S. H. SHETH, S. L. TALATI, J.

( 1 ) THE petitioners are the owners of city Survey Nos. 1559 1560 1561 1562 1563 1564 1565 1567 and 1574 Part situate in Kalupur Ward in the city of Ahmedabad. Some of these survey numbers had superstructures standing on them. On 30th May 1957 the Government of Bombay issued a notification under sec. 4 of the Land Acquisition Act for the acquisition of these lands. The public purpose which was stated in the notification was that they were required for a municipal play ground. On 13th March 1955 notification under sec. 6 was issued Land Acquisition Officer made award of compensation on 30th June 1960. There after there was a reference to the City Civil Court at Ahmedabad under sec. 18 of the Act. The City Civil Court enhanced the compensation awarded by the Land Acquisition Officer. The award made by the City Civil Court at Ahmedabad was challenged by the State Government in this High Court. This Court allowed the appeal and modified the award. On 11th October 1960 and 12th November 1962 the State Government took possession of the lands in question except that of survey Nos. 1559 1560 1561 1562 and 1565 part. The possession of the above noted survey numbers could not be taken because tenants occupying those survey numbers filed suits in the City Civil Court at Ahmedabad which were ultimately dismissed by the Court. Thereafter writ petitions were filed in this Court by the tenants. However those writ petitions were ultimately withdrawn. Thereafter the State Government of 5th February 1977 made an order withdrawing from the acquisition of the aforesaid survey numbers of which possession was not taken. On 19th February 1977 that notification was published.

( 2 ) IT is that notification which is challenged in this petition.

( 3 ) THE first question which has been raised by Mr. Shah who appears on behalf of the petitioners is that under sec. 48 of the Land Acquisition Act 1894 the State Government cannot withdraw from acquisition of the aforesaid survey numbers of which possession has not been taken. Sub sec. (1) of sec. 48 provides as follows:-EXCEPT in the case provided for in sec. 36 the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken this provision makes it abundantly clear that except in two cases the State Government is at liberty to withdraw from the acquisition of any land. Under sub-sec. (1) of sec. 48 the State Government cannot withdraw from the acquisition of any land of which possession has been taken. Secondly under proviso to sec. 36 it cannot withdraw from the acquisition of a land which has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of the acquisition. The petitioners have made no averments in this petition to show that the survey numb rs from the acquisition of which the State Government has withdrawn have become permanently unfit for being used for the purpose for which they were used prior to the commencement of their acquisition. Therefore sec. 36 does not hit the impugned notification. It is an admitted fact that the State Government has not taken possession of the aforesaid survey numbers. Therefore the second exception to the rule which sub-sec. (1) of sec. 48 lays down does not come into play in the instant case. It is therefore clear that under sub-sec. (1) of sec. 48 the State Government can withdraw from the acquisition of the city survey numbers which have been specified in the notification published on 19th February 1977.

( 4 ) MR. Shah who appears on behalf of the petitioners has argued that it is not open to the State Government to withdraw from acquisition after a lapse of about 20 years from the date of the issuance of notification under sec. 4. There is nothing in sub-sec (1) of sec. 48 which supports the contention raised by Mr. Shah.

( 5 ) MR. Shah has further argued that the impugned withdrawal from the acquisition is mala fide in cha

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