U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING COMMISSIONER versus RAM SINGH (D) TH. LRS. & ORS. on 20 April 2022

[2022] 19 S.C.R. 853

U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSINGCOMMISSIONER

v.

RAM SINGH (D) TH. LRS. & ORS.

(Civil Appeal Nos. 3023–3024 of 2022)

APRIL 20, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Land Acquisition Act, 1894:s. 48 – Scope of – ‘Actual’Possession – Completion of acquisition not compulsory, butcompensation to be awarded when not completed – Acquisition ofland u/s. 28 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965– Urgency Clause invoked – Actual Possession of acquired landnot taken – Notification purporting to exempt the acquired land inquestion – Representation by the beneficiary of the acquisition –By notification dated 25.04.2008 exemption notification cancelledand concerned department was directed to consider the matter –Writ petitions by land owner, challenging the notification dated25.04.2008 – High Court allowed the petition – On appeal, held:Decision to withdraw from acquisition is justiciable– Suchwithdrawal must be preceded by offering an opportunity to thebeneficiary – Notification under Section 48 has been issued on07.07.2005 and the contents of the notification would tend toindicate, inter alia, that possession of the land was not taken andtaking of possession is not actual possession – The taking ofpossession which would prevent the exercise of power u/s. 48 mustbe taking of khas possession or actual possession – Appellantshave not been able to establish any notice u/s. 9(3) which was issuedfor acquisition of land of the Respondent – Beneficiary-appellanthas not made out a case for interference with the impugned orders.

Constitution of India, 1950: Art. 300A – No person shall bedeprived of his property save by authority of law - Held: Anacquisition of land is permitted to be made in public interest – Art.300A declares that it is a constitutional right of a person to protecthis property from deprivation and deprivation can be permitted onlyin accordance with law.

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ADismissing the appeals, the Court

HELD: 1.1 An acquisition of land is permitted to be madein public interest. Undoubtedly, Article 300A declares that it is aconstitutional right of a person to protect his property fromdeprivation and deprivation can be permitted only in accordanceBwith law. However, in exercise of powers of eminent domain inregard to which law finds its manifestation in the Land AcquisitionAct from time-to-time, lands/properties of individuals may haveto be acquired, for which the procedure is stipulated in the LandAcquisition Act inter alia. Starting with a notification under Section4 passing through the declaration under Section 6 followed up byCnotices under Section 9, finally it culminates in an award. In themeantime, if urgency warrants the immediate possession beingtaken, possession can be taken by even dispensing with theinquiry under Section 5A when the notification is issued underSection 4 and after 15 days of the notice issued under SectionD9(1) of the Land Acquisition Act. [Para 13, 14][870-G-H; 871-A-B]

1.2 Power u/s. 48 of Land Acquisition Act is vested with astatutory authority as in the case of all power, the trammels offairness in Governmental action and the imperative need to avoidEarbitrariness is inevitable in the exercise of the power underSection 48. [Para 15][871-F]

1.3 The decision to withdraw from acquisition is justiciable.In other words, what is described as a liberty or a power with theGovernment must be understood also as being attended with theFduty to act in a fair and bona fide manner. This means that presentthe inevitable and indispensable requirement, namely, that actualpossession of the land has not been taken under the Act, it isopen in a fit and appropriate case and bearing in mind publicinterest and the facts for the Government to withdraw from theacquisition. It is the duty of the authority to be mindful of allGrelevant inputs before it takes a decision to withdraw from theacquisition. It is also clear that withdrawal from the acquisitionmust be preceded by offering an opportunity to the beneficiary atwhose instance the acquisition is to be made. It is also clear thatthe withdrawal from acquisition can be made only by issuance ofHa notification. [Para 16][873-F-H]

U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSINGCOMMISSIONER v. RAM SINGH (D) TH. LRS.

1.4 A question may arise as to what is the true nature of thepower exercised under Section 48. It is a power which is vestedwith a statutory authority. No doubt the power would be exercisedin terms of the orders under which the competent authority wouldbe empowered to act in the matter. Whoever is the authoritywhich is exercising the power in accordance with the extant norms,he is exercising the power which would be subject to judicialreview on well–settled principles in the face of a challenge to theexercise of the power. [Para 17][874-B-C]

1.5 In the present case, it was, inter alia, the case of therespondent that possession had not been taken. On the basis ofthe said request, a Notification under Section 48 has been issuedon 07.07.2005. The contents of the notification would tend toindicate, inter alia, that possession of the land was not taken andtaking of possession is not actual possession. The taking ofpossession which would prevent the exercise of power underSection 48 must be taking of khas possession or actual possession.The notification dated 07.07.2005 further recites that the appellantwas notified about the proposal and what is more it was followedup by three reminders. There was no response from the appellant.Therefore, this is not a case where flouting the law laid down bythis Court, withdrawal from the acquisition was made underSection 48 without compliance with principles of Natural Justiceas far as the beneficiary is concerned. [Para 18][874-D-F]

1.6 A perusal of Section 17 (1) of the Land Acquisition Actwould show that the possession can be taken in cases whereurgency clause is invoked, upon the expiry of 15 days of thepublication of notice under Section 9(1). Here the authorityapparently has not looked into the question as to whetherpossession was taken with reference to the relevant date whichis the publication of notice under Section 9(1). Section 9(1) of theLand Acquisition Act in fact speaks about the need to give a publicnotice. Section 9(3) speaks about duty to give individual noticesto land owners. As correctly pointed out, non-service of noticeunder Section 9(3) would not be sufficient to invalidate theacquisition. But then the relevance of Section 9(3) notice is thatif it had been produced and proved, it would have gone a A

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Along way in proving the case of the appellant that possession hadin fact been taken. It is apposite to notice that in the appealcarried by the appellant to this Court, the appellant held out thatit had material to show that notice was issued. [Para 19][874-G-H; 875-A-C]

B1.7 It is a notice notifying the owner about the fact that theaward is going to be passed on 28.09.1985. The date of the so-called notice under Section 9(3) is 25.09.1985. A notice undersection 9 is to be followed by enquiry under Section 10 and awardunder Section 11 certainly cannot be confused with notice whichmerely notifies the owner about the date fixed for passing theCaward. There is only a gap of three days between the date of thenotice and the date fixed for passing of the award. Therefore, theappellants have not been able to establish any notice underSection 9 (3) was issued. [Para 21][877-C-D]

1.8 The authority has purported to draw support from theDorder dated 15.09.2006 issued by the Government. The orderdated 15.09.2006 undoubtedly proclaimed that exemption fromacquisition or rather withdrawal from acquisition must receivethe attention of the concerned department. Its terms wouldindicate that Government decided to do away with the earlierEorder passed in the year 2002. The order dated 15.09.2006 isexplicit in that, it was to have an ‘immediate effect’. This meansthat it was not retrospective. This further inevitably means thatit cannot affect orders/notifications which had been issuedinvoking power under Section 48 prior to 15.09.2006. Yet a perusalof the order dated 25.04.2008 would reveal that the GovernmentFhas proceeded to act on the basis of order dated 15.09.2006. Inother words, the impugned order which has been set aside bythe High Court is entirely based on an order which has noapplication to the facts. It is clarified that it is not as if when anotification is issued under section 48, it can never be undoneGirrespective of the facts obtaining in a case. Apart from the factthat it is open to challenge in a court of law at the instance of anaggrieved party in a given case if it is shown it is procured byfraud, it may be open to the authority to undo the same. It is anadministrative order, no doubt issued under a statutory provision H

by a public authority. Since the law is that principles of naturaljustice apply and the power can be exercised only after offeringan opportunity to the beneficiary as distinct from the owner, in acase where it is found that a notification was issued without notice,which is indispensable to passing of a valid notification, it may beopen to the Government to undo the effect of the notification. Inthe facts of this case, it is not even the case of the appellant in itsrepresentation that the recital in the notification that it was givenopportunity to make its representation against the proposed actionwas wrong. The appellant did not have a case in its representationthat it was not given any opportunity to represent against theorder. The appellant seeks to make good this omission bycontending that a ground was raised that there was violation ofnatural justice. The appellant should not be permitted to makegood an omission which stares in our faces, in the facts of thiscase. The appellant has not made out a case for interference withthe impugned orders. [Para 23][877-F-H; 878-A-E]

Amarnath Ashram Trust Society and Ors. v. Governorof U.P. and Ors. (1998) 1 SCC 591 : 1997(6) Suppl.SCR 143; Larsen and Toubro Ltd. v. State of Gujaratand Ors. (1998) 4 SCC 387 : 1998 (2) SCR 339; StateGovt. Houseless Harijan Employees Association v. Stateof Karnataka and Ors. (2001) 1 SCC 610 : 2000 (5)Suppl. SCR 483 – relied on.

Mohinder Singh Gill and Ors. v. The Chief ElectionCommissioner, New Delhi and Ors. (1978) 1 SCC 405 :1978 (2) SCR 272 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3023-3024 of 2022.

From the Judgment and Order dated 31.8.2010 of the High Courtof Judicature at Allahabad in Writ Petition No. 49944 of 2008.

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Civil Appeal Nos. 3025-3026 of 2022.

Vishwajit Singh, Sr. Adv., Abhishek Kumar Singh, Pankaj Singh,Ms. Ridhima Singh, Vignesh Singh, Ms. Rashi Singh, Ms. Vibha Bhat,Advs. for the appellant.

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Yatindra Singh, Sr. Adv., Anurag Ojha, Karan Aggarwal, SushilKumar Singh, K.P. Singh, Kanishk Chaudhary, Shashank Singh, PushkinChaudhary, Ms. Chitra Chaudhary, Madhav Saraswat, Diwakar Shukla,Prashant Chaudhary, Dhawal Uniyal, Kamlendra Mishra, Advs. for therespondents.

CThe Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. Permission to file rejoinder affidavit in SLP(C) Nos. 23899-23900 of 2017 is granted.

Delay condoned.

DLeave granted.

2. These appeals have behind them a chequered history. It allbegan with the issuance of a Notification by the appellant under Section28 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965 (hereinafterreferred to as the “Adhiniyam”) on 10.11.1973. The said Notification isEto be treated as equivalent to a Notification issued under Section 4 of theLand Acquisition Act, 1894, proposing to acquire among other lands,Khasra Plot No. 7 and Khasra Plot No. 3, having a total area of 5.98Acres in a certain village which originally belonged to one Shri RamRatan. It may be noticed here itself that Ram Ratan has passed awayand the respondent-Ram Singh was his son and he has in turn passedFaway and is represented by his legal representatives. The appellant issueda Notification under Section 32 of the Adhiniyam on 17.8.1977. This isthe equivalent to the Notification issued under Section 6 of the LandAcquisition Act. The urgency clause under Section 17(1) of the LandAcquisition Act was invoked on 18.07.1979. According to the appellant,Gthe possession of the land was taken on 11.12.1981 and 31.3.1983.

The further case of the appellant is that there was a case of asale effected by the original respondent-Ram Singh. There is a referenceto the notice issued under Section 9 of the Land Acquisition Act on25.09.1985 and an Award being passed on 28.09.1985.

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3. It is the further case of the appellant that the original respondent-Ram Singh submitted an application on 19.11.1985 claiming compensationstating, inter alia, that he was the son of the Original Tenure Holder andthat he had not executed any sale deed in respect of the land. There is acopious reference to certain litigation initiated against the subsequentpurchasers (Dr. Raj Kumar Chaturvedi & Ors.). To come to the point inissue, it started with the Notification which was issued on 07.07.2005purporting to exempt Khasra No. 3 and 7 from the acquisition. Theappellant thereupon submitted a representation on 24.10.2005, inter alia,pointing out that the land has been acquired and the Award has beenpassed and what is more, possession was also taken. It is also contendedthat mutation was effected in favour of the appellant. This led to theGovernment issuing Notification dated 25.04.2008. The Government inthe said Notification cancelled the earlier Notification dated 07.07.2005and directed the matter for consideration by the concerned department.Aggrieved by the said Notification dated 25.04.2008, respondent-RamSingh filed a Civil Misc. Writ Petition No. 49944 of 2008. The said writpetition came to be allowed by the High Court by judgment dated31.08.2010. Aggrieved by the judgment dated 31.08.2010, the appellantpreferred special leave petitions SLP(C) Nos.34271 OF 2010 and 34090of 2010. Leave was granted and Civil Appeal No. 6272 of 2012 andCivil Appeal No. 6273 of 2012 came to be disposed of by this Courtpermitting the appellant to seek a recall of the order dated 31.08.2010.The appellant moved an application for recall of order dated 31.08.2010and the same was rejected by the High Court vide order dated 20.12.2016.The appellant challenges the orders dated 31.08.2010 and 20.12.2016.The other appeals are filed by the same appellant challenging the judgmenton similar lines which have been passed in litigation lodged by personsclaiming to have purchased from Shri Ram Singh in the year 1984.

4. We have heard Shri Vishwajit Singh, learned senior counselappearing for the appellant and Shri Yatinder Singh, learned senior counselappearing on behalf of the legal representatives of the original respondent– Shri Ram Singh as also Shri Anurag Ojha, learned counsel appearingfor the subsequent purchaser(s).

5. Learned senior counsel for the appellant Shri Vishwajit Singhwould urge before us that this is a case where all that was done by theimpugned order dated 25.04.2008 was to withdraw the earlier order andto relegate the matter to the competent authority to take a decision as to AB

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Awhether the Government should withdraw from the acquisition and therewas no warrant for interfering with the said order by the High Court inthe writ petition(s) filed by Shri Ram Singh and the so-called purchasersfrom Ram Singh.

It is pointed out that this is a case where the land in questionBforms the subject matter of the Notification issued under Section 28 ofthe Adhiniyam followed by the declaration under Section 6 of the LandAcquisition Act. This is followed up by issuance of notice under Section9 of the Land Acquisition Act and finally it culminated in an Award. Theamount due under the Award was duly deposited. All this is eloquentlyestablished by the unequivocal action of the respondent-original ownerCof the land in addressing a communication dated 19.11.1985:

“To,

Special Land Acquisition Officer

U.P. Avas Evam Vikas Parishad,

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Kamla Nagar, Agra

Sir,

In connection with taking the meaning of your letter no.414/81 Dwa. (A.V. Parishad) dated 11.11.85 otherwise, this toEinform you that the land of Khasra no. 3 and 7 has continuouslybeen entering in the name of Ram Ratan and the applicant RamSingh s/o Shri Ram Ratan r/o Nagari Mohalla, Mathura is theonly son of Shri Ram Ratan and, thus, he is the sole owner of thesaid land. It is humbly submitted that the applicant has executedneither any Sale Deed nor Power of Attorney in respect of theFaforesaid land. Therefore, you are requested to please grantcompensation of the aforesaid entire land to the applicant RamSingh. Submitted for consideration.

Thanking you.

Yours faithfully,Sd/- IllegibleRam Singh s/o Ram Ratanr/o Mohalla Nagari, Mathura G

Date: 19.11.85

Sd/- Ram Singh”

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6. He would submit that having accepted the fact of the Awardbeing passed and what is more not bringing the procedure, antecedent tothe passing of the Award under a cloud or not having questioned that thepossession was indeed taken prior to the Award being passed, it doesnot lie in the mouth of the respondents to contend that possession wasnot taken. If possession was not taken, as is indeed the case, there isabsolutely no jurisdiction with the Government to withdraw under Section48 of the Land Acquisition Act. This went to the root of the matter.

It is further pointed out that apart from possession being taken,the matter had progressed to the stage where lay out had been approved.These lands are central and integral to the execution of a housing schemeevolved to cater to the needs of the Low-Income Group. The case ofthe appellant is attended with the highest public interest. Withdrawalfrom an acquisition which is not in conformity with the statutory provisionsmust not be lightly sabotaged, at the instance of the persons like therespondent herein who has held himself out as limiting his rights to layinga claim for the compensation which has been deposited by the appellant.

7. Per contra, Mr. Yatindra Singh, learned senior counsel appearingfor the respondents would stoutly oppose the appeals by pointing outthat this is a case where the entire premise of the appellant is flawed.Possession within the meaning of Section 48 of the Land AcquisitionAct cannot be symbolic. In other words, the taboo against withdrawalfrom acquisition is attracted only if actual possession has been taken. Inthis case, possession has not been taken. The efforts on the part of theappellant to establish possession through certain documents would atbest show that possession was shown to be taken. This does not sufficein law to prevent the exercise of the power under Section 48 of the LandAcquisition Act.

As regards reliance placed on the communication dated 19.11.1985wherein demand for request for disbursement of compensation isconcerned, it is contended that it was deposited only in 2004 and it cannotdetermine the fate of this case.

More importantly, he drew our attention to the order dated24.05.2008 which has been set aside by the High Court. He would pointout that it has no legs to stand on in law for the reason that it is primarilyfounded on an order which was passed by the Government after thepassing of the Notification dated 07.07.2005. In other words, theNotification dated 07.07.2005 was founded on the power ceded to the AB

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ARevenue Department by the Government order dated 19.06.2002. Thecase of the appellant on the other hand which found acceptance withthe Government in the order dated 25.4.2008 is based on the contents ofthe order dated 15.09.2006.

The order dated 15.09.2006 expressly has prospective operation.BIt does not affect the orders which have been passed earlier to it. Onthat short ground, the order dated 25.04.2008 would not have any legs tostand on. Secondly, he would point out that contrary to the complaint ofthe appellant, it is indisputable, having regard to the contents of theNotification dated 07.07.2005 that the appellant was offered an opportunityto make its representation or to be heard before the Notification datedC07.07.2005 was passed.

8. He would further contend that a government order must bejudged in terms of what flows from its express terms. It is impermissiblefor an order passed under a statute by a public authority to be renderedvalid by affidavits or submissions made in a Court. It must be judged onDits own merits, with reference to the foundation which is laid in theorder. Reliance is placed on the judgment of this Court in MohinderSingh Gill vs CEC reported in 1978 (1) SCC 405.

9. The learned counsel for the respondent in the other appealwould also submit that this Court may notice that the appellant did notEthink it fit to challenge the Notification dated 07.07.2005. Therefore, nointerference is called for.

10. The facts which are not in dispute are as follows:

There was a Notification which we will characterize as aNotification issued under Section 4 of the Land Acquisition Act onF10.11.1973. It is followed by a declaration under the provisions ofAdhiniyam, which is equivalent to Section 6 of the Land Acquisition Acton 17.08.1977. Undoubtedly urgency clause was invoked under Section17(1) of the Land Acquisition Act. An award was passed on 28.09.1985.It is also true that the original respondent in the first appeal did seek thecompensation on the basis of award on 19.11.1985. On 19.06.2002 theGGovernment has passed an order, the terms of which read as follows:

“No.: 592/1-13-2002-Ra-13

From,

Harish Chandra

Govt. Of U.P.

To,

1. All Principal Secretaries/Secretaries

Government of U.P.

2. All Department Heads/Divisional Commissioners/

District Magistrates, U.P.

Revenue Deptt.-13 Lucknow: 19 June, 2002

Sub:Regarding exemption of land from acquisition u/s 17 of theLand Acquisition Act, 1894

Sir,

On the aforementioned subject, I have been directed to statethat the State Government has been receiving complaints fromtime to time that almost each case of land acquisition, Section 17of the Land Acquisition Act is being used and despite using Section17 of the Act, most of the Acquisition Bodies are neither providingrequired amount of compensation nor trying to take possession ofthe land. In some cases, where half-hearted efforts are made u/s17 of the Act by the Administrative Departments of the AcquisitionBody, they have been proved to be contrary to the essence ofusing Section 17 toward development projects of the StateGovernment. In fact, most of the Acquisition Bodies, despite therebeing no necessity, used to make requests for using Section 17 ofthe Act in the proposed Scheme/Projects. As a result, even afterpassing of several years, neither the Acquisition Body takespossession of the acquired land nor the farmers get theircompensation because of not providing funds from the Body.

In the event of using the provisions of Section 17 of theLand Acquisition Act, 1894, the provisions of Section 5A getsextinct and the landowners lost their right of opportunity of hearing.It is provided in Section 17 that possession of the land, in whichSection 17 has been applied, should be taken on the expiration offifteen days. As a result of not taking immediate possession andnon-deposit of required money, the importance of Section 17 provesto be ineffective.

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Therefore, with a view to prevent misuse of implementationof Section 17 in various development projects and after dueconsideration, it has been decided that the Acquisition Bodiesshould take immediate possession of the land where provisions ofSection 17 have been used. Only the Revenue Department shallhave the power to exempt any part of land whose possession hasnot been taken and such lands where necessity of acquisition isnot required. The Administrative Deptt. of the Acquisition Bodyshall have no power to do so.

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Yours faithfully,

Harish ChandraC

Principal Secretary”

11. The respondents (sons of the respondent-Ram Singh) submittedthe representation on 12.11.2003 to the Minister of Revenue complainingthat they had not been issued any notice or opportunity of hearing andDthe entire acquisition was finalized ex-parte.

There was also a representation by the alleged subsequentpurchasers on 10.12.2004. It is acting upon the same that the Governmentinvoked Section 48 of the Land Acquisition Act, and issued a notificationdated 07.07.2005. It reads as follows: - “GOVERNMENT OF UTTAR PRADESH

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REVENUE SECTION-13No.: 31 RM/2-13-2005-7-5(11)/2004Lucknow: 7 July, 2005

NOTIFICATION

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For the purpose of acquiring land for the “Maholi Bhumi VikasEvam Grihsthan Yojana No.2, Mathura” of the Uttar PradeshAvas Evam Vikas Parishad, Notification u/s 28 and 32 of theUttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 werepublished on 10.11.1973 and 10.9.1977 respectively. The land ofKhasra no. 7 rakba 3.12 acre and Khasra no. 3 rakba 2.66 acre(total rakba 5. 78 acre) situated in village Palikheda, Tehsil andDist. Mathura was included in the aforesaid Yojana. Thelandowners of Khasra no. 7 and 3 sent their representation to thegovernment on 12.11.2003 thereby requesting that the aforesaidland may be excluded from the acquisition mainly on the ground G

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U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSINGCOMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]

that the land is under their tenure and possession. That an electrictube well was installed in Khasra no. 3 which was used to irrigateboth khasras. That a Shiv Temple comprising of two rooms wasalso situated on the said land which was built in 1970. Houses ofthe landowners are there near the Shiv Temple and at the time ofacquisition, the Government overlooked the Shiv Temple and thehouses/constructions on the land. As per rule, this land cannot beacquired. It was further submitted that on the aforesaid grounds,some land was exempted in the Maholi Yojana Part-1 vide AwasAnubhag G.O. dated 2.3.2001.

2. Photocopy of the aforesaid application of the landowners wassent to District Magistrate, Mathura and his report was sought inthe matter. In this connection, the Special Land Acquisition Officer,U.P.Avas Evam Vikas Parishad, Agra, who carried out theacquisition proceedings for the Yojana, vide his letter dated16.6.2004, has informed that the landowners have not receivedthe amount of compensation and the land is in their possessionand they are dwelling on the land.

3. After getting aforesaid report from the Special Land AcquisitionOfficer, U.P.Avas Evam Vikas Parishad, Agra, another letter dated 7.8.2004 was sent to District Magistrate, Mathura, asking him asto whether Notice u/s 9 of the Land Acquisition Act, 1894 (asamended in 1984) was sent to the landowners or not. In reply tothe query from the government, the Special Land AcquisitionOfficer, U.P.Avas Evam

Vikas Parishad, Agra, vide letter dated 7.10.2004 informed thatas per the available record in the file, Notice u/s 9 of the LandAcquisition Act was not sent to the landowners.

4. In this connection, report was also sought from the U.P.AvasEvam Vikas Parishad vide letter dated 18.1.2005 followed by threereminders, but so far no report or interim reply has been receivedfrom the Avas Vibhag.

5. It is clear from perusal of all documents that the landownersdid not receive compensation of Khasra no. 7 and 3 rakba 3.12acre and 2.66 acre respectively (total 5. 78 acre). Despite passing28 years from the dates of publication of Notification u/s 28 and32 of the Parishad Adhiniyam for acquiring the land in questioni.e. 10.11.1973 and 10.9.1977 respectively, the Acquisition Body AB

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Adid not take any action for taking possession of the land. More so,any Notice u/s 9 of the Land Acquisition Act, which is a compulsorystep for the acquisition, was not issued to the landowners. Itindicates that the Acquisition Body does not have any interest onthe land in question. In this connection, opinion of the AdministrativeDepartment of Acquisition Body i.e. Avas Evam Shahari NiyojanBwas sought vide letter dated 18.1.2005 but so far no reply hasbeen received despite several reminders. Therefore, in view ofthe aforementioned facts and circumstances, specially in view ofthe fact that presently the land in question is under the physicalpossession of the landowners and no notice was sent to them u/sC9 of the Land Acquisition Act, 1894 (as amended in 1984) theGovernor of Uttar Pradesh, while allowing the representation dated12.11.2003 submitted by the landowners, has been pleased toexempt Khasra no. 7 and 3 rakba 3.12 acre and 2.66 acrerespectively (total 5.78 acre) situated in village Palikheda, Tehsiland Dist. Mathura from acquisition u/s 48(1) of the LandDAcquisition Act, 1894 (as amended in 1984).

Amarnath

Under Secretary”

It is apposite that the appellant did not deem it fit to challenge theEsame. Instead, appellant moved the Government on 24.10.2005. It isnecessary to notice what the appellant has stated.

U.P. Avas Evam Vikas Parishad

(Land Acquisition Section)

No.: 242/ ________ /Dated 24.10.05

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To,

Govt. Of U.P.GHousing & Urban Planning Deptt.

Lucknow.

Sub.:Regarding exemption of Land Khasra no. 7 and 3 areas 3.12Acre and 2.66 Acres respectively (total 5.78 Acres) situated VillagePalikheda, Tehsil and District Mathura under Maholi Bhumi Vikas H

Evam Grihsthan Yojana No. 2 in District Mathura floated by UttarPradesh Avas Evam Vikas Parishad.

Dear Sir,

On the aforementioned subject, please refer to letter no.1258/1-13-2005-7-5(II)/2004-Ra-13 dated 25.7.05 of the RevenueDeptt. 13, Government of U.P. and Notification No. 31/RM/2-13-2005-7-5(II)/2004 dated 7.7.05 (copy enclosed) by which copyof Gazette publication on this matter was sent for information andnecessary action.

2. In this connection, it is to inform you that land Khasra no. 7Rakba 3.12 Acre and Khasra No. 3 Rakba 2.66 Acres (total 5.78Acres) situated Village Palikheda, Tehsil and District Mathurahave been properly acquired under Maholi Bhumi Vikas EvamGrihsthan Yojana No. 2 in District Mathura and possession of thesaid land has already been given by the Special Land AcquisitionOfficer, Agra. Award of this land has also been declared and theland has been mutated in favour of the Parishad.

3. In regard to the aforesaid land, the Parishad obtained stay orderon 29.4.92 in favour of the Parishad from the Hon’ble High Courtof Allahabad by which the Hon’ble Court stayed all actions forchanging of nature and transfer of the said land.

4. The Layout Plan of the aforesaid land has been approved andwork could not be carried out because of the Stay Order.

5. In case the Khasra numbers in question are exempted fromacquisition, the road construction work as per the layout plan willbe obstructed.

6. The Parishad had deposited the entire amount of compensationagainst the Award passed.

In view of the aforesaid facts, it does not appear proper toexempt land whose possession has already been taken. You are,therefore, requested to reconsider the orders relating to landexemption and get the order revoked.

Sd/- Niraj Kumar Gupta

Housing Commissioner

12. In the meantime, or rather after the notification dated 07.07.2005and the request made by the appellant dated 24.10.2005, Governmentbrought out another order dated 15.09.2006 which reads as follows:

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No.: 1291/1-13-2006-20(46)/2002-Ra-13

From,

V.K. Sharma,

Govt. Of Uttar Pradesh.

To,

All Principal Secretaries/Secretaries

Govt. Of Uttar Pradesh.

Revenue Deptt. 13 Lucknow: 15 Sept, 2006

Sub: Delegation of the powers conferred u/s 48(1) of the LandAcquisition Act, 1894 (Amended 1984).

Dear Sir,

On the subject mentioned above, I have been directed tostate that vide G.O. no. 592/1-13-2002-Ra-13 dated 19 June, 2002,decision has been taken that the Acquisition Bodies should takeimmediate possession of the land which has been acquired u/sSection 17 of the Land Acquisition Act. The Revenue Departmentshall have the power to release a part of land whose possessionhas not been taken and any such land where acquisition is notrequired by the Body. The Administrative Deptt. of the AcquisitionBody shall have no power to that effect.

2. After passing the aforesaid G.O., it was realized that practicaldifficulties, especially, there was unduly delay in deciding theapplications of landowners for exemption of their land. Therefore,it was found to be appropriate that proper and speedy decisioncan only be taken only by the Department who had carried outthe acquisition proceedings of such land.

3. Therefore, after due consideration, the Government has decidedthat, while vacating the G.O. no. 592/1-13-2002-Ra-13 dated 19June, 2002 with immediate effect, henceforth all applicationsrelating to exemption of land from acquisition will be decided u/s48(1) of the L.A. Act by the Administrative Department of theAcquisition Body, who carried out its acquisition proceedings.

4. Please ensure taking action in accordance with the aforesaidGovernment Order.

Yours faithfully,

Sd/- IllegibleV.K. SharmaPrincipal Secretary It is thereafter that the order in controversy, namely, the orderdated 25.04.2008 came to be passed. The said order reads as follows.GOVERNMENT OF UTTAR PRADESH

Revenue Section – 13

No.: 69/1-13-08-7-5(11)/2004-Sa.-13

Lucknow: 25 April, 2008

NOTIFICATION/CANCELLATION

The Revenue Department, by means of Notification No. 34/RM/1-13-2005-7-5(12)/2004 dated 7th July, 2005, had passed ordersfor exempting Khasra no. 7 rakba 3.12 acre and Khasra no. 3rakba 2.66 acre (total 5.78 acre) from acquisition which wasacquired in the year 1973 for its Maholi Bhumi Vikas EvamGrihsthan Yojana No. 2 in District Mathura under the provisionsof U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 in villagePalikheda, Tehsil and District Mathura. The said Notification wasissued by the Revenue Department in exercise of the powerconferred in Govt. Order no. 592/1-13-2002-Ra.-13 dated 19 June,2002 relating to exemption of land from acquisition.

2. While cancelling the aforesaid G.O. dated 19 June, 2002, thepowers of Revenue Department relating to exemption of landfrom acquisition u/s 48(1) of Land Acquisition Act, 1894 (asamended in 1984) have been allocated to all AdministrativeDepartments, vide G.O. No. 2991/1-13-2006-20(46)/2002-Ra.-13dated 15 September, 2006. As per these orders, now theDepartment who carried out acquisition proceedings for the landshall have the power to dispose off the land exemption applicationand to take action thereon. The aforesaid powers were delegatedto all Administrative Departments for the reason that sometimedisputes arise in the event of possession and opinion of theAcquisition Body/Administrative Department do not receives intime to the effect as to whether possession of such land has beentaken or not or whether the land is required by the Acquisition A

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Body/Administrative Department or not. In this connection, it hasbeen found that the Administrative Department of the AcquisitionBody can take proper decision on all the aforesaid points.

3. The Awas Vibhag (Administrative Department) has raisedobjection against the contents of Para-1 and the Notification no.B34/RM/1-13-2005-7-5(12)/2004 dated 7th July, 2005 on the groundthat the said Notification has been issued without taking consentfrom the Acquisition Body/Administrative Department which areadversely affecting the Schemes of the U.P. Avas Evam VikasParishad. The Administrative Department has requested forcancellation of the aforesaid Notification dated 7 July, 2005 of theCRevenue Department.

4. After due consideration in the matter, it has been found that inthe light of the situation mentioned in para 2 as well as contents ofNotification no. 1291/1-13-2006-20(46)/2002-Ra-13 dated 15September, 2006, it appears to be appropriate that disposal ofapplications received in this regard should be done by theAdministrative Department (Avas Vibhag). Therefore, theaforesaid Notification dated 7 July, 2005 is hereby withdrawn.The application of the landowner along with the report of theDistrict Magistrate, Mathura is being forwarded to theAdministrative Department (Avas Vibhag) with the remark thatthe matter may please be disposed off and proper/final decisiontaken in the light of the G.O. dated 15 September, 2006 issued bythe Revenue Department and take further action accordingly.

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Balwinder Kumar

FIt is this order which has been set aside and which has generatedthe appeals in question.

13. We may, before dealing with the controversy, notice the lawon the point laid down by this Court. An acquisition of land is permittedGto be made in public interest. Undoubtedly, Article 300A declares that itis a constitutional right of a person to protect his property from deprivationand deprivation can be permitted only in accordance with law.

14. However, in exercise of powers of eminent domain in regardto which law finds its manifestation in the Land Acquisition Act fromHtime-to-time, lands/properties of individuals may have to be acquired, for which the procedure is stipulated in the Land Acquisition Act interalia. Starting with a notification under Section 4 passing through thedeclaration under Section 6 followed up by notices under Section 9, finallyit culminates in an award. In the meantime, if urgency warrants theimmediate possession being taken, possession can be taken by evendispensing with the inquiry under Section 5A when the notification isissued under Section 4 and after 15 days of the notice issued underSection 9(1) of the Land Acquisition Act. Section 48 of the LandAcquisition Act, 1894 read as follows:

“48. Completion of acquisition not compulsory, but compensationto be awarded when not completed. –(1) Except in the caseprovided for in section 36, the Government shall be at liberty towithdraw from the acquisition of any land of which possessionhas not been taken.

(2) Whenever the Government withdraws from any suchacquisition, the Collector shall determine the amount ofcompensation due for the damage suffered by the owner inconsequence of the notice or of any proceedings thereunder, andshall pay such amount to the person interested, together with allcosts reasonably incurred by him in the prosecution of theproceedings under this Act relating to the said land.

(3) The provisions of Part III of this Act shall apply, so far as maybe, to the determination of the compensation payable under thissection.”

15. At first blush, it gives the impression that it gives an unbridledlicense, as it were, to the Government to withdraw from an acquisition.Since it is a power which is vested with a statutory authority as in thecase of all power, the trammels of fairness in Governmental action andthe imperative need to avoid arbitrariness is inevitable in the exercise ofthe power under Section 48. This has been made clear by this Court inthe Judgments reported in 1998 (1) SCC 591 and 1998 (4) SCC 387. In1998 (1) SCC 591, the acquisition was made of land adjacent to theappellant’s school. The government invoked Section 48 of the LandAcquisition Act, 1894. The reason stated for withdrawing was that asno part of the cost was to be borne by the government, the acquisitionwould not be sustained as for a public purpose. The court found thereason illegal being based on a misconception, arbitrary and not bonafide.The appellant succeeded. The government was left free to reconsider A

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Athe matter. There is no arbitrary power to withdraw from the acquisition.The decision under Section 48 was held to be a justiciable issue.

In Larsen & Toubro Ltd. v. State of Gujarat and Others, 1998 (4)SCC 387 this court declared that a notification is to be published if poweris to be exercised under Section 48, and furthermore opportunity mustBbe given to the company for which the acquisition was being made. Wenotice the following discussion.

“31. Principles of law are, therefore, well settled. A notification inthe Official Gazette is required to be issued if the State Governmentdecides to withdraw from the acquisition under Section 48 of theAct of any land of which possession has not been taken. An ownerneed not be given any notice of the intention of the StateGovernment to withdraw from the acquisition and the StateGovernment is at liberty to do so. Rights of the owner are wellprotected by sub-section (2) of Section 48 of the Act and if hesuffered any damage in consequence of the acquisitionproceedings, he is to be compensated and sub-section (3) ofSection 48 provides as to how such compensation is to bedetermined. There is, therefore, no difficulty when it is the ownerwhose land is withdrawn from acquisition is concerned. However,in the case a company, opportunity has to be given to it to showcause against any order which the State Government proposes tomake withdrawing from the acquisition. Reasons for this are notfar to seek. After notification under Section 4 is issued, when itappears to the State Government that the land in any locality isneeded for a company, any person interested in such land whichhas been notified can file objections under Section 5-A(1) of theAct. Such objections are to be made to the collector in writingand who after giving the objector an opportunity of being heardand after hearing of such objections and after making such furtherenquiry, if any, as the Collector thinks necessary, is to make areport to the State Government for its decision. Then the decisionof the State Government on the objections is final. Before theapplicability of other provisions in the process of acquisition, inthe case of company, previous consent of the State Governmentis required under Section 39 of the Act nor unless the companyshall have executed the agreement as provided in Section 41 ofthe Act. Before giving such consent, Section 40 contemplates aprevious enquiry. Then compliance with Rules 3 and 4 of the Land C

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Acquisition (Company) Rules, 1963 is mandatory required. Afterthe stage of Section 40 and 41 is reached, the agreement so enteredinto by the company with the State Government is to be publishedin the Official Gazette, This is Section 42 of the Act which providesthat the agreement on its publication would have the same effectas if it had formed part of the Act. After having done all this, StateGovernment cannot unilaterally and without notice to the companywithdraw from acquisition. Opportunity has to be given to thecompany to show cause against the proposed action of the StateGovernment top withdraw from acquisition. A declaration underSection 6 of the Act is made by notification only after formalitiesunder part VII of the Act which contains Section 39 to 42 havebeen complied and report of the Collector under Section 5-A(2)of the Act is before the State Government who consents to acquirethe land on its satisfaction that it is needed for the company. Avaluable right, thus, accrues to the company to oppose the proposeddecision of the State government withdrawing from acquisition.The State Government may have sound reasons to withdraw fromacquisition but those must be made known to the company whichmay have equally sound reasons or perhaps more which mightpersuade the State Government to reverse its decision withdrawingfrom acquisition. In this view of the matter it has to be held thatYadi (Memo) dated 11.4.91 and Yadi (Memo) dated 3.5.91 wereissued without notice to the appellant (L&T Ltd.) and are, thus,not legal.

16. The decision to withdraw from acquisition is justiciable. Inother words, what is described as a liberty or a power with the Governmentmust be understood also as being attended with the duty to act in a fairand bona fide manner. This means that present the inevitable andindispensable requirement, namely, that actual possession of the landhas not been taken under the Act, it is open in a fit and appropriate caseand bearing in mind public interest and the facts for the Government towithdraw from the acquisition. It is the duty of the authority to be mindfulof all relevant inputs before it takes a decision to withdraw from theacquisition. It is also clear that withdrawal from the acquisition must bepreceded by offering an opportunity to the beneficiary at whose instancethe acquisition is to be made. It is also clear that the withdrawal fromacquisition can be made only by issuance of a notification. The reasoningfor the same has been elaborately supplied in the judgment of this Court AB

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Ain the case of 1998 (4) SCC 387 (supra). In 2001 (1) SCC 610 this courtreiterated that an opportunity of being heard must be given to thebeneficiary before power is involved under Section 48.

17. A question may arise as to what is the true nature of thepower exercised under Section 48. It is a power which is vested with aBstatutory authority. No doubt the power would be exercised in terms ofthe orders under which the competent authority would be empowered toact in the matter. Whoever is the authority which is exercising the powerin accordance with the extant norms, he is exercising the power whichwould be subject to judicial review on well-settled principles in the faceof a challenge to the exercise of the power.C

18. The question would arise as to whether once the power hasbeen exercised in the proper manner and it has culminated in a notificationspoken of by this Court in 1998 (4) SCC 387 (supra), it is open to theauthority to withdraw the notification. In this case, a representation wasgiven by the land owner and the alleged purchasers from the land owner.DIt was, inter alia, their case that possession had not been taken. On thebasis of the said request, a Notification under Section 48 has been issuedon 07.07.2005. The contents of the notification would tend to indicate,inter alia, that possession of the land was not taken and taking ofpossession is not actual possession. We have already noticed that theEtaking of possession which would prevent the exercise of power underSection 48 must be taking of khas possession or actual possession. Thenotification dated 07.07.2005 further recites that the appellant was notifiedabout the proposal and what is more it was followed up by threereminders. It is further noticed that there was no response from theappellant. Therefore, this is not a case where flouting the law laid downFby this Court, withdrawal from the acquisition was made under Section48 without compliance with principles of Natural Justice as far as thebeneficiary is concerned.

19. The order recites no doubt that there is no notice issued underSection 9 (3) of the Land Acquisition Act. Here we may notice that aGperusal of Section 17 (1) of the Land Acquisition Act would show thatthe possession can be taken in cases where urgency clause is invoked,upon the expiry of 15 days of the publication of notice under Section 9(1). Here the authority apparently has not looked into the question as towhether possession was taken with reference to the relevant date whichis the publication of notice under Section 9 (1). Section 9(1) of the LandH

Acquisition Act in fact speaks about the need to give a public notice.Section 9 (3) speaks about duty to give individual notices to land owners.As correctly pointed out by Shri Vishwajit Singh, non-service of noticeunder Section 9 (3) would not be sufficient to invalidate the acquisition.But then the relevance of Section 9(3) notice as pointed out by ShriYathendra Singh is that if it had been produced and proved, it wouldhave gone a long way in proving the case of the appellant that possessionhad in fact been taken. In this regard, it is apposite to notice that in theappeal carried by the appellant to this Court, the appellant held out that ithad material to show that notice was issued. We may notice the contentsof the order passed by this Court on 11.02.2016 in Civil Appeal No. 6272of 2012.

“1. The challenge in the writ petition before the High Court wasin respect of a notification dated 25.04.2008 cancelling an earliernotification dated 07.07.2005 by which the subject land wasexempted in exercise of power under Section 48 of the LandAcquisition Act, 1894 (for short, “the Act”). The High Courtallowed the writ petition and set aside the order dated 25.04.2008,inter alia, holding that the notification dated 07.07.2005 was legaland valid inasmuch as no notice 2 under Section 9 of the Act wasissued nor possession had been taken over under Sections 16 or17 of the Act. Accordingly, the High Court held that there was nopower to issue the impugned notification dated 25.04.2008superseding the earlier notification dated 07.07.2005.

2. Before us, it is contended on behalf of the appellant that theHigh Court has committed a factual error in holding that no noticeunder Section 9 of the Act had been issued or that possession ofthe land had not been taken. The above-mentioned argument issought to be canvassed on the strength of certain documents whichhave been laid before us along with memo of appeal. On beingqueried it is stated on behalf of the appellant that the saiddocuments were also laid before the High Court but were notconsidered. The plea urged would find support from the counteraffidavit filed on behalf of the appellant before the High Court. 3.As a consideration of the said documents would require us todetermine several connected questions/issues of fact and mayalso require looking into the documents in original, we are of theview that instead of entertaining this appeal any further, it would AB

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be more appropriate for the appellant to move the High Court forrecall of impugned order, if it so desires.

4. We, accordingly, dispose of the appeal in the above termsmaintaining the interim order passed by this Court for a period ofsix weeks, within which it will be also open for the appellant toseek interim relief from the High Court.

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5. We make it clear that we have expressed no opinion on themerits of the case.”

20. An attempt was made by Shri Vishwajit Singh, learned seniorcounsel to lay store by notice dated 25.09.1985 and to claim it to be aCnotice under Section 9 (3):

“NOTICE

OFFICE OF THE SPECIAL LAND ACQUISITIONOFFICER (II), U.P. AVAS EVAM VIKAS PARISHAD, AGRA

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No.: 6/8-SLAO(AVP) – Dated: 25.9.85

Subject: Maholi Bhumi Vikas Evam Grihsthan Yojana No. 2,Mathura Shri Ram Ratan s/o Ghure EVillage Nakati, Mathura By way of this Notice, this is to inform you that 28.9.85 hasbeen fixed for passing Award for the land of Village Palikheda,Pargana, Tehsil and District Mathura which has been acquiredunder the aforesaid Yojana.

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Therefore, it is requested to be present on the aforesaid date beforeme in Collectorate, Mathura and be informed about the Award.

Sd/- illegible

25.9.85Atma Ram TripathiSpecial Land Acquisition OfficerU.P. Awas Evam Vikas Parishad, Agra G

Sd/- Ram Singh

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Sir,

As per your instructions, I went to the aforesaid address todeliver the Notice. Receiver Ram Ratan was not found to bepresent in the house.

Therefore, one copy of the notice was handed over to theson of the addressee and obtained his signature.

Sd/- Ram Autar”

21. The contents of the notice would clearly show that it cannotbe understood as a notice under Section 9(3). Instead, it is a noticenotifying the owner about the fact that the award is going to be passedon 28.09.1985. We may notice that the date of the so-called notice underSection 9 (3) is 25.09.1985. A notice under section 9 is to be followed byenquiry under Section 10 and award under Section 11 certainly cannotbe confused with notice which merely notifies the owner about the datefixed for passing the award. There is only a gap of three days betweenthe date of the notice and the date fixed for passing of the award.Therefore, the appellants have not been able to establish any noticeunder Section 9 (3) was issued.

22. It is no doubt true that Shri Vishwajit Singh is correct in pointingout that the recitals in the award are that the respondent (original owner’sson) was heard and, in the award, it is mentioned also that there was amoney suit which was decreed against the respondent and the decretalamount came to be partially adjusted from out of the proceeds of theaward.

23. However, passing on to the premise of the impugned orderdated 25.04.2008, we find that after referring to the request made by theappellant, the authority has purported to draw support from the orderdated 15.09.2006 issued by the Government. The order dated 15.09.2006undoubtedly proclaimed that exemption from acquisition or ratherwithdrawal from acquisition must receive the attention of the concerneddepartment. Its terms would indicate that Government decided to doaway with the earlier order passed in the year 2002. The order dated15.09.2006 is explicit in that, it was to have an ‘immediate effect’. Thismeans that it was not retrospective. This further inevitably means that itcannot affect orders/notifications which had been issued invoking powerunder Section 48 prior to 15.09.2006. Yet a perusal of the order dated25.04.2008 would reveal that the Government has proceeded to act on A

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Athe basis of order dated 15.09.2006. In other words, the impugned orderwhich has been set aside by the High Court is entirely based on an orderwhich has no application to the facts. We say this for the reason that wewish to clarify that it is not as if when a notification is issued undersection 48, it can never be undone irrespective of the facts obtaining in acase. Apart from the fact that it is open to challenge in a court of law atBthe instance of an aggrieved party in a given case if it is shown it isprocured by fraud, it may be open to the authority to undo the same. It isan administrative order, no doubt issued under a statutory provision by apublic authority. Since the law is that principles of natural justice applyand the power can be exercised only after offering an opportunity to theCbeneficiary as distinct from the owner, in a case where it is found that anotification was issued without notice, which is indispensable to passingof a valid notification, it may be open to the Government to undo theeffect of the notification. In the facts of this case, it is not even the caseof the appellant in its representation that the recital in the notificationthat it was given opportunity to make its representation against theDproposed action was wrong. The appellant did not have a case in itsrepresentation that it was not given any opportunity to represent againstthe order. The appellant seeks to make good this omission by contendingthat a ground was raised that there was violation of natural justice. Wedo not think we should permit the appellant to make good an omissionEwhich stares in our faces, in the facts of this case. We think that theappellant has not made out a case for interference with the impugnedorders. Thus, the appeals stand dismissed. This will not stand in the wayof the appellant to acquire the lands in accordance with law. Parties areleft to bear their respective costs.

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Nidhi Jain and Amarendra Kumar(Assisted by : Ajay, LCRA)

Appeals dismissed.

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