MAHADEO & ORS VERSUS SMT. SOVAN DEVI & ORS

MAHADEO & ORS VERSUS SMT. SOVAN DEVI & ORS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5876 OF 2022
(ARISING OUT OF S.L.P. (C) NO. 20839 OF 2021)
MAHADEO & ORS. .....APPELLANT(S)
VERSUS
SMT. SOVAN DEVI & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. The challenge in the present appeal is to a judgment dated 19.04.2021
passed by the High Court of Judicature for Rajasthan whereby the order
passed by the learned Single Judge on 13.11.2018 was upheld.
2. Shri Bheru Lal while serving as a Sepoy in the Indian Army suffered an
injury on the right leg due to mine blast in the Indo-Pak war of 1965
which led to the amputation of his right foot. He was thereafter
invalidated out of service.
3. The State has framed the Rajasthan Special Assistance to Disabled ExServicemen and Dependants of Deceased Defence Personnel
(Allotment of Lands) Rules, 19631
. Shri Bheru was a disabled ex1 For short, ‘the Rules’
1
serviceman within the meaning of Rule 2(a) of the said Rules. Rule 6
contemplated allotment of land upto 25 Bighas of irrigated or 50
Bighas of unirrigated land. Rule 3 contemplated that these Rules shall
apply only to the Government lands falling within the Bhakra, Chambal
or Rajasthan Canal Project Colonies and already reserved or to be
reserved by notification in the Official Gazette for allotment to the
disabled ex-servicemen. Further, Rule 7 contemplated the terms and
conditions of allotment. Sub Rule 4 was inserted on 16.02.1967 in Rule
7 which reads thus:
“4. In case the allottee fails to take possession of the land
allotted to him within six months from the date of allotment, the
allotment shall be deemed to have been cancelled and the land
shall thereupon be available for re-allotment to any other person
under these Rules.”
4. It appears that Shri Bheru Lal applied for allotment of land in the
category of disabled war personnel. The Soldier Welfare Section of the
Revenue Department of the State sent a letter to the District Collector,
Udaipur on 19.3.1971 wherein it was conveyed that it has been
decided to allot 25 Bighas in Village Rohikhera, Tehsil Vallabhanagar
comprising in Khasra Nos. 133, 135 and 137. The letter reads thus:
“Rajasthan Government
Revenue (G) Department
The District Collector
Udaipur
No: Letter No. 77, F-9(15) of Raj. Dated ….March, 1971
Soldier Welfare Officer,
2
Office of the District Soldier Board,
Sub – Allotment of land and possession to permanently disabled soldier Sh.
Bharon Lal S/o Govinda Bhonyee, R/o Bhayon Ki Pancholi, Tehsil Girva,
Ballabhgarh.
Ref : Letter No. F12(2) 22/70
Sir,
On the basis of recommendations and directions, approval for grant of
land vide circular No. DS Rav. LR SS Read dated 30.09.65, out of the land
situated at Rohi Kheda Tehsil Ballabh Garh Nagar bearing Khasra No. 133,
135, 137 land 25 Bigha non irrigated land is allotted to permanently disabled
soldier Sh. Bharon Lal S/o Govinda Bhonyee, R/o Bhayon Ki Pancholi, Tehsil
Girva, Ballabhgarh.
 With Regards
Sd/-
S.K. Bhat
Section Officer
Shekhawat
19.03.71”
5. There is no letter of allotment of land issued to the husband of the writ
petitioner or to the writ petitioner on record in pursuance of the above
communication. The above letter is inter-departmental communication
and not a communication to the disabled soldier. In fact, an affidavit
was sought from the Revenue Secretary of the Government of
Rajasthan and in such affidavit dated 06.05.2022, it was stated as
under:
“23. I further state that the original copy of the sanctioning letter
dated 19.03.1971 is not available in the office of record room of
the Respondent State.”
6. Shri Bheru Lal died on 17.07.1998. The wife, Sovan Devi2
 succeeded
2 For short, the ‘writ petitioner’
3
the estate of her husband. It appears that she is working in the
Headquarters of Director General, NCC. The writ petitioner submitted a
representation while working in the Headquarters of DGNCC on
12.01.2010 that the possession of the land has not been handed over
either to her husband or to her. The writ petitioner said to the following
effect:
“To,
Secretary
Distt – SS & A Board
Udaipur
Rajasthan
SUB: ALLOTMENT OF LAND TO DISABLED SOLDIER LATE
SEP BHERU LAL S/O GOVIND BAOMOLI
Sir,
I have the honour to request that I Smt. Sovan Devi W/o
Ex Late Sep Bheryu Lal r/o village – Boyaki Pachauli, DistUdaipur, Rajasthan.
A piece of land measuring 25 Bigha was allotted to my
husband by Revenue Deptt Soldier Welfare of Udaipur in village
Rohi-Ka-Khera. The Batlgar of Khasra No. 133, 134 and 135 vide
revenue Deptt. letter No. F 12 (2) 22/70 dated 07-04-1970 but
neither my husband (when he was alive) nor me get the
possession of land till today.
Recently when, I visited to the site and enquired about the
land, I found that it was sold to different people of different
places and they got registered in the Tehsil also. I met with
Patwari of the area and shown my paper to him, he shown me
the records of the land sold to different people and given me a
copy of ‘Intkal’ of different people (copy att.).
Now, through your record, I request that the case may be
taken up with revenue Deptt, Udaipur for getting the possession
of the land which will help me who is a widow and poor lady.
4
I shall be thankful to you for this act of kindness and
highly obliged through out of my life.
Yours faithfully,
(Sovan Devi)
HQ DGNCC
MS(B)
WB-IV, R.K. Puram
New Delhi-110066
12 Jan 2010”
7. On the basis of such letter, the comments of the Report of the Tehsildar
were asked by the District Collector on 11.06.2010. The Tehsildar
reported that land measuring 125 Bighas has been allotted to 20
persons as mentioned in the said communication. It was also pointed
out that remaining land measuring 31 Bighas 11 Biswas is unoccupied
which is in Nadi (pond), i.e., land which is always filled with water. The
District Collector communicated to the Sub-Divisional Officer on
07.01.2011 that the land has not been registered in the name of the
husband of the writ petitioner, nor such case was found at the level of
Sub-Division and Tehsil. It was proposed that the case be put up in the
Vigilance Sub-Division Level Committee in view of the fact that the
land stood allotted to different persons. The writ petitioner
communicated on 27.06.2011 that she has no objection if alternative
land is allotted to her. There are subsequent communications in the
affidavit filed by the Secretary, Revenue discussing the question of
allotment of land to the writ petitioner. It was on 04.06.2012 that the
District Collector communicated to the District Soldier Welfare Officer
5
that the question of allotment of land to the writ petitioner in Pancholi,
Tehsil Girva, District Udaipur is under consideration.
8. The writ petitioner thus filed a Writ Petition No. 4513 of 2013 raising a
grievance that the possession of the land allotted on 19.3.1971 has not
been handed over to her husband or to her. She averred the following:
“3. That the petitioner is at present working with HQ, DGNCC, MS
(B), WB-IV, R.K. Puram, New Delhi-110066.
xxx xxx xxx
5. That on account of being invalidated out of service for his
disability sustained during 1965 operation, the respondent no.1
through his letter dated 19.03.1971 informed the respondent
no.3 than as per circular no. DS/Rev LR-SSB dated 30.09.1965 as
per legitimate recommendation Shri Bheru Lal has been
sanctioned to be allotted 25 bighas of un-irrigated agricultural
land of Khasra No. 133, 135 & 137 of village Rohi-kheda Tehsil
Vallabh Nagar, District-Udaipur.”
9. The High Court passed various orders to ensure possession of the land
given to her. In an affidavit filed by the Sub-Divisional Officer,
Vallabhanagar, District Udaipur, before the High Court, it was stated
that the request of the writ petitioner for allotment of alternative land
was considered by the Allotment Advisory Committee on 19.08.2015
wherein, Survey No. 209 measuring 25 Bighas out of total 101.15
Bighas, Village Sagatpura was recommended to be allotted to the writ
petitioner. The allotment letter was attached with the affidavit.
10. The learned Single Judge found that the alternative land offered to the
writ petitioner is located at a very remote/far off area and is not
6
cultivable and therefore, a direction was issued to give possession of
the land originally allotted to the writ petitioner. It was held as under:
“……. Manifestly, with efflux of time, the Khasras Nos. 133, 135
and 137 have gained proximity with the National Highway and as
a consequence, the value thereof must have spiralled up
significantly. The alternate land offered to the petitioner vide
order dated 19.08.2015 is located in a very remote/far off area
and is not cultivable. Thus, the petitioner is perfectly justified in
claiming that the original allotment letter should be honoured
and enforced. The allotment was made to an Ex-serviceman who
became disabled in the war filed and thus, technicalities and
pedantic approach of the government officials can in no manner
be appreciated or allowed to come in way of his widow i.e. the
petitioner herein while considering her lawful claim for the land
allotted to her husband. The initial opposition to the petitioner’s
claim for allotment of land in the self-same Khasras as put forth
by the respondents was that it was falling within the catchment
area. The said plea is totally falsified from the Tehsildar’s letter
dated 03.08.2018 (reproduced supra) Shri Sunil Joshi associate
to Shri Rajesh Panwar, AAG candidly conceded during arguments
that the report of the revenue authorities was misunderstood by
the concerned Government Counsel who made this inadvertent
admission in the Court on 19.09.2018. Manifestly, this approach
of the State Counsel in presenting twisted facts for opposing the
plea of the petitioner is absolutely depreciable. On a plain
reading of various reports/communications of the revenue
authorities, it is clear that the remaining land of the subject
Khasras is not reserved as catchment area in the revenue
record. It is only because of natural contours of the terrain, water
gets collected thereupon and thus, casual description is given to
the remaining 31 bighas land of Khasra Nos. 133, 135 and 137
as a nadi. However, it is not the case of the respondents that
water remains accumulated on the chunk of land in question all
year around. This accumulation is reported only during the
monsoon period. This problem can be resolved easily by
pumping the water out. Otherwise also, since the petitioner
insists that she is ready to accept the plot of land in the same
condition it exists, manifestly, the respondents have no business
to deprive the petitioner from her lawful claim thereupon on
frivolous premises.
In view of the fact that there is no legal impediment so as
7
to deprive the petitioner from seeking possession of the land
allotted to her late husband (a war disabled ex-serviceman) and
as, 31 bighas of vacant land is admittedly available in the
disputed Khasras, this Court is of the firm view that the
respondents should be directed to hand over possession of 25
bighas of land from the subject Khasras to the petitioner as per
her lawful entitlement.”
11. An intra-court appeal preferred by the State remained unsuccessful. It
has come on record that the land in question was allotted to the writ
petitioner. The allottees who were allotted the land as mentioned in the
report have challenged the order passed by the High Court when an
attempt was made to evict the appellants from the said land which was
cultivated by them allegedly for more than 60 years.
12. The appellants came to know about the order passed by the High Court
for the first time on 27.09.2021 when they filed a civil suit before the
Court of Senior Civil Judge, Vallabhanagar. Since the order was passed
by the High Court allotting land to the writ petitioner, the appellants
approached this Court for challenging the order passed by the High
Court.
13. The High Court had gone out of the way to order possession of land
which was never proceeded with letter of allotment in favour of the
writ petitioner. The approach of the High Court is most unfortunate.
14. It is well settled that inter-departmental communications are in the
process of consideration for appropriate decision and cannot be relied
upon as a basis to claim any right. This Court examined the said
8
question in a judgment reported as Omkar Sinha v. Sahadat Khan
3
.
Reliance was placed on Bachhittar Singh v. State of Punjab
4
 to hold
that merely writing something on the file does not amount to an order.
Before something amounts to an order of the State Government, two
things are necessary. First, the order has to be expressed in the name
of the Governor as required by clause (1) of Article 166 and second, it
has to be communicated. As already indicated, no formal order
modifying the decision of the Revenue Secretary was ever made. Until
such an order is drawn up, the State Government cannot, in our
opinion, be regarded as bound by what was stated in the file. The said
judgment was followed in K.S.B. Ali v. State of Andhra Pradesh
5
,
and Dyna Technologies Pvt. Ltd. v. Crompton Greaves Limited
6
.
In Bachhittar Singh, it has been held as under:
“8. What we have now to consider is the effect of the
note recorded by the Revenue Minister of PEPSU upon
the file. We will assume for the purpose of this case that
it is an order. Even so, the question is whether it can be
regarded as the order of the State Government which
alone, as admitted by the appellant, was competent to
hear and decide an appeal from the order of the Revenue
Secretary. Article 166(1) of the Constitution requires that
all executive action of the Government of a State shall be
expressed in the name of the Governor. Clause (2) of
Article 166 provides for the authentication of orders and
other instruments made and executed in the name of the
Governor. Clause (3) of that article enables the Governor
to make rules for the more convenient transaction of the
business of the Government and for the allocation among
3 2022 SCC OnLine SC 601
4 AIR 1963 SC 395
5 (2018) 11 SCC 277
6 (2019) 20 SCC 1
9
the Ministers of the said business. What the appellant
calls an order of the State Government is admittedly not
expressed to be in the name of the Governor. But with
that point we shall deal later. What we must first
ascertain is whether the order of the Revenue Minister is
an order of the State Government i.e. of the Governor. In
this connection we may refer to Rule 25 of the Rules of
Business of the Government of PEPSU which reads thus:
“Except as otherwise provided by any other Rule,
cases shall ordinarily be disposed of by or under
the authority of the Minister in charge who may
by means of standing orders give such directions
as he thinks fit for the disposal of cases in the
Department. Copies of such standing orders shall
be sent to the Rajpramukh and the Chief
Minister.”
According to learned counsel for the appellant his appeal
pertains to the department which was in charge of the
Revenue Minister and, therefore, he could deal with it.
His decision and order would, according to him, be the
decision and order of the State Government. On behalf of
the State reliance was, however, placed on Rule 34 which
required certain classes of cases to be submitted to the
Rajpramukh and the Chief Minister before the issue of
orders. But it was conceded during the course of the
argument that a case of the kind before us does not fall
within that rule. No other provision bearing on the point
having been brought to our notice we would, therefore,
hold that the Revenue Minister could make an order on
behalf of the State Government.
9. The question, therefore, is whether he did in fact make
such an order. Merely writing something on the file does
not amount to an order. Before something amounts to an
order of the State Government two things are necessary.
The order has to be expressed in the name of the
Governor as required by clause (1) of Article 166 and
then it has to be communicated. As already indicated, no
formal order modifying the decision of the Revenue
Secretary was ever made. Until such an order is drawn
up the State Government cannot, in our opinion, be
regarded as bound by what was stated in the file. As long
as the matter rested with him the Revenue Minister could
10
well score out his remarks or minutes on the file and
write fresh ones.
xxx xxx xxx
11. We are, therefore, of the opinion that the remarks or
the order of the Revenue Minister, PEPSU are of no avail
to the appellant.”
15. This Court in Municipal Committee v. Jai Narayan & Co.
7
 held that
a noting recorded in the file is merely a noting simpliciter and nothing
more. It merely represents expression of an opinion by the particular
individual. It was held as under:
“16. This Court in a judgment reported as State of
Uttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670 held that a
noting recorded in the file is merely a noting simpliciter and
nothing more. It merely represents expression of opinion by the
particular individual. By no stretch of imagination, such noting
can be treated as a decision of the Government. It was held as
under:
“24. A noting recorded in the file is merely a noting
simpliciter and nothing more. It merely represents
expression of opinion by the particular individual. By no
stretch of imagination, such noting can be treated as a
decision of the Government. Even if the competent
authority records its opinion in the file on the merits of
the matter under consideration, the same cannot be
termed as a decision of the Government unless it is
sanctified and acted upon by issuing an order in
accordance with Articles 77(1) and (2) or Articles 166(1)
and (2). The noting in the file or even a decision gets
culminated into an order affecting right of the parties
only when it is expressed in the name of the President or
the Governor, as the case may be, and authenticated in
the manner provided in Article 77(2) or Article 166(2). A
noting or even a decision recorded in the file can always
be reviewed/reversed/overruled or overturned and the
court cannot take cognizance of the earlier noting or
7 2022 SCC OnLine SC 376
11
decision for exercise of the power of judicial review.
(See State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC
493, Bachhittar Singh v. State of Punjab, AIR 1963 SC
395, State of Bihar v. Kripalu Shankar (1987) 3 SCC
34, Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC
84, Sethi Auto Service Station v. DDA (2009) 1 SCC
180 and Shanti Sports Club v. Union of India (2009) 15
SCC 705).”
17. Thus, the letter seeking approval of the State
Government by the Deputy Commissioner is not the
approval granted by him, which could be enforced by the
plaintiff in the court of law.”
16. The basis of the claim of the writ petitioner is a letter written by the
Secretary of the Soldier Welfare Department to the District Collector,
Udaipur on 19.03.1971 for allotment of land. The Rules contemplate
that if the possession is not taken within 6 months, the allotment shall
be deemed to have been cancelled. Firstly, the inter-departmental
communication dated 19.03.1971 cannot be treated to be a letter of
allotment. Alternatively, even if it is considered to be a letter of
allotment, the writ petitioner could not claim possession on the basis of
such communication after more than 30 years in terms of the Rules
applicable for allotment of land to the disabled ex-servicemen.
17. The disabled ex-serviceman had not taken any action for almost 27
years after the so-called letter of allotment during his life time. It
appears that the writ petitioner was appointed at the office of Director
General of NCC and thereafter, the process of possession was initiated
by her. Still further, the alternative land was allotted to the writ
petitioner on the strength of the interim orders passed by the Court
12
from time to time calling upon the officers of the State in Court. The
proceedings show an extra interest taken by the High Court, and not in
respect of mere allotment of land but also of the land which was once
allotted and is now close to the National Highway. The manner in which
the matter has been dealt with by the High Court under the guise of
help to disabled ex-serviceman is wholly unwarranted.
18. Therefore, we find that the writ petition filed by the writ petitioner is
wholly misconceived, mischievous with collateral motives and may be
having the patronage of the officers/officials.
19. Consequently, the appeal is allowed. The order passed by the High
Court is set aside with no order as to costs.
.............................................J.
(HEMANT GUPTA)
.............................................J.
(VIKRAM NATH)
NEW DELHI;
AUGUST 30, 2022.
13

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