MAHADEO & ORS versus SMT. SOVAN DEVI & ORS on 30 August 2022

MAHADEO & ORS.

v.

SMT. SOVAN DEVI & ORS.

(Civil Appeal No. 5876 of 2022)

AUGUST 30, 2022

[HEMANT GUPTA AND VIKRAM NATH, JJ.]

Rajasthan Special Assistance to Disabled Ex-Servicemen andDependants of Deceased Defence Personnel (Allotment of Lands)Rules, 1963 – Right claimed on the basis of inter-departmentalcommunication – Impermissibility of – Claim of the writ petitionerraising grievance that the possession of the land allotted was nothanded over to her husband (disabled ex-serviceman-sincedeceased) or to her, allowed by High Court – On appeal, held: Thebasis of the claim of the writ petitioner is a letter written by theSecretary of the Soldier Welfare Department to the District Collector,Udaipur on 19.03.71 for allotment of land – Inter-departmentalcommunications are in the process of consideration for appropriatedecision and cannot be relied upon as a basis to claim any right –Thus, inter-departmental communication dtd. 19.03.71 cannot betreated to be a letter of allotment – Further, writ petitioner’s husbanddied on 17.07.98 – He had not taken any action for almost 27years after the so-called letter of allotment during his life time –Writ petitioner was appointed at the office of Director General ofNCC and thereafter, the process of possession was initiated by her– Still further, the alternative land was allotted to the writ petitioneron the strength of the interim orders passed by the Court from timeto time calling upon the officers of the State in Court – Manner inwhich the matter has been dealt with by the High Court under theguise of help to disabled ex-serviceman is unwarranted – Writpetition filed by the writ petitioner is misconceived, mischievouswith collateral motives and may be having the patronage of theofficers/officials – Order passed by High Court set aside.

Allowing the appeal, the Court

HELD: 1.1 It appears that the disabled ex-serviceman(husband of the writ petitioner) applied for allotment of land inthe category of disabled war personnel. The Soldier Welfare153

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ASection of the Revenue Department of the State sent a letter tothe District Collector, Udaipur on 19.3.1971 wherein it wasconveyed that it has been decided to allot 25 Bighas in VillageRohikhera, Tehsil Vallabhanagar comprising in Khasra Nos. 133,135 and 137. There is no letter of allotment of land issued to thehusband of the writ petitioner or to the writ petitioner on recordBin pursuance of the said communication. The said letter is inter-departmental communication and not a communication to thedisabled soldier. [Para 4, 5][157-A-B, G-H]

1.2 The Single Judge found that the alternative land offeredto the writ petitioner is located at a very remote/far off area andCis not cultivable and therefore, a direction was issued to givepossession of the land originally allotted to the writ petitioner.An intra-court appeal preferred by the State remainedunsuccessful. It has come on record that the land in question wasallotted to the writ petitioner. The allottees who were allottedDthe land as mentioned in the report have challenged the orderpassed by the High Court when an attempt was made to evict theappellants from the said land which was cultivated by themallegedly for more than 60 years. The appellants came to knowabout the order passed by the High Court for the first time on27.09.2021 when they filed a civil suit before the Court of SeniorECivil Judge, Vallabhanagar. Since the order was passed by theHigh Court allotting land to the writ petitioner, the appellantsapproached this Court for challenging the order passed by theHigh Court. The High Court had gone out of the way to orderpossession of land which was never proceeded with letter of Fallotment in favour of the writ petitioner. The approach of theHigh Court is most unfortunate. Inter-departmentalcommunications are in the process of consideration for appropriatedecision and cannot be relied upon as a basis to claim any right.[Paras 10-14][160-E; 161-G-H; 162-A-C]

GOmkar Sinha v. Sahadat Khan 2022 SCC OnLine SC601; Reliance was placed on Bachhittar Singh v. Stateof Punjab AIR 1963 SC 395 : [1962] Suppl. SCR 713;K.S.B. Ali v. State of Andhra Pradesh (2018) 11 SCC277 : [2017] 12 SCR 698; Dyna Technologies Pvt. Ltd.

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v. Crompton Greaves Limited (2019) 20 SCC 1;Municipal Committee v. Jai Narayan & Co. 2022 SCCOnLine SC 376 – relied on.

1.3 The basis of the claim of the writ petitioner is a letterwritten by the Secretary of the Soldier Welfare Department tothe District Collector, Udaipur on 19.03.1971 for allotment ofland. The Rules contemplate that if the possession is not takenwithin 6 months, the allotment shall be deemed to have beencancelled. Firstly, the inter-departmental communication dated19.03.1971 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 ofsuch communication after more than 30 years in terms of theRules applicable for allotment of land to the disabled ex-servicemen. The disabled ex-serviceman died on 17.07.1998. Hehad not taken any action for almost 27 years after the so-calledletter of allotment during his life time. It appears that the writpetitioner was appointed at the office of Director General of NCCand thereafter, the process of possession was initiated by her.Still further, the alternative land was allotted to the writ petitioneron the strength of the interim orders passed by the Court fromtime to time calling upon the officers of the State in Court. Theproceedings show an extra interest taken by the High Court,and not in respect of mere allotment of land but also of the landwhich was once allotted and is now close to the National Highway.The manner in which the matter has been dealt with by the HighCourt under the guise of help to disabled ex-serviceman is whollyunwarranted. Therefore, the writ petition filed by the writpetitioner is wholly misconceived, mischievous with collateralmotives and may be having the patronage of the officers/officials.The order passed by the High Court is set aside. [Paras 16-19][165-B-G]

Case Law Reference

[1962] Suppl. SCR 713relied onPara 14[2017] 12 SCR 698relied onPara 14

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 5876of 2022.

From the Judgment and Order dated 19.04.2021 of the High Courtof Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal (Writ)No. 1372 of 2019.

BAbhijeet Chatterjee, Ms. Sweta Sand, Pawan K. Sharma, VinodK. Soni, Dharmendra Kumar Sinha, Advs. for the Appellants.

Gajender Singh Rathore, Shraveen Kumar Verma, Sangeet Singh,Udita Singh, Rahul Kumar, Ms. Kavita Bhadra, Ms. Pragati Neekhra,Advs. for the Respondents.

CThe Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The challenge in the present appeal is to a judgment dated19.04.2021 passed by the High Court of Judicature for Rajasthan wherebythe order passed by the learned Single Judge on 13.11.2018 was upheld.

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2. Shri Bheru Lal while serving as a Sepoy in the Indian Armysuffered an injury on the right leg due to mine blast in the Indo-Pak warof 1965 which led to the amputation of his right foot. He was thereafterinvalidated out of service.

3. The State has framed the Rajasthan Special Assistance toEDisabled Ex-Servicemen and Dependants of Deceased DefencePersonnel (Allotment of Lands) Rules, 1963[1]. Shri Bheru was a disabledex-serviceman within the meaning of Rule 2(a) of the said Rules. Rule 6contemplated allotment of land upto 25 Bighas of irrigated or 50 Bighasof unirrigated land. Rule 3 contemplated that these Rules shall applyonly to the Government lands falling within the Bhakra, Chambal orFRajasthan Canal Project Colonies and already reserved or to be reservedby notification in the Official Gazette for allotment to the disabled ex-servicemen. Further, Rule 7 contemplated the terms and conditions ofallotment. Sub Rule 4 was inserted on 16.02.1967 in Rule 7 which readsthus:G“4. In case the allottee fails to take possession of the land allottedto him within six months from the date of allotment, the allotmentshall be deemed to have been cancelled and the land shall thereuponbe available for re-allotment to any other person under theseRules.”

H1 For short, ‘the Rules’

4. It appears that Shri Bheru Lal applied for allotment of land inthe category of disabled war personnel. The Soldier Welfare Section ofthe 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 decidedto allot 25 Bighas in Village Rohikhera, Tehsil Vallabhanagar comprisingin Khasra Nos. 133, 135 and 137. The letter reads thus:

“Rajasthan Government

Revenue (G) Department

The District CollectorUdaipurNo: Letter No. 77, F-9(15) of Raj. Dated ….March, 1971Soldier Welfare Officer, Office of the District Soldier Board, Sub – Allotment of land and possession to permanently disabledsoldier Sh. Bharon Lal S/o Govinda Bhonyee, R/o Bhayon KiPancholi, Tehsil Girva, Ballabhgarh.

Ref : Letter No. F12(2) 22/70

Sir,

On the basis of recommendations and directions, approvalfor grant of land vide circular No. DS Rav. LR SS Read dated30.09.65, out of the land situated at Rohi Kheda Tehsil BallabhGarh Nagar bearing Khasra No. 133, 135, 137 land 25 Bigha nonirrigated land is allotted to permanently disabled soldier Sh. BharonLal S/o Govinda Bhonyee, R/o Bhayon Ki Pancholi, Tehsil Girva,Ballabhgarh.

With RegardsSd/-S.K. Bhat Section Officer Shekhawat19.03.71"

5. There is no letter of allotment of land issued to the husband ofthe writ petitioner or to the writ petitioner on record in pursuance of theabove communication. The above letter is inter-departmentalcommunication and not a communication to the disabled soldier. In fact,an affidavit was sought from the Revenue Secretary of the Government A

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Aof Rajasthan and in such affidavit dated 06.05.2022, it was stated asunder:

“23. I further state that the original copy of the sanctioning letterdated 19.03.1971 is not available in the office of record room ofthe Respondent State.”

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6. Shri Bheru Lal died on 17.07.1998. The wife, Sovan Devi[2]succeeded the estate of her husband. It appears that she is working inthe Headquarters of Director General, NCC. The writ petitionersubmitted a representation while working in the Headquarters of DGNCCon 12.01.2010 that the possession of the land has not been handed overCeither to her husband or to her. The writ petitioner said to the followingeffect:

“To,SecretaryDistt – SS & A BoardUdaipurDRajasthan SUB: ALLOTMENT OF LAND TO DISABLED SOLDIERLATE SEP BHERU LAL S/O GOVIND BAOMOLI

Sir,

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I have the honour to request that I Smt. Sovan Devi W/oEx Late Sep Bheryu Lal r/o village – Boyaki Pachauli, Dist-Udaipur, Rajasthan.

A piece of land measuring 25 Bigha was allotted to myhusband by Revenue Deptt Soldier Welfare of Udaipur in villageFRohi-Ka-Khera. The Batlgar of Khasra No. 133, 134 and 135vide revenue Deptt. letter No. F 12 (2) 22/70 dated 07-04-1970but neither my husband (when he was alive) nor me get thepossession of land till today.

Recently when, I visited to the site and enquired about theland, I found that it was sold to different people of different placesand they got registered in the Tehsil also. I met with Patwari ofthe area and shown my paper to him, he shown me the records ofthe land sold to different people and given me a copy of ‘Intkal’ ofdifferent people (copy att.).

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H2 For short, the ‘writ petitioner’

Now, through your record, I request that the case may betaken up with revenue Deptt, Udaipur for getting the possessionof 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 highlyobliged through out of my life.

BYours faithfully,(Sovan Devi)HQ DGNCCMS(B)CWB-IV, R.K. PuramNew Delhi-11006612 Jan 2010"

7. On the basis of such letter, the comments of the Report of theTehsildar were asked by the District Collector on 11.06.2010. TheTehsildar reported that land measuring 125 Bighas has been allotted to20 persons as mentioned in the said communication. It was also pointedout that remaining land measuring 31 Bighas 11 Biswas is unoccupiedwhich is in Nadi (pond), i.e., land which is always filled with water. TheDistrict Collector communicated to the Sub-Divisional Officer on07.01.2011 that the land has not been registered in the name of thehusband of the writ petitioner, nor such case was found at the level ofSub-Division and Tehsil. It was proposed that the case be put up in theVigilance Sub-Division Level Committee in view of the fact that theland stood allotted to different persons. The writ petitioner communicatedon 27.06.2011 that she has no objection if alternative land is allotted toher. There are subsequent communications in the affidavit filed by theSecretary, Revenue discussing the question of allotment of land to thewrit petitioner. It was on 04.06.2012 that the District Collectorcommunicated to the District Soldier Welfare Officer that the questionof allotment of land to the writ petitioner in Pancholi, Tehsil Girva, DistrictUdaipur is under consideration.

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8. The writ petitioner thus filed a Writ Petition No. 4513 of 2013raising a grievance that the possession of the land allotted on 19.3.1971has not been handed over to her husband or to her. She averred thefollowing:

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A“3. That the petitioner is at present working with HQ, DGNCC,MS (B), WB-IV, R.K. Puram, New Delhi-110066.

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5. That on account of being invalidated out of service for hisdisability sustained during 1965 operation, the respondent no.1Bthrough his letter dated 19.03.1971 informed the respondent no.3than as per circular no. DS/Rev LR-SSB dated 30.09.1965 as perlegitimate recommendation Shri Bheru Lal has been sanctionedto be allotted 25 bighas of un-irrigated agricultural land of KhasraNo. 133, 135 & 137 of village Rohi-kheda Tehsil Vallabh Nagar,CDistrict-Udaipur.”

9. The High Court passed various orders to ensure possession ofthe land given to her. In an affidavit filed by the Sub-Divisional Officer,Vallabhanagar, District Udaipur, before the High Court, it was statedthat the request of the writ petitioner for allotment of alternative landDwas considered by the Allotment Advisory Committee on 19.08.2015wherein, 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 offeredEto the writ petitioner is located at a very remote/far off area and is notcultivable and therefore, a direction was issued to give possession of theland originally allotted to the writ petitioner. It was held as under:

“……. Manifestly, with efflux of time, the Khasras Nos. 133, 135and 137 have gained proximity with the National Highway and asFa consequence, the value thereof must have spiralled upsignificantly. The alternate land offered to the petitioner vide orderdated 19.08.2015 is located in a very remote/far off area and isnot cultivable. Thus, the petitioner is perfectly justified in claimingthat the original allotment letter should be honoured and enforced.The allotment was made to an Ex-serviceman who becameGdisabled in the war filed and thus, technicalities and pedanticapproach of the government officials can in no manner beappreciated or allowed to come in way of his widow i.e. thepetitioner herein while considering her lawful claim for the landallotted to her husband. The initial opposition to the petitioner’sclaim for allotment of land in the self-same Khasras as put forth H

by the respondents was that it was falling within the catchmentarea. The said plea is totally falsified from the Tehsildar’s letterdated 03.08.2018 (reproduced supra) Shri Sunil Joshi associate toShri Rajesh Panwar, AAG candidly conceded during argumentsthat the report of the revenue authorities was misunderstood bythe concerned Government Counsel who made this inadvertentadmission in the Court on 19.09.2018. Manifestly, this approachof the State Counsel in presenting twisted facts for opposing theplea of the petitioner is absolutely depreciable. On a plain readingof various reports/communications of the revenue authorities, it isclear that the remaining land of the subject Khasras is not reservedas catchment area in the revenue record. It is only because ofnatural contours of the terrain, water gets collected thereuponand thus, casual description is given to the remaining 31 bighasland of Khasra Nos. 133, 135 and 137 as a nadi. However, it isnot the case of the respondents that water remains accumulatedon the chunk of land in question all year around. This accumulationis reported only during the monsoon period. This problem can beresolved easily by pumping the water out. Otherwise also, sincethe petitioner insists that she is ready to accept the plot of land inthe same condition it exists, manifestly, the respondents have nobusiness to deprive the petitioner from her lawful claim thereuponon frivolous premises.

In view of the fact that there is no legal impediment so asto deprive the petitioner from seeking possession of the land allottedto her late husband (a war disabled ex-serviceman) and as, 31bighas of vacant land is admittedly available in the disputedKhasras, this Court is of the firm view that the respondents shouldbe directed to hand over possession of 25 bighas of land from thesubject Khasras to the petitioner as per her lawful entitlement.”

11. An intra-court appeal preferred by the State remainedunsuccessful. It has come on record that the land in question was allottedto the writ petitioner. The allottees who were allotted the land asmentioned in the report have challenged the order passed by the HighCourt when an attempt was made to evict the appellants from the saidland which was cultivated by them allegedly for more than 60 years.

12. The appellants came to know about the order passed by theHigh Court for the first time on 27.09.2021 when they filed a civil suit AB

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Abefore the Court of Senior Civil Judge, Vallabhanagar. Since the orderwas passed by the High Court allotting land to the writ petitioner, theappellants approached this Court for challenging the order passed by theHigh Court.

13. The High Court had gone out of the way to order possessionBof land which was never proceeded with letter of allotment in favour ofthe writ petitioner. The approach of the High Court is most unfortunate.

14. It is well settled that inter-departmental communications arein the process of consideration for appropriate decision and cannot berelied upon as a basis to claim any right. This Court examined the saidCquestion in a judgment reported as Omkar Sinha v. Sahadat Khan[3].Reliance was placed on Bachhittar Singh v. State of Punjab[4] to holdthat merely writing something on the file does not amount to an order.Before something amounts to an order of the State Government, twothings are necessary. First, the order has to be expressed in the name ofthe Governor as required by clause (1) of Article 166 and second, it hasDto be communicated. As already indicated, no formal order modifyingthe decision of the Revenue Secretary was ever made. Until such anorder is drawn up, the State Government cannot, in our opinion, beregarded as bound by what was stated in the file. The said judgmentwas followed in K.S.B. Ali v. State of Andhra Pradesh[5], and DynaETechnologies Pvt. Ltd. v. Crompton Greaves Limited[6]. In BachhittarSingh, it has been held as under:

“8. What we have now to consider is the effect of the note recordedby the Revenue Minister of PEPSU upon the file. We will assumefor the purpose of this case that it is an order. Even so, the questionFis whether it can be regarded as the order of the State Governmentwhich alone, as admitted by the appellant, was competent to hearand decide an appeal from the order of the Revenue Secretary.Article 166(1) of the Constitution requires that all executive actionof the Government of a State shall be expressed in the name ofthe Governor. Clause (2) of Article 166 provides for theGauthentication of orders and other instruments made and executedin the name of the Governor. Clause (3) of that article enables the 3 2022 SCC OnLine SC 601

4 AIR 1963 SC 395

5 (2018) 11 SCC 277

H6 (2019) 20 SCC 1

Governor to make rules for the more convenient transaction ofthe business of the Government and for the allocation among theMinisters of the said business. What the appellant calls an orderof the State Government is admittedly not expressed to be in thename of the Governor. But with that point we shall deal later.What we must first ascertain is whether the order of the RevenueMinister 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 Businessof the Government of PEPSU which reads thus:

“Except as otherwise provided by any other Rule, cases shallordinarily be disposed of by or under the authority of the Ministerin charge who may by means of standing orders give suchdirections as he thinks fit for the disposal of cases in theDepartment. Copies of such standing orders shall be sent tothe Rajpramukh and the Chief Minister.”

According to learned counsel for the appellant his appeal pertainsto the department which was in charge of the Revenue Ministerand, therefore, he could deal with it. His decision and order would,according to him, be the decision and order of the StateGovernment. On behalf of the State reliance was, however, placedon Rule 34 which required certain classes of cases to be submittedto the Rajpramukh and the Chief Minister before the issue oforders. But it was conceded during the course of the argumentthat a case of the kind before us does not fall within that rule. Noother provision bearing on the point having been brought to ournotice we would, therefore, hold that the Revenue Minister couldmake an order on behalf of the State Government.

9. The question, therefore, is whether he did in fact make such anorder. Merely writing something on the file does not amount to anorder. Before something amounts to an order of the StateGovernment two things are necessary. The order has to beexpressed in the name of the Governor as required by clause (1)of Article 166 and then it has to be communicated. As alreadyindicated, no formal order modifying the decision of the RevenueSecretary was ever made. Until such an order is drawn up theState Government cannot, in our opinion, be regarded as boundby what was stated in the file. As long as the matter rested with A

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Ahim the Revenue Minister could well score out his remarks orminutes on the file and write fresh ones.

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11. We are, therefore, of the opinion that the remarks or the orderof the Revenue Minister, PEPSU are of no avail to the appellant.”B

15. This Court in Municipal Committee v. Jai Narayan & Co.[7]held that a noting recorded in the file is merely a noting simpliciter andnothing more. It merely represents expression of an opinion by theparticular individual. It was held as under:

C“16. This Court in a judgment reported as State ofUttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670 held thata noting recorded in the file is merely a noting simpliciter andnothing more. It merely represents expression of opinion by theparticular individual. By no stretch of imagination, such notingcan be treated as a decision of the Government. It was held asDunder:

“24. A noting recorded in the file is merely a noting simpliciterand nothing more. It merely represents expression of opinionby the particular individual. By no stretch of imagination, suchnoting can be treated as a decision of the Government. Even ifthe competent authority records its opinion in the file on themerits of the matter under consideration, the same cannot betermed as a decision of the Government unless it is sanctifiedand acted upon by issuing an order in accordance with Articles77(1) and (2) or Articles 166(1) and (2). The noting in the fileor even a decision gets culminated into an order affecting rightof the parties only when it is expressed in the name of thePresident or the Governor, as the case may be, andauthenticated in the manner provided in Article 77(2) or Article166(2). A noting or even a decision recorded in the file canalways be reviewed/reversed/overruled or overturned and thecourt cannot take cognizance of the earlier noting or decisionfor exercise of the power of judicial review. (See State ofPunjab v. Sodhi Sukhdev Singh AIR 1961 SC 493,Bachhittar Singh v. State of Punjab, AIR 1963 SC 395, Stateof Bihar v. Kripalu Shankar (1987) 3 SCC 34, Rajasthan E

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Housing Board v. Shri Kishan (1993) 2 SCC 84, Sethi AutoService Station v. DDA (2009) 1 SCC 180 and Shanti SportsClub v. Union of India (2009) 15 SCC 705).”

17. Thus, the letter seeking approval of the State Governmentby the Deputy Commissioner is not the approval granted byhim, which could be enforced by the plaintiff in the court oflaw.”

16. The basis of the claim of the writ petitioner is a letter writtenby the Secretary of the Soldier Welfare Department to the DistrictCollector, Udaipur on 19.03.1971 for allotment of land. The Rulescontemplate that if the possession is not taken within 6 months, theallotment shall be deemed to have been cancelled. Firstly, the inter-departmental communication dated 19.03.1971 cannot be treated to bea letter of allotment. Alternatively, even if it is considered to be a letterof allotment, the writ petitioner could not claim possession on the basisof such communication after more than 30 years in terms of the Rulesapplicable for allotment of land to the disabled ex-servicemen.

17. The disabled ex-serviceman had not taken any action for almost27 years after the so-called letter of allotment during his life time. Itappears that the writ petitioner was appointed at the office of DirectorGeneral of NCC and thereafter, the process of possession was initiatedby her. Still further, the alternative land was allotted to the writ petitioneron the strength of the interim orders passed by the Court from time totime calling upon the officers of the State in Court. The proceedingsshow an extra interest taken by the High Court, and not in respect ofmere allotment of land but also of the land which was once allotted andis now close to the National Highway. The manner in which the matterhas been dealt with by the High Court under the guise of help to disabledex-serviceman is wholly unwarranted.

18. Therefore, we find that the writ petition filed by the writpetitioner is wholly misconceived, mischievous with collateral motivesand may be having the patronage of the officers/officials.

19. Consequently, the appeal is allowed. The order passed by theHigh Court is set aside with no order as to costs.

Divya Pandey

Appeal allowed.

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