S.H. Sheth, J.
1. The petitioners are the owners of city Survey Nos. 1559, 1560, 1561, 1562, 1563, 1564, 1565, 1567-Part and 1574-Part situate in Kalupur Ward in the city of Ahmedabad. Some of these survey numbers bad superstructures standing on them. On 30th May, 1957, the Government of Bombay issued a notification under Section 4 of the Land Acquisition Act for the acquisition of these lands. The public purpose which was stated in the notification was that they were required for a municipal play-ground. On 13th March 1958, notification under Section 6 was issued. Land Acquisition Officer made award of compensation on 30th June, 1960. Thereafter there was a reference to the City Civil Court at Ahmedabad under Section 18 of the Act. The City Civil Court enhanced the compensation awarded by the Land Acquisition Officer. The award made by the City Civil Court at Ahmedabad was challenged by the State Government in this High Court. This Court allowed the appeal and modified the award. On 11th October, 1960 and 12th November, 1962, the State Government took possession of the lands in question except that of Survey Nos. 1559, 1560, 1561, 1562 and 1565-Part. The possession of the above-noted survey numbers could not be taken because tenants occupying those survey numbers filed suits in the City Civil Court at Ahmedabad which were ultimately dismissed by the Court. Thereafter writ petitions were filed in this Court by the tenants. However, those writ petitions were ultimately withdrawn. Thereafter the State Government on 5th February, 1977, made an order withdrawing from the acquisition of the aforesaid survey numbers of which possession was not taken. On 19th February, 1977 that notification was published.
2. It is that notification which is challenged in this petition.
3. The first question which has been raised by Mr. Shah who appears on behalf of the petitioners is that under Section 48 of the Land Acquisition Act, 1894, the State Government cannot withdraw from acquisition of the aforesaid survey numbers of which possession has not been taken. Sub-section (1) of Section 48 provides as follows:
'Except in the case provided for in Section 36, the Government shall be at to withdraw from the acquisition of any land of which possession has not been taken.'
4. This provision makes it abundantly clear that except in two cases the State Government is at liberty to withdraw from the acquisition of any land. Under subsection (1) of Section 48, the State Government cannot withdraw from the acquisition of any land of which possession has been taken. Secondly, under proviso to Section 36, it cannot withdraw from the acquisition of a land which has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of the acquisition. The petitioners have made no averments in this petition to show that the survey numbers from the acquisition of which the State Government has withdrawn have become permanently unfit for being used for the purpose for which they were used prior to the commencement of their acquisition. Therefore, Section 36 does not hit the impugned notification. It is an admitted fact that the State Government has not taken possession of the aforesaid survey numbers. Therefore, the second exception to the rule which sub-section (1) of Section 48 lays down does not come into play in the instant case. It is, therefore, clear that under sub-section (1) of Section 48, the State Government can withdraw from the acquisition of the city survey numbers which have been specified in the notification published on 19th February, 1977.
5. Mr. Shah who appears on behalf of the petitioners has argued that it is not open to the State Government to withdraw from acquisition after a lapse of about 20 years from the date of the issuance of notification under Section 4. There is nothing in sub-section (1) of Section 48 which supports the contention raised by Mr. Shah.
6. Mr. Shah has further argued that the impugned withdrawal from the acquisition is mala fide in character and is intended to cause injury to the petitioners. Though the petitioners have used in the petition such expressions as 'oblique motive', 'perverse', and 'collusive', they have hot stated facts to show how the impugned withdrawal from the acquisition is either collusive, mala fide, perverse or how the State Government has resorted to oblique motive so as to over-reach the law. In absence of any pleadings on this aspect, it is difficult for us to entertain the plea raised by Mr. Shah orally at the bar. All the aforesaid expressions have been used in the petition in the context of the lapse of a period of over 20 years between the date on which notification under Section 4 was issued and the date on which the impugned withdrawal was notified. A mere passage of time can not help Mr. Shah in establishing that the impugned withdrawal from acquisition is either perverse or mala fide or is otherwise collusive or has been resorted to for oblique motive.
7. So far as the injury to the right of the petitioner is concerned, sub-section (2) of Section 48 provides an ample remedy to recover damages or compensation for the injury suffered. It is unfortunate that the application which the petitioners have made to the Land Acquisition Officer for compensation under sub-section (1) of Section 48 has been rejected by him. The petitioners have a right to file a civil suit to recover compensation or damages and we are told that the petitioners have done it. There fore, the first contention which Mr. Shah has raised is without any substance and is rejected.
8. It is necessary in this context to note that the expression 'to withdraw from the acquisition of any land of which possession has not been taken' used in Section 48 has reference to Section 16 and Section 17. It is under Section 16 of the Land Acquisition Act that the Collector after making an award under Section 11 takes possession of the land. It is applicable to the instant case, Section 16 provides as follows:
'When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.'
If possession has been taken, then by virtue of the provisions of Section 16, the owner of the land is divested of his title and the title to the land vests in the Government absolutely free from all encumbrances. Under such circumstances, the Government by simply withdrawing from acquisition cannot divest of its title and return it to its original owner. Therefore, the concept of possession having not been taken as expressed in Section 48 appears to have reference to the divesting and vesting of title or has reference to the transfer of title from the original owner to the State Government. Section 17 provides for the same situation. It comes into play where urgency clause has been applied and possession has been taken before making an award under Section 11.
9. In the State of Madhya Pradesh V. Vishnu Prasad Sharma : 3SCR557 , the Supreme Court has observed that '...... it is always open to Government to rescind a notification under Section 4 or under Section 6, and withdrawal under Section 48(1) is not the only way in which a notification under Section 4 or Section 6 can be brought to an end. Section 48(1) confers a special power on Government of withdrawal from acquisition without cancelling the notifications under Sections 4 and 6, provided it has not taken possession of the land covered by the notification under Section 6.' The Supreme Court has further observed that it is open to the Government to cancel the notifications issued under Sections 4 and 6 by virtue of its power under Section 21 of the General Clauses Act. Section 48(1) is a special provision for those cases where proceedings for acquisition have gone beyond the stage of the issue of notice under Section 9(1) and it provides for payment of compensation under Section 48(2) read with Section 48(3). The Supreme Court, therefore, rejected the argument that without an order under Section 48(1), the notification under Section 4 must remain outstanding.
10. In Lt. Governor of Himachal Pradesh, : 1SCR413 , the Supreme Court has observed that 'by a notification under Section 21 of the General Clauses Act, the Government may cancel or rescind the notifications issued under Sections 4 and 6 of the Land Acquisition Act. But the power under Section 21 of the General Clauses Act cannot be exercised after the land statutorily vests in the State Government.'
11. In Balwant Narayan Bhagde v. M. D. Bhagwat : AIR1975SC1767 , the Supreme Court has observed: 'It is well settled that after possession of the land forming the subject-matter of acquisition has been taken in accordance with Section 16 or 17(1) of the Act, the land vests in the Government and the Government or any authority is not at liberty to withdraw from acquisition of any land of which possession has been taken.' The Supreme Court has further observed that possession referred to in Section 48(1) is actual possession and not symbolical possession. It has also been observed in that decision that even if the tenant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government, such act on the part of the tenant did not have the effect of obliterating the consequences of vesting.
12. The next contention which Mr. Shah has raised is that under sub-section (1) of Section 48, it is not open to the State Government to withdraw from the acquisition of a part of the land which formed the subject-matter of acquisition. So far as Section 48 is concerned, there is nothing in that section which provides that withdrawal from a part of the land under acquisition cannot be made. Indeed possession of the part from which the State Government withdraws from acquisition must not have been taken.
13. In the Secretary of State for India in Council v. Mahip Sha, (1937) 41 Cal WN 437, it has been observed by a Division Bench of that Court that there is nothing in Section 48 of the Land Acquisition Act to suggest that the acquiring authority cannot acquire only a portion of the land in respect of which notice was issued under Section 9 of the Act and that it cannot abandon its intention to acquire another part of it.
14. In Naba Kumar Seal v. State of West Bengal : AIR1952Cal870 , the learned single Judge of the Calcutta High Court has observed that before actual possession is taken, the Government is at liberty under Section 48 to withdraw from the acquisition. It is also open to the Government, according to the learned Judge, to release portions of land from acquisition.
15. In view of the provisions of subsection (1) of Section 48 to which we have made reference, we see no reason to depart from the view expressed by the Calcutta High Court in the above noted two decisions. In our opinion, under Section 48, it is within the power of the Government to withdraw from the acquisition of a part of land provided it has not taken possession of that part. The second contention raised by Mr. Shah, therefore, fails and is rejected.
16. These are the only contentions which Mr. Shah has raised before us. Since we find no substance in any of the two contentions, the petition fails and is dismissed.
17. Rule is discharged with no order as to costs.
18. Petition dismissed.