Ram Sarowar Thakur vs The State of Bihar and Others

Nagendra Parsad Singh, J.—The petitioner in this writ application has challenged the legality of an order of the State Government as contained in letter dated 5.10.1976 saying that after reconsideration the State Government has taken a decision that the land belonging to the petitioner shall not be withdrawn from acquisition. A copy of the said communication is Annexure-9 to the writ application. The case of the petitioner is that at the instance of the Industries Department, Government of Bihar, the respondent District Magistrate; Muzaffarpur took steps for acquiring an area of 102.60 acres of land situated in village Bela Chapra in the district of Muzaffarpur for the North Bihar Industrial Development Authority, hereinafter referred to as the Industrial Development Authority. For the acquisition of the aforesaid land, emergency provision, provided u/s 17 of the Land Acquisition Act, 1894, hereinafter referred to as the ''Act'', was adopted and a notification under Sub-section (4) of Section 17 of the Act was issued on 16.3.1976. The aforesaid block of 102.60 acres also covers an area measuring 4.34 acres of R.S. Plot No. 411 belonging to the petitioner. The said plot of land belonged to Muzaffarpur Municipality and the petitioner had purchased it under registered sale deed executed in the year 1967 and since then it was in possession of the petitioner. The petitioner had entered into an agreement with the Food Corporation of India, a Central Government undertaking, for constructing a godown for storage of essential and perishable commodities, over the said plot and in that connection had also collected several lacs of bricks, sand etc. on the site. Before the construction could actually begin, the aforesaid notification under Sub-section (4) of Section 17 of the Act was issued.

The petitioner filed before the Chief Minister, Bihar, on 6.4.1976; an application saying that the portion of the land over which godown is to be constructed should not be acquired because he was constructing the godown for storage of food grains. It was also stated that as the land was very near the railway station, it would be convenient for transportation of the food grains. The Chief Minister passed an order addressed to the District Magistrate, Muzaffarpur, saying that as a godown was being constructed for use of the Food Corporation of India, the aforesaid 4.34 acres could be released. A copy of the said application along with the order of the Chief Minister is Annexure-1 to the writ application. On 1.5.1976, a declaration dated 17.4.1976 u/s 6 of the Act was published. On 24.5.1976, the District Magistrate, Muzaffarpur addressed a letter to the Director; Land Acquisition, Bihar, saying that in view of the order of the Chief Minister the aforesaid area of 4.34 acres could be released. Towards the end of that letter the District Magistrate further stated that in anticipation of the formal order of the State Government releasing the land in question, possession was being given to the said Industrial Development Authority over the lands other than those 4.34 acres. A copy of the said communication is annexed as Annexure-2 to the writ application. On 10.7.1976, the Industrial Development Commissioner, Department of Industries, addressed a letter to the District Magistrate saying that the State Government had re-examined the question of release of plot No. 411 and had come to the conclusion that there was no Justification for releasing the same. He also requested that the land in question should be handed over to the Assistant Director of Industries, Muzaffarpur without delay. A copy of this letter is Annexure-3 of the writ application. The petitioner had filed another representation in respect of the said acquisition even before the Revenue Minister, Bihar, on 6.2.1976. On that representation, the Revenue Minister passed an order on 6.8.1976 asking the District Magistrate to submit a report as to whether it was a fact that materials for construction of the godown had been collected and as to whether land should be released for construction of the godown of the Food Corporation of India. He also asked the District Magistrate not to take possession of the land till the State Government had taken a final decision. A copy of the representation of the petitioner along with the order of the Revenue Minister is Annexure-4 to the writ application. The District Magistrate, Muzaffarpur, in view of the aforesaid order dated 6.8.1976, submitted a report to the Revenue Minister saying that the land in question measuring 4.34 acres was between Muzaffarpur town and the railway station; that block of land along with other lands had been acquired under emergency acquisition proceeding at the instance of the Industries Department. He also mentioned that the process for delivery of possession was started, but in the meantime, the petitioner submitted a petition before the Chief Minister. Then he made a reference to the aforesaid order dated 6.8.1976 of the Revenue Minister and stated that, thereafter, he deputed the Subdivisional Officer, Muzaffarpur to inspect and to submit a report. It was further mentioned in the said report that the Subdivisional Officer, after it inspection, had submitted a report on 14.8.1976 saying that large number of building materials had been collected by the petitioner for construction of the godown for Food Corporation of India. On the spot, according to that report, about four to five lacs of bricks and about 60,000 cft of sand had been collected. Thereafter, the District Magistrate stated as follows:

It is true that the acquisition of land has been done for a particular public purpose of establishing Industries in the area. However, the purpose for which the petitioner prays for release of the land in question also is a very important one. Since the construction of big railway loading and unloading yard at Narainpur Anant Railway station, almost all the goods sent to North Bihar or sent from North Bihar are either loaded or unloaded in this railway station. Because of the huge consignment of various essential commodities done through the Food Corporation of India, there is a real need for establishing a dependable godown at this railhead for the incoming and out going commodities handled by the Food Corporation of India....

Moreover, the presence of a good dependable godown will eventually be an asset not only for Food Corporation of India but for the Industrial Estate itself for storage of raw materials received at the rail head....Therefore, in my opinion no inconvenience or loss will be caused to the Govt. or to the Industrial Estate, to be specific, if the petitioner is allowed to construct a big and dependable godown either by allotting this land to him or by freeing this land from acquisition.

He, however, requested that if the Government decided to release the land from acquisition the petitioner should be directed to construct the proposed godown at once. A copy of the report of the District Magistrate is Annexure-5 to the writ application.

The petitioner has also annexed copy of another representation to the Chief Minister, Bihar, which was filed some time in the first week of August, 1976 in which he pointed out that in spite of the earlier order of the Chief Minister, dated 6.4.1976, the Industrial Development Commissioner by his aforesaid letter dated 10.7.1976 (Annexure-3) had asked the Collector to proceed with the acquisition. On this very representation the Chief Minister passed an order asking the Land Reforms Commissioner to call for a report from the District Magistrate, Muzaffarpur and to put up the file before him. This order was passed on 7.8.1976. A copy of the representation along with the order of the Chief Minister is Annexure-6 to the writ application. On 20.9.1976, the Directorate of Land Acquisition under the Revenue and Land Reforms Department of the State Government issued a letter to the District Magistrate, Muzaffarpur saying that the State Government has examined the question of the release of 4.34 acres of land belonging to the petitioner from acquisition and has taken a decision that'' the said land should be released. He has further mentioned that the petitioner should be directed to construct the godown for the Food Corporation of India on that laud and if he does not construct, then that land shall again be acquired. A copy of this letter is Annexure-7 to the writ application. A copy of this letter was forwarded to the petitioner. After receipt of this letter, the petitioner addressed a letter to the Regional Manager, Food Corporation of India, Informing him that on 24.9.1976 the foundation was being laid for the proposed godown of 20,000 m.t. capacity, as per the specification of the Food Corporation of India and according to the terms of the agreement he expects to hand over the godown by 31.12.1976. In that letter he also mentioned that there had been some delay in the construction because the land itself had been acquired and now it has been released on 19.9.1976. A copy of this letter is annexure-8 to the writ application. Then, the petitioner has stated that to his utter surprise, he learnt that the Deputy Secretary in the Department of Industries, on 5.10.1976, addressed a letter to the Revenue and Land Reforms Department (Land Acquisition) saying that the State Government has again re-considered the decision regarding the release of the land of the petitioner, which had been communicated to the District Magistrate by the aforesaid letter dated 20.9.1976 (annexure-7), and has taken the decision that the land should not be released. A copy of that letter was also sent to the District Magistrate, Muzaffarpur for necessary action saying that the land should not be released pursuant to the aforesaid order dated 20.9.1976. The petitioner has challenged the authority of the respondents to issue the aforesaid communication dated 5.10.1976 (annexure-9).

According to the petitioner, the State Government having exercised its power u/s 48 of the Act directing release of the land in question and the said decision having been communicated to the petitioner by the aforesaid letter dated 20.9.1976 (annexure-7), it cannot be revoked. According to him, even if the State Government wanted to rescind the said decision for some compelling reasons, it should have, before passing any such order, given an opportunity to the petitioner to show cause as to why the earlier decision releasing the land in question, should not be recalled and rescinded.

On behalf of the respondents a counter affidavit has been filed, which has been sworn by the Land Acquisition Officer, Muzaffarpur. According to the said counter-affidavit, as the possession had been handed over to the Industries Department prior to 20.9.1976, the power u/s 48 of the Act could not have been exercised withdrawing from the acquisition the land in question. Alternatively, it has been stated that the decision, which was conveyed by letter dated 20.9.1976 (annexure-7) was not yet final and, in the meantime, the whole matter was re-considered and then the impugned letter dated 5.10.1976 was issued by the Industries Department, asking the District Magistrate not to release the land in question, and, as such there was no question of arbitrary exercise of the power.

The facts which I have mentioned above give an impression that there has been virtually a tug-of-war between the petitioner and the Industries Department; the department wanting that the land to be acquired for Industrial Development Authority and the petitioner knocking one door or the other to get the land released. This has resulted in passing of so many inconsistent orders from time to time. At one stage the proposal about the release of the land was accepted, again rejected, then again accepted and finally, perhaps, has been rejected. But, this Court is not concerned whether the need of the Industrial Development Authority or that of the petitioner was greater, it is concerned only with the legal aspect thereof. The precise question which have to be answered, are:

(i) Whether on or about 20.9.1976 the State Government could have exercised power u/s 48 of the Act withdrawing from the acquisition the land in question?

(ii) Whether the decision to with draw from acquisition the land in question as communicated by the aforesaid letter dated 20.9.1976 (Annexure-7) had become final?

(iii) Whether even if a decision could have been taken rescinding the earlier one, it could have been taken without giving an opportunity to the petitioner to be heard in the matter?

The relevant portion of Section 48 of the Act is as follows:--

48(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.

This section vests absolute power in the State Government to withdraw from acquisition any land which has been notified for acquisition subject to only one condition that such power shall be exercised only before possession has been taken. According to the counter-affidavit filed on behalf of the respondents, possession is said to have been taken on 23.7.1976. In support thereof, copy of certificate granted by the Assistant Director of Industries, Tirhut along with a copy of the certificate granted by the Secretary, North Bihar Industrial Development Authority have been annexed to the counter-affidavit and marked as Annexure-A. The certificate of the Assistant Director of Industries shows that on 23.7.1976 he handed over possession of the land to the Secretary, North Bihar Industrial Area Development Authority over 99.04 acres of land in pursuance of the declaration dated 17.4.1976. Similarly, the Secretary has also stated that on that very day, he took possession over 99.04 acres of land. This certificate of taking possession over 99.04 acres, according to the respondents include even the disputed 4.34 acres of land belonging to the petitioner, although there is no specific mention of the same. In this connection, it is remarkable that in the counter-affidavit, or in any other document, there is no assertion much less proof that the District Magistrate or the Collector of Muzaffarpur took possession over the land in question. u/s 17(1) of the Act, in cases of emergency acquisition, the appropriate Government has to direct the Collector after 15 days of publication of notice under Sub-section (1) of Section 9, to take possession of any land which is needed for public purpose. I am unable to understand as to how on 23.7.1976 the Assistant Director of Industries could have handed over the possession to the Secretary of the Industrial Development Authority without first the possession of the land having been taken by the Collect for or someone on his behalf. The land was being acquired for the Industrial Development Authority at the instance of the Industries Department, but the possession has to be taken first by the Collector and then only it shall vest absolutely in the Government free from all encumbrances. Till that stage, the State Government in its Revenue and Land Reforms Department (Land Acquisition) was only concerned with the said acquisition. The Industries Department or the Industrial Development Authority would have come in picture only after the possession had been taken by the Collector and the land had vested in the Government. Sub-section (1) of Section 17 of the Act says in unambiguous terms that possession has to be taken by the Collector and then only it shall vest absolutely in the Government. There is no averment on the record of this case that the Collector ever took possession pursuant to any direction by the appropriate Government as contemplated by Sub-section (1) of Section 17 of the Act. On the other band, on behalf of the petitioner, our attention was drawn to the aforesaid letter of the District Magistrate, Muzaffarpur addressed to the Director, Land Acquisition; Bihar, Patna dated 24.5.1976 (Annexure--2) where the Collector towards the end of the letter had stated that possession was being taken for the Industrial Development Authority over the lands other than the land belonging to the petitioner. Again the District Magistrate in his report to the Minister of Revenue and Land Reforms (Annexure-5), the date whereof is not known but it was admittedly submitted some time after 14.8.1976, has reiterated the something, saying. "The process for delivery of possession was started, in the meantime Shri Ram Sarowar Thakur submitted a petition before the Hon''ble Chief Minister requesting him to release his land as he had already entered into contract with the Food Corporation of India for construction of godown." Again, in that very report, after making a reference to the aforesaid letter dated 10.7.1976 of the Industrial Development Commissioner (Annexure-3), he says:--

On receipt of this letter of the Industrial Development Commission actions have been taken for delivery of possession of the land to the North Bihar Industrial Development Authority through the said Assistant Director of Industries.

If the possession had been taken by the Collector some day prior to 23.7.1976, then in his aforesaid report, which was submitted some time after 14.8.1976 he must have mentioned that he had taken possession over this land as well and, thereafter, handed over the possession to the Assistant Director of Industries. Even in Annexure--A to the counter-affidavit, referred to above, the Assistant Director of Industries does not say that the Collector having taken possession earlier handed over possession to him and he, in his turn, was handing over the possession to the Secretary of the Industrial Development Authority on 23-7.1976. On behalf of the petitioner, it was also pointed put that the Subdivisional Officer, who submitted report on 14.8.1976, derails whereof have been mentioned in the report of the Collector (Annexure-5), also said in his report that huge quantity of materials collected for construction of the godown were lying on the land.

Learned counsel appearing for the petitioner has also referred to a report of the Additional Collector, Muzaffarpur which was forwarded to the State Government on 13.3.1978, after passing of the impugned order dated 5.10.1976. A copy of that report is annexed to the supplementary affidavit filed on behalf of the petitioner on 26.6.1978 and has been marked as Annexure-11. The said report shows that the Additional Collector had visited the spot and found building materials lying on the land and that a chaukidar was also there to guard the same. He further reported that the earlier owner, meaning thereby the petitioner, had not left possession of the land. He also stated that the land had not yet been demarcated. On the aforesaid facts, he reported that the Industrial Development Authority or persons, to whom it had been allotted, had not taken possession thereof. A reference was also made to an order dated 12.8.1976 passed in exercise of the power u/s 108A of the Bihar Tenancy Act. This order was passed by the Revenue Officer on a petition filed on behalf of the petitioner for correction of record of rights. An entry had been made in the record of rights showing the land as the land of the State Government. It may be mentioned that this entry had been made much before the acquisition in question. A petition was filed on behalf of the petitioner for correcting the same. The matter was, however, heard when the aforesaid proceeding for acquisition was pending and on 12.8.1976 the Revenue Officer passed an order for correcting the entry in the revenue record of fights. The order is a detailed one giving the history as to how this petitioner acquired the same from the Municipality and that there was no material to show that it was a Gairmazarua Aam land which had vested in the State. At one place, he has observed that even the, Assistant Government pleader while arguing the case on behalf of the State admitted that there was no interest of the State. Ultimately, the Revenue Officer directed that the name of the petitioner be entered. A copy of this order is Annexure-10 to the affidavit filed in reply on behalf of the petitioner to the counter-affidavit filed on behalf of the respondents on 26.6.1978. On the basis of this order, it was urged that the State Government should have objected when the matter was being heard before the Revenue Officer saying that possession had already been taken under the land acquisition proceeding, and as such, there was no question of entering the name of the petitioner in record of rights. Although this should have been the stand on behalf of the State in that revenue case, but I am not attaching much importance to this document. In any case, the position comes to this that on behalf of the respondents there is no assertion that the appropriate Government ever directed to take possession in accordance with Sub-section (1) of Section 17 or that the Collector actually did take possession. Their simple assertion that the Assistant Director of Industries has banded over possession on 23.7.1976 to the Secretary of the Industrial Development Authority over 99.04 acres of land including this land cannot be accepted.

Whenever a question arises as to whether power u/s 48 can be exercised in view of the possession having been taken by the State Government, the court has to record a definite finding on that issue on the materials on record. This I finding cannot be based merely on presumptions and conjectures. Reference in this connection may be made to the judgment of the Supreme Court in the case of (1) Jethmull Bhojraj Vs. State of Bihar and Others, where while considering the question about the exercise of power u/s 48 of the Act it was observed:

The Government becomes the owner of the lands notified for acquisition only when the Collector takes possession of those lands either u/s 16 or u/s 17(1). Both those previsions provide that when the Collector takes possession under those provisions the lands notified for acquisition shall vest absolutely in the Government free from all encumbrances. Until and unless possession is taken under either of those provisions, the lands notified for acquisition do not vest in the Government.

Thereafter, the question whether possession was taken or not, was considered on materials on record, and it was found that in the Land Acquisition case merely an order directing the Kanungo to deliver possession at the spot to the representative of the Requisitioning Officer was not enough for the purpose of holding that possession had been taken. It was also pointed out that there was no material on the record to show that the appropriate Government had given to the Collector any direction under Sub-section (1) of Section 17 to take possession. In the instant case, even order-sheet of the Land Acquisition officer has not been produced nor there is any averment that he ever directed any one to take possession of land in question on behalf of the Collector.

It was then submitted that possession contemplated by Section 48 of the Act can be even a symbolical possession. It is difficult to accept this contention. In the case of (2) Balwant Narayan Bhagde Vs. M.D. Bhagwat and Others, the Supreme Court has considered that question and it was observed:--

......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 interest 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 me land in the Government is the taking of actual possession of the land.

My considered opinion is that on the materials on record, it has not been established that the possession had been taken by the Collector in the Land Acquisition proceeding. As such, the power u/s 48 could have been exercised by the State Government.

The next question is as to whether the power u/s 48 of the Act was actually exercised. The assertion of the petitioner is based on the aforesaid communication dated 20.9.1976 (Annexure-7) where the Director of Land Acquisition in the Revenue Department informed the District Magistrate, Muzaffarpur that the State Government had considered the matter again and had taken a decision that 4.34 acres of land belonging to the petitioner should not be included in the lands acquired for the Industrial Development Authority and same be released. On behalf of the respondents, however, it was urged that this decision of the State Government to withdraw from acquisition the land in question did not become an effective order because no formal notification was issued in respect thereof. There is nothing in Section 48 of the Act to show that the lands can be withdrawn from acquisition only by publication of notification to that effect. Sections 4, 6 and some other sections of the Act specifically mention about the publication of notification in official Gazette. As the power u/s 48 is to be exercised before the lands proposed to be acquired actually vest in the Government, perhaps, no provision was required for publication of any notification. However, I may hasten to add that the decision to withdraw from acquisition any lands must be taken at the highest level so as to bind the State Government in respect of that decision and it must be by a Government order as contemplated by the Constitution of India. Once an order can be held to be an order of the Government, then the efficacy of that order will not depend on the publication of the notification. Even if later any notification is issued, it may be primarily for information to the public that the lands have been withdrawn from acquisition, but, in any view, rights and obligations shall follow, no sooner the Government order is issued. Now in the instant case, Department of Revenue of the State Government has communicated the decision of the State Government to the District Magistrate, Muzaffarpur as well as to the petitioner. It is not the case of the respondents that the decision which was communicated had not been taken by the State Government. Once the decision was taken and communicated to the authorities and the petitioner, it will be deemed to be a Government order. This aspect of the matter has been examined by the Supreme Court in the case of (3) Bachhittar Singh Vs. The State of Punjab, .

Learned counsel appearing for the petitioner urged that the aforesaid Government order with drawing from acquisition the lands in question became irrevocable and later it cannot be rescinded. In this connection, he referred to a decision of the Supreme Court in the case of (4) The State of Bihar Vs. D.N. Ganguly and Others, where, while considering the scope of Section 10(1) of the Industrial Disputes Act; it was pointed out that once a Reference was made under the provision of the Act for adjudication of a dispute to the Tribunal, there was no power in the appropriate Government to cancel or supersede that Reference. In that connection implication of Section 21 of the General Clauses Act was also considered and it was pointed out that that was of no avail for cancelling a Reference made u/s 10(1).

In my opinion. It is difficult to accept the contention of the learned counsel appearing for the petitioner that once an order u/s 48 of the Act is passed that order cannot be ever reconsidered, and cannot be rescinded. In my opinion, the view expressed in the aforesaid case, The State of Bihar Vs. D.N. Ganguly and Others, cannot be applied while considering the scope of Section 48 of the Act. If after having passed an order u/s 48 withdrawing from acquisition any land, it is discovered that it was wrongly passed overlooking the public interest or certain other relevant materials, then it is open to revoke or cancel that order. I am of the view that there is no bar in recalling an order passed in exercise of power u/s 48, but, before doing so, the State Government must give an opportunity to the person affected to be heard. It need not be emphasised that an order passed u/s 48 is an exercise of a statutory power in favour of the person whose land was sought to be acquired. In such a situation, it will be only consistent with the rule of fair play that such person must be told as to why the decision, which had been taken in his favour, was being recalled. The rule that some administrative orders having civil consequences, have to be passed consistent with the principles of natural justice is now more than established a reference can be made to some of the well known cases in this connection, i.e. (5) Union of India (UOI) Vs. K.P. Joseph and Others, , (6) The Keshav Mills Co. Ltd. and Another Vs. Union of India (UOI) and Others, and (7) State of Punjab Vs. K.R. Erry and Sobhag Rai Mehta, . The petitioners after the communication of the order withdrawing the land from acquisition must have taken that the decision of the State Government had become final on the question. This is also evident from the letter which he addressed to the Regional Manager, Food Corporation of India (annexure-8), referred to above, informing them that the construction was to start from 24.9.1976 and he expected to hand over the godown by 31.12.1976. Then suddenly he was informed that again the decision for releasing the land has been revoked by the State Government. In this connection, I may point out that the Department concerned with the acquisition, i.e. the Revenue Department has not yet communicated any such decision to the petitioner saying that the State Government has recalled its decision withdrawing from acquisition the land. The Industries Department was concerned with the land in question, because it was required by the Industrial Development Authority. How the Industries Department has communicated the decision of the State Government to the Revenue Department is not very clear to me. In that sense there was no necessity for the petitioner to make a prayer for quashing the aforesaid impugned communication dated 5.10.1976, but, as in the counter-affidavit filed on behalf of the respondents, it has been asserted that the decision of the State Government, which has taken on or about 19.7.1976 and communicated to the petitioner by letter dated 20.9.1976 (annexure-7), has been recalled; the impugned communication (annexure-9) has to be quashed.

Accordingly, the writ application is allowed. The decision of the State Government communicated by the letter dated 5.10.1976 (annexure-9) is quashed. It is, however, made clear that it will be open to the State Government to rescind or revoke its earlier decision of withdrawing land from acquisition, of course, only after giving an opportunity to the petitioner of being heard. In the circumstances of the case, however, there will be no order as to costs.

Vishwanath Mishra, J.

I agree.