of Industrial Development Area, to an extent of Ac. 126.55 cents in Rayabhupalapatnam Village of Peddapuram Mandal in East Godavari District. Though it is submitted by the learned Counsel for the petitioners that acquisition of the land was for private company-D.C.L. Polyesters Limited, but from the particulars furnished in the counter-affidavit, it is clear that acquisition is made at the instance of the Andhra Pradesh Industrial Infrastructure Corporation Limited, which is a Government owned company. The fourth respondent may be one of the applicants for allotment of land, and, that does not necessarily mean to say, acquisition is for the purpose of the said company, so as to follow the procedure as contemplated under Chapter VII of the Land Acquisition Act, 1894, Though it is submitted by the learned Counsel for the petitioners that the District Collector is not the authority to notify the land, but, it is to be seen, Government has issued G.O. Ms. No. 235, Revenue (K) Department, dated 10-3-1987 delegating the powers to the District Collector, to exercise all the powers conferred and discharge all the duties imposed on the State Government under Sections 4, 5A, 6, and, 17(4) of the Land Acquisition Act, 1894, for acquisition of the land for industrial purpose. In view of the said powers conferred by way of delegation, the District Collector has issued the notification under Section 4(1) of the Land Acquisition Act, 1894. In that view of the matter, it is not open for the petitioners to plead that the notification issued by the District Collector is without any authority and jurisdiction. Even for the purpose of invoking urgency Clause under Section 17 of the Land Acquisition Act, 1894, by dispensing with the enquiry as provided under Section 5A of the Act, it is for the appropriate authority to form an opinion having regard to the nature of acquisition, to decide, whether it is a fit case to invoke urgency clause, or not. From the counter-affidavit filed on behalf of the respondents, it is clearly stated, that in view of the recent economic liberalization, and, industrial policy of the Government, large number of industrial houses have come forward, to set up industries, and, some are going for expansion/ diversification, involving huge investment, and, so as to make available industrial infrastructure for such of the companies, and, to meet sudden demand in the industrial growth, urgency Clause is invoked, by dispensing with the enquiry as contemplated under Section 5A of the Land Acquisition Act, 1894. In view of such urgency, it is not for the petitioners to say, that there is no urgency in the matter, so as to invoke urgency Clause by dispensing with enquiry.
10. Further, it is submitted by Sri G. Krishna Murthy, the learned Counsel appearing for the petitioners, that as much as notification issued under Section 4(1) of the Land Acquisition Act, 1894 was published in the newspapers on 10-10-1994 and 11-10-1994, but, however, the declaration was published on 6-10-1994 itself, and the same is in violation of the provisions under Section 17(4) of the Land Acquisition Act, 1894. It is the case of the learned Counsel, that under Section 17(4) of the Land Acquisition Act, 1894, declaration can be published under Section 6 of the Act, in respect of the acquired land at any time after publication of notification under Section 4(1) of the Act. Inasmuch as notification under Section 4(1) of the Act was published in the newspapers on 10-10-1994 and 11-10-1994, declaration published earlier on 6-10-1994 is illegal and in violation of the provisions under Section 17(4) of the Land Acquisition Act, 1894. In the case of State of Uttar Pradesh v. Radhey Shyam Nigam (supra), the Supreme Court has considered the effect of amendment to the Land Acquisition Act, 18'94 by Act 68 of 1984, and, held, that prior to the amendment of the Act, it was permissible for the Government to issue Notification under Section 4, and, declaration under Section 6 of the Land Acquisition Act, 1894, simultaneously. In the said judgment, it was held, that after the amendment by virtue of Amendment Act 68 of 1984, declaration under Section 6 of the Act can be made only after the date of publication of the Notification under Section 4 of the Act. Precisely, in the said judgment, the Apex Court has held that there must be difference of dates between the date of the publication of Notification under Section 4(1), and, declaration under Section 6, of the Land Acquisition Act, 1894. In the case of Government of A.P. v. K. Sivananda Reddy (supra), the Division Bench of this Court has held that in view of the amended Act, it was not permissible for publication of declaration under Section 6 of the Act, even before the publication of Section 4(1) notification in the locality and in the local newspapers. Similarly, a Division Bench of this Court in Katari Satyanarayana v. The District Collector, Krishna (supra) has held that after amendments to Land Acquisition Act as amended by Act 9 of 1983 and by Central Act 68 of 1984 simultaneous publication of notification under Section 4(1) and declaration under Section 6 of the Act is not permissible. Further reference is also made on behalf of the petitioners to a judgment of a learned Single Judge of this Court in E. Rama Murthy v. Government of Andhra Pradesh (supra), wherein a learned Single Judge interpreting the provision under Section 17(4) of the Act, has held that causing public notice under Section 4(1) should precede issuance of declaration under Section 6 of the Act. But at the same time, learned Counsel for the respondents Sri Subba Rao also placed reliance on a judgment of Supreme Court in the case of Mohan Singh v. International Airport Authority of India (supra). In the said judgment, precisely similar question has fallen for consideration. Interpreting the provisions under Sections 4(1), 6 and 17(4) of the Act, the Hon'ble Supreme Court held as follows:
'Whether it is mandatory in such a situation, i.e., after the publication of the notification in the Gazette publication in two local newspapers and giving of notice of the substance of the notification at convenient places in the locality, to await the exercise of power under Section 17(4)? After giving due and deep consideration to the respective contentions raised by the learned Counsel, we are of the considered view that though the compliance of these three steps required under Section 4(1) is mandatory, for the exercise of the power under Section 17(4) it is not necessary that all the three steps should be completed before making the declaration under Section 6(1) and have it published for directing the Collector to take possession under Section 17(1) or 17(2). What is needed is that there should be a gap of time of at least a day between the publication of the notification under Section 4(1) and of the declaration under Section 6(1). Herein, we dispose of the controversy and agree with Shri Shanti Bhushan that the date of notification and declaration published as mentioned in the Gazette is conclusive but not the actual date of printing in the Gazette. This interpretation of ours would serve the public purpose, namely, the official functions are duly discharged. When the land is urgently needed under Section 17(1), notice under Section 9(1) would be given to the owner and steps would be taken to and resume its possession after the expiry of 15 days. If it is needed urgently under Section 17(2), even without waiting for 15 days on issue of notice under Section 9(1) to the owner, the appropriate Government would direct the Collector to take possession of the land immediately. If the publication in the newspapers and in the locality is also insisted upon as preliminary to the exercise of power under Section 17(4) which are mandatory requirements and until last of them occurs, the immediate or urgent necessity to take possession of the land under Section 17(1) or 17(2) before making the award would be easily defeated by dereliction of duty by the subordinate officers or by skilful manoeuvre'.
11. Further reliance is also made by learned Counsel for the respondents on the case of Ramalinga Thevar v. State of Tamilnadu (supra). In the said judgment, the Apex Court has held that even when dispossession alone is stayed by the Court, the period during which such stay operates would stand excluded from time fixed for passing the award, the expiry of which would render the acquisition proceedings lapsed.
12. To consider the above said aspect in this case, it is relevant to note that prior to amendments effected in the year 1984, there was State amendment to the provisions of Land Acquisition Act by Land Acquisition (A.P. Amendment and Validation Act, 1983). In terms of the said amendment, with reference to the provisions under Section 17(4) of the Act, declaration can be made under Section 6 of the Act, in respect of the land acquired at any time after causing public notice under Section 4(1) of the Act. But, subsequently, by virtue of Land Acquisition Amendment Act, 1984, declaration under Section 6 of the Act can be made 'only after the date of publication of notification'. Though, this Court has earlier held that declaration under Section 6 of the Act can only be subsequent to publication of notification under Section 4(1) of the Act in newspapers, but in a subsequent judgment in Mohan Singh v. International Airport Authority of India (supra) the Hon'ble Supreme Court has clearly held that the last of the dates of such publication under Section 4(1) of the Act is only for the purpose of computation of limitation for declaration under Section 6 of the Act, but not for exercising power under Section 17(4) of the Act. In view of the judgment of the Supreme Court in Mohan Singh case (supra), it cannot be said that the declaration under Section 6 of the Act can only be made only after completion of all the formalities under Section 4(1) of the Act. The Central Amendment Act by virtue of Act 68 of 1984 is only to the effect that notification under Section 4(1) and declaration under Section 6 of the Act cannot be simultaneous on the same date. But, at the same time, it cannot be said that declaration can only be after publication of Section 4(1) notification in the newspapers and in the locality. In view of the judgment of the Supreme Court in the case of Mohan Singh (supra), the contention of the learned Counsel for the petitioners that declaration issued under Section 6 of the Act in this case on 6.10.1994 is in violation of Section 17(4) of the Act, cannot be accepted.
13. Then remains only the question of validity of the award passed under Section 11(2) of the Act In this case, admittedly, immediately after declaration, notices were sent, to start with enquiry on 17.12.1994. Even according to the averments in the counter-affidavit, petitioners have not attended to such enquiry. Even thereafter, no communication appears to have been made to the petitioners fixing any date for enquiry. It is also not in dispute at any point of time, that petitioners have expressed their consent for passing the award by negotiating market rate. Though, enquiry was initiated under Section 11 of the Act, but ultimately, award is passed in exercise of powers under Section 11(2) of the Act. As per Section 11(1) of the Act, the Collector is empowered to conduct enquiry with regard to entitlement of compensation to any person, pursuant to notice under Section 9 of the Act and also with regard to value of the land on the date of publication of notification under Section 4 of the Act. But, however, under Section 11(2) of the Act, if at any stage of the proceedings, if the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules in this regard, he may, without making further enquiry, can make award according to the terms of such agreement.
14. In the instant case, there is no such consent given by the petitioners for passing an award. In fact, during relevant time of passing the award, the writ petition itself is pending before this Court, where they have questioned the very acquisition proceedings on various grounds. May be that other owners of the remaining extent of land, who are covered by the very same notification, might have agreed for passing such an award under Section 11(2) of the Act, but in the absence of any consent and agreement entered into, by following prescribed procedure under rules, it is not open for the Land Acquisition Officer to pass an award including the land of the petitioners also under Section 11(2) of the Act. Further submission is also made on behalf of the petitioners that as much as the 6th respondent is not the authorized officer under Section 4(2) of the Act, in that view of the matter, he has no competency or jurisdiction for passing the award. Though, an opportunity was given to the learned Counsel appearing for the respondents to explain the same, no papers were placed showing such authority to the 6th respondent to pass award as much as the third respondent was authorized to perform the functions of the Collector as per the Notification under Section 4(1) of the Act. But, however, as the award is passed without consent under Section 11(2) of the Act, as I am inclined to quash the award on the said ground, and, I need not give any finding with regard to the authority and jurisdiction of the 6th respondent to pass such an award. It is sufficient to leave open for the Competent Authority for passing the award. As much as the award is passed in absence of any consent to the extent of 17.92 cents of petitioners' land, the award is liable to be quashed to that extent of land held by the petitioners. Accordingly, award passed by the 6th respondent, Special Deputy Collector and Land Acquisition Officer in Proceedings No. 13/96/SCC/LA/APIIC, dated 3.10.1996 is hereby quashed to the extent of land of the petitioners, admeasuring Ac.17.92 cents, covered by S.Nos.447/3, 448/1, 448/2, 447/1 and 437/A of Rayabhupalapatnam Village, Peddapuram Mandal, East Godavari District.
15. For the foregoing reasons, I do not find any infirmity in the notification issued, under Section 4(1) of the Land Acquisition Act, 1894, and, declaration under Section 6 of the Land Acquisition Act, 1894, by the second respondent-District Collector. But, however, as the Award is passed under Section 11(2) of the Land Acquisition Act, 1894, in absence of consent from the petitioners, the Award dated 3-10-1996 in Proceedings No. 13/96/SCC/LA/APIIC, to the extent of the land held by the petitioners, admeasuring Ac.17.92 cents in Sy.Nos.447/ 3, 448/1, 448/2, 447/1 and 437/A, situated in Rayabhupalapatnam Village of Peddapuram Mandal in East Godavari District is hereby quashed. It is left open to the Competent Authority to pass appropriate Award and pay necessary compensation, as expeditiously as possible.
16. The writ petition is partly allowed to the extent indicated above. No order as to costs.