•asf •• 'ataB--- '.. '<'' WRtT PETiTIONNo.1779 of 2005 ^F^ Sudarshan Behera Stete of Chhattisgarh and othera Postforpronouncementofjudgmentand orderon 6-Q-2 1« Sd/- Satfsh K. Agnihotri Judge g'! a^- V Writ Petition No. 1779 of 2008 Petitjoner ResRondents Sudarshan Behera, S/o. Late Shri Balram Bshera, aged about 70 years, residsnt of Bouripara, Ambikapur, District Surguja (CG). Versus 1) State of Chhattisgarh through Secretaro, Pubiic Works Department, D.K.S. Bhavan, Raipur (CG). ^ 2) Coiiector, Ambikapur, Distriet Surguja 3) Land Acquisition Officer, Ambikapur, District Surguja (CG). 4) Superintendent Engineer, Pubtlc Works Department, Ambikapur, District Surguja 5) R.P. Singhai, Executive Engineer, Pubtic Works Department, Ambikapur, District Surguja (CG). Present: Petition under Article 226/227 of the Constitution of india.) SB: Hon'bie Mr. Satish K. Agnihotri, J. Shri V.K. Pandey, counse! for tte petitioner. Shri VinayHarit, DeputyAdvocate Generai with Shri Shashank Thakur, Panel Lawyerfor the State. rt (Passed on this fc 'day oi August, By this petition, the petitioner seeks a writ in the nature of mandamus, dirsctina the resoondents No. 1 and 5 to make pavment of compsnsation of -Rsr4,60,224/- with interest against the acquisition of the iand bearing Khasa No. 2130/7, measuringarea 0.017hectare, situated at Bouripara, Ambikapur, District Surguja (hereinafter referred toas "the disputed tand"). u.. >".'i;-S:?a;«'i I?1'-' ^€ 2) The brief facte, in nutshell, as projected by the petitioner are that the Executive Engineer, Pubtic Works Department (for short, "PWD"), Ambikapur, requested the competent authority to acquire the disputed land for the purpose of construction of the road. A notification under Section 4 (1) of the Lanci Acquisition Act, 1894 (for short, "the Act, 1894") was accordingiy issued. Thereafter, a notification under Section 6 of the Act, 1894 was oubfished. All the required steps were taken before passing the award. The Land Acquisition Officer, Ambikapur, by order dated 24-9-2004 (Annexure P/1) passed an award for acquisition 6f the disputed tand and detennined the compensation to the tune of Rs.4,60,224/-. The petitioner was not paid compensation pursuant to the award dated 24-9-2004. There were certain allegations of demand of bribe aiso. The Collector, Surguja, sent a communicated dated 22-1-2005 (Annexure P/5) to the Secretary, Govemment of Chhattisgarh, PWD, with regard to the complaint made by the petitioner stating that the Executive Engineer, PWD, Ambikapur, has faiied to deposit the compensation amount, which was determined by the iand acquisition award dated 24-9-2004 (Annexure P/1). 3) Shri V.K. Pandey, learned counsel appearing for the peUUonsr submits that after passing the award, the respondents No. 2 and 3 have taken possession of the disputed land without making payment of the compensation. The petitioner is iegally entitled to the compensation award immediately on passing of the award. Though, the award was passed on 24- 9-2004, tili date no payment is made. Thus, appropriate writ may be issued directing tbe-.respondents to make payment as quantifted by ttie Land Acquisition Oftfcer with iriterest on delayed payment. 4) Per contra, Shri Vinay Harit, Oeputy Advocate Generai with Shri Shashank Thakur, Panel Lawyer for the respondente No. 1 to 4/Stafe would ^yKs,,^ /^- "\ f Si ^^ '^, '^E'SS&, *5 ':^M^;fi'^$« ? -SSSify^ ;f 40 WW'gSSSSfW submit that admittedly the award was passed on 24-9-2004 under the provisions of the Act, 1894. A letter dated 29-11-2004 (Annexure R/1)was sent accordingiy to the respondent No.4 to deposit the compensation amount. The Executive Engineer, PWD, DMsion No.1, Ambikapur, made an application under Section 48 of the Act, 1894, for withdrav/ai of the acquisition of the iand as the disputed land is ngt required for construction of the road. Khasra number of the land was mentioned by mistake in the notiflcation under Seclion 4 (D'ofthe Act. 1894 and ihereafter (Annexure R/2). On 10-2-2005 accordingly the Coilector, Surguja, issued a notification under Section 48 of the Act, 1894 (Annexure R/4) to withdraw from acquisition in respect of the disputed land. It was further stated in the notification that the award was passed on 24-9-2004, but the possession thereof was not taken over by the State Government. The said notification was sent for pubficatlon by communication dated 10-2-2005 (Annexure R/3). It was cleariy stated that the possession of the disputed iand has not been taken over by the State Government. Thus. the State Government is comDetent to withdraw from the acquisiUon under the provisions of Section 48 of the Act, 5) I have heard learned counsel appearing for the parties, perused the pieadings and documents appended thereto. 6) It is admitted fact that, afternotifications underSection4(1), 6 &9of the Act, 1894, steps were taken to acquire the disputed land and subsequently the award was passed on 24-9-2004 (Annexure P/1). -Th'ereafter, despiteTOmindertothe Executive Engineer, PWD, Ambikapur, no payment was made and an application was made to the Coliector, Surguja, under the provisions of Section 48 of the Act, 1894 to withdraw from the acquisition of the disputed iand. The Coltector, Surguja, by notification dated '^^^^^^^'v^ y^^h. -•rf^i®^ BlKSi8*"""'' iSSN. 10-2-2005 (Annexure R/3), after having examined the eas® issued a notification to wthdraw from the acquisition of the disputed tand. It was clearly stated in the notification that the land was not required for public purpose and the possession thereof has not been taken over by the State Government. The said notification was also published in the gazette. The petitioner has not produced any document to substantiate the contention that the possession of the disputed land was taken thereof. > 7) Section 48 of the Land Acquisitjon Act, 1894 reads as under: "48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. - (1) Except in the case provided for in section 36, the Government shail be at liberty to wfthdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Govemment withdraws from any such acquisition, the Collector shatl determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shalt pay such amount to the person interested, together with all costs reasonably mcurred by him in the prosecution of the proceedings under this Act reiating to the said land. (3) The provisions of Part III of this Act shaB apply, so far as may be, to the determination of the compensation payable under this section". 8) The issue with regard to withdrawai from the acquisition of land, where award has been passed, was consfdered by Hon'ble e Suprane court in various cases. In the^-tnatter of Om Prakash and another vs. State of U.P. and others1, the Supreme C-ourt held that "As laid down by sub-section ' (1998) 6 SCC I oy "sa.»s@§i& (1) of Section 48, the Govemment is at liberiy to withdraw from the acquisition of any land of which possession has not been taken." 9) In the matter of Mandir Shree Sita Ramji aiias Shree Sita Ram Bhandar Vs. Land Acquisition Coliector and others , the Supreme Court observed as under: "15. Even otherwise, we have seen the scheme sought to be relied upon. We find from the scheme that it only appties in respect of persons/agencies who own and possess theland. In this case possession of the land had already been taken. The seheme atso catefloricallv states that the scheme would not take away the rights of the Delhi Development Authority to acquire land for development of Delhi. Thus fr>e scheme was not applicabte to ttie lands of the appeilants. Even under Section 48 of the Land Acquisition Act once possession is taken, the Govemment cannot withdraw from the acquisition." Further, in the matter of Bangatore Development Authority and others vs. R. Hanumaiah and others the Supreme Court observed in paras 44 and 46 as under: "44. This court in Lt. Governor of H.P. v. Avinash Sharma, has held in para 6 as under (SCC p.151). "Power to cancet a notification for <»mpulsory acquisifion is, it is true, not affected by Section 48 of the Act; by a notification under Section 21 of the Generai Clauses Act, the Govemment may cancel or rescind the notification issued under Section 4 and 6 of the Land Acquisition Act. But the power under Section 21 of the General Clauses Act cannot be exereised after the tand statutorily vests in the State Government." It was concluded in para 8 that (SCC P. 152). 2 (2605) 6 SCC 745 3 (2005) 12 SCC 508 6 ^SRS^ "It is cieariy implicit in the observaiions Uiat after pos^ssion has been taken pursuant to a notification under Section 17(1) the land is vested in the Govemment, and the notification cannot be cancelied under Section 21 ofthe General Clauses Act, nor can She notification be withdrawn in exereise of the powers under Section 48 of the Land Acquisition Act. Any other view woutd enable the State Sovemment to Cireum-vent the specsfic provision by relying upon a seneral power. When possession of ihe iand is taken under Section 17 (1), the land veste tn ths Government. There is 'no provision by which land statutorily vested in the Govsrnment reverts to the originai owner by mere canceilation of the 4S. The possession of the iand in question was taken in the year 1966 after the oassing of the award by the Land Acquisition Officer. Thereafter, the land vested in the Governmeni which was then transferred to CiTB, predecessor-in-interest of the appeitant. After the vesting of the land and taking possession thereof, the notification for acquiring the iand couSd not be withdrawn or cancelfed in exereise of powers under Section 48 of the Land Acquisition Act. Power under Section 21 of the General Clauses Act cannof be exercised after vesting of the land statutoriiy in the State Government." 11) Applying weii settied principles of law on eanceiiation of acquisition of land as laid down by Hon'ble the Supreme Court in various cases to the facts crf the present case, the State Govemment 'm exercise of power under the provisions of Section 48 of the Act, 1894 is at iiberty to withdraw from the acqyisition of the disputed iand. It is admitted fact that the possession of the disputed land pursuant to the award dated 24-9-2004 (Annexure P/1) was not taken over by the State Government as evident from the ietter dated 1A-? r{[ > %r "''^'^^tjfr''®.' c< 29-11-2004 (Annexure R/1) and the notificdion dated 10-2-20)5 (Annexure R/3. It is ciearly stated therein that the possession of the disputed iand has not been taken over by the State Govemment 12) In view of the foregoing and for the reasons mentioned hereinabove, the petition is dismissed. However, liberty is reserved to the petitioner to make an appttcation for compensation, if so advised, if-he has suffered any loss on account of the Droceedinas for acauisition of the disouted iand. which was withdrawn on 24-9-2004 subsequently. Noorderastocosts. Sdf' gatisb ^ judge n/