- (1.) PETITIONERS have challenged the order dated 23. 10. 2007 passed by the Secretary, Industrial Development, U. P. , Lucknow rejecting their representation requesting for release of land in question under Section 48 of the Land Acquisition Act, 1894 (hereinafter referred to as the "act" ). The State Gov ernment has rejected request of the petitioners on the ground that since the possession of the land in question was already taken by the State, therefore, land in question cannot be released from acquisition under Section 48 of the Act.
(2.) SRI Ravi Kant, Senior Advocate assisted by SRI Vishnu Gupta, vehemently contended that finding of the respondent No. 1 that the possession of land in question was taken by the respondents is perverse and contrary to material on record and, therefore, the impugned order, having been passed on non-est facts, is liable to be set aside and the respondent No. 1 be required to pass fresh order on the petitioners' representation in accordance with law. On the contrary Sri Zafar Naiyer, learned Additional Advocate General as sisted by learned Standing Counsel appearing on behalf of respondents No. 1 to 3 and Sri Ramendra Pratap Singh, Advocate appearing for respondent No. 4 sub mitted that since the possession of the land in question was taken long back, the application under Section 48 of the Act was not entertainable and, therefore, has rightly been rejected by the respondent No. 1. Sri Ravi Kant, Senior Advocate while assailing the impugned order con tended that it is true that under Section 48 of the Act it is State Government's privilege to de-notify the acquired land or not but once it is found that the order has been passed on incorrect facts or there is error apparent on the face of record with respect to facts and law, as the case may be, or there is a basic fallacy of assumption on which such order has been passed, in such a case an order under Section 48 passed by the State Government is liable to be set aside and the respondent No. 1 would be required to pass a fresh order. He also contended that even otherwise the State Government cannot refuse to de-notify acquired land arbitrarily and if it deny to denotify acquired land it is under obligation to give reasons thereof which are open for judicial review. Relying on the Apex Court decision in E. P. Royappa v. State of T. N. and another, AIR 1974 SC 555, Smt. Maneka Gandhi v. Union of India and another, AIR 1978 SC 597; and Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 he contended that arbitrariness is antitheses of the doctrine of equality enshrined under Article 14 of the Constitution and, therefore, any executive act of the State, if arbitrary, is liable to be set aside. He further contended that in order to show that Section 48 is not attracted in the case in hand, it was incumbent upon the respondents to show that the possession of land in question was actually taken and there is no question of any symbolic possession. In support of the aforesaid submission he placed reliance on the decision of Apex Court in Balwant Narayan Bhagde v. M. D. Bhagwat and others, 1976 (1) SCC 700 and Division Bench decision of this Court in Uma Shankar Dixit v. State of U. P. and others, AIR 1978 All. 194.
(3.) THE respondents, however, disputed the aforesaid submission and said that memorandum or Panchnama prepared by SLAO is sufficient to show that the possession of the land in question was taken and in support thereof reliance is placed on the Apex Court decision in State of T. N, and another v. Mahalakshmi Ammal and others, 1996 (7) SCC 269 and General Manager, Telecommunication and another v. Dr. Madan Mohan Pradhan and others, 1995 Supp. (4) SCC 268. Before considering the rival submissions advanced on behalf of the parties it would be appropriate to have bird eye view of the facts and provisions of Section 48 of the Act, to understand the dispute between the parties.;