- (1.) R. N. Misra, J. This writ petition has been filed by the petitioners for issuance of writ, order or direction in the nature of mandamus declaring the land acquisition proceedings in respect of plots in dispute to have lapsed under Section 11a of the Land Acquisition Act (hereinafter referred to as the 'act' ). They have further prayed for the relief from their dispossession over the land. In the alternative they have taken shelter of Section 48 of the Act
(2.) WE have heard Shri W. H. Khan, learned Senior Counsel assisted by Shri J. H. Khan, learned Standing Counsel for the respondents No. 1 and 3 and Shri A. K. Mishra, learned Counsel appearing for the respondent No. 2. Admittedly, the plot nos. 115 and 8 and plot Nos. 98, 163, 12, 14, 90, 101 and 102 situate in village Jhalwa tehsil Sadar District Allahabad belonged to the petitioners No. 1 to 3 respectively. The respondents proposed to acquire the said plots for the construction of residential colony and notification under Section 4 of the Act was issued on 21. 1. 1990. Thereafter, declaration under Section 6 of the Act was issued on 31. 12. 1991. The copies of the aforesaid notifications are Annexures 1 and 2 respectively. By way of notification under Section 6 of the Act, the inquiry under Section 5a of the Act was dispensed with alleging the urgency. The petitioners filed Civil Misc. Writ Petition No. 13700 of 1992 in which the interim order dated 7. 4. 1992 was passed by this Court restraining the respon dents not to dispossess the petitioners from the disputed plots unless they had already been dispossessed. The copy of the order is Annexure-3. The petitioners' houses are situate in plot No. 163 since 1992, plot No. 90 since 1980 and plot No. 115 since 1982. The petitioners are still in possession of the disputed plots and they were never dispossessed by the respondents. The aforesaid writ peti tion was dismissed on 24. 7. 2000 being infructuous by passage of time and ac cordingly the interim order dated 7. 4. 1992 also stood vacated. The copy of the order is Annexure-4. In the writ petition, it has been alleged that the petitioners were never dispossessed by the respondents and they are still continuing in possession. No award has been made by the Collector Allahabad as yet and no compensation has been paid to them. In the counter affidavit filed by one Dinesh Mishra, Law Inspector, Allahabad Development Authority, Allahabad, it has been alleged that the possession of the land was taken by Collector on 1. 11. 2002 and on the same day possession was handed over to the respondent No. 2. However, it has been alleged in the counter affidavit that the award has not yet been made. The acquisition has already be come final against the petitioners and writ petition challenging the notification under Sections 4 and 6 of the Act have already been upheld, therefore, this writ petition is not maintainable. It has also been alleged in the counter affidavit that the respondents had no knowledge about the dismissal of the earlier writ petition filed by the petitioners on 24. 7. 2000. Along with the counter affidavit, the posses sion memo Annexure CA-1 has been filed.
(3.) THIS is admitted fact that the petitioners had challenged the notification under Sections 4 and 6 of the Act in respect of the plots in dispute by filing Civil Misc. Writ Petition No. 13700 of 1992, in which interim order regarding disposses sion was passed on 7. 4. 1992 and the said writ petition was dismissed on 24. 7. 2000 and the stay granted earlier was vacated. The possession memo Annexure-CA-1 shows that the possession was allegedly taken on 1. 11. 2002, meaning thereby much after two years of dismissal of the writ petition in which the stay had been granted. Thus, apparently there was no urgency as required under Section 17 of the Act. The award has not yet been made, this is also admitted position. Thus, it is also clear that the period of much more than two years have passed and the Collector has not made any award regarding the disputed plots. Therefore, under the provisions of Section 11a of the Act, the entire acquisition proceedings auto matically lapsed. For ready reference Section 11ais quoted below: "period within which an award shall be made.- The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), the award shall be made within a period of two years from such commencement. " The materials on record shows that even after dismissal of the writ petition and vacation of the stay order the possession was not taken within two years and award was not made even after that. This plea of the respondents is not accept able that as soon as they knew of the dismissal of the writ petition and vacation of the stay order, they proceeded further to acquisition proceedings and took possession because the respondents were party to the aforesaid writ petition and knowledge of the dismissal of the petition was to be presumed against them. The learned Counsel for the respondent No. 2 has argued that since the urgency clause was invoked, therefore, there was no need for award and from the date of possession, the land in dispute vested absolutely in the Government free from all encumbrances. But this argument is not acceptable because under Section 17 (1) of the Act the possession was to be taken after expiry of 15 days from the date of publication of notice under Section 9 (1) of the Act showing urgency but since the alleged possession was taken much after two years of the dismissal of the writ petition, therefore, this argument of the learned Counsel for the petitioners has force that there was no urgency.;