- (1.) DHARAM Veer Sharma, J. The in stant writ petition has been preferred with following reliefs: (1) To issue a writ in the nature of man damus commanding the opposite parties to withdraw the notification dated 5-7-1985 (An-nexure2 ). (2) To issue a writ in the nature of certiorari quashing the notification dated 5-7-1985 (Annexure 2), issued by the State of U. p
(2.) BACK ground facts are as below: The petitioner claims to be the owner and Bhoomdhar of plot Nos. 51, 143, 144, 228-Ka within the area of 5 bigha, 18 biswa and 14 biswansi situated in village Haibatmau Mawaiya, Pargana Bijnor, District Lucknow. It is al leged that the notification dated 5-7-1985 was published in official Gazette under Sections 4 (1) and 17 (4 ). On 27-6-1985, the notification was issued on 5-7-1985 under Section 6 of the Land Ac quisition Act, for the acquisition of the plots mentioned in the above (Annexure No. 2 ). It is alleged that the land is ac quired not for use of opposite party 1, but for the use of some society, company etc. It is contended that the same is being done to sell the land in higher rate. After notification dated 5-7-1985 for acquisition of the land, no steps were taken by the authority for obtain ing possession of the land. In view of Section 11-A of the Land Acquisition Act, the proceedings for acquisition shall lapse if the award is not made within a period of two years from the date of publication of declaration as notice was served on the petitioner under Section 9 of the Land Acquisition Act. Opposite Party No. 2, Lucknow Development Authority has no funds to make the payment of compensation. Opposite Party No. 2 issued the publi cation in the Pioneer Daily Newspaper which shows that the land shall be given on licence basis to meet out the growing demand of houses for the public, for development and construc tion of houses. it transpires that the Lucknow Development Authority wants to sell the land to private colonizers to earn profit. The acquisition proceed ings have started without giving any notice to the petitioner. The declaration was made in the official Gazette on 5-7-1985. No award has yet been given. Consequently, the proceedings should be deemed to be invalid as no posses sion was taken by the petitioner and no development took place in which the land is situated. It is averred that the ac quisition proceedings could not be allowed to go on infinity. In the instant case the declara tion was made on 5-7-1985 (Annexure 1) and no award has been given, Con sequently, in completing the acquisition proceedings more than two years have already been taken and with the lapse of time, the notification does not subsist and no compensation has been paid. Accordingly, the acquisition proceed ings are void. It has been further averred that the petitioner was not given an opportunity of being heard as re quired by sub-section (2) of Section 5-A of Land Acquisition Act. The petitioner has never received any notice with respect to the acquisition proceedings. Opposite parties have not issued any public notice regarding the aforesaid proceedings under Section 4 (1) and ac cordingly a notification under Section 6 read with Section 17 (4) of Land Acquisi tion Act cannot presumed to be issued in this case. The opposite parties have exercised the power under Section 6 by passing an order dated 5-12-1984 without publication. The acquisition proceedings have become nugatory under Section 17 (4 ). It is further averred that one writ petition bearing No. 1650/1987 is also pending. The State Government has not applied its mind to the proposal objec tively or independently in favour of dif ferent bodies accordingly, the decision is not in accordance with law. As such the petitioner is compelled to challenge the notification on the ground that op posite party No. 2 Lucknow Develop ment Authority is selling the property to the co-operative society and other society and intending to get the profit as such the action is not sustainable in the eyes of law. The required notice has not been giyen in accordance with law, hence the petitioner has approached this Court.
(3.) ON behalf of opposite parties No. 2 and 3 a joint counter-affidavit was filed stating that notification for acquisi tion of the aforesaid land was made in accordance with the provisions of Sec tions 4 and 6 read with Section 17 (1) of the Land Acquisition Act on 27-6-1985 and on 5-7-1985 respectively (Annexures B-1 and B-2 ). Possession of the land in question was taken over by the Special Land Acquisition Officer and further delivered to the Lucknow Development Authority on 3-2-1987 (Annexure B-3 ). The award in respect of the land in question was declared by the Special Land Acquisition Officer on 8-1-1988 (Annexure B-4 ). It is further averred that the co ordinate Division Bench of this Hon'ble Court in writ petition No. 1915 (M/b)/1996, flam Jiyawan v. Lucknow Development Authority & Ors. , relying upon a judgment in 1996 (2) ICC 95, Tamil Nadu Housing Board v. Viswas, held that after taking over possession of the acquired land, the said land vest in the State Government free from all en cumbrances and thereafter if the erstwhile land owner or any person somehow get possession illegally or encroach on the said land then the said possession will be deemed to be un authorized (Annexure B-5 ). It is further contended that once possession has been taken in pursuance of the notifica tions under Section 4 (1) and Section 6 of the Act then limitation of two years for declaration of award will not apply as provided under Section 11 -A of the Act. If the land has been acquired under the provisions of Section 17 (1) and 17 (4) of the Act vide State of U. P v. S. P Jain, 1993 (4) SCC 369, P. Chinnanna & Ors, v. State of Andhra Pradesh & Ors. , 1994 (5) SCC 486 and in Avadh Behari Yadav v. State of Bihar, 1995 (2) JCLR 800 (SC) : 1995 JIR 586 : 1995 (6) SCC 31.;