Holding

The Supreme Court held that the presence of a few structures on a fraction of a large tract does not invalidate a notification under Section 17(4); the notification need not recite waste or arable status; the government's subjective satisfaction under Section 17(4) was sufficient; and once possession is taken the government cannot withdraw under Section 48.

Summary

The Rajasthan Government issued a notification under the Rajasthan Land Acquisition Act, 1953 to acquire about 2,517 bighas of land for the Rajasthan Housing Board and, under Section 17(4), dispensed with the inquiry required by Section 5(A). The acquisition was challenged on the grounds that the land was not waste or arable because of scattered houses and sheds, that there was no urgency, and that the presence of structures should preclude acquisition. The Rajasthan High Court, after a split decision and a full‑bench majority, quashed the notification, holding that the presence of a few structures on a fraction of a large tract made the notification invalid. On appeal, the Supreme Court held that the government had sufficient material to be satisfied under Section 17(4), that a notification need not expressly state that the land is waste or arable, that the existence of a few super‑structures does not defeat the power to dispense with the inquiry, and that once possession is taken the government cannot withdraw under Section 48. Consequently, the appeals were allowed, the full‑bench judgment set aside, and the acquisition notifications upheld.

Issues considered

Whether a notification under Section 17(4) must expressly state that the land is waste or arable and whether non‑mention vitiates the notification.
Whether the presence of pucca/kutcha houses and other structures on a fraction of a large extent of land prevents the exercise of power under Section 17(4) and the dispensing of the Section 5(A) inquiry.
Whether the urgency clause under Section 17(4) was justified in the present case.
Whether the government can withdraw from an acquisition under Section 48 of the Land Acquisition Act, 1894 after possession has been taken.
Whether the decision to de‑notify and de‑acquire the land by the Urban Development Minister constituted a final decision within the meaning of Section 48.

Legislation cited

Land Acquisition Act, 1894s. 48
Rajasthan Land Acquisition Act, 1953s. 17(1), s. 17(4), s. 4(1), s. 5(A), s. 6

Subjects

land acquisitionSection 17(4)urgency clausewaste or arable landnotification validityde‑acquisitionSection 48subjective satisfactionRajasthan Housing Board

Judgment

.
RAJASTHAN HOUSING BOARD AND ORS. ETC. ETC. A
_/ v.
KISHAN AND ORS. ETC. ETC.

JANUARY 27, 1993

(KULDIP SINGH AND B.P. JEEVAN REDDY, JJ.) B

Rajasthan Land Acquisition Act, 1953:

Sections 5(A), 6, 17(1), 17(4)-Acquisition of land-Notification dis-
pensing with the enquiiy-Validity of notification-Large extent of land ac- C
quired-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 D
decision-Effect of-Possession of land takett--#lhether open to the Govt. to
withdraw from the acquisition.

Notification under Section 4(1) of the Rajasthan Land Acquisition
Act 1953 was published in the Gazett• for the acquisition of certain lands
for the benefit of the Rajasthan Housing Board. Another notification was E
issued under S. 17(4) dispensing with the provisions of S. S(A) of the Act.
A declaration under S.6 of the Act was also issues in respect of that al"l'B.
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 inas- F
much 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 Singl~ Judge and Special Appeals G
were preferred to Division Bench. Since the two Judges In the Division
Bench diferred lo their opinions, the matter was referred to Third Judge.
The Third Judge recorded bis opinion on the questions, viz., whether It
was necessary or obligatory for the Government to mention In the notlfica·
lion 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 notlfica· H
269
270 SUPREME COURT REPORTS (1993) 1 S.C.R.

A lions; and ir a small fraction or an arable land proposed to be acquired
was occupied by buildings like buts kham houses and pucca houses for
residential purposes and for keeping fodder, cattle rarms, 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) or the Rajasthan Land Acquisition Act 1953, and the legal conse-
B quences thereor. Then the matter went back to the Division Bench which
observed that the opinion or 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 or a land proposed to bf.
C acquired and since the notification was not severable the entire notifica-
tion under s. 17(4) railed. Accordingly, the Full Bench quashed the decla-
ration under s. 6 or the Act. Against this the respondent Board preferred
.the present appeal. Contending that the matter stood concluded by the
decision or this Court in State of U.P. v. Smt. Pista Dev~ [1986] 4 SCC 251.
D The Writ Petition filed before this Court claimed that since the
Petitioner Society also rullilled the same public purpose served by the
Housing Board viz. housing, the Urban Development Minister had recom-
mended that the land allotted to the petitioner. Society be denotified and
de-acquired and to regularise the scheme or the Society, and that the Chier
E Minister has aecepted 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 filed by the Housing Society, this Court,
F
HELD : 1. There was material before the government in this case
upon which it could have and did rorm the requisite opinion that it was a
case calling for exercise or pow.,· under Section 17(4) or the Rajasthan
Land Ceiling Act, 1953. The material placed berore the Court disclosed
G that the government found, on due verification, that there was an acute
scarcity or land and there was heavy pressure ror constrnction or 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
H was taken immediately, and the Housing Board permitted to proceed with
HOUSING BOARD v. KISHAN 271

the construction, the Board will not be able to adhere to the time-bound A
programme. llaere were also certain other materials upon which the
government bad formed ,the said satisfaction viz., that In view of the
time-bound programme stipulated by tbe lendor, HUDCO, the lloard and
already appointed a large number or engineers and other subordinate
stair for carrying out the said work and that holding an Inquiry under B
Section 5-A would have resulted in uncalled for delay endangering the
entire scheme and time-schedule of the Housing Board. llae satisfication
under Section 17(4) of the Act is a subjective one and that so long as there
is material upon which the goveniment could have formed the said satis-
faction fairly, the court would not interfere nor would it examine the
material as an appellate authority. llais is the p1inclple affirmed by C
decision of this C~urt not only under Section 17 (4) but also generally with
respect to subjective satisfaction. [279E-H, 280A-B)

State of U.P. v. Smt. Pista Dev~ (1986) 4 S.C.C. 251, relied on.

Slllju Prasad Saha v. The State of Uttar Pradesh, A.l.R. 1965 S.C. 1763 D
and Dora Pha/au/i v. State of Punjab and Ors., 4 (1979) 4 S.C.C. 485,
distinguished.

2.1. llae petitloner..:oorperative society which claims to have pur-
chased about 525 bighas of land from the kbatedars represented to the E
Government to de-notify the land purchased by them. On the basis or 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. llais 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 F
by them. llae Minister for Urban Development recommended de-notifica-
tion which was approved by the Chief Minister. [281A-D)

2.2' llaere was no final decision at any time to de-notify the said
lands. A tentative decision was no doubt taken in February, 1990 bu.t
before it could be implemented the government thought it necessary to G
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 H
~
I

272 SUPREME COURT REPORTS (1993] 1 S.C.R.

A was reversed. In this view or the matter, it is not necessary to go into the
question whether there was a communication of the 'decision' or the
government to the petitioner. The communication must be or a final
decision and not or a provisional or tentative decision. [285A-C]
'
2.3. In any event the government could not have withdrawn from the
B acquisition under Section 48 of the Act inasmuch as the Government had
taken possession of the land. Once the possession or the land is taken it
is not open to the government to withdraw from the acquisition. Admitted- -..,,-
ly possession was taken over by the Housing Board. [285D]

2.4. The notification under S.4 need not necessarily recite that the
c land proposed to be acquired is waste or arable. The non-recital does not
vitiate the notification. [279C]

2.5. Where a large extent or land is acquired, the existence of a rew
superstructures here and there does not prevent the Govt. from exercising
D the power under S.17(4). [2778]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.1418 of
1986.

From the Judgment and Order dated 6.1.86 of the Rajasthan High
E 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, 1851-
53/86, 1854-55/86, 2722-2738/92 & W.P. (C) No. 290/89, C.A. No. 1856-
F 57/86 & C.P. No. 123 of 1991.

Soli J .Sorabjee, S.P. Singh, Surya Kant and BD. Sharma for the Appel-
lants 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
G 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 Respon-
H dents.
HOUSING BOARD v. KISHAN [REDDY, J.) 273

The Judgment of the Court was delivered by A
-7
B.P. JEEVAN REDDY, J~ These appeals are preferred against 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.
B
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
. --f Acquisition Act, 1953 proposing to acquire a large extent of land stands
~·
quashed.

The notification under Section 4(1) of the Rajasthan Act. published c
in the Rajasthan Gazette dated 13.1.1982, proposed to acquire a total
extent of 2,.517 bighas (approximately equal to 1,580 erores) 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
D
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
,1.. 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 E
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 F
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 G
Judges, N.M. Kasliwal and K.S. Siddhu, JJ. differed in their opinions.
--...1'-
. Accordingly, the matter was referred to a third Judge by ap 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- H
274 SUPREME COURT REPORTS [1993) 1 S.C.R.

A 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 arabl~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
B like buts, 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 notifica·
C tion?"

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,
D affirming the view of the learned Single Judge, bis 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 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
kutcbha houses, cattel sheds etc. on a fraction of a land proposed to be
E acquired and also because the notification is not severable, the entire
notification under Section 17(4) is liable to fail. Accordingly, the declara·
tion 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
I
portion of the land proposed to be acquired. there were pucca and kutchha
F 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 Rajas-
than) submitted that the question considered by the Full Bench of the High
G 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 band, S/Sri D.D. Thakur and S.K. Jain, learned
counsel for the respondent-writ petitoners submitted on the basis of the
decision in Slllju Prasad Saha v. The State of Uttar Pardesh, A.LR. 1%5 ,_
H S.C. 1763 that once it is found that a portion of a land proposed to be
HOUSING BOARD v. KISHAN (REDDY, J.] 275

acquir·'d is not waste or arable, the entire notification should fail inasmuch A
as the notification is not severable. They also submitted that the decision
in Dora 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) Yiould 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 B
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 lar!le 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 constructbn of houses by Hous- .
ing Board, it was submitted, was not so urgent as to brook no delay and, C
therefore, the invocation of urgency was not called for.

So far as the main question which was considered by the Full Bench
is concerned, .it is necessary to refer to the factual fmding 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 D
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 upvn a fraction of a land
sought to be acquired. We may quote the following observation from the
judgment of Shanna, J. (majority opinion): E

'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 ho1ises, kham houses and even some pucca
constructions are situated whcih are being used by the appel-
lants for tethering their cattle, storage of fodder and grain and F
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 the entire land sought to be
acquired. G
(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. · H
276 SUPREME COURT REPORTS (1993) 1 S.C.R.

A In State of U.P. v. Smr. 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
.""' -
l(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:
B
'It was next contended that in the large extent of land Jcquired
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 wre situated was unjustified since those portions were
c not either waste or arable lands which could be dealt with under
Section 17(1) of the Act. This contention has not been con-
sidered by the High Court. We do not, however, fmd any
substance in it. The government was not acquiring any property
which was substantially covered by buildings. It acquired about
D 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 Qver which some super-structures
E 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
F 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 stand-
ing because of the special provision which is inserted as sub-
G 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
H land, where the land is acquired for or in connection with
HOUSING BOARD v. KISHAN [REDPY, J.] 277

sanitary improvements of any kind or planned development." A
We ·are of the Ot>inion 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 Amend-
ment. Having expressed a definite opinion that existence of a few super-
structures here and there, where a large extent of land is being acquired, B
does not prevent the gJenment from exercising the power under Section
~ -I 17(4), the learned Jud 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 c
ground. We are of the opinion that even apart from the said State amend·
ment, 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 coun_sel for the respondents, however, submitted on the D
basis of the decision in Sarju Prasad Saha v. The State of U.P. & Ors., A.l.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
A by buildings and constructions whereas only smaller part was waste or arable. E
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:
F
"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 bis conten-
tion, counsei referred us to certain revenue record. But if only
a part of the land is waste or arable and the rest is not, a
G
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 H
278 SUPREME COURT REPORTS (1993) 1 S.C.R.

A S.4{1}, an inquiry must be held under S.5-A giving an oppor-
tunity 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.'

B We do 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.
C 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 judg-
ment of N.L. Untwalia and A.P. Sen, JJ. read thus: ~-
b
'It is to be clearly understood that under sub-section (4}, th~
appropriate Government 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 _;_
E 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
F 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 i' waste or arable nor has it
been stated that in the opinion of the Government, the~e was
any urgency to take recoruse to the provisions of Section 17 of
the Act. A direction to the Collector has been given to take
G 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
H or cavalier manner as has been done in this case.'
HOUSING BOARD v. KISHAN [REDDY, J.] 279

;/ The learned Judges observed that the notification neither mentions A
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
B
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

r
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 therec
is no basis for the respondent's contention that the notllcation 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 lhe invocation of the said power. D
We are not satisfied. Firstly, on this question the decision of the Rajasthan
High Court is against the writ petitioners. The learned Single Judge nega-
tived it as well as Division Bench following the opinion of the third Judge.
Secondly, we are satisfied that there was material before the government
A 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 E
learned Single Judge has referred to the material upon which the govern-
ment bad forined 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 income group people; that the F
Housing Board had obtained a loan of Rs. 16 crores under a time-bound
programme to construct and utilise the said aniount by 313.1983; 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-boun.d
programme. In addition to the said fact, the Division Bench referred to G
certain other material also upiln which the government had formed the said
~~-
satisfaction viz., that in view of the time-bound progranime stipulated by
the lender, HUDCO, the Board bad 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 H
280 SUPREME COURT REPORTS (1993) 1 S.C.R.

A 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.

1
This is the principle affirmed by decisions of this court not only under
B 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
C 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 j
Sangh questioning the very same notification which were questioned in the - ...
D writ petitions filed in Rajasthan High Court and which have given rise to
the aforementioned Civil Appeals. It was admitted because of the penden-
cy 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 notifica-
tion under Section 4(1), quashing of the notification under Section 17{1),
E 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 W.inister of Rajasthan dated 20th July, 1984.

Before us, however, Sri D.D. Thakur, learned counsel for the
F petitioner urged only one contention viz., that by virtue of the decision of
the Minister in-cbMge 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
G iands 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 un 12.1.1982. On
9.2.1982, the notification under section 17{4) and the declaration under
H section 6 were issued. According to the government, possession was also
HOUSING BOARD v. KISHAN [REDDY, J.] 281

tak~n of the entire extent of land on 22nd and 24th of May, 1982. A

The petitioner-cooperative society which claims to have purchased
about 525 bighas of land from the khatedars represented to the Govern-
ment 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 B
decision on 20.7.1984 to release the lands but he was over-ruled by the then
. "I' 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 repre-
c
sentation on 6.2.1990 to the Minister for Urban Development to de-notify
the lands purchased by them. The Minister for Urban Development recom-
mended de-notification which was approved by the Chief Minister Sri
Harideo Joshi on 8.2.1990. It was signed by the .Minister concerned on
~~ D

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 1974-75and1975-76
for purchasing a substantial extent of land for developing the Indira Bihar E
Residential Scheme and had also allotted plots to its three thousand mem-
_bers 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 F
lakhs towards conversion of the land (from agricultu~al to urban land) in the
office of the Additional Collector, Land Ccmversibri. in March, 1982 under
the Land Conversion Rules, 1_981. The Housing B'~.\rll·had actually started
1

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- G
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 Hous-
ing Cooperative Societies on payment of prescribed amount. The said policy
may be applied to the petitioner-society. As far as ihe question of exemption H
282 SUPREME COURT REPORTS (19'J3) 1 S.C.R.
•
A 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
B 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 lo de-acquire Iha
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
C Board wants to acquire this land later on for this purpose.'
The above recommendation was accepted by the Chief Minister on
81.1990 as stated hereinbefore. It appears that the matter again came
before the Hon'ble Chief Minister on 23.21990 when he approved a note,
D 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 regularised accord-
ing 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!fribes land is con-
cerned, in this respect the Government has already taken a decision much
E before, accordmg to which the proceedings are to be taken." Evidently, in
pursuance of the aforesaid decision, the Deputy Secretary, Urban Develop-
ment and Housing Department, Government of Rajasthan, Jaipur ad-
dressed the following letter to the secretary, Rajasthan Housing Board,
Jaipur:
F
'RAJASTHAN GOVERNMENT
URBAN DEVELoPMENT AND HOUSING DEPARTMENT ~-
No. F. 5(3) UDH/92 DATED 24.4.90.

Secretary,
G Rajasthan Housing Board,
Jaipur.

Sub:- In the matter of De-acquisition of land of Indira Bihar
Scheme Sahkari Samiti situated in village Devri, Sukhalpura,
H Jhalana Chaur, and Goliyabas.
HOUSING BOARD v. KISHAN [REDDY, J.] 283

Sir, A
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 B
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 C
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 D
back, therefore, send the valuation within three days. Conver-
sion charges will be payable according to the rules. The copies
of the orders of the court may also be sent.

Yours faithfully,
E
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: F
~ 'No. F. 5(3) UDB/90 Dated: 29.2.90

Copy to the secretary, New Pink City Grab Nirman Sahkari Samiti
Ltd., Bapu Bazar, Jaipur for information. He may kindly intimate as to G
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" H
284 SUPREME COURT REPORTS [1993] 1 S.C.R.

A The learned counsel for the writ petitioners stops here and says that
the above proceedings constitute a definite and 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
B
of Rajasthan, however, filed an additional affidavit setting out the develop-
ments subsequent to the aforesaid letter dated 24.2.1990 which may now
be noticed. The additional affidavit is sworn to by the Secreta1y, 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
c 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
D 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
E 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
F 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 ques-
tion of de-acquiring the said land. The letter dated 24.4.1990 was also
G 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 pur-
chased the said land Ullder agreements of sale, have by separate letters
intimated the Secretary, Rajasthan Housing Board and the Land Acquisi-
tion Collector as far back as 5th Apri~ 1982 that they had no objection to
the acquisition of their lands. They asked for compensation @ Rs. 40,000/
H per bigha.
HOUSING BOARD v. KISHAN [REDDY, J.) 285

From the above material, it is clear that there was no final decision A
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 govern-
ment 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 · B
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. C

We are of the further opinion that 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 D
from the acquistion. 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 E
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 o" any further development works on that land Reading the letter
as a whole, it cannot but be said that the po~ession of the land was taken F
by the government and was also delivered to the Housing Board. Sinee the
possession of the land was taken, there coUld be no question of withdraw-
ing from the acquisition under section 48 of the Land Acquisition Act,
1894.

G
For the above reasons, the writ petition fails and is dismissed with
costs.

G.N. Appeals allowed.
Petition dismissed.