Jethmal Bhojraj And Other v. State Of Bihar — 1974 DIGILAW 188 (PAT)

Judgment NAGENDRA PRASAD SINGH, J. 1. The two writ applications have been filed by the petitioners for quashing two notifications, No. DLA-Haz, 64/59-1247R and No. DLA-Haz, 64/59-1246R, dated the 16th February, 1968, issued by the respondent State of Bihar in exercise of the powers conferred on it under Sec. 48 (1) of tile Land Acquisition Act, 1894 (1 of 1894) - hereinafter referred to as the Act copies whereof are Annexure "1" to the respective writ applications. By notification No. 1247R, the State Government passed an order withdrawing from acquisition of the lands which had been notified for acquisition under Sec. 6 of the Act under declaration No. 5167, dated the 19th May, 1959. Similarly, by notification No. 1246R, the State has purported to withdraw from acquisition of the lands which had been notified for acquisition by declaration No. 5168, dated the 19th May, 1959, under Sec. 6 of the Act. The aforesaid two notifications under Sec. 48 (1) of the Act are said to be illegal, void and without jurisdiction. The petitioners have also made a prayer for a mandamus on the respondent State commanding it not to give effect to the said notifications and for a direction to the District Judge of Hazaribagh to proceed with the two Land Reforms Cases Nos. 531 and 530 of 1966, ignoring the aforesaid two notifications. 2. As common questions of law and fact arise in both the writ applications, they have been heard together with the consent of the parties and this judgment will govern them both. Two writ applications have been filed because the declarations under Sec. 6 of the Act in respect of the two blocks of lands were separate and as such the notifications under Sec. 48 (1) of the Act were also issued separately. C. W. J. C. No. 253 of 1968 relates to the bigger block and on the prayer made on behalf of the petitioners that case was taken up for hearing first. 3. According to the case of the petitioners, petitioner No. 1 is a partnership firm and petitioner No. 2 is one of its partners. In the years 1944-46, the petitioners acquired about 3,500 acres of land in village Telaiya and Debipur, within Kodarma police station in the district of Hazaribagh, under different registered pattas, with an intention to establish a modem mechanised agricultural farm, after clearing the forests thereon. In the years 1944-46, the petitioners acquired about 3,500 acres of land in village Telaiya and Debipur, within Kodarma police station in the district of Hazaribagh, under different registered pattas, with an intention to establish a modem mechanised agricultural farm, after clearing the forests thereon. With the said object, the petitioners built quarters, shed for labourers, roads, culverts and bridges and excavated tanks and water reservoirs. They also applied for a loan of rupees ten lacs from the State Government for development of the aforesaid lands, and, on the 2nd December, 1947, a loan of Rs. 41,865.00 was granted by the respondent State to them. The said loan was invested for the development of the said lands. The petitioners, thereafter, invested a huge amount of money. But, before they could get any return out of the same, the respondent issued a notification, dated the 11th June, 1948, in purported exercise of its powers under Sections 14 and 21 of the Bihar Private Forests Act, 1947 (Bihar Act IX of 1948), declaring the aforesaid lands of the petitioners as protected forests. In pursuance of the said notification, the respondent State took possession of the lands from the petitioners, although it had no power under the Act to acquire raiyati lands. The petitioners were further restrained from carrying on the development work. Later, it appears that the respondent State realised the legal flaw in the notification issued under the Bihar Private Forests Act, and issued another notification in exercise of its powers under Sec.29 of the Indian Forest Act (Act XVI of 1927). The said notification was also misconceived in law and under that Act the respondent could not have taken possession of the lands; nonetheless, the State continued to remain in possession of the lands belonging to the petitioners. Subsequently, having realised its mistake, and, in order to regularise the taking of possession and its title, a requisition, dated the 24th January, 1959 was submitted by the Divisional Forest Officer, Kodarma Division to the Government, wherein it was stated that the lands were already in possession of the Government but they had been wrongly notified under Sec.29 (3) of the Indian Forest Act, and that they should be acquired under the provisions of the Act. A copy of the said requisition is Annexure "2" to the writ application. A copy of the said requisition is Annexure "2" to the writ application. In pursuance of the said requisition, perhaps, the State issued a notification, dated the 30th March, 1959, under Sec. 4, read with Sec.17(4) of the Act, stating, inter alia, that the lands were required to be taken at public expense for a public purpose, viz., for including them within the demarcated area of the Telaiya protected Forest in village Telaiya, and in Debipur Protected Forest in village Debipur, the area whereof was more or less 3,334.65 acres. It was also stated that, in view of the urgency of the project, in exercise of the powers conferred by Sec.17 (4) of the Act, it had been decided by the State Government that the provisions of Sec. 5-A of the Act were not to apply. A true copy of the said notification is Annexure "3" to the writ application. It is further stated by the petitioners that, on the 19th May, 1959, a notification under Sec. 6 of the Act was issued, and, on the 4th August, 1959, the respondent State issued a notice in terms of Section 9 of the Act to all persons interested in the aforesaid lands for submitting their claim, and the petitioners, in response to the said notice, preferred their claim before the Land Acquisition Officer, Hazaribagh. 4. During the course of the enquiry before the Land Acquisition Officer, the Divisional Forest Officer, Kodarma Division, by his letter No. 5110, dated the 11th August, 1959, informed the Land Acquisition Officer that the dates of taking over of possession of the aforesaid lands by the respondent State were the 8th December, 1953 and the 22nd November, 1954. The Land Acquisition Officer, by his letter, dated the 22nd November, 1960, assessed the compensation payable to the petitioners over rupees six lacs and also held that the petitioners were entitled to interest @ 6 p. c.p. a. from the 8th December, 1953 and the 22nd November, 1954, the dates on which possession of the lands was taken by the State Government. The aforesaid letter was forwarded by the Land Acquisition Officer to the Deputy Commissioner, Hazaribagh for approval. The Deputy Commissioner, in his turn, forwarded the said proposal to the State Government for approval. The aforesaid letter was forwarded by the Land Acquisition Officer to the Deputy Commissioner, Hazaribagh for approval. The Deputy Commissioner, in his turn, forwarded the said proposal to the State Government for approval. According to the petitioners, dilatory tactics were adopted by the State Government to prevent just compensation being paid to the petitioners, and the matter remained pending with the State Government. Thereafter the petitioners filed a writ application before this Court for a mandamus on the respondent State to complete the land acquisition proceedings in respect of the lands in question which gave rise to M. J. C. No. 615 of 1963. This Court, by its judgment and order, dated the 28th February, 1966, directed the respondent State to transmit all connected records to the Deputy Commissioner, Hazaribagh, within 15 days from the aforesaid date, and further directed the Deputy Commissioner to complete the land acquisition proceedings in accordance with law. A copy of the order of this Court is Annexure "4" to the writ application. 5. The State Government, according to the petitioners, communicated their sanction to the Land Acquisition Officer on the 15th March, 1966 to the estimated compensation of Rs. 6,44,892.11 paise, together with interest, and the estimated compensation was revised to Rupees 7,92,950.25 paise by the Land Acquisition Officer. Later, the respondent State, by its order, dated the 14th June, 1966, cancelled the earlier sanction and directed the Land Acquisition Officer to evaluate the lands afresh after deciding their status and classification and the date when possession had been actually taken, and to pay interest only if possession had been taken. The Land Acquisition Officer, on the 15th June, 1966, passed an order holding that no interest under Sec.34 of the Act was payable to the petitioner as possession of the lands had not been taken over under Sec.16 or Sec.17 of the Act. The Land Acquisition Officer awarded a total compensation of Rs. 3,52,371.83 Paise in respect of the total area of 3,296.17 acres. On certain deductions being made, then net amount determined to be payable to the petitioners was fixed at Rs. 2,98,867.96 paise. A copy of the said award of the Land Acquisition Officer, dated the 15th June, 1966, is Annexure "5" to the writ application. 3,52,371.83 Paise in respect of the total area of 3,296.17 acres. On certain deductions being made, then net amount determined to be payable to the petitioners was fixed at Rs. 2,98,867.96 paise. A copy of the said award of the Land Acquisition Officer, dated the 15th June, 1966, is Annexure "5" to the writ application. By notification No. DLA-Haz, 46/59-8173 R, dated the 12th August, 1966, issued under Sec. 48 (1) of the Act, the Government withdrew from acquisition of 15.54 acres out of the originally notified area of 3311.71 acres, and to that extent the aforesaid declaration under Sec. 6 of the Act, dated the 19th May, 1959, was modified leaving a balance of 3,296.17 acres of land in respect of which the aforesaid amount of compensation was determined. 6. The petitioners, being dissatisfied with the said award, a reference under Sec.18 of the Act was made, and during the pendency of the said reference the petitioners received the compensation amount under protest. The petitioners, however, filed a writ application in this Court giving rise to C. W. J. C. No. 435 of 1966. They challenged the aforesaid notification, dated the 12th August, 1966, issued under Sec. 48 (1) of the Act regarding partial withdrawal from the acquisition. 7. It may be mentioned here that the other declaration under Sec. 6 of the Act, dated the 19th May, 1959, had been issued in respect of 188.97 acres, and later a notification, dated the 12th August, 1966, was issued under Sec. 48 (1) of the Act withdrawing from acquisition of an area of 177.54 acres. The petitioners challenged that notification also in C. W. J. C. No. 434 of 1966 in this Court. In the two writ applications, the petitioners had challenged the legality of the notifications under Sec. 48 (1) of the Act and they had prayed for a mandamus on the Land Acquisition Officer to determine the full compensation amount, including interest, and for setting aside certain directions given in the said awards. This Court, by its judgment, dated the 14th October, 1966, dismissed with the writ applications holding, inter alia, that, on the materials produced before this Court, this Court was unable to find that Government had taken possession of the lands in question : Jethmul Bhojraj V/s. The State of Bihar, AIR 1967 Pat 287 . This Court, by its judgment, dated the 14th October, 1966, dismissed with the writ applications holding, inter alia, that, on the materials produced before this Court, this Court was unable to find that Government had taken possession of the lands in question : Jethmul Bhojraj V/s. The State of Bihar, AIR 1967 Pat 287 . It was also held that, even if for the sake of argument it be assumed that the Forest Officer had taken possession at some time or the other, the right of the State Government to withdraw from the acquisition under Sec. 48 (1) of the Act was not fettered till possession was taken in accordance with the provisions of Sec.16 or Sec.17 of the Act, and this Court was not satisfied that possession was taken under Sec.16 or Sec.17 of the Act. 8. On leave being granted, the petitioners preferred appeals before the Supreme Court of India, being Civil Appeals Nos. 379 and 741 of 1967 : ( AIR 1972 SC 1363 ). During the pendency of the said appeals, the two impugned notifications, dated the 16th February, 1968. Annexure "1" to the two writ applications, were issued under Sec. 48 (1) of the Act withdrawing from acquisition of the entire property of the petitioners. 9. The petitioners are challenging in the present writ applications the legality and validity of the aforesaid notifications, dated the 16th February, 1968, primarily on the ground that, even if the State Government, in exercise of its powers under Sec. 48(1) of the Act, could withdraw from acquisition of any land in respect of which a declaration had been issued, the said powers could not have been exercised in the present case in view of the fact that possession of the lands had already been taken over by the State Government and the property had, as such, vested in it. They have further asserted that the impugned notifications are also vitiated by mala fides on the part of the State. Details of the documents and circumstances have been set out in file writ applications to show that possession had in fact been delivered to the State Government much earlier than the date of the declarations under Sec. 6 of the Act issued on the 19th May, 1959, and again during the land acquisition proceedings. Details of the documents and circumstances have been set out in file writ applications to show that possession had in fact been delivered to the State Government much earlier than the date of the declarations under Sec. 6 of the Act issued on the 19th May, 1959, and again during the land acquisition proceedings. It is important to note that no different dates of delivery of possession are alleged on behalf of the petitioners in the present writ applications than the dates alleged in the earlier writ applications, that is, any date prior to the issuance of the earlier two notifications, dated the 12th August, 1966, under Sec. 48 (1) of the Act, which were the subject-matter of the earlier two writ applications. It may also be mentioned that the appeals preferred by the petitioners before the Supreme Court against the judgment of this Court were also dismissed on the 25th January, 1972 (Jetmull Bhojraj V/s. The State of Bihar, AIR 1972 SC 1363 ). The petitioners have precisely urged those very points which had been urged in the earlier writ applications on the question of delivery of possession to the State Government and its power to issue the notifications under S. 48 (1) of the Act. But it has been asserted on their behalf that the judgments in the earlier writ applications will not operate as res judicata, because there was no final decision either by this Court or by the Supreme Court on the factum of delivery of possession to the State Government, and it was simply observed that, on materials produced in the said writ applications, it was not possible to hold that possession had actually been delivered to the State Government. According to the petitioners, in the present writ applications, further materials have been produced before this Court to show that the State Government came in possession of the lands in question much before the date the declarations under Sec. 6 of the Act had been issued on the 19th May, 1959 and possession had also been delivered during the land acquisition proceedings in accordance with Section. 17 (1) of the Act. 10. On behalf of the respondent State, the allegations and the assertions of the petitioners have been refuted. 17 (1) of the Act. 10. On behalf of the respondent State, the allegations and the assertions of the petitioners have been refuted. According to the State, no possession was delivered to it on the dates alleged by the petitioners, much less at any state either under Sec.16 or Sec.17 of the Act, and unless possession was delivered under Sections 16 and 17 of the Act, there was no vesting of the subject-matter of acquisition in the State, and the power under Sec. 48 (1) could be exercised before that, which has been done in the instant case. A plea was also taken on behalf of the State that the present writ applications are barred by principles of res judicata as the issues in the present writ applications are identical to the issues involved in the earlier writ applications, which had been decided against the petitioners, and, as such, they cannot be re-agitated merely because separate notifications under Sec. 48 (1) of the Act have been issued in respect of the remaining lands which were covered by the same declarations under Sec. 6 of the Act. Allegations of mala fides have been denied and it has been asserted that the petitioners have no locus standi to maintain the writ applications because, apart from a valid withdrawal in accordance with Sec. 48(1) of the Act, the lands in question had already vested in the State Government under the provisions of the Bihar Land Reforms Act, 1950, as earlier as in the year 1955, and, as such, the petitioners had no right, title or interest in respect thereof. 11. Sec. 48 of the Act reads as under :- "(1) Except in the case provided for in Sec.36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provisions of part III of this Act shall apply so far as may be, to the determination of the compensation payable under this section." A bare reference to sub-section (1) of Sec. 48 will show that the State Government is at liberty to withdraw from acquisition of any land of which possession has not been taken, and whenever any such withdrawal is made, the owner of the property is entitled to compensation in respect of any damage suffered by him to be determined in accordance with sub-section (2) of Sec. 48. Thus, on a plain reading, the power of the State Government to withdraw from acquisition of any land is unfettered till possession has been taken. Under Sec. 4 of the Act, whenever it appears to the appropriate Government that any land is needed for any public purpose, a notification can be issued, whereupon it is lawful for any officer authorised by the State Government, inter alia, to enter upon and survey the land in question. Sec. 5-A of the Act provides that any person interested in any land can file an objection before the Collector objecting to the acquisition of the land and thereafter an inquiry has to be made; a report is to be submitted to the appropriate Government and the appropriate Government has to consider the report, if any, made under S. 5-A and issue a declaration under Sec. 6 of the Act, on issuance whereof it shall be conclusive evidence that the land was needed for a public purpose. Therefore, the appropriate Government may acquire the land in accordance with the provisions of the Act. Under Section 7 of the Act, the appropriate Government may direct the Collector to take order for acquisition of the land, and the Collector, under Section 8, may cause the land to be marked out. Thereafter, under Section 9, the Collector has to publish a notice stating that the Government intended to take possession of the land and all claims for compensation be made to the Collector. After proper inquiry under Sec.11 the Collector has to make an award in respect of the area acquired and the amount of compensation to be paid and persons entitled thereto. Sections 16 and 17 are specific provisions regarding taking of possession. After proper inquiry under Sec.11 the Collector has to make an award in respect of the area acquired and the amount of compensation to be paid and persons entitled thereto. Sections 16 and 17 are specific provisions regarding taking of possession. Sec.16 reads as under :- "When the Collector has made an award under Sec.11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances." Sec.16 applies when ordinary procedure for acquisition is adopted. In cases of urgency, a special procedure regarding acquisition and taking of possession has been prescribed under Sec.17. Sec.17 (1) of the Act reads as follows :- "(1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notices mentioned in Section 9, sub-section (1), take possession of any waste or arable land needed for public purpose or for a company. Such land shall thereupon vest absolutely in the Government free from all encumbrances." A mere comparison of Sections 16 and 17 will show that, whereas under Sec.16 possession can be taken only after an award has been made, under Sec.11, in exercise of powers under Sec.17 (1) possession can be taken on the expiry of 15 days from the date of the publication of the notice mentioned in Section 9(1), although no award has been made. Vesting, however, under both the sections is to take place only after such possession has been taken. In the instant case, we are concerned with the provisions of Sec.17 (1) of the Act, because in the notification issued under Sec.17 (4) it had been mentioned that it was being notified that, in view of the urgency, the provisions of Sec. 5-A were not to apply. In that view of the matter, it has to be established by the petitioners that possession had been taken in accordance with the provisions of Sec.17 (1) of the Act some time before the impugned notifications under Sec. 48 (1) of the Act had been issued, and then only it can be held that the State Government was debarred from exercising the said power. 12. In support of their case, the petitioners have divided the materials on record on the question of possession under two heads. 12. In support of their case, the petitioners have divided the materials on record on the question of possession under two heads. The first group related to the documents which show that possession had been taken by the Forest Department even before the declarations had been issued under S. 6 on the 19th May, 1959. The documents relating to the second group are in respect of possession alleged to have been taken in pursuance of an order under Sec.17 (1) of the Act. It may be noted here that in the first group the petitioners have referred to the documents most of which had been produced before this Court in connection with the earlier writ applications and had been considered by this Court. During the course of arguments this fact was conceded by the learned Counsel for the petitioners; but he submitted that those documents, along with some other documents, which have been produced in this case, should be enough for the purpose of holding that actual possession had been delivered to the Forest Department even prior to the 19th May, 1959. In paragraph 6 of the writ application the details of the documents relied upon by the petitioners have been mentioned and they have been Annexures "7" to "7/8" to the writ petition. 13. The first document (Annexure "7") is a letter, dated the 11th September, 1948, from the Divisional Forest Officer, Hazaribagh addressed to the partners of the petitioners firm prohibiting them from cutting trees. This letter was considered by this Court in paragraph 17 of the judgment reported in AIR 1967 Pat 287 . The next letter is dated the 30th May, 1958 (Annexure "7/1") from the Government of Bihar, Revenue Department, to the Chief Conservator of Forests, which says that legal experts had advised the Government that, as the lands were under the control of the Forest Department, there was no escape from the liability of paying compensation. This letter was discussed in paragraph 20 of the aforesaid judgment. This letter was discussed in paragraph 20 of the aforesaid judgment. A letter, dated the 10th June, 1956, is Annexure "7/2" to the writ application from the Chief Conservator of Forests to the Additional Secretary to the Government of Bihar, Revenue Department, suggesting that compensation be paid to the petitioners under Sec. 42 of the Private Forests Act for the period during which the "Forest remained under the Control and management of the Forest Department" and further that steps should be taken to acquire the forest land under the Land Acquisition Act. This letter is referred to in paragraph 21 of the Judgment. The next letter is dated the 9th December, 1957 (Annexure "7/3") from the Under Secretary to the Government of Bihar, Revenue Department, to the Deputy Commissioner, Hazaribagh, saying that the forest in question had been under the control of the State Government from a long time and it was necessary to finalise the land acquisition proceedings. This letter is referred to in paragraph 22 of the said Judgment. Annexure "7/4" is a letter, dated the 31st January, 1958, from the Under Secretary to the Government of Bihar, Revenue Department, to the petitioners informing them that their representation regarding payment of rent in respect of the lands taken over by the Forest Department was under active consideration of the Government. This letter was considered in paragraph 24 of the aforesaid judgment. There is another letter, dated the 31st January, 1958 (Annexure "7/5") from the Under Secretary, Government of Bihar, Revenue Department, to the Chief Conservator of Forests, saying that the petitioners should not be made liable for payment of rent of the lands which had already been included within the boundaries of the Demarcated forests. This letter was considered in the earlier judgment in paragraph 23. A letter, dated the 15th September, 1958 (Annexure "7/6") is from the additional Secretary, Revenue Department to the Deputy Commissioner, Hazaribagh, saying that, as the lands had been in possession of the Forest Department for some time past, it was necessary that assessment and payment of compensation should be finalised. The said letter was also produced in the earlier writ applications and discussed in paragraph 25 of the said judgment. The said letter was also produced in the earlier writ applications and discussed in paragraph 25 of the said judgment. A letter, dated the 1st October, 1958 (Annexure "7/7") from the Divisional Forest Officer to Range Officer; Kodarma Beat, says that, as the forests in Debipur and Telaiya belonging to the petitioners had been in possession of the Forest Department, he had approached the Conservator of Forests for appointment of two forest guards. This letter was considered in the earlier judgment in paragraph 26. The petitioners have also relied on a requisition, dated the 24th January, 1959 (Annexure "2") for acquisition of forest land in question. It was mentioned in the said requisition that the lands were already in possession of the Forest Department and that formal possession was to be handed over. This document was referred to in paragraph 27 of the earlier judgment. Annexure "7/8" is a letter, dated the 8th April, 1959, from the Divisional Forest Officer, Kodarma to the Conservator of Forests, Northern Range, recommending acquisition of the lands, otherwise huge sums in interest will have to be paid. This letter has been referred to in paragraph 28 of the earlier judgment. The aforesaid documents have been relied upon by the petitioners for the purpose of holding that the State Government had come in possession of the lands in question prior to the declaration under Sec. 6 of the Act made on the 19th May, 1959. All these documents had been produced in the earlier writ applications before this Court and had been considered, and ultimately it was observed as follows :- "30. A perusal of the documents mentioned above shows that there was a good deal of confusion of thought among the officers. They did not care to find out the correct legal consequences of the notifications issued under Sec.29 of the Indian Forest Act but assumed that the mere fact that those notifications were issued transferred possession over the forest lands in question to the Forest Department. Annexure A is a document which clearly gives this indication. These are, however, four documents which are very important. Annexure A is a document which clearly gives this indication. These are, however, four documents which are very important. One is Annexure M in which the petitioners themselves have admitted that they were in possession of their forest lands up to the 20th April, 1955 thereby making a representation that the notifications issued on the 8th, December, 1953 and the 22nd November, 1954 had not affected their possession. All that the issue of those notifications had done was that on their basis the Divisional Forest Officer was preventing them from falling, selling or appropriating the forest trees which he could certainly do in connection with a protected forest under the Indian Forest Act........." The above finding of this Court was affirmed even by the Supreme Court in the aforesaid judgment M/s. Jetmull Bhojraj V/s. The State of Bihar. AIR 1972 SC 1363 . No other document has been produced or referred to in course of the arguments on behalf of the petitioners to show that in the present writ applications there are some other materials on the basis of which this Court should hold, even if that be permissible, that actual and peaceful possession was delivered to the State Government, and I see no reason, on the same materials, to take a view contrary to the one taken by this Court as well as by the Supreme Court in the earlier judgments to the effect that the petitioners had failed to prove that possession was actually taken over by the State Government in accordance with law even before the declarations under Sec. 6 of the Act made on the 19th May, 1959. 14. As indicated earlier, according to the petitioners, possession was also taken by the State Government in exercise of the powers under Sec.17 (1) of the Act, during the land acquisition proceedings initiated under the Act. As was observed by the Supreme Court in AIR 1972 SC 1363 at p. 1365 :- "The Government becomes the owner of the lands notified for acquisition only when the Collector takes possession of those lands, either under Sec.16 or under Sec.17 (1)." It was further observed :- "Both these provisions provide that when the Collector takes possession under those provisions the lands notified for acquisition shall vest absolutely in the Government free from all encumbrances. Until and unless possession is taken under either of those provisions, the lands notified for acquisition do not vest in the Government." There is no averment in the present writ applications that any order under Sec.17 (1) was ever issued by the State Government. In course of arguments, however, a reference was made to a letter. DLA-Haj, 46/59/5867, dated the 10th June, 1959, which is on the record of the land acquisition case, from the Assistant Secretary to the Government, Revenue Department, to the Land Acquisition Officer, Hazaribagh, in a cyclostyled form in which the number of declaration, the date and the area have been filled in later. The cyclostyled portion says that the said, Assistant Secretary had been directed to say that the Government, in the Revenue Department, had been pleased to direct the Land Acquisition Officer under Section 7 of the Act to take order for acquisition of 3334.65 acres of lands. Paragraph 2 of the letter (which is cyclostyled) says- "As the land is require urgently, you are authorised under Sec.17 (1) of the Land Acquisition Act (1 of 1894) to take immediate possession of such portion of the land as is waste or arable after 15 days from the publication of the notice under Section 9 of the Land Acquisition Act." Cyclostyled Paragraph 3 of the said letter reads as follows :- "The date on which possession of the land is delivered to the Requiring Department may be communicated to the office of the Director of Land Acquisition, Bihar, as soon as made." The petitioners have laid great stress on this letter to show that there was an order of the State Government for taking possession under Sec.17 (1) of the Act. According to them, this letter could not be produced in the earlier writ applications and that is why this Court as well as the Supreme Court had observed that there was nothing on the record to show that any order to take possession under Sec.17 (1) of the Act was passed, and once this letter is taken into consideration, then, in the present writ applications, it has to be held that there was an order of the State Government for taking possession and possession was actually taken in pursuance of the said order. An affidavit in reply has been filed on behalf of the State saying that the order to take possession under Sec.17 (1) has to be passed by the State Government, which power, under the Rules of Executive Business, is to be exercised by the Minister of the Department concerned, and that at no stage the file was placed before the Minister concerned for an order under Sec.17(1), and the Assistant Secretary had no authority to issue any such letter. In the affidavit it has been further explained that, due to inadvertence, the said Assistant Secretary signed the letter without deleting the cyclostyled portion relating to the order under Sec.17 (1) of the Act. According to the State, this letter related only to an order under Section 7, and this fact is borne out from the order-sheet of the Land Acquisition Officer, who has treated this letter simply as a direction under Section 7 of the Act to take an order for acquisition of the lands mentioned therein. The Land Acquisition Officer never treated it as an order for taking of possession. In that connection orders of different dates passed by the Land Acquisition Officer were read out before us. In my opinion, there is force in the contention raised by the learned Solicitor-General appearing for the State. In view of Article 166 of the Constitution of India, before an order becomes an order of the State Government, it must comply with the requirements of the said article, read with Rules of Executive Business; and, in the instant case, it was necessary that the file should have been put up before the Minister of the Department concerned. Apart from that, the petitioners, in order to succeed, have to further show that possession had been taken in pursuance of the direction, if any, contained in the said letter. Apart from that, the petitioners, in order to succeed, have to further show that possession had been taken in pursuance of the direction, if any, contained in the said letter. I have already referred to the decision of the Supreme Court that "The Government becomes the owner of the lands notified for acquisition only when the Collector takes possession of those lands either under Sec.16 or under Sec.17(1)." In that case it was further observed by the Supreme Court as follows : "There is no material on record to show that the Government had given to the Collector any direction under Sec.17 (1); nor is there any material to show that the lands in question had been taken possession of by the Collector under Sec.17 (1)." 15. Learned Counsel for the petitioners conceded that there is no document on the record showing that possession had been taken over by the State Government in pursuance of the alleged order under Sec.17 (1) of the Act. But in this connection a reference was made to a letter dated the 28th October, 1959 (at page 107 of the records of the land acquisition case) from the Additional and Acquisition Officer to the Divisional Forest Officer asking the latter to depute his representative to receive possession of land at spot on the 16th Nevember, 1959 by Sri B. P. Yadav, Kanungo. This letter was signed on the 17th October, 1959 and appears to have been issued on the 28th October, 1959. It appears that this letter was issued in pursuance of an order dated the 17th October, 1959 passed by the Land Acquisition Officer. The relevant portion of the order reads as follows :- "Sri B. P. Yadav Kgo. to deliver possession at spot to the representative of the R. O. on 16-11-1959. Draft addressed to R. O. is signed." The Supreme Court had considered the effect of the aforesaid order in para. 12 of its judgment and observed :- "But there is nothing to show that this order was implemented. According to respondent this order was not implemented." Learned Counsel for the petitioners could not point out anything to show that this Order was implemented. 12 of its judgment and observed :- "But there is nothing to show that this order was implemented. According to respondent this order was not implemented." Learned Counsel for the petitioners could not point out anything to show that this Order was implemented. On the other hand, there is a letter (at page 110 of the records of the land acquisition case) dated the 13th November, 1959 from the Assistant Secretary to the Government of Bihar to the Deputy Commissioner, Hazaribagh saying : "Sub : Acquisition of land belonging to M/s. Jethmal Bhojraj in the district of Hazaribagh. *** I am directed *** to request you to stay further Land Acquisition proceedings in respect of the project noted above until further orders." Reference has also been made to a late report dated the 27th May, 1960, prepared by the Kanungo, Column 6 of the said report reads thus :- "Date on which- (i) the requiring authority took possession of the land from the interested persons in anticipation of formal acquisition under the L. A. A. Telaiya since 22-11-54 Debipur since 8-12-53 (ii) Under Sec.16 of the L. A. A. x x x (iii) Under Sec.17 (1) of the L. A. A. x x x" Obviously, the dates mentioned regarding taking of possession cannot correlate to an order under Sec.17 (1), because they refer to a period 1953-54. The other remarkable aspect is that in that very column there are two other sub-columns for indicating as to whether the possession was taken under Sec.16 or Sec.17 (1) of the Act, and against those sub-columns cross marks are put, meaning thereby that possession had not been taken either under Sec.16 or under Sec.17 (1) of the Act. In my opinion, this document rather goes against the petitioners, instead of helping them. 16. Petitioners have also relied on two letters, one dated the 20th/22nd February, 1960, from Shree K. K. Mitra, Additional Secretary, Revenue Department, to the Chief Conservator of Forests, Bihar, and the other dated the 13th November, 1962 from the Deputy Secretary to the Government, Revenue Department, to the, petitioners. 16. Petitioners have also relied on two letters, one dated the 20th/22nd February, 1960, from Shree K. K. Mitra, Additional Secretary, Revenue Department, to the Chief Conservator of Forests, Bihar, and the other dated the 13th November, 1962 from the Deputy Secretary to the Government, Revenue Department, to the, petitioners. In the first letter, the aforesaid Additional Secretary asked the Chief Conservator of Forests to prepare a map showing the area to be retained and the area to be released, as also an estimate of compensation which was to be paid to the petitioners for the area which was, proposed to be released. A copy of this letter is Annexure "7/9" to the writ application. The other (Annexure "7/10") required the petitioners to furnish documents and papers to show that the settlement made by the ex-landlord was a raiyati one and that he used the lands as raiyati and paid rent for the same for the period they were in his possession. The said letter also required the petitioners to show as to what amount, out of the Government loan, they had spent for reclamation or cultivation of the land "till the land was taken over by the forest department," and whether the reclamation and cultivation had actually been done. In my opinion, none of these letters is of any help to the petitioners : rather, they are against them, because from Annexure "7/9" it appears that Government was contemplating in 1960 to release the lands in respect of which the declaration under Sec. 6 had been issued. The letter, Annexure "7/10", shows that Government wanted the petitioners to show that they had raiyati, interest in those lands. This query was being made, because otherwise they could be deemed to have vested in the State Government under the provisions of the Land Reforms Act as early as in the year 1955. The words used in Annexure "7/10" "till the land was taken over by the forest department" do not necessarily mean that possession had actually been taken over by the forest department. 17. Petitioners have been referred to a letter, dated the 21st March, 1965, addressed by the Divisional Forest Officer to the Conservator of Forests, Hazaribagh Circle, and to a letter dated the 1st October, 1965 addressed by the Conservator of Forests, Hazaribagh Division to the Chief Conservator of Forests (Annexures "8" and "8/1"). 17. Petitioners have been referred to a letter, dated the 21st March, 1965, addressed by the Divisional Forest Officer to the Conservator of Forests, Hazaribagh Circle, and to a letter dated the 1st October, 1965 addressed by the Conservator of Forests, Hazaribagh Division to the Chief Conservator of Forests (Annexures "8" and "8/1"). In Annexure "8", the Divisional Forest Officer had stated that "illicit fellings are being done by local people in the forest of Jethmull Bhojral", but no action was being taken, because the representation of Jethmull Bhojraj for compensation had not been finalised. I do not understand how this letter proves that possession of the lands had been taken over by the State Government in pursuance of any order under Sec.17 (1) of the Act. This letter was fully considered in the earlier writ applications in paragraph 38 of this Courts judgment. Similarly, in Annexure "8/1" the Conservator of Forests had reported to the Chief Conservator of Forests regarding the illicit fellings of trees by the villagers saying that it seemed to him that the men of Shri Jethmull (meaning thereby the petitioners) were not stopping the fellings in order to avoid evidence of possession in their favour and he sought instructions as to what should be done to stop the illicit fellings and waste of national property. 18. The petitioners have also annexed a copy of a letter dated the 4th March, 1966 from the Chief Conservator of Forests to the Conservator of Forests (Annexure "9"). In the said letter, the Chief Conservator of Forests had said that the acquisition of the forest land in Telaiya and Debipur forests belonging to Messrs. Jethmull Bhojraj was under consideration of Government. He also stated that in case the cost of land acquisition proved prohibitive, the Government might also consider giving up those lands in which case Government would have to pay mesne profits to the petitioners for the period the forest was in possession of the State Government. The words "for the period the forest was in possession of the State Government cannot relate to the possession under Sec.16 or under Sec.17 of the Act, for the obvious reason that the opening line of the letter is. "The question of acquisition of further 300 (sic) acres of forest lands in Telaiya and Debipur forests belonging to Messrs. The words "for the period the forest was in possession of the State Government cannot relate to the possession under Sec.16 or under Sec.17 of the Act, for the obvious reason that the opening line of the letter is. "The question of acquisition of further 300 (sic) acres of forest lands in Telaiya and Debipur forests belonging to Messrs. Jethmull Bhojraj is under the consideration of the Government." Unless the lands had been acquired, there was no question of possessionbeing delivered under Sec.16 or Sec.17 of the Act. 19 Another document, although not mentioned in the writ application, is a certified copy of the khatian in respect of the two villages in question, which was produced during the course of the hearing. This record-of-rights was finally published under Section 83 (2) of the Chota Nagpur Tenancy Act on the 25th July, 1966, and it shows in the column meant for the name of the tenant "SURAKCHHIT VAN VIBHAG" (meaning thereby protected forest). It has been urged on behalf of the petitioners that a presumption of correctness attaches to the entries made in this khatian, and, as such, it should be held that in the year 1966 the lands were in possession of the Forest Department as protected forest. In my opinion, it is very difficult to hold that, merely because the lands have been shown as protected forest in the khatian, it has to be taken that the Forest Department had come in possession of the lands in pursuance of an order under Sec.17 (1) of the Act. Sec.17 (1) requires the Collector to take possession. and, as was observed by the Supreme Court in the aforesaid judgment, that formality has to be complied with before vesting takes place and the State Government becomes the owner of the lands acquired under the Act. It has been explained on behalf of the State that the said entry was made, perhaps, under some misconception on the basis of the notifications issued under the Indian Forests Act. 20. It has been contended on behalf of the petitioners that, in view of a judgment of the Supreme Court in Lt. It has been explained on behalf of the State that the said entry was made, perhaps, under some misconception on the basis of the notifications issued under the Indian Forests Act. 20. It has been contended on behalf of the petitioners that, in view of a judgment of the Supreme Court in Lt. Governor of Himachal Pradesh V/s. Avinash Sharma, AIR 1970 SC 1576 , once it is established that possession of the lands notified for acquisition was taken at any time, it was not necessary for the petitioners to establish that the possession was taken under Sec.17 (1) of the Act. In my opinion, in view of the judgment of the Supreme Court in the case of the petitioners themselves ( AIR 1972 SC 1363 ), in which the aforesaid judgment in AIR 1970 SC 1576 was considered and it was held that vesting takes place only when there is an order of the State Government under Sec.17 (1) and the possession is taken by the Collector under Sec.17 (1) of the Act, it is futile to urge that the words "land of which possession has not been taken" occurring in Sec. 48 (1) mean possession taken in a mode other than under Sec.17 (1). On the basis of the documents produced or referred to by the petitioners, it is difficult to hold that there was a valid order by the Stats Government under Sec.17 (1) directing the Collector to take possession of the lands in question, or that at any stage possession of the lands in question had been taken by the Collector under Sec.17 (1) of the Act, and, as such, there was no impediment in the exercise of the power by the State Government under Sec. 48 (1) of the Act to withdraw from acquisition of the lands in question. 21. It is then contended on behalf of the petitioners that, on the facts of the present case, on the principles of equitable estoppel, the State Government was debarred from issuing the notifications under Sec. 48 (1) of the Act. 21. It is then contended on behalf of the petitioners that, on the facts of the present case, on the principles of equitable estoppel, the State Government was debarred from issuing the notifications under Sec. 48 (1) of the Act. It was urged that, on the assurance and actings of the State Government, the petitioners have suffered a huge loss and have acted to their predicament on the basis of the declarations issued under Sec. 6 of the Act and now the State Government cannot suddenly turn round and withdraw from acquisition of the lands in question. In this connection reliance has been placed on a judgment of the Supreme Court in The Union of India V/s. Anglo Afghan Agencies, AIR 1968 SC 718 . In my opinion, the above argument is misconceived in law. The power under Sec. 48 (1) of the Act has to be exercised only in such a situation, that is, after the issuance of the declaration under Sec. 6 and notice under Section 9 : it can be issued even after the award is prepared. The only restriction out by the aforesaid section is that it should be exercised before possession is taken. If the petitioners had invested anything prior to the notifications made under Sec. 4 of the Act. then there is no question of any plea of equitable estoppel, against releasing the property to the petitioners. If they had made any investment after the notification under Sec. 4. I do not understand how any question of equitable estoppel could arise, because, after the notification under Sec. 4, the owner of the land knows that the property was likely to be acquired by the State Government. Moreover, sub-section (2) of Sec. 48 provides for compensation for the damage suffered by the owner in consequence of the notice or of any proceedings therein and the Collector has to pay such amount to the person interested, together with all costs reasonably incurred by the owner in the prosecution of the proceedings under the Act. In that view of the matter, there is no question of suffering any loss by the petitioners. 22. The petitioners have also challenged the vires of sub-section (1) of Sec. 48 on the ground that the said provision is arbitrary and without any guideline. In my opinion, there is no substance in this contention of the petitioners. In that view of the matter, there is no question of suffering any loss by the petitioners. 22. The petitioners have also challenged the vires of sub-section (1) of Sec. 48 on the ground that the said provision is arbitrary and without any guideline. In my opinion, there is no substance in this contention of the petitioners. The Legislature has provided a guideline to exercise of the said power, inasmuch as the State Government can exercise that power only before taking possession of the land in question, and even in that case compensation is to be paid for any damage done to the property in question and for costs incurred by the owner in prosecuting the proceedings up to that stage. 23. Learned Solicitor-General, appearing for the State, has urged that the petitioners should not be allowed to reagitate the same issue which is concluded by the judgments in the earlier writ application on the principles of res judicata. According to learned Solicitor-General, if the case of the petitioners was that the State Government came in possession of the lands in question on dates subsequent to the dates alleged in the earlier writ applications and before the date of the impugned notifications, the matter would have been different and the petitioners could have been allowed to agitate this matter; but they are not alleging any different date or dates when the State Government is alleged to have taken possession of the lands in question. According to learned Solicitor-General, in the earlier writ applications two questions had been considered - firstly, as to whether possession was delivered to the State Government even prior to the declaration under S. 6 of the Act that is, before the 19th May, 1959 ; and, secondly, as to whether possession was taken by the Collector under Sec.17 (1) of the Act. On the materials produced, this Court as well as the Supreme Court were unable to hold that possession had been actually delivered to the State Government prior to the declaration under Sec. 6 ; on the second, question there is a clear finding by this Court as well as by the Supreme Court that possession was never taken under Sec.17 (1) of the Act, and, on that finding, the notifications under Sec. 48 (1) of the Act, which were the subject-matter of the earlier writ applications, were upheld as legal and valid. According to learned Solicitor-General, even assuming that the finding on the first point is not conclusive, yet the finding on the second question is conclusive and it will operate as res judicata. In my opinion, there is force in the contention of the learned Solicitor-General. But, in view of the fact that I have already held that, even on the materials produced and referred to in these writ applications, it has not been proved by the petitioners that were was a valid or legal order under Sec.17 (1) of the Act, or that possession was ever taken by the Collector under Sec.17 (1), there is no need to decide the question of res judicata. 24. It was also contended on behalf of the State that the petitioners have no locus standi to file the present writ applications, inasmuch as they had no raiyati interest in the lands in question and had held only a tenure-holders interest therein, which vested in the State Government under the provisions of the Bihar Land Reforms Act, 1950 as early as in the year 1955, and, as such, there is no question of acquisition or withdrawal from acquisition of any land belonging to the petitioners. In this connection the lease deeds executed in favour of the petitioners, which are the basis of their title, have been produced by the State Government to show that the petitioners had taken a large area of jungle lands "to appropriate the produce, lay orchard, dig well, pond, ahar and tank etc., lay bricks, lay brick-kiln, construct houses, buildings, factory, godown, goshala, jhaura, instal track, engine, machine, construct railway, tramway, ropeway, waterway and other kinds of thoroughfare, personally cultivate or induct tenant, let but in mustaiiri settlement, collect rent ******* and reliance was placed on a decision of the Privy Council in Debendra Nath Das V/s. Bibudhendra Bhramarbar Roy, 45 Ind App 67 : (AIR 1918 PC 8) to show that, if a person is entitled to induct tenant on the land and to collect rent, he cannot be held to be a raiyat of the land in question. Under the provisions of the Bihar Land Reforms Act, a tenure vests in the State Government, and only the land which is in khas possession of the tenure-holder is deemed to have been settled with him under Sec. 6 of the Land Reforms Act. Under the provisions of the Bihar Land Reforms Act, a tenure vests in the State Government, and only the land which is in khas possession of the tenure-holder is deemed to have been settled with him under Sec. 6 of the Land Reforms Act. In my opinion, there is no necessity to decide the question, which, if necessary, can be decided at a different forum. 25. Mr. Jagdish Sahay has appeared on behalf of the petitioners in C. W. J. C. No. 252 of 1968, which relates to withdrawal from acquisition of the smaller block of lands. Learned Counsel has adopted the argument advanced on behalf of the petitioners in C. W. J. C. 253 of 1968 on the question of the State Government taking possession of the lands in question. He has made submission only on the question of res judicata and vesting of the lands in question under the provision of the Bihar Land Reforms Act. In this connection he cited some decisions in support of his contention that the decision in the earlier writ applications will not operate as res judicata in the present writ applications. But, in view of the fact that I have held that there is no need to decide these two questions on my finding on the question of possession I do not propose to deal with the submissions made by Mr. Sahay. 26. The petitioners have alleged that the exercise of power under Sec. 48 (1) of the Act is mala fide. The said allegation has been denied on behalf of the respondent State. During the course of arguments, learned Counsel for the petitioners could not point out any material on the basis of which it can be held that the respondent State or any authority acted with some oblique motive in exercising the power under Sec. 48 (1) of the Act. As such, the said plea has to be rejected. 27. On taking into consideration all the facts and the circumstances of the case, it has to be held that the impugned notifications under Sec. 48 (1) of the Act are not invalid, illegal or without jurisdiction, and no case for quashing the same, in exercise of the powers of this Court under Article 226 of the Constitution, has been made out by the petitioners. As such, there is no merit in either of the two writ applications. As such, there is no merit in either of the two writ applications. They are, accordingly, dismissed; but, in the circumstances, there will be no order as to costs. S.N.P.SINGH, J. 28 I agree.