f^ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHiRENDRA MISHRA. & HOM'BLE_SHRI R.N. CHANDRAKAR. JJ AppeSiant Petitloner Versus Respondents 1. 2. 3. 4. 5. WritAppeal No. 182 of 2008 Sudarshah Behera, Son of Late Shri Baliram Behera, aged about 74 year, resident of Bouripara, Ambikapur, Distt. Surguja (CG) State of Chhattisgarh, through the Secretary, DKS Bhawan, Raipur (CG) Collector, Ambikapur, District Surguja (CG) The Land Acquisition Officer, Ambikapur, Distt. Surguja (CG) Superintendent Engineer, Public Works Department, Ambikapur, Distt. Surguja (CG) R.P. Singhai, Retired Executive Engineer, Public Works Department, resident of Madan Mahal, Behind LIC Office, Jabalpur (MP) Present Mr. V.K. Pandey, Advocate for the appellant. Mr. Vinay Harit, Dy. Advocate General with Mr. S.K. Mishra, Panel LawyerfortheState. ORAL JUDGMENT (7th November, 2009) PerDhirendra Mishra. J 1. This writ appeal under Section 2 of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 is directed against the impugned order dated 6th August, 2008 passed in W.P.No.1779/2005, whereby the petitioner's petition for direction to the respondents to make payment of compensation with interest against the acquisition of land bearing Khasra No.2130/7, 0.017 hectare, situated at Bouripara, Ambikapur, Distt. Surguja (hereinafter referred to as "disputed land") has been dismissed. 2. Undisputed facts are that the appellant is owner of the disputed land. On the request of Executive Engineer. Public Works Department (in short "PWD"), Ambikapur, land acquisition proceedings for acquiring the disputed land were commenced for construction of road, and finally, award of acquisition was passed vide order dated 24.9.2004 and compensation to the tune of Rs.4,60,224/- was determined. However, the petitioner was not paid compensation against the award. Thereafter, certain '^. 'r' complaints regarding demand of bribe were made bythe petitioner, whereupon the Collector, Surguja addressed a communication dated 22.1.2005 to the Secretary, Govt. of Chhattisgarh, PWD, with regard to complaint made by the petitioner informing him that PWD has failed to deposit compensation amount determined by the award dated 24.9.2004. The stand of the respondents is that after passing of the award, the Executive Engineer filed an application on 1.2.2005 before the Codector under Section 48 of the Land Acquisition Act, 1894 (in short "the Act") stating therein that there is no proposal of using the disputed land for the purposes of road under any scheme of the government;. the disputed land is not required by the State and al! the proceedings with respect to land acquisition be cancelled. On the basis of aforesaid application, the Land Acquisition Officer vide its order dated 10.2.2005 released the disputed land from acquisition and a notification to this effect was published on 10th February, 2005 under Section 48 of the Act by the Collector, Surguja. The writ petition was dismissed on the ground that the State Government in exercise of its powers under the provisions of Section 48 of the Act is at liberty to withdraw from acquisition of the disputed iand in case possession of the land has not been taken over by the StaSe Government, and it is admitted fact the possession of the disputed land, pursuant to the award, was not taken over by the State Government as is evident from the document of Annexure R/1 dated 29.11.2004 and notification dated 10.2.2005 of Annexure R/3. Mr. V.K. Pandey, learned counsel appearing for the appellant, referring to original record of the Land Acquisition Officer, submitted that acquisition proceedings were commenced by the Land Acquisition Officer after receiving the Memo dated 5.9.2003 of the Executive Engineer, PWD, Building & Road Division, Ambikapur, which was initially returned to be forwarded in three copies. Thereafter, the same was forwarded with necessary copies on 21.10.2003 along with certificate, map, khasra form and another certificate. On receiving the aforesaid Memo, after registering the case, the Memo was sent for verification to the Tehsildar, who vide y^ i, •?-. ^ ' f ^ 6. 7. its report datec! 9.1.2004 verified the details. From perusal of certificate dated 30.8.2003 available on record, whjch is duly singed by the Sub Engineer, Sub Divisional Officer and Executive Engineer of PWD, which was fowarded along with Memo of Executive Engineer dated 5.9.2003, it would be evident that possession of the disputed land was taken over by the Executive Engineer, PWD, for construction of road. However, in the appiication filed on behalf of the Executive Engineer before the Land Acquisition Officer on 1.2.2005, it is mentioned that the disputed land has neither been acquired nor it is intended to be acquired, which, on the face of it, is contrary to the documents available in the original record ofthe respondents. However, this fact has not been considered by the learned Single Judge. He further submits that on 25.8.2008, the respondents were aiiowed time for filing supplementary counter affidavit stating specifically as to whether after issuance of notification dated 10.2.2005 under Section 48 of the Act, the appellant's land has been returned to him? However, the respondents have not complied with the aforesaid order. On the contrary, the appellant has filed a document of Annexure R/1 along with rejoinder to the reply filed by the respondents in appeal. From perusal of Annexure R/1, it would be evident that on the basis of Memo of Sub Divisional Officer, PWD, Ambikapur dated 13.10.2008, the Patwari concemed re-measured the disputed land and submitted his report dated 2.12.2008 mentioning therein that in the disputed iand, drainage and Ring Road have been constructed. On the other hand, Mr. Vinay Harit, iearned Dy. Advocate Genera! for the State. submits that on the basis of documents available on record, it is clear that after passing ofthe award, possession of the disputed land was never taken by the State and therefore, the State could withdraw from acquisition as per provisions of Section 48oftheAct. Heard learned counsei for the parties, perused the original record produced by Mr. Vinay Harit for our perusal, as also the impugned order. f^. 8. The short question involved for adjudication of this appeal is whether the State Government has taken possession of the disputed land or not? 9. From the original record of land acquisstion produced for our perusal, we find that the documents referred by Mr. V.K. Pandey are available in the original record. From perusal of the same, it is ciystal clear that acqulsition proceedings were commenced only on the basls of Memo of the Executive Engineer dated 5.9.2003, \¥hich was addressed to the Land Acqulsition Officer a!ong with enclosures in three copies. From perusa! of the certificate of Annexure RR-1, avaiiabje En the writ petition aiong with rejoinder filed by the petitioner, which is aiso availabie in the original record of Land AcquEsition Officer and forwarded along with Memo of the Executive Engineer, it Is clear that land acquisition proceedings Vtfere initiated after the disputed land was already used for construction of road. The above fact is a!so established from the report of the Patwari, vide Annexure R-1 in writ appeal, which was to the Sub DivisionaE Officer. Therefore, the fjnding in the irnpugned order that it is admitted fact that possession of the disputed !and pursuant to award dated 24.9.2004 (Annexure P/1) was not taken over by the State Govt., is not borne out from the record of the writ petjtion as also the original record of the Land Acquisition Officer of the disputed land produced by the State counsel for our perusal. 10. From the scheme of the Act and the principles of law laid down by the Hon'ble Supreme Court, which have been referred to in the impugned order, under Section 48(1) of the Act, the State Govemment is at liberty to withdraw from acquisition of any land, ofwhich possession has not been taken. However, after vesting of the land in question and taking possession thereof, the notification for acquiring the land could not be withdrawn or cancelled in exercise of powers under Section 48 ofthe Act. 11. ln the instant case, we find that possession of the disputed tand was taken over by the State Govemment even prior to commencement of land acquisition proceedings and therefore, it was not open to the respondents/State to withdraw from acquisition under Section 48(1) ofthe Act. (oZ 12. For the aforesaid reasons, setting aside the impugned order of Annexure A/1, we allow the writ appeal and direct the respondents to make payment of compensation to the appellant, as determined in the award dated 24.9.2004 (Annexure P/1) passed by the Land Acquisition Officer, with cost of Rs.10,000/- (Rupees Ten Thousand Oniy) within a period of two weeks from the date of production of copy of this judgment. The amount of cost would be recoverabie from the officers of PWD, Ambikapur, Distt. Surguja (CG), who applied to the Land Acquisition Officer on the basis of \¥hich proceedings under Section 48(1) of the Act were initiated and notification withdrawing acquisition was issued. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge ^</