IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 840 of 2007-C Date of Decision 7th December, 2011 ________________________________________________________ 1. Shri Karam Chand, son of Shri Gajjan Ram. 2. Shri Nikka Ram, Shri Gajjan Ram, Both resident of village Bhadrog, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur (H.P.) ….Petitioners Versus 1. State of Himachal Pradesh, through Secretary (PWD) to the Government of Himachal Pradesh. 2. The Executive Engineer, Ghumarwin Divison-HP PWD, Ghumarwin, District Bilaspur (H.P.) 3. The Land Acquisition Collector, H.P. Public Works Department (Central Zone), Mandi (H.P.) ….Respondents Amended Civil Writ Petition under Articles 226 & 227 of the Constitution of India. Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________________ For the Petitioners: Mr. N.S. Chandel, Advocate. For the Respondent: Ms. Shubh Mahajan, Deputy Advocate General. __________________________________________________________________ Dev Darshan Sud, J.(oral) The petitioners have filed this writ petition praying for a direction to the respondents to pay compensation, under 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 the Land Acquisition Act, as determined by the Land Acquisition Collector by his award bearing No. 8/2000 in case No. B/15/95 for acquiring land comprised in Khasra No. 88/1, 99/1 and 100/1 measuring 1-5, 0-3, 0-2 bighas in all 1-10 bighas. The events leading to the passing of the award by the Land Acquisition Collector on 21.6.2000 are not disputed. The subsequent events which are relied upon by both the parties to urge (a) either the compensation amount is payable; (b) or as urged by the State, no amount is payable. 2. The second prayer is for quashing Annexure P-3, which is a notification dated 14.2.2008 issued by the State purporting to exercise its powers under Section 48 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) withdrawing from the possession of land comprised in Khasra No. 86/1, measuring 1-5 bighas. 3. The petitioners herein urged that after taking possession of the land, powers under Section 48 of the Act cannot be exercised. Petitioners place reliance on the revenue record of the State which has been filed as Annexure P-4, evidencing mutation No. 565 transferring the land in Khasra No. 86/1 measuring 1-5 bighas in favour of the HPPWD on 24.9.2003. 4. In reply, the State avers that possession of land was not taken and it was open to the State to withdraw from the acquisition proceedings. It is submitted that this land is at a distance of 160 meters from the road and possession thereof 3 was not taken by the State and in these circumstances, no relief can be granted to the petitioners. 5. It is pleaded by the petitioners that this land is still in possession of the State Government. It is pleaded that mutation No. 565 dated 24.9.2003 has been cancelled by the revenue authorities by another mutation No. 801 dated 28th June, 2011. In these circumstances, it becomes evident that possession was in fact transferred to the State by virtue of the first mutation which was attested in 2003, which has now been reversed by the second mutation as noticed hereinabove. Copy of mutation has been placed on record of the case by the State. In these circumstances, the submission made by the State that possession of the land was not taken over cannot be accepted for the reason that their own revenue record reflects such possession having been taken. 6. The law on the aspect of exercise of powers under Section 48 of the Act is now well settled. In Rajinder Singh Bhatti and others vs. State of Haryana and others, (2009) 11 SCC 480, the Supreme Court while dealing with the ambit of Section 48 of the Act, holds: “……………………………………………… 30. The question which now needs to be considered is: whether the decision of the Government for withdrawal of acquisition under Section 48(1) is required to be published in the Official Gazette? 31. It is true that Section 48 does not in express terms require the decision of the Government for withdrawal of acquisition to be published in the Official Gazette. In Abdul Majeed vs. District Collector (1997)1 SCC 297, this Court has held that there should be publication of the withdrawal 4 of the notification published under Section 4 (1) and declaration under Section 6 by exercising power under Section 48(1). Even on first principles, such requirement appears to be implicit. The Act provides for the publication of notification and declaration under Sections 4 and 6 of the Act in the Official Gazette. Obviously the withdrawal from land acquisition proceedings by taking resort to Section 48(1) of the Act also must be in the like manner. As a matter of fact, this aspect is no more res-integra. 32. In Larsen & Toubro Ltd. V. State of Gujarat (1998)4 SCC 387 the identical contentions which have been advanced before us by the Senior Counsel were raised in that case. Section 21 of the General Clauses Act, 1897 was also pressed into service there. This Court considered: (SCC p.p. 407-08, paras 30-31) “30. It was submitted by Mr. Salve that Section 48 of the Act did not contemplate issue of any notification and withdrawal from the acquisition could be by order simplicitor. He said that Sections 4 and 6 talked of notifications being issued under those provisions but there was no such mandate in Section 48. It was thus contended that when the statute did not requite to issue any notification for withdrawal from the acquisition, reference to Section 21 of the General Clauses Act was not correct. Section 21 of the General Clauses Act is as under:- ’21. Power to issue, to include power to added to, amend, vary or rescind, notifications, orders, rules or bye-laws- Where by any Central Act or regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.’ Mr. Salve said that Section 21 expressly referred to the powers being given to issue notifications, etc. under an Act or regulation and under this that power included power to withdraw or rescind any notification in a similar fashion. It 5 was therefore submitted that when Section 48 did not empower the State Government to issue any notification and it could not be read into that provision that withdrawal had to be issued by a notification. His argument, therefore, appeared to be that on correct interpretation of Section 21 of the General Clauses Act before reaching the stage of Section 48, the State Government could withdraw notifications under Sections 4 and 6 of the Act by issuing notifications withdrawing or rescinding earlier notifications and that would be the end to the acquisition proceedings. We do not think that Mr. Salve is quite right in his submissions. When Sections 4 and 6 notifications are issued, much has been done towards the acquisition process and that process cannot be reversed merely by rescinding those notifications. Rather it is Section 48 under which, after withdrawal from acquisition is made, compensation due for any damage suffered by the owner during the course of acquisition proceedings is determined and given to him. It is, therefore, implicit that withdrawal from acquisition has to be notified. 31. Principles of law are, therefore, well settled. A notification in the Official Gazette is required to be issued if the State Government decides to withdraw from the acquisition under Section 48 of the Act of any land of which possession has not been taken.” In view of the legal position exposited by this Court in Larsen & Toubro Ltd. (1998)4 SCC 387 with which we respectfully agree, we hold, as it must be, that decision of the Government for withdrawal from acquisition has to be published in the Official Gazette. We answer point (2) in the affirmative.” (at p. 489-491) 7. Further elaborating on the ambit of this power, in Mysore Urban Development Authority vs. Veer Kumar Jain and others, (2010)5 SCC 791 the Supreme Court holds: 6 “12. We may first refer to the relevant principles in regard to withdrawal from acquisition under Section 48(1) of LA Act: (i) Sub-section (1) of Section 48 clearly provides that the Government will have liberty to withdraw from the acquisition of any land, of which possession has not been taken. Therefore, the power under Section 48(1) of the LA Act could only be exercised before the possession of the acquired lands is taken. Once possession of the land is taken by the Government, the land vests in the Government and the power of the Government under Section 48(1) of the LA Act to withdraw acquisition in regard to such land would cease to exist. (ii) Where possession of the acquired land has not been taken, the power and discretion under Section 48(1) of the LA Act can be exercised by the State Government, but only in a fair and non- arbitrary manner. Consequently, no order under Section 48(1) of the LA Act can be passed by the Government without hearing the local authority for whose benefit the acquisition is made, particularly when the preliminary notification has been issued by such local authority, and the final declaration states that the lands are acquired for such authority for a public purpose. (Vide Amarnath Ashram Trust Soceity v. Governor of U.P. (1998)1 SCC 591, Larsen & Toubro Ltd. V. State of Gujarat (1998)4 SCC 387 and State Govt. Houseless Harijan Employees’ Assn. v. State of Karnataka (2001)1 SCC 610.” (at p. 795) This is a complete answer to the submissions which have been made by the State. I 8. In these facts established on the record, this writ petition is allowed. Annexure P-3 Notification under Section 48 of the Land Acquisition Act is quashed and set aside. A direction is 7 issued to the respondents to pay compensation to the petitioners herein in accordance with law. Writ petition stands disposed of. No order as to costs. All miscellaneous applications are disposed of. December 07, 2011 (Dev Darshan Sud), ms Judge