Order
1. The Government in exercising their power under Section 4(1) read with Section 17(1) of the Land Acquisition Act, 1894, published a notification on 10-3-1959 acquiring 3500 acres of land dispensing with the inquiry under Section 5-A. Thereafter the Government has issued a notification on 2-8-1966 under Section 48(1) of the Land Acquisition Act withdrawing from acquisition of an extent of 15.54 acres and other two notifications on 16-2-1968 withdrawing from the entire acquisition in respect of large and the smaller blocks respectively. The appellants challenged the first notification dated 2-8-1966 in Civil Writ Petition No. 435 of 1966. Therein the High Court found that there is no proof of taking possession from the appellants. Consequently the writ petition was dismissed. The appellants challenged in this Court the above decision and in M/s Jethmull Bhojraj v. State of Bihar (1972) 1 SCC 714, AIR 1972 SC 1363, this Court upheld the finding of the High Court that the respondent did not take possession of the lands from the appellants. Subsequently the two C.J.W.Ps Nos. 252-253/1986 were also dismissed by the High Court holding thus:
“Learned counsel for the petitioners conceded that there is no document on the record showing that possession had been taken over by the State Government in pursuance of the alleged order under Section 17(1) of the Act.”
2. The learned counsel for the appellants sought to rely on certain documents namely the selfsame notice issued under Section 17(1) calling upon the appellants to deliver possession of the land within 15 days from the date of the receipt of the notification under Section 17(1). The stand taken in the High Court by the Government was that the procedure in vogue in Bihar State was that there should be an order passed by the Minister directing the officer concerned to take possession of the property but there was no such order passed by the Minister. Consequently possession was not taken. That stand was accepted by the High Court and in view of the concession made by the appellants that there is no recorded evidence that possession was taken from them, the High Court held that the Government is at liberty to withdraw from acquisition, by a notification issued under Section 48(1) of the Act.
3. Section 48(1) postulates thus:
“48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.— (1) Except in the case provided for in Section 36 the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.”
4. The Act provides two modes of taking over possession of the acquired land pursuant to the notification under Section 4(1). The first is covered by Section 16 of the Act, namely, where the urgency clause under Section 17(1) was not invoked and proceedings were taken under Section 4 read with Section 6 and an award was made under Section 11. The Collector would, then, take possession of the land under Section 16 which shall “thereupon vest absolutely in the Government free from all encumbrances”. The second mode of taking over possession is that where the inquiry under Section 5-A was dispensed with exercising the power under Section 17(1), after service of the notice under Section 9(1) calling upon the owner to deliver possession on expiry of fifteen days and the Collector to take possession in pursuance thereof. The land thereon stands vested in the Government absolutely free from all encumbrances. The title of the owner stands divested. Thereafter the Government have no power under Section 48(1) to withdraw from the acquisition. The finding recorded by the High Court is that there is no evidence to show that the possession was taken from the appellants and the conclusion is that the possession was not taken by the Government. Hence, the Government was at liberty to withdraw, from acquisition by exercising power under Section 48(1) of the Act. Moreover the previous decision operates as res judicata and in the later proceedings such decision cannot be reopened on the ground that certain record was not placed before the High Court on the earlier occasion. The appeals are accordingly dismissed. No costs.