REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7649 OF 2018 [Arising out of SLP (C) No.20188 of 2017]

Pimpri Chinchwad New Township  Development Authority            .. Appellant(s)

Versus

Vishnudev Cooperative Housing Society & Ors.                         .. Respondent(s)

J U D G M E N T

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

1

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 R­Total land 40 H 49 R)  situated at  Mauje

Wakad, Tehsil Mulshi, District Pune (Maharashtra)

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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

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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

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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'

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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

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

Co­operative Housing Society called, "Vishnudev Co­

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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

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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 landowners­VCHS

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.

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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

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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

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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

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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

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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

(VCHS­respondent No.1 herein) and, in

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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.

14

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.  

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

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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.   

16

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.  

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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  (Annexure­P­24) it  was  made  clear to

the landowners that they would not be entitled to

18

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

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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

20

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

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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

22

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.  

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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

24

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

25

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 (Annexure­P­

4) dated 30.05.2004, Mutation Entry No. 8212 (file

7/12) (Annexure­P­5), possession receipt

(Annexure­P­12)  and   Mutation  Entry  of  PCNTDA

(Annexure ­P­28/29) 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 co­owners

of the land in question and informed them to

remain present at the time of taking possession by

26

the SLAO;   Second, out of all the co­owners, 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

27

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

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

28

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

29

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.  

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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,

31

(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

32

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.  

34

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

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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.

………………………………..J.  (ABHAY MANOHAR SAPRE)

           …..………………………………J.      (UDAY UMESH LALIT)

New Delhi, August 03, 2018

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