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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