Full Judgment Text
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REPORTABLE
2024 INSC 210
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3855 OF 2024
(ARISING OUT OF SLP (C) NO. 779 OF 2016)
U.P. AVAS EVAM VIKAS PARISHAD … APPELLANT
Versus
CHANDRA SHEKHAR AND ORS. … RESPONDENTS
J U D G M E N T
SURYA KANT, J.
Leave granted.
1.
2. The appellantU.P. Avas Evam Vikas Parishad (Board) is aggrieved
by the judgment dated 07.10.2015, passed by a Division Bench of the
High Court of Judicature at Allahabad, Lucknow Bench, whereby
acquisition in respect of Khasra No.673 (mentioned as plot No. 673 in the
impugned judgment), situated within the revenue estate of village
Hariharpur, Tehsil and District Lucknow, has been quashed on the
ground that the respondenttenure holders were not accorded
opportunity to submit objections against the proposed acquisition in
Signature Not Verified
accordance with Section 29 of the U.P. Avas Evam Vikas Parishad
Digitally signed by
satish kumar yadav
Date: 2024.03.16
12:57:53 IST
Reason:
Adhiniyam, 1965 (in short, `the 1965 Act’).
3. The 1965 Act was enacted by the State legislature through Act No.1
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of 1966 and has, thereafter, been reenacted by U.P. Act No.30 of 1974,
to provide for the establishment, incorporation and functioning of a
Housing and Development Board in Uttar Pradesh.
4. Section 28 of the 1965 Act contemplates that when any Housing or
Improvement Scheme is framed, the Board shall prepare a notice
depicting the boundaries of the area comprised in that Scheme; the
details of the land proposed to be acquired and the date by which the
objections to the Scheme are to be invited. Such notice is required to be
published weekly for three consecutive weeks in the Gazette and two
daily newspapers having circulation in the area comprised in the
Scheme, at least one of which shall have to be a Hindi newspaper.
5. Section 29 of the 1965 Act provides that the Board shall serve a
notice in such form on such persons or classes of persons in the
prescribed manner for executing the Scheme.
6. Section 30 of the 1965 Act enables the person on whom a notice
under Section 29 has been served to make an objection in writing to the
Board against the Scheme or the proposed acquisition or levy, etc. After
consideration of such objections, and when the prior sanction from the
State Government is obtained, the Scheme shall be notified under
Section 32 of the 1965 Act, and it shall come into force therefrom.
7. Section 55 of the 1965 Act confers power to acquire land for
implementation of the Scheme under the Act, and it reads as follows:
“ 55. Power to acquire land . (1) Any land or any interest
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therein required by the Board for any of the purposes of this
Act, may be acquired under the provisions of the Land
Acquisition Act, 1894 (Act No. I of 1894), as amended in its
application to Uttar Pradesh, which for this purpose shall be
subject to the modification specified in the Schedule to this
Act.
(2) If any land in respect of which betterment fee has been
levied under this Act is subsequently required for any of the
purposes of this Act, such levy shall not be deemed to
prevent the acquisition of the land under the Land
Acquisition Act, 1894 (Act Ne. I of 1894).”
In purported exercise of its powers under Section 28 of the Act, the
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appellantBoard issued a notice on 17.07.2004 (Annexure P1) giving a
description of the Scheme called as the Sultanpur Road Bhoomi Vikas
Evam Grahsthan Yojna at Lucknow. The said notice vividly described
the lands/properties which were to fall within the Scheme, the map of
the area, particulars of the Scheme and the details of the land which was
proposed to be acquired was notified to be available in the Office of the
Housing Commissioner. It was further stipulated that the objections to
the Scheme shall also be received by the Office of the Housing
Commissioner (Land Acquisition Section) within 30 days from the date of
publication of the said notification.
It is a matter of record that Khasra No.673 at village Hariharpur did
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not find any mention in the aforesaid notification dated 17.07.2004.
The case of the respondents is that Khasra Nos.672 and 673 were
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mutated in their favour on 10.10.1999, as can be seen from the entries
in the revenue record, a copy whereof has been placed on record as
Annexure P.6.
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11. It is also not in dispute that the tenure holding/ownership of
Khasra No.673 was later on changed in favour of one Chandrika S/o
Harishchandra, Guruprasad S/o Jawahir, and the entries to this effect
were reportedly made in the revenue record on 13.08.2003 and
09.02.2004.
12. While the respondents pleaded that the entries in the revenue
record were altered fraudulently behind their backs in collusion and
connivance with Chandrika and others and the statutory procedure
envisaged to make such changes was not followed, the case of the Board
is that the notice proposing to acquire the subjectland was issued to
Guruprasad, in whose favour the entries subsisted on the date
immediate prior to the issuance of Notification under Section 28 of the
1965 Act. In other words, the appellant’s stand is that they were not
obligated to serve any notice on the respondents as they were not
amongst the interested persons as per the entries in the revenue record,
and that such a notice was duly served on the persons who were
recorded as the tenureholders as per the revenue record.
13. The question whether the appellantBoard ought to have served
individual notice upon the respondents under Section 29 of the 1965
Act, has been answered by the High Court vide the impugned judgment
in favour of the respondents for two sets of reasons. Firstly, the High
Court, with regard to the entries made in favour of Chandrika and
others, has observed as follows:
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“It has been brought to our notice by the learned
Standing Counsel, on the basis of enquiry, which has been
held by the respondents, that surprisingly the name of
Chandrika has been found to be recorded in khatas of three
villages to the extent of area 9.64 hectares. The entry of
Chandrika in respect of khatas of three villages is not to be
confined to this extent only, but the authorities are obliged
to make further enquiry in respect of such entries prevailing
in Sadar Tehsil in district Lucknow.
It is to be noted that not only Chandrika whose name
has been recorded in clandestine manner, but there may be
other persons, whose names have also been recorded in the
like manner and the poor farmers do not come to know that
some name has been entered on the eve of acquisition and
that too without any knowledge to them. If the name of any
person has to be recorded in the khata, then it is incumbent
upon the Tehsildar to give notice and hear the recorded
tenure holder personally and thereafter make any change in
the khata of the recorded tenure holder.
The novel method adopted in entering the name of
Chandrika in so many khatas itself throws doubt upon the
manner in which, the entry in the name of Chandrika has
been made. This is a serious matter and it requires thorough
enquiry.
The Secretary, Board of Revenue himself or his
nominee was directed to conduct an enquiry into the matter.
The Secretary, Board of Revenue or his nominee does not
mean that the Secretary, Board of Revenue will not supervise
the enquiry personally. It is incumbent upon the Secretary,
Board of Revenue to supervise the enquiry personally and
call the officers and also to scrutinize the facts and the
evidence 'collected by the officers and thereafter take action
in accordance with law.”
[Emphasis applied]
Thereafter, the High Court proceeded on the premise that the effect
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of no notice having been served on the respondents entails denial of the
very valuable right of objections available to them. That limited
opportunity is akin to Section 5A of the Land Acquisition Act, 1894, and
nonobservance thereto, vitiates the acquisition process qua plot No. 673
and the same cannot sustain.
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15. We have heard learned Senior Counsel appearing on behalf of the
appellant as well as learned counsel appearing on behalf of the
respondents and carefully perused the material placed on record.
The 1965 Act mandates issuance of a preacquisition notice to such
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individuals whose land/property falls within the purview of the proposed
Scheme. On a liberal reading to such provision, the appellant, at best,
could have claimed deemed or substantial compliance of audi alteram
partem rule provided that Khasra No. 673 was expressly notified in the
public notice dated 17.07.2004. Unfortunately, Khasra Nos. 672 and 673
are conspicuously missing in the public notice dated 17.07.2004. No
individual notices were indisputably served on the respondents for the
reason that they were not recorded as tenureholders of the subject land
immediately before the issuance of a notice under Section 29 of the 1965
Act. In the absence of any public or individual notice proposing to
acquire Khasra No.673, we find merit in the cause espoused on behalf of
the respondents.
17. Nevertheless, we are equally conscious of the fact that there is a
combative title dispute between the respondents on one hand, and
Chandrika and others on the other. We, therefore, decline to hold or
declare the respondents to be the true tenureholders of the subject land.
All that we say is that in the absence of any public or individual notice
proposing to acquire Khasra No. 673, the observations made by the High
Court to the extent that the respondents have been denied an effective
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opportunity to submit objections to oppose the acquisition in question,
appears to be correct and based upon the record. That being so, the
impugned judgment to the extent it holds that the acquisition process
qua Khasra No.673 stands vitiated on account of noncompliance with
the prescribed procedure, does not call for any interference.
18. Having held so, the question that falls for further consideration is
as to what should be the future course of action for the appellantBoard,
so that neither the public interest to utilize the subjectland for the
Scheme that has been substantially developed is frustrated nor the true
tenure holders are deprived of the adequate compensation for their land.
It may be seen from Section 55 of the 1965 Act that the compensation for
the acquired land was required to be assessed in accordance with the
provisions of the Land Acquisition Act 1894, which stood repealed w.e.f.
01.01.2014 by the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter
referred to as “the 2013 Act”). Section 55 of the 1965 Act cannot be
given effect unless it is declared by way of a deeming fiction that instead
of 1894 Act which now stands repealed, the compensation shall be
assessed in accordance with the provisions of the 2013 Act. We hold
accordingly. Since the acquisition could not attain finality before
01.01.2014, we are of the considered opinion that the Acquiring
Authority/Board are obligated to pay compensation to the expropriated
owners, as is to be assessed in accordance with Section 24(1) of the 2013
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Act.
Consequently, we hold that the tenureholders/owners of Khasra
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No.673, which was still under the acquisition process when 2013 Act
came into force, shall be entitled to be paid compensation in accordance
with Section 24(1) of the 2013 Act.
20. We may hasten to add that the procedure prescribed under
ChapterII of the 2013 Act, mandates to carry out the Social Impact
Assessment Study in certain situations. The adherence to such a
cumbersome procedure in the instant case will be an exercise in futility
for two reasons. Firstly, a major part of the acquired land has already
been utilized for the notified public purpose. Secondly, the study referred
to above, will delay the assessment and payment of compensation to the
true tenureholders/owners of Khasra No.673. Consequently, we direct
the appropriate Government to dispense with the procedure
contemplated under Chapter II of the 2013 Act. The Prescribed
Authority is permitted to accord an opportunity to submit objections
under Section 15 of the 2013 Act and, thereafter, pass an award as per
Section 24(1) of the 2013 Act. The Prescribed Authority/Collector shall
give notice to the respondents as well as to other persons who claim
interest in Khasra Nos.672 and 673, within a period of six weeks. The
objections, if any, shall be filed within four weeks and on consideration of
such objections, the Collector shall be obligated to pass an award on or
before 30.06.2024.
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21. We further direct that the awarded amount shall be kept in a
nationalized bank in the FDR where it can fetch the maximum rate of
interest. The FDR shall be renewed from time to time till the title dispute
between the respondents and other claimants is resolved by a court of
competent jurisdiction. Whosoever is found entitled to, the appellant
Board shall release the compensation to them as early as possible but
not later than four weeks after the final adjudication of the title dispute.
22. The parties shall maintain status quo regarding the nature of the
land, creation of thirdparty rights or any encumbrance over the subject
land until the award is passed, as directed above. On the passing of the
award and deposit of the compensation amount, the appellantBoard
shall be at liberty to utilize the said land for the notified Scheme and/or
for any other public purpose in accordance with law.
Ordered accordingly.
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24. The appeal stands disposed of in the above terms. No order as to
costs.
……...........................J.
(SURYA KANT)
...................……….........J.
(K.V. VISWANATHAN)
NEW DELHI;
MARCH 05, 2024.
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