- (1.)This Original Petition has come up before us on a reference made by a learned Single Judge of this Court on the question as to whether in a compensation claim under S.48(2) of the Land Acquisition Act, withdrawal notification is necessary or withdrawal from the acquisition can be presumed in a case falling under S.11A of the Act.
(2.)Short facts necessary for decision of the issue referred are as follows: A notification under S.4(1) of the Land Acquisition Act, hereinafter referred to as "the Act", was published in 1988 for acquiring an extent of nearly 50 cents of property belonging to the petitioner. Gazette notification was dated 26-5-1988 and paper publications dated 10-6-1988 and 17-6-1988 issued. That was followed by a declaration under S.6 of the Act in June, 1988. The last date of the notification published in the pa per is dated 17-6-1988. The acquisition was for the Telecommunication Department, for the purpose of construction of a Telephone Exchange building at Pathanapuram. While the acquisition proceedings were in progress, there was an attempt to negotiable with the petitioner for the purchase of the property. Special Tahsildar, who was in charge of the acquisition, valued the property at Rs.11,70,000/- and requested the Telecommunications Department to deposit that amount. He did so pursuant to an undertaking given by the power of attorney holder of the petitioner. The undertaking given by the power of attorney holder is to the following effect:
"I, M. Bava Sahib for and on behalf of my sons Mr. B. Majid Sahib and Mr.B.A. Salim Sahib by power of Attorney hereby agree for the compensation fixed for the award to be passed in respect of the above acquisition, as required by the Telecom Department Vide their letter No. TDM Quilon 1003/BPH/BLDG/90-91/8 dated 29-5-1990.

I also agree that I will not claim/approach the Court for any additional compensation in respect of the acquisition of 19.8 acres of land, in Survey No.478/1/21-2 of Pathanapuram Village".

This undertaking was filed by the power of attorney holder on 8-6-1990. On getting intimation of this, the Telecom District Manager, Kollam sent communication dated 14-6-1990 informing that the Land Acquisition Officer has not mentioned anything about the implication of the parties undertaking as to whether it is a consent award case or not. They had also forwarded legal opinion obtained by them to the Collector for his remarks. The legal opinion obtained by the Telecom Department was to the effect that the Department should obtain a clear statement from the Special Tahsildar to the effect that the award to be passed is reckoned as "consent award" and in full settlement of all claims of the landlords. According to the legal advisor, the wordings in the undertaking "as required by the Telecom Department" seems to be intentional, which would give rise to a loophole to the landlords to approach the Court in future. Special Tahsildar informed the Telecom District Manager that he had not examined the legality or otherwise of the undertaking now given by the power of attorney holder. Thereupon the Telecom District Manager by his communication dated 16-6-1990 informed the Collector that his Department is not able to proceed further without examining the legality or otherwise of the undertaking given by the land owner: Thereupon the Collector sent a communication dated 9-7-1990 to the Special Tahsildar to ascertain whether the party was willing to handover the land to the Post and Telegraph Department as per the land value already fixed and if so, to get an agreement excused after obtaining the fund and to pass an award before the proceedings lapse. To this communication, it appears that the Special Tahsildar replied staling that the landlords are prepared to handover possession on accepting the value already fixed by the officer. District Collector then required the Post and Telegraph Department to provide the funds and to get the agreement executed at 12.30 P.M. on 18-7-1990. But, by that time the two year period fixed under S.11A of the Act had already expired and it was not possible to pass an award. Consequently the proceedings lapsed. Thereupon petitioners moved the Collector for getting a sum of Rs.3,94,000/- as compensation for the damages under S.48(2) of the Act.

(3.)As stated earlier, declaration under S.6 of the Act was published on 17-6-1988. S.11A enjoins the Collector to make an award under S.11 of the Act within a period of two years from the date of the publication of declaration. It also states that if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. Since declaration under S.6 was dated 17-6-1988, the award should have been passed by the Collector on or before 16-6-1990. It is the admitted case that the Collector did not pass the award on or before 16-6-1990. Even after 16-6-1990, Collector was earnestly pursuing the acquisition proceedings to have negotiated settlement. That is clear from the communications sent by him to the Telecom Division Manager subsequent to 16-6-1990. When the petitioner came forward with an offer to handover possession of the property on getting the amount fixed by the Land Acquisition Officer, the Telecom District Manager entertained certain doubts. This is evident from his communication dated 29-5-1990, seen at page 483 of the files tended over to us by the learned Government Pleader. We take it worthwhile to read the same:
"Kind attention is invited to your office Endt. No.I.A3/50398/84 dated 30-3-1987 in which the report of the Tahsildar furnishing the details for 4(1) notification in respect of the above acquisition was forwarded (copy enclosed for ready reference). According to that report the land value was fixed at Rs.50,000/- percent. But in the payment of compensation requested for the same acquisition by the Spl. Tahsildar I.A.No.II Quilon vide his letter No.C.234/87 dated 16-4-90 the land value fixed is about Rs.14,000/- percent (copy enclosed for reference). As there arc chances for the owners to approach the court for enhanced compensation on the basis of the valuation made by the Tahsildar at the initial stage, an undertaking from the owners of the land stating that they 'are satisfied with the compensation fixed now and that they will not claim/or approach the court for any additional compensation in this regard may be obtained as the Department cannot pay huge amount as additional compensation later".

This communication is the one referred to in the undertaking filed by the power of attorney holder before the Special Tahsildar. Since that undertaking made specific reference to the letter dated 29-5-1990, the Telecommunication Department wanted to. have its legal consequences examined. Special Tahsildar admitted that he had not examined the legal consequences. In such a situation, the Telecommunication Department could not execute the agreement on or before 16-6-1990. The further communication between the Collector and the Telecommunication Department shows that they had no intention to back put from the acquisition proceedings, but they wanted to have the matters clarified. Files thus establish beyond any doubt that the Department had not allowed the proceedings to lapse by efflux of time to cover up the intention to withdraw from the acquisition proceedings. In fact they warned to push through the transaction. But, the Collector could not pass the award because of the mandate contained in S.11A of the Act. On the facts of this case, we are clear in our mind that the Collector had not allowed time to expire to wriggle out of the acquisition proceedings. In other words, there is no material to show that the Government had any intention to withdraw from the proceedings and with that intention allowed to lapse the period fixed under S.11A of the Act.

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