Point of Law: Section 48(1) of the Act and in view of the well settled legal position emerging from interpretation of Section 48(1) of the Act by the Supreme Court, it is clear as noon day, that since possession of the land in question was taken by the State Government, the power under Section 48(1) of the Act could not have been invoked.

JUDGMENT :

ALOK ARADHE, J.

In this intra court appeal, the appellant -Trust has assailed the validity of the order dated 11.06.2012 passed by the learned Single Judge. In order to appreciate the appellant’s challenge to the impugned order, relevant facts need mention which are stated hereinafter.

2. The lands measuring 6 acres and 31 guntas including land measuring 33 guntas of Survey No. 24 of Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk (land in question) were notified for acquisition under section 17(1) of the Bangalore Development Authority Act, 1976 (hereinafter referred to as the 1976 Act', for short) vide notification dated 23.03.1988. Thereafter, a final notification under Section 19(1) of the 1976 Act was issued on 19.10.1994. The vendors of the appellant purchased the land in question on 27.09.1995 by 5 registered sale deeds. Thereafter, an award was passed on 28.09.1995. The possession of the land is stated to have been taken on 03.02.1996. The Trust appears to have filed an application to the State Government seeking withdrawal of the land from acquisition proceeding in respect of land measuring 33 guntas. Thereupon the State Government by a notification dated 08.06.2010 issued under section 48(1) of the Land Acquisition Act, 1894 withdrew the land measuring 33 guntas from acquisition proceedings. The Trust thereafter has purchased the land in question vide registered sale deed dated 30.08.2010.

3. The said notification was challenged by the persons to whom the land in question was allotted in respect of a residential layout formed by the Bangalore Development Authority namely J.P. Nagar 8th Stage layout, Bangalore. The learned Single Judge vide order dated 11.06.2012, after perusal of the record produced before him inter alia held that possession of the land in question was taken over by the competent authority and mere non-issuance of a notification under 16(2) of the Act is not a ground for holding that possession of the land has not been taken. It was further held that since the possession of the land in question was taken, therefore it was not open to the Government to invoke the powers under section 48(1) of the Act for withdrawal of land from acquisition, as the land has vested in the State Government. It was further held that the scheme framed in respect of land in question has not lapsed under Section 27 of the 1976 Act. Learned Single Judge accordingly quashed the notification dated 08.06.2010 in respect of the land in question. In the aforesaid factual background, this appeal has been filed by the Trust.

4. Learned counsel for the appellant, while inviting the attention of this Court to Section 16 of the Act, submitted that possession of land in question has not been taken by the State Government and the Trust is in possession of land in question. It is argued that the Trust is in possession of land in question and has constructed the school. The Trust has been granted NOC by the State Government on 23.06.2010 and an order dated 07.05.2011 by the Commissioner of Public Instructions, by which permission has been granted to the Trust to run the school. It is pointed out that the Trust is running a school. It is contended that the State Government has rightly exercised powers under Section 48(1) of the 1894 Act, as the possession of land in question was not taken. It is also pointed out that prayer in the writ petition was to restore possession, therefore, it is evident that allottees from Bangalore Development Authority were not in possession of the land in question and reliefs which were claimed by petitioners in writ petitions could not be claimed in law in a writ proceeding.

5. It is further submitted that the learned Single Judge grossly erred in holding that the possession of the land in question was taken on 03.02.1996. It ought to have been appreciated that Mahazar was a forged documen