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TMI Blog2009 (6) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... dmeasuring 3154 sq.yds. By way of a lease agreement dated 29th November, 1941 executed between the predecessor in title of the petitioners and the Governor General in Council, the suit property was given on lease with effect from 15th June, 1941, during the period of second world war and for a period of six months thereafter. A copy of the said lease agreement is at Exhibit A to the petition. The property was taken on lease by the Defence Department of the Government of India. It is not in dispute that even though in the lease documents it is provided that the lease shall continue during the period of second world war and six months thereafter, the department continued to retain possession with it subsequently all throughout. 3. The property which was let out to the Governor General in Council was an open plot. As per the averments made in the petition, the Defence Department has set up a Missile Coast Battery for the purpose of defence. It is not in dispute that even till date the same is used for the said purpose. 4. The predecessorintitle of the petitioners Mr. E.S. Marker sold his right, title and interest in the said property to the predecessorintitle of the petitioners. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent Nos. 5 and 6 have not made any payment towards the rent in view of the fact that they became owners of the plots in question. It is averred in para 26 of the petition that subsequently, an amount of Rs. 59,137/was sent along with letter dated 2nd July, 1997 towards the rent for the period from 1-7-1984 to 31st December, 1996. The petitioners after accepting the amount of rent till 30th May, 1995, returned the remaining amount for the subsequent period on the ground that since award is passed, there is no question of accepting the rent. A copy of the letter is at AnnexureK to the petition. So far as the adjoining property 53A is concerned, respondent Nos. 5 and 6 took out Notice of Motion seeking Court s permission to withdraw from the acquisition. The Notice of Motion No. 101 of 1997 taken out by respondent Nos. 5 and 6 was dismissed vide order dated 25th July, 1997 observing that since the possession is already with respondent Nos. 5 and 6 after passing of the award, the land in question vests with the Government and, therefore, there is no question of withdrawing from the acquisition. The order of the Division Bench of this Court is placed on record at ExhibitL to the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have considered the share of the tenants/lessees/ documents including the Ministry of Defence on the basis of hiring and as to that extent the compensation ought to have been reduced. Thus in that Writ Petition they had already claimed that their share as tenants/lessees should have been taken into consideration. The Writ Petition came to be dismissed. The S.L.P. Filed against that Writ Petition was withdrawn by them. To claim apportionment on the ground that they had share as tenant or lessee is in fact nothing else but an attempt to reduce the compensation. The prayer asked for now is identical to the prayer made earlier. The said order of the High Court was accordingly set aside and the Writ Petition which was filed by the respondents herein was ordered to be dismissed. The order passed by the Land Acquisition Officer dated 26th September, 1997 was affirmed by the Supreme Court and held that the respondents cannot claim a reference under Section 30 nor claim apportionment. 7. So far as acquisition of land at plot no. 53A as well as the amount payable under the Award of the Collector is concerned, the proceedings in connection with the same are now over as the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors of this Court even though in a judicial pronouncement this Court has already found that the respondents cannot withdraw acquisition under Section 48 of the Act is not just and proper. Such action of the respondents can be said to be contemptuous for which separate contempt petition has also been filed by the petitioners. It is submitted by Mr. Anturkar that in all fairness the respondents should have acted reasonably and should have given similar treatment to the petitioners by making necessary payment as per the award of the Collector as has been done in the case of adjoining plot owner i.e. 53A. Mr. Anturkar submitted that the provisions of Section 48 of the Act are not applicable to the facts and circumstances of the case as the possession of both the plots is with the Defence Department. Section 48 of the Act is applicable only when the possession is not taken away but if the possession is taken away then Section 48 cannot be made applicable. Mr. Anturkar has relied upon the decision of this Court in earlier proceedings in connection with plot No. 53A. It is submitted that without any valid reason, the petitioners have been denied the benefit of amount under the award for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uantum of the amount awarded by the Land Acquisition officer is concerned, the same now cannot be challenged as the same has been found to be reasonable. He is not challenging the quantum as it is not possible now to challenge the quantum as awarded by the Land Acquisition Officer. 10. We have heard the learned counsel appearing for the parties. We have also gone through the voluminous record forming part of the proceedings. 11. The principal question which requires consideration in this petition is as to whether it was open for the respondents to withdraw from the acquisition by resorting to Section 48 of the Act. In this connection it will be useful to refer Section 48 of the Act which reads thus: 48. (1) Except in the case provided for in Section 36, the Government for the Commissioner shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government or the Commissioner 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er a period of almost 15 years from the date when the acquisition proceedings were initiated. In our judgement, Respondents No.1 and 2 cannot be permitted to resile from their statements earlier made that the property in question will be acquired. As far as withdrawal from acquisition is concerned, the Award in question has already been passed and possession is already with Respondents No. 1 and 2. After passing of the Award, nothing further was required to be done in order to obtain possession. Land has thus vested in the government. Respondents No.1 and 2 in the circumstances are not entitled to withdraw from acquisition in terms of Section 48 (1) of the Act. In the order passed by this Court on 24th June, 1996, it has been specifically observed that the Special Land Acquisition Officer ha passed an Award dated 30th May, 1995. The possession was all along with the Respondents earlier as tenants and after the award as owners. Hence Respondents No.1 and 2 are not, at this belated stage, entitled to withdraw from acquisition. In the circumstances, we find that present notice of motion is devoid of merit and the same is dismissed with costs. 13. It is not in dispute that so far a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unfortunate that the petitioners are required to file substantive petition before this Court though the issue raised had been attained finality in connection with the adjoining plot holder i.e. Plot No. 53A. It was expected of the Respondents to act reasonably and without discrimination between the holders of plot Nos. 53A and 50 and 51. The respondents have not given similar treatment to the petitioners requiring them to knock the doors of this Court by way of this petition. 15. Learned counsel for respondent Nos. 5 and 6 has, however, relied upon the decision of the Supreme Court in the case of Dr. (Mrs.) Sushma Sharma etc. etc. vs. State of Rajasthan and others [AIR 1985 SC 1367] and submitted that since the Government in its wisdom has decided to withdraw from the acquisition, this Court cannot interfere with the said order under Article 226 of the Constitution of India. So far as the decision of the Supreme Court in the case of Dr. Sushma (supra) is concerned, it was in connection with service conditions of temporary lecturers who were appointed before a particular date and who are continued at the commencement of the Ordinance. The question was regarding absorption in serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd earlier by a Division Bench of this Court that the respondents have no right to withdraw from the acquisition as the possession is already with the acquiring authority. In our view, the reliance placed by the learned counsel on this judgment has no relevance so far as the issue involved in the present petition is concerned. 17. Mr. Srinivasan also relied upon the decision of the Supreme Court in the case of Balwant Narayan Bhagde vs. M.D. Bhagwat and others [AIR 1975 SC 1767]. The aforesaid judgment is pressed into service in order to substantiate the argument that the possession is not taken in a manner prescribed by the Land Acquisition Officer as per Section 16 of the Act. In the aforesaid case a dispute was raised as to whether the actual possession was taken or not from the original owner. The Court has considered the question about delivery of symbolic and actual possession. The Supreme Court has held that there can be no question of taking symbolical possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have acted in a similar fashion by giving similar treatment to both the plot holders. In view of the obstinate stand on the part of the respondents that the petitioners were compelled to approach this Court for the reliefs, which in our view could have been granted by the department itself in view of the fact that they had already made payment to the adjoining plot holder viz. Plot No. 53A. Considering the said aspect, in our view, no different treatment can be given to the present petitioners coupled with the fact that question about possession and powers of respondents to withdraw from acquisition has already been decided by the Division Bench of this Court on identical facts. Since the award is common in both the cases, the stand taken by the respondents is highly unjust. It is not expected of the Union of India to compel a litigant to approach this Court even though the point has already been decided earlier that powers under Section of the Act is not available with the respondents. In our view, the respondents cannot discriminate between citizen and citizen in the aforesaid way. 18. Mr. Srinivasan has relied upon the decision of the Supreme Court in the case of State of U ..... X X X X Extracts X X X X X X X X Extracts X X X X
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