LT GOVERNOR OF HIMACHAL PRADESH Vs. AVINASH SHARMA

JUDGEMENT

(1.) The Deputy Commissioner, Mahasu, apparently acting on the request of the Air Force authorities took possession on December 23, 1963, of an area of land in village Galu Chak. That area included 8-14-0 bighas belonging to the respondent. The record does not disclose the authority under which possession of the land was taken and delivered over to the Air Force. There was correspondence between the Air Force Authorities and the State of Himachal Pradesh in regard to the land occupied by the Air Force and ultimately on March 31, 1964, a notification under S. 4 of the Land Acquisition Act, 1894, was published notifying that the area of land (including the land of the respondent) was likely to be needed by the State Government for a public purpose. By a composite notification under Section 6 and Section 17 (1) and (4) dated May 16, 1964, the State of Himachal Pradesh declared that the land was needed for a public purpose, that since it was required urgent, the enquiry under Section 5-A of the Act was dispensed with, and that possession of the land will be taken under Section 17 (1) of the Act after the expiry of fifteen days from the publication of the notice under S. 9 (1) of the Act. The Collector of Mahasu then served notices under S. 9 of the Land Acquisition Act in June 1964. On October 5, 1965, the Government of Himachal Pradesh published an order cancelling the notification dated March 31, 1964, and May 16, 1964 for acquisition of land for a public purpose.

(2.) The respondent then presented a petition before the Judicial Commissioner, Himachal Pradesh, for a writ quashing the notification dated October 5, 1965, withdrawing and cancelling the previous notifications and for writ of mandamus directing the authorities of the State Government to act according to law and discharge the duties cast by law upon them in the matter of determination of compensation for compulsory and urgent acquisition. The petition was granted by the Judicial Commissioner. In the view of the Judicial Commissioner when the notification under S. 17 (1) and (4) was issued, and possession was taken by the State Government, the land vested in the Government and it was not competent to the State Government thereafter to withdraw the notifications in exercise of the power under S. 48 of the Land Acquisition Act. Against the order of the Judicial Commissioner, this appeal has been preferred with special leave.

(3.) The Solicitor-General appearing on behalf of the State contended that under S. 21 of the General Clauses Act the State has the power to cancel the notifications at any time, and that S. 48 of the Land Acquisition Act did not trench upon that power. Under the Land Acquisition Act a notification under S. 4 of the Act may be issued by the appropriate Government that any land is needed or is likely to be needed for a public purpose. Unless the inquiry under S. 5-A is dispensed with, any person interested in the land notified may object to the acquisition of the land, or of any land in the locality. On the objections made, the Collector holds an inquiry after giving the object or an opportunity of being heard, and makes a report. The appropriate Government many, if satisfied, after considering the report, if any, of the Collector under S. 5-A (2), make a declaration that the land is needed for a public purpose. The declaration is conclusive evidence that the land is needed for a public purpose. Then follows an inquiry as to the amount of compensation payable to the owner of the land and to the other claimants. If the land is waste or arable, the Government may in case of urgency dispense with the inquiry under Section 5-A and direct that possession may be taken on the expiration of fifteen days after publication of the notice under S. 9 (1) of the Act even though no award of compensation is made by the Collector. When possession is taken the land vests exclusively in the Government free from all encumbrances.