JUDGEMENT 1. Heard counsel for the parties. 2. The prayer of these 33 petitioners in this writ application reads as follows: "1. That by this petition the petitioners craves indulgence of this Honble Court for issuance of a writ in the nature of mandamus for directing the respondents to return the unused lands of Boropit to the petitioners which was taken by the State of Bihar from the family of the petitioners under the planning of Badua Reservoir Project Plan in the District-Banka in the year 1960 and the said lands are the property of the farmers i.e. the petitioners of this case and the aforesaid lands had not been used by the State in the manufacture of Badua Dam and the said lands are useless for the Government of Bihar." 3. Mr. Taranath Jha, learned counsel for the petitioners in support of the aforementioned prayer would submit that in terms of the provision under Executive Instruction No. 154 in the Land Acquisition Manual , the petitioners are entitled for return of their land, inasmuch as, the same lays down that: "154. Surplus land no longer required for public purposes to be relinquished.All lands, which have been permanently acquired for public purposes by Government in any department whether by private purchase or compulsory acquisition, and are no longer required, shall be relinquished. Proposals for the relinquishment of lands should be submitted to Government in the Administrative Department concerned, which will refer them to the Revenue Department stating that as far as they are concerned the land is no longer required. With the proposal should be sent a plan showing the land which it is proposed to relinquish on the same scale as the plan of the original acquisition of the land. The Revenue Department will ascertain the requirements of other departments and consult the Finance Department and the Board of Revenue. If it is decided to relinquish the land, the Revenue Department will issue orders to the Board of Revenue for the resumption of the land and its disposal according to the rules. On receipt of these orders the Board will issue instructions to the Divisional Commissioner for communication to the Collector of the district concerned, in order to give effect to the orders of Government. On receipt of these orders the Board will issue instructions to the Divisional Commissioner for communication to the Collector of the district concerned, in order to give effect to the orders of Government. Lands acquired for a municipality, district board or any other local authority legally entitled to, or entrusted by the Government with the control or management of any municipal or local fund, do not come within the scope of this rule. Relinquishment cases should be treated as distinct cases of the Land Acquisition Department." 4. Proceeding further on the basis of the aforementioned Executive Instruction No. 154, Mr. Jha has further placed reliance on a circular issued by the Revenue and Land Reforms Department on the same subject of return of surplus land. He would also place reliance on an order of this Court dated 11.5.1999 in C.W.J.C. No. 5144 of 1998 as also the judgment of the Apex Court in the case of Savitri Devi V/s. State of Haryana and Ors. reported in (1996)7 SCC 729 . 5. Mr. Jha, in fact, on the basis of the aforementioned Execution Instruction No. 154 as also in view of the Circular dated 22.12.1986 would submit that the Executive Engineer concerned had already made a recommendation for considering the return of the land to the petitioners and therefore, this Court should issue a direction to the Government to consider the issue in hand in terms of the aforementioned Government Instruction and Circular. 6. Counsel for the State on the other hand with reference to the counter affidavit filed in this case as also supplementary counter affidavit would submit that the power of withdrawal to the State Government is confined only to such land for which possession has not been taken. To that extent, he would refer to the provisions under Section 48(1) of the Act, which reads as follows: "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." 7. He would further submit that the petitioners somehow remains under mis-conceived notion that the land in question which they want to be returned back to them is a surplus land and. is not being used. He would further submit that the petitioners somehow remains under mis-conceived notion that the land in question which they want to be returned back to them is a surplus land and. is not being used. To that extent, he clarifies that apart from the actual area of land on which dam has been constructed, there is perennial need to keep the flank on both the sides vacant as has been explained by the concerned authority need to keep the flank on both the sides vacant as Executive Engineer, Irrigation Department, Tarapur (Munger) in his counter affidavit stating therein that the land of both sides of the acquired land is also being used for maintenance of the canal and dam and in this respect he would refer to the following statement in paragraph no. 4 of the main counter affidavit: ".........At the time of construction of Badua Reservoir Project, land was used for various purposes of the project. Some part of the land, which has been acquired downstream of the Badua Dam, shall be used for Government work in case of natural calamity." 8. In this context attention of this Court has also been invited to paragraph no. 4 of the supplementary counter affidavit which reads as follows: "........That it is stated that there is no provision under the Land Acquisition Act to return the lands once acquired and vested and the State, hence it is not possible for the Government to return or release 125.01 Acres of land out of 274.22 Acres acquired for construction of Badua Reservoir Project of Banka district. The land was acquired for use of canal and dam for which due compensation has already been paid to the landowners. The lands have already vested in the State of Bihar and thus cannot be returned to the petitioners. It is further stated that on both sides of the canal earth of charge land is being used for maintenance of the canal and dam. Since the land has been acquired in accordance with law, the petitioners have no claim or title left on the acquired land......." 9. It is further stated that on both sides of the canal earth of charge land is being used for maintenance of the canal and dam. Since the land has been acquired in accordance with law, the petitioners have no claim or title left on the acquired land......." 9. Thus, the first and the foremost premises on which the petitioners have founded their entire case with regard to the land in question being a surplus land not needed any longer to be utilized by the State Government and is accordingly fit to be returned to the landholder-petitioners by following the Executive Instruction No. 154 is itself incorrect. This Court therefore is not in a position to uphold the plea of the petitioners that the land in question is no longer required for the purposes of dam and canal for which it was acquired and the same has now ceased to exist or in the alternative the claim of the State as with regard to the continued user of the land is incorrect. 10. That apart, the discretionary power vested in the State Government even in terms of the aforementioned Executive Instruction cannot be subjected to judicial review by this Court and no writ of mandamus can be issued in this regard. The law in this regard stands settled that once the possession of the land in terms of Section 16 of the Act is taken by the State Government after payment of compensation to the landholders, the same would vest in the State Government free from all encumbrances. Section 48 of the Act therefore, would thus be the clincher and/or settler on the issue that once such possession of land has been taken, the State Government cannot be compelled to withdraw the land from acquisition. In fact this Court in the case of Krishna Kumar Yadav and Others V/s. The State of Bihar and Others reported in 1999(3) PLJR 457 has held that a land cannot be released from acquisition once the possession is taken. 11. Then again, this Court would find that the scope of the aforementioned Executive Instruction was entirely different and in fact would not be applicable to the facts of the petitioners case. 11. Then again, this Court would find that the scope of the aforementioned Executive Instruction was entirely different and in fact would not be applicable to the facts of the petitioners case. Here the authorities of the Government looking after the construction and functioning of the dam have asserted about the continued user of the land and its still being required in public interest as is apparent from their stand taken in the aforesaid extracted portion of the counter affidavit filed before this Court. Moreover the process for returning the land, the so-called surplus land, even the circular relied by the petitioners is very cumbersome and the respondents cannot be directed to first compel the authorities of all the Boards/Corporations to come to an opinion that none of them would require the land, whereafter only the landholders can be given an option to take back the possession of land. Respondents in the facts and circumstances of this case therefore cannot be compelled to exercise their such discretionary power vested in the acquiring authority by this Court specially when there is no dearth of materials to show that such land is required for both maintenance and further expansion of the dam. 12. The reliance placed by Mr. Jha on the order of this Court dated 11.5.1999 in C.W.J.C. No. 5144 of 1998, Mahabir Prasad V/s. State of Bihar and Others seems to be misconceived, inasmuch as, all that was done in that case was that this Court had given liberty to the petitioners of that case to file a representation by directing the respondents to consider the same in accordance with law. Obviously, this Court in the case of Mahabir Prasad (supra) did not decide any issue. 13. Similarly, the reliance placed on the judgment of the Apex Court in the case of Savitri Devi (supra), is also mis-placed inasmuch as all that was held therein reads as follows: "........Once the land is acquired and the acquisition has become final, the pre-existing right, title and interest held by the erstwhile owner ceases to exist and is divested and stands vested in the State and the beneficiary free from all encumbrances. The question is: Whether the erstwhile holder is entitled to the allotment of the sites? The question is: Whether the erstwhile holder is entitled to the allotment of the sites? The last paragraph of the policy connotes that: "An oustee could be offered a plot when he files an affidavit to the effect that he does not hold any house/shop/plot in that town. Moreover, he should be an owner of the land proposed to be acquired for one year before the issue of notification under Section 4 of the Land Acquisition Act, 1894 and 75% of his land must come under acquisition." 14. Obviously, the issue of allotment and the issue of utilization of land are entirely on two different footings. The allotment in that case was for a temporary purpose under whatever policy made by the State of Haryana and therefore the reference to the scheme therein by itself did not amount to laying down any law by the Apex Court and in fact for that Very reason, the Apex Court in the case of Savitri Devi (supra) had also not held the return of land to the landholders to be mandatory on the part of the State Government. 15. Apart from the aforementioned settled position, it would also become clear from perusal of the counter affidavit filed by the respondents that the respondents have taken a clear stand that once the land was acquired and vested in the State, it was not possible for the Government to return or release 125.01 acres of land out of 274.22 acres acquired for construction of Badua Reservoir Project of Banka district. The respondents have explained that the land was acquired for the use of canal and dam for which due compensation had already been paid to the landowners whereafter the land in terms of Section 16 of the Act has vested in the State of Bihar free from all encumbrances. The respondents in fact have also made it clear that both sides of the canal earth of chart land is being used for maintenance of canal and dam. It is in this regard that the respondents have clarified that after vesting of the land, the competent authority of the State Government has been given lease over the land for cultivation work which is in the interest of the dam itself because on such land, no construction can be allowed to be made. It is in this regard that the respondents have clarified that after vesting of the land, the competent authority of the State Government has been given lease over the land for cultivation work which is in the interest of the dam itself because on such land, no construction can be allowed to be made. Such lease in fact is on the basis of year-to-year basis and is not in any way an evidence of the continued possession of the petitioners as the owners of the land. Some of the petitioners as also others who are only lessees on year-to-year basis therefore cannot claim either to be the owner of the land or ask for return of the land specially when they are paying lease amount on yearly basis to the respondents in terms of agreements executed for the same. 16. Such clear stand taken of the respondents in the counter affidavit as with regard to their status as lessees has been admitted by the petitioners in the reply to the counter affidavit wherein it has been stated that: "......These lands were given to the farmers on lease and the petitioners are cultivating the said lands till date and paying the required lease rents to the State Government regularly from very beginning till date........" 17. The moment the petitioners admit that the possession of the land was taken from the erstwhile owners of the land in the year 1960 and thereafter the farmers including some of the petitioners have been given lease of the vacant land in and around the dam, that by itself would make it clear that they have no right to get release of the land in capacity of owner of land inasmuch as the right of a lease holder is always subject to the condition of the lease. 18. In fact, the grievance of the petitioners as reflected from the following passage of paragraph no. 7 to the reply of the counter affidavit would make it clear that the petitioners want to now raise the issue of payment of compensation after a period of almost fifty years a ground for release of the land. In this respect, it has been stated in paragraph no. 7 of the reply to the counter affidavit that: "...............it is respectfully submitted by the petitioners that they were paid the compensation for their lands by the Govt. In this respect, it has been stated in paragraph no. 7 of the reply to the counter affidavit that: "...............it is respectfully submitted by the petitioners that they were paid the compensation for their lands by the Govt. of Bihar at the time of acquiring the said lands of the petitioners but they were not paid the compensation by the Govt. on the market rate at the relevant time........." 19. Thus, on an overall reading of pleadings in the writ application, it becomes clear that the petitioners knowing fully well that they have lost right, title and interest to the land some fifty years back on account of acquisition of their land and its being vested free from all encumbrances in the State of Bihar have filed this frivolous writ petition for return of their land which is no longer permissible in view of Section 48 of the Land Acquisition Act. Once the possession of land of petitioners has been taken after completing, the proceeding the same has stood vested in the State of Bihar and therefore it would no longer be open for the petitioner-erstwhile landholders, whose right, title and ownership in the land has already been terminated, to now stake a claim for return of the land on the basis of some administrative instruction, which are not enforceable in a proceeding under Article 226 of the Constitution of India. 20. Even otherwise, the user of the land by keeping the area of dam and reservoir to be vacant actually cannot be said to be a case of misuse of the land. It is the technical requirement of maintenance of such dam that its adjoining area are to be kept vacant, inasmuch as, the flow of water cannot be kept constricted to a particular route or channel and such land in fact only provide coffer for any unforeseen eventualities including natural calamity by way of havoc of floods or otherwise. Such vacant land by the side of the dam/reservoir, therefore, in fact, made as a part and parcel of the user of the land and its being settled on lease only for the agriculture purpose, would reflect that the Government has been conscious to its rights and obligations. Such vacant land by the side of the dam/reservoir, therefore, in fact, made as a part and parcel of the user of the land and its being settled on lease only for the agriculture purpose, would reflect that the Government has been conscious to its rights and obligations. Such a decision well supported by the technical specification and explanation for maintenance of a dam cannot be held to be misuse of land of the petitioners so as to allow their claim for its return as a matter of right. 21. This Court, therefore, would not find any merit in any of the aforesaid submissions made by the learned counsel for the petitioners as with regard to the relief prayed in this writ petition. 22. This writ petition, therefore, being devoid of any merit, is accordingly dismissed. 23. There would be however no order as to costs.