1. The petitioners except petitioners Nos. 11, 12 and 16, are the owners of lands situated at Mulund, BOmbay. By notification dt. 5th Aug. 1965 issued under S. 4 of the Land Acquisition Act the lands were notified for acquisition. The lands had been agreed to be sold inter alia to the 11th petitioner, a co-operative housing society. Representations were made on behalf of the owners and the co-operative society for release of the land it had agreed to purchase from acquisition. On 29th May, 1980 the Deputy Secretary to the Stat of Maharashtra, the 1st respondent, informed the chief promoter of the cooperative society that the Government had decided to release from acquisition the land in favour of the co-operative society and further action was being taken by the Commissioner. The latter requested submission by the owners of an undertaking in writing stating that they would claim no damages on account of withdrawal of the land from acquisition. This undertaking was furnished. On 26th June, 1980 the Deputy Secretary wrote to the chief promoter of the cooperative society informing him of an error in mentioning the area of the land released from acquisition; he asked that the Government order conveyed by the letter dt. 4th June, 1978 should be modified accordingly.
2. On 11th May, 1981 the Deputy Secretary wrote to the chief promoter referring to the letters of 4th June and 26th June, 1980 with regard to the release of the land from acquisition and stated that, on reconsiderationof the matter, the government had decided to cancel the orders contained therein. On 11th June, 1981 the Municipal Corporation of Greater BOmbay, the 4th respondent served upon the petitioner's architect a notice under S. 354a of the Bombay MunicipalCorporation Act calling for immediate cessation of construction work. It is clear from the affidavit field on behalf of the Corporation that this was done at the instance of the government.
3. On 29th Sept. 1981 this petitions was filed impugning the cancellation order and the stop work notice.
4. An affidavit was filed by the Deputy Secretary at the stage of admission which has been utilised at the hearing. The affidavit states that by the letter dt. 4th June, 1980 an administrative decision of the Government was conveyed to the petitioners. However, the statutory order was yet to be passed by the Commissioner under the Land Acquisition Act. since the administrative order was not should be amended or modified or reversed.
5. It is now not in dispute that there is no requirement of any statutory order for withdrawing from acquisition. Mr. Vyas, learned counsel for the respondents, however, referred to a judgment in Khan Bhahadur Chowkaran Keloth Mammad Koyi v. Province of Madras : AIR1946Mad450 . The court there held that under R. 5 of the Rules framed under the Land Acquisition Act it was compulsory for Government to publish a notification of its decision under S. 48(1) withdrawing from acquisition. No rules framed by the appropriate Government, that is to say, the State of Maharashtra, have been pointed out to me which contain some similar provision. In fact, the Manual of Land Acquisition for the state of Maharashtra states in para 303B, 'As the Land Acquisition Act does not prescribe any formality for withdrawing from acquisition under S. 48, mere cessation of proceedings is sufficient. When Government/Commissioner decides to withdraw, and the decision is communicatedto the owner of the land, it should be held that Government/Commissioner, has withdrawn from the acquisition and that if it is deemed necessary to acquire the land again, fresh proceedings must be started.'
6. In the instant case the order withdrawing the land from acquisition was conveyed to the chief promoter of the co-operative society, who along with the owners had asked for such release. Further the owners and the co-operative society have acted upon the withdrawal order and have commenced construction on the land. These is, therefore, neither in law nor in equity any good reason to hold that the Government was entitled to cancel the withdrawal from acquisition in the manner it has done.
7. The order of cancellation dt. 11th May 1981 must, therefore, be struck down. Consequently, the stop work notice under S. 354A issued by the MUnicipal Corporation must also be struck down.
8. The 1st respondents shall pay to the petitioners the costs of the petition.
9. Rule accordingly.
10. Petition allowed.