Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3023-3024 OF 2022
(Arising out of S.L.P.(C) Nos. 23996-23997 of 2017)
U.P. AWAS EVAM VIKAS PARISHAD
THROUGH HOUSING COMMISSIONER .....Appellant(s)
Vs.
RAM SINGH (D) TH. LRS. & ORS. .....Respondent(s)
WITH
CIVIL APPEAL NOS. 3025-3026 OF 2022
(Arising out of S.L.P.(C) Nos. 23899-23900 of 2017)
J U D G M E N T
K.M. JOSEPH, J.
1. Permission to file SLP(C) Nos. 23899-23900 of 2017 is granted.
Delay condoned.
Leave granted.
2. These appeals have behind them a chequered history. It all
began with the issuance of a Notification by the appellant under
Section 28 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965
(hereinafter referred to as the “Adhiniyam”) on 10.11.1973. The
said Notification is to be treated as equivalent to a Notification
Signature Not Verified
issued under Section 4 of the Land Acquisition Act, 1894, proposing
Digitally signed by
Rajni Mukhi
Date: 2022.04.27
17:34:40 IST
Reason:
to acquire among other lands, Khasra Plot No. 7 and Khasra Plot No.
3, having a total area of 5.98 Acres in a certain village which
1
originally belonged to one Shri Ram Ratan. It may be noticed here
itself that Ram Ratan has passed away and the respondent-Ram Singh
was his son and he has in turn passed away and is represented by
his legal representatives. The appellant issued a Notification
under Section 32 of the Adhiniyam on 17.8.1977. This is the
equivalent to the Notification issued under Section 6 of the Land
Acquisition Act. The urgency clause under Section 17(1) of the Land
Acquisition Act was invoked on 18.07.1979. According to the
appellant, the 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
a sale effected by the original respondent-Ram Singh. There is a
reference to the notice issued under Section 9 of the Land
Acquisition Act on 25.09.1985 and an Award being passed on
28.09.1985.
3. It is the further case of the appellant that the original
respondent-Ram Singh submitted an application on 19.11.1985
claiming compensation stating, inter alia, that he was the son of
the Original Tenure Holder and that he had not executed any sale
deed in respect of the land. There is a copious reference to
certain litigation initiated against the subsequent purchasers (Dr.
Raj Kumar Chaturvedi & Ors.). To come to the point in issue, it
started with the Notification which was issued on 07.07.2005
purporting to exempt Khasra No. 3 and 7 from the acquisition. The
appellant thereupon submitted a representation on 24.10.2005, inter
alia, pointing out that the land has been acquired and the Award
has been passed and what is more, possession was also taken. It is
also contended that mutation was effected in favour of the
2
appellant. This led to the Government issuing Notification dated
25.04.2008. The Government in the said Notification cancelled the
earlier Notification dated 07.07.2005 and directed the matter for
consideration by the concerned department. Aggrieved by the said
Notification dated 25.04.2008, respondent-Ram Singh filed a Civil
Misc. Writ Petition No. 49944 of 2008. The said writ petition came
to be allowed by the High Court by judgment dated 31.08.2010.
Aggrieved by the judgment dated 31.08.2010, the appellant preferred
special leave petitions SLP(C) Nos.34271 OF 2010 and 34090 of 2010.
Leave was granted and Civil Appeal No. 6272 of 2012 and Civil
Appeal No. 6273 of 2012 came to be disposed of by this Court
permitting the appellant to seek a recall of the order dated
31.08.2010. The appellant moved an application for recall of order
dated 31.08.2010 and 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 judgment on similar lines which have been
passed in litigation lodged by persons claiming to have purchased
from Shri Ram Singh in the year 1984.
4. We have heard Shri Vishwajit Singh, learned senior counsel
appearing for the appellant and Shri Yatinder Singh, learned senior
counsel appearing on behalf of the legal representatives of the
original respondent – Shri Ram Singh as also Shri Anurag Ojha,
learned counsel appearing for the subsequent purchaser(s).
5. Learned senior counsel for the appellant Shri Vishwajit Singh
would urge before us that this is a case where all that was done by
the impugned order dated 25.04.2008 was to withdraw the earlier
order and to relegate the matter to the competent authority to take
3
a decision as to whether the Government should withdraw from the
acquisition and there was no warrant for interfering with the said
order by the High Court in the writ petition(s) filed by Shri Ram
Singh and the so-called purchasers from Ram Singh.
It is pointed out that this is a case where the land in
question forms the subject matter of the Notification issued under
Section 28 of the Adhiniyam followed by the declaration under
Section 6 of the Land Acquisition Act. This is followed up by
issuance of notice under Section 9 of the Land Acquisition Act and
finally it culminated in an Award. The amount due under the Award
was duly deposited. All this is eloquently established by the
unequivocal action of the respondent-original owner of the land in
addressing a communication dated 19.11.1985:
“To,
Special Land Acquisition Officer
U.P. Avas Evam Vikas Parishad,
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 to inform you that the
land of Khasra no. 3 and 7 has continuously been
entering in the name of Ram Ratan and the
applicant Ram Singh s/o Shri Ram Ratan r/o Nagari
Mohalla, Mathura is the only son of Shri Ram
Ratan and, thus, he is the sole owner of the said
land. It is humbly submitted that the applicant
has executed neither any Sale Deed nor Power of
Attorney in respect of the aforesaid land.
Therefore, you are requested to please grant
compensation of the aforesaid entire land to the
applicant Ram Singh. Submitted for consideration.
4
Thanking you.
Yours
faithfully,
Sd/- Illegible
Ram Singh s/o Ram Ratan
r/o Mohalla Nagari, Mathura
Date: 19.11.85
Sd/- Ram Singh”
6. He would submit that having accepted the fact of the Award
being passed and what is more not bringing the procedure,
antecedent to the passing of the Award under a cloud or not having
questioned that the possession was indeed taken prior to the Award
being passed, it does not lie in the mouth of the respondents to
contend that possession was not taken. If possession was not taken,
as is indeed the case, there is absolutely no jurisdiction with the
Government to withdraw under Section 48 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 scheme evolved to cater to the needs of the
Low-Income Group. The case of the appellant is attended with the
highest public interest. Withdrawal from an acquisition which is
not in conformity with the statutory provisions must not be lightly
sabotaged, at the instance of the persons like the respondent
herein who has held himself out as limiting his rights to laying a
claim for the compensation which has been deposited by the
appellant.
7. Per contra, Mr. Yatindra Singh, learned senior counsel
5
appearing for the respondents would stoutly oppose the appeals by
pointing out that this is a case where the entire premise of the
appellant is flawed. Possession within the meaning of Section 48 of
the Land Acquisition Act cannot be symbolic. In other words, the
taboo against withdrawal from acquisition is attracted only if
actual possession has been taken. In this case, possession has not
been taken. The efforts on the part of the appellant to establish
possession through certain documents would at best show that
possession was shown to be taken. This does not suffice in law to
prevent the exercise of the power under Section 48 of the Land
Acquisition Act.
As regards reliance placed on the communication dated
19.11.1985 wherein demand for request for disbursement of
compensation is concerned, it is contended that it was deposited
only in 2004 and it cannot determine the fate of this case.
More importantly, he drew our attention to the order dated
24.05.2008 which has been set aside by the High Court. He would
point out that it has no legs to stand on in law for the reason
that it is primarily founded on an order which was passed by the
Government after the passing of the Notification dated 07.07.2005.
In other words, the Notification dated 07.07.2005 was founded on
the power ceded to the Revenue Department by the Government order
dated 19.06.2002. The case of the appellant on the other hand which
found acceptance with the Government in the order dated 25.4.2008
is based on the contents of the order dated 15.09.2006.
The order dated 15.09.2006 expressly has prospective
operation. It does not affect the orders which have been passed
earlier to it. On that short ground, the order dated 25.04.2008
6
would not have any legs to stand on. Secondly, he would point out
that contrary to the complaint of the appellant, it is
indisputable, having regard to the contents of the Notification
dated 07.07.2005 that the appellant was offered an opportunity to
make its representation or to be heard before the Notification
dated 07.07.2005 was passed.
8. He would further contend that a government order must be
judged in terms of what flows from its express terms. It is
impermissible for an order passed under a statute by a public
authority to be rendered valid by affidavits or submissions made in
a Court. It must be judged on its own merits, with reference to the
foundation which is laid in the order. Reliance is placed on the
judgment of this Court in Mohinder Singh Gill vs CEC reported in
1978 (1) SCC 405.
9. The learned counsel for the respondent in the other appeal
would also submit that this Court may notice that the appellant did
not think it fit to challenge the Notification dated 07.07.2005.
Therefore, no interference is called for.
10. The facts which are not in dispute are as follows:
There was a Notification which we will characterize as a
Notification issued under Section 4 of the Land Acquisition Act on
10.11.1973. It is followed by a declaration under the provisions of
Adhiniyam, which is equivalent to Section 6 of the Land Acquisition
Act on 17.08.1977. Undoubtedly urgency clause was invoked under
Section 17(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 the compensation on the basis of award on
19.11.1985. On 19.06.2002 the Government has passed an order, the
7
terms of which read as follows:
“No.: 592/1-13-2002-Ra-13
From,
Harish Chandra
Principal Secretary
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 the Land Acquisition Act, 1894
Sir,
On the aforementioned subject, I have been
directed to state that the State Government has been
receiving complaints from time to time that almost each
case of land acquisition, Section 17 of the Land
Acquisition Act is being used and despite using Section
17 of the Act, most of the Acquisition Bodies are
neither providing required amount of compensation nor
trying to take possession of the land. In some cases,
where half-hearted efforts are made u/s 17 of the Act
by the Administrative Departments of the Acquisition
Body, they have been proved to be contrary to the
essence of using Section 17 toward development projects
of the State Government. In fact, most of the
Acquisition Bodies, despite there being no necessity,
used to make requests for using Section 17 of the Act
in the proposed Scheme/Projects. As a result, even
after passing of several years, neither the Acquisition
Body takes possession of the acquired land nor the
farmers get their compensation because of not providing
funds from the Body.
In the event of using the provisions of Section 17
8
of the Land Acquisition Act, 1894, the provisions of
Section 5A gets extinct and the landowners lost their
right of opportunity of hearing. It is provided in
Section 17 that possession of the land, in which
Section 17 has been applied, should be taken on the
expiration of fifteen days. As a result of not taking
immediate possession and non-deposit of required money,
the importance of Section 17 proves to be ineffective.
Therefore, with a view to prevent misuse of
implementation of Section 17 in various development
projects and after due consideration, it has been
decided that the Acquisition Bodies should take
immediate possession of the land where provisions of
Section 17 have been used. Only the Revenue Department
shall have the power to exempt any part of land whose
possession has not been taken and such lands where
necessity of acquisition is not required. The
Administrative Deptt. of the Acquisition Body shall
have no power to do so.
Yours faithfully,
Harish Chandra
Principal Secretary"
11. The respondents (sons of the respondent-Ram Singh) submitted
the representation on 12.11.2003 to the Minister of Revenue
complaining that they had not been issued any notice or opportunity
of hearing and the entire acquisition was finalized ex-parte.
There was also a representation by the alleged subsequent
purchasers on 10.12.2004. It is acting upon the same that the
Government invoked Section 48 of the Land Acquisition Act, and
issued a notification dated 07.07.2005. It reads as follows: -
“GOVERNMENT OF UTTAR PRADESH
REVENUE SECTION-13
9
No.: 31 RM/2-13-2005-7-5(11)/2004
Lucknow: 7 July, 2005
NOTIFICATION
For the purpose of acquiring land for the
"Maholi Bhumi Vikas Evam Grihsthan Yojana
No.2, Mathura" of the Uttar Pradesh Avas Evam
Vikas
Parishad, Notification u/s 28 and 32 of the
Uttar Pradesh Avas Evam Vikas Parishad
Adhiniyam, 1965 were published on 10.11.1973
and 10.9.1977 respectively. The land of Khasra
no. 7 rakba 3.12 acre and Khasra no. 3 rakba
2.66 acre (total rakba 5. 78 acre) situated in
village Palikheda, Tehsil and Dist. Mathura
was included in the aforesaid Yojana. The
landowners of Khasra no. 7 and 3 sent their
representation to the government on 12.11.2003
thereby requesting that the aforesaid land may
be excluded from the acquisition mainly on the
ground that the land is under their tenure and
possession. That an electric tube well was
installed in Khasra no. 3 which was used to
irrigate both khasras. That a Shiv Temple
comprising of two rooms was also situated on
the said land which was built in 1970. Houses
of the landowners are there near the Shiv
Temple and at the time of acquisition, the
Government overlooked the Shiv Temple and the
houses/constructions on the land. As per rule,
this land cannot be acquired. It was further
submitted that on the aforesaid grounds, some
land was exempted in the Maholi Yojana Part-1
vide Awas Anubhag G.O. dated 2.3.2001.
2. Photocopy of the aforesaid application of
the landowners was sent to District
Magistrate, Mathura and his report was sought
in the matter. In this connection, the Special
10
Land Acquisition Officer, U.P.Avas Evam Vikas
Parishad, Agra, who carried out the
acquisition proceedings for the Yojana, vide
his letter dated 16.6.2004, has informed that
the landowners have not received the amount of
compensation and the land is in their
possession and they are dwelling on the land.
3. After getting aforesaid report from the
Special Land Acquisition Officer, U.P.Avas
Evam Vikas Parishad, Agra, another letter
dated
7.8.2004 was sent to District Magistrate,
Mathura, asking him as to whether Notice u/s 9
of the Land Acquisition Act, 1894 (as amended
in 1984) was sent to the landowners or not. In
reply to the query from the government, the
Special Land Acquisition Officer, U.P.Avas
Evam
Vikas Parishad, Agra, vide letter dated
7.10.2004 informed that as per the available
record in the file, Notice u/s 9 of the Land
Acquisition Act was not sent to the
landowners.
4. In this connection, report was also sought
from the U.P.Avas Evam Vikas Parishad vide
letter dated 18.1.2005 followed by three
reminders, but so far no report or interim
reply has been received from the Avas Vibhag.
5. It is clear from perusal of all documents
that the landowners did not receive
compensation of Khasra no. 7 and 3 rakba 3.12
acre and 2.66 acre respectively (total 5. 78
acre). Despite passing 28 years from the dates
of publication of Notification u/s 28 and 32
of the Parishad Adhiniyam for acquiring the
land in question i.e. 10.11.1973 and 10.9.1977
respectively, the Acquisition Body did not
11
take any action for taking possession of the
land. More so, any Notice u/s 9 of the Land
Acquisition Act, which is a compulsory step
for the acquisition, was not issued to the
landowners. It indicates that the Acquisition
Body does not have any interest on the land in
question. In this connection, opinion of the
Administrative Department of Acquisition Body
i.e. Avas Evam Shahari Niyojan was sought vide
letter dated 18.1.2005 but so far no reply has
been received despite several reminders.
Therefore, in view of the aforementioned facts
and circumstances, specially in view of the
fact that presently the land in question is
under the physical possession of the
landowners and no notice was sent to them u/s
9 of the Land Acquisition Act, 1894 (as
amended in 1984) the Governor of Uttar
Pradesh, while allowing the representation
dated 12.11.2003 submitted by the landowners,
has been pleased to exempt Khasra no. 7 and 3
rakba 3.12 acre and 2.66 acre respectively
(total 5.78 acre) situated in village
Palikheda, Tehsil and Dist. Mathura from
acquisition u/s 48(1) of the Land Acquisition
Act, 1894 (as amended in 1984).
Amarnath
Under Secretary”
It is apposite that the appellant did not deem it fit to
challenge the same. Instead, appellant moved the Government on
24.10.2005. It is necessary to notice what the appellant has
stated.
12
U.P. Avas Evam Vikas Parishad
(Land Acquisition Section)
No.: 242/ ________ /
Dated 24.10.05
To,
Principal Secretary
Govt. Of U.P.
Housing & Urban Planning Deptt.
Lucknow.
Sub.:Regarding exemption of Land Khasra no. 7
and 3 areas 3.12 Acre and 2.66 Acres
respectively (total 5.78 Acres) situated Village
Palikheda, Tehsil and District Mathura under
Maholi Bhumi Vikas Evam Grihsthan Yojana No. 2
in District Mathura floated by Uttar Pradesh
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 Revenue Deptt. 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 copy of Gazette publication
on this matter was sent for information and
necessary action.
2. In this connection, it is to inform you
that land Khasra no. 7 Rakba 3.12 Acre and
Khasra No. 3 Rakba 2.66 Acres (total 5.78 Acres)
situated Village Palikheda, Tehsil and District
Mathura have been properly acquired under Maholi
Bhumi Vikas Evam Grihsthan Yojana No. 2 in
District Mathura and possession of the said land
has already been given by the Special Land
Acquisition Officer, Agra. Award of this land
has also been declared and the land has been
mutated in favour of the Parishad.
3.In regard to the aforesaid land, the Parishad
obtained stay order on 29.4.92 in favour of the
Parishad from the Hon’ble High Court of
Allahabad by which the Hon’ble Court stayed all
13
actions for changing of nature and transfer of
the said land.
4.The Layout Plan of the aforesaid land has
been approved and work could not be carried out
because of the Stay Order.
5.In case the Khasra numbers in question are
exempted from acquisition, the road
construction work as per the layout plan will
be obstructed.
6. The Parishad had deposited the entire amount
of compensation against the Award passed.
In view of the aforesaid facts, it does
not appear proper to exempt land whose
possession has already been taken. You are,
therefore, requested to reconsider the orders
relating to land exemption and get the order
revoked.
Sd/- Niraj Kumar Gupta
Housing Commissioner
12. In the meantime, or rather after the notification dated
07.07.2005 and the request made by the appellant dated 24.10.2005,
Government brought out another order dated 15.09.2006 which reads
as follows:
No.: 1291/1-13-2006-20(46)/2002-Ra-13
From,
V.K. Sharma,
Principal Secretary
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 Land Acquisition Act, 1894 (Amended 1984).
Dear Sir,
14
On the subject mentioned above, I have
been directed to state that vide G.O. no.
592/1-13-2002-Ra-13 dated 19 June, 2002,
decision has been taken that the Acquisition
Bodies should take immediate possession of the
land which has been acquired u/s Section 17 of
the Land Acquisition Act. The Revenue
Department shall have the power to release a
part of land whose possession has not been
taken and any such land where acquisition is
not required by the Body. The Administrative
Deptt. of the Acquisition Body shall have no
power to that effect.
2. After passing the aforesaid G.O., it was
realized that practical difficulties,
especially, there was unduly delay in deciding
the applications of landowners for exemption
of their land. Therefore, it was found to be
appropriate that proper and speedy decision
can only be taken only by the Department who
had carried out the acquisition proceedings of
such land.
3. Therefore, after due consideration, the
Government has decided that, while vacating
the G.O. no. 592/1-13-2002-Ra-13 dated 19
June, 2002 with immediate effect, henceforth
all applications relating to exemption of land
from acquisition will be decided u/s 48(1) of
the L.A. Act by the Administrative Department
of the Acquisition Body, who carried out its
acquisition proceedings.
4. Please ensure taking action in accordance
with the aforesaid Government Order.
15
Yours faithfully,
Sd/- Illegible
V.K. Sharma
Principal Secretary
It is thereafter that the order in controversy, namely, the
order dated 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 orders for
exempting Khasra no. 7 rakba 3.12 acre and
Khasra no. 3 rakba 2.66 acre (total 5.78 acre)
from acquisition which was acquired in the
year 1973 for its Maholi Bhumi Vikas Evam
Grihsthan Yojana No. 2 in District Mathura
under the provisions of U.P. Avas Evam Vikas
Parishad Adhiniyam, 1965 in village Palikheda,
Tehsil and District Mathura. The said
Notification was issued by the Revenue
Department in exercise of the power conferred
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, the powers of Revenue
Department relating to exemption of land from
acquisition u/s 48(1) of Land Acquisition Act,
1894 (as amended in 1984) have been allocated
to all Administrative Departments, vide G.O.
No. 2991/1-13-2006-20(46)/2002-Ra.-13 dated 15
16
September, 2006. As per these orders, now the
Department who carried out acquisition
proceedings for the land shall have the power
to dispose off the land exemption application
and to take action thereon. The aforesaid
powers were delegated to all Administrative
Departments for the reason that sometime
disputes arise in the event of possession and
opinion of the Acquisition Body/Administrative
Department do not receives in time to the
effect as to whether possession of such land
has been taken or not or whether the land is
required by the Acquisition
Body/Administrative Department or not. In this
connection, it has been found that the
Administrative Department of the Acquisition
Body can take proper decision on all the
aforesaid points.
3. The Awas Vibhag (Administrative Department)
has raised objection against the contents of
Para-1 and the Notification no. 34/RM/1-13-
2005-7-5(12)/2004 dated 7th July, 2005 on the
ground that the said Notification has been
issued without taking consent from the
Acquisition Body/Administrative Department
which are adversely affecting the Schemes of
the U.P. Avas Evam Vikas Parishad. The
Administrative Department has requested for
cancellation of the aforesaid Notification
dated 7 July, 2005 of the Revenue Department.
4. After due consideration in the matter, it
has been found that in the light of the
situation mentioned in para 2 as well as
contents of Notification no. 1291/1-13-2006-
20(46)/2002-Ra-13 dated 15 September, 2006, it
appears to be appropriate that disposal of
applications received in this regard should be
17
done by the Administrative Department (Avas
Vibhag). Therefore, the aforesaid Notification
dated 7 July, 2005 is hereby withdrawn. The
application of the landowner along with the
report of the District Magistrate, Mathura is
being forwarded to the Administrative
Department (Avas Vibhag) with the remark that
the matter may please be disposed off and
proper/final decision taken in the light of
the G.O. dated 15 September, 2006 issued by
the Revenue Department and take further action
accordingly.
Balwinder Kumar
Principal Secretary
It is this order which has been set aside and which has
generated the appeals in question.
13. We may, before dealing with the controversy, notice the law on
the point laid down by this Court. An acquisition of land is
permitted to be made in public interest. Undoubtedly, Article 300A
declares that it is a constitutional right of a person to protect
his property from deprivation and deprivation can be permitted only
in accordance with law.
14. However, in exercise of powers of eminent domain in regard to
which law finds its manifestation in the Land Acquisition Act from
time-to-time, lands/properties of individuals may have to be
acquired, for which the procedure is stipulated in the Land
Acquisition Act inter alia. Starting with a notification under
Section 4 passing through the declaration under Section 6 followed
up by notices under Section 9, finally it culminates in an award.
In the meantime, if urgency warrants the immediate possession being
18
taken, possession can be taken by even dispensing with the inquiry
under Section 5A when the notification is issued under Section 4
and after 15 days of the notice issued under Section 9(1) of the
Land Acquisition Act. Section 48 of the Land Acquisition Act, 1894
read as follows:
“48. Completion of acquisition not
compulsory, but compensation to be awarded
when not completed. –(1) Except in the case
provided for in section 36, the Government
shall be at liberty to withdraw from the
acquisition of any land of which possession
has not been taken.
(2) Whenever the Government withdraws from
any such acquisition, the Collector shall
determine the amount of compensation due for
the damage suffered by the owner in
consequence of the notice or of any
proceedings thereunder, and shall pay such
amount to the person interested, together
with all costs reasonably incurred by him in
the prosecution of the proceedings under this
Act relating to the said land.
(3) The provisions of Part III of this Act
shall apply, so far as may be, to the
determination of the compensation payable
under this section.”
15. At first blush, it gives the impression that it gives an
unbridled license, 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 the case of all power, the trammels of
fairness in Governmental action and the imperative need to avoid
19
arbitrariness is inevitable in the exercise of the power under
Section 48. This has been made clear by this Court in the Judgments
reported in 1998 (1) SCC 591 and 1998 (4) SCC 387. In 1998 (1) SCC
591, the acquisition was made of land adjacent to the appellant’s
school. The government invoked Section 48 of the Land Acquisition
Act, 1894. The reason stated for withdrawing was that as no part of
the cost was to be borne by the government, the acquisition would
not be sustained as for a public purpose. The court found the
reason illegal being based on a misconception, arbitrary and not
bonafide. The appellant succeeded. The government was left free to
reconsider the 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 power is to be exercised under Section 48, and
furthermore opportunity must be given to the company for which the
acquisition was being made. We notice the following discussion.
“31. Principles of law are, therefore, well
settled. A notification in the Official Gazette
is required to be issued if the State
Government decides to withdraw from the
acquisition under Section 48 of the Act of any
land of which possession has not been taken. An
owner need not be given any notice of the
intention of the State Government to withdraw
from the acquisition and the State Government
is at liberty to do so. Rights of the owner are
well protected by sub-section (2) of Section 48
of the Act and if he suffered any damage in
consequence of the acquisition proceedings, he
20
is to be compensated and sub-section (3) of
Section 48 provides as to how such compensation
is to be determined. There is, therefore, no
difficulty when it is the owner whose land is
withdrawn from acquisition is concerned.
However, in the case a company, opportunity has
to be given to it to show cause against any
order which the State Government proposes to
make withdrawing from the acquisition. Reasons
for this are not far to seek. After
notification under Section 4 is issued, when it
appears to the State Government that the land
in any locality is needed for a company, any
person interested in such land which has been
notified can file objections under Section 5-
A(1) of the Act. Such objections are to be made
to the collector in writing and who after
giving the objector an opportunity of being
heard and after hearing of such objections and
after making such further enquiry, if any, as
the Collector thinks necessary, is to make a
report to the State Government for its
decision. Then the decision of the State
Government on the objections is final. Before
the applicability of other provisions in the
process of acquisition, in the case of company,
previous consent of the State Government is
required under Section 39 of the Act nor unless
the company shall have executed the agreement
as provided in Section 41 of the Act. Before
giving such consent, Section 40 contemplates a
previous enquiry. Then compliance with Rules 3
and 4 of the Land Acquisition (Company) Rules,
1963 is mandatory required. After the stage of
Section 40 and 41 is reached, the agreement so
entered into by the company with the State
Government is to be published in the Official
21
Gazette, This is Section 42 of the Act which
provides that the agreement on its publication
would have the same effect as if it had formed
part of the Act. After having done all this,
State Government cannot unilaterally and
without notice to the company withdraw from
acquisition. Opportunity has to be given to the
company to show cause against the proposed
action of the State Government top withdraw
from acquisition. A declaration under Section 6
of the Act is made by notification only after
formalities under part VII of the Act which
contains Section 39 to 42 have been complied
and report of the Collector under Section 5-
A(2) of the Act is before the State Government
who consents to acquire the land on its
satisfaction that it is needed for the company.
A valuable right, thus, accrues to the company
to oppose the proposed decision of the State
government withdrawing from acquisition. The
State Government may have sound reasons to
withdraw from acquisition but those must be
made known to the company which may have
equally sound reasons or perhaps more which
might persuade the State Government to reverse
its decision withdrawing from acquisition. In
this view of the matter it has to be held that
Yadi (Memo) dated 11.4.91 and Yadi (Memo) dated
3.5.91 were issued without notice to the
appellant (L&T Ltd.) and are, thus, not legal.
16. The decision to withdraw from acquisition is justiciable. In
other words, what is described as a liberty or a power with the
Government must be understood also as being attended with the duty
to act in a fair and bona fide manner. This means that present the
22
inevitable and indispensable requirement, namely, that actual
possession of the land has not been taken under the Act, it is open
in a fit and appropriate case and bearing in mind public interest
and the facts for the Government to withdraw from the acquisition.
It is the duty of the authority to be mindful of all relevant
inputs before it takes a decision to withdraw from the acquisition.
It is also clear that withdrawal from the acquisition must be
preceded by offering an opportunity to the beneficiary at whose
instance the acquisition is to be made. It is also clear that the
withdrawal from acquisition can be made only by issuance of a
notification. The reasoning for the same has been elaborately
supplied in the judgment of this Court in the case of 1998 (4) SCC
387 (supra). In 2001 (1) SCC 610 this court reiterated that an
opportunity of being heard must be given to the beneficiary before
power is involved under Section 48.
17. A question may arise as to what is the true nature of the
power exercised under Section 48. It is a power which is vested
with a statutory authority. No doubt the power would be exercised
in terms of the orders under which the competent authority would be
empowered to act in the matter. Whoever is the authority which is
exercising the power in accordance with the extant norms, he is
exercising the power which would be subject to judicial review on
well-settled principles in the face of a challenge to the exercise
of the power.
18. The question would arise as to whether once the power has been
exercised in the proper manner and it has culminated in a
notification spoken of by this Court in 1998 (4) SCC 387 (supra),
it is open to the authority to withdraw the notification. In this
23
case, a representation was given by the land owner and the alleged
purchasers from the land owner. It was, inter alia, their case that
possession had not been taken. On the basis of the said request, a
Notification under Section 48 has been issued on 07.07.2005. The
contents of the notification would tend to indicate, inter alia,
that possession of the land was not taken and taking of possession
is not actual possession. We have already noticed that the taking
of possession which would prevent the exercise of power under
Section 48 must be taking of khas possession or actual possession.
The notification dated 07.07.2005 further recites that the
appellant was notified about the proposal and what is more it was
followed up by three reminders. It is further noticed that there
was no response from the appellant. Therefore, this is not a case
where flouting the law laid down by this Court, withdrawal from the
acquisition was made under Section 48 without compliance with
principles of Natural Justice as far as the beneficiary is
concerned.
19. The order recites no doubt that there is no notice issued
under Section 9 (3) of the Land Acquisition Act. Here we may notice
that a perusal of Section 17 (1) of the Land Acquisition Act would
show that the 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 to whether possession was taken with reference
to the relevant date which is the publication of notice under
Section 9 (1). Section 9(1) of the Land 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
24
pointed out by Shri Vishwajit Singh, non-service of notice under
Section 9 (3) would not be sufficient to invalidate the
acquisition. But then the relevance of Section 9(3) notice as
pointed out by Shri Yathendra Singh is that if it had been produced
and proved, it would have gone a long way in proving the case of
the appellant that possession had in fact been taken. In this
regard, it is apposite to notice that in the appeal carried by the
appellant to this Court, the appellant held out that it had
material to show that notice was issued. We may notice the contents
of the order passed by this Court on 11.02.2016 in Civil Appeal No.
6272 of 2012.
“1. The challenge in the writ petition before
the High Court was in respect of a
notification dated 25.04.2008 cancelling an
earlier notification dated 07.07.2005 by which
the subject land was exempted in exercise of
power under Section 48 of the Land Acquisition
Act, 1894 (for short, “the Act”). The High
Court allowed the writ petition and set aside
the order dated 25.04.2008, inter alia,
holding that the notification dated 07.07.2005
was legal and valid inasmuch as no notice 2
under Section 9 of the Act was issued nor
possession had been taken over under Sections
16 or 17 of the Act. Accordingly, the High
Court held that there was no power to issue
the impugned notification dated 25.04.2008
superseding the earlier notification dated
07.07.2005.
2. Before us, it is contended on behalf of the
appellant that the High Court has committed a
factual error in holding that no notice under
Section 9 of the Act had been issued or that
25
possession of the land had not been taken. The
above-mentioned argument is sought to be
canvassed on the strength of certain documents
which have been laid before us along with memo
of appeal. On being queried it is stated on
behalf of the appellant that the said
documents were also laid before the High Court
but were not considered. The plea urged would
find support from the counter affidavit filed
on behalf of the appellant before the High
Court. 3. As a consideration of the said
documents would require us to determine
several connected questions/issues of fact and
may also require looking into the documents in
original, we are of the view that instead of
entertaining this appeal any further, it would
be more appropriate for the appellant to move
the High Court for recall of impugned order,
if it so desires.
4. We, accordingly, dispose of the appeal in
the above terms maintaining the interim order
passed by this Court for a period of six
weeks, within which it will be also open for
the appellant to seek interim relief from the
High Court.
5. We make it clear that we have expressed no
opinion on the merits of the case.”
20. An attempt was made by Shri Vishwajit Singh, learned senior
counsel to lay store by notice dated 25.09.1985 and to claim it to
be a notice under Section 9 (3):
“NOTICE
OFFICE OF THE SPECIAL LAND ACQUISITION OFFICER (II),
U.P. AVAS EVAM VIKAS PARISHAD, AGRA
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
26
Village Nakati, Mathura
By way of this Notice, this is to inform you that 28.9.85
has been fixed for passing Award for the land of Village
Palikheda, Pargana, Tehsil and District Mathura which has been
acquired under the aforesaid Yojana.
Therefore, it is requested to be present on the aforesaid
date before me in Collectorate, Mathura and be informed about
the Award.
Sd/- illegible
25.9.85
Atma Ram Tripathi
Special Land Acquisition Officer
U.P. Awas Evam Vikas Parishad, Agra
Sd/- Ram Singh
=================================================================
Sir,
As per your instructions, I went to the aforesaid address
to deliver the Notice. Receiver Ram Ratan was not found to be
present in the house.
Therefore, one copy of the notice was handed over to the
son of the addressee and obtained his signature.
Sd/- Ram Autar”
21. The contents of the notice would clearly show that it cannot
be understood as a notice under Section 9(3). Instead, it is a
notice notifying the owner about the fact that the award is going
to be passed on 28.09.1985. We may notice that the date of the so-
called notice under Section 9 (3) is 25.09.1985. A notice under
section 9 is to be followed by enquiry under Section 10 and award
under Section 11 certainly cannot be confused with notice which
merely notifies the owner about the date fixed for passing the
award. There is only a gap of three days between the date of the
notice and the date fixed for passing of the award. Therefore, the
appellants have not been able to establish any notice under Section
27
9 (3) was issued.
22. It is no doubt true that Shri Vishwajit Singh is correct in
pointing out that the recitals in the award are that the respondent
(original owner’s son) was heard and, in the award, it is mentioned
also that there was a money suit which was decreed against the
respondent and the decretal amount came to be partially adjusted
from out of the proceeds of the award.
23. However, passing on to the premise of the impugned order dated
25.04.2008, we find that after referring to the request made by the
appellant, the authority has purported to draw support from the
order dated 15.09.2006 issued by the Government. The order dated
15.09.2006 undoubtedly proclaimed that exemption from acquisition
or rather withdrawal from acquisition must receive the attention of
the concerned department. Its terms would indicate that Government
decided to do away with the earlier order passed in the year 2002.
The order dated 15.09.2006 is explicit in that, it was to have an
‘immediate effect’. This means that it was not retrospective. This
further inevitably means that it cannot affect orders/notifications
which had been issued invoking power under Section 48 prior to
15.09.2006. Yet a perusal of the order dated 25.04.2008 would
reveal that the Government has proceeded to act on the basis of
order dated 15.09.2006. In other words, the impugned order which
has been set aside by the High Court is entirely based on an order
which has no application to the facts. We say this for the reason
that we wish to clarify that it is not as if when a notification is
issued under section 48, it can never be undone irrespective of the
facts obtaining in a case. Apart from the fact that it is open to
challenge in a court of law at the instance of an aggrieved party
28
in a given case if it is shown it is procured by fraud, it may be
open to the authority to undo the same. It is an administrative
order, no doubt issued under a statutory provision by a public
authority. Since the law is that principles of natural justice
apply and the power can be exercised only after offering an
opportunity to the beneficiary as distinct from the owner, in a
case where it is found that a notification was issued without
notice, which is indispensable to passing of a valid notification,
it may be open to the Government to undo the effect of the
notification. In the facts of this case, it is not even the case of
the appellant in its representation that the recital in the
notification that it was given opportunity to make its
representation against the proposed action was wrong. The appellant
did not have a case in its representation that it was not given any
opportunity to represent against the order. The appellant seeks to
make good this omission by contending that a ground was raised that
there was violation of natural justice. We do not think we should
permit the appellant to make good an omission which stares in our
faces, in the facts of this case. We think that the appellant has
not made out a case for interference with the impugned orders.
Thus, the appeals stand dismissed. This will not stand in the way
of the appellant to acquire the lands in accordance with law.
Parties are left to bear their respective costs.
...................J.
(K.M. JOSEPH)
....................J.
(HRISHIKESH ROY)
New Delhi;
April 20, 2022.
29