TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJATSHAN AT JODHPUR JUDGMENT TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) Date of Judgment :- 9.2.2009 HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLEL MR.JUSTICE SANGEET LODHA Mr. Vikas Balia, for the appellant. Mr. Dilip Kawadia, for the respondents no. 2 and 3. None present for respondents no. 1 & 4. BY THE COURT(PER HON'BLE MR.SANGEET LODHA,J.) Reportable 1. This special appeal is directed against order dated 18.3.08 passed by the learned Single Judge whereby the writ petition preferred by the appellant seeking direction against the respondents to release his land from acquisition, stands dismissed. The appellant has also assailed the correctness of order dated 1.4.08 passed by the learned Single Judge dismissing the review petition preferred by him for review of the aforesaid order dated 18.3.08. 2. The relevant facts in nutshell are that agricultural land ad measuring 3.08 hectares comprising Arazi Nos. 353 to 363 situated at Prohiton Ki Madari, Udaipur owned by the appellant was acquired by the respondents by way of land acquisition proceedings under the provisions of Land Acquisition Act, 1894 TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 2 ( for short “the Act of 1894” hereinafter) for development of residential colony namely, “Madari Prohitan Extension Scheme”. The validity of the land acquisition proceedings was assailed by the appellant before this court by way of writ petition No. 256/91. After due consideration, the writ petition preferred by the appellant and other cognate matters were disposed of by the learned Single Judge of this Court vide judgment dated 10.3.98 whereby while upholding the land acquisition proceedings, this court observed as under:- “The writ petitions are disposed of as above. The respondents are directed to keep in view while raising construction on the land that the environmental balance of the area is not disturbed which may be done by keeping intact the old trees standing on the land.” 3. The validity of the aforesaid order dated 10.3.98 passed by the learned Single Judge was assailed by the appellant by way of an intra court appeal which was also dismissed by a Bench of this court vide judgment dated 18.10.2000. Thus, the order passed by the learned Single Judge upholding the land acquisition proceedings has attained finality. 4. The award was passed by the Land Acquisition Officer on 16.1.02, whereby the compensation payable to the appellant was determined at Rs. 28,81,143/-. The appellant has challenged the award passed by the Land Acquisition Officer before the reference court, however,in compliance of the award passed by the Land TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 3 Acquisition Officer, the amount of compensation has been deposited by the respondent UIT with the reference court and the land in question already stands mutated in the name of the respondent UIT. 5. The appellant made representation to the respondents for de-acquisition of the land mentioning therein that the land in question has been developed by him in a full fledged horticulture farm with the thousands of trees and ample plantation therefore, the same is contributing and maintaining the ecological balance of the area as no construction can be raised by the appellant as already barred by this court. The appellant claimed that the land has not been used by the UIT for all these years for the purpose it was acquired and the same continues to be in his possession. That apart, it was submitted that many other lands have already been released by the respondents from acquisition which were part of the same acquisition proceedings and scheme of development therefore, for parity of reasons, his land also deserves to be released from acquisition. However, no action appears was taken by the state authorities on the representation made by the appellant therefore, he preferred the writ petition before this court as aforesaid seeking direction for de-acquisition of his land . 6. The learned Single Judge has found that the appellant TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 4 cannot claim de-acquisition and if he has made any representation then it is for the State Government to decide whether the land should be released from acquisition or not. The learned Single Judge observed that the land acquired was transferred to the UIT and it is in possession of the said land. The learned Single Judge further observed that the land acquisition proceedings have already been upheld by this court and therefore, the pronouncement so made cannot be reviewed .In this view of the matter the writ petition preferred by the appellant was dismissed by the learned Single Judge by order impugned dated 18.3.08. A review petition preferred by the appellant seeking review of the aforesaid order by filing fresh documents to show that the appellant is in possession of the land in question has also been dismissed by the learned Single Judge holding that the appellant cannot be permitted to make out a new case by filing fresh documents. Hence this special appeal. 7. It is submitted by the learned counsel for the appellant that the learned Single Judge has failed to consider the actual controversy involved in the present case. The learned counsel submitted that inspite of lapse of a long time , no action has been initiated by the respondent to take possession of the land which clearly shows that the land is not required for the purpose for which the notice for acquisition was issued, therefore, the TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 5 respondents are under an obligation to consider the representation made by the appellant for de-acquisition of the land and release the land from acquisition. The learned counsel submitted that the respondent authorities have de-acquired the similarly situated other lands but they are sitting tight over the representation made by the appellant, thus,the appellant has been subjected to discriminatory treatment. The learned counsel submitted that under the provisions of Section 48 of the Act of 1894 provides for de-acquisition and the act of de-acquisition is necessarily a post facto event of acquisition therefore, the learned Single Judge has erred in holding that once the legality of the acquisition proceedings has been upheld by this court, the said judicial pronouncement cannot be reviewed. The learned counsel submitted that the factum of possession of the appellant is not disputed by the respondents and the documents alongwith the review petition were filed only to support the averments already made therefore, the learned Single Judge was not justified in dismissing the review petition holding that the fresh documents cannot be considered. Further, relying upon a communication dated 26.12.08, sent by the respondent UIT to the State Government, the learned counsel submitted that the respondent UIT has already submitted the report for decision regarding de-acquisition at the end of the State Government. TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 6 Accordingly, it is submitted that the directions deserves to be issued to the State Government to take appropriate decision in the matter. In support of the contentions raised as aforesaid,the learned counsel has relied upon the decision of the Hon'ble Supreme Court in the matter of “M/s Jetmull Bhojraj vs. State of Bihar & Ors.”, AIR 1972 SC, 1363 and “Amarnath Ashram Trust Society & Anr. vs. Governor of Uttar Pradesh & Ors.”, AIR 1998 SC, 477. That apart, the learned counsel has relied upon a decision of Gujarat High Court in the matter of “Patel Shankerbhai Mahijibhai and etc. etc. vs. State of Gujarat & Ors.”, AIR 1981 Gujarat, 67, and a decision of Punjab & Haryana High Court in the matter of “`1Agya Ram vs. State” , AIR 1983 P&H, 147. 8. Per contra the learned counsel appearing on behalf of the respondent UIT submitted that by virtue of provisions of Section 48 of the Act of 1894, the consideration of matter for de- acquisition of the land is exclusively lies within the purview of the State Government and the respondent UIT cannot take any decision in this regard. It is submitted by the learned counsel that no land which forms part of the acquisition proceeding in question has been de-acquired so far , only some land wherein the constructions of the buildings were already raised, the recommendations for regularisation in terms of the provisions of TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 7 Section 90-B of the Rajasthan Land Revenue Act, 1956 were made. However, it is submitted that after issuance of the order dated 30.6.03 by the State Government no regularisation of the land covered by the acquisition proceedings has been made by the respondent UIT. It is submitted that vide communication dated 26.12.08 relied upon by the learned counsel appearing on behalf of the appellant , the respondent UIT has only submitted the factual report to the State Government and appropriate decision in the matter has to be taken by the State Government only. 9. We have considered the rival submissions and perused the material on record. 10. A bare perusal of Section 48 of the Act of 1894 reveals that it confers powers on the State Government to withdraw from the acquisition of any land of which possession has not been taken except in the case provided for under Section 36. In exercise of the power conferred as aforesaid the State Government at its discretion may withdraw from acquisition any land of which possession has not been taken, at any stage even after passing of the award. But, once the possession is taken, the State Government has no power whatsoever to withdraw or cancel the land from acquisition. 11. In Jetmull Bhojraj's case (supra), while dealing with the TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 8 question of vesting of the land in the government , the Hon'ble Supreme Court observed that : “12. Ordinarily possession of any land notified for acquisition is taken when the Collector has made an award u/s 11 and not before it. But an exception is provided under Section 17(1). In cases of urgency, if the Government so directs, the Collector may, though no award has been made under Section 11, on the expiration of the 15 days from the publication of the notice mentioned in S.9(1) take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free from all encumbrances. From this provision, it is plain that the Collector cannot take possession of the land in question unless the Government directs him to do so. The Government can direct him to do so only in cases of urgency. Even when the Government directs the Collector to take possession, he cannot do so until expiration of 15 days from the publication of a notice under Section 9(1). There is no material on record to show that the Government had given to the Collector and direction under Section 17(1) ; nor is there any material to show that the land in question had been taken possession of the Collector under Section 17(1).” 12. In Agya Ram's case (supra), the Punjab & Haryana High Court while construing the word “possession” as used in Section 48 of the Act of 1894, held as under:- “A bare reading of S.48 makes it manifestly clear that it recognises the right of the Government to withdraw from the acquisition of any land provided:9i) it had not taken possession , or (ii) the case is not on covered by S.36. Section 48 does not apply to temporary occupation of the land under part VI of the Act, Ss. 35 to 37. Under Section 36, the period of possession cannot exceed three years. Government loses its right to withdraw from acquisition only when it has taken authorised permanent possession under Ss. 16 or 17 of the Act. Had every temporary occupation of land under part VI of the Act or independent of that been taken to TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 9 be as good as permanent possession of the land for purposes of S.48 of the Act then S.36 would not have been created as an exception to the former.” x x x x x x x x x “The word `possession' as used in Section 48 has narrower concept and meaning i.e. Permanent actual physical possession of the land. Mere deprivation of the use of a particular land for a particular purpose by a land-owner does not mean that he has either been dispossessed or the acquiring authorities have taken possession of that.” 13. In Amarnath Ashram Trust Society's case (supra), the Hon'ble Supreme Court has held that though Section 48 of the Act confers upon the State wide discretion , it does not permit it to act in arbitrary manner. The discretion of the State Government in this behalf is not absolute but, justiciable and its decision to withdraw may be challenged on the ground that power has been exercised mala fide or in an arbitrary manner. 14. In Trustees of Bai Smarth Jain Shvetambar Murtipujak Gyanoddhaya Trust & Ors., AIR 1981 Gujarat, 107, the Hon'ble Supreme Court held as under:- “4. This provision makes it abundantly clear that except in two cases the State Government is at liberty to withdraw from the acquisition of any land. Under sub-section(1) of Section 48, the State Government cannot withdraw from the acquisition of any land of which possession has been taken. Secondly, under proviso to Section 36, it cannot withdraw from the acquisition of a land which has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of the acquisition. The petitioners have made no averments in this petition to show that the survey numbers from TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 10 the acquisition of which the State Government has withdrawn have become permanently unfit for being used for the purpose for which they were used prior to the commencement of their acquisition. Therefore, Section 36 does not hit the impugned notification. It is an admitted fact that the State Government has not taken possession of the aforesaid survey numbers. Therefore, the second exception to the rule which sub- sec.(1) of Section 48 lays down does not come into play in the instant case. It is,therefore, clear that under sub-sec.(1) of Section 48, the State Government can withdraw from the acquisition of the city survey numbers which have been specified in the notification published on 19th February,1977. ..... xxxxxx .............................. 8. It is necessary in this context to note that the expression “to withdraw from the acquisition of any land of which possession has not been taken” used in Section 48 has reference to Section 16 and Section 17. It is under Section 16 of the Land Acquisition Act that the Collector after making an award under Section 11 takes possession of the land. It is applicable to the instant case. Section 16 provides as follows: “When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.” If possession has been taken, then by virtue of the provisions of section 16, the owner of the land is divested of his title and the title to the land vests in the Government absolutely free from all encumbrances. Under such circumstances , the Government by simply withdrawing from acquisition cannot divest of its title and return it to its original owner. Therefore, the concept of possession having not been taken as expressed in Section 48 appears to have reference to the divesting and vesting of title or has reference to the transfer of title from the original owner to the State Government. Section 17 provides for the same situation. It comes into play where urgency clause has been applied and possession has been taken before making an award under Section 11.” TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 11 15. Thus, the settled position of law emerges from the said decisions is that once the possession is taken in terms of provisions of Section 16 or 17 of the Act of 1894, the owner of the land is divested of his title and the title to the land vests in the Government free from all encumbrances and thereafter, even the Government has no power to withdraw the land from acquisition. 16. In the instant case, the award was passed by the Land Acquisition Officer on 16.1.02 and while issuing notice u/s 12(2) to the appellant , the directions were issued to the Tehsildar , Urban Improvement Trust to take possession of the land of the appellant. It is stated by the appellant in the writ petition that he continued to further develop his land in due course of time and no action in any terms has been taken by the respondent UIT. However, it was not disputed before the learned Single Judge that in pursuance of the award, the possession of the appellant's land was taken . As a matter of fact, in the entire writ petition, there is no whisper as to in what manner, the possession of the land was taken by the authority concerned and how the appellant claims to be in possession after the possession being taken over by the State Government. We are not agreeable with TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 12 the contention of the learned counsel for the appellant that in the land acquisition, “the possession” means that taking of actual possession on the spot, it is neither a possession on paper nor a symbolic possession understood in civil law. As laid down by the Hon'ble Supreme Court in the matter of “P.K.Kalburqi vs. State of Karnataka & Ors, (2005) 12 SCC, 489, there can be no hard and fast rule laying down what act would be sufficient to constitute taking possession of the land and how such possession would be taken would depend upon the nature of the land. In given facts and circumstances of the case, even taking symbolic possession may amount to taking possession in terms of Section 16 of the Act of 1894. 17. As noticed above, though, the appellant claims to be presently in possession of the land but in absence of the pleadings or any other material record to show as to in what manner the possession of the land was taken by the competent authority in pursuance of the award, it is difficult to discern as to whether the possession of the land has already been taken by the State Government in terms of provisions of Section 16 of the Act of 1894 or not. But undoubtedly, if the State Government has already taken the possession of the land in terms of Section 16 of the Act of 1894 then, thereafter, it has no power whatsoever to de-acquire the land by invoking power u/s 48 of the Act of TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 13 1894. 18. It is relevant to mention here that no further notice beyond that u/s 9(1) of the Act of 1894 is required to be issued before taking the possession and once the possession has been taken, the owner stands divested of the title and the land vests in the State Government. If after taking possession by the State Government in terms of provisions of Section 16 or 17(1) of the Act of 1894, the owner has entered into the land and claims to be in continuous possession thereof, then, his such possession on the land cannot be said to be lawful possession and it has to be treated as of tress passer and he has no right to claim de- acquisition on the basis of his alleged possession on the land acquired. 19. A perusal of Section 48 of the Act of 1894 further reveals that it is within the absolute discretion of the State Government to take a decision to de-acquire the land the possession whereof has not been taken . The power conferred for de-acquiring the land has to be exercised by the State Government in objective manner for valid reasons. A decision of the State Government to de-acquire the land in terms of provisions of Section 48 of the Act of 1894, can always be challenged on the ground that the power has been exercised malafide or in arbitrary manner. But, in any case, this court cannot issue direction to the State Government to TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 14 de-acquire a particular land even if the possession of the land has not been taken in terms of Section 16 or 17(1) of the Act of 1894. 20. Moreover, from the provisions as contained in Section 48 of the Act of 1894 , in no manner it can be inferred that the owner or occupant of the land whose land has been acquired can claim de-acquisition of the land on any ground including that the land acquired has not been utilised by the State Government for the purpose the same was acquired. Suffice it to say that the appellant has no right to claim de-acquisition of the land and therefore, after conclusion of the acquisition proceedings, no directions can be issued by this court to the State Government to de-acquire the land at his instance. 21. Coming to the contention of the learned counsel regarding hostile discrimination being practised by the respondents in the matter of de-acquisition of the land pertaining to the self same acquisition , it is to be noticed that no material has been placed on record to show that any portion of the land has been de- acquired by the State Government invoking the power u/s 48 of the Act of 1894. The resolution of the respondent UIT dated 31.3.03 reveals that the recommendations were made for regularisation of certain possessions in terms of Section 90-B of the Rajasthan Land Revenue Act, 1956, keeping in view the TAKHAT SINGH KOTHARI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVILSPECIAL APPEAL(W) 351/08 ) 15 construction already raised. In our considered opinion , on the basis of the regularisation of certain possessions in accordance with the provisions of Section 90-B of the Rajasthan Land Revenue Act, the appellant's simply cannot claim de-acquisition of his entire land in terms of the provisions of Section 48 of the Act of 1894.Even the communication dated 26.12.08 sent by the UIT to the State Government does not create any right in favour of the appellant to claim de-acquisition of the land. In this view of the matter, we do not find any merit in the contention of the learned counsel that he has been subjected to hostile discrimination by the respondents in the matter of de-acquisition in violation of Article 14 of the Constitution of India. 22. For the aforementioned reasons, in our considered opinion, the learned Single Judge was right in coming to the conclusion that no direction can be issued by this Court to the State Government to release the land from acquisition. 23. There is no merit in this special appeal, therefore, the same is hereby dismissed. No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-