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.

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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

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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

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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

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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.

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