1.Leave granted.
2.This appeal is filed against the final judgment ANITA MALHOTRA No.5783 of 2006 whereby the High Court allowed the petition filed by respondent No.1 herein and directed the State Government to issue notification in the official gazette for release of the acquired land from acquisition on the basis of the Revenue Minister’s order dated 10.06.2004 passed under Section 48 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”).
3.In order to appreciate the issues involved in the appeal, it is necessary to set out the factual background of the case in detail. The facts mentioned hereinbelow are taken from the SLP paper books and its List of Dates.
4.Survey No. (Gat. No.210 - measuring around 39 H 26 R and Survey No. 211 measuring around 1 H 23 R-Total land 40 H 49 R) situated at Mauje Wakad, Tehsil Mulshi, District Pune (Maharashtra) was originally owned by the members of one "Deo" family.
5.On 12.03.1970, the State Government acquired this land by issuing a notification under Section 4 of the Act. It was followed by publication of declaration under Section 6 of the Act. The acquisition was for a public purpose, namely, "planned development and utilization of lands in Pimpri Chinchwad Township Area for industrial, commercial and residential purposes”. The development project for which the land was acquired was to be executed through Pimpri Chinchwad New Township Development Authority (for short, called "PCNTDA “) - appellant herein.
6.The Special Land Acquisition Officer (for short, called "SLAO“) then initiated the proceedings under Section 11 of the Act for determination of the compensation payable to the landowners and accordingly passed an award dated 23.09.1986. The SLAO then issued notices to the landowners as required under Section 12 (2) of the Act. Since the landowners did not accept the compensation, the entire amount of compensation was deposited by the SLAO in Revenue Deposit Account of Treasury.
7.The members of “Deo family” (landowners) felt aggrieved by the award dated 23.09.1986 and filed writ petition being W.P. No. 3719/1987 in the High Court at Bombay. This writ petition was dismissed by the High Court by order dated 18.07.1989. The writ petitioners felt aggrieved by the dismissal of their writ petition filed review petition (R.P. No. 3751/1989) before the High Court, which was also dismissed as withdrawn on 08.09.1989. Aggrieved by the dismissal of the writ petition and the review petition, the landowners filed SLP (c) No.12889/1989 in this Court. It was also dismissed as withdrawn on 27.11.1989.
8.In the meantime, on 19.09.1989, the members of “Deo Family” filed an application under Section 48(1) of the Act to the Revenue Minister of the State of Maharashtra and prayed therein for release of their acquired land. During pendency of this application, the landowners filed writ petition (No.36/1990) in the High Court and prayed therein for a direction to the State for deciding their application. By order dated 12.01.1990, the High Court disposed of the writ petition and directed the State to decide the landowners' application in accordance with law.
9.By order dated 07.07.1992, the State Government partly allowed the landowners' application and while releasing the land measuring 29 H 98 R retained the remaining land measuring10 H 51 R for execution of the development project for which the entire land had been acquired. The details of the land retained and released are mentioned hereinbelow: Survey Area Area deleted Area No. covered from remained under acquisition under SLAO H:R acquisition H:R to be given to PCNTDA 210 39 H 26 R 28 H 93 R 10 H 33 R 211 1 H 23 R 1 H 5 R 0 H 18 R Total 40 H 49 R 29 H 98 R 10 H 51 R
10.It appears from the record of the proceedings that after the dismissal of the review petition, the landowners (members of “Deo family”) transferred the acquired land in question to the members of one Co-operative Housing Society called, "Vishnudev Co operative Housing Society" (for short called "VCHS") respondent No.1 herein on or about 25.10.1993.
11.Respondent No.1 (VCHS) claiming to be the owner of the land in question felt aggrieved and filed writ petition (1116/1993) questioning therein the legality of the order of the State dated 07.07.1992 to the extent it declined to release the remaining land measuring 10 H 51 R. The High Court, by order dated 23.03.1993, dismissed the writ petition and upheld the order of the State. Respondent No.1 (VCHS) carried the matter in this Court by filing SLP (C) No.10056/1993. By order dated 26.11.1993, this Court dismissed the SLP. The Divisional Commissioner then passed a final order dated 20.08.1994 under Section 48 (1) of the Act directing therein for deletion of 29 H 98 R from Survey No. 210 and retaining of 10 H 33 R as acquired land for completion of development project. This is how, out of total acquired land, the land measuring 29 H 98 R was released in favour of landowners from the acquisition proceedings and the land measuring 10 H 33 R was retained to enable the State to execute the development project on the said land through the agency of the appellant.
12.Notwithstanding the termination of two rounds of litigation up to this Court, the landowners-VCHS again started third round and filed fresh writ petition (3200/1994) in the High Court and this time prayed therein for deletion of 10 H 55 R from Survey No. 210/1. By order dated 07.09.1994, the High Court dismissed the writ petition. Again the said order, the VCHS filed SLP (C) No.22907/1994 in this Court and the same was dismissed by order dated 10.02.1995.
13.On 30.05.2000, the SLAO took possession of the land bearing Gat. No. 210 (10 H 33 R) and executed panchanama in support thereof. The name of the State Government was accordingly entered in the revenue records at Mutation Entry No. 8212(File No. 7/12) on 21.07.2000. The State Government then handed over the possession of the land in question to PCNTDA on 08.11.2005 to enable them to start the work on the land. It was followed by entry of name of PCNTDA in the revenue records on 19.11.2005.
14.Despite losing the battle in the first, second and third round of litigation, as detailed above, VCHS again renewed their efforts and filed an application under Section 48 (1) of the Act to the Revenue Minister of the State of Maharashtra to start another round of litigation on 20.01.2004. The Revenue Minister on 10.06.2004, however, noted in the file that the land in question be deleted from the acquisition proceedings.
15.It is pertinent to mention here that when the order dated 10.06.2004 was passed, the Code of Conduct was in force in the State of Maharashtra as the assembly elections were to be held in September 2004 in the State of Maharashtra. It is also pertinent to mention that the order of the Revenue Minister ordering deletion of the land was never communicated to the landowners. On 04.11.2004, the State Government directed that all the matters where the orders were not communicated to the parties concerned be placed for fresh consideration for passing appropriate orders. The present being a case where the order was not communicated to the landowners, the new Revenue Minister, who took over the charge from the earlier Minister, directed that the matter relating to the land in question be considered afresh. The VCHS then wrote a letter to the State Government on 06.06.2006 insisting therein for issuance and implementation of the order dated 10.06.2004 passed by the then Revenue Minister but since the Government did not yield to the VCHS insistence, a writ petition (5783/2006) was filed by VCHS on 21.06.2006 in the High Court praying for issuance of mandamus directing the State Government to give effect to the order dated 10.06.2004 passed by the then Revenue Minister and issue appropriate notification in that behalf by releasing the remaining land measuring 10 H 55 R.
16.In this writ petition, the VCHS arrayed only the State Government as party respondent but did not implead PCNTDA (appellant herein). The PCNTDA then filed an application for intervention in the said writ petition which was allowed by directing the VCHS to implead PCNTDA as party respondent in the writ petition.
17.The State and PCNTDA contested the writ petition inter alia on the ground that firstly, the writ petition is not maintainable inasmuch as the entire issue in relation to the land in question has already attained finality thrice in favour of the State, therefore, nothing now remains for further adjudication; Secondly, since possession of the land in question has already been taken over by the State long back on 30.05.2000, the provisions of Section 48 of the Act were not applicable to the case and nor Section 48 could be used for further release of the land from acquisition; and lastly, the so called order dated 10.06.2004 passed by the then Revenue Minister was not an order much less a legal one and more so when it was not communicated to the landowners, it did not create any kind of right in favour of the landowners.
18.By impugned order, the High Court allowed the landowners' writ petition and issued a mandamus directing the State to give effect to the order dated 10.06.2004 passed by the then Revenue Minister. The effect of issuance of mandamus is to release the remaining land measuring 10 H 33 R from the acquisition proceedings in favour of the landowners. It is against this order, PCNTDA filed this appeal by way of special leave in this Court.
19.The question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the writ petition filed by the landowners (VCHS-respondent No.1 herein) and, in consequence, was justified in issuing directions to the State in relation to the land in question.
20.Heard Mr. Arvind Datar, learned senior counsel for the appellant, Ms. Meenakshi Arora, learned senior counsel for respondent No.1 and Mr. Nishant R. Katneshwarkar, learned counsel for respondent Nos. 2 & 3.
21.Mr. Arvind Datar, learned senior counsel appearing for the appellant (PCNTDA) while assailing the legality and correctness of the impugned order has mainly urged six points.
22.In the first place, learned counsel urged that the reasoning and the conclusion arrived at by the High Court in allowing the landowners' writ petition is, on the face of it, legally unsustainable and being wholly perverse deserves to be set aside.
23.In the second place, learned counsel urged that an issue as to whether the land in question was capable of being released or not from the clutches of the acquisition proceedings in the context of Section 48 (1) of the Act had attained finality in the earlier rounds of litigation against the landowners up to this Court, the same could not have been again agitated by filing another application by respondent No.1(landowners) under
24.According to learned counsel, it was not legally permissible to empower the then Revenue Minister to entertain such application.
25.In the third place, learned counsel contended that when the State had admittedly taken possession of the land in question long back on 30.05.2000 strictly in accordance with law as laid down by this Court in Balwant Narayan Bhagde vs. M.D. Bhagwat & Ors. (1976) 1 SCC 700, the provisions of Section 48 of the Act had no application to the facts of the case at hand and neither the then Revenue Minister nor the State had any power to invoke the provisions of Section 48 of the Act to release any part of the land on or after 30.05.2000.
26.In the fourth place, learned counsel contended that the then Revenue Minister, who passed the order dated 10.06.2004 had no power to entertain any such application because admittedly during the relevant time, due to announcement of date of the State Assembly elections (September 2004), the Code of Conduct had come in force which did not permit any Minister to exercise such power.
27.In the fifth place, learned counsel contended
that even otherwise, the so called noting made by
the then Revenue Minister in the file on 10.06.2004
directing release of the land in question from the
acquisition proceedings could never be construed as
an “order" within the meaning of Section 48 of the
Act and nor such noting had any attribute of a legal
order.
28) It was his submission that firstly, such noting
remained only a noting of the then Revenue
Minister, which was never communicated to the
landowners as per the procedure prescribed and
secondly, before it could take the shape of an order
within the meaning of Section 48 of the Act for
being giving effect to, the noting was ordered to be
considered afresh by the State Government by order
dated 04.11.2004.
29) In this way, according to learned counsel, the
so called noting never saw the light of the day and
died its own death in the files creating no right and
interest of any kind in favour of the landowners.
30) In the fifth place, learned counsel contended
that the then Revenue Minister had passed similar
orders alike the one in question in relation to other
survey numbers by directing release of the land
from the clutches of the acquisition proceedings but
all such orders were quashed by the High Court in
the writ petition and those orders were also upheld
by this Court. Learned counsel gave the list of the
cases.
31) In the sixth place, learned counsel contended
that while releasing part of the land vide order dated
20.08.1994 (Annexure-P-24) it was made clear to
the landowners that they would not be entitled to
claim any compensation for the said land. It was,
therefore, urged that reading of the order dated
20.08.1994 would clearly indicate that the releasing
of the part of the land and retaining of the
remaining land was in the nature of a bargain
between the State and the landowners and,
therefore, there did not arise any occasion to further
release of the remaining land in question which was
undoubtedly needed for accomplishing the public
purpose for which it was acquired.
32) In other words, the submission was that
release of part of the land vide order dated
20.08.1994 disentitled the landowners to claim
further release of the remaining land from
acquisition proceedings. It is apart from the fact
that the release of the land due to obtaining its
possession under Section 16 was not possible under
33) It is essentially these submissions, learned
counsel elaborated in his arguments by referring to
the record of the case and the decisions of this
Court.
34) In reply, Ms. Meenakshi Arora, learned senior
counsel supported the impugned order including
its reasoning. It was her submission that the
impugned order is based on proper reasoning and
hence it does not call for any interference. Learned
counsel elaborated her submission by referring to
the documents to support the reasoning of the High
Court.
35) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find force in the submissions of the learned senior
counsel for the appellant.
36) The main questions which arise for
consideration in this appeal are first, whether the
then Revenue Minister, who was purporting to act
for and on behalf of the State, had the power, in the
background facts of this case, to invoke the
provisions of Section 48 of the Act for release of the
acquired land in question from the acquisition
proceedings; Second, whether the State had taken
possession of the acquired land in question on
30.05.2000 and, if so, its effect; and lastly, what is
the true nature of the order dated 10.06.2004.
37) Sections 16 and 48, which are relevant for this
case read as under:
“Section 16
16. Power to take possession- When the
Collector has made an award under section
11, he may take possession of the land,
which shall thereupon vest absolutely in the
Government, free from all encumbrances.
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.
(2) Whenever the Government withdraws
from any such acquisition, the Collector shall
determine the amount of compensation due
for the damage suffered by the owner in
consequence of the notice or of nay
proceedings thereunder, and shall pay such
amount to the person interested, together
with all costs reasonably incurred by him in
the prosecution of the proceedings under this
Act relating to the said land.
(3) The provisions of Part III of this Act shall
apply, so far as may be, to the determination
of the compensation payable under this
section.”
38) Section 48 of the Act gives liberty to the State
to withdraw from the acquisition of any land "of
which possession has not been taken" except in
the cases which fall in Section 36. In other words,
once the possession of the acquired land is taken,
the State has no power to withdraw from the
acquisition because as a result of taking over of the
possession, the acquired land vests with the State
absolutely free from all encumbrances.
39) A fortiori so long as the possession is not taken
of the acquired land, the State is at liberty to
withdraw from the acquisition either partly or fully
depending upon the facts of each case.
40) Section 16 of the Act empowers the Collector
to take possession of the acquired land on passing
of an award under Section 11 of the Act. Once the
Collector takes possession, the acquired land vests
absolutely in the Government free from all
encumbrances as provided therein.
41) The question arose before a Bench of three
Judges of this Court in Balwant Narayan Bhagde
(supra) as to how and in what manner possession of
the acquired land is required to be taken as
provided under Section 16 of the Act. The majority
view speaking through Bhagwati J. (as His Lordship
then was) dealt with this issue succinctly in Para 28
thus:
“28………We think it is enough to state that
when the Government proceeds to take
possession of the land acquired by it under
the Land Acquisition Act, 1894, it must take
actual possession of the land, since all
interests in the land are sought to be
acquired by it. There can be no question of
taking “symbolical” possession in the sense
understood by judicial decisions under the
Code of Civil Procedure. Nor would
possession merely on paper be enough. What
the Act contemplates as a necessary
condition of vesting of the land in the
Government is the taking of actual
possession of the land. How such possession
may be taken would depend on the nature of
the land. Such possession would have to be
taken as the nature of the land admits of.
There can be no hard and fast rule laying
down what act would be sufficient to
constitute taking of possession of land. We
should not, therefore, be taken as laying
down an absolute and inviolable rule that
merely going on the spot and making a
declaration by beat of drum or otherwise
would be sufficient to constitute taking of
possession of land in every case. But here, in
our opinion, since the land was lying fallow
and there was no crop on it at the material
time, the act of the Tehsildar in going on the
spot and inspecting the land for the purpose
of determining what part was waste and
arable and should, therefore, be taken
possession of and determining its extent, was
sufficient to constitute taking of possession.
It appears that the appellant was not present
when this was done by the Tehsildar, but the
presence of the owner or the occupant of the
land is not necessary to effectuate the taking
of possession. It is also not strictly necessary
as a matter of legal requirement that notice
should be given to the owner or the occupant
of the land that possession would be taken at
a particular time, though it may be desirable
where possible, to give such notice before
possession is taken by the authorities, as
that would eliminate the possibility of any
fraudulent or collusive transaction of taking
of mere paper possession, without the
occupant or the owner ever coming to know
of it.”
42) Keeping in view the law laid down in Balwant
Narayan Bhagde (supra), we proceed to examine
the question as to whether the possession of the
remaining acquired land was taken by the State
and, if so, whether it was done in accordance with
the test laid down by this Court.
43) Having perused the Panchanama (Annexure-P
4) dated 30.05.2004, Mutation Entry No. 8212 (file
7/12) (Annexure-P-5), possession receipt
(Annexure-P-12) and Mutation Entry of PCNTDA
(Annexure -P-28/29) relied upon by the State, we
have no hesitation in holding that the State did take
possession of the acquired land in question on
30.05.2000 as per the test laid down by this Court
in Balwant Narayan Bhagde (supra). This we say
for the following reasons.
44) First, the State gave notice to all the co-owners
of the land in question and informed them to
remain present at the time of taking possession by
the SLAO; Second, out of all the co-owners, two,
namely, Chandra Kant Gajanan Dev and
Bhalchandra Chintaman Dev were present at the
time of taking possession. It was sufficient
compliance; Third, possession was taken in the
presence of two witnesses by the SLAO; Fourth,
panchanama evidencing taking of the possession
was duly signed by the witnesses; Fifth, the name of
the State Government was duly entered in the
revenue records after obtaining possession as an
owner; Sixth, the Government, in turn, handed
over the possession of the land to the appellant
(PCNTDA); and Seventh, the name of PCNTDA was
also entered in the revenue records of the land in
question.
45) Once we hold that the possession of the land
in question was taken by the State in accordance
with law on 30.05.2004 from the landowners, we
have no hesitation in holding that the provisions of
Section 48 of the Act were not applicable to the case
at hand. In other words, once it is held that the
possession of the acquired land was with the State,
the land stood vested in the State disentitling the
State to release the land from the acquisition
proceedings by taking recourse to the provisions of
46) A fortiori, the then Revenue Minister had no
power to deal with the land in question in any
manner whatsoever and nor had any power to
invoke the provisions of Section 48 of the Act for
release of the land in question from the clutches of
the acquisition proceedings.
47) This takes us to examine another question
though in the light of our finding on the issue of
possession, it is not necessary for us to examine
this question in detail.
48) The question is whether the order dated
10.06.2004 passed by the then Revenue Minister
directing release of the acquired land in question
has the attributes of an order within the meaning of
Section 48 of the Act or, in other words, whether the
order in question created any right in favour of the
landowners so as to enable them to claim
mandamus for enforcement of such order against
the State
49) Our answer to the question is "no". It is for the
reasons that First, a mere noting in the official files
of the Government while dealing with any matter
pertaining to any person is essentially an internal
matter of the Government and carries with it no
legal sanctity; Second, once the decision on such
issue is taken and approved by the competent
authority empowered by the Government in that
behalf, it is required to be communicated to the
person concerned by the State Government.
50) In other words, so long as the decision based
on such internal deliberation is not approved and
communicated by the competent authority as per
the procedure prescribed in that behalf to the
person concerned, such noting does not create any
right in favour of the person concerned nor it
partake the nature of any legal order so as to enable
the person concerned to claim any benefit of any
such internal deliberation. Such noting(s) or/and
deliberation(s) are always capable of being changed
or/and amended or/and withdrawn by the
competent authority.
51) Third, though Section 48 of the Act, in terms,
does not provide that release of the land from any
acquisition proceedings is required to be done by
issuance of the notification by the State but, in our
view, having regard to the scheme of the Act, which
begins with the process of issuance of notification
under Section 4 of the Act for acquisition of any
land, the release of land from such acquisition is
complete only when a notification is issued by the
State in that behalf.
52) Indeed, the aforementioned issue remains no
more res integra and was decided by this Court in
several decisions, such as State of Punjab vs.
Sodhi Sukhdev Singh, AIR 1961 SC 493, State of
Bihar vs. Kripalu Shankar, (1987) 3 SCC 34,
Rajasthan Housing Board vs. Shri Krishan, (1993)
2 SCC 84, Sethi Auto Service Station vs. DDA,
(2009) 1 SCC 180 and Shanti Sports Club & Anr.
Vs. Union of India & Ors., (2009) 15 SCC 705.
53) In Shanti Sports (supra) a Bench of two
Judges of this Court, speaking through Singhvi, J.,
took note of all the previous case law on the subject
noted above and held as under:
“37…………..Although, the plain language of
Section 48(1) does not give any indication of
the manner or mode in which the
power/discretion to withdraw from the
acquisition of any land is required to be
exercised, having regard to the scheme of
Parts II and VII of the 1894 Act, which
postulates publication of notification under
Section 4(1), declaration under Section 6 and
agreement under Section 42 in the Official
Gazette as a condition for valid acquisition of
the land for any public purpose or for a
company, it is reasonable to take the view
that withdrawal from the acquisition, which
may adversely affect the public purpose for
which, or the company on whose behalf the
acquisition is proposed, can be done only by
issuing a notification in the Official Gazette.
39. The requirement of issuing a notification
for exercise of power under Section 48(1) of
the Act to withdraw from the acquisition of
the land can also be inferred from the
judgments of this Court in Municipal Committee, Bhatinda v. Land Acquisition Collector and others (1993) 3 SCC 24 , U.P. State Sugar Corporation Ltd. v. State of U.P. and others (1995) Supp 3 SCC 538, State of Maharashtra and another v. Umashankar Rajabhau and others (1996) 1 SCC 299 and State of T.N. and others v. L. Krishnan and others (1996) 7 SCC 450.
43. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.”
54) In the light of the foregoing discussion, we are
of the considered opinion that the then Revenue
Minister, who passed the order dated 10.06.2004
had no power to deal with the matter relating to
release of the land in question. He simply usurped
the power under Section 48 of the Act, which he
never possessed. It was an abuse of exercise of
power by him while dealing with the State's
largesse.
55) That apart, in our view, the filing of the writ
petition by the landowners itself was an abuse of
judicial process. It was for the simple reason that
the earlier litigation, which travelled up to this
Court thrice having ended against the landowners,
it was binding on the parties. It prevented the
landowners to again raise the same issue.
56) Indeed, the release of part of the land in
landowners’ favour and retention of the remaining
land for accomplishing the project vide notification
dated 20.08.1994 was in the nature of a bargain. It
disentitled the landowners to seek further release of
the remaining land. This is apart from the fact that
consequent upon obtaining the possession of the
land by the State, the release of the remaining land
under Section 48 of the Act was otherwise not
legally possible.
57) In the light of the foregoing discussion, we are
of the considered view that the High Court failed to
examine the issues arising in the case in its correct
perspective. We cannot, therefore, concur with the
reasoning and the conclusion arrived at by the High
Court which wrongly upheld the order dated
10.06.2004 passed by the concerned Revenue
Minister.
58) The appeal thus succeeds and is accordingly
allowed. Impugned order is set aside. As a
consequence, the writ petition filed by respondent
No.1 stands dismissed with costs quantified at
Rs.25,000/- to be payable by respondent No.1 to
the appellant.
(UDAY UMESH LALIT) New Delhi, August 03, 2018