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PETITIONER: RAJASTHAN HOUSING BOARD AND ORS.  ETC.  ETC.

       Vs.

RESPONDENT: KISHAN AND ORS.  ETC.  ETC.

DATE OF JUDGMENT27/01/1993

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) KULDIP SINGH (J)

CITATION:  1993 SCR  (1) 269        1993 SCC  (2)  84  JT 1993 (1)   298        1993 SCALE  (1)183

ACT: Rajasthan Land Acquisition Act, 1953: Sections   5(A),  6,  17(1),  17(4)-Acquisition   of   land- Notification   dispensing  with  the   enquiry-Validity   of notification-Large  extent  of  land  acquired-Existence  of superstructures   here   and  there-Whether   prevents   the Government     from  exercising  its power  to  acquire  the land. Land Acquisition Act, 1894: Section 48-De-acquisition of land-Communication of tentative decision-Effect of-Possession of land taken-Whether open  to the Govt. to withdraw from the acquisition.

HEADNOTE: Notification  under  Section  4(1)  of  the  Rajasthan  Land Acquisition  Act 1953 was published in the Gazette  for  the acquisition  of  certain  lands  for  the  benefit  of   the Rajasthan  Housing Board.  Another notification  was  issued under S. 17(4) dispensing with the provisions of S. 5(A)  of the Act.  A declaration under S.6 of the Act was also issues in  respect  of that area.  The validity  of  the  aforesaid notifications was challenged before the High Court by way of writ  petitions.   The  challenge made  was  mainly  on  the grounds that since the land acquired was not waste or arable land inasmuch as there were houses, huts, cattle sheds  etc. on  the land, the inquiry contemplated under S.  5(A)  could not have been dispensed with; that there was no real urgency for  dispensing  with the Inquiry and that  the  houses  and other structures on the land should not have been  acquired. The  Writ  Petitions were dismissed by a  Single  Judge  and Special Appeals were preferred to Division Bench.  Since the two Judges In the Division Bench deferred in their opinions, the  matter  was referred to Third Judge.  The  Third  Judge recorded his opinion on the questions, viz., whether it  was necessary or obligatory for the Government to mention in the notification issued under S. 17(4) that the land proposed to be acquired was waste or arable and whether the  non-mention thereof, vitiated the said notifica 270 tions; and if a small fraction of an arable land proposed to be acquired was occupied by buildings like buts kham  houses and  pucca houses for residential purposes and  for  keeping

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fodder,  cattle  farms, cattle sheds and for  similar  other purposes, was it still permissible to treat the entire  land as  arable land and Issue notification under s.  17(4)  read with  Section  17(1) of the Rajasthan Land  Acquisition  Act 1953,  and the legal consequences thereof.  Then the  matter went  back  to the Division Bench which  observed  that  the opinion  of the Third Judge was not categorical on the  last question.   Therefore, the last question was referred  to  a Full  Bench.   By a majority view the Full Bench  held  that inasmuch as there were pucca and kutcha houses, cattle-sheds etc.  on  a fraction of a land proposed to be  acquired  and since   the  notification  was  not  severable  the   entire notification  under s. 17(4) failed.  Accordingly, the  Full Bench  quashed  the  declaration  under s.  6  of  the  Act. Against  this  the respondent Board  preferred  the  present appeal.   Contending that the matter stood concluded by  the decision of this Court in State of U.P. v. Smt.  Pista Devi, [1986] 4 SCC 251. The Writ Petition flied before this Court claimed that since the  Petitioner  Society  also  fulfilled  the  same  public purpose served by the housing Board viz. housing, the  Urban Development Minister had recommended that the land  allotted to  the petitioner.  Society be denotified  and  de-acquired and  to regularise the scheme of the Society, and  that  the Chief  Minister  has accepted the same.   The  Society  thus contended  that  the proceedings were final  and  its  lands could not be acquired. Allowing the appeals by the Housing Board and dismissing the Writ Petition flied by the Housing Society, this Court, HELD  : 1. ’Mere was material before the government in  this case  upon  which it could have and did form  the  requisite opinion  that  it was a case calling for exercise  of  power under Section 17(4) of the Rajasthan land Ceiling Act, 1953. The  material  placed before the Court  disclosed  that  the government  found,  on due verification, that there  was  an acute  scarcity  of land and there was  heavy  pressure  for construction of houses for weaker sections and middle income group people, that the Housing Board had obtained a loan  of Rs.16 crores under a time-bound  programme to construct  and utilise   the  said  amount  by  31.3.1983;  that   in   the circumstances  the  Government  was  satisfied  that  unless possession  was  taken immediately, and  the  Housing  Board permitted to proceed with 271 the  construction, the Board will not be able to  adhere  to the  time-bound  programme.There  were  also  certain  other materials  upon  which the government had  formed  the  said satisfaction  viz, that In view of the time-bound  programme stipulated  by  the  lendor, HUDCO, the  Board  and  already appointed a large number of engineers and other  subordinate staff  for  carrying out the said work and that  holding  an inquiry  under Section 5-A would have resulted  in  uncalled for delay endangering the entire scheme and time-schedule of the Housing Board.  The satisfaction under Section 17(4)  of the  Act  Is a subjective one and that so long as  there  is material  upon  which the government could have  formed  the said satisfaction fairly, the court would not interfere  nor would  it  examine the material as an  appellate  authority. This is the principle affirmed by decision of this Court not only under Section 17(4) but also generally with respect  to subjective satisfaction. [279E-H, 280A-B] State  of  UP.  v. Smt.  Pista Devi, [1986]  4  S.C.C.  251, relied on. Sarju Prasad Saha v. The State of Uttar Pradesh, A.I.R. 1965 S.C.  1763 and Dora Phalauli v. State of Punjab and Ors.,  4

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[1979] 4 S.C.C. 485, distinguished. 2.1. The petitioner-cooperative society which claims to have purchased  about  525  bighas of  land  from  the  khatedars represented   to  the  Government  to  de-notify  the   land purchased by them.  On the basis of the said representation, the  then  Minister in-charge of Urban  Development  took  a decision  to release the lands but he was over-ruled by  the then Chief Minister.  This issue lay dormant till 1990  till the  general elections were announced.  It is at this  stage the petitioner-society made a representation to the Minister for  Urban Development to de-notify the lands  purchased  by them.   The Minister for Urban Development  recommended  de- notification  which  was  approved by  the  Chief  Minister. [281A-D] 2.2. ’Mere  was no final decision at any time  to  de-notify the said lands.  A tentative decision was no doubt taken  in February,  1990  but  before it  could  be  implemented  the government thought it necessary to ascertain the view of the Housing Board and to find out as to what the Board had  done upon the land, what structures it had raised and what amount it  had spent so that the Board could be  compensated  while delivering  the  possession  back to  the  Housing  society. Before  this  could  be  done there  was  a  change  In  the Government and the said tentative decision 272 was  reversed.   In  this  view of the  matter,  it  is  not necessary  to  go  into the question  whether  there  was  a communication  of  the ’decision’ of the government  to  the petitioner.   The communication must be of a final  decision and not of a provisional or tentative decision. [285A-C] 2.3. In  any event the government could not  have  withdrawn from the acquisition under Section 48 of the Act inasmuch as the  Government had taken possession of the land.  Once  the possession  of  the  land is taken it is  not  open  to  the government  to  withdraw from the  acquisition.   Admittedly possession was taken over by the Housing Board. (285D] 2.4. The notification under S.4 need not necessarily  recite that  the land proposed to be acquired is waste  or  arable. The non-recital does not vitiate the notification. [279C] 2.5. Where a large extent of land is acquired, the existence of a few superstructures here and there does not prevent the Govt. from exercising the power under S.17(4). [277B]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No.1418 of 1986. From  the Judgment and Order dated 6.1.86 of  the  Rajasthan High Court in D.B. Special Appeal No. 301 of 1982.                             WITH C.A.  Nos. 1419/86, 1420/86, 1846-47/86,  1848-49/86,  1850- 51/86,  185153/86, 1854-55/86, 2722-2738/92 & W.P.  (C)  No. 290/89, C.A. No. 185657/86 & C.P. No. 123 of 1991. Soli J.Sorabjee, S.P. Singh, Surya Kant and B.D. Sharma  for the  Appellants in C.A. No. 1418/86 etc.etc. and  Respondent in W.P. No. 290/89. D.D. Thakur, M.L. Lahoty, Ms. Shipra Khazanchi, K.C.  Gehani and Prem Sunder Jha for the Petitioners in W.P. No. 290/89. F.S.  Nariman, S.P. Singh, Surya Kant and  Aruneshwar  Gupta for the State of Rajasthan. P.N. Misra, Sushil Kumar Jain and Ms. Pratibha Jain for  the Respondents. 273 The Judgment of the Court was delivered by B.P.  JEEVAN REDDY, J. These appeals are  preferred  against

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the  judgment of the Full Bench of the Rajasthan High  Court allowing a batch of 16 special appeals.  The special appeals were  preferred  against the judgment of  a  learned  Single Judge  dismissing a batch of 24 writ petitions.  The  result of the judgment of the Full Bench is that the  notification issued by the Government of Rajasthan under Section 4(1)  of the  Rajasthan  Land  Acquisition  Act,  1953  proposing  to acquire a large extent of land stands quashed. The  notification under Section 4(1) of the  Rajasthan  Act, published in the Rajasthan Gazette dated 13.1.1982, proposed to  acquire a total extent of 2,.517  bighas  (approximately equal  to  1,580 crores) for the benefit  of  the  Rajasthan Housing Board.  On 9.2.1982, another notification was issued under  Section  17(4) of the said Act  dispensing  with  the provisions of Section 5(A).  On the same day, a  declaration under Section 6 was also issued in respect of the said area. According to the Government, the possession of the land  was also  taken on 22nd and 24th of May, 1982.  The validity  of the  said notifications was questioned in the batch of  writ petitions  (being S.B. Civil Writ Petition No. 707  of  1982 etc.) on three grounds viz., (i) that the land acquired  was not a waste or arable land inasmuch as there were pucca  and kutchha  houses,  huts and cattle sheds etc.   On  the  said land.   If so, the power under sub-section (1) and  sub-sec- tion  (4)  of  Section 17 could not  have  been  invoked  to dispense  with  the enquiry under Section  5(A);  (ii)  that there  was  no  real urgency warranting  the  invocation  of urgency clause.  An inquiry under Section 5(A) ought to have been  held,  which is a valuable right given  to  the  land- owners whose land is acquired under the Act; and (iii)  that at  any  rate the houses and other structures  on  the  land acquired should not have been acquired. The  learned  Judge rejected all the three  contentions  and dismissed   the  writ  petitions.   Special   appeals   were preferred  against the same which were heard by  a  Division Bench  in the first instance.  The two learned Judges,  N.M. Kasliwal  and K.S. Siddhu, JJ. differed in  their  opinions. Accordingly, the matter was referred to a third Judge by  an order dated 12.12.1983. Three questions were framed for  the consideration  of  third  Judge viz.,  (1)  whether  it  was necessary for the Government to mention in the  notification that the land is waste or arable and whether the non-men- 274 tion of the said fact vitiates the notification; (2) whether it  was  obligatory upon the Government to  mention  in  the notification  issued  under  Section  17(4)  that  the  land proposed  to be acquired is waste or arable and whether  the non-mention thereof vitiates the said notification; and  (3) "if  a  small  fraction of an arable  land  proposed  to  be acquired is occupied by buildings like huts, kham houses and pucca  houses  for  residential  purposes  and  for  keeping fodder,  cattle  farms, cattle sheds and for  similar  other purposes,  is it still permissible to treat the entire  land as  arable land and issue notification under  Section  17(4) read  with Section 17(1) of the Rajasthan  Land  Acquisition Act,  1953?  If not, what are the legal  consequences  which such  buildings aforementioned entail in the context of  the said notification?’ The  third Judge recorded his opinion on the said  questions but when the matter went back to the Division Bench, it  was of  the opinion that while the opinion of the learned  third Judge  on questions 1 and 2 was categorical,  affirming  the view  of the learned Single Judge, his opinion  on  question No.3  was not clear or categorical.  Accordingly,  the  said question No.3 was referred to a Full Bench.  The Full  Bench

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comprising N.M. Kasliwal, M.B. Sharma and Farooq Hasan,  JJ. heard the parties and held by a majority (Sharma and  Farooq Hasan,  JJ.) that inasmuch as there were pucca  and  kutchha houses,  cattle sheds etc. on a fraction of a land  proposed to  be  acquired and also because the  notification  is  not severable,  the entire notification under Section  17(4)  is liable to fail.  Accordingly, the declaration under  Section 6  was  also quashed.  The minority view  was  expressed  by Kasliwal  J. He was of the opinion that merely because on  a small portion of the land proposed to be acquired there were pucca  and  kutchha houses, the invocation  of  power  under Section  17(4)  read with Section 17(1) of the Act  was  not bad.   The opinion of the majority Judges is  questioned  in these appeals before us. Sri  Soli Sorabji, learned counsel for the appellant  (State of Rajasthan) submitted that the question considered by  the Fun Bench of the High Court is since concluded by a decision of this court in State of U.P. v. Smt. Pista Devi, [1986]  4 S.C.C.  251  and,  therefore, the appeals  must  be  allowed straightaway.  On the other hand, S/Sri D.D. Thakur and S.K. Jain,  learned counsel for the  respondent-writ  petitioners submitted on the basis of the decision in Sarju Prasad  Saha v.  The State of Uttar Pardesh, A.I.R. 1965 S.C.  1763  that once it is found that a portion of a land proposed to be 275 acquired  is  not waste or arable, the  entire  notification should  fail inasmuch as the notification is not  severable. They  also  submitted that the decision in Dom  Phalauli  v. State of Punjab and Ors., [1979] 4 S.C.C. 485 supports their contention  that the notification under Section  17(4)  read with  Section 17(1) should itself expressly recite that  the land in respect of which the said power is being invoked  is a waste or arable land and that non-recital of the said fact vitiates the notification.  The learned counsel also  sought to  argue  that  there was no such urgency as  to  call  for dispensing  with  the  inquiry  under  Section  5(A).   They submitted  that when a large chunk of land  comprising  four villages was being acquired it was but fair and just that an inquiry  under  Section 5(A) was held  The  construction  of houses by Housing Board, it was submitted, was not so urgent as  to  brook  no delay and, therefore,  the  invocation  of urgency was not called for. So far as the main question which was considered by the  Fun Bench  is concerned,it is necessary to refer to the  factual finding   in   the  first  instance.   Although   the   writ petitioners  contended  that there were pucca  houses,  kham houses  and  huts  used for residential  purposes  and  also cattle  sheds, cattle-ponds and other structures,  no  clear material was placed before the court.  With the result  that the Full Bench proceeded on the basis that these  structures were  stituated only upon a fraction of a land sought to  be acquired.   We may quote the following observation from  the judgment of Sharma, J. (majority opinion):               "From  the  pleadings of the parties,  it  can               also no longer be disputed that in the case of               some  of  the appellants on fraction  of  this               land kuchcha houses, kham houses and even some               pucca  constructions  are situated  which  are               being  used  by the appellants  for  tethering               their cattle, storage of fodder and grain  and               also  for residential purposes.  It cannot  be               said  as to out of the large area  of  2570.15               bighas on what portion such constructions have               been  made, but in case of the  appellants  in               each case they could be only on a fraction  of

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             the entire land sought to be acquired.                              (emphasis added) The  question is, whether in such a situation  the  majority Judges  of  the Full Bench were right in  holding  that  the notification under Section 17(4) should fail. 276 In  State  of U.P. v. Smt.  Pista Devi, a  bench  comprising E.S.  Venkataramiah and Khalid, JJ. considered an  identical question.   That case arose from Uttar Pradesh where by  way of  a  State amendment sub-section 1(A)  was  introduced  in Section  17.   Paragraph 7 of the judgment  brings  out  the ratio  of  the  judgment  besides  quoting  the  said  State Amendment.  It reads:               "It  was  next  contended that  in  the  large               extent  of land Acquired which has  about  412               acres there were some buildings here and there               and  so the acquisition of those parts of  the               land  on  which buildings  were  situated  was               unjustified  since  those  portions  were  not               either  waste or arable lands which  could  be               dealt  with  under Section 17(1) of  the  Act.               This contention has not been considered by the               High  Court.   We do not,  however,  find  any               substance  in  it.   The  government  was  not               acquiring any property which was substantially               covered  by buildings.  It acquired about  412               acres of land in the outskirts of Meerut  city               which  was  described as arable  land  by  the               Collector.  It may be true that here and there               were  a  few super-structures.  In a  case  of               this  nature where a large extent of  land  is               being acquired for planned development of  the               urban area it would not be proper to leave the               small   portions   over  which   some   super-               structures  have been constructed out  of  the               development scheme.  In such a situation where               there is real urgency it would be difficult to               apply  Section 5-A of the Act in the  case  of               few bits of land on which some structures  are               standing  and  to  exempt  the  rest  of   the               property  from its application.   Whether  the               land  in question is waste or arable land  has               to be judged by looking at the general  nature               and   condition  of  the  land.   It  is   not               necessary in this case to consider any further               legality  or the propriety of the  application               of  Section 17(1) of the Act to such  portions               of  land  proposed to be  acquired,  on  which               super-structures were standing because of  the               special  provision which is inserted  as  sub-               section (1-A) of Section 17 of the Act by  the               Land  Acquisition (U.P. Amendment Act) (22  of               1954) which reads thus:               (1-A) The power to take possession under  sub-               section (1) may also be exercised in the  case               of land other than waste or arable land, where               the land is acquired for or in connection with               277               sanitary  improvements of any kind or  planned               development." We  are of the opinion that the principle enunciated in  the said  paragraph  is  the  correct  one  and  that  the  said principle  is  not really based upon  sub-section  (1-A)  of Section  17  introduced  by U.P.  State  Amendment.   Having expressed a definite opinion that existence of a few  super-

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structures  here and there, where a large extent of land  is being  acquired,  does  not  prevent  the  government   from exercising the power under Section 17(4), the learned  Judge evolved the following test: "whether the land in question is waste  or arable has to be judged by looking at the  general nature  and  condition  of the land.’ Having  so  held,  the learned  Judges referred to the U.P. State Amendment by  way of  an additional supporting ground.  We are of the  opinion that even apart from the said State amendment, the principle enunciated  in the said decision is the correct one  and  is fully applicable here.  Mr. Sorabji is, therefore, right  in contending  that the said decision concludes the said  issue in these appeals. The learned counsel for the respondents, however,  submitted on  the  basis of the decision in Sarju Prasad Saha  v.  The State  of U.P. & Ors., A.I.R. 1965 S.C. 1763 that in such  a situation  the notification being not severable, the  entire notification  should  fail.  We cannot agree.   That  was  a converse  case  in the sense that a major part of  the  land proposed  to  be  acquired  was  covered  by  buildings  and constructions whereas only smaller part was waste or arable. It  is  in  such  a case that  the  court  opined  that  the notification  cannot  be  held  to  be  partially  good  and partially  bad.  Accordingly, it was held,  dispensing  with enquiry under Section 5(A) by invoking the urgency clause in Section  17(4)  was bad.  Paragraph (9) relied upon  by  the learned counsel may now be set out.  It reads:               "One  other  point raised at the  Bar  may  be               briefly referred to.  It was contended by  Mr.               S.P.   Sinha  appearing  on  behalf   of   the               Municipal  Board,  Basti, that a part  of  the               land  notified  for acquisition was  waste  or               arable  and  in  support  of  his  contention,               counsel referred us to certain revenue record.               But  if  only a part of the land is  waste  or               arable  and  the rest is not,  a  notification               under S. 17(4) dispensing with compliance with               the  requirements of S. 5-A would be  invalid.               It  would not be open to the Court  to  regard               the   notification  as  partially   good   and               partially  bad, for if the State had no  power               to dispense with the inquiry in respect of any               part of the land notified under               278               S.4(1),  an inquiry must be held  under  S.5-A               giving an opportunity to persons interested in               the land notified to raise their objections to               the  proposed acquisition and in that  inquiry               the persons interested cannot be restricted to               raising  objections in respect of  land  other               than waste or arable land." We  don not think that in a case where only a fraction of  a large  extent of land sought to be acquired is not waste  or arable,  the  observations  made in the  said  judgment  are applicable. The  counsel  for  the respondents  then  relied  upon  Dora Phalauli  v. State of Punjab & Ors., [1979] 4 S.C.C. 485  in support  of  their contention that  the  notification  under Section  17(4)  should  necessarily  recite  that  the  land concerned  is waste or arable land and that absence of  such recital renders the. notification invalid.  The observations relied  upon in the judgment of N.L. Untwalia and A.P.  Sen, JJ. read thus:               "It  is  to be clearly understood  that  under               sub-section  (4), the  appropriate  Government

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             may direct that the provisions of Section  5-A               shall  not apply where in the opinion  of  the               State  Government,  the  provisions  of   sub-               section (1) or sub-section (2) are applicable,               otherwise  not.  For making the provisions  of               sub-section (1) applicable, two things must be               satisfied, firstly that the land in respect of               which  the urgency provision is being  applied               is waste or arable and secondly, that there is               an urgency to proceed in the matter of  taking               immediate  possession and so the right of  the               owner  of  the land for  filing  an  objection               under Section 5-A should not be made available               to  him.  In the portion of  the  notification               which  we have extracted above, it is  neither               mentioned that the land is waste or arable nor               has it been stated that in the opinion of  the               Government,  there  was any  urgency  to  take               recourse  to the provisions of Section  17  of               the  Act.   A direction to the  Collector  has               been given to take action under Section 17  on               the ground of urgency but this is not a  legal               and complete fulfillment of the requirement of               the  law.   It is to be  remembered  that  the               right  of a person having any interest in  the               property to file an objection under Section 5-               A of the Act should not be interfered with  in               such  a casual or cavalier manner as has  been               done in this case." 279   The learned Judges observed that the notification  neither mentions  that  the  land is waste or  arable  nor  does  it mention  that  in the opinion of the  government  there  was urgency  to  take recourse to the provision of  Section  17. The  decision is not really based upon the ground  that  the notification  fails  to  recite that the land  is  waste  or arable.   The  paragraph  read as a  whole  shows  that  the learned  Judges  were impressed more by the  fact  that  the notification  does not state that the government is  of  the opinion  that it was a case where the inquiry under  Section 5-A  ought to be dispensed with under Section 17(4).  It  is in  that  context  that  they  also  pointed  out  that  the notification  does  not  recite that the land  is  waste  or arable.   Section 17(4) does not require  that  notification itself  should  recite the fact that the land  concerned  is waste or arable.  In such a situation there is no basis  for the  respondent’s  contention that the  notification  should itself  recite  the  said fact nor does  the  said  decision support their contention.    Sri Thakur further argued that the construction of houses by  Housing Board is not of such urgency as to call for  the invocation  of  the  said  power.   We  are  not  satisfied. Firstly, on this question the decision of the Rajasthan High Court  is against the writ petitioners.  The learned  Single Judge  negatived it as well as Division Bench following  the opinion of the third Judge.  Secondly, we are satisfied that there  was material before the government in this case  upon which it could have and did form the requisite opinion  that it  was a case calling for exercise of power  under  Section 17(4).   The  learned  Single  Judge  has  referred  to  the material  upon  which  the government had  formed  the  said opinion.   The  material placed before the  Court  disclosed that  the government found, on due verification, that  there was  an acute scarcity of land and there was heavy  pressure for  construction of houses for weaker sections  and  middle

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income  group people; that the Housing Board had obtained  a loan  of  Rs.  16 crores under  a  time-bound  programme  to construct and utilise the said amount by 31.3.1983; that  in the  circumstances the Government was satisfied that  unless possession  was  taken immediately, and  the  Housing  Board permitted  to proceed with the construction, the Board  will not  be  able  to adhere to the  time-bound  programme.   In addition  to the said fact, the Division Bench  referred  to certain  other material also upon which the  government  had formed the said satisfaction viz., that in view of the time- bound  programme stipulated by the lender, HUDCO, the  Board had already appointed a large number of engineers and  other subordinate  staff for carrying out the said work  and  that holding an inquiry under Section 5-A would have resulted  in uncalled 280 for delay endangering the entire scheme and time-schedule of the   Housing  Board.   It  must  be  remembered  that   the satisfaction  under  Section 17(4) is a subjective  one  and that so long as there is material upon which the  government could  have formed the said satisfaction fairly,  the  court would not interfere nor would it examine the material as  an appellate  authority.   This is the  principle  affirmed  by decisions  of  this court not only under Section  17(4)  but also generally with respect to subjective satisfaction.   For  the  above reasons, the appeals are allowed  and  the judgment  of  the  Full Bench of the  Rajasthan  High  Court impugned  herein as set aside.  Having regard to  the  facts and circumstances of the case, we direct the parties to bear their own costs.     WITH PETITION (C) NO. 290 OF 1989    This  writ  petition is preferred by the  New  Pink  Grih Nirman Sahkari Sangh questioning the very same  notification which  were  questioned  in  the  writ  petitions  filed  in Rajasthan  High  Court  and which have  given  rise  to  the aforementioned  Civil Appeals.  It was admitted  because  of the  pendency  of the above appeals and was directed  to  be heard alongwith them.  In the writ petition, several reliefs are  asked  for  viz., quashing of  the  notification  under Section  4(1),  quashing of the notification  under  Section 17(1),  quashing of the notification under section 17(4)  as well  as the declaration under Section 6. It is prayed  that the  acquisition proceedings must be declared to  have  been withdrawn  by  virtue of the order of  the  Hon’ble  Housing Minister of Rajasthan dated 20th July, 1984.    Before us, however, Sri D.D. Thakur, learned counsel  for the  petitioner  urged  only one contention  viz.,  that  by virtue  of the decision of the Minister in-charge  of  Urban Development, Government of Rajasthan and the Chief  Minister dated 8.2.1990 the Rajasthan Government must be held to have withdrawn  from the said acquisition proceedings within  the meaning  of Section 48 of the Land Acquisition Act, 1894  in so far as the lands purchased by the petitioner-society  are concerned.  For a proper appreciation of this contention, it is necessary to notice the relevant facts and  circumstances in their sequence.    The  notification  under section 4(1) was  published on 12.1.1982. On 9.2.1982, the notification under section 17(4) and the declaration under section 6 were issued.   According to the government, possession was also 281 taken of the entire extent of land on 22nd and 24th of  May, 1982. The  petitioner-cooperative  society which  claims  to  have purchased  about  525  bighas of  land  from  the  khatedars

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represented   to  the  Government  to  de-notify  the   land purchased by them.  On the basis of the said representation, the  then  Minister in-charge of Urban  Development  took  a decision on 20.7.1984 to release the lands but he was  over- ruled  by  the  then Chief Minister  Sri  Harideo  Joshi  on 29.4.1985. The decision of the Chief Minister has also  been placed  before  us.  This issue lay dormant till  1990.   On 27.1.1990, general elections were announced.  Polling was to take  place on 27.2.1990. It is at this stage that a  sudden urgency appears to have developed in this matter again.  The petitioner-society made a representation on 6.2.1990 to  the Minister  for  Urban  Development  to  de-notify  the  lands purchased  by  them.   The Minister  for  Urban  Development recommended de-notification which was approved by the  Chief Minister Sri Harideo Joshi on 8.2.1990. It was signed by the Minister concerned on 13.2.1990. The recommendation put up by the Urban Development  Minister for  the  consideration  of the Chief  Minister  stated  the following  facts:  The petitioner-society had  entered  into agreements  of sale in 1974-75 and 1975-76 for purchasing  a substantial  extent of land for developing the Indira  Bihar Residential Scheme and had also allotted plots to its  three thousand members during the years 1976 to 1981.  The society had  deposited Rs. 50,000 as sub-division charges  according to  rules in the year 1981 with the Urban Improvement  Trust and had initiated proceedings for technical approval of  the scheme  in the same year.  The society had also deposited  a sum  of  Rs. 9 lakhs towards conversion of  the  land  (from agricultural to urban land) in the office of the  Additional Collector,  Land  Conversion in March, 1982 under  the  Land Conversion  Rules,  1981.  The Housing  Board  had  actually started the proceedings for acquisition and the  acquisition notifications  were issued in January, 1982 i.e., after  the society  had taken the above steps.  The  petitioner-society had  obtained a stay order against the acquisition  proceed- ings  and that as in 1990, the stay granted by  the  Supreme Court was in force.  On 18.1.1990, the State Government  had taken  a  policy decision to regularise and  de-acquire  the lands  under acquisition covered by schemes of  the  Housing Cooperative Societies on payment of prescribed amount.   The said  policy may be applied to the  petitioner-society.   As far as the question of exemption 282 from  urban land ceiling is concerned, all the plot  holders of this society, like other societies, will hand over  their plots to the Jaipur Land Authority and it shall be deemed to be  the government land but will be re-allotted to the  same plot holders after charging the fixed price and  development charges  on  prescribed  terms.   This  procedure  is  being followed by Jaipur Development Authority in other matters as well.  In this way, the problem of exemption from the  urban land ceiling would also be solved.  The final recommendation was: ’looking  to  the aforesaid facts it  is  desirable  to direct to de-acquire that land     of  the scheme under  the provisions of section 48 of the Land Acquisition Act,  1894 and regularise the scheme because this society is fulfilling the  same public purpose of housing by starting  proceedings for which the Housing Board wants to acquire this land later on for this purpose." The above recommendation was accepted by the Chief  Minister on  8.2.1990  as stated hereinbefore.  It appears  that  the matter  again  came  before the Hon’ble  Chief  Minister  on 23.2.1990 when he approved a note, the latter half of  which reads as follows: "Therefore, it will be in the interest  of broad  public  interest  that this land of  the  society  be

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regularised  according  to  the decision  of  Cabinet  after releasing  it  from  acquisition,  as  is  the  opinion   of Honourable  Minister Incharge Local Self Govt,  and  Housing Minister.  As far as the question of Scheduled  Caste/Tribes land  is  concerned,  in this  respect  the  Government  has already taken a decision much before, according to which the proceedings are to be taken." Evidently, in pursuance of the aforesaid decision, the Deputy Secretary, Urban  Development and Housing Department, Government of Rajasthan, Jaipur  ad- dressed  the  following letter to the  secretary,  Rajasthan Housing Board, Jaipur:                    "RAJASTHAN GOVERNMENT            URBAN DEVELOPMENT AND HOUSING DEPARTMENT          No. F. 5(3) UDH/92           DATED 24.4.90. Secretary, Rajasthan Housing Board, Jaipur. Sub:-  In  the matter of De-acquisition of  land  of  Indira Bihar  Scheme  Sahkari  Samiti situated  in  village  Devri, Sukhalpura, Jhalana Chaur, and Goliyabas. 283       Sir,               In  respect of the above subject it  has  been               directed by the State Govt. that a decision to               release the aforesaid land of the Society from               acquisition  has  been  taken.   It  has  been               brought to the notice of the State  Government               that some improvement has been done by you  on               the  land covered by this scheme.   Therefore,               kindly  intimate as to what development  works               have been performed by you on the land covered               by the aforesaid scheme of the society and how               much  expenditure  has been  incurred  by  the               Housing  Board  in it.  Please send  the  full               particulars  to  the State  Govt.  immediately               also inform as to at what stage the matter  is               going in the courts without delay.  Now so far               as possible do not make any development  works               further on this land.  Intimate as to  whether               possession of the land has been taken or  not.               Before restoring the possession to the society               the amount of development charges will have to               be   returned   back,  therefore,   send   the               valuation   within  three  days.    Conversion               charges  will  be  payable  according  to  the               rules.  The copies of the orders of the  court               may also be sent.                                      Yours faithfully,                                            sd/                                         Dy. Secretary.’ A copy of the said letter was also marked to the  petitioner society as would be evident from the endorsement at the foot of the said letter which reads: "No.  F. 5(3) UDB/90 Dated: 29.2.90 Copy  to  the secretary, New Pink City Grah  Nirman  Sahkari Samiti  Ltd.,  Bapu Bazar, Jaipur for information.   He  may kindly intimate as to within what period of time the  amount of  Development  charges  and  cost of  land  etc.  will  be deposited.                                                 sd/                                  Dy. Secretary to the Govt.                                             28.2.90" 284 The learned counsel for the writ petitioners stops here  and says  that the above proceedings constitute a  definite  and

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final  decision  to de-notify and de-acquire the  lands  and that  nothing  more was required to be  done  to  constitute withdrawal  from acquisition within the meaning  of  section 48. Sri  F.S.  Nariman, the learned counsel  appearing  for  the government  of  Rajasthan,  however,  filed  an   additional affidavit  setting  out the developments subsequent  to  the aforesaid  letter dated 24.2.1990 which may now be  noticed. The  additional  affidavit  is sworn to  by  the  Secretary, Rajasthan  Housing Board, Sri M.K.Khanna. It is stated  that in  response  to the aforesaid letter dated  24.2.1990,  the Rajasthan  Housing Board represented to the Government  that the land should not be de-notified whereupon the  Secretary, urban  Development and Housing ordered the stopping  of  the issuance  of notification for de-acquisition of the land  of the  petitioner  society  on 25.5.1990.  (Meanwhile,  a  new Government  represented by a different political  party  had come  into  power).   The  order  of  the  secretary   dated 25.5.1990 is filed as Ann.  X-1 to the additional affidavit. It is further submitted that at no time any notification was issued  withdrawing  from the acquisition.   It  is  further stated  that on 13.12.1990 the then Chief Minister  referred the   entire   matter  pertaining   to   de-acquisition   of petitioner’s  land to the Beri Commission for  report.   The said  commission was constituted to look  into  illegalities and  irregularities  committed  by  the  functionaries   and officials  of the previous government.  The Beri  Commission reported  that the decision to de-acquire the lands  of  the petitioner-society  was  in  contravention  of  the  earlier decision of the Cabinet, contrary to law and against  public interest.  The commission stated that the said decision  was the  result  of  the influence brought  upon  the  concerned Minister  by  the  petitioner- society and  is  not  a  fair decision.  The Chief Minister also acted under the influence and  pressure of the petitioner-society and, therefore,  his decision  too  is  not a proper  one.   Accepting  the  said report, the government intimated the Rajasthan Housing Board that  there  is no question of de-acquiring the  said  land. The  letter dated 24.4.1990 was also formally  withdrawn  on 31.10.1991.  It  is  also  stated  in  the  said  additional affidavit  that the Khatedars from whom the society  claimed to  have purchased the said land under agreements  of  sale, have by separate letters intimated the Secretary,  Rajasthan Housing Board and the Land Acquisition Collector as far back as  5th  April,  1982  that they had  no  objection  to  the acquisition  of their lands.  They asked for compensation  @ Rs. 40,000/ per bigha. 285 From the above material it is clear that there was no  final decision  at  any  time  to de-notify  the  said  lands.   A tentative decision was no doubt taken in February, 1990  but before  it  could be implemented the government  thought  it necessary to ascertain the views of the Housing Board and to find  out as to what the Board had done upon the land,  what structures  it  had raised and what amount it had  spent  so that  the  Board could be compensated while  delivering  the possession  back to the Housing society.  Before this  could be  done there was a change in the government and  the  said tentative  decision  was  reversed.  In  this  view  of  the matter,  it is not necessary for us to go into the  question whether  there was a communication of the ’decision’ of  the government to the petitioner.  The communication must be  of a  final  decision  and not of a  provisional  or  tentative decision. We  are  of  the  further opinion  that  in  any  event  the

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government  could  not have withdrawn from  the  acquisition under  section 48 of the Act inasmuch as the Government  had taken  possession of the land.  Once the possession  of  the land  is taken it is not open to the government to  withdraw from  the  acquisition.   The very  letter  dated  24.2.1990 relied  upon by the counsel for the petitioner recites  that ’before  restoring the possession to the society the  amount of   development   charges   will  have   to   be   returned back.............  This  shows clearly that  possession  was taken  over by the Housing Board.  Indeed the very tenor  of the  letter  is,  asking  the  Housing  Board  as  to   what development  work they had carried out on the land  and  how much expenditure they had incurred thereon, which could  not have  been  done unless the Board was in possession  of  the land.   The  Housing  Board  was  asked  to  send  the  full particulars  of  the  expenditure and not to  carry  on  any further development works on that land.  Reading the  letter as a whole, it cannot but be said that the possession of the land  was taken by the government and was also delivered  to the  Housing  Board.  Since the possession of the  land  was taken,  there could be no question of withdrawing  from  the acquisition  under section 48 of the Land  Acquisition  Act, 1894. For  the  above  reasons, the writ  petition  fails  and  is dismissed with costs. G.N.                               Appeals allowed.                                  Petition dismissed. 286