JUDGMENT P. Subramonian Poti, J. 1. The petitioners in this Original Petition are the owners of about nine acres of land in section Nos. 1/1, 1/2, 2, 3 and 4 of Poonithura Village and section No. 5 of Elamkulam Village of Kanayannur Taluk, Ernakulam District. The land is said to be a yielding coconut garden situate by the side of the National Highway in Cochin City. The 2nd respondent in the Original Petition, Kerala State Housing Board, negotiated with the petitioners for the sale to the Board of the aforesaid lands and pursuant to this a final offer was made to sell the land to the Board at a flat rate of Rs. 1,600 per cent, the offer to be open till the end of September, 1977. There appears to have been further negotiations as a result of which the petitioners entered into an agreement with the District Collector, Ernakulam for the sale of 7.11 acres at Rs. 3,458 per acre. Ext. P-2 is the copy of the agreement. There is mention in the agreement that the property was to be taken by the State for the purpose of the Kerala State Housing Board by acquisition. According to the petitioners it was intended by the parties that the land will be taken forthwith and compensation paid without delay. It is further said that on 24th December 1977 the petitioners agreed to hand over possession of the property and receive 50 per cent of the compensation and this was agreed to in order to expedite the proceedings. The complaint of the petitioners is that the 1st respondent, the Special Tahsildar (Land Acquisition), Greater Cochin Development Authority, did not expedite the proceedings as contemplated. It is said that even the notification under section 3 of the Kerala Land Acquisition Act, 1961, proposing acquisition was published only on 14th February 1978 and that was done without specifying or demarcating the particular area to be acquired out of the total extent of nine acres. It is said that since the acquisition proceedings were irregular, the petitioners objected to it and they claimed compensation at the rate of Rs. 3,000 per cent besides the value of improvements. It is said that since the acquisition proceedings were irregular, the petitioners objected to it and they claimed compensation at the rate of Rs. 3,000 per cent besides the value of improvements. While so, on 15th February 1978 the 1st respondent, Special Tahsildar, wrote to the petitioners proposing to take possession of the land with immediate effect as soon as the survey work was completed and directed the petitioners to give alternate sites to the kudikidappukars and shift them. According to the petitioners this was not possible because alternate sites could be granted only after the area out of the nine acres which was to be acquired was fixed and demarcated and even then the petitioners obligation was said to be only to pay the shifting charges, the actual shifting being the responsibility of the 1st respondent. It is the complaint of the petitioners that nothing further happened for a long time and no steps were taken to complete the acquisition expeditiously. Ultimately by Ext. P-13 letter dated 3rd February 1979 addressed to the petitioners intimation was given to them about the proposal to take possession of the land required for the Kaloor Housing Scheme and the petitioners were requested to be present at the site and hand over possession to the Revenue Inspector who had necessary instructions in the matter. This letter is dated 3rd February 1979 and it proposed taking possession at 11 a.m. on 6th February 1979. This was received by the petitioners 1 to 3 only after the time fixed for surrender of possession namely, at 12 noon on 6th February 1979 at Trichur. The petition does not mention at what time the 4th petitioner received this order. On 6th February 1979 as proposed in Ext. P-13, possession seems to have been taken. The petitioners 1 and 2 wrote in the 1st respondent on 3rd February 1979 intimating him that the requisition to them to hand over possession was received by them only at 12 noon on 6th February 1979 and that the proposal to take possession will not be in accordance with law. Ext. P-14 is the copy of the letter. By a letter dated 7th February 1979 the 1st respondent informed the petitioners that the lands were already taken possession of and handed over to the Housing Board on 6th February 1979. Ext. P-14 is the copy of the letter. By a letter dated 7th February 1979 the 1st respondent informed the petitioners that the lands were already taken possession of and handed over to the Housing Board on 6th February 1979. The petitioners were requested to collect the advance payment on 19th February 1979. It was then that the petitioners approached this Court with this petition. 2. The petitioners pray quashing of all proceedings for acquisition of the lands of the petitioners which is the subject of notification under section 3 (1) of the Land Acquisition Act and also seek appropriate direction from this Court for putting them back in possession of the lands taken possession of on 6th February 1979. Subsequent to the filing of this Original Petition, C.M.P. 8681 of 1980 has been moved for amending the Original Petition. This take note of a circumstance that has arisen after filing of the Original Petition. The notification under section 3 (1) impugned in the original petition was that published in the Gazette dated 14th February 1978. No declaration under section 6 was issued within a period of 2 years as required by proviso to section 6 of the Kerala land Acquisition Act. It is urged in the amendment petition that the proceedings initiated for the acquisition of the lands have lapsed and therefore cannot be continued. It is said that since this contention was not available at the time of filing of the Original Petition, this was not incorporated therein. We allow the amendment. 3. In view of the fact that within a period of two years from the date of publication of the notification no declaration was issued, no declaration could now be made under section 6 of the Kerala Land Acquisition Act pursuant to the notification in the Gazette dated 14th February 1978. Proviso to section 6(1) prohibits any declaration under section 6 in respect of any particular land covered by a notification under section 3 (1) after the expiry of two years from the date of publication of such notification. Admittedly the period of two years having expired as at present no declaration could be made based on the said notification. The consequence would be that no proceeding could be continued pursuant to notification under section 3 (1) of the Kerala Land Acquisition Act issued on 14th February 1978. Admittedly the period of two years having expired as at present no declaration could be made based on the said notification. The consequence would be that no proceeding could be continued pursuant to notification under section 3 (1) of the Kerala Land Acquisition Act issued on 14th February 1978. In this situation what further relief is to be granted to the petitioners is a matter for our consideration. 4. The agreement executed by the petitioners in favour of the District Collector, Ernakulam, copy of which is Ext. P-2, provides for surrender of advance possession, by the petitioners to the District Collector. It is not quite in evidence whether the agreement is intended to operate de-hors the provisions of the Kerala Land Acquisition Act. Apparently that is not the case. That is because in the agreement there is reference to the proposed acquisition of the land in question and the agreement reached between the parties as to the price appears to be for the purpose of settling compensation in accordance with the provisions of the Kerala Land Acquisition Act. There is reference in the agreement to section 16 of the Act. Since we have come to notice similar agreements in other cases too, it may be profitable to refer to section 16 of the Act and notice the scope of an agreement under that section, for, if the procedure that is being adopted by the State is erroneous, it will be necessary for the State to correct it as early as possible. 5. Notification under section 3 (1) is to be followed by a declaration under section 6 if after hearing the objections the Government or the Board of Revenue decides to acquire the property. After such declaration the Collector is to make an order for acquisition. The lands have to be marked out, measured and planned. Section 9 of the Act envisages issue of notice to persons interested. These notices call upon the interested parties to state the nature of their respective interests in the land and the amount of compensation claimed by them. It is on the basis of these claims that compensation is settled in the award. Section 10 of the Act empowers the Collector under the Act to require and enforce the making of statements by way of evidence on matters relating to compensation. Section 11 provides for an enquiry and award by the Collector. It is on the basis of these claims that compensation is settled in the award. Section 10 of the Act empowers the Collector under the Act to require and enforce the making of statements by way of evidence on matters relating to compensation. Section 11 provides for an enquiry and award by the Collector. After the enquiry into matters specified under that section, the Collector is to make an award of the true area of the land, the compensation to be allowed and the apportionment of the said compensation among the persons possessing interest in the land. Section 15 provides that in determining the amount of compensation the Collector is to be guided by the provisions contained in sections 25 and 26 of the Act. Despite the provisions in the Act empowering the Collector to make an enquiry prior to the determination of compensation, it is open to the persons interested on the one hand and the Collector under the Land Acquisition Act on the other to agree to the amount of compensation. Section 16 of the Act runs thus: "16. Award in case of agreement as to the amount of compensation. (1) If the Collector and all the persons interested agree as to the amount of compensation to be allowed, the Collector shall make an award under his hand for the same. (2) Such award, shall be filed in the Collector's office and shall be conclusive evidence, as between the Government and all persons interested, of the value of the land and the amount of compensation allowed for the same." "Collector" used in this section is to be understood in the light of the definition in section 2 (3) which means the Collector of the District and also includes any other officer appointed by the Government to perform the functions of a Collector under the Act. The question of passing an award on the terms agreed to by the parties with the Collector would arise only when the acquisition has been decided upon by the Government or the Board of Revenue as the case may be and consequently a declaration is issued. There is no scope for any agreement under section 16 as to the amount of compensation when proceedings have not commenced under the Land Acquisition Act. As in this case, it may happen that proceedings commenced under section 3(1) may lapse for failure to declare. There is no scope for any agreement under section 16 as to the amount of compensation when proceedings have not commenced under the Land Acquisition Act. As in this case, it may happen that proceedings commenced under section 3(1) may lapse for failure to declare. Therefore there will be no scope for an agreement to operate in such cases except as an agreement outside the provisions of the Kerala Land Acquisition Act, if the agreement so reached between the parties could operate as such a valid agreement outside the provisions of the Act. 6. In this case, as it is there is no question of any acquisition under the Kerala Land Acquisition Act, for, there is no declaration under section (6) of the Act. Therefore there is no question of paying any compensation under the terms of an award under the Act. The patties are to be put back to the position prior to notification under section 3(1) of the Act. Of course, this does not preclude the State from taking such steps as it considers necessary to notify the land if circumstances justify such proceedings. Evidently on that, possibly the petitioners may have no objection, for, it appears to us that the real grievance of the petitioners is that the compensation agreed upon under Ext. P-2 should be operative to survive for all time to come at the pleasure of the District Collector. Therefore if a notification under section 3(1) is to be published, according to the petitioners, they would be entitled to claim land value at the then market value. The only question with which we need concern ourselves now is whether the taking possession on 6th February 1979 would be justified by reference to Ext. P-2 agreement. Evidently Ext. P-2 agreement which was understood by the State to be a statutory agreement under section 16 of the Kerala Land Acquisition Act does not authorise the State to take possession by resort to steps other than those under the Kerala Land Acquisition Act. Reference is made to clause 4 of the agreement which runs thus: "4. The first party further agrees to surrender the entire land under acquisition in advance to the second party." When a party agrees to "surrender" the, property, the other party can seek such surrender but cannot take possession by force. Reference is made to clause 4 of the agreement which runs thus: "4. The first party further agrees to surrender the entire land under acquisition in advance to the second party." When a party agrees to "surrender" the, property, the other party can seek such surrender but cannot take possession by force. Surrender is an act to be performed at the volition of the party surrendering. Ext. P-13 calls upon the petitioners to be present at the site to hand over possession. If on notice being given to the petitioners the petitioners do not turn up, possession cannot be assumed by the State. This is a case where for at least three of the petitioners notice was not even given prior to the taking of possession. There was no voluntary surrender by the petitioners to the State. In these circumstances, the taking of possession cannot be said to be by resort to any provisions of the agreement but by use of might which, of course, the first respondent possesses as an officer empowered by statute. Such taking of possession is not in accordance with law. Now that we find that the notification dated 14th February 1978 under section 3(1) is not alive and moreover, now that we hold that there is no question of settlement of compensation under section 16 of the Land Acquisition Act as it is and further since the taking of possession without surrender by the petitioners must be found to be not warranted the petitioners who have been divested of such possession mast be found to be entitled to be put back on possession. Consequently we direct that the respondents shall put back the petitioners in possession of lands taken from them within two weeks from today. The petition is allowed as above. In the circumstances, we direct parties to suffer costs. At the instance of the Additional Advocate General we posted this case 'to be spoken to' since it was brought to our notice by the Additional Advocate General that there is a gazette notification dated 18th June 1980 under section 3(1) of the Land Acquisition Act concerning the land which is the subject-matter of this petition. Of course this may not change the fate of this petition. But the learned Additional Advocate General mentioned this only to put the records straight. Of course this may not change the fate of this petition. But the learned Additional Advocate General mentioned this only to put the records straight. We have mentioned in the judgment dated 7th July 1980 that at present there are no proceedings pending. Fresh proceedings seem to have been taken now. We thought we should make mention of this fact also in view of the Additional Advocate General having brought this to our notice.