Civil Appeal No 2622 of 1987 From the Judgment and order dated 681985 of the Bombay High Court in Appeal No 139 of 1984
VS Desai and AS Bhasme for the Appellants
GL Sanghi D Chandrachud and Ms Rainu Walia for the Respondents
The Judgment of the Court was delivered by RANGANATHAN J
The question raised in this appeal is a somewhat unusual one
The State Government wants to withdraw proceedings for acquisition of lands initiated by it under the Land Acquisition Act hereinafter referred to as the Act  by exercising its power under section 48 but the owner of the land is insisting that the Government should be directed to go ahead with the acquisition taken over the lands and pay him compensation
The reasons for this some 593 what unusual request will become apparent a little later
By a notification dated 6th November 1961 issued under section 4 of the Act certain lands belonging to the respondent company were notified for acquisition in order to accommodate housing schemes of the Maharashtra Housing Board
This was followed up on 18th November 1965 by a declaration under section 6 of the Act and on 15th January 1966 by notices calling upon the respondent to put forward its claims of compensation in respect of the land sought to be acquired
Thereafter however no further proceedings were taken
In the meantime it appears that the lands were encroached upon by a large number of trespassers who put up slums thereon
The respondent repeatedly requested the State Government to take steps to remove the encroachments and to expedite the making of the award and payment of compensation but these requests went unheeded
The respondent thereupon filed Miscellaneous Petition No 180378 in the High Court of Bombay praying inter alia for a Writ of Mandamus directing the State Government to make the award under section 11 of the Act and to take possession of the lands after payment of due compensation to the respondent
On 25th March 1981 the State Government passed orders withdrawing the lands of the respondent from acquisition under section 48 of the Act
The respondent was informed of this decision on the 20th of October 1981 and an affidavit to this effect was also filed in the High Court in reply to the Writ Petition
Thereupon the respondent company amended its Writ Petition challenged the withdrawal order as mala fide and included a prayer for quashing the decision of the State Government to withdraw its lands from the acquisition
This Writ Petition was allowed by a learned Single Judge of the High Court on 91183 and his decision was affirmed by a Division Bench on 6th August 1985
The State Government has preferred this appeal
The contention of the respondent before the High Court was that the State Government had acted mala fide in invoking the power of withdrawal permitted by section 48 in the facts and circumstances of the present case
It was contended that the purpose for which the lands had been sought to be acquired continued to subsist and that all along in the correspondence between the parties the State Government had given no indication that the lands were no longer needed by it for that purpose
It was urged that the order under section 48 had been passed after the respondent company filed a writ petition solely with a view to defeat the relief claimed by the Company in the writ 594 petition and render the same infructuous
It was submitted that the A respondent had not been able to take steps to remove the encroachments because of the pendency of the proceedings for acquisition inasmuch as under section 24 of the Act any expenditure incurred by the company in this regard could not be taken into account in determining the compensation due to the respondent
It was pointed out that while the company was helpless in defending itself against the encroachments the State had ample powers while taking possession of the lands to remove the trespassers and enforce the surrender of the lands to the Government both under the Land Acquisition Act and the Maharashtra Land Revenue Code
It was urged that the long delay of about 20 years in taking the step of withdrawal showed mala fides on the part of the Government
A grievance was also made that no show cause notice had been given to the respondent company before the withdrawal order was passed
These contentions except the last one which was left open were accepted by the High Court
We are of opinion that the High Court erred in striking down the order under section 48 and compelling the State Government to acquire the lands of the respondent
Under the scheme of the Act neither the notification under section 4 nor the declaration under section 6 nor the notice under section 9 is sufficient to divest the original owner of or other person interested in the land of his rights therein
Section 16 makes it clear beyond doubt that the title to the land vests in the Government only when possession is taken by the Government
Till that point of time the land continues to be with the original owner and he is also free except where there is specific legislation to the contrary to deal with the land just as he likes although it may be that on account of the pendency of proceedings for acquisition intending purchasers may be chary of coming near the land
So long as possession is not taken over the mere fact of a notification under section 4 nor declaration under section 6 having been made does not divest the owner of his rights in respect of the land or relieve him of the duty to take care of the land and protect it against encroachments
Again such a notification does not either confer on the State Govt
any right to interfere with the ownership or other rights in the land or impose on it any duty to remove encroachments therefrom or in any other way safe guard the interests of the original owner of the land
It is in view of this position that the owner s interests remain unaffected until possession is taken that section 48 gives a liberty to the State Government to withdraw from the acquisition at any stage before possession is taken
By such withdrawal no irreparable prejudice is caused to the owner of the land and if at all he has suffered any damage in cor 595 quence of the acquisition proceedings or incurred costs in relation thereto he will be compensated therefor under section 482
In this view of the matter it does not matter even if there is lapse of considerable time between the original notification and the withdrawal under section 48 as held in Trustees of Bai Smarth Jain Shvetambar Murtipujak Gyanodhyaya Trust and others vs State of Gujarat and another
 AIR 1981 Gujarat 107
It also follows that the State can be permitted to exercise its power of withdrawal unilaterally and no requirement that the owner of the land should be given an opportunity of being heard before doing so should be read into the provision
The High Court has taken the view that a decision of withdrawal from acquisition must be backed by reasons and cannot be arbitrary or whimsical
We may observe that having regard to the scheme of the Act as discussed above it is difficult to see why the State Government should at all be compelled to give any cogent reasons for a decision not to go ahead with its proposal to acquire a piece of land
It is well settled in the field of specific performance of contracts that no person will be compelled to acquire a piece of land as any breach of a contract to purchase it can always be compensated for by damages
That is also the principle of section 482
But this consideration apart and even assuming that a withdrawal order under section 48 should be backed by reasons and should be bona fide we are of the opinion that in the present case the order is not vitiated in any manner
The Government had intended to acquire a vast piece of vacant land for construction of houses by the State Housing Board
But this land had been over run by slum dwellers to such an extent that it was no longer possible for the Government to effectuate the intended purpose af acquisition
The High Court s observations that the respondents have not stated in their affidavit that the lands in question are unsuitable for the purpose in question and that the purpose continues to exist lose all meaning in the face of the finding recorded by the High Court itself at another place that the lands of the petitioners today are fully occupied by unauthorised hutments which have come up on these lands rendering the lands worthless
 The basic question is really whether the Government can be held responsible for this state of affairs and can be compelled to go ahead with the acquisition though its purpose could not be achieved
We have already pointed out that the State can not be held responsible for the occupation of the land by trespassers
It is true that if the Government decides to go ahead with the acquisition and to take possession of the land it has powers to evict trespassers and to secure possession of the land but for this reason alone they cannot be compelled to go ahead with the acquisition
In the conditions presently 596 prevailing in major metropolitan cities such eviction for the Government poses more serious difficulties than to a private person like the respondent company and it is common experience that far from removing such encroachments Government and municipalities are constrained to regularise them and provide them with civic necessities Enactments like the Slums Act and the Urban Land Ceiling and Regulation Act have further complicated the situation
Where slum dwellers on a large scale occupy pieces of land social and human problems of such magnitude arise that it is virtually impossible for municipalities and no mean task even for the Government to get the lands vacated
If the Government is reluctant to go ahead with the acquisition in view of these genuine difficulties it can hardly be blamed
We see no justification to direct the Government to acquire the land and embark on such a venture
We are also of the opinion that the fact that the Government exercised the power of withdrawal after the writ petition was filed does not spell mala fides once the existence of circumstances which in our opinion justified the Governments decision to withdraw is acknowledged
The High Court in this context has referred to section 24 of the Act and pointed out that the respondent company could not afford to take steps for the eviction of the slum dwellers as it might incur in this behalf will not be taken into account in determining the compensation payable to it under the Act
This is not strictly correct for under section 24 it was open to the respondent company to have incurred such expenditure with the sanction of the Collector and claimed reimbursement but the respondent company did not seek the sanction of the Collector in this regard
That apart this clause of section 24 is only a provision laying down the rule that the State will generally speaking pay for the land only in the condition in which it was on the date of the section 4 notification and that subsequent changes on the land will not be taken into account in the determination of the compensation
It cannot follow from this provision that the State should be compelled to take over the land because the owner of the land will need to take care of it at his own cost until it vests in the Government
Far from a decision to withdraw in such cases as the present one being considered to be mala fide it could be perhaps said with greater truth that the Government would have been acting mala fide if despite the clear knowledge that the land could not any longer be used for the purpose for which it had been acquired it decided to go ahead with the acquisition
We are emphatically of the view that the State Government has acted in best interests of the public and of public revenues and its decision cannot be faulted
597 Before we conclude we may point out that somewhat similar questions came up for the decision of this Court in an appeal preferred by the State of Maharashtra from an order of the Bombay High Court reported as Ms Majas Land Development Corpn
 another vs State of Maharashtra and others AIR 1983 Bombay 188
The special leave petition preferred by the State against the order of the High Court to a like effect was set aside by this Court vide its order of August 1983 in Civil Appeal No 6086 of 1983 by pointing out that it is open to the State Government to release the lands from acquisition and that the Land Acquisition officer cannot be compelled to make the award
It was however pointed out that the Government will be liable to pay compensation to the claimants under section 482 of the Land Acquisition Act
In the affidavit filed by the appellants before the High Court in the present case they have already called upon the respondent company to furnish details of claims if any regarding the compensation claimed under section 48
It is open to the respondent company to pursue this claim and the State Government will dispose of the same in accordance with law
We are therefore of the opinion that the order passed by the State Government under section 48 should be upheld and the release of the lands from acquisition sustained
Learned counsel for the respondent company contended that at the time the land was initially acquired under section 4 there had been a proposal that the Government should grant in favour of the company some land contiguous to section No 40 Hissas Nos 2  3 in exchange for the land sought to be acquired and that the appellants should be directed to give or sell some land to the petitioner
We are unable to follow how any such proposal even if made originally could survive in view of the acquisition proceedings having been dropped
However we express no opinion in this regard and leave it to the company if so advised to pursue the matter with the Government
For the reasons discussed above the civil appeal is allowed and the orders of the High Court dated 9111983 and 681985 are set aside
The Rule issued by the High Court stands discharged
However in the circumstances of the case we make no order as to costs
SL Appeal allowed


Summary:
 In the election to the Uttar Pradesh State Legislative Assembly from constituency No 41 held in early March 1985 16 candidates contested
Respondent No 1 was declared elected having secured 23006 votes
Respondent No 2 secured 20735 votes being the next highest
The difference of votes secured by them was in the order of 2271 votes
Respondent No 8 who was working as a teacher in a college and who was one of the candidates secured 3606 votes which were more than the difference between the votes secured by respondent No 1 and 2
The appellant who was an elector at the said election filed an election petition contending that respondent No 8 was holding an office of profit  under the State Government as he was working as a teacher in a college and therefore the acceptance of his nomination by the returning officer was illegal that since respondent No 8 secured 3606 votes which were higher than the difference between the votes secured by respondent No 1 and respondent No 2 the election of respondent No 1 should be considered as having been materially affected by the wrongful acceptance of the nomination paper of respondent No 8 and the election of the respondent No 1 was therefore liable to be set aside
Respondent No1 contested the election petition pleading that the acceptance of the nomination paper of respondent No 8 was not illegal since he was not holding an office of profit under the State Government and that even if the acceptance was illegal the election could not be set aside since the result of the election was not materially affected thereby
Dismissing the petition the High Court held that the acceptance of the nomination paper of respondent No 8 was not illegal as he was not holding an office of profit under the State Government and that 631 even if the acceptance of the nomination paper was illegal the appellant had not established that the result of the election of respondent No 1 had been materially affected on the facts and in the circumstances of the case
In the appeal to this Court on the question whether the appellant had established that the result of the election of respondent No 1 had been materially affected by the wrongful acceptance of the nomination paper of respondent No 8
Dismissing the appeal to this Court  HELD The appellant has not discharged the burden which clearly lay on him of proving that the result of the election had been materially affected even assuming that the nomination of respondent No 8 had been improperly accepted
640E Section 100 of the Representation of the People Act makes a distinction between the effect of improper rejection of any nomination and the effect of the improper acceptance of any nomination on the election
If a nomination of any person at an election had been improperly rejected the election of the returned candidate is liable to be set aside without any further proof because it is difficult to visualise the number of votes which the person whose nomination has been rejected would have secured at the election and there is every likelihood of the returned candidate not securing the highest number of votes
634E G Clause c of sub section 1 states that if the High Court is of the opinion that any nomination has been improperly rejected it shall declare the election of the returned candidate to be void
634Gl Sub clause i of clause d of sub section 1 requires a petitioner in an election petition to establish two grounds in order to get the election of the returned candidate set aside
namely i that there has been improper acceptance of any nomination and ii that by reason of entry of the candidate whose nomination has been improperly accepted into the contest the result of the election insofar as the returned candidate is concerned has been materially affected
635A B Having regard to the facts of the instant case it is not possible to hold that the appellant has established that the result of the election of the returned candidate had been materially affected because the dif 632 ference between the votes secured by respondent No 1 the returned candidate and respondent No 2 the candidate who secured next highest votes was 2271 votes
Respondent No 8 the validity of whose nomination was questioned had secured only about 17th of the number of votes polled by respondent No 1 and there were 15 candidates excluding respondent No 8 contesting the election
It is not possible to reach a finding in this case by making a judicial guess that all the 3606 voters who had voted in favour of respondent No 8 would have cast their votes in favour of respondent No 2 alone
Even if about 1350 of them had cast their votes in favour of any of the other 14 candidates including the returned candidate respondent No 2 could not have become the candidate who had secured the highest number of votes at the election
639C E The High Court was therefore right in taking the view that the appellant or any other party had not placed any satisfactory evidence to reach the conclusion that all or sufficient number of wasted votes which had been cast in favour of respondent No 8 would have gone in favour of respondent No 2 had respondent No 8 not been one of the candidates at the election that in the context particularly of the poll being heavy and the contestants being large in number 16 in all It was unreasonable to guess that if the respondent No 8 were excluded from the arena of contest the wasted votes would have gone to the respondent No 2 thereby enabling him to succeed and that the burden Iying upon the petitioner remained clearly undischarged and the speculative possibility did not attain the level of proof
640B D Vashist Narain Sharma vs Dev Chandra and others 1955 1 SCR 509 Samant N Balakrishna etc
vs George Fernandez and Ors
  and Chhedi Ram vs Jhilmit Ram and others p   referred to