ORDER
D.S.R. Varma, J.
1. This writ petition is filed for a writ of certiorari calling for the records of the notification dated 9.3.2002 and to quash the same and further to direct the respondents to proceed with the acquisition of fee land in accordance with the notification dated 7.12.1998 issued under Section 4(1) of the Land Acquisition Act (for short hereinafter referred to as 'the Act') or if necessary by issuing a fresh notification.
2. The facts that lead to the filing of the present writ petition are that the land of the petitioners to an extent of 2,423.09 sq. yards situate in survey numbers T.S. Nos. 1/ 2 and 2/2 of Sultanbagh Revenue Village, Bandlaguda Mandal, Hyderabad District was sought to be acquired for the purpose of constructing a permanent drainage. The object for acquiring the land and construction of drain, is that the rain water nala (stream) has been passing through the said survey number and further there was pacca (permanent) masonry drainage constructed on the eastern and western sides and only the present land is kept open, as it belongs to the petitioners and that since said nala affects the inhabitants on both the sides of the subject land by breeding mosquitoes, it was identified as hazardous to the inhabitants of the locality. It appears that the people of the locality made a representation to the Hon'ble Chief Minister of A.P. and pursuant to the said representation, it is stated that the Hon'ble Chief Minister visited the spot and directed the respondents to take steps for acquisition of the land and construct permanent drainage. In the writ affidavit it is stated that consequent upon of the said instructions of the Hon'ble Chief Minister, the notification under Section 4(1) of the Act was issued on 7.12.1998 followed by a further notification under Section 5(A) of the Act, dispensing with the enquiry as contemplated under Section 5 of the Act, thereby enabling the authorities to proceed with the notification under Section 6 of the Act and also to take possession of the land immediately under Section 17(4) of the Act without even passing award. It also appears that the 2nd respondent through its Executive Engineer had requested the petitioners to permit the contractor to start the work in view of the urgency, through letter dated 2.5.1998, It is the averment of the petitioners that even the respondents 2 and 3 have taken possession of the land from the petitioners and commenced the work. While so, the people of the locality through a society, approached this Court by way of public interest litigation in W.P.No. 12426/1999 seeking expeditious construction of the pucca drain. It appears that to the said writ petition, the respondents filed a counter-affidavit stating that the possession of the land had already been taken and the acquisition proceedings have already been commenced and the award money was also been deposited. It is stated in the writ affidavit that this Court taking into account the statements made in the counter affidavit, disposed of the writ petition on 4.8.1999 holding that no further order need be passed. It appears that almost simultaneously the petitioners herein filed another writ petition in W.P. No. 20481/1999 seeking expeditious acquisition of the land. -A learned Single Judge of this Court while allowing the writ petition observed in the penultimate paragraph as under:
'The attitude of the respondents and the State in trying to take the land of the petitioners without acquiring the same would be wholly antithetical to the concept of the rule of law. It is bad enough that for over 25 long years the respective rights and obligations of the petitioners or other persons who are similarly situated are not decided by the State under the Urban Land Ceiling Act, ..... To tell the petitioners that on some future date the land of the petitioners is likely to be vested with the Government under the provisions of the Urban Land Ceiling Act and therefore the petitioners need not be paid any compensation would be worse apart from being cruel.'
3. However, the Government challenged the above judgment of the Single Judge in W.A. No. 1172/2000 and the Division Bench after elaborately considering all the issues, modified the order of the learned Single Judge as under:
(a) Since both the grounds pleaded for withdrawing the acquisition proceedings are found to be not tenable, the concerned authority that is the District Collector, Hyderabad as well as the Commissioner of Municipal Corporation of Hyderabad shall decide within two months from the date of receipt of a copy of this order as to whether they still intend to withdraw the land acquisition proceedings;
(b) In case, it is decided that the proceedings be withdrawn and notification under Section 48 of the Act is issued, the Secretary, Municipal Administration, Government of A.P. shall take steps to identify the persons responsible for making the State to incur the expenditure towards publication of notifications, cost of material and other amounts payable to the contractor, quantify the amounts so incurred by the State and initiate proceedings for recovery of the same from the persons found responsible. This exercise shall be completed within six months from the date of notification issued under Section 48 of the Act, if issued;
(c) In case, it is decided to proceed with the acquisition, the appellant shall proceed with the award enquiry and complete the same within three months from the date of decision as directed in Clause (a).
4. Taking cue from the first direction under Clause (a), the 1st respondent issued the notification under Section 48(1) of the Act, which was Gazetted on 9.3.2002, whereby and whereunder the earlier notification dated 7.12.1998 issued under Section 4(1) of the Act was withdrawn. Challenging the said notification, the present writ petition is filed.
5. The learned Senior Counsel appearing for the petitioners Sri K. Pratap Reddy firstly contends that the impugned notification is contrary to the judgment dated 28.8.2002 of the learned Single Judge in W.P. No. 20481/1999 and also the judgment of the Division Bench in W.A. No. 1172/2000, which issued certain directions. He further contends that both the learned Single Judge as well as the Division Bench flayed the attitude of the respondents. In this connection, he pointed out the letter dated 31.3.1998 addressed by the Superintending Engineer of the 2nd respondent to the contractor, entrusting the work and directing him to start the work. In view of this letter, the senior Counsel vehemently contends that the possession of the land was taken away by the respondents. In other words, according to him under the prevailing circumstances in the present case, though the actual and physical possession was not taken, in view of the said letter dated 31.3.1998 addressed by the Superintending Engineer to the contractor to start the Work, it should be deemed that possession was taken. According to him if no possession is taken, there was no need for the Superintending Engineer to address the letter to the contractor in such a manner.
6. Learned Senior Counsel secondly contends that when the possession was taken over by the respondents, issuing notification under Section 48(1) of the Act is invalid and impermissible under law. In support of this contention, he relied on a judgment of the Apex Court reported in Tamil Nadu Housing Board v. A. Viswam, : [1996]2SCR402 .
7. Thirdly he contends that in the counter-affidavit filed by the respondents to the earlier writ petitions it was stated that since the subject land was found to be surplus land under the Urban Land Ceiling and Regulation Act of 1976, there is no need to actually acquire the land, inasmuch as the land vests in the Government. He stated that this statement is not correct. He further submitted that the competent Authority under the Urban Land Ceilings, Hyderabad by proceedings No. J/2570/76 dated 18.4.1998 followed by proceedings No. J/2570/76 dated 12.6.1998 categorically declared and certified that the subject land cannot be deemed as Urban vacant land and it does not come within the purview of the provisions of the Urban Land Ceiling Act. He further stated that if this was a urban vacant land, there was no need for the Government to issue, 4(1) notification or the present notification under. Section 48(1) withdrawing the earlier 4(1) notification.
8. The learned Government Pleader Sri Siviah appearing for the 1st respondent submits that the statements made in the earlier counter-affidavits were perhaps made inadvertently. He submits that those statements do not preclude the Government to proceed in accordance with law, depending upon the necessity. He further submitted that the respondents never took the possession and that mere addressing of letter by the Superintending Engineer to the contractor does not mean that possession was actually taken over. He submitted that the said correspondence is between the said Engineer and the contractor and was never communicated to the petitioners. He contended that in order to establish taking over the possession, particularly by the Government or its functionaries, a Panchanama should invariably be conducted. Hence, he contends that in the absence of any positive proof evidencing taking over the possession, the petitioners cannot plead that possession was actually taken over by the Government. Hence he contended that since the possession was not taken over, the Government is always at liberty to withdraw its earlier notification for various reasons, invoking the jurisdiction under Section 48(1) of the Act. In support of this contention, he also relied on the judgment of the Apex Court in Tamil Nadu Housing Board v. A. Viswam (supra), which is relied on by the learned Senior Counsel for the petitioners also. He also relied on another judgment of the Apex Court in Larsen and Toubro Ltd. v. State of Gujarat, : [1998]2SCR339 .
9. From a reading of the judgment reported in Tamil Nadu Housing Board v. A. Viswam (supra), Their Lordship held that it is settled law by series of judgments of the Supreme Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LA.O. in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. Before coming to this conclusion the Hon'ble Apex Court had taken into account some observations made in Balwant Narayan Bhagde v. M.D. Bhagwat, : AIR1975SC1767 . The said observations are re-extracted as under for ready reference:
'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.
There can be no question of taking 'symbolical' possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land......'
10. From the above observations of the Hon'ble Supreme Court it is amply clear that what actually constitute the act of taking possession, depends on facts and circumstances of each case and that there is no hard and fast rule in this regard. Hence, taking possession should be understood basing on the facts and circumstances of each case. No particular act or acts can be treated as taking over of the possession. Only those acts, which are enough to constitute taking over of actual possession, shall be taken into account and there is no specific rule in this regard. In other words as per the above observations of the Apex Court, at least an act impliedly though not explicitly, should be proved in order to hold that possession is taken over.
11. Further the Hon'ble Apex Court in Larsen and Toubro Ltd. v. State of Gujarat (supra) while discussing the procedure to withdraw the proposal of acquisition of land, held at paragraph No. 31 that a notification in the Official Gazette is required to be issued if the State Government decides to withdraw from the acquisition under Section 48 of the Act of any land of which possession has not been taken and that the owner need not be given any notice of the intention of the State Government to withdraw from the acquisition and the State Government is at liberty to do so. It is further held that the rights of the owners are well protected by Sub-section (2) of Section 48 of the Act and any damage suffered in consequence of the acquisition proceedings, he is to be compensated and Sub-section (3) of Section 48 provides as to how such compensation is to be determined. It is stated that, however the beneficiary has to be given a notice against any order, which the Government, proposes to make withdrawing from the acquisition.
12. In the present case the beneficiary is the Municipal Corporation, inasmuch as only at the instance of the Municipal Corporation the land was sought to be acquired for the benefit of the public. However, the further legal principles laid down in the above judgment are not very relevant for the present purpose.
13. From a combined reading of the above two decisions of the Supreme Court in Tamil Nadu Housing Board v. A. Viswam and Larsen and Toubro Limited v. State of Gujarat, (supra), the following would emerge:
1. The State Government has the jurisdiction to invoke Section 48(1) of the Act for withdrawing the notification issued for acquisition of the land.
2. The power under Section 48(1) can be exercised by the Government only when possession was not taken.
3. Taking possession should normally be by way of conducting a Panchanama or by some acts which either explicitly or impliedly prove the taking over of the possession, since there is no hard and fast rule in this regard.
4. Before issuing notification for withdrawing from acquisition, the beneficiary shall be given a notice;
5. There is no need to give a notice to the owner of the land regarding the intention of the Government to withdraw from acquisition.
14. Keeping in view the above guidelines, now I shall examine the case. It is on record that the Superintending Engineer addressed a letter dated 31.3.1998 to the contractor entrusting the work and also directed to start the work by 13.4.1998, subject to compliance of certain formalities. The said letter according to the learned Senior Counsel is indicative of the fact that the possession has been taken by the Government. I am unable to agree with this submission. Prima facie the said letter is only an internal correspondence between the Corporation and the contractor and no copy is marked to the petitioners. From the said letter, the contractor is directed to start the work by 13.4.1998 subject to complying other formalities. It is nowhere on record whether those formalities were complied with or not. Therefore, at best this letter would only speak about the strong desire of the Corporation to proceed with the construction work and this letter would not definitely show that the possession was taken. Except this letter there is no material on record to substantially demonstrate that the possession was taken.
15. However the learned Counsel for the petitioners brought to the notice of this Court the letter dated 29.10.1997 addressed by the Executive Engineer and the letter dated 5.11.1997 addressed by the petitioners.
16. From a perusal of the letter dated 29.10.1997 it is clear that the Executive Engineer sought for certain documents from the petitioners, in order to enable him to acquire the land on payment of compensation. To this letter, the petitioner gave reply dated 5.11.1997, submitting the documents and showing their willingness. From this correspondence no inference can be drawn that possession was delivered. However, subsequently the Superintending Engineer addressed a letter dated 31.3.1998 entrusting the work to the contractor and directed to start the work. As already stated this does not prove the fact of taking possession and only proves the intention of the Corporation to start the work. But the correspondence did not end here. Subsequently the Executive Engineer addressed a letter dated 15.4.1998 informing that the Corporation has called for tenders and entrusted the work to the highest bidder and further informed that the possession of the land has to be taken and same has to be handed over to the contractor. In the said letter the Executive Engineer further requested the Government to immediately takeover the possession by invoking urgency clause by paying necessary compensation to the landowners. This shows that even by 15.4.1998 the possession was not taken and the letters addressed by the Executive Engineer to the petitioners and the letter addressed by the Superintending Engineer to the contractor entrusting the work were all prior to 15.4.1998. The petitioners also pressed into service Xerox copies of the correspondence between the official respondents. Even those documents do not help the petitioners to prove the possession of the. Corporation. So the said correspondence cannot be treated as determining factors to establish that the possession was taken.
17. Another significant factor that is to be noted is that the letter addressed by the Superintending Engineer to the contractor and the above said correspondence in this regard is all prior to the issuance of the 4(1) notification and, therefore, looking from any angle there is hardly any scope to infer that possession was taken. Further advance possession is permissibly only after invoicing the provisions under Section 17(4) of the Act and thereafter followed by Section 9 of the Act. In the present case no such positive indication is available in this regard.
18. Therefore, in my considered view since the possession was not taken, as per the above judgments of the Apex Court, the Government is always at liberty to withdraw from the acquisition of the land by invoking the jurisdiction under Section 48(1) of the Act.
19. At this juncture, the learned Counsel appearing for the petitioners submitted that in the counter-affidavit filed in the earlier public interest litigation filed by the people of that locality in W.P. No. 12426/1999, the Corporation made a statement that the contractor had already dumped the material in the subject land.
20. As already noticed the statements made in the counter-affidavit by the Executive Engineer in the earlier writ petitions, were already taken note of and commented upon by this Court. In fact in the said counter a further statement was made to the effect that since the land was found to be surplus land, the same vests with the Government and hence there was no need to acquire the land by issuing acquisition proceedings. However, it is to be noted that considering all the statements made in the counter-affidavits and in the writ affidavit, the Division Bench disposed of the writ appeal, with the directions, which were already extracted above.
21. Now it is to be examined as to whether the first direction given by the Division Bench in W.A. No. 1172/2000 has been complied with or not. The said direction was to the effect that the District Collector, Hyderabad as well as the Commissioner of Municipal Corporation of Hyderabad shall decide within two months from the date of receipt of a copy of that order, as to whether they still intend to withdraw the land acquisition proceedings. As per this direction, there must be a consultation between the said two authorities for withdrawing the acquisition proceedings. In this context the records produced by the Government Pleader reveal that pursuant to the above directions of the Division Bench, a meeting was held on 27.2.2002 to which the Commissioner of Municipal Corporation of Hyderabad and the District Collector were the parties. The relevant portion of the minutes of the meeting held on 27.2.2002 is extracted as under for ready reference:
'3. The matter was examined in detail. The main purpose of initiating land acquisition proceedings was to construct a masonary drain from Gandhi Nagar latrines to Rajanna Bowli culvert. The site was inspected on 26.2.2002, along with the concerned Engineering Staff, and found that there was a smooth and fast flow of drain water through the existing nala. It was felt that there was no necessity for construction of a new masonary drain and that if any obstruction arises during the rainy season, it could be removed by desilting the existing nala at the required places. Hence, there was no necessity to acquire any land to construct a drain as it has been existing since a long time as a natural course. What is required is proper maintenance by periodical desilting by municipal staff to ensure constant flow of drain. That can be done even without acquiring any land.'
22. Pursuant to the above said meeting, the present impugned notification was issued, which was signed by the Special Deputy Collector, Hyderabad and the Collector of Hyderabad District.
23. From the above it is clear that in compliance of the first direction issued by the Division Bench, the impugned notification was issued. In view of the compliance of the first direction, the other two directions are consequential i.e., identifying the persons responsible for making the State to incur the expenditure and fixing the liability.
24. In view of the foregoing reasons, I conclude that no possession was taken by the Government or its functionaries after issuance of the 4(1) notification or prior to the issuance of the said notification by invoking any urgency clause and also in view of the reasons recorded in the minutes of the meeting held on 27.2.2002, I do not find any valid reasons to interfere with the impugned notification.
25. Before parting with the case, I am unable to resist myself to put on record my feelings. If the genesis of the whole episode is looked at, it is clear that at the instance of the Hon'ble Chief Minister, after his personal inspection, the authorities were made to take immediate steps to acquire the land and construct a pucca drain in the interest of the general public and particularly in the interest of the people inhabiting in that locality, in order to check the unhygienic conditions. That was the situation in the year 1998, when the acquisition proceedings were initiated. It is rather incomprehensible as to what steps were really taken to augment the living conditions of that locality after the impugned notification. I am of the view that definite and periodical verification of the locality has to be undertaken by the Corporation authorities in order to see that hygienic conditions are prevailed. It is also rather hard to ignore the statements made in the counter-affidavit in the earlier writ petitions, which were made without any basis. The authorities should bear in mind that any sworn statement should be made with acute sense of responsibility both to the Court and general public. In this contest the serious views expressed by the learned Single Judge and Division Bench while dealing with the incoherent and discordant statements made in the counter-affidavit filed in the writ petition, have to be kept in mind by the authorities while making statements in nature, in the counter-affidavits.
26. However, for the foregoing reasons, I pass the order as under:
27. The writ petition is dismissed. No costs.