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Himachal Pradesh High Court · body

2015 DIGILAW 1282 (HP)

Kanti Swaroop Mehta v. State of Himachal Pradesh

2015-09-14

RAJIV SHARMA

body2015
JUDGMENT RAJIV SHARMA, J. 1. C.W.P. No. 2356 of 2009 was allowed by this Court vide judgment dated 24.10.2011. Respondent-State filed an LPA against the judgment dated 24.10.2011 bearing LPA No. 102 of 2012. The LPA was allowed by the Division Bench of this Court on 23.4.2014 and the matter was remanded back to this court. According to the observation made by the Division Bench, the Writ Court has not decided all the objections raised by the State including factum of possession. The petition was heard afresh. 2. Key facts necessary for the adjudication of this petition are that respondent No. 2 sent a communication to respondent No. 3 on 24.4.2003 regarding providing road to sewerage treatment plant at Solan. Respondent No. 3 was requested to prepare documents under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the “Act” for brevity sake) so that the land could be acquired for the public purpose. The Assistant Engineer I & PH, Sub Division, Solan sent a communication to the Land Acquisition Officer, Public Works Department, Solan on 23.06.2004 requesting him to prepare the papers under sections 6 and 7 as per Jamabandi for land comprised in 7/8 Khewat-Khatauni No. Khasra No. 1. Respondent No. 2 again sent a communication to respondent No. 3 on 16.7.2004 to prepare the documents under sections 4, 6 and 7 of the Act. The petitioner is owner of plot, measuring 15 bighas and 4 biswas, comprised in Khasra No. 341/3 entered at Khewat No. 30, Khatauni No. 31 min, situated at Mauja Shamti, Pargna Keontan-I, Tehsil and District Solan, H.P. Notification under section 4 of the Act was issued for the construction of road of sewerage treatment plant at Solan on 7.2.2005. It was duly published in two daily newspapers i.e. Punjab Kesri and Divya Himachal on 15.3.2005. It was also got published in Rajpatra on 26.2.2005. It was also given wide publicity through Tehsildar Solan on 15.3.2005 vide report No. 493. A report under Section 5-A (2) was submitted to the Executive Engineer, I & PH, Solan by respondent No. 3 on 13.4.2005 alongwith draft notification under Sections 6 and 7 of the Act. It was also got published in Rajpatra on 26.2.2005. It was also given wide publicity through Tehsildar Solan on 15.3.2005 vide report No. 493. A report under Section 5-A (2) was submitted to the Executive Engineer, I & PH, Solan by respondent No. 3 on 13.4.2005 alongwith draft notification under Sections 6 and 7 of the Act. The State Government after receiving report under Sections 5-A (2) of the Act issued notifications under Sections 6 and 7 on 8.9.2005 for acquiring 4-12 bighas of land situated in village Shamti Tehsil and District Solan for the construction of Sewerage Treatment Plant. These notifications were also published in two daily newspapers, i.e. Ajit Samachar and Divya Himachal on 30.10.2005. It was also published in the H.P. Rajpatra on 24.9.2005. Wide publicity was also given to the same through concerned Tehsildar Solan on 10.10.2005 vide report No. 103. Land measuring 4-12 bigha was demarcated by the Field Agency and it was checked by the Naib Tehsildar, LAO Office Solan in the presence of right holders and nominees of the department on 24.11.2005. Their statements were also recorded on the spot. The inquiry under Section 9 of the Land Acquisition Act was conducted on 7.12.2005 in the office of respondent No. 3. The District Collector, Solan vide order dated 25.11.2005, has approved the rates of Rs. 26981.49 paisa per biswa of Ghasni Kisam on the basis of sale transactions recorded before the issuance of notification under Section 4 of the Act. The draft award was made by respondent No. 3 on 17.1.2006. Respondent No. 3 has determined Rs. 35,19,965/- as amount of compensation for acquiring the land as mentioned hereinabove. 3. The proposed award was sent to the Principal Secretary (I & PH) on 17.1.2006 vide Annexure P-8. The announcement of award was fixed as 31.1.2006. Respondent No. 3 sent a communication to the Land Acquisition Officer on 11.9.2007 for de-notification of Khasra numbers of the land as per the details given in the communication. Thereafter, vide notification dated 9.10.2007, the land was de-notified whereby the land was to be acquired for construction of Sewerage treatment plant. The same was also published in Hindustan Times on 11.11.2007 and Dainik Bhaskar. 4. Mr. Thereafter, vide notification dated 9.10.2007, the land was de-notified whereby the land was to be acquired for construction of Sewerage treatment plant. The same was also published in Hindustan Times on 11.11.2007 and Dainik Bhaskar. 4. Mr. Neeraj Gupta, has vehemently argued that the possession of the land has been taken over and the same has been utilized and once the possession has been taken over, Annexure P-11, dated 9.10.2007 could not be issued. He has also contended that action of the respondent de-notifying the land is actuated with legal malafides. According to him, the chambers have been constructed and the pipe lines have already been laid down on the land of the petitioner. 5. Mr. Ramesh Thakur, learned Assistant Advocate General has vehemently argued that the present petition is barred by delay and laches. He has also contended that path is common and the state government is using this path on the basis of agreement entered into between the Farm Scientists Housing Society, Solan and I & PH Department, dated 30.9.2003. He has also contended that separate access to the plant and the suit land was not required by the Department. The land is not in possession of the department. He has also contended that the Farm Scientists Housing Society, Solan was necessary party, which has permitted to use the path by the Department free of cost. 6. I have heard the learned counsel for the parties and have gone through the pleadings carefully. 7. The notification de-notifying the land has been issued on 9.10.2007 and the present petition has been filed on 6.7.2009. It has come in the petition that the documents were being obtained by the petitioner and thereafter immediately the present petition has been filed. Thus, it cannot be held that the present petition is barred by delay and laches. It is not substantiated how the petitioner was estopped from filing the present petition. The land has been used without acquiring the same infringing his legal rights under Article 300-A of the Constitution of India. Thus, the present petition is duly maintainable. 8. It is evident from Annexure P-3 dated 24.4.2003 and Annexure P-4, dated 23.6.2004 that the I & PH Department has asked respondent No. 3 to prepare the documents of acquisition of land for providing road to sewerage treatment plant, Solan. Thus, the present petition is duly maintainable. 8. It is evident from Annexure P-3 dated 24.4.2003 and Annexure P-4, dated 23.6.2004 that the I & PH Department has asked respondent No. 3 to prepare the documents of acquisition of land for providing road to sewerage treatment plant, Solan. The Executive Engineer has asked the Land Acquisition Officer to issue notification under Sections 6 & 7 of the Act. Thereafter, the notification as noticed hereinabove was published under Section 5 of the Act on 7.2.2005. It was duly published in the daily Edition of the Punjab Kesari on 15.3.2005. It was also got published in Rajpatra on 26.2.2005. Wide publicity was also given through Tehsildar, Solan on 15.3.2005. A report under Section 5-A (2) of the Act was submitted to the Executive Engineer (I & PH) Department Solan and after considering the report, notification under Sections 6 and 7 have been issued on 8.9.2005. It was also published in two daily newspapers i.e. Ajit Samachar and Divya Himachal on 30.10.2010. It was also published in the H.P. Rajpatra on 24.9.2005. Thereafter, the spot was demarcated by the Field Agency on 24.11.2005. The nominees of the State Government were also present alongwith right holders. The inquiry under Section 5-A (2) of the Act was also got conducted. The Collector has approved the value of the Ghasni Kisam as Rs. 26,981.49 per biswa. The Land Acquisition Officer has assessed the compensation of Rs. 35,19,965/-. The Land Acquisition Officer has specifically observed in para-8 of the draft Award that the possession of the land was already with I & PH Department. However, formal possession would be handed over by the Naib Tehsildar Land Acquisition Office, Solan to the nominee of the Department in accordance with law within one month from the date of payment. The Land Acquisition Collector has sent the draft award for the approval of the Principal Secretary, as per Annexure P-8. In the meantime, the Executive Engineer sent a communication to respondent No. 3 for de-notifying the land as per Annexure P-10, dated 11.9.2007. Petitioner has been issued notice on 4.10.2007. He filed reply to the same on 9.10.2007. However, without taking into consideration the reply filed by the petitioner, the land has been de-notified as per Annexure P-11 on 9.10.2007. In the meantime, the Executive Engineer sent a communication to respondent No. 3 for de-notifying the land as per Annexure P-10, dated 11.9.2007. Petitioner has been issued notice on 4.10.2007. He filed reply to the same on 9.10.2007. However, without taking into consideration the reply filed by the petitioner, the land has been de-notified as per Annexure P-11 on 9.10.2007. The notification for the withdrawal of the land was also published in daily Edition of Divya Himachal on 11.11.2007 vide Annexure R-4. 9. Mr. Ramesh Thakur has drawn the attention of the Court to Annexure R-1, dated 22.9.2003. It is stated in this communication that the land provided for road from Solan-Rajgarh road has been provided free of cost by Sh. K.S. Mehta. Though there is a reference to sale deed dated 28.11.1984, but it is evident from Annexure R-1 that an access to the road has been provided by the petitioner free of cost. Thus, it cannot be said that the land has been sold by the owners to Farm Scientists Housing Society, Solan. They have only been given free access to the road. The use of the road by the members of the Farm Scientists Housing Society, Solan is permissive though the ownership remained with the petitioner. It is in these circumstances, State Government has entered into agreement with the Farm Scientists Housing Society, Solan to seek access to the road to transport man and machinery at the site. Thus, so-called agreement referred to in the reply has no relevance in the case whereby the land has been sold to Farm Scientists Housing Society, Solan. The Farm Scientists Housing Society, Solan was neither proper nor necessary party for adjudication of the present lis since no relief was ever asked for against the Farm Scientists Housing Society, Solan. 10. It has also come on record that respondents have used the land of the petitioner for laying down pipes and construction of chambers. The initiation of the land acquisition proceedings under sections 4, 6 and 7 of the Act were strictly in conformity of law. The land of the petitioner has already been used. The demarcation has been undertaken under section 8 of the Act and necessary inquiry was conducted under section 9 of the Act. The respondents have also admitted that necessary cutting and dressing was also undertaken on the land. The land of the petitioner has already been used. The demarcation has been undertaken under section 8 of the Act and necessary inquiry was conducted under section 9 of the Act. The respondents have also admitted that necessary cutting and dressing was also undertaken on the land. No reasons have been assigned to de-notify the land as per Annexure P-10 dated 11.9.2007. The reply filed by the petitioner to the notice dated 4.10.2007 has not been taken into consideration. 11. Mr. Ramesh Thakur has also argued that the proceedings initiated on 7.2.2005 have elapsed, but this objection was never raised by the respondent-State in the reply to the main petition. 12. In the instant case, the proposed award was prepared as per Annexure P-8 dated 17.1.2006 and thereafter, a request was made by the Executive Engineer to de-notify the land. In these circumstances, it cannot be held that the land acquisition proceedings have elapsed. The moment, possession of the land in question has been taken over, petitioner stood divested of his right over the property. 13. Their Lordships of the Hon’ble Supreme Court in Satendra Prasad Jain and Others vs. State of U.P. and Others, AIR 1993 SC 2517 have held that when the land is vested in Government, provisions of section 11-A regarding passing of award within two years are not applicable. Their Lordships have further held that taking of possession taken illegally, i.e. without making payment of estimated compensation would not absolve Government from making award. Their Lordships have held as under: “[14] Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17 (1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner. [15] Further, Section 17(3-A) postulates that the owner will be offered an amount equivalent to 80 per cent. of the estimated compensation for the land before the Government takes possession of it under Section 17(1). Section 11-A cannot be so construed as to leave the Government holding title to the land without the obligation . to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent. of the estimated compensation. [16] In the instant case, even that 80 per cent. of the estimated compensation was not paid to the appellants although Section 17(3-A) required that it should have been paid before possession of the said land was taken but that does not mean that the possession was taken illegally or that the said land did not thereupon vest in the 1st respondent. of the estimated compensation was not paid to the appellants although Section 17(3-A) required that it should have been paid before possession of the said land was taken but that does not mean that the possession was taken illegally or that the said land did not thereupon vest in the 1st respondent. It is, at any rate, not open to the third respondent, who, as the letter of the Special Land Acquisition Officer dated 27th June, 1990 shows, failed to make the necessary monies available and who has been in occupation of the said land ever since its possession was taken, to urge that the possession was taken illegally and that, therefore, the said land has not vested in the first respondent and the first respondent is under no obligation to make an award.” 14. Their Lordships of the Hon’ble Supreme Court in Awdh Bihari Yadav and Others vs. State of Bihar and Others, AIR 1996 SC 122 have held that when the land has been acquired under section 17 (1) and no award has been made within the period prescribed by section 11- A, proceedings would not lapse. Their Lordships have held as under: “[8] The sheet-anchor of the appellant's plea is that the land acquisition proceedings have lapsed in view of Section 11-A of the Act. In order to understand the scope of the plea it will be useful to extract the relevant provision of the Act (Section 6, Section 11, Section 11-A, Section 17 and Section 48(1)). "6. In order to understand the scope of the plea it will be useful to extract the relevant provision of the Act (Section 6, Section 11, Section 11-A, Section 17 and Section 48(1)). "6. Declaration that land is required for a public purpose:- (1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under Section 5-A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secetary to such Government or of some officer duly authorized to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4, subsection (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5-A, sub-section (2); Provided that no declaration in respect of any particular land covered by a notification under Section 4, sub-section (1)- (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be maded after the expiry of three years from the date of the publication of the notification ; or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification : Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority." "11. Enquiry and award by Collector :- (1) On the day so fixed, or on any other day to which the equiry has been adjourned, the Collector shall proceed to enquire into objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8, and into the value of the land at the date of the publication of the notifications under Section 4, sub-section (1), and into the respective interests of the persons claiming the compensation and shall make an award under his hand of- (i) the true area of the land; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he had information, whether or not they have respectively appeared before him : Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf: Provided further that it shall be competent for the appropriate Government to direct that the Collector may made such award without such approval in such class of cases as the appropriate Government may specify in this behalf. (2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be includeded in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement. (3) The determination of compensation for any land under sub-section(2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act. (3) The determination of compensation for any land under sub-section(2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act. (4) Notwithstanding anything contained in the Registration Act, 1908, (16 of 1908), no agreement made under sub-section (2) shall be liable to registration under that Act." "11-A. 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, the award shall be made within a period of two years from such commencement. Explanation :- In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded." "17. Special powers in cases of urgency :- (1) In cases of urgency, whenever the approprate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. xxx xxx xxx xxx (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under Section 4, sub-section (1)." "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." It was contended that in view of Section 11-A of the Act the entire land acquisition proceedings lapsed as no award under Section 11 had been made within 2 years from the date of commencement of the Land Acquisition Amendment Act, 1984. We are of the view that the above plea has no force. In this case, the Government had taken possession of the land in question under Section 17(1) of the Act. It is not open to the Government to withdraw from the acquisition (Section 48 of the Act) In such a case, Section 11-A of the Act is not attracted and the acquisition proceedings would not lapse, even if it is assumed that no award was made within the period prescribed by Section 11-A of the Act. Delivering the Judgment of a Three Member Bench of this Court, in Satendra Prasad Jain vs. State of Uttar Pradesh, (1993) (4) SCC 369 : 1993 AIR SCW 3184, S.P. Bharucha, J., at page 374, paragraph 15, (of SCC): (At P. 3189, para 14 of AIR), stated the law thus : "Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending, and by virtue of the provisions of Section 11-A lapse. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending, and by virtue of the provisions of Section 11-A lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisition under Section 17, because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner." (Emphasis supplied) We, therefore, hold that the land acquisition proceedings in the instant case did not lapse.” 15. The State Government has already set up the sewerage treatment plant and the process was initiated to acquire the land of the petitioner to provide access to the treatment plant. Petitioner could not be deprived of his legal right to get the compensation. Petitioner, in his objection, has highlighted that at one time Shri Man Singh had stopped the work and the matter was adjudicated by the Civil Court and on the assurance of the department that land will be lawfully acquired, the suit was withdrawn. He has also highlighted that the department has incurred expenditure, which was entered in the measurement book of the concerned Junior Engineer. The possession was already with the I&PH Department in the shape of chambers and laying of pipes. 11 chambers and RCC pipes were also laid. The State Government could not be oblivious to the facts as stated in the reply at the time when the notification was issued under section 4 of the Act on 7.2.2005 followed by notification under sections 6 and 7 of the Act on 8.9.2005. The land of the petitioner has been utilized but he has not been paid any compensation and till date the possession is with the State Government as per the draft award Annexure P-7. 16. The State Government did not take any action on Annexure P-8, dated 17.01.2006. The land of the petitioner has been utilized but he has not been paid any compensation and till date the possession is with the State Government as per the draft award Annexure P-7. 16. The State Government did not take any action on Annexure P-8, dated 17.01.2006. However, the Executive Engineer, IPH Division, Solan, H.P. sent a communication to respondent No. 3 on 11.09.2007 to initiate the process for preparation of papers under Sections 4, 6 and 7 for de-notification of land for construction of Sewerage Treatment Plant in Mauza Shamti. 17. In the instant case, the department of Irrigation and Public Health has decided to set up Sewerage Treatment Plant. Though it has come in the reply filed by the State that main plant was set up on the land acquired vide Award No. 29 of 2000, dated 11.06.2000, however, fact of the matter is that the process was initiated by the State by issuing notification under Section 4 on 07.02.2005 and under Sections 6 and 7 on 08.09.2005 for the purpose of linking sewerage plant by road. The notifications issued under Sections 4, 6 and 7 were duly published in the Rajpatra and two news papers. The demarcation was also undertaken on 14.11.2005. The inquiry was also conducted under Section 9 of the Land Acquisition Act. 18. Their Lordships of the Hon’ble Supreme Court in Balwant Narayan Bhagde vs. M.D. Bhagwat and Others, AIR 1975 SC 1767 have held that it is well settled that after possession of the land forming the subject matter of acquisition has been taken in accordance with section 16 or 17 (1) of the Act, the land vests in the Government and the Government or any authority is not at liberty to withdraw from acquisition of any land of which possession has been taken over. Their Lordships have held as under: “4. These two Civil Appeals filed by Shri Balwant Narayan Bhagde on grant of special leave by this Court arise out of a common judgment of the Bombay High Court allowing Special Civil Application No. 826 of 1968 filed by Shri M. D. Bhagwat and Shri E. R. Mahajani, respondent nos. Their Lordships have held as under: “4. These two Civil Appeals filed by Shri Balwant Narayan Bhagde on grant of special leave by this Court arise out of a common judgment of the Bombay High Court allowing Special Civil Application No. 826 of 1968 filed by Shri M. D. Bhagwat and Shri E. R. Mahajani, respondent nos. 1 and 2 in Civil Appeal No. 75 of 1974 and Special Civil Application No. 389 of 1971 filed by the Punjabrao Krishi Vidyapeeth hereinafter called the Agricultural College - to quash the order of the Commissioner, Nagpur purporting to give sanction for withdrawal of the acquisition by his letter dated 8-8-1968 in respect of a portion of the land comprised in Survey No. 30/2 in village Umari, District Akola. The High Court has held that possession of the land in question was taken by the Collector, Akola and given to the Principal, Agricultural College it was, therefore, not open to the Commissioner to withdraw from the acquisition of the land under section 48 (1) of the Land Acquisition Act, 1894 as it stands amended by the Land Acquisition (Maharashtra Extension and Amendment) Act - hereinafter called the Act. It is well settled and nothing to the contrary was canvassed before us, that after possession of the land forming the subject matter of acquisition has been taken in accordance with Section 16 or Section 17 (1) of the Act, the land vests in the Government and the Government or any other authority is not at liberty to withdraw from the acquisition of any land of which possession has been taken; vide, State of Madhya Pradesh vs. Vishnu Prasad Sharma, (1966) 3 SCR 557 : AIR 1966 SC 1593 and Governor of Himchal Pradesh vs. Sri Avinash Sharma, (1970) 2 SCC 149 : AIR 1970 SC 1576 . The controversy, therefore, centered round the question as to whether possession of the land which was released by the Commissioner under Section 48 (1) of the Act had been taken or not.” 19. Their Lordships of the Hon’ble Supreme Court in Rajasthan Housing Board and Others vs. Shri Kishan and Others, (1993) 2 SCC 84 have held that once possession of the land was taken over by the Government, thereafter it cannot withdraw the acquisition proceedings. Their Lordships have held as under: “26. Their Lordships of the Hon’ble Supreme Court in Rajasthan Housing Board and Others vs. Shri Kishan and Others, (1993) 2 SCC 84 have held that once possession of the land was taken over by the Government, thereafter it cannot withdraw the acquisition proceedings. Their Lordships have held as under: “26. We are of the further opinion that in any event the government could not have withdrawn from the acquisition under Section 48 of the Act inasmuch as the government had taken possession of the land. Once the possession of the land is taken it is not open to the government to withdraw from the acquisition. The very letter dated 24/02/1990 relied upon by the counsel for the petitioner recites that "before restoring the possession to the society the amount of development charges will have to be returned back..." This shows clearly that possession was taken over by the Housing Board. Indeed the very tenor of the letter is, asking the Housing Board as to what development work they had carried out on the land and how much expenditure they had incurred thereon, which could not have been done unless the Board was in possession of the land. The Housing Board was asked to send the full particulars of the expenditure and not to carry on any further development works on that land. Reading the letter as a whole, it cannot but be said that the possession of the land was taken by the government and was also delivered to the Housing Board. Since the possession of the land was taken, there could be no question of withdrawing from the acquisition under Section 48 of the Land Acquisition Act, 1894. 20. Their Lordships of the Hon’ble Supreme Court in Amarnath Ashram Trust Society vs. Governor of U.P. and Others, (1998) 1 SCC 591 have held that the discretion of Government to withdraw from acquisition as justifiable and not absolute. Their Lordships have further held that it can be challenged on the ground that it was exercised mala fide or arbitrarily. Their Lordships have held as under: “10. However, it is not necessary to go into this larger question whether in such a case the State Government can withdraw from acquisition without the consent of the company as the justification given by the Government is otherwise not sustainable. Their Lordships have held as under: “10. However, it is not necessary to go into this larger question whether in such a case the State Government can withdraw from acquisition without the consent of the company as the justification given by the Government is otherwise not sustainable. As stated earlier the reason given by the Government for withdrawing from the acquisition is that as no part of the cost of acquisition was to be born by the Government the acquisition could not have been sustained as for a public purpose. We have already pointed out that in this case the acquisition was not for a public purpose but it was an acquisition for a company under Chapter VII of the Act. In respect of an acquisition for a company under Chapter VII of the Act law does not require that the State should also bear some cost of the acquisition to make it an acquisition for public use. Thus the decision of the Government to withdraw from acquisition was based upon misconception of the correct legal position. Such a decision has to be regarded as arbitrary and not bona fide. Particularly in a case where as a result of a decision taken by the Government other party is likely to be prejudicially affected, the Government has to exercise its power bona fide and not arbitrarily. Even though Section 48 of the Act confers upon the State wide discretion it does not permit it to act in an arbitrary manner. Though the State cannot be compelled to acquire land compulsorily for a company its decision to withdraw from acquisition can be challenged on the ground that power has been exercised mala fide or in an arbitrary manner. Therefore, we cannot accept the submission of the learned counsel for the State that the discretion of the State Government in this behalf is absolute and not justiciable at all. 21. Their Lordships of the Hon’ble Supreme Court in Mohan Singh and Others vs. International Airport Authority of India and Others, (1997) 9 SCC 132 have held that when the possession of the land is taken, land stands vested in the State free from all encumbrances, subsequently power of withdrawal would not be available. 22. 21. Their Lordships of the Hon’ble Supreme Court in Mohan Singh and Others vs. International Airport Authority of India and Others, (1997) 9 SCC 132 have held that when the possession of the land is taken, land stands vested in the State free from all encumbrances, subsequently power of withdrawal would not be available. 22. Their Lordships of the Hon’ble Supreme Court have reiterated in Government of A.P. and Another vs. Syed Akbar, AIR 2005 Supreme Court 492 that under Section 48 of the Land Acquisition Act, Government could withdraw from the acquisition of any land of which possession has not been taken. 23. Their Lordships of the Hon’ble Supreme Court in Mandir Shree Sita Ramji alais Shree Sita Ram Bhandar vs. Land Acquisition Collector and Others, (2005) 6 SCC 745 have again reiterated that once possession has been taken, the Government could not withdraw from the acquisition under section 48. Their Lordships have held as under: “[14] As against this, on behalf of the respondents, it is pointed out that this very ground had been considered by the Delhi High court on an earlier occasion. It was pointed out that after looking into the relevant records the Delhi High Court had recorded in paras 18 and 19 of its Judgments as follows: "18. It also appears that there was a decision relating to denotification of land in favour of one Sita Ram Bhandar Trust. File thereof had been called for by the Prime Minister who ordered that no land was to be denotified without the previous approval of the Cabinet/prime minister. When this file was sent to the Ministry, based on the decision contained in respect of Sita Ram Bahadur Trust, following noting was recorded in respect of the land in question on 17th June, 1999. "notes from page 38/n onwards may kindly be seen: The case of Denotification of village kotla Mahigiran, Tehsil Mehrauli New Delhi was examined without calling a fresh report upto date position of the case from DDA. The then Minister (UD) has ordered (P-41/n) for the denotification of the land. 2. Subsequently, DDA has informed that out of 615 bighas acquired by the Govt. physical possession of land measuring 600 bighas has already been taken over by the DDA. 3. The then Minister (UD) has ordered (P-41/n) for the denotification of the land. 2. Subsequently, DDA has informed that out of 615 bighas acquired by the Govt. physical possession of land measuring 600 bighas has already been taken over by the DDA. 3. In the mean time the file relating to denotification of land in favour of Sita Ram bhandar Trust has been called for by the prime Minister and the PM has ordered that no land is to be denotified without the previous approval of the Cabinet/pm. In view of this no further action is required in this case. Submitted please. 19. This file was placed before the Minister. It may be mentioned that in the meantime new incumbent had taken charge. This new minister took the following decision on the basis of aforesaid noting dated 17th June, 1999. "the file of Sita Ram Bhandar Trust has since been received back from the PMO and PM's instructions not to denotify the land have been noted. On the Trust's file, I have recorded my observations. These observations apply in this case as well. There is no justification for denotifying land, particularly when 600 bighas have already been acquired and taken over." [15] This could not be denied by the appellants. It is thus clear that letters and minutes relied upon are mere recommendations. No decision to release from acquisition had been taken. In any event the Prime minister had turned out this proposal.” 24. In view of the observations and discussions made hereinabove, the writ petition is allowed. Annexure P-11 dated 9.10.2007 is quashed and set aside. Respondent No. 1 is directed to accord necessary approval to draft award Annexure P-7 within a period of two months from today. The pending applications, if any, also stands disposed of.