Vyom Prakash Gupta, J.
1. The petitioner has challenged a notification Dt./- 26th May, 1972 (Annexure-U) issued under Section 48 (1) of the Land Acquisition Act (hereinafter shortly called the Act), by which the proceedings for the acquisition of the land measuring 35 bighas 2 biswas belonging to the petitioner have been withdrawn.
2. The brief facts are that a notification (Annexure-C) under Section 4 of the Act was issued on 4-10-1967 for acquiring petitioner's land measuring 35 bighas 2 biswas. Another notification under Section 6 (Annexure-E) was issued on 25-9-1968. Objections under Section 9 (Annexure-G) were filed by the petitioner and an award (Annexure-H) was announced by the Acquisition Collector on 12-7-1969. By this award the Land Acquisition Collector assessed the compensation payable to the petitioner but it was ordered that the compensation would be paid after getting clearance from the Commissioner (Revenue) Himachal Pradesh.
3. Objections under Section 18 of the Act were filed by the petitioner as well as by the respondent (State of Himachal Pra-desh). The petitioner withdrew his objections as is mentioned in para-4 of the writ petition and the objections of the respondent were rejected on 29-1-1972 (Annexure-M). The petitioner thereafter filed applications (Annexures N and O) for the release of the compensation but the same was not paid. The petitioner also filed a Civil Writ Petition No. 4 of 1970 in this court claiming that the directions contained in the award, D/- 12-7-1969 to the effect that the compensation payable to the petitioner would be released to him after obtaining clearance from the Commissioner, Himachal Pra-desh, be withdrawn. This writ petition was decided by Hon'ble R. S. Pathak, Chief Justice (as he then was) on 30-3-1972. The petition was dismissed vide Annexure-Q on the statement of the counsel for the respondent-State who had stated that the payment of the compensation will be made to the petitioner. It appears that even after the decision of this Civil Writ Petition No. 4 of 1970, no compensation was paid to the petitioner.
4. The respondent issued a notification on 26-5-1972 (Annexure-U) by which the proceedings of acquisition of land were withdrawn under the provisions of Section 48Sub-section (1) of the Act. The petitioner has now challenged the validity of this notification (Annexure-U) on the ground that the said notification could not be issued.
5. We have heard Kedar Ishwar, the learned counsel for the petitioner, and Shri H. K. Paul, the learned counsel for the respondents.
6. The learned counsel for the petitioner contended that the notification under Section 48 could not be issued because the proceedings for acquisition of the disputed land had been completed and the possession of the disputed land had been taken over by the State on 28-10-1969 in accordance with the provisions of Section 17 of the Act. It was also contended that the respondents were estopped from issuing the notification in view of the undertaking and the decision in C.W.P. No. 4 of 1970 decided on 30-3-1972.
7. The learned counsel for the respondents contended that possession of the acquired property had not been taken by the respondents under the award. The possession was already with the respondents. A reference was made to copies of jamabandis (Annexures-A and B) where-in the petitioner is shown to be the owner of the land while the possession is with 'Bashindgah-Deh.' It was also contended that decision in C.W.P. No. 4 of 1970 has no relevancy and does not create any estoppel.
8. We have considered the respective contentions of the learned counsel for the parties and have also gone through the records of the case.
9. The main controversy between the parties is regarding Section 48 of the Act, which reads as follows:--
48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.
(1) Except in the case provided for inSection 36, the Government shall be atliberty to withdraw from the acquisitionof any land of which possession has nolbeen 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 provisions of Part III of this Act shall apply, so far as may, be to the determination of the compensation payable under this section.
10. It was not disputed that the respondents could withdraw from the acquisition of the land if possession of the acquired land had not been taken in pursuance to the award. During the course of the arguments our attention was drawn to the note of the Secretary (Law) Dt. 28-4-1972 (Annexure-p 10), the note of the Under-Secretary (Revenue) Dt. 17-5-1972 (Annexure P. 11), the note of the Under-Secretay (Revenue) Dt. 17-5-1972 (Annexure P. 12) the opinion of the Advocate General Dt. 24-5-1972 (Annexure P. 13) and copy of letter from the Deputy Commissioner, Mahasu, to the Deputy Secretary (Revenue) Dt. 12-5-1972 (Annexure P- 14). From the notings of the above referred annexures it transpired that there are certain files of the Land Acquisition Collector from which it can be verified as to whether the possession had been taken by the respondents in pursuance of theaward or not. The learned counsel for the respondents produced both the files Nos. LMU-96/62 and MU-R-48/63 for verification of the true facts.
11. In file No. LMU-96/62 pertaining to acquisition of land of Sarahan Daran-ghati Road at pages 249 and 250, there is the noting, Dt. 12-8-1969, wherein it is mentioned that award for the acquisition of the disputed land had been announced and the Naib Tehsildar Second Batch be asked to deliver the possession, etc. The Naib Tehsildar, Second Batch forwarded the same on 1-9-1969 to the Field Kanungo with the direction that the Field Kanungo should deliver the possession to the P.W.D. authorities without any delay.
12. In file No. MU-R-48/63 at page 329 statements of three persons have been recorded by the Field Kanungo on 28-10-1966. These persons have stated that demarcation of the acquired land had been given in their presence and that they had now no concern with the acquired land. They had further claimed compensation for this land. Similarly at pages 331 and 332 there is the description of khasra numbers with areas as also number and description of the trees situate in this land. After the preparation of this list of khasra numbers and the details of trees, etc. it is mentioned that the possession had been handed over by the Kanungo to the Sectional Officer on 28-10-69. The Sectional Officer has specifically mentioned that the possession had been taken over by him.
13. Thus from the aforementioned documents in the land acquisition files it is clear that the possession of the disputed land was taken over by the P.W.D. authorities through their Sectional Officer on 28-10-69, i. e. after the date of the announcement of the award. It is also clear from these documents that this possession was taken over after the completion of the land acquisition proceedings and the announcement of the award and for the construction of the road for which the acquisition proceedings had taken place. The learned counsel for the respondents contended that this taking over of the possession by the Sectional Officer of the P.W.D. is not in accordance with law because the possession of the disputed property was already with the respondents and a P.W.D. road was already existing in the disputed land. We are un-ble to accept this contention of the learned counsel for the respondents due to thefact that ownership of the land was shown in the name of the petitioner and the possession was shown with 'Bashind-gan-Deh' of the village. Even at the time of the notifications under Sections 4 and 6, or at the time of the announcement of the award this was the position. The respondents still thought it proper to divest the petitioner of his ownership rights and to acquire his ownership right and for this purpose the acquisition proceedings had been commenced. The award was an-nounced on 12-7-1969 and the possession was taken on 28-10-69. Thus it has to be presumed that possession was taken by the P.W.D. authorities i. e., concerned department of the Government, in pursuance to the award under Section 17 of the Act.
14. Another argument advanced by the learned counsel for the respondents was that the possession was not handed over to the P.W.D. authorities by the petitioner and the petitioner was incapable of handing over such possession. We cannot accept this contention of the learned counsel for the respondents because it is not at all necessary as to who delivers the possession to the respondents. The only criteria for the application of Section 48 of the Act is as to whether the possession has been taken over by the Government. In view of the fact that possession of the acquired property had been taken by the Government on 28-10-69 it was not within the competency of the Government to have invoked the provisions of Section 48 of the Act for the withdrawal of the acquisition proceedings.
15. It may also be mentioned that the learned counsel who appeared on behalf of the Government on 30-3-1972 accepted the acquisition as valid and gave a statement in this court in Civil Writ Petition No. 4 of 1970 to the effect that the Government was willing to make the payment of the compensation awarded to the petitioner. This statement of the learned counsel for the respondents also goes to show that the respondents had treated the acquisition proceedings as valid.
16. In view of the above discussion the notification Dt. 26-5-1972 (An-nexure U) issued under Section 48 (1) of the Act is liable to be quashed and the same is hereby quashed. The writ petition is accordingly accepted with costs assessed at Rs. 300/-.