Thursday, November 20, 2014

Release of Land From Acquisition : Section 48 of the Land Acquisition Act, 1894

Section 48 of the Land Acquisition Act, 1894 empowers the Government to withdraw from the acquisition of the land provided possession has not been taken. The said power is given to the government by a statutory provision and is not restricted by any condition except that such power must be exercised before possession is taken. The statutory provision contained in Section 48 does not provide for any particular procedure for withdrawal from acquisition.

Section 48 in the Land Acquisition Act, 1894 reads as follows: - 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 shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the government withdraws from any such acquisition, the collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provision of Part iii of this Act shall apply, so far as may be, to the determination of the compensation payable under this Section.

Further Section 36 of the Land Acquisition Act reads as follows: - 36 Power to enter and take possession, and compensation on restoration. 

(1) On payment of such compensation, or on executing such agreement, or on making a reference under Section 35, the Collector may enter upon and take possession of the land, and use, or permit the use thereof in accordance with the terms of the said notice. 

(2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage, if any, done to the land and not provided for by the agreement, and shall restore the land to the persons interested therein, provided that, if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term, and if the persons interested shall so require the appropriate government shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose or for a company.

A plain reading of the Section 48 of the Land Acquisition Act, 1894 demonstrates that an absolute discretion is vested in the State Government in so far as, the release of land from acquisition is concerned. Moreover, the exercise of discretion vested in government is subject to the condition that the possession of the land in question has not been taken.

The normal mode of taking possession is drafting the Panchanama in the presence of Panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land.
Once the possession of land has been taken no application seeking release of land by the land owner is maintainable ( Swamy Devi Dayal Hospital vs. Union of India, AIR 2014 SC 284 ).

In Mahadeo vs. State of UP, (2013) 4 SCC 524 the Supreme Court held that- once land is acquired and mandatory requirements are complied with i.e. land has been acquired after following due process of law and of which possession has been taken, land vests in state free from all encumbrances, even if some unutilized land remains, it cannot be reconveyed or reassigned to erstwhile owner.

The brief fact of the case is that- the land was acquired for purpose of expansion of city and major portion of land was already utilized by Authority- merely because some land was left vacant at relevant time that does not give any right to Authority to send proposal to government for release of land in favour of land owners.

The impugned orders passed by High Court directing Authority to press resolution dated 17-09-1997 whereunder decision was taken to withdraw acquisition of land except land for which compensation was paid, unsustainable. Hence Mandamus issued to this effect by High Court is quashed by the Apex Court.

It is true that a landowner whose land has been acquired for public purpose by following the prescribed procedure cannot claim as a matter of right for release of his/her land from acquisition but where the State Government exercises its power under Section 48(1) of the Land Acquisition Act for withdrawal from acquisition in respect of a particular land, the landowners who are similarly situated have right of similar treatment by the State Government.

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