M/S. Jetmull Bhojraj v. The State Of Bihar And Others Opposite Party.

Sahai, J.:— These two applications under Articles 226 and 227 of the Constitution relate to two land acquisition proceedings before the Land Acquisition Officer of Hazaribagh Civil Writ jurisdiction Case No. 434 arises out of Land Acquisition Case No. 4 of 1959–1960 and Civil Writ Jurisdiction Case No. 435 arises out of Land Acquisition Case No. 3 of 1959–1960, both of which were disposed of by awards given by the Additional Land Acquisition Officer of Hazaribagh under Section 11 of the Land Acquisition Act (1 of 1894) on the 15th June, 1966. Both the applications have been heard together at the instance of the parties because the facts, with the exception of area and amount of compensation, are almost the same, and the points for consideration are also the same. This judgment will govern them both. Before I mention the prayers made by the petitioners. I would mention some facts in order to make them intelligible.

2. The lands in question are situated in villages Telaiya and Debipur. Forest stands on a substantial portion of those lands. Officers of the Forest Department of the Government of Bihar proposed to include them in Telaiya and Debipur protected forests. A notification under Sections 14 and 21 of the Bihar Private Forest Act, 1947 (9 of 1948) was issued on 11-6-1948, for the purpose. The authorities appear to have thought that notification could not serve their object, and, therefore, a notification under section 29 of the Indian Forest Act (16 of 1927) was issued in 1953–1954 in respect of the forests standing in the same lands. It appears to have then been thought feat, unless the lands were acquired under the Land Acquisition Act (hereinafter referred to as the Act), the purpose of the Forest Department would not be achieved. Notification under Section 4 of the Act, being No. D.L.A Haz-46/59-3797-R., dated the 30th March, 1959, was issued in respect of 3,334.65 acres of land. Notification No. D.L.A-Haz-46/59-5167-R, dated the 19th May, 1959, containing a declaration under Section 6 of the Act, was issued in respect of the same lands. It appears that the area was subsequently found to be only 3,311-71 acres. By notification No. D.L.A-Haz-48/59-8173-R. dated the 12th August, 1966, issued under Section 48(1) of fee Act, the Government withdrew from the acquisition 45.54 acres, and, to that extent, they modified declaration No. 5167, dated the 19th May, 1959. Thus, the total area under acquisition left after the issue of this notification was 3,296.17 acres. These are the lands in question in Civil Writ Jurisdiction Case No. 435 arising out of Land Acquisition Case No. 3.

3. Under the award, the total compensation of these lands has been fixed at Rs. 3,52,371.83 Out of this amount, a sum of Rs. 51,942.00 has been deducted on account of landlord's interest in favour of the State which is the landlord, the petitioners being only raiyats. Another small amount has been deducted on account of cost of contingencies, etc. and the net amount payable to the petitioners has been fixed at Rs. 2,98,867.96 (Rupees Two lacs ninety-eight thousand eight hundred sixty-seven and paise ninety-six).

4. Another notification under Section 4 of the Act, being notification No. D.L.A-Haz.-64/59-3729-R. dated the 23rd March, 1959, was issued in connection with an area of 188.97 acres. Notification No. D.L.A Haz.-64/59-5168-R., dated the 19th May, 1959, containing the declaration under Sec. 6, was issued in respect of the same lands. By notification no D.L.A Haz.-64/59-8174-R., dated the 12th August, 1966, issued under Section 48(1) of the Act the Government withdrew from the acquisition of 177.54 acres of the lands originally notified, and to that extent, they modified declaration No. 5168, dated the 19th May, 1959, thus leaving an area of only 11.43 acres of lands under acquisition. These are the lands in question in Givil Writ Jurisdiction Case No. 434 arising out of Land Acquisition Case No. 4. Under the ???, the total compensation has been ??? fixed at Rs. 799,22. After making deductions as in Case No. 3, the net amount payable to the petitioners has been fixed at Rs. 635.62 (Rupees Sixty hundred thirty-five and paise sixty two).

5. Although the notifications relating to withdrawal of some of the lands originally notified were published in the Gazette dated the 13th August, 1966, the Land Acquisition Officer, in his earlier award, dated the 10th June, 1966, took these withdrawals into consideration, and gave his awards in respect only of the lands left under acquisition after the withdrawals.

6. It is necessary to mention one other fact at this very stage. The petitioners borrowed a sum of Rs. 6,41,865 (Rupees Six lacs forty one thousand eight hundred sixty-five) in accordance with are agreement dated the 2nd December, 1947, from the Government of Bihar. Their case is that the money was invested for the purpose of improvement of the lands covered by the notifications: but it is stated on behalf of the Government that the money was not invested in whole for that purpose; It seems that certificate proceedings were started against the petitioners for realisation of the money due oil the basis of the loan from them. They filed Miscellaneous Judicial Cases Nos. 615 and 616 of 1963 in this Court.

7. By an order dated the 28th February, 1966, in Miscellaneous Judicial Case No. 615, a Bench of this Court issued a writ of mandamus calling upon the State Government to transmit all the records connected with the acquisition proceedings to the Deputy Commissioner of Hazaribagh within fifteen days, and it further directed the Deputy Commissioner to complete the land acquisition proceedings according to law and to give his award within three months from the date of receipt in the records from the State Government. It is in pursuance of this direction that the I and Acquisition Officer has with the approval of the Deputy Commissioner, given his awards under Section 11 of the Act on the 15th June, 1966. By an order passed on the same date i.e the 28th February in Miscellaneous Judicial Case No. 616, the same Bench directed that no coercive steps under the Public Demands Recovery Act should be taken against the petitioners and that all moveable properties of the petitioners already attached should be released forthwith. The Bench further directed that the certificate proceedings should remain pending and should be disposed of in accordance with law and after fully complying with the instructions of the Board of Revenue mention in the order.

8. The prayers which the petitioners have made in these two applications are for (a) grant of an appropriate writ, order or direction setting aside the illegal directions in the awards (b) grant of a writ of mandamus commanding the Land Acquisition Officer to, determine the full compensation, including interest, according to law and commanding him to refund to the petitioners the balance of the compensation after adjustment towards the loan dues outstanding under the loan agreement, and (c) grant of costs. They have also filed applications on the 14th September, 1966, praying for issue of an appropriate writ quashing the notifications under section 48(1) of the Act relating to withdrawals issued on the 12th August, 1966.

9. It is quite obvious that we are not concerned in this case with the loan transaction between the petitioners and the Government. That is a separate transaction. It is for the petitioners to pay the loan and interest, if that is payable, to the Government and for the Government to realise it if whatever the petitioners owe to them is not paid. So far as the acquisition proceedings are concerned the petitioners have stated in their applications that they have accepted payment of the awarded compensation on the 8th July, 1966, “under protest and without prejudice to their rights” Having received payment it is for the petitioners to pay the same, if they are so advised, to the State Government towards the loan account, in fact, learned Counsel for the petitioners have not made any prayer before us for a decision in this case about the loan transaction.

10. It may also be mentioned that reference under section 18 of the Act has already been made to the District Judge in connection with both proceedings at the instance of the petitioners. Mr. V.K Krishna Menon and Mr. Chakravarty who have appeared on behalf of the petitioners, have, therefore, stated that they would not press before this Court any point which can be raised before the District Judge. The points which learned Counsel have put forward in this Court, which, according to them, they cannot raise lief ore the District Judge, are as follows:

(1) The Land Acquisition Officer was bound to give his award independently, and he erred in acting upon the advice and guidance of the State Government which had no jurisdiction to interfere.

(2) Possession of the lands in question has all along been with the Government, and hence they could not withdraw any portion of those lands from the acquisition. The Land Acquisition Officer has also erred in not allowing interest to the petitioners, although the Government were in possession of the lands.

(3) The Land Acquisition Officer could not legally take notice of the notifications of withdrawal published in the Gazette after the date of his awards.

(4) As the withdrawal is illegal, the Land Acquisition Officer erred in not giving the awards in accordance with the originally sanctioned estimate which was approved by the Collector as the Collector has no power of review, the award for a lesser amount is illegal.

(5) The actions of the Government and the officers are mala fide and with a view to depress the amount of compensation payable to the petitioners.

11. I propose to consider these points in the order in which I have mentioned them.

12. Point No. (1)—The Land Acquisition Officer does appear to have sought guidance from the Government by putting up a note, dated the 19th May, 1966, before the Deputy Commissioner of Hazaribagh. Shri J.P Srivastava, secretary to Government in the Revenue Department, however, wrote demi-official letter No. 5511.D.L.A/Haz.-64/59 (Annexure D) dated the 14th June, 1966, to Shri Teneja, the Deputy Commissioner of Hazaribagh stating that the questions of fact, which were raised by the Additional Land Acquisition Officer, were questions which the Collector was competent under section 11 of the Act to decide. No instruction or guidance was given in connection with those facts. All that was done was to say that, as suggested by the Divisional Forest Officer, steps should be taken for exclusion of 29.50 acres of cultivated lands from acquisition under section 48 of the Act as possession had not been taken under section 16 or 17 of the Act. On seeing this annexure, Mr. Menon did not press this point any further. It must, therefore, be held that the State Government did not at all interfere with the discretion of the Collector. I may mention that the Land Acquisition Officer, who was dealing with the case, appears also to have been especially appointed by the Government to perform the functions of a Collector.

13. Point No. (2)—There has been a very serious controversy between the parties in this case as to whether Government took possession of the lands in question in both the land acquisition proceedings. The petitioners have alleged that the Government have been in possession of those lands ever since the notifications under sections 14 and 21 of the Bihar Private Forests Act were issued, and that their officers have admitted on many occasions that the lands have been in their possession. They have supported these allegations by affidavits and documents which they have filed. They have also alleged that the Collector took possession of the lands under section 17 of the Act.

14. On the other hand, it is alleged on behalf of the State Government that they or officers of the Forest Department never took, or exercised any act of possession over the lands. Officers of the Forest Department thought that the control over the forest area passed to them on publication of notifications under sections 14 and 21 of the Bihar Private Forests Act and, subsequently, under section 29 of the Indian Forest Act Some of them loosely termed this as possession and other officers went on repeating the same word without appreciating the correct legal position. The Additional Land Acquisition Officer. Shri Beni Madhav Das who gave the two awards, filed one counter affidavit on behalf of the State Several other affidavits were also filed. Three of them were filed on the 13th August, 1966, one sworn by Shri Krishna Sahay who was the Divisional Forest Officer of Hazaribagh from the 22nd July, 1951 to the 31st March, 1957; another sworn by Shri Braj Mohan Prasad, Divisional Forest Officer of Koderma from the 4th July, 1957, to the 16th October, 1959, and the third sworn by Shri Mithilesh Kumar Sinha. Divisional Forest Officer of Koderma from the 9th October, 1963, onwards. All of them have averred that neither the State of Bihar nor the Forest Department ever came into possession, or exercised any act of possession, over the lands in question. Documents have also been filed on behalf of the State in support of its case. It has further been alleged that the Collector never took possession under Section 16 or Section 17 of the Act.

15. The first question which I wish to take up for consideration is the question of possession. This is apparently a disputed question of fact. Once it is found that this is so, it will not be proper for this Court, in the exercise of its jurisdiction under Articles 226 and 227 of the Constitution, to decide the question, and, for that purpose, to take evidence which may be adduced by the parties. In order to get over this difficulty, Mr. Menon has contended that it may be a question of fact; but it is not a disputed question because various officers of the Government have admitted on different occasions that the lands in question are in the possession of the Forest Department. He has argued that these admissions are binding upon the Government, and that this court must, therefore, hold that Government have been in possession through their forest Officers. The learned Advocate General has however, argued:—

(i) Admissions are pieces of evidence, and are not conclusive. They can be explained away.

(ii) Admissions said to have been made in this case were made under a misapprehension of the correct legal position. Such admissions are not binding upon the Government.

(iii) The true fact is that the State or the Forest Department never came into possession at the least, it cannot be denied that the question of possession is a disputed question of fact

(iv) Even if it can be held that some sort of possession did pass to the Forest Department or the Government, that would not be possession of the Government as contemplated by section 48 of the Act. It is only if the Collector takes possession under section 16 or 17 of the Act that title passes free from encumbrances to the Government, and then alone Government cannot withdraw from acquisition under section 48(1).

16. I may now examine the notifications and the documents. The entire time from 1948 up to 1966 may be divided, as Mr. Menon has divided it, into three periods:

(a) from 1948 to 1953;

(b) from 1954 to 1959, and

(c) from 1959 to 1966.

17. (a) As I have mentioned, notifications under sections 14 and 21 of the Bihar Private Forests Act were issued on the 11th June, 1948. Section 14 provides for the issue of a notification if the State Government propose to constitute any private forest into a private protected forest. It is only the interest of the landlord which is likely to be affected by such notification, as clause (c) of sub-section (1) and sub-section (2) of section 14 show. Section 21 provides that the State Government “may make an order prohibiting, until the date of publication of a notification under section 30, and subject to such conditions and exceptions as may be specified in the order the cutting, collection and removal of any trees, or any class of trees, in the forest in respect of which such notification is issued”. Section 30 provides for publication of the final notification declaring a forest to be a private protected forest. Section 34 lays down that the control and management of a private protected forest shall vest in the State Government.

18. Section 37 gives power to a Forest Officer to demarcate the private protected forest or portion of the private protected forest for which he is appointed. According to section 40, the State Government are to receive all revenues accruing from the working and management of a private protected forest. Section 42 prescribes what the State Government have to pay to the landlord during the period that they remain in control and management of the forest in view of these provisions, it is clear that possession does not but control and management of a forest pass to the State Government on publication of a notification under S. 30. There is no evidence in this case that such a notification was ever issued. All that happens on publication of a notification under S. 21 is that the State Government may prohibit cutting and destruction of trees. In any case, there is nothing in the Act to show that the rights of a raiyat are affected by notifications issued under Ss. 14 and 21. The petitioners claim, as I have already said, to be only raiyats. It is thus clear that, in law, possession cannot be said to have been transferred by these notifications to the State Government.

19. The only document relating to this period is a letter (Annexure V) dated the 11th September, 1948, of the Divisional Forest Officer to Devi Dayal Sukhani, a representative of the petitioners. In this letter, he has protested against cutting and destruction of trees by Sukhani and has warned him against continuing the destruction. This does not show that the petitioners lost possession over the lands. Indeed. Mr. Menon himself has not been able to urge that the State Government came into possession during this period.

20. (b) This period commences from the 8th December, 1953, and the 22nd November, 1954, when notifications under section 29 of the Indian Forest Act were issued in respect of Debipur and Telaiya forest, respectively. Sub-section (1) of S. 29 lays down:

“The State Government may by notification in the Official Gazette, declare the provisions of this Chapter applicable to any forest land or waste-land which is not included in a reserved forest, but which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest-produce of which the Government is entitled.”

21. Under sub-section (2), the forest and waste lands are to be called protected forest. There is no provision in Chapter IV for transfer of possession over any property to the Government. Legally, therefore, possession could not pass to Government by the mere fact of publication of the notification. Mr. Menon has, however, argued that officers of the Forest Department of the Government should be held to have taken possession in colourable exercise of their power. This requires consideration. Several documents have a bearing upon the question of possession during this period. I give them below in chronological order.

22. 20-4-55. Petition (Annexure M) filed by the petitioners before the Minister in charge of Revenue Department. In this petition the petitioners have said (i) that they have in their possession as lessees two separate blocks of forest lands, one lying in village Telaiya and the other lying in village Debipur; (ii) that their right in the lands is not that of landlords but that of tenants holding under permanent heritable and transferable leases burdened with the obligation of paying fixed sums annually as rent; (iii) that notification under section 29 of the Indian Forest Act was issued on the 22nd November, 1954, constituting the lands into a protected forest subject to all existing rights of individuals; (iv) that thereafter the Divisional Forest Officer, Hazaribagh issued a warning in his letter dated the 25th March, 1955, that the petitioners should not exercise any right in the lands without the permission of the Forest Officer, with the result that they could not bring even a cart-load of firewood from the forest for their own consumption; and (v) that, being lessees of the lands subject to the payment of annual rent, their hardships arose from the fact of being deprived of the yield and produce of the forest. They made the prayer that they should be permitted to fell and sell or use the forest produce.

23. 30-4-56. Letter (Annexure XVI) from Govt. to the Chief Conservator of Forests — This shows that legal experts had advised Government that, since the forest lands in Debipur and Telaiya in which the petitioners had raiyati rights, had been under the control of the Forest Department, there was no escape from the liability of paving compensation. Instruction was given that immediate steps should be taken to acquire the lands if they were essential for the Forest Department.

24. 16-6-56 Letter (Annexure V) from the Chief Conservator of Forests to the Additional Secretary. Revenue Department, suggesting that compensation be paid to the petitioners under Section 42 of the Bihar Private Forests Act for the period during which the forests “remained under the control and management of the Forest Department” and further that steps should be taken to acquire the forest lands under the Land Acquisition Act.

25. 9-12-57—Letter (Annexure IX) from the Under Secretary to Govt. Revenue Department to the Deputy Commissioner of Hazaribagh saying that the forests in question had been under the control of the State Government from a very long time, and it was necessary to finalise the land acquisition proceedings.

26. 31-1-58 Letter (Annexure VII) from the Under Secretary. Revenue Department, to the Chief Conservator of Forests, saying that the petitioners should not be made liable for payment of rent of lands which had already been included within the boundary of the demarcated forests, and invited the latter's views in the matter.

27. 31-1-58. Letter (Annexure VIII-A) from the same Under Secretary to the petitioners saying that the matter raised in their petition was under consideration. It appears that both annexures VII and VII-A were sent on the basis of a petition filed by the petitioners before Government.

28. 15-9-58. Letter (Annexure X) from the Additional Secretary, Revenue Department to the Deputy Commissioner of Hazaribagh saving that as the lands have been in the possession of the Forest Department for some time past, it is necessary that assessment and payment of compensation should be finalised with the least possible delay.

29. 1-10-58. Letter (Annexure VI) from the Divisional Forest Officer to the Range Officer. Koderma Beat saying that, as the forest in Debipur and Telaiva belonging to the petitioners had been in the possession of the Forest Department, he had approached the Conservator of Forests for sanction of the post of two forest guards Copy of this appears to have been forwarded to the petitioners, telling them that, if any illicit felling was found in the area, it should be brought to the notice of the Range Office Koderma.

30. 24-1-59 Requisitions (Annexure II) for acquisition of the forest lands in question in both proceedings were drawn up by the Divisional Forest Officer. It was mentioned in these two requisition? that the lands were already in the possession of the Forest Department and that formal possession was to be handed over.

31. 8-4-59. Letter (Annexure XIV) from the Divisional Forest Officer to the Conservator of Forests stating that he had inspected the forests in question and found them to be very much eroded. He expressed himself as being in favour of getting, at least, the Telaiya forest acquired but said that, since huge amount of interest would have to be paid in connection with the Debipur forest that forest may also he acquired.

32. 11-8-59 Letter (Annexure A) from the Divisional Forest Officer to the Land Acquisition Officer stating that Debipur forest was notified under the Indian Forest Act on the 8th December, 1953, that Telaiva forest was notified on the 22nd November, 1954, and that dates of possession of these two forests were, therefore, the 8th December, 1963, and fee 22nd November, 1984, respectively.

33. 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 fold out the correct legal consequences of the notifications issued under section 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. There are, however four documents which are very important. One is Annexure 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 felling, selling or appropriating the forest trees which he could certainly do in connection with a protected forest under the Indian Forest Act.

34. Another document, to which importance must be attached, is the Additional Secretary's letter (Annexure X) in which he admitted that the lands in question had been in possession of the Forest Department. The basis of this admission is not at all clear, nor is it clear when possession passed to the Forest Department as on the admission of the petitioners themselves, it did not pass on publication of the notifications under section 29 of the Indian Forest Act. This admission is followed by the admission which the Divisional Forest Officer made in his letter (Annexure VI). There is also an admission of possession in the requisitions dated the 24th January, 1959 (Annexure II). Thus, there are admissions on both sides. In Nagubai Ammal & Others v. B. Shama Rao & Others, AIR 1956 SC 593 at p. 599, paragraph 18, their Lordships have said:

“The admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made it can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel.”.

35. No estoppel has been pleaded in this case. As admissions have been made by both sides, it is difficult to be sure that the admission made by one party is true; whereas the admission made by the other party is untrue. In these circumstances, the only possible conclusion is that the question as to whether possession passed to the State Government in the second period is a highly disputed question of fact which can only be decided if both sides adduce all the evidence which they can produce. As I have already said, this cannot be done in this proceeding.

36. (c) This period begins when the declearations (Annexure 1-1 in both cases) under Section 6 of fee Act were published on the 19th May, 1959 notifications under Section 4 having been already issued earlier. It has been stated in the notifications under S. 4 (Annexure I in both cases):—

“In exercise of the powers conferred by Section 17(4) of the said Act the State Government have decided that, in view of the urgency of the project, provisions of Section 5-A of the said Act shall not apply”.

37. The order-sheets of the Land Acquisition Officer are Annexure IV in both cases. Mr. Dilkishore Prasad Singh, junior counsel for the petitioners, has referred to orders dated the 7th and 17th October, 1959 and has urged that they show that the Collector took possession under Section 17 of the Act. Under the order dated the 7th October, 1959, the Land Acquisition Officer stated that the measurement of the lands had been completed and the party was free to consult and inspect the land plan in his office, lie further directed that information should be sent to the requisitioning officer to obtain possession on the 25th October, 1959. The order dated ??? 17th October, 1959, shows that the Land Acquisition Officer deputed one Shri L.P Yadava to deliver possession at the spot to the representative of the requisitioning officer on the 16th November, 1959.

38. Learned Counsel has argued that, in view of these Iwo orders, possession must have been delivered to the Divisional Forest Officer, who was the requisitioning officer, and impliedly therefore, the Collector must have taken possession under Section 17 of the Act, and thereafter delivered it to the Divisional Forest Officer. I am unable to accept this argument. Orders dated the 5th October and the 16th November, 1959, do not show that possession was actually delivered. Indeed, there is no paper at all to show that L.P Yadava delivered possession or that the Divisional Forest Officer actually received it.

39. I may now examine the other documents. I give a list of the important ones below in chronological order.

40. 1-7-64 Complaint (Annexure A to M.K Sinha's affidavit dated the 16th August, 1966) by Shri Kedar Singh, a representative of the petitioners, against several persons before the Mukhiya relating to cutting and destruction of trees in the forest.

41. 8-8-64. Report (Annexure C the above affidavit) of Kamla Singh who claimed to be the farm manager of the petitioners recorded by Sub-Inspector R.D Shukla of Telaiya Beat House. It related to an attack by several persons at his residence in the farm, and the motive alleged by him was that, about four days earlier, darwan Ram Ekbal Singh had caught and pulled by the hair a Chammar of village Telaiya who had cut wood from the jungle.

42. 17-9-64. The Chief Secretary to the Government of Bihar drew up notes (Annexure J to M.K Sinha's affidavit dated fee 16th August, 1966) on this date after having earlier inspected the forests. He stated in these notes that the forest lands were useless, and

“The Revenue (Forest) Department may be requested to collect all the necessary materials and take legal advice on this issue before coming up for final orders of Government, about whether from the legal and financial angles, it is better to pay the land acquisition compensation at the exorbitant rate of more than Rs. 200 per acre for this very inferior land under deteriorated forest and scrub, or to withdraw from acquisition and leave it to Messrs Jethmul Bhojrij to claim damages or mesne profits as they may wish to”

43. The Chief Minister appears to have agreed to these proposals by an endorsement dated the 19th September, 1964.

44. 30-10-64. Statements of some witnesses (Annexures D.E.F.G and H to M.K Sinha's affidavit dated the 18th August, 1966) were recorded by the Mukhiya.

45. 21-3-65. Letter (Annexure XII) from the Divisional Forest Officer to the Conservator saving that illicit felling of trees was going on in Jethmull Bhojraj's lands. It is interesting to note that, after recalling the inspection of the Chief Secretary in September, 1961. He says that, as verbally instructed be the Chief Conservator of Forests, cases were not being instituted by the Forest Department against the offenders in connection with the forests claimed by the petitioners, the idea being to show that the Forest Department was not exercising possession or control over those forests. He has further stated that, “as per the report of the Range Officer even the watchmen of Jethmull are suspected to be cutting and felling trees” lie has conveyed the apprehension of the Range Officer that villagers might come to forests already under the control of the Government and start cutting trees, and has added that instructions had been given to the Range Officer to keep vigilance over “our forests and to deal the offenders strictly if they happen to come to our forests for illicit fellings”.

46. 13-9-65 Letter (Annexure XII-A) from the Conservator to the Chief Conservator giving out that fellings were taking place in the petitioners' raivati areas in the Debipur and Telaiva forests that the Forest Department was not taking action in order to guard against their being found to be in possession, and that the petitioners' men were also not slopping the fellings in order to avoid evidence of possession in their favour, with the result that the forests in the raiyati areas were getting badly destroyed.

47. 17-5-66. Letter (Annexure C) from the Divisional Forest Officer to the Land Acquisition Officer staling, among other things, that the forests of Debipur under acquisition have never been exploited by the Forest Department by auctioning coupes or supplying forest produce to the right holders, nor has the department derived any revenue at all from them.

48. A consideration of the documents referred to above seems to show that the Forest Department may possibly have exercised some acts of management and control over the forest lands in question at some time; but the petitioners' men also continued to remain at their farm and they also possibly exercised some sort of control. From some time after the Chief Secretary's inspection in September, 1964, each side started acting in such a manner as to avoid an inference that it was in possession. The result appears to have been that the forests in question have been practically denuded of valuable trees. In these circumstances, it is altogether impossible, without fuller evidence, to come to a conclusion that either the petitioners or the State Government were, or have been in possession of the lands in question. I, therefore, hold that no finding on the question of possession during the third period can be given on the state of the evidence as it is on the record.

49. I have already indicated that, as argued by the learned Advocate General, admissions cannot be held to be conclusive. In my opinion, his next argument is also correct. If admissions are made with regard to any legal consequence under a misapprehension as to the true interpretation of law, such an admission is not binding either upon the maker or upon the Government, if the maker happens to be a Government servant. Indeed, when Government servants act in exercise of their legal power, their admissions, express or implied cannot be binding upon the Government Reliance may be placed upon State Of Bihar… v. Jagdish Narain Singh…., 1961 BLJR 446 at pp. 475–77 paragraphs 44 to 47).

50. I have already accepted the third submission of the learned Advocate General, and have held that the question of possession in this case is a disputed question of fact if however, if is assumed for the sake of argument that forest officers did take possession somehow at some time or the other, I think that the petitioners will be legally entitled to interest by way of compensation from the date of possession but will not be entitled to interest under Section 34 of the Act. Reliance may be placed upon Vallabdas Narainji v. Development Officer, Bandra, AIR 1929 PC 163.

51. So far as the application of S. 48(1) is concerned, it seems clear that the Government loses its right to withdraw from acquisition only from the date when the Collector takes possession under Section 16 or Section 17 of the Act so that title vests free from all encumbrances in the Government. There seems to be no reason to suppose that the word ‘possession’ in sub-section (1) of Section 48 means possession of a kind different from that taken over under Section 16 or Section 17 of the Act. It is also from the date of taking over such possession that interest becomes payable under Section 34 of the Act.

52. As I have been unable to find that the Government took possession of the lands in question under any law—much less under Section 16 or Section 17 of the Act—I am unable to hold that they acted illegally in withdrawing portions of the lands from acquisition. For the same reason, I cannot hold that the petitioners are entitled to interest from any particular date.

53. Point No. (3). Section 48(1) does not say that the Government has to follow any particular procedure in withdrawing any land from acquisition. It is mainfest that the Land Acquisition Officer knew of the Government's intention to withdraw what they have actually withdrawn from acquisition under the notifications issued in August, 1966. The Land Acquisition Officer's awards cannot be held to be vitiated simply because he gave them in respect of only such areas of lands as remained under acquisition after the withdrawals which were subsequently notified by Government in the Official Gazette. Even supposing that the officer has committed some irregularity it is not possible for this Court to issue a writ of mandamus commanding him to determine the compensation of lands which now stand legally withdrawn by Government from acquisition. Such a writ would be quite valueless. This point also, therefore, fails.

54. Point No. (4). I have already held that the withdrawal is not illegal. The first argument postulated in this point fails. Mr. Chakravarty has argued that the Collector has no power of review. He has pointed out that the Land Acquisition Officer originally estimated the compensation at a very much higher figure. He has also pointed out that this was placed before the Deputy Commissioner. It appears, however, that the Deputy Commissioner sent the estimate to Government. Thereafter questions of withdrawal of some lands from acquisition were raised. Ultimately, the Land Acquisition Officer gave an award in respect of the lands left under acquisition after those withdrawals. There is, therefore, no question of review. As the area of acquisition was reduced, a different estimate of the compensation had to be prepared I may also mention that, until an award under Section 11 is made, the proceedings are administrative and not judicial in nature. Reliance may be placed in this connection on Jagarnath Lal v. Land Acquisition Deputy Collector, Patna, AIR 1940 Pat 102 That being so, no finality could attach to an order passed by the Land Acquisition Officer before he made his ultimate award.

55. Point No. (5). It has not been pointed out that the Government have, by any order, shown that their action was mala fide. All that Mr. Menon has urged is that the Land Acquisition Officer acted mala fide in drawing up the award at a very low figure on the 15th June, 1966 It is impossible to say that this was a mala fide action on the part of the officer. As the area under acquisition was reduced, he could not help giving an award for a smaller figure. Whether that figure is correct or incorrect will necessarily be gone into by the District Court in the reference under Section 18 of the Act. I, therefore, need not sav anything in this connection at this stage.

56. For the reasons which I have given above, the applications fail, and they are dismissed with costs: hearing fee is assessed at Rs. 200 in each case.

57. Narasimham, C.J:— I agree.

58. There is a pending reference under Section 18 of the Land Acquisition Act in the Civil Court, where the question of quantum of compensation payable to the petitioners and other allied matters will come up for consideration. It will, therefore, be not proper for us to say anything here which might embarrass the Civil Court hearing that reference. There is acute controversy between the parties as to whether possession of the lands in question was actually taken by the Government, the petitioners asserting all along that the possession was actually taken either from 1954 or, at the latest, from 1959. On the other hand, on behalf of the State of Bihar it was urged that the Government merely exercised their right of supervision and control over the forests in the lands in question by virtue of notifications issued under the provisions of section 29 of the Indian Forest Act.

59. My learned Brother has fully discussed the nature of the affidavits filed by parties and the admissions made by the rival parties on some occasions. I also agree with him that no definite finding on this question can be given in a writ petition of this type. Unless the persons who swore affidavits are brought to the witness-box and cross-examined by the rival party, and both parties are given adequate opportunities to produce all available evidence bearing on the question of actual possession, this point cannot be decided. This is primarily the function of the Civil Court.

60. This question about the taking of actual possession of the disputed lands by the Government has a direct bearing on the question of interest payable to the petitioners. If their contention on this point is accepted, they will be entitled to interest by way of compensation from the date when the Government took possession, as pointed out in AIR 1929 PC 163. Hence this question also will have to be decided by the Civil Court in the reference under Section 18 of the Land Acquisition Act, and we do not want to embarrass that Court in any way.

61. But as the validity of withdrawal from acquisition in respect of portions of the lands is under challenge before us we have to decide whether the taking of possession as alleged by the petitioners, even if believed, would be a bar to withdrawal from acquisition under Section 48(1) of the Land Acquisition Act.

62. As rightly pointed out by my learned Brother the taking of possession referred to in sections 16, 17(1), 34 and 48(1) of the Act must be of the same nature. Hence, unless the petitioners can show that possession over that portion of the disputed lands which were notified as having ??? withdrawn from acquisition was of the nature required either by Section 16 or Section 17(1) of the Land Acquisition Act, the legality of the order of withdrawal cannot be successfully challenged. I would agree with the contention of Mr. Lal Narain Sinha for the State of Bihar that the taking of possession either under section 16 or under section 17(1) is fundamentally different from the possession, if any which the Government might have taken prior to the commencement of the acquisition proceedings.

63. Possession for the purpose of Ss. 16 and 17(1) must be possession as a full owner, in consequence of which the lands vest absolutely in the Government free from all encumbrances. It cannot be of the same nature as any previous possession which the Government might have taken either as a lessee, or mortgagee, or licensee, or under some other colour of title, or even as a trespasser. Though the Act is silent as to the mode of taking possession either under Section 16 or Section 17(1) of the Act, there seems no doubt that either actual occupation by the Collector or his agents, or taking symbolic possession (where actual possession is already with the Collector), or doing something equivalent to effective possession is contemplated. Here admittedly no such formal taking of possession either under S. 16 or under S. 17(1) has been alleged to have been done. The petitioners' case all along has been that by virtue of the appropriate notification under the Indian Forest Act and the absence of any resistance by the petitioners, the Forest Department took over actual possession from 1954. That possession cannot, therefore, be held to be possession for the purpose of Section 48(1) of the Land Acquisition Act, Hence there is no illegality in the withdrawal from acquisition in respect of a portion of the disputed lands.

CK/NRK/G.G.M

64. Petition dismissed.