Karnataka High Court
M/S. Mohan Meakin Limited, Simla, ... vs State Of Karnataka And Others on 19 September, 1996
Equivalent citations: 1999(4)KARLJ6, 1997 A I H C 1461, (1999) 4 KANT LJ 6 (1999) 2 LACC 143, (1999) 2 LACC 143
Author: R.P. Sethi
Bench: R.P. Sethi
JUDGMENT R.P. Sethi, C.J.
1. Despite judgments of this Court in Writ Petition No. 7239 of 1983 decided on 30-7-1986, Writ Appeal No. 2159 of 1986, decided on 27-8-1986 and Special Leave Petition No. 12870 of 1985 on 29-4-1987, the appellants herein succeeded in getting the matter re-opened by filing a revision petition under Section 63 of the Bangalore Development Authority Act (hereinafter called 'the Act') which was accepted and disposed of vide Annexure-P dated 27-12-1990. Aggrieved by the aforesaid order passed by the Government of Karnataka the respondent Writ Petitioners preferred Writ Petition Nos. 5490 to 5494 of 1991 and 27338 of 1991 (Thore Salappa and Others v State of Karnataka and Others) in this Court which were allowed vide the judgment of the learned Single Judge impugned in this appeal. Writ Petition Nos. 6446 to 6456 of 1989 filed by the appellants were however dismissed. The action initiated, taken and completed by the authorities with respect to the lands and buildings comprised in Survey Nos. 174 and 175 of Kethamaranahalli Village, was upheld and the impugned order Annexure-P was set aside.
2. The present appeals have been filed with the object of reviving the order Annexure-P allegedly procured and manipulated by the appellants in connivance with the respondents-appellants/State. It is alleged that the order of the learned Single Judge is without jurisdiction, contrary to law and in ignorance of the facts of the case. It is further submitted that the learned Single Judge had wrongly relied upon the earlier judgment of this Court in Writ Petition No. 7239 of 1983. The Government is stated to have exercised the powers in accordance with the law while in passing the impugned order in Annexure-P. It is contended that as the appellants had all along been in possession of the property, the learned Single Judge was not justified in returning a finding to the contrary. The learned Single Judge has also not taken notice of the memo filed along with resolution of the B.D.A., which had allegedly been approved by the Government and according to which alternative sites were offered to the writ petitioners. It is contended that the power of revision vested in the Government under Section 63 of the Act could be exercised at any time. The acquisition proceedings were stated to have lapsed under Section 11-A of the Land Acquisition Act, of which the learned Single Judge is stated to have not taken note of. According to the appellants in W.A. No. 2159 of 1986 arising out of W.P. No. 7239 of 1983 the question of possession had been left open. It is submitted that the learned Single Judge did not properly appreciate the ratio of the Court in the aforesaid writ appeal and writ petitions. It is contended that as all the pleas raised by the appellants were not considered and decided by the learned Single Judge, his judgment impugned in this appeal is liable to be set aside.
3. In order to appreciate the rival contentions of the parties it is necessary to have a brief resume of the facts. The dispute pertains to Survey Nos. 174 and 175 of Kethamaranahalli Village, which was later on known as "further extension of Mahalaxmi Layout". The land comprising of aforesaid two Survey Numbers measuring 26 acres 25 guntas was notified for acquisition under notification dated 25-3-1975 issued under Section 16(1) of the City of Bangalore Improvement Act, 1945 for the purpose of extension of Mahalaxmi Layout. Final notification is stated to have been issued on 15-7-1977 which was published in the Karnataka Gazette dated 4-8-1977. Out of the aforesaid acquired land measuring 26 acres, 25 guntas, appellant 1 owned 8 acres and 16 guntas of land. The appellant 2 owned 3 acres. Besides appellants there were other owners of the land which was acquired vide notification noted hereinabove. Writ Petition No. 7239 of 1983 was filed by the other co-owners with prayer for quashing the acquisition notification which was dismissed vide order of the learned Single Judge dated 30-7-1986 (An-nexure-Q). The learned Single Judge in that case held that on voluntary handing over of the possession on 19-5-1978, the B.D.A. was in lawful possession of the area surrendered to it after the culmination of the acquisition proceedings. Before coming to this conclusion the learned Single Judge referred to the record and noted that similar act of voluntary surrender of possession had been done by several other co-owners. The surrender of possession was accepted by the Assistant Engineer of the B.D.A. The learned Single Judge also rejected the submission regarding the plea that as the scheme had allegedly not been substantially executed within 5 years, the same had elapsed. The scheme was held to be an extension of Mahalaxmi Layout. The learned Single Judge, in the instant case, also came to the conclusion that the appellants had voluntarily delivered possession of the land as was evident from Annexure-T dated 18th August, 1978.
4. Appellants are shown to have filed a revision petition before the Government under Section 63 of the Act stating therein that they had acquired the lands and the buildings in Survey Nos. 174 and 175 re-
ferred to hereinabove. The appellant 1 claimed to have bought the shares of the appellant 2-Company from the Government of Karnataka for a sum of Rs. 5/- lakhs after taking over the appellant 2-Company from the Government of Karnataka in the year 1968. The appellant 2-Company was stated to have been purchased by the appellant 1 on the alleged specific understanding that the Government of Karnataka would provide all the facilities to revive the said sick-industry. Upon the alleged specific understanding, the appellant-1 is stated to have purchased the adjoining lands in Survey Nos. 174 and 175 measuring 8 acres and 16 guntas from the Official Liquidator of the High Court on 31-12-1968. It was further contended by the appellants in their revision petition that after the purchase of the factory and additional lands, they imported fully automatic machinery in the year 1980 for the purposes of their industry which was claimed to be 100% export-oriented unit. The appellants referred to various factors and circumstances justifying the exercise of the revisional power by the Government under Section 63 of the Act. After taking note of detailed arguments addressed by both the sides, the Revisional Authority accepted the revision by passing the order at Annexure-P which was impugned in the writ petition.
5. In the writ petitions the petitioners had alleged that they belonged to the middle class income groups and one of them was a non-resident Indian, Excepting Dr. A. Kamala the other writ petitioners had applied for allotment of site under the Dollars Scheme of the B.D.A. in the year 1986. They were allotted sites in F.E.M.L. Layout by the B.D.A., each measuring 40' x 60' in dimension and put in possession of plot Nos. 144, 148, 143 and 149 on different dates within the period of 5-8-1987 to 8-6-1988. They also executed lease-cum-sale agreements in favour of the B.D.A. Writ petitioner Dr. A. Kamala applied for allotment of site in the year 1979 and after lapse of about 8 years was allotted a site bearing No. 157 measuring 80' x 50' for a cost of Rs. 1,11,365/-. A sum of Rs. 91,365/-was paid by her on the allotment of the said site. Possession of the site was delivered to her on 1-9-1988 and khatha certificate issued on 8-5-1989. She also executed lease-cum-sale agreement in favour of the B.D.A. All the writ petitioners applied to the B.D.A. for sanction of plans to construct residential buildings on their sites but no orders were passed, with the result that they were forced to file Writ Petition Nos. 12157 to 12160 of 1988 in this Court. However, during the pendency of the aforesaid petitions the appellants herein filed applications and were impleaded as parties. The writ petitions were disposed of on 20-11-1990 directing the B.D.A., to consider the applications of the writ petitioners for sanction of plans to construct residential buildings on their respective sites by passing appropriate orders within period specified. Regarding writ petitioner-A it was held that he was at liberty to proceed with the construction of residential building on the site allotted to him in accordance with the sanctioned plan. On 12-12-1990 the Government was alleged to have issued a communication to the B.D.A. stating therein that till they pass final orders and take any decision in the matter all further actions be stayed. The said communication is stated to have been issued as a consequence of a representation made by one of the appellants herein. The writ petitioners submitted their representation on 13-12-1990 which was attached with the petition as An-nexure-D. The State Government thereafter passed the impugned order Annexure-P allegedly ignoring all the pleas raised by the writ petitioners. It was submitted that the order impugned in the writ petition was wholly without jurisdiction. The appellants herein were alleged to have voluntarily delivered possession to the B.D.A. on 18-8-1978. After the delivery of the possession, the respondent-Government had no jurisdiction or Authority to take action in terms of Section 48 of the Land Acquisition Act. It was further alleged that the impugned order was passed by the Government in order to circumvent the judgment of this Court holding that the authorities had no power to allot lands under the bulk allotment of land schemes to another individual or company. The action of the Government was" alleged to be arbitrary and violative of Article 14 of the Constitution of India. The State Government had no jurisdiction to hold an enquiry and pass the order directing denotifica-tion of any property from the purview of acquisition proceedings. It was further submitted that final award was passed on 8-8-1989 in respect of the lands comprising Survey Nos. 174 and 175 including the sites allotted to the writ petitioners and a cheque of Rs. 24,37,018.25 was deposited in the Court of Principal City Civil Judge, Bangalore, in terms of Sections 30 and 31 of the L.A. Act. The appellants herein were stated to have filed O.S. No. 1206 of 1989 before the Court of XII Additional City Civil Judge, Bangalore, praying for decree of permanent injunction against the writ petitioners on the plea that they were in possession of the property allotted by the B.D.A. to the writ petitioners. The Trial Court vide its order dated 29-5-1989 held that the appellants herein were not in possession of the petition sites allotted to them. The prayer for grant of temporary injunction was declined vide Annexure-X attached with the petition.
6. Aggrieved by the order of the Trial Court the appellants filed appeal in this Court as also Writ Petition Nos. 6446 to 6456 of 1989 (Thore Salappa's case, supra) and succeeded in obtaining ex parte interim orders in their favour. The prayer was made for quashing the impugned order and directing official respondents not to act upon it. The impugned order was alleged to be arbitrary, null and void and violative of Article 14 of the Constitution of India.
7. The writ petitions filed by the writ petitioners and by the appellants herein were disposed of vide the judgment impugned in this appeal by setting aside the order of Government at Annexure-P and awarding the writ petitioners costs to the extent of Rs. 2,000/-.
8. Lengthy and elaborate arguments have been addressed by the learned Counsels appearing for the rival parties.
9. During the pendency of these appeals respondents 3 to 8, who were the writ petitioners in Writ Petition Nos. 5490 to 5494 of 1991 filed a memo submitting therein that they did not press the writ petition and prayed that the order of the learned Single Judge be set aside. The prayer has been resisted by the respondents 1, 2, 10 and 15.
10. Relying upon the observations of the Supreme Court in Shaik Hussain and Sons v M.G. Kannaiah and Another, Sri Parasaran, learned Senior Counsel appearing for the appellants submitted that as the writ petitioners wanted to withdraw their writ petitions, this Court is under a legal obligation to grant the prayer by allowing the writ petitioners to withdraw the writ petitions and consequently setting aside the judgment of the learned Single Judge. It is true that a party to litigation is entitled to withdraw its lis at any time and that no one can be compelled to litigate against his or their interests. It is equally true that once the rights of the third parties are determined in a lis initiated by a writ petitioner, he cannot be permitted to bargain with losing party, to the prejudice of those in whose favour the judgment has been delivered and who on account of the bona fide belief of the writ petitioner himself or themselves did not phoose to file separate petitions or appeals, In the instant case while allowing the writ petitions the learned Single Judge not only adjudicated the rights of the writ petitioners therein but also of the B.D.A. and other party-respondents in Writ Petition Nos. 6446 to 6456 of 1989 who are also party-respendents in these appeals as respondents 9 to 15. The learned Single Judge has setaside the order of the Government, Annexure-P, which admittedly affects the interests of all the parties in this case. The B.D.A. and the Government of Karnataka have specifically and unambiguously declared to have decided to support the judgment of the learned Single Judge and implement it. The learned Counsel appearing for respondents 10 and 15 have opposed the prayer made by writ petitioners who are respondents 3 to 8 herein. The dismissal of writ petitions and setting aside the order of the learned Single Judge is sure to adversely affect the interests of all other respondents. We have been taken through the pleadings and documents attached with the petition for the purposes of appreciating that the dismissal of the writ petition and setting aside of the judgment of the learned Single Judge would not only affect the parties herein but would surely affect a number of other people also, who were not made parties in the litigation. Reference has been made to Annexure-AF, which are the site plans showing the property in dispute, the area handed over to the appellants and to number of other residents who were allotted plots therein. It is further pointed that dismissal of the writ petition would amount to allowing the industry of the respondent to he operative in the midst of residential area. We are satisfied that the dismissal of the writ petitions and setting aside the judgment of the learned Single Judge is sure to affect the rights of the respondents as also others who have not agreed for withdrawing their claim or submitting to the temptations of the appellants. The writ petitioners have also not assigned any valid reason for withdrawal of their petitions. No person can be permitted to misuse the Authority of law by resorting to pressure tactics and thereby gaining advantages to which he otherwise would not be entitled to. Permitting such a course to be adopted would defeat the ends of justice and frustrate the provisions of Article 226 of the Constitution. It is admitted position of law that writ jurisdiction is a discretionary relief and once granted cannot be left to be modified or altered at the whim or caprice of a party particularly when the interests of 3rd parties are involved. Even in the Shaik Hussain's case, supra, the Apex Court was persuaded to direct the dismissal of the writ petitions in view of the fact, "it may be noted that apart from the respondent 1 and the appellant there were no other parties in the writ appeal except the formal parties like R.T.A. In our opinion the contention raised by the appellant is well-founded and must prevail". As noted earlier there are admittedly other parties whose interests are likely to be affected if the writ petitions are directed to be dismissed.
11. In a latest judgment the Apex Court in State of Maharashtra and Others v Ishwar Piraji Kalpatri and Others , held:
"...It appears strange that when a petition had been filed in the High Court, judgment obtained and the losing party comes to the Superior Court, then in order to avoid an unfavourable order, a request should be made for the withdrawal of the original proceeding in an effort to avoid an adverse decision from the Superior Court with a view to re-agitate the same contentions once again before the subordinate Court. The High Court had exercised its jurisdiction by observing that there was no proper sanction accorded by the Government, principles of natural justice had been violated and conduct of the appellant showed the mala fides. In our opinion there was no warrant for the High Court coming to the said conclusion and the judgment has to be set aside. A party to the proceedings cannot be allowed at this stage at least to take a chance and if he gets the impression that he will not succeed to seek permission to withdraw the original proceeding obviously with a view to re-agitate the same contentions, which have been or may be, adjudicated upon by a Higher Court before subordinate Court though in different proceedings. We strongly deprecate a practice like this if it exists. This will be opposed to judicial discipline and may lead to unhealthy practices which will not be conducive. On the facts of this case we see no justification for permitting the respondent to withdraw his writ petition".
12. In view of what is stated hereinabove the memo filed by the writ petitioners, who are respondents 3 to 8 herein is not accepted. Prayer to withdraw the writ petitions and setting aside judgment of the learned Single Judge is rejected.
13. The order impugned in the writ petition Annexure-P was passed by the Government in exercise of its assumed power under Section 63 of the Act 1976. Having regard to the scheme of the Act the learned Single Judge held:
"The provisions of Section 63 of the B.D.A. Act empower the first respondent to call for the records of any proceedings of the respon-
dent 2 or any officer subordinate to the Authority for the purpose of satisfying itself as to the legality or propriety of any order or proceedings and to pass such order with respect thereto as it thinks fit. In the instant case the allotment of sites made by respondent 2 in favour of the petitioners, under the impugned order is jeopardised, since it is indicated at para (m)(iv) that "Direction should be issued to B.D.A. under Section 48(1) of the Land Acquisition Act in respect of the lands of petitioners in Survey Nos. 174 and 175 of Kethamaranahalli, Mahalaxmi Layout further extension insofar as the extent of lands, where residential buildings have not been constructed as on today". The petitioners have not as yet constructed buildings in the sites allotted to them. Respondent 2 has not granted permission for construction to some of the petitioners though they have sought such permission. Some of the petitioners have filed writ petitions seeking direction to respondent 2 to give them licences, In some petitions directions have been given by this Court.
The first respondent has completely overlooked the fact while passing the impugned order, that the sites in question are situated in a layout which is part of the Development Scheme sanctioned by the first respondent itself under Section 18 of the B.D.A. Act. It was pursuant to that scheme the lands in question have been acquired and layout formed. Therefore, there is no question of the first respondent examining the legality or propriety of any order or proceedings of the second respondent under Section 63 of the B.D.A. Act. The sanction of scheme by the first respondent is a statutory function and it cannot be nullified in purported exercise of revisionary power under Section 63 of the B.D.A. Act".
14. In order to appreciate the rival contentions of the parties it would be profitable to refer to provisions of Section 63 of the Act which reads as under:
"Revision: -
(1) The Government may call for the records of any proceedings of the Authority or any officer subordinate to the Authority for the purpose of satisfying itself as to the legality or propriety of any order or proceedings and may pass such order with reapect thereto as it thinks fit.
(2) The Authority may call for the records of any proceedings of any officer subordinate to it for the purpose of satisfying itself as to the legality or propriety of any order or proceedings and may pass such order with respect thereto as it thinks fit, (3) No order under sub-section (1) or sub-section (2) shall be made to the prejudice of any person unless he has had an opportunity of making representation".
15. To exercise the powers under this Section the Revisional Authority has to be satisfied that it was examining the record of any proceedings of the Authority or any officers subordinate to the Authority under the Act and that such a recourse was resorted to for the purposes of satisfying itself as to legality and propriety of any order or the proceedings passed or conducted by such authorities. Authority under Section 2-(a) of the Act has been defined to mean the Bangalore Development Authority constituted under Section 3 of the Act. It is not disputed before us that the Authority under the Act had not passed any order which was prayed to be revised by the Government in exercise of its powers under Section 63 of the Act. It is worthwhile to mention that acquisition of land is resorted to under Chapter-IV comprising of Sections 35 and 36 of the Act. Under Section 35, the B.D.A. has been authorised to acquire land by agreement. The acquisition of land otherwise than by agreement is governed by the provisions of Land Acquisition Act 1894, as is mandate of Section 36 of the Act. The land which is the subject matter of litigation was admittedly not acquired under Section 35 of the Act and proceedings initiated under the Land Acquisition Act as authorised by Section 36 of the Act cannot be termed to be the order of proceedings of the B.D.A. which could be revised by the Government in exercise of Section 63 of the Act. The order impugned in the writ petition therefore apparently appears to be without jurisdiction.
16. Mr. Parasharan, the learned Senior Counsel appearing for the appellants has submitted that the provisions of the Act and the Land Acquisition Act are complementary and supplementary to each other. According to him the provisions of Land Acquisition Act have been adopted by reference and are required to be deemed to have been incorporated under the Act. In such a situation, according to the learned Counsel, the action of acquiring the land would by implication be deemed to be an action taken by the Authority under the Act and subject to the revisional jurisdiction of the Government.
17. Even if the argument of the learned Counsel is assumed to be correct, no relief can be granted to the appellants under the facts and circumstances of the present case. On the assumption that the Government had the revisional jurisdiction, the learned Counsel has submitted that as the possession of the land had not been taken, the provisions of Section 48 of the Land Acquisition Act were applicable and the Government was justified in passing the impugned order at Annexure-P.
18. According to Mr. Parasharan, the delivery of possession contemplated in terms of Section 48 is only such possession which is delivered consequent upon the passing of the final award and only in terms of Sections 16 and 17 of the Land Acquisition Act. It is submitted that as the possession of the land was not taken in terms of Sections 16 and 17 of the Land Acquisition Act, the Government was justified to direct passing of the orders under Section 48 of the Land Acquisition Act. It is further contended that delivery of possession contemplated under the Land Acquisition Act does not envisage the voluntary delivery of possession.
19. Section 48 of the Land Acquisition Act authorises the Government to withdraw from the acquisition of any land provided it had not taken possession thereof and the case was not one covered by Section 36. The provisions are apparently discretionary in nature. No Government, therefore, can be compelled to withdraw from the acquisition of any land regarding which acquisition proceedings are in progress or completed. Action of withdrawing from the acquisition proceedings would not arise in a case where possession is shown to have been taken by the Government. In the instant case the controversy revolves around interpretation regarding the mode of taking possession for the purposes of Section 48. Strictly speaking possession under the Land Acquisition Act can be taken either under Sections 16 and 17 or in terms of Section 36. The argument advanced on behalf of the appellants is that the law does not acknowledge any other mode of delivery of possession.
20. Reliance is placed upon the judgment of the Supreme Court in Mis. Jetmull Bhojraj v State of Bihar and Others1, State of Gujarat v Shantilal Mangaldas and Others and Lt. Governor of Himachal Pradesh and Another v Avinash Sharma.
21. In Shantilal Mangaldas case, supra, the Apex Court did not directly refer to the point of law required to be adjudicated by us in this appeal. Referring to the provisions of Sections 81 and 84 of the Bombay Town Planning Act, 1955, the Court held that the State Government had the Authority to acquire the lands for the public purpose of a local Authority and after acquiring the lands to vest in such local authorities. Under such circumstances, compensation was required to be paid under Land Acquisition Act. It was further held "land required for any of the purposes of a town planning scheme cannot be acquired otherwise than under the Act, for it is a settled rule of interpretation of statute, that when power is given under Statute to do certain thing in certain way the thing must be done in that way or not at all". It is submitted that as the Land Acquisition Act contemplates the acquisition of possession only by the modes specified under the Act, no party has any right to acquire or deliver possession in any other manner.
22. In Avinash Sharma's case, supra, it was held that after the possession was taken in pursuant to notification under Section 17(1) the land vested in the Government and the notification could not be cancelled under Section 21 of the General Clauses Act nor could the notification be withdrawn in exercise of the powers vesting under Section 48 of the Land Acquisition Act. In this case also, the Court did not consider the question regarding delivery of possession otherwise than the modes prescribed under the Land Acquisition Act.
23. In M/s. Jetmull Bhojraj's case, supra, the Court held:
"Ordinarily, possession of any land notified for acquisition is taken when the Collector has made an award under Section 11 and not before it. But an exception is provided under Section 17(1). In cases of urgency, if the Government so directs, the Collector may, though no award has been made under Section 11, on the expiration of the 15 days from the publication of the notice mentioned in Section 9(1) take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free from all encumbrances. From this provision, it is plain that the Collector cannot take possession of the land in question unless the Government directs him to do so. The Government can direct him to do so only in cases of urgency. Even when the Government directs the Collector to take possession, he cannot do so until expiration of 15 days from the publication of a notice under Section 9(1). There is no material on record to show that the Government had given to the Collector any direction under Section 17(1); nor, is there any material to show that the lands in question had been taken possession of by the Collector under Section 17(1). It is true that in the order sheet maintained by the Land Acquisition Officer, a note was made on October 17, 1959:
"Sri B.P. Yadav Kgo, to deliver possession at the spot to the representative of the R.O. on 16-11-1959. Draft addressed to R.O. is signed".
But there is nothing to show that this order was implemented. According to the respondent this order was not implemented.
It was next contended by Mr. Garg and Mr. A.K. Sen, that the expression "whenever the appropriate Government so directs" in Section 17(1) refers to urgency and not to the taking of possession of the lands notified for acquisition. Their further contention was that no sooner the Government issued the notification under Section 17(4), the factum of urgency was established and hence on the expiration of the fifteen days from the publication of notice under Section 9(1) the lands which were already in the possession of the Government vested in the Government. We are unable to accept this construction of Section 17(1). In our judgment Section 17(1) is plain and unambiguous. The expression "whenever the appropriate Government so directs" in that section refers to the taking of possession and not to the declaration of urgency. Even in cases of urgency, the Government may not think it necessary to take immediate possession for good reasons. Neither the language of Section 17(1) nor public interest justifies the construction sought to be placed by the learned Counsel for the appellant".
24. On the basis of the observations noted hereinabove it is submitted that the delivery of possession in any other mode except those prescribed under the Land Acquisition Act was unwarranted and possession delivered otherwise than the aforesaid provisions would not be deemed to be a valid delivery of possession with the result that the Government shall be at liberty to exercise its powers under Section 48 of the Land Acquisition Act at any time before the delivery of such possession. It is important to note that Section 48 provides, "the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken". It is worth noting that the section does not even prescribe the delivery of possession under the Act. Voluntary surrender of possession cannot be held to have been excluded for the purposes of exercise of the power under Section 48. Circumstances cannot be ruled out where the owner of the land may be willing to surrender the possession voluntarily. The voluntary surrender of possession is required to be deemed to be one of the modes of delivery of possession for the purpose of Section 48 unless such delivery of possession is shown to be unvoluntary or having not taken place at all or concocted as a ground to deprive the Government to exercise its power under Section 48 or being pressed into service only for the purposes of raising a plea in defence. Holding that voluntary surrender of possession was not permissible under any circumstances would not only be against the scheme of the Land Acquisition Act but also of the principles of justice, equity and good consciousness besides the violation of Constitutional rights under Article 300-A authorising the person to deal with his property in any manner he likes subject to the restrictions contemplated therein. It is not disputed that the institution of private property has been retained and not abolished in the country.
25. Reliance is also placed upon a Single Judge bench judgment in Muninanjappa v State of Karnataka and Another, wherein it was held:
"As sub-section (1) of Section 48 of the Act provides that the power to withdraw from acquisition of the land can be exercised by the State Government in respect of the land of which possession has not been taken, it is reasonable to draw an inference that taking possession of the land contemplated by sub-section (1) of Section 48 of the Act is taking possession either under Section 16 or Section 17 of the Act. The contention of Sri Jaganatha Shetty, in this behalf, is fully supported by the decision of the Supreme Court in the case of Jetmull Bhojraj's case, supra. The Supreme Court in that case has clearly held that possession referred to in Section 48 necessarily is the possession taken under Section 16 or under Section 17 of the Act. It, therefore, follows that if possession was taken otherwise than in accordance with Section 16 or Section 17 of the Act, taking of such possession does not preclude the State Government from withdrawing from the acquisition under Section (1) of Section 48 of the Act".
The judgment of the learned Single Judge being based upon the sweeping observations of the Supreme Court cannot be said to be laying correct law particularly when the aspect of voluntary surrender of possession was neither argued nor taken note of.
26. Delivery of possession contemplated under Section 48 is a legal delivery of possession by the modes either prescribed under the L.A. Act or permissible under the common law. Acquisition of illegal possession would and should not, however be deemed to be a valid possession for the purposes of Section 48. In cases where it is alleged and substantially proved that the possession delivered or taken was against the provisions of law or not a voluntary act of the party concerned, the argument can be advanced that such a possession should not be deemed to be delivery of possession for the purposes of Section 48. The scheme of the whole of the Land Acquisition Act does not indicate that the law contemplated to discourage the voluntary delivery of possession or such possession should always be deemed to be forcible possession except in case covered under Section 16 of the Land Acquisition Act. Can it be ruled out that a person whose land is sought to be acquired may himself be not interested in delivery of possession to ward off the apprehension of the encroachment upon the land?, Can it be said that a person whose land is sought to be acquired and who is interested in settling out of the country himself be not interested to deliver the possession?, Can a person be forced to wait till the time the authorities decide to acquire possession by one of the forcible modes only? The reply to the aforesaid questions and many other similar questions can be in emphathetic, no. Delivery of voluntary possession having been recognised and acknowledged as a valid mode of delivery of possession cannot be said to be beyond the scope of Section 48.
27. There is an other aspect of the matter in the instant case which has rightly been accepted by the learned Single Judge, who on the basis of the pleadings of the parties has held:
"In view of the clear stand taken by respondent 3 itself in the previous writ proceedings, regarding delivery of possession, it is impermissible for respondent 3 now to contend whatever be the legalism, that possession voluntarily delivered did not amount to taking of possession in terms of Section 16 of the Land Acquisition Act, 1894 and therefore the first respondent is at liberty to withdraw from the acquisition of the lands in question under the provisions of Section 48(1) of the said Act".
28. In Writ Petition No. 7239 of 1983 filed by other co-owners it was specifically pleaded therein that:
"Possession taken in pursuance of surrender is no possession, in the eye of law. Possession to be legal must have been taken only in accordance with the provisions of Land Acquisition Act".
The learned Single Judge dealt with the plea and held:
"The next contention of Mr. Ron was that possession taken, in pursuance of voluntary surrender is no possession in the eye of law, therefore, anything done thereafter being illegal, there is a failure in execution of the Scheme. In support of this contention reliance was placed on Sections 36(3), 37 and 38 of the B.D.A. Act. These provisions deal with vesting of the land in the Authority.
The arguments constructed was that it is only after the land vests with the Authority under these provisions the B.D.A. becomes its owner and only thereafter it can deal with the lands as it likes. It is contended that both under Section 10 of the Land Acquisition Act and sub-section (3) of Section 36, the land vests in the Authority after the passing of the award. As the award is passed on 8-5-1986, which is beyond five years, the possession taken earlier was illegal, as it was before vesting. The argument is at once fallacious as these provisions clothe the B.D.A. with the legal Authority to assert its rights, if it becomes necessary. The "A being a body corporate it can acquire, hold and dispose of immovable property; the objects of the Authority being to promote and secure the developments of Bangalore Metropolitan Area it has the power to acquire, hold, manage and dispose of the properties and generally to do all things necessary or expedient for the purpose of such development and for purpose incidental thereto (vide Section 14). Petitioners having voluntarily delivered possession, which is accepted, cannot complain that the possession so delivered was illegal. If the dictum of Volenti non fit injuria is applied, petitioners having consented to a thing cannot complain of the injury; they having waived their right cannot complain of infringement. Mr. Ron cited K. Ramadas Shenoy's case, to contend that there is no estoppel against law; on facts, the ratio of that decision is not applicable. Mr. Ron also sought sustenance from Muninanjappa's case, supra, and Jetmull's case, supra, to contend that it only lawful possession that will clothe the BDA to implement its Scheme and not possession otherwise than in accordance with law. In the two cases referred to above the Court was considering the power of the State Government to withdraw the acquisition, in that context it was held that to exercise the power under Section 48, the possession should not have been taken and if it is taken without resorting to legal provisions, such possession, being otherwise than in accordance with law, does not preclude the State Government to withdraw the acquisition. In the instant case, the possession voluntarily delivered after the final declaration cannot be said to be unlawful. There is no legal prohibition to surrender one's right in the property, particularly, when there is a valid proposal for acquisition which has culminated in the final declaration. The land having been acquired, petitioners' right was resticted to claim compensation. It was held by this Court in Venkateshappa v Bangalore Development Authority and Others, that:
"24........then there is a final declaration, in law and in reality, the rights of all the persons including the owner over the property is completely destroyed and the property passes to the State free from all encumbrances. Thereafter, the only right the owner can enforce is his right to receive compensation and nothing more than that. With the final notification issued by Government on 14-5-1980 and published in the Karnataka Gazette on 21-6-1980, the petitioner lost all her rights over the lands and other structures, if any standing thereon..".
This being the legal position, I have no doubt in holding that on voluntary handing over of the possession on 19th May, 1978, B.D.A. was in lawful possession of the area so surrendered. Indeed, it is a step in execution of the scheme".
29. The appeal preferred and the S.L.P. filed against the aforesaid judgments were dismissed confirming the judgment of the learned Single Judge. Writ Appeal No. 2159 of 1986 filed against the judgment of the learned Single Judge in that case was dismissed after holding, "The questions raised in this appeal are covered by the decision of this Court in Kanthamma v State of Karnataka and Another ".
30. The S.L.P. No. 12870 of 1985 was dismissed by the Supreme Court on 29-4-1987. It shows that so for as this Court is concerned the question of law stands already adjudicated by taking a similar view as we have noted hereinabove.
31. In the back drop of this it has to be seen as to whether the appellants had voluntarily delivered the possession of the land or not. Relying upon Annexure-T dated 18-8-1978 the learned Single Judge was pursuaded to hold that the delivery of possession on behalf of the appellant was voluntary. Annexure-T which is reproduced herein under for the purpose of convenience:
"L.A.C. Nos. 2 and 3 : 1976-77 In the presence of Revenue Inspector, Special Land Acquisition Officer of Bangalore Development Authority:
Mahazar got written by undersigned assembled near Survey No. 174:7 in Kethamaranhalli Village, Yeshwanthapura Hobli, Bangalore North Taluk-
The land in Survey Numbers 174 and 175 of Kethamaranahalli Village, acquired for the purpose of Mahalaxmi Layout Further Extension, and award has also been passed has been handed over to the Bangalore Development Authority. The contents of the Authority letter issued by the Special Land Acquisition Officer in L.A.C. Nos. 2 and 3 of 1976-77 to the said effect has been read over to us. The land has been measured by the above Revenue Inspector today. Surveyor has measured the land and has furnished the boundaries have been shown to the Junior Engineer of Engineering Department. As per this measurement out of total extent of 8 Acres 16 guntas only 6-A 7-G of land has been given possession in advance. There is 8.16 acres. The respective owners were present near the property. The land in Survey Nos. 174 and 175 along with improvements have been taken possession and handed over to the possession of the Junior Engineer in charge of the said layout. Therefore, this Mahazar is got written to the effect that henceforth the said land will be in the possession of B.D.A. Read over. Admitted to be correct and we have signed hereunder:
The extent mentioned hereunder has been voluntarily taken possession subject to verification of title and extent.....
Balagopalan, Advocate' for M/s. Mohan Meakings Breweries Limited and Mysore Food Products Limited.
18-8-1978 Sd/- Land owners Sd/- Village Mahazar witnesses.
Sd/- 18-8-1978.
Details of Survey No. 174:
1.
Honge tree (big) 15 years Firewood 4 Carts load
2. Honge plants (small) 27 "
3. Dried cotton tree 120 "
3 Carts load Firewood.
4. Bilwara tree 120 "
3 Carts load Firewood.
5. Jack fruit tree 315 "
1 Cart load Firewood
6. Silver oak 213 "
1 Cart load Firewood
7. Nilagiri tree 715 "
5 Carts load Firewoods Revenue Supervisor In Survey No. 175
1. Honge mara 215 years 5 Carts load Firewoood.
In my presence.
Sd/-
K.S. Suryanarayana Raju, R.I. Revenue Inspector, Bangalore.
Out of the above Sy.
Nos. 174 and 175 of Kethamaranahalli in land measuring 6.07 has been handed over to EE(W) through AE(W) on 18-8-1978.
Sd/-
K.S. Suryanarayana Raju R.I. 18-8-1978 The boundary of Sy.
Nos. 174 and 175 of Kethamaranahalli Village measuring an extent of 6-A 7-G has been shown to AE(W) on 18-8-1978.
Possession taken on 18-8-1978.
Sd/-18-8-1978 Sd/- R.Veeraiah Supt. 18-8-1978 Sd/- Asst. Engineer, No. 3 Sub-Division (West), BDA Bangalore".
32. The appellants never alleged that Annexure-T had not voluntarily been executed or that the person executing the said document was not legally authorised. It is also held on the record that the persons other than appellants had too voluntarily surrendered the possession as was noticed by the learned Single Judge while deciding Writ Petition No. 7239 of 1983, On the basis of the pleadings the learned Single Judge in that case has held:
"On the facts of this case, following things emerge.
(i) Possession was taken on 29th May, 1978;
(ii) Road formation was done within two months of the final declaration;
(iii) Prior to 1982, 170 sites were formed".
33. The appellants neither in their grounds of revision filed under Section 63 of the Act nor in the written statement filed in reply to the Writ Petition Nos. 5490 to 5494 of 1991 nor even in their Writ Petition Nos. 6446 to 6456 of 1989 alleged that the delivery of possession vide Annexure-T was not voluntary. In view of this position it can safely be said that the possession of the land sought to be acquired was delivered by the representative of the appellant at their instance which was voluntary and with their consent. The valid delivery of possession debarred the Government from initiating action under Section 48 of the Land Acquisition Act.
34. Even if it is conceded for the sake of arguments that the possession contemplated for the basis of Section 48 of the Land Acquisition Act was such possession which was taken up after the award yet the appellants do not have any case as projected by them in their appeal or canvassed before us during argument. The admitted position is that preliminary notification under the City of Bangalore Improvement Trust Act, 1945 was issued on 25-3-1975 which was followed by final notification dated 15-7-1977 published in the Karnataka Gazette dated 4-8- 1977. Possession or the land to the extent of 6 acres U7 guntas vide Annexure-T is shown to have been delivered and taken on 18-8-1978. The final award regarding acquisition is dated 24-12-1985 which was signed by the Collector on 27-1-1986 and approved by the Government on 8-5-1986. The possession of rest of the land is shown to have been taken on 16-6-1986. A narration of the facts clearly show that delivery of the possession of the whole of the acquired land was completed latest by 16-6-1986. In their reply the respondent 2 specifically stated:
"The land in Survey Nos. 174 and 175 of Kethamaranahalli along with several other lands have been notified and acquired by this respondent for formation of further extension of Mahalaxmi Layout vide preliminary notification dated 25-3-1975 and final notification No. dated 15-7-1977. Thereafter, award has been passed and the same has been approved by the Government on 8-5-1986. The amount of compensation has been deposited in the Principal City Civil Judge Court, Bangalore, for adjudication under Sections 30 and 31(2) of the Land Acquisition Act on 5-3-1987 vide cheque No. 5461337 dated 9-2-1987. Possession of the land has been taken and handed over to the Engineering Section from 24-12- 1977 to 16-6-1986 on different dates. The area in question measures 11 acres 16 guntas which was acquired by this respondent, out of which in an extent of 6 acres 15 guntas only, this respondent has formed 76 sites of different dimensions among them 22 have been allotted and 8 sites have been auctioned. Houses have also been constructed on 7 sites. 8 sites have been auctioned in public and they fell within the area in question and are vacant".
35. Site plans attached as Annexure-AF denote the areas handed over by Mysore Fruits Products Limited and Mohan Meakins Limited, it also denotes the areas allotted to various writ petitioners and the houses existing on the lands voluntarily handed over to the B.D.A. It is also shown that in the plan in and around the disputed land numerous residential premises have been constructed. The allotment of sites and construction of the houses cannot be conceived of in the absence of valid delivery of possession.
36. It is also not disputed that the appellants had filed revision petition under Section 63 of the Act at the earliest on 20-8-1989 when admittedly, the actual possession of the land stood delivered to the B.D.A., either voluntarily or by operation of law after the passing of the final award under the provisions of the Land Acquisition Act. The re-lavent date to determine the possession for the purposes of the applicability of Section 48 of the L,A. Act is 20-8-1989 and not 18-8-1978 as was urged and argued before us. The possession delivered or taken at any time prior to 16-6-1986 in any manner stood regularised on that date because before that date the final award passed under the L.A. Act stood approved by the Government on 3-5-1986.
37. A perusal of the Act would clearly show that it is a complete Code in itself so far as the developmental schemes are concerned and initia-
tion of action under Section 63 of the Act was not warranted as the same would have resulted in the frustration of the scheme which could not have resorted to by any purported exercise of revisional jurisdiction under Section 63 of the Act. The learned Single Judge dealt with this aspect of the matter and rightly held:
"The first respondent has completely overlooked the fact while passing the impugned order, that the sites in question are situated in a layout which is part of the Development Scheme sanctioned by the first respondent itself under Section 18 of the B.D.A. Act. It was pursuant to that scheme the lands in question have been acquired and layout formed. Therefore, there was no question of the first respondent examining the legality or propriety of any order or proceedings of the second respondent under Section 63 of the B.D.A. Act. The sanction of scheme by the first respondent is a statutory function and it cannot be nullified in purported exercise of revisionary power under Section 63 of the B.D.A. Act".
There is one more reason for striking down the impugned order. The impugned order has been made long after the scheme has been implemented and sites allotted and possession delivered to the petitioners and others. In Shivappa Veerappa Masur v Shriman Maharaj Niranjan Jagadguru Mallikarjuna Murugarajendra Swamiji and Another, a Division Bench of this Court while considering the power of revision under Section 70-A of the Bombay Public Trusts Act, 1950 has ruled thus:
"Sri S.G. Sundara Swamy, learned Counsel for the appellant, did not contend that there is any period of limitation prescribed for aggrieved persons to approach the Revisional Authority under Section 70-A of the Act. But he strenuously contended and in our opinion rightly that even in the absence of limitation, the power of revision should be exercised within a reasonable time as ruled by the Supreme Court in State of Gujarat v Patel Raghav Natha and S.B. Gurbaksh Singh v Union of India. In Patel Raghav Nath's case, the Supreme Court considering whether the revising Authority could exercise the power of revision where no period of limitation had been prescribed under the Bombay Land Revenue Code held thus:
"11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised".
In S.S. Gurubaksh Singh's case, supra, the Supreme Court while considering the exercise of revisional power in the absence of period of limitation under the Sales Tax Act held thus:
"15. Apropos the fourth and the last submission of the appellant, suffice it to say that even assuming that the revisional power cannot be exercised suo motu after an unduly long delay, on the facts of this case it is plain that it was not so done. Within a few months of the passing of the appellants order by the Assistant Commissioner, the Commissioner proceeded to revise and revised the said order. There was no undue or unreasonable delay made by the Commissioner. It may be stated here that an appeal has to be filed by an assessee within the prescribed time and so also a time limit has been prescribed for the assessee to move in revision. The appellate or the revisional powers in an appeal or revision filed by an assessee can be exercised in due course. No time limit has been prescribed for it. It may well be that for an exercise of the suo motu power of revision also, the Revisional Authority has to initiate the proceedings within a reasonable time. Any unreasonable delay in exercise may affect its validity. What is a reasonable time, however, will depend upon the facts of each case".
It is seen from the above ruling of the Supreme Court that the power of revision even in the absence of a period of limitation prescribed by the relevant statute, is required to be exercised by the appropriate Revising Authority within a reasonable time and that any unreasonable delay in the exercise of the power of revision will affect the validity of the order of the Revising Authority. As to what is a reasonable time depends upon the facts and circumstances of each case".
Therefore, even assuming that the second respondent had the power to act under Section 63 of the B.D.A. Act, the impugned order is liable to be set aside on the ground that the same has not been made within reasonable time".
38. On the basis of the elaborate discussion held hereinabove it can safely be concluded that:
(i) The provisions of Section 63 of the Act were not applicable in the case and that the impugned order at Annexure-P could not be related to any valid Authority of law;
(ii) The possession of the land in dispute had voluntarily been surrendered by the appellants and legally taken by the respondents before the initiation of the process for invoking the jurisdiction under Section 48 of the Land Acquisition Act;
(iii) Alternatively, the legal and actual physical possession of the land stood completely transferred in favour of the B.D.A. latest by 16-6-1986 i.e., admittedly before the filing of the revision petition on 20-8-1989 in terms of Section 63 of the Act;
(iv) The exercise of power under Section 63 of the Act was contrary to the scheme of the Act which resulted in nullifying the developmental schemes sanctioned by the B.D.A. under Section 18 of the Act;
(v) After the passing of the judgment of the learned Single Judge both the State and the B.D.A. accepted the verdict of the Court and chose not to file the appeal;
(vi) That after the delivery of possession various sites were allotted to the respondents herein and many other persons who were not impleaded as parties in the litigation but are surely to be adversely affected if final order in terms of Section 48 of the L.A. Act is passed;
(vii) The passing of the order under Section 48 of the L.A. Act would amount to authorising the existence of an industrial unit in a thickly populated area after the construction of various residential sites; and that
(viii) Besides the original writ petitioners, the other respondents and allottees of the sites have not agreed to the withdrawal of the writ petition or setting aside of the judgment of the learned Single Judge.
39. On the basis of the above noted proved facts the present appeals are liable to be dismissed by confirming the judgment of the learned Single Judge for the reasons detailed in his judgment and enumerated hereinabove in our judgment.
40. Otherwise also the acceptance or rejection of the appeal may not be very material in this case because the State Government has admittedly not yet exercised its power under Section 48 of the L.A. Act. They have also declared before us that in obedience to the direction of the learned Single Judge it has been decided not to take any further action in the matter in terms of the impugned order at Annexure-P. Once the Government itself has decided not to take any further action in the matter, no useful purpose would be served by accepting the appeal and thereby facilitating further litigation. Even if the appeal is accepted and the judgment of the learned Single Judge is set aside, the appellants would have to initiate further action for compelling the State to pass appropriate orders under Section 48 of the L.A. Act on the basis of Annexure-P. The admitted and acknowledged position of law is that as the Government cannot be forced to acquire the land they can also not be forced to denotify the acquired land by passing orders in terms of Section 48 of the L.A. Act. This Court in exercise of its power under Article 226 of the Constitution of India is not expected to issue futile writs. It is also not expected to pass orders which only encourage further litigation. Interests of the large majority of the allottees cannot be jeopardised at the instance of the persons like the appellants whose main and sole object is to earn profits and thereby inflate their money bags.
The pleas of the appellant of acquiring foreign exchange on the basis of being 100% exporters cannot be made a ground to sacrifice the interests of the large sections of the society. The prayers made in the appeals are therefore without any substance.
41. For all the reasons noted hereinabove the present appeals are dismissed with costs assessed at Rs. 10,000/-.
ORDER S. Rajeiidra Babu, J.
Dated : 19-9-1996
1. I had the advantage of reading the order delivered just now by the learned Chief Justice. I agree with him in the conclusions reached and the reasons adopted thereto. However, considering the interesting questions raised by the learned Counsel for the appellants, I would like to briefly touch upon one or two of the same in my own words.
2. One of the arguments put forth before us by Sri Parasaran, learned Counsel for the appellants, is that even though it may not be permissible under Section 63 of the B.D.A. Act to exercise powers of revision and pass an order withdrawing the acquisition, still such a power is available under Section 48 of the L.A. Act which governs the acquisition of the lands under the B.D.A. Act in terms of Section 36 thereof.
3. The linchpin in the argument of Sri Parasaran is principle enunciated in M/s. Jetmull Bojraj's case, supra, that under Section 48 of the L.A. Act possession taken in a mode other than what is contemplated under Section 16 or 17 would not be possession and therefore power to retreat or resile from acquisition of land of which the possession is taken in any other mode. He further submitted that in this case possession having been voluntarily surrendered in terms of Annexure-T, it would not be possession for purposes of Section 16 or 17 of the L.A. Act and therefore the land would not vest in the State. Thus he argued that as long as the land did not vest in the State it is still open to the State to resile from acquisition proceedings. To a specific question posed by the Court that even though voluntary surrender of possession of land may have been accepted by the acquisition authorities prior to passing of the award, whether it would still be necessary to take possession of the land once over again, the learned Counsel very fairly respondent that it may not be necessary if the acquisition proceedings had become complete.
4. Section 48(1) of the L.A. Act provides that the Government shall be at liberty to withdraw from acquisition any land of which possession has not been taken except in case provided under Section 36 thereof. To understand the objective behind the provision of Section 48 of L.A. Act, it may be necessary to briefly refer to the history of the enactment of the said provision. The Select Committee, in para 11 of their second report dated 23rd March, 1893 observed thus:
"We have altered the terms of the first clause of Section 48 which gives certain powers to Government to withdraw from a contemplated acquisition of land so as to make it clear that this withdrawal may be made at any time before possession is taken but not afterwards. Instances were quoted in a preliminary report in which the Collector was proved by the Judge's award to have been seriously misled as to the value of the land and in which the Government would not have acquired the land had it received a correct appraisement. We think that a Government which provides compensation from the taxes of the Empire should have larger powers of withdrawal than are given by the present Act, but we are of opinion that no such power should be given after possession has once been taken and that each Local Government must protect itself by executive instructions to Collectors to refrain from taking possession until after the award of the Judge, in every case in which there is a material difference between the Collector and the owner as to the value of the property".
The circumstances noticed by the Select Committee which preceded the enactment of Section 48 of the Act in the present form was to protect the State which provides compensation from the State Exchequer should have larger powers of withdrawal and that no such power should be exercised after possession has once been taken. The Collectors should postpone taking of possession until award is passed to enable the State to make up its mind as to whether it would be necessary to spend that much of money to acquire the land and the position as to what would be the amount payable by way of compensation would become clear only on a Court making an award inasmuch as the award made by the Collector is only an offer and there may be material difference between the offer made by the Collector and the owner as to the value of the property. Therefore, what is of essence in determining whether the State can withdraw from acquisition is that whether property has vested in the State or not to retrace the steps initiated for acquisition. When Collector makes an award under Section 11 of the L.A. Act and takes possession of the land the effect of Section 16 of L.A. Act is that the land vests absolutely in the Government free from encumbrance. If the two events of passing the award and taking possession though not necessarily in that order have taken place, we must hold that there is possession in terms of Section 16 of the Act.
5. Voluntary surrender of possession is valid in law and there is no dispute on this aspect of the matter. What the learned Counsel articulated before the Court is that seven though there may be valid possession with the Government prior to passing of the award, still it is not possession of the property in question for purpose of Section 48 of the Act. On the analysis made by me on the provisions of Section 48 of the Act with reference to its history, it is clear that the purpose of enabling the State to withdraw or resile from acquisition until possession is taken is to find out whether the proceedings in acquisition are complete or not. The proceedings in acquisition would become complete once the award is passed and possession taken. Sometimes possession may be taken earlier to passing of the award. Even in such case, if award is passed, necessarily it would mean that such possession is in terms of Section 11 of the Act. The decision in M/s. Jetmull Bhojraj's case, supra, on which the learned Counsel relied upon cannot be of much assistance to the appellants inasmuch as in that decision the Supreme Court was concerned with a case where the Government under colour of title had taken possession of the lands in question which was unlawful and therefore it was competent to withdraw from acquisition. Unlawful possession can never be possession in the eye of law. If that is so, such possession could not have been contemplated under Section 48 of the Act at all. If possession contemplated under Section 48 is lawful possession, a voluntary surrender of possession is also lawful possession and the acquisition proceedings in that regard had become complete by reason of passing of the award and nothing more had to be done in regard to acquisition of the land. Once award is passed and possession taken, payment of compensation or claims regarding enhancement thereof are only incidental matters connected with acquisition which do not affect the vesting of the property in the State. Courts are not inclined to allow matters to be unsettled by reason of actions of parties. When once the proceedings in acquisition are complete by reason of passing of the award and possession of land in question being taken, to denotify the same from acquisition, if permitted, would unsettle the position which course is opposed to Section 48 of the Act. The upshot of the discussion made above is that there is complete compliance with Section 16 of the L.A. Act and thus Section 48 of the L.A. Act is not at all available to withdraw from acquisition. Necessarily the said provision precludes the State from retreating or withdrawing the acquisition of the land in question award having been passed and possession of property taken.
6. There is one other aspect to which I would like to advert. These appeals arise out of a common order made by the learned Single Judge in a batch of 17 writ petitions. Against that order 17 writ appeals are filed by a common memorandum of appeal. Respondents 3 to 8 who are petitioners in Writ Petition Nos. 5490 to 5494 of 1991 and Writ Petition No. 27338 of 1991 have filed a memo stating that they would not press the writ petitions and as a consequence they pray that the order of the learned Single Judge be set aside and the writ petitions dismissed thereby allowing the writ appeals. When there are several appeals before the Court arising out of a common order, even though some of the parties do not want to pursue with the matter and wish to abandon the same, still when the matter requires to be examined at the instance of other parties who contest the matter and out of 17 appeals it is only in case of respondents 3 to 8 such a request had been made and in regard to other writ petitioners who are respondents before us, no such memo having been filed seeking withdrawal of the writ petitions even at this stage, necessarily the matters in dispute require to be examined and a decision rendered thereon. In such an event, when the entire matter has been examined and finding given on each one of the disputed questions, we are not inclined to allow their prayer for withdrawal of petitions. What I have stated above is only to supplement what has fallen from the learned Chief Justice.