PIMPRI CHINCHWAD NEW TOWNSHIP DEVELOPMENT AUTHORITY versus VISHNUDEV COOPERATIVE HOUSING SOCIETY & ORS.

[2018] 11 S.C.R.

PIMPRI CHINCHWAD NEW TOWNSHIP DEVELOPMENT AUTHORITY

VISHNUDEV COOPERATIVE HOUSING

SOCIETY & ORS.

(Civil Appeal No. 7649 of 2018)

AUGUST 03, 2018

[ABHAY MANOHAR SAPRE ANDUDAY UMESH LALIT, JJ.]

Land Acquisition Act, 1894 – s.48 – Release of acquiredland – Land acquired by the State Government for public purpose– Special Land Acquisition Officer (SLAO) initiated proceedingu/s.11 and passed an award – Writ petition and SLP filed by theoriginal landowners against the award were dismissed – OriginalDlandowners filed application u/s.48(1) of the Act to RevenueMinister of the State to release the land from acquisition –Application was allowed and land was partly released fromacquisition – Thereafter, original landowners transferred the landto respondent no.1 – Writ petition filed by the respondent no.1challenging the order of the Revenue Minister to the extent itEdeclined to release the remaining land – Writ petition and SLP filedby respondent no.1 were again dismissed – SLAO took possessionof the land – Thereafter, respondent no.1 again filed applicationu/s.48(1) of the Act to Revenue Minister of the State to release theremaining portion of land from acquisition – Revenue MinisterFallowed the application, deleting land in question from acquisitionproceedings – Propriety of – Held: Not proper – Once thepossession of the acquired land is taken, the State has no power towithdraw from the acquisition because as result of taking over ofthe possession, the acquired land vests with the State absolutelyfree from all encumbrances – In instant case, the possession of theGremaining acquired land was taken by the SLAO – When thepossession of the land in question was taken over by the State, theprovisions of s.48 of the Act were not applicable – fortiori, thethen Revenue Minister had no power to deal with the land inquestion in any manner whatsoever and nor had any power to

invoke the provisions of s.48 of the Act for release of the land fromthe clutches of the acquisition proceedings.

Land Acquisition Act, 1894 – s.48 – Land acquired by theState Government for public purpose – After many rounds oflitigations, the State partly released the land from acquisition –Original landowners transferred the land to respondent no.1 –Respondent no.1 filed application u/s.48(1) of the Act to RevenueMinister of the State to release remaining portion of land fromacquisition – Revenue Minister allowed the application, deletingland in question from acquisition proceedings – Whether the orderpassed by the Revenue Minister created any right in favour of thelandowners so as to enable them to claim mandamus forenforcement of such order against the State – Held: No – merenoting in the official files of the Government while dealing with anymatter pertaining to any person is essentially an internal matter ofthe Government and carries with it no legal sanctity – So long asthe decision based on such internal deliberation is not proved andcommunicated by the competent authority as per the procedureprescribed in that behalf to the person concerned, such noting doesnot create any right in favour of the person concerned nor itpartake the nature of any legal order so as to enable the personconcerned to claim any benefit of any such internal deliberation –Such noting(s) or/and deliberations(s) are always capable of beingchanged or/and amended or/and withdrawn by the competentauthority.

Allowing the appeal, the Court

HELD: 1. Section 48 of the Land Acquisition Act, 1894 givesliberty to the State to withdraw from the acquisition of any land“of which possession has not been taken” except in the caseswhich fall in Section 36. In other words, once the possession ofthe acquired land is taken, the State has no power to withdrawfrom the acquisition because as result of taking over of thepossession, the acquired land vests with the State absolutely freefrom all encumbrances. fortiori so long as the possession isnot taken of the acquired land, the State is at liberty to withdrawfrom the acquisition either partly or fully depending upon thefacts of each case. [Paras 38, 39] [322-F-G]

312SUPREME COURT REPORTS

2. The State did take possession of the acquired land inquestion as per the test laid down by this Court in BalwantNarayan Bhagde. It can be said so for the following reasons:

First, the State gave notice to all the co-owners of the landin question and informed them to remain present at the time ofBtaking possession by the SLAO; Second, out of all the co-owners,two were present at the time of taking possession. It was sufficientcompliance; Third, possession was taken in the presence of twowitnesses by the SLAO; Fourth, panchanama evidencing takingof the possession was duly signed by the witnesses; Fifth, thename of the State Government was duly entered in the revenueCrecords after obtaining possession as an owner; Sixth, theGovernment, in turn, handed over the possession of the land tothe appellant (PCNTDA); and Seventh, the name of PCNTDAwas also entered in the revenue records of the land in question.[Paras 43, 44] [324-C, E-G]D

3. Once it is held that the possession of the acquired landwas with the State, the land stood vested in the State disentitlingthe State to release the land from the acquisition proceedings bytaking recourse to the provisions of Section 48 of the Act. Afortiori, the then Revenue Minister had no power to deal withEthe land in question in any manner whatsoever and nor had anypower to invoke the provisions of Section 48 of the Act for releaseof the land in question from the clutches of the acquisitionproceedings. [Paras 45, 46] [324-G-H; 325-B]

4.1 The question is whether the order dated 10.06.2004Fpassed by the then Revenue Minister directing release of theacquired land in question has the attributes of an order withinthe meaning of Section 48 of the Act or, in other words, whetherthe order in question created any right in favour of the landownersso as to enable them to claim mandamus for enforcement of suchorder against the State. [Para 48] [325-C-D]G

4.2 The answer to the aforesaid question is “no”. It is forthe reasons that First, mere noting in the official files of theGovernment while dealing with any matter pertaining to anyperson is essentially an internal matter of the Government and

carries with it no legal sanctity; Second, once the decision onsuch issue is taken and approved by the competent authorityempowered by the Government in that behalf, it is required to becommunicated to the person concerned by the State Government.In other words, so long as the decision based on such internaldeliberation is not approved and communicated by the competentauthority as per the procedure prescribed in that behalf to theperson concerned, such noting does not create any right in favourof the person concerned nor it partake the nature of any legalorder so as to enable the person concerned to claim any benefitof any such internal deliberation. Such noting(s) or/anddeliberation(s) are always capable of being changed or/andamended or/and withdrawn by the competent authority. Third,though Section 48 of the Act, in terms, does not provide thatrelease of the land from any acquisition proceedings is requiredto be done by issuance of the notification by the State but, havingregard to the scheme of the Act, which begins with the processof issuance of notification under Section 4 of the Act for acquisitionof any land, the release of land from such acquisition is completeonly when notification is issued by the State in that behalf.[Paras 49, 50 and 51] [325-D-H; 326-A]

5. The Revenue Minister, who passed the order dated10.06.2004, had no power to deal with the matter relating torelease of the land in question. He simply usurped the powerunder Section 48 of the Act, which he never possessed. It was anabuse of exercise of power by him while dealing with the State’slargesse. [Para 54] [327-E]

6.1 That apart, the filing of the writ petition by thelandowners itself was an abuse of judicial process. It was for thesimple reason that the earlier litigation having ended against thelandowners, it was binding on the parties. It prevented thelandowners to again raise the same issue. [Para 55] [327-F]

6.2 Indeed, the release of part of the land in landowners’favour and retention of the remaining land for accomplishing theproject vide notification dated 20.08.1994 was in the nature of abargain. It disentitled the landowners to seek further release of

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Athe remaining land. This is apart from the fact that consequentupon obtaining the possession of the land by the State, the releaseof the remaining land under Section 48 of the Act was otherwisenot legally possible. [Para 56] [327-G-H]

6.3 The High Court failed to examine the issues arising inBthe case in its correct perspective. One cannot, therefore, concurwith the reasoning and the conclusion arrived at by the High Courtwhich wrongly upheld the order dated 10.06.2004 passed by theconcerned Revenue Minister. [Para 57] [328-A-B]

Balwant Narayan Bhagde v. M.D. Bhagwat & Ors.C(1976) 1 SCC 700 : [1975] Suppl. SCR 250 ;Shanti Sports Club & Anr. v. Union of India & Ors.,(2009) 15 SCC 705 : [2009] 13 SCR 710– relied on.

State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SCD493 : [1961] SCR 371 ; State of Bihar v. KripaluShankar (1987) 3 SCC 34 : [1987] 3 SCR 1 ; RajasthanHousing Board v. Shri Krishan (1993) 2 SCC 84 :[1993] 1 SCR 269 ; Sethi Auto Service Station v. DDA(2009) 1 SCC 180 : [2008] 14 SCR 598– referred to.E

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7649of 2018.

From the Judgment and Order dated 28.02.2017 of the High Courtof Judicature at Bombay in Writ Petition No.5783 of 2006.

Arvind Datar, Ms. Meenakshi Arora, Sr. Advs., RavindraKeshavrao Adsure, Prakash Ahirrao, Arvind S. Avhad, Ankur Gupta,Abhishek Krishna, Nishant R. Katneshwarkar, Ms. Suvarna Ganu,Mrs. Deepa Kulkarni, Advs. for the appearing parties.

The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed against the final judgment and order dated28.02.2017 passed by the High Court of Judicature at Bombay in WritPetition No.5783 of 2006 whereby the High Court allowed the petitionfiled by respondent No.1 herein and directed the State Government toissue notification in the official gazette for release of the acquired landfrom acquisition on the basis of the Revenue Minister’s order dated10.06.2004 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 isnecessary to set out the factual background of the case in detail. Thefacts mentioned hereinbelow are taken from the SLP paper books andits List of Dates.

4. Survey No. (Gat. No.210 - measuring around 39 26 R andSurvey No. 211 measuring around 1 23 R-Total land 40 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 byissuing notification under Section 4 of the Act. It was followed bypublication of declaration under Section 6 of the Act. The acquisitionwas for public purpose, namely, “planned development and utilizationof lands in Pimpri Chinchwad Township Area for industrial, commercialand residential purposes”. The development project for which the landwas acquired was to be executed through Pimpri Chinchwad NewTownship 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 determinationof the compensation payable to the landowners and accordingly passedan award dated 23.09.1986. The SLAO then issued notices to the

Alandowners as required under Section 12 (2) of the Act. Since thelandowners did not accept the compensation, the entire amount ofcompensation was deposited by the SLAO in Revenue Deposit Accountof Treasury.

7. The members of “Deo family” (landowners) felt aggrieved byBthe award dated 23.09.1986 and filed writ petition being W.P.No.3719/1987 in the High Court at Bombay. This writ petition wasdismissed by the High Court by order dated 18.07.1989. The writpetitioners felt aggrieved by the dismissal of their writ petition filed reviewpetition (R.P. No. 3751/1989) before the High Court, which was alsodismissed as withdrawn on 08.09.1989. Aggrieved by the dismissal ofCthe writ petition and the review petition, the landowners filed SLP (c)No.12889/1989 in this Court. It was also dismissed as withdrawn on27.11.1989.

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 MinisterDof the State of Maharashtra and prayed therein for release of theiracquired land. During pendency of this application, the landowners filedwrit petition (No.36/1990) in the High Court and prayed therein for adirection to the State for deciding their application. By order dated12.01.1990, the High Court disposed of the writ petition and directed theEState to decide the landowners’ application in accordance with law.

9. By order dated 07.07.1992, the State Government partly allowedthe landowners’ application and while releasing the land measuring 29 H98 R retained the remaining land measuring10 51 R for execution ofthe development project for which the entire land had been acquired.The details of the land retained and released are mentionedFhereinbelow:

Survey Area Area Area No. covered deleted remained under from under SLAO acquisition acquisition H:R H:R to be given to PCNTDA21039 26 R28 93 R10 33 R211 1 23 R 1 5 R 0 18 R Total 40 49 R 29 98 R 10 51 R

10. It appears from the record of the proceedings that after thedismissal of the review petition, the landowners (members of “Deofamily”) transferred the acquired land in question to the members of oneCo-operative Housing Society called, “Vishnudev Co-operative HousingSociety” (for short called “VCHS”)- respondent No.1 herein on or about25.10.1993.

11. Respondent No.1 (VCHS) claiming to be the owner of theland in question felt aggrieved and filed writ petition (1116/1993)questioning therein the legality of the order of the State dated 07.07.1992to the extent it declined to release the remaining land measuring 10 51R. The High Court, by order dated 23.03.1993, dismissed the writ petitionand upheld the order of the State. Respondent No.1 (VCHS) carriedthe matter in this Court by filing SLP (C) No.10056/1993. By orderdated 26.11.1993, this Court dismissed the SLP. The DivisionalCommissioner then passed final order dated 20.08.1994 under Section48 (1) of the Act directing therein for deletion of 29 98 R from SurveyNo. 210 and retaining of 10 33 R as acquired land for completion ofdevelopment project. This is how, out of total acquired land, the landmeasuring 29 98 R was released in favour of landowners from theacquisition proceedings and the land measuring 10 33 R was retainedto enable the State to execute the development project on the said landthrough the agency of the appellant.

12. Notwithstanding the termination of two rounds of litigation upto this Court, the landowners-VCHS again started third round and filedfresh writ petition (3200/1994) in the High Court and this time prayedtherein for deletion of 10 55 R from Survey No. 210/1. By order dated07.09.1994, the High Court dismissed the writ petition. Again the saidorder, the VCHS filed SLP (C) No.22907/1994 in this Court and thesame was dismissed by order dated 10.02.1995.

13. On 30.05.2000, the SLAO took possession of the land bearingGat. No. 210 (10 33 R) and executed panchanama in support thereof.The name of the State Government was accordingly entered in therevenue records at Mutation Entry No. 8212(File No. 7/12) on21.07.2000. The State Government then handed over the possession ofthe land in question to PCNTDA on 08.11.2005 to enable them to startthe work on the land. It was followed by entry of name of PCNTDA inthe revenue records on 19.11.2005.

A14. Despite losing the battle in the first, second and third round oflitigation, as detailed above, VCHS again renewed their efforts and filedan application under Section 48 (1) of the Act to the Revenue Ministerof the State of Maharashtra to start another round of litigation on20.01.2004. The Revenue Minister on 10.06.2004, however, noted in thefile that the land in question be deleted from the acquisition proceedings.B

15. It is pertinent to mention here that when the order dated10.06.2004 was passed, the Code of Conduct was in force in the Stateof Maharashtra as the assembly elections were to be held in September2004 in the State of Maharashtra. It is also pertinent to mention that theorder of the Revenue Minister ordering deletion of the land was neverCcommunicated to the landowners. On 04.11.2004, the State Governmentdirected that all the matters where the orders were not communicatedto the parties concerned be placed for fresh consideration for passingappropriate orders. The present being case where the order was notcommunicated to the landowners, the new Revenue Minister, who tookDover the charge from the earlier Minister, directed that the matter relatingto the land in question be considered afresh. The VCHS then wrote aletter to the State Government on 06.06.2006 insisting therein for issuanceand implementation of the order dated 10.06.2004 passed by the thenRevenue Minister but since the Government did not yield to the VCHSinsistence, writ petition (5783/2006) was filed by VCHS on 21.06.2006Ein the High Court praying for issuance of mandamus directing the StateGovernment to give effect to the order dated 10.06.2004 passed by thethen Revenue Minister and issue appropriate notification in that behalfby releasing the remaining land measuring 10 55 R.

16. In this writ petition, the VCHS arrayed only the StateFGovernment as party respondent but did not implead PCNTDA (appellantherein). The PCNTDA then filed an application for intervention in thesaid writ petition which was allowed by directing the VCHS to impleadPCNTDA as party respondent in the writ petition.

17. The State and PCNTDA contested the writ petition inter aliaGon the ground that firstly, the writ petition is not maintainable inasmuchas the entire issue in relation to the land in question has already attainedfinality thrice in favour of the State, therefore, nothing now remains forfurther adjudication; Secondly, since possession of the land in questionhas 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 andnor Section 48 could be used for further release of the land fromacquisition; and lastly, the so-called order dated 10.06.2004 passed bythe then Revenue Minister was not an order much less legal one andmore so when it was not communicated to the landowners, it did notcreate any kind of right in favour of the landowners.

18. By impugned order, the High Court allowed the landowners’writ petition and issued mandamus directing the State to give effect tothe order dated 10.06.2004 passed by the then Revenue Minister. Theeffect of issuance of mandamus is to release the remaining land measuring10 33 R from the acquisition proceedings in favour of the landowners.It is against this order, PCNTDA filed this appeal by way of specialleave in this Court.

19. The question, which arises for consideration in this appeal, iswhether the High Court was justified in allowing the writ petition filed bythe landowners (VCHS-respondent No.1 herein) and, in consequence,was justified in issuing directions to the State in relation to the land inquestion.

20. Heard Mr. Arvind Datar, learned senior counsel for theappellant, Ms. Meenakshi Arora, learned senior counsel for respondentNo.1 and Mr. Nishant R. Katneshwarkar, learned counsel for respondentNos. 2 & 3.

21. Mr. Arvind Datar, learned senior counsel appearing for theappellant (PCNTDA) while assailing the legality and correctness of theimpugned order has mainly urged six points.

22. In the first place, learned counsel urged that the reasoningand the conclusion arrived at by the High Court in allowing thelandowners’ writ petition is, on the face of it, legally unsustainable andbeing wholly perverse deserves to be set aside.

23. In the second place, learned counsel urged that an issue as towhether the land in question was capable of being released or not fromthe clutches of the acquisition proceedings in the context of Section 48(1) of the Act had attained finality in the earlier rounds of litigation againstthe landowners up to this Court, the same could not have been againagitated by filing another application by respondent No.1(landowners)under Section 48 of the Act.

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A24. According to learned counsel, it was not legally permissible toempower the then Revenue Minister to entertain such application.

25. In the third place, learned counsel contended that when theState had admittedly taken possession of the land in question long backon 30.05.2000 strictly in accordance with law as laid down by this CourtBin Balwant Narayan Bhagde vs. M.D. Bhagwat & Ors. (1976) 1SCC 700, the provisions of Section 48 of the Act had no application tothe facts of the case at hand and neither the then Revenue Minister northe State had any power to invoke the provisions of Section 48 of theAct to release any part of the land on or after 30.05.2000.

26. In the fourth place, learned counsel contended that the thenCRevenue Minister, who passed the order dated 10.06.2004 had no powerto entertain any such application because admittedly during the relevanttime, due to announcement of date of the State Assembly elections(September 2004), the Code of Conduct had come in force which didnot permit any Minister to exercise such power.D

27. In the fifth place, learned counsel contended that evenotherwise, the so called noting made by the then Revenue Minister inthe file on 10.06.2004 directing release of the land in question from theacquisition proceedings could never be construed as an “order” withinthe meaning of Section 48 of the Act and nor such noting had any attributeEof legal order.

28. It was his submission that firstly, such noting remained only anoting of the then Revenue Minister, which was never communicated tothe landowners as per the procedure prescribed and secondly, before itcould take the shape of an order within the meaning of Section 48 of theAct for being giving effect to, the noting was ordered to be consideredFafresh by the State Government by order dated 04.11.2004.

29. In this way, according to learned counsel, the so called notingnever saw the light of the day and died its own death in the files creatingno right and interest of any kind in favour of the landowners.

30. In the fifth place, learned counsel contended that the thenRevenue Minister had passed similar orders alike the one in question inrelation to other survey numbers by directing release of the land fromthe clutches of the acquisition proceedings but all such orders werequashed by the High Court in the writ petition and those orders werealso upheld by this Court. Learned counsel gave the list of the cases.

31. In the sixth place, learned counsel contended that whilereleasing 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 toclaim any compensation for the said land. It was, therefore, urged thatreading of the order dated 20.08.1994 would clearly indicate that thereleasing of the part of the land and retaining of the remaining land wasin the nature of bargain between the State and the landowners and,therefore, there did not arise any occasion to further release of theremaining land in question which was undoubtedly needed foraccomplishing the public purpose for which it was acquired.

32. In other words, the submission was that release of part of theland vide order dated 20.08.1994 disentitled the landowners to claimfurther release of the remaining land from acquisition proceedings. It isapart from the fact that the release of the land due to obtaining itspossession under Section 16 was not possible under Section 48 of theAct.

33. It is essentially these submissions, learned counsel elaboratedin his arguments by referring to the record of the case and the decisionsof this Court.

34. In reply, Ms. Meenakshi Arora, learned senior counselsupported the impugned order including its reasoning. It was hersubmission that the impugned order is based on proper reasoning andhence it does not call for any interference. Learned counsel elaboratedher submission by referring to the documents to support the reasoning ofthe High Court.

35. Having heard the learned counsel for the parties and on perusalof the record of the case, we find force in the submissions of the learnedsenior counsel for the appellant.

36. The main questions which arise for consideration in this appealare first, whether the then Revenue Minister, who was purporting toact for and on behalf of the State, had the power, in the backgroundfacts of this case, to invoke the provisions of Section 48 of the Act forrelease of the acquired land in question from the acquisition proceedings;Second, whether the State had taken possession of the acquired land inquestion on 30.05.2000 and, if so, its effect; and lastly, what is the truenature of the order dated 10.06.2004.

A37. Sections 16 and 48, which are relevant for this case read asunder:

“Section 16

16. Power to take possession- When the Collector has madean award under section 11, he may take possession of theBland, which shall thereupon vest absolutely in theGovernment, free from all encumbrances.

Section 48

48. Completion of acquisition not compulsory, butCcompensation to be awarded when not completed-(1) Exceptin the case provided for in section 36, the Government shallbe at liberty to withdraw from the acquisition of any land ofwhich possession has not been taken.

(2) Whenever the Government withdraws from any suchacquisition, the Collector shall determine the amount ofcompensation due for the damage suffered by the owner inconsequence of the notice or of nay proceedings thereunder,and shall pay such amount to the person interested, togetherwith all costs reasonably incurred by him in the prosecutionof the proceedings under this Act relating to the said land.

E(3) The provisions of Part III of this Act shall apply, so faras may be, to the determination of the compensation payableunder this section.”

38. Section 48 of the Act gives liberty to the State to withdrawfrom the acquisition of any land “of which possession has not beenFtaken” 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 powerto withdraw from the acquisition because as result of taking over ofthe possession, the acquired land vests with the State absolutely freefrom all encumbrances.

39. fortiori so long as the possession is not taken of the acquiredland, the State is at liberty to withdraw from the acquisition either partlyor fully depending upon the facts of each case.

40. Section 16 of the Act empowers the Collector to take possessionof the acquired land on passing of an award under Section 11 of the Act.

Once the Collector takes possession, the acquired land vests absolutelyin the Government free from all encumbrances as provided therein.

41. The question arose before Bench of three Judges of thisCourt in Balwant Narayan Bhagde (supra) as to how and in whatmanner possession of the acquired land is required to be taken as providedunder Section 16 of the Act. The majority view speaking through BhagwatiJ. (as His Lordship then was) dealt with this issue succinctly in Para 28thus:

“28………We think it is enough to state that when theGovernment proceeds to take possession of the landacquired by it under the Land Acquisition Act, 1894, it musttake actual possession of the land, since all interests in theland are sought to be acquired by it. There can be noquestion of taking “symbolical” possession in the senseunderstood by judicial decisions under the Code of CivilProcedure. Nor would possession merely on paper beenough. What the Act contemplates as necessary conditionof vesting of the land in the Government is the taking ofactual possession of the land. How such possession maybe taken would depend on the nature of the land. Suchpossession would have to be taken as the nature of theland admits of. There can be no hard and fast rule layingdown what act would be sufficient to constitute taking ofpossession of land. We should not, therefore, be taken aslaying down an absolute and inviolable rule that merely goingon the spot and making declaration by beat of drum orotherwise would be sufficient to constitute taking ofpossession of land in every case. But here, in our opinion,since the land was lying fallow and there was no crop on itat the material time, the act of the Tehsildar in going on thespot and inspecting the land for the purpose of determiningwhat part was waste and arable and should, therefore, betaken possession of and determining its extent, wassufficient to constitute taking of possession. It appears thatthe appellant was not present when this was done by theTehsildar, but the presence of the owner or the occupant ofthe land is not necessary to effectuate the taking ofpossession. It is also not strictly necessary as matter of

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Alegal requirement that notice should be given to the owneror the occupant of the land that possession would be takenat particular time, though it may be desirable wherepossible, to give such notice before possession is taken bythe authorities, as that would eliminate the possibility ofany fraudulent or collusive transaction of taking of mereBpaper possession, without the occupant or the owner evercoming to know of it.”

42. Keeping in view the law laid down in Balwant NarayanBhagde (supra), we proceed to examine the question as to whether thepossession of the remaining acquired land was taken by the State and,Cif so, whether it was done in accordance with the test laid down by thisCourt.

43. Having perused the Panchanama (Annexure-P-4) dated30.05.2004, Mutation Entry No. 8212 (file 7/12) (Annexure-P-5),possession receipt (Annexure-P-12) and Mutation Entry of PCNTDAD(Annexure -P-28/29) relied upon by the State, we have no hesitation inholding that the State did take possession of the acquired land in questionon 30.05.2000 as per the test laid down by this Court in BalwantNarayan Bhagde (supra). This we say for the following reasons.

44. First, the State gave notice to all the co-owners of the land inEquestion and informed them to remain present at the time of takingpossession by the SLAO; Second, out of all the co-owners, two, namely,Chandra Kant Gajanan Dev and Bhalchandra Chintaman Dev werepresent at the time of taking possession. It was sufficient compliance;Third, possession was taken in the presence of two witnesses by theFSLAO; Fourth, panchanama evidencing taking of the possession wasduly signed by the witnesses; Fifth, the name of the State Governmentwas duly entered in the revenue records after obtaining possession asan owner; Sixth, the Government, in turn, handed over the possession ofthe land to the appellant (PCNTDA); and Seventh, the name of PCNTDAwas also entered in the revenue records of the land in question.

45. Once we hold that the possession of the land in question wastaken by the State in accordance with law on 30.05.2004 from thelandowners, we have no hesitation in holding that the provisions of Section48 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 theState, the land stood vested in the State disentitling the State to releasethe land from the acquisition proceedings by taking recourse to theprovisions of Section 48 of the Act.

46. fortiori, the then Revenue Minister had no power to dealwith the land in question in any manner whatsoever and nor had anypower to invoke the provisions of Section 48 of the Act for release ofthe land in question from the clutches of the acquisition proceedings.

47. This takes us to examine another question though in the lightof our finding on the issue of possession, it is not necessary for us toexamine this question in detail.

48. The question is whether the order dated 10.06.2004 passedby the then Revenue Minister directing release of the acquired land inquestion has the attributes of an order within the meaning of Section 48of the Act or, in other words, whether the order in question created anyright in favour of the landowners so as to enable them to claim mandamusfor enforcement of such order against the State

49. Our answer to the question is “no”. It is for the reasons thatFirst, mere noting in the official files of the Government while dealingwith any matter pertaining to any person is essentially an internal matterof the Government and carries with it no legal sanctity;Second, oncethe decision on such issue is taken and approved by the competentauthority empowered by the Government in that behalf, it is required tobe communicated to the person concerned by the State Government.

50. In other words, so long as the decision based on such internaldeliberation is not approved and communicated by the competentauthority as per the procedure prescribed in that behalf to the personconcerned, such noting does not create any right in favour of the personconcerned nor it partake the nature of any legal order so as to enable theperson concerned to claim any benefit of any such internal deliberation.Such noting(s) or/and deliberation(s) are always capable of being changedor/and amended or/and withdrawn by the competent authority.51. Third, though Section 48 of the Act, in terms, does not providethat release of the land from any acquisition proceedings is required tobe done by issuance of the notification by the State but, in our view,

Ahaving regard to the scheme of the Act, which begins with the processof issuance of notification under Section 4 of the Act for acquisition ofany land, the release of land from such acquisition is complete only whena notification is issued by the State in that behalf.

52. Indeed, the aforementioned issue remains no more res integraBand was decided by this Court in several decisions, such as State ofPunjab vs. Sodhi Sukhdev Singh, AIR 1961 SC 493, State of Biharvs. Kripalu Shankar, (1987) 3 SCC 34, Rajasthan Housing Boardvs. Shri Krishan, (1993) 2 SCC 84, Sethi Auto Service Station vs.DDA, (2009) 1 SCC 180 and Shanti Sports Club & Anr. Vs. Unionof India & Ors., (2009) 15 SCC 705.

C53. In Shanti Sports (supra) Bench of two Judges of this Court,speaking through Singhvi, J., took note of all the previous case law onthe subject noted above and held as under:

“37…………..Although, the plain language of Section 48(1)Ddoes not give any indication of the manner or mode in whichthe power/discretion to withdraw from the acquisition ofany land is required to be exercised, having regard to thescheme of Parts II and VII of the 1894 Act, which postulatespublication of notification under Section 4(1), declarationunder Section 6 and agreement under Section 42 in theEOfficial Gazette as condition for valid acquisition of theland for any public purpose or for company, it is reasonableto take the view that withdrawal from the acquisition, whichmay adversely affect the public purpose for which, or thecompany on whose behalf the acquisition is proposed, canFbe done only by issuing notification in the Official Gazette.

39. The requirement of issuing notification for exerciseof power under Section 48(1)of the Act to withdraw fromthe acquisition of the land can also be inferred from thejudgments of this Court in Municipal Committee, BhatindaGv. Land Acquisition Collector and others(1993) 3 SCC24 , U.P. State Sugar Corporation Ltd. v. State of U.P. andothers(1995) Supp 3 SCC 538, State of Maharashtra andanother v. Umashankar Rajabhau and others(1996) 1 SCC299 and State of T.N. and others v. L. Krishnan and others(1996) 7 SCC 450.

43. noting recorded in the file is merely noting simpliciterand nothing more. It merely represents expression ofopinion by the particular individual. By no stretch ofimagination, such noting can be treated as decision of theGovernment. Even if the competent authority records itsopinion in the file on the merits of the matter underconsideration, the same cannot be termed as decision ofthe Government unless it is sanctified and acted upon byissuing an order in accordance with Articles 77(1) and (2)or Articles 166(1) and (2). The noting in the file or even adecision gets culminated into an order affecting right ofthe parties only when it is expressed in the name of thePresident or the Governor, as the case may be, andauthenticated in the manner provided in Article 77(2) orArticle 166(2). noting or even decision recorded in thefile can always be reviewed/reversed/overruled oroverturned and the court cannot take cognizance of theearlier noting or decision for exercise of the power ofjudicial review.”

54. In the light of the foregoing discussion, we are of the consideredopinion that the then Revenue Minister, who passed the order dated10.06.2004 had no power to deal with the matter relating to release ofthe land in question. He simply usurped the power under Section 48 ofthe Act, which he never possessed. It was an abuse of exercise ofpower by him while dealing with the State’s largesse.

55. That apart, in our view, the filing of the writ petition by thelandowners itself was an abuse of judicial process. It was for the simplereason that the earlier litigation, which travelled up to this Court thricehaving ended against the landowners, it was binding on the parties. Itprevented the landowners to again raise the same issue.

56. Indeed, the release of part of the land in landowners’ favourand retention of the remaining land for accomplishing the project videnotification dated 20.08.1994 was in the nature of bargain. It disentitledthe landowners to seek further release of the remaining land. This isapart from the fact that consequent upon obtaining the possession of theland by the State, the release of the remaining land under Section 48 ofthe Act was otherwise not legally possible.

ABCDE

A57. In the light of the foregoing discussion, we are of the consideredview that the High Court failed to examine the issues arising in the casein its correct perspective. We cannot, therefore, concur with the reasoningand the conclusion arrived at by the High Court which wrongly upheldthe 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 consequence, the writ petition filed byrespondent No.1 stands dismissed with costs quantified at Rs.25,000/-to be payable by respondent No.1 to the appellant.

Ankit Gyan

Appeal allowed.