TMI Blog2018 (8) TMI 2041X X X X Extracts X X X X X X X X Extracts X X X X ..... voke the provisions of Section 48 of the Act for release of the land in question from the clutches of the acquisition proceedings. 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 - 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. The High Court failed to examine the issues arising in the case in its correct perspective - Petition dismissed with costs quantified at ₹ 25,000/- to be payable by Respondent No. 1 to the Appellant. - CIVIL APPEAL NO. 7649 OF 2018 (ARISING OUT OF SLP (C) NO. 20188 OF 2017) - - - Dated:- 3-8-2018 - ABHAY MANOHAR SAPRE AND U.U. LALIT, JJ. For the Appellant : Mr.Arvind Datar, Sr.Adv., Mr.Prakash Ahirrao, Adv., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 719/1987 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of their writ petition filed review petition (R.P. No. 3751/1989) before the High Court, which was also dismissed as withdrawn on 08.09.1989.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 It was also dismissed as withdrawn on 27.11.1989. 8.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 measuri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisition 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 any 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swer 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 issuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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