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SUPREME COURT OF INDIA
(From the High Court of Judicature at Allahabad)
Hemant Gupta, V. Ramasubramanian, JJ.
U.P. Avas Evam Vikas Parishad Through Housing Commissioner & Anr. – Appellants
Versus
Noor Mohammad & Ors. - Respondents
Civil Appeal No.8083 of 2011 with Civil Appeal No.8072 of 2011
Decided On : 16-12-2021
Land Acquisition Act, 1894 – Section 48(1) – General Clauses Act, 1897 – Section 21 – Release of acquired land – Power to issue Notification would include a power to rescind Notification – Notification under Section 48(1) was invited by land owners by making false representations – Land owners have actually played fraud upon Government and secured Notification – They cannot be allowed to contend that land can be acquired only through a fresh process of acquisition – Proceeding under Section 48(1) of Land Acquisition Act is administrative in nature – While a Notification for acquisition issued under Section 4(1) of Land Acquisition Act seeks to take away an individual’s right to property, Notification under Section 48(1) is actually reverse or opposite – It confers benefit upon an individual and it is not supposed to be preceded by any enquiry – Essence of an order which is quasi-judicial in nature is that it is preceded by an opportunity of hearing to party affected thereby – Notification under Section 48(1) does not warrant any notice or opportunity of hearing, to original land owners – If at all any person will be aggrieved by Notification under Section 48(1), it will be beneficiary of acquisition, which in this case is Parishad and not land owners – An order secured by fraud and misrepresentation will not confer any vested right – Land owners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A – Withdrawal of such an illegal notification which was secured by fraud, cannot be found fault with – Impugned orders of High Court set aside and writ petitions filed by respondents dismissed. [Article 300A of Constitution of India] (Paras 11, 15, 20, 22, 24, 26 and 27)
Facts of the case:
U.P. Avas Evam Vikas Parishad, which is a statutory authority of the State of Uttar Pradesh for housing and development, has come up with the present appeals, challenging the orders of the High Court of Judicature at Allahabad, setting aside a Notification cancelling a previous Notification issued under Section 48(1) of the Land Acquisition Act, 1894 for the release of the land of the respondents herein from acquisition. Main ground on which the High Court set aside the second Notification dated 15.09.2005 was that once a Notification is issued under Section 48(1) of the Land Acquisition Act, 1894, the land gets released from acquisition and that, therefore, the only way the State Government could retrieve the land is to initiate the process of acquisition afresh.
Findings of Court:
All the contentions of the respondents-land owners are liable to be rejected and the appeals liable to be allowed. Since the acquisition has been complete in all respects the appellant-Parishad may proceed to implement the public purpose for which the land was acquired. There will be no order as to costs.
Result : Appeals allowed.
JUDGMENT :
V. Ramasubramanian, J.
1. U.P. Avas Evam Vikas Parishad, which is a statutory authority of the State of Uttar Pradesh for housing and development, has come up with the present appeals, challenging the orders of the High Court of Judicature at Allahabad, setting aside a Notification cancelling a previous Notification issued under Section 48(1) of the Land Acquisition Act, 1894 for the release of the land of the respondents herein from acquisition.
2. We have heard Shri Vishwajit Singh, learned counsel appearing for the appellants and Mr. Krishnam Mishra and Mr. Anand Varma, learned counsel appearing for the respondents.
3. A Notification dated 25.07.1964 was issued by the State Government under Section 36 of the United Provinces Town Improvement Act, 1919 (hereinafter referred to as “the U.P. Act”) for the acquisition of land of a total extent of acre 1.85 in Village Mirzapur, Tehsil Sadar, District Gorakhpur for the public purpose of providing housing/residential accommodation. This notification is akin to Section 4(1) of the Land Acquisition Act, 1894.
4. The above notification was followed by another notification dated 17.06.1967 under Section 42 of the U.P. Act, which is equivalent to Section 6 of the Land Acquisition Act, 1894. It appears that the emergency clause was invoked and the enquiry dispensed with, before the declaration was made. The possession of the entire land except one piece bearing plot No.292/2 measuring an extent to 0.028 acres, was taken over by the State Government on 24.07.1970 and an award was also passed on 30.03.1971.
5. From the year 1983, the land owners made attempts to get the lands released from acquisition, but fortune fluctuated in a see-saw battle.
6. Eventually by a Notification dated 7.04.2003 issued in exercise of the powers conferred by Section 49(1) of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 read with Section 48(1) and 49(1) of the Land Acquisition Act, 1894, the land was exempt from acquisition. But within a couple of years, the Government issued another notification dated 15.09.2005 cancelling the notification dated 07.04.2003 on the ground that the land owners had played fraud by making false representations, while seeking the release of the land.
7. Challenging the said Notification dated 15.09.2005, the original land owners filed a writ petition in W.P (C) No.64727 of 2005 and the purchaser of one part of the land from the original owners filed another writ petition in W.P No.50151 of 2008. Both these writ petitions were allowed by Division Bench of the High Court by an Order dated 31.08.2010, holding that once the acquired land is released from acquisition, by way of Notification, the Government can reclaim the land only by initiating a fresh process of acquisition. Aggrieved by the said order, the Housing and Development Authority has come up with the above appeals.
8. Before we address the rival contentions for consideration, it may be necessary to bring on record the background in which the original Notification dated 07.04.2003 under Section 48(1) of the Land Acquisition Act was passed and the reasons for the issue of the latter notification dated 15.09.2005 cancelling the previous one. This background as well as the reasons are stated very pithily in the second Notification dated 15.09.2005 and, hence, it is reproduced as follows:
An application dated 28.2.83 along with a letter addressed to the Chief Secretary dated nil in connection with Khasra no. 257 (rakba 0.51 Acre), Khasra no. 254 (rakba 0.30 Acre) , Khasra no. 255/1 (rakba 0.1
(1) Power to issue Notification would include a power to rescind Notification.(2) Proceeding under Section 48(1) of Land Acquisition Act is administrative in nature.(3) An order secured by fraud and ....
The exercise of power under Section 48 of the Land Acquisition Act, 1894 must be conducted in a fair and bona fide manner, and the authority must offer an opportunity to the beneficiary before withdr....
Mistaken inclusion of land in acquisition notifications does not automatically grant ownership, and compensation requires assessed possession under relevant laws.
The cancellation of land acquisition notifications by the Government post-possession was found discriminatory and arbitrary, violating constitutional rights of equal protection under the law.
Failure to specify public purpose in a land acquisition notification renders it void ab initio.
The finality of land acquisition proceedings and the principle that challenges to such proceedings should be initiated within a reasonable time.
Point of law: Co operative society - Encroachment of Land - Right to fair compensation - Concept of equity, justice and good conscience is part of Indian law and can be applied by the Courts in certa....
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