PIMPRI CHINCHWAD NEW TOWNSHIP DEVELOPMENT AUTHORITY versus VISHNUDEV COOPERATIVE HOUSING SOCIETY & ORS.
[2018] 11 S.C.R. 310, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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PIMPRI CHINCHWAD NEW TOWNSHIP
   DEVELOPMENT AUTHORITY
v.
VISHNUDEV COOPERATIVE HOUSING
   SOCIETY & ORS.
(Civil Appeal No. 7649 of 2018)
AUGUST 03, 2018
[ABHAY MANOHAR SAPRE AND
UDAY UMESH LALIT, JJ.]
Land Acquisition Act, 1894 – s.48 – Release of  acquired
land – Land acquired by the State Government for public purpose
– Special Land Acquisition Officer (SLAO) initiated proceeding
u/s.11 and passed an award – Writ petition and SLP filed by the
original landowners against the award were dismissed – Original
landowners filed application u/s.48(1) of the Act to Revenue
Minister of the State to release the land from acquisition –
Application was allowed and land was partly released from
acquisition –  Thereafter, original landowners transferred the land
to respondent no.1 – Writ petition filed by the respondent no.1
challenging the order of the Revenue Minister to the extent it
declined to release the remaining land – Writ petition and SLP filed
by respondent no.1 were again dismissed – SLAO took possession
of the land –  Thereafter, respondent no.1 again filed application
u/s.48(1) of the Act to Revenue Minister of the State to release the
remaining portion of land from acquisition – Revenue Minister
allowed the application, deleting land in question from acquisition
proceedings – Propriety of – Held: Not proper – 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 – In instant case, the possession of the
remaining acquired land was taken by the SLAO – When the
possession of the land in question was taken over by the State, the
provisions of s.48 of the Act were not applicable – 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
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invoke the  provisions of s.48 of the Act for release of the land from
the clutches of the acquisition proceedings.
Land Acquisition Act, 1894 – s.48 – Land acquired by the
State Government for public purpose – After many rounds of
litigations, 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 Revenue
Minister of the State to release remaining portion of land from
acquisition – Revenue Minister allowed the application, deleting
land in question from acquisition proceedings – Whether the order
passed by the Revenue Minister created any right in favour of the
landowners so as to enable them to claim mandamus for
enforcement of such order against the State – Held: No – 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 – So long as
the decision based on such internal deliberation is not proved 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 deliberations(s) are always capable of being
changed
or/and amended or/and withdrawn by the competent
authority.
Allowing the appeal, the Court
HELD: 1. Section 48 of the Land Acquisition Act, 1894 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.  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. [Paras 38, 39] [322-F-G]
PIMPRI CHINCHWAD NEW TOWNSHIP  DEV. AUTHORITY v.
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2. The State did take possession of the acquired land in
question as per the test laid down by this Court in  Balwant
Narayan Bhagde. It can be said so for  the following reasons:
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 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.
[Paras 43, 44] [324-C, E-G]
3.  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 Section 48 of the Act. 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. [Paras 45, 46] [324-G-H; 325-B]
4.1  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. [Para 48] [325-C-D]
4.2  The answer to the aforesaid 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
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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.
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. 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, 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.
[Paras 49, 50 and 51] [325-D-H; 326-A]
5. The 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. [Para 54] [327-E]
6.1 That apart, 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 having ended against the
landowners, it was binding on the parties. It prevented the
landowners 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 the
project vide notification dated 20.08.1994 was in the nature of a
bargain. It disentitled the landowners to seek further release of
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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. [Para 56] [327-G-H]
6.3  The High Court failed to examine the issues arising in
the case in its correct perspective. One 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. [Para 57] [328-A-B]
Balwant Narayan Bhagde v. M.D. Bhagwat & Ors.
(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 SC
493 : [1961] SCR 371 ; State of Bihar v. Kripalu
Shankar (1987) 3 SCC 34 : [1987] 3 SCR 1 ; Rajasthan
Housing 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.
Case Law Reference
[1975] Suppl. SCR 250       relied on
Para 25
[1961] SCR 371
      referred to
Para 52
[1987] 3 SCR 1
      referred to
Para 52
[1993] 1 SCR 269
      referred to
Para 52
[2008] 14 SCR 598
      referred to
Para 52
[2009] 13 SCR 710
      relied on
Para 52
 CIVIL APPELLATE JURISDICTION :  Civil Appeal No. 7649
of 2018.
From the Judgment and Order dated 28.02.2017 of the High
Court
of  Judicature at Bombay in Writ Petition No.5783 of 2006.
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Arvind Datar, Ms. Meenakshi Arora, Sr. Advs., Ravindra
Keshavrao 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 dated
28.02.2017 passed by the High Court of Judicature at Bombay in Writ
Petition 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
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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 
No. 
Area 
covered 
under 
SLAO 
 H:R 
Area 
deleted 
from 
acquisition 
H:R 
Area 
remained 
under 
acquisition 
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
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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.
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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
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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 Section 48 of the Act.
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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.
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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 Section 48 of the
Act.
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.
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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.
 Section 48
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.
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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
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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,
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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 Section 48 of the Act.
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,
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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.
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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.
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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.
 Ankit Gyan
                                Appeal allowed.