IMPORTANT POINT
Acquired land cannot be handed over to anybody without taking physical possession. Symbolic possession is not enough.

JUDGMENT :

Kurian, J.

1. We have heard learned counsel for the parties.

2. The appellants are aggrieved since their request for release of 1.23 acres of land falling in Khasra No. 23/8/1, 8/2, 9/2, 12/2 and 13/1 in village Sahaul, Tehsil and District Gurgaon and .25 acres of land falling I Khasra No. 23/10/1 in the same village has been rejected.

3. Placing reliance on the letter of the Finance Minister of Haryana, for releasing lands coming under Lal Dora, the appellants approached the High Powered Committee. It appears that the High Powered Committee turned down the request on the ground that possession of the property had already been taken, pursuant to Award passed on 12.3.2004 and that the same had already been handed over to Haryana Urban Development Authority (in short 'the HUDA'). That decision of the High Powered Committee was challenged before the High Court leading to the impugned judgments.

4. The High Court endorsed the view taken by the High Powered Committee and has held that once the acquired land has already been taken possession of, there is no question of release under Section 48 of the Land Acquisition Act, 1894 (in short 'the Act').

5. Learned counsel appearing for the State sought to establish that the land had already been taken possession of, by inviting our attention to the order passed by the High Powered Committee on 28.3.2008, wherein it is stated as follows :-

“8. In fact the petitioner had two pockets of land measuring 1.23 acres falling in Khasra No. 23/8/1, 8/2, 9/2, 12/2, 13/1 and 0.25 acres falling in Khasra No. 23/10/1. The applicants had applied for change of land use of these khasra numbers for setting up of information technology unit on 5.12.2005 in the office of Director, Town and Country Planning. The said application was returned vide No. G-1721-AD(B)-2006/9881 dated 21.4.2006 mentioning that the applied land is under acquisition and the applicants were asked to get the land released and then apply for change of land use permission. The land is already acquired and HUDA has taken a possession of land of other land owners vide Rapat Rojnamcha dated 12.3.2004. It was also informed by Chief Town Planner (HUDA) that HUDA has planned industrial plots on this land and allotted 11 No. such plots. It was noted that land of the applicant is lying vacant. Since as mentioned above the land is awarded, possession of the adjoining land stands taken and also stands allotted by HUDA, therefore, the land of the petitioner mentioned in CWP No. 10294/2004 and 14669 of 2005 cannot be considered for release.”

6. We find it difficult to appreciate the contention of the learned counsel for the State, that the High Powered Committee had taken note of the fact of taking possession. On the other hand, what is revealed from the order is that the lands which were taken possession and handed over to HUDA was that of other land owners. The stand in the counter affidavit is not clear on the aspect of taking possession. On the other hand, the appellants assert that they have never been dispossessed from the land.

7. In the above circumstances, this Court on 7th July, 2010 passed the following order :-

“Learned counsel for the petitioners submits that in pursuance of the orders of the Finance Minister of Haryana, issued in the year 1981, two acres of land of Lal Dora on all four sides of the lands in Village Sarhaul, Tehsil and District Gurgaon was left free from acquisition and this has been confirmed by the Land Acquisition Officer, Urban Estate, Gurgaon, Haryana by letter dated 2.3.2005 and by the District Town Planner Enforcement, Gurgaon in his letter dated 9.6.2006 addressed to Millennium Industries Private Limited who are neighbours of petitioners. He also submits that on the basis of the said direction, the land of Millennium Industries Private Limited has been left out of acquisition. It is submitted that the land of the petitioners also falls within the two acres area around the village as in the case of Millennium I