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2008 DIGILAW 202 (CHH)

SUDARSHAN BEHERA v. STATE OF C. G.

2008-08-06

SATISH K.AGNIHOTRI

body2008
ORDER 1. By this petition, the petitioner seeks a writ in the nature of mandamus, directing the respondents No. 1 and 5 to make payment of compensation of Rs 4,60,224/- with interest against the acquisition of the land bearing Khasra No. 2130/7, measuring area 0.0 17 hectare, situated at Bouripara, Ambikapur, District Surguja (hereinafter referred to as "the disputed land"). 2. The brief facts, in nutshell, as projected by the petitioner are that the Executive Engineer, Public Works Department (for short, "PWD"), Ambikapur, requested the competent authority to acquire the disputed land for the purpose of construction of the road. A notification under Section 4 (I) of the Land Acquisition Act, 1894 (for short, "the Act, 1894") was accordingly issued. Thereafter, a notification under Section 6 of the Act, 1894 was published. All the required steps were taken before passing the award. The Land Acquisition Officer, Ambikapur, by order dated 24-9-2004 (Annexure P/1) passed an award for acquisition of the disputed land and determined the compensation to the tune of Rs 4,60,224/-. The petitioner was not paid compensation pursuant to the award dated 24-9-2004. There were certain allegations of demand of bribe also. The Collector, Surguja, sent a communicated dated 22-1-2005 (Annexure PIS) to the Secretary, Government of Chhattisgarh, PWD, with regard to the complaint made by the petitioner stating that the Executive Engineer, PWD, Ambikapur, has failed to deposit the compensation amount, which was determined by the land acquisition award dated 24-9-2004 (Annexure P/l). 3. Shri Y.K. Pandey, learned counsel appearing for the petitioner submits that after passing the award, the respondents No.2 and 3 have taken possession of the disputed land without making payment of the compensation. The petitioner is legally entitled to the compensation award in immediately on passing of the award. Though, the award was passed on 24-9-2004, till date no payment is made. Thus, appropriate writ may be issued' directing the respondents to make payment as quantified by the Land Acquisition Officer with interest on delayed payment. 4. Per contra, Shri Vinay Harit, Deputy Advocate General with Shri Shashank Thakur, Panel Lawyer for the respondents No. 1 to 4/State would submit that admittedly the award was passed on 24-9-2004 under the provisions of the Act, 1894. A letter dated 29-11-2004 (Annexure R/1) was sent accordingly to the respondent No.4 to deposit the compensation amount. 4. Per contra, Shri Vinay Harit, Deputy Advocate General with Shri Shashank Thakur, Panel Lawyer for the respondents No. 1 to 4/State would submit that admittedly the award was passed on 24-9-2004 under the provisions of the Act, 1894. A letter dated 29-11-2004 (Annexure R/1) was sent accordingly to the respondent No.4 to deposit the compensation amount. The Executive Engineer, PWD, Division No. 1, Ambikapur, made an application under Section 48 of the Act, 1894, for withdrawal of the acquisition of the land as the disputed land is not required for construction of the road. Khasra number of the land was mentioned by mistake in the notification under Section 4 (1) of the Act, 1894 and thereafter (Annexure R/2). On 10-2-2005 accordingly the Collector. Surguja, issued a notification under Section 48 of the Act. 1894 (Annexure R/4) to withdraw from acquisition in respect of the disputed land. It was further stated in the notification that the award was passed on 24-9-2004. but the possession thereof was not taken over by the State Government. The said notification was sent for publication by communication dated 10-2-2005 (Annexure R/3). It was clearly stated that the possession of the disputed land has not been taken over by the State Government. Thus, the State Government is competent to withdraw from the acquisition under the provisions of Section 48 of the Act, 1894. 5. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 6. It is admitted fact that, after notifications under Section 4 (1), 6 & 9 of the Act, 1894. steps were taken to acquire the disputed land and subsequently the award was passed on 24-9-2004 (Annexure P/1). Thereafter, despite reminder to the Executive Engineer, PWD. Ambikapur, no payment was made and an application was made to the Collector, Surguja, under the provisions of Section 48 of the Act, 1894 to withdraw from the acquisition of the disputed land. The Collector, Surguja, by notification dated 10-2-2005 (Annexure R/3), after having examined the case issued a notification to withdraw from the acquisition of the disputed land. It was clearly stated in the notification that the land was not required for public purpose and the possession thereof has not been taken over by the State Government. The said notification was also published in the gazette. It was clearly stated in the notification that the land was not required for public purpose and the possession thereof has not been taken over by the State Government. The said notification was also published in the gazette. The petitioner has not produced any document to substantiate the contention that the possession of the disputed land was taken thereof. 7. Section 48 of the Land Acquisition Act. 1894 reads as under: "48. Completion of acquisition not compulsory, but compensation to be awarded when not completed - (1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section". 8. The issue with regard to withdrawal from the acquisition of land, where award has been passed, was considered by Hon'ble the Supreme court in various cases. In the matter of Om Prakash and another Vs. State of U.P. and others., the Supreme Court held that "As laid down by sub-section (1) of Section 48, the Government is at liberty to withdraw from the acquisition of any land of which possession has not been taken." 9. In the matter of Mandir Shree Sifa Ratrifi alias Shree Sifa Ram Bhandar Vs. Land Acquisition Collector and others, the Supreme Court observed as under: "15. Even otherwise, we have seen the scheme sought to be relied upon. We find from the scheme that it only applies in respect of persons agencies who own and possess the land. In this case possession of the land had already been taken. The scheme also categorically states that the scheme would not take away the rights of the Delhi Development Authority to acquire land for development of Delhi. Thus the scheme was not applicable to the lands of the appellants. In this case possession of the land had already been taken. The scheme also categorically states that the scheme would not take away the rights of the Delhi Development Authority to acquire land for development of Delhi. Thus the scheme was not applicable to the lands of the appellants. Even under Section 48 of the Land Acquisition Act once possession is taken, the Government cannot with draw from the acquisition." 10. Further, in the matter of Bangalore Development Authority and others Vs. R. Hanumaiah and other the Supreme Court observed in paras 44 and 46 as under: "44. This court in Lt. Governor of H.P. v. Avinash Sharma, has held mpara as under (SCC p.l51): "Power to cancel a notification for Compulsory acquisition is, it is true, not affected by Section 48 of the Act; by a notification under Section 21 of the General Clauses Act, the Government may cancel or rescind the notification issued under Section 4 and 6 of the Land Acquisition Act. But the power under Section 21 of the General Clauses Act cannot be exercised after the land statutory vests in the State Government." It was concluded in para 8 that (SCC P. 152) : "It is clearly implicit in the observations that after possession been taken pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17 (1), the land vests in the Government There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification." 46. The possession of the land in question was taken in the year 1966 after the passing of the award by the Land Acquisition Officer. Thereafter, the land vested in the Government which was then transferred to CITB, predecessor-in-interest of the appellant. The possession of the land in question was taken in the year 1966 after the passing of the award by the Land Acquisition Officer. Thereafter, the land vested in the Government which was then transferred to CITB, predecessor-in-interest of the appellant. After the vesting of the land and taking possession thereof, the notification for acquiring the land could not be withdrawn or cancelled in exercise of powers under Section 48 of the Land Acquisition Act power under Section 21 of the General Clauses Act cannot be exercised after vesting of the land statutorily in the State Government" 11. Applying wel1 settled principles of law on cancel1ation of acquisition of land as laid down by Hon'ble the Supreme Court in various cases to the facts of the present case, the State Government in exercise of power under the provisions of Section 48 of the Act, 1894 is at liberty to withdraw from the acquisition of the disputed land. It is admitted fact that the possession of the disputed land pursuant to the award dated 24-9-2004 (Annexure P/1) was not taken over by the State Government as evident from the letter dated 29-11-2004 (Annexure R/1) and the notification dated 10-2-2005 (Annexure R/3). It is clearly stated therein that the possession of the disputed land has not been taken over by the State Government. 12. In view of the foregoing and for the reasons mentioned hereinabove, the petition is dismissed. However, liberty is reserved to the petitioner to make an application for compensation, if so advised, if he has suffered any lose on account of the proceedings for acquisition of the disputed land, which was Withdrawn on 24-9-2004 subsequently. No order as to costs. Petition Dismissed.