Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.8083 of 2011
U.P. AVAS EVAM VIKAS PARISHAD THROUGH
HOUSING COMMISSIONER & ANR. ... Appellant (s)
Versus
NOOR MOHAMMAD & ORS. ... Respondent(s)
WITH
Civil Appeal No.8072 of 2011
J U D G M E N T
V. Ramasubramanian, J.
1. U.P. Avas Evam Vikas Parishad, which is a statutory authority of
the State of Uttar Pradesh for housing and development, has come up
with the present appeals, challenging the orders of the High Court of
Judicature at Allahabad, setting aside a Notification cancelling a
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2021.12.16
16:27:16 IST
Reason:
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previous Notification issued under Section 48(1) of the Land Acquisition
Act, 1894 for the release of the land of the respondents herein from
acquisition.
2. We have heard Shri Vishwajit Singh, learned counsel appearing for
the appellants and Mr. Krishnam Mishra and Mr. Anand Varma, learned
counsel appearing for the respondents.
3. A Notification dated 25.07.1964 was issued by the State
Government under Section 36 of the United Provinces Town
Improvement Act, 1919 (hereinafter referred to as for the
“the U.P. Act”)
acquisition of land of a total extent of acre 1.85 in Village Mirzapur,
TehsilSadar, District Gorakhpur for the public purpose of providing
housing/residential accommodation. This notification is akin to Section
4(1) of the Land Acquisition Act, 1894.
4. The above notification was followed by another notification dated
17.06.1967 under Section 42 of the U.P. Act, which is equivalent to
Section 6 of the Land Acquisition Act, 1894. It appears that the
emergency clause was invoked and the enquiry dispensed with, before
the declaration was made. The possession of the entire land except one
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piece bearing plot No.292/2 measuring an extent to 0.028 acres, was
taken over by the State Government on 24.07.1970 and an award was
also passed on 30.03.1971.
5. From the year 1983, the land owners made attempts to get the
lands released from acquisition, but fortune fluctuated in a seesaw
battle.
6. Eventually by a Notification dated 7.04.2003 issued in exercise of
the powers conferred by Section 49(1) of the U.P. Avas Evam Vikas
Parishad Adhiniyam, 1965 read with Section 48(1) and 49(1) of the Land
Acquisition Act, 1894, the land was exempt from acquisition. But within
a couple of years, the Government issued another notification dated
15.09.2005 cancelling the notification dated 07.04.2003 on the ground
that the land owners had played fraud by making false representations,
while seeking the release of the land.
7. Challenging the said Notification dated 15.09.2005, the original
land owners filed a writ petition in W.P (C) No.64727 of 2005 and the
purchaser of one part of the land from the original owners filed another
writ petition in W.P No.50151 of 2008. Both these writ petitions were
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allowed by Division Bench of the High Court by an Order dated
31.08.2010, holding that once the acquired land is released from
acquisition, by way of Notification, the Government can reclaim the land
only by initiating a fresh process of acquisition. Aggrieved by the said
order, the Housing and Development Authority has come up with the
above appeals.
8. Before we address the rival contentions for consideration, it may be
necessary to bring on record the background in which the original
Notification dated 07.04.2003 under Section 48(1) of the Land
Acquisition Act was passed and the reasons for the issue of the latter
notification dated 15.09.2005 cancelling the previous one. This
background as well as the reasons are stated very pithily in the second
Notification dated 15.09.2005 and, hence, it is reproduced as follows:
“ Land in Village Mirzapur/Betiahtata, Gorakhpur was acquired
under the provisions of U.P. Town Improvement Act, 1919 for the
Betiahata South Scheme , Gorakhpur of the U.P. Avas Evam Vikas
Parishad and later on 8.6.1965, it was transferred to the U.P. Avas
Evam Vikas Parishad for planned development of the area. The
State Government issued Notification u/s 17 of the Land
Acquisition Act, 1894 vide no. 93Ka/3719(1)(16)66 dated
13.1.1970.
An application dated 28.2.83 along with a letter addressed to the
Chief Secretary dated nil in connection with Khasra no. 257 (rakba
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0.51 Acre), Khasra no. 254 (rakba 0.30 Acre) , Khasra no. 255/1
(rakba 0.18 Acre), Khasra no. 255/2 (rakba 0.18 Acre), Khasra no.
291/1 (rakba 0.31 Acre), Khasra no. 291/2 (rakba 0.31 Acre),
Khasra no. 292/1 (rakba 0.03 Acre), Khasra no. 292/2 (rakba 0.03
Acre) total rakba 1.85 acre land, sent by applicants Smt. Shakuran
w/o Late Rojan, Shri Noor Mohd., Shri Shafi Mohd., Shri Ramjan
Mohd. all sons of sons of Late Salarbux Mohalla Tetiahata South
(New Avas Vikas Colony), Post Office Sadar, Dist. Gorakhpur was
received by the Government on 23.1.84 by which the applicants
brought to the notice of the government that the aforesaid plots
belonged to them which have been acquired by the Parishad. There
exist 17 or 18 cemeteries of their forefathers and they earn their
livelihood by way of vegetation/horticulture on the said land. There
are 20 members in their family and none of them have their own
house and that they would live there by making houses on the
land. After due consideration on the applications received from
applicants, the government issued G.O. no. 472/372853
HB(108)/83 dated 30.01.85 thereby exempting the aforesaid
khasras from acquisition with the condition that the landowners
will not sell out the land. Following the aforesaid G.O., the Housing
Commissioner, U.P. Avas Evam Vikas Parishad wrote a letter to the
government requesting for cancellation of the aforesaid G.O. dated
30.01.85 and accordingly, Amendment Order dated 27.6.85 was
issued by the Government whereby cancelling the earlier G.O.
dated 30.1.85 in which it was specifically mentioned that the
layout map of the Yojana may be modified, while excluding the
Mazaars, if any exists on the disputed land.
Subsequent to the aforesaid order, the applicants filed writ petition
no. 19757 /1985 in the Hon'ble High Court. In compliance of the
orders of the Hon'ble High Court, after giving serious thoughts to
the joint representation of the applicants, the same was rejected on
21.12.91. The applicants again filed writ petition no. 5002/1992
before the Hon'ble High Court in which the Hon'ble High Court
passed "dismissed as withdrawn" order on 19.5.99.
Thereafter, the government reviewed the representations submitted
by the applicants from time to time. In their representations, the
applicants had primarily stated that they were poor unemployed
persons. None of their family members was in government service.
The aforesaid land was the only source of their livelihood and they
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earn their livelihood by way of vegetation/horticulture on the said
land. There are 20 members in their family and none of them have
their own house and that they would live there by making houses
on the land. Cemeteries of their forefathers exist on the land and as
per the general policy of the Government, such land should not be
acquired. In view of the facts contained in the representation and
after due consideration, Notification no.1049/9Aa220033 HB
(AB)/83 dated 7 April 1983 was issued for exempting Khasra no.
257 (rakba 0.51 Acre), Khasra no. 254 (rakba 0.30 Acre), Khasra
no. 255/1 (rakba 0.18 Acre), Khasra no. 255/2 (rakba 0.18 acre),
Khasra no. 291/1 (rakba 0.31 Acre), Khasra no.291/2 (rakba 0.31
Acre), Khasra no. 292/1 (rakba 0.03 Acre), Khasra no. 292/2
(rakba 0.03 Acre) total rakba 1.85 acre land from acquisition.
After passing of the Notification, it came to the notice of the
government from various sources that the aforesaid exempted land
was being used for commercial purposes and the landmafias were
buying and selling the land after raising illegal constructions on it.
In view of the complaints, inquiry was got conducted from the
Housing Commissioner and the uptodate status of the land was
sought. The Housing Commissioner submitted his inquiry report
thereby informed as under:
a) 1.00 Acre {out of total 1.17 Acre land of Khasra no. 254 (rakba
0.30 acre), khasra no. 255 (rakba 0.36 acre), khasra no. 257
(rakba 0.51 acre)} was sold out on 23.4.2003 through
Agreement Deed.
b) 5220 sq.ft. land from Khasra no. 255 was sold through
registry on 29.4.2004 to Shri Shravan s/o Jaket, Dist. Deoria.
c) 2370 sq.ft. land from Khasra no. 254 was sold through
registry on 16.9.2004 to Shri Bajrang Prasad Gupta s/o Shri
Mahavir Prasad.
d) 9000 sq.ft. land from Khasra no. 254 and 255 was sold
through registry on 21.9.2004 to Smt. Lalita Chhabaria v1/o
Shri Hari Prasad Chhabaria.
e) Entire rakba 0.51 of Khasra no. 257 was sold through registry
n 16.9.2004 to Smt. Vartika Singh w/o Shri Krishna Singh
and Shri Brijesh Kumar Singh s/o Shri Shiv Poojan Singh.
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From the above, it is evident that the facts placed by the
applicants before the Government, on the basis of which their land
was released from acquisition vide Notification dated 7.4.2003,
were misleading and false. The applicants are in the process of
selling the land after dividing it in small plots and they neither
using the land for earning their livelihood by way of doing
vegetation nor for any other purpose. Therefore, after due
consideration, the Governor of Uttar Pradesh has been pleased to
approve cancellation of the aforesaid Notification no. 1049/9Aa2
20033 HB (AB)/83 dated 7 April, 1983 issued in respect of
releasing the aforesaid land from acquisition .”
9. The main ground on which the High Court set aside the second
Notification dated 15.09.2005 was that once a Notification is issued
under Section 48(1) of the Land Acquisition Act, 1894, the land gets
released from acquisition and that, therefore, the only way the State
Government could retrieve the land is to initiate the process of
acquisition afresh. This reasoning is based upon two premises, namely,
(i) that while there is a provision under Section 48(1) of the Land
Acquisition Act for the withdrawal of the land from acquisition, there is
no provision in the Act for cancellation of a Notification under Section
48(1); and that once a Notification under Section 48 (1) of the Land
(ii)
Acquisition Act is issued, the land gets vested in the original owner and
that therefore, divesting cannot take place without following the process
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of acquisition as enunciated in the Statute.
10. But insofar as the first contention is concerned, Section 21 of the
General Clauses Act, 1897 is a complete answer. It reads as follows:
“21. Power to issue, to include power to add to, amend,
vary or rescind notifications, orders, rules or byelaws .
Where, by any Central Act or Regulations a power to issue
notifications, orders, rules or byelaws is conferred, then that
power includes a power, exercisable in the like manner and
subject to the like sanction and conditions (if any), to add to,
amend, vary or rescind any notifications, orders, rules or bye
laws so issued.”
11. Therefore, the power to issue Notification would include a power to
rescind the Notification. This position was not contested by the
respondents, when their attempts to have the land released from
acquisition, proved unsuccessful on earlier occasions. As a matter of
fact, on the application presented by the respondents on 28.02.1983,
the Government issued a letter dated 30.01.1985 requesting the
Parishad to initiate necessary action for exemption of the land, subject
to the condition that the land owners will not sell the land. This
condition was stipulated in view of the fact that the request of the
respondent was based on religious sentiments due to the alleged
8
existence of cemeteries of about 20 of their forefathers on the acquired
land. But the proposal mooted by the State Government on 30.01.1985
was opposed by the Parishad on the ground that there was no mention
about any cemeteries, when the land owners filed objections to the
acquisition. In the light of such objections, the Government issued
proceedings dated 27.06.1985 withdrawing the earlier proposal dated
30.01.1985.
12. Therefore, the land owners filed a writ petition in Civil
Miscellaneous writ Petition No.19757 of 1985, seeking a direction to the
Government and to the Parishad not to dispossess them. This Writ
Petition was disposed of by an Order dated 30.09.1988, permitting the
land owners to file a representation to the Government within one
month and directing the State Government to consider the said
representation.
13. Pursuant to the said order, the land owners made a representation
dated 10.10.1988. But the same was rejected by the State Government
by an Order dated 21.12.1991, pointing out that the land already stood
vested in the Parishad and that Parishad has already become the owner.
9
14. Challenging the Order of rejection dated 21.12.1991, the land
owners filed a fresh writ petition in W.P. (C) No.5002 of 1992. But the
said writ petition was dismissed as withdrawn, on 9.04.1999.
Thereafter, a fresh representation was made on 29.05.1999. It was
reiterated in the said representation that there are cemeteries and
Mazaars of the forefathers of the land owners and that regular religious
programmes were being conducted in the acquired land. It is on the
basis of the said representation that the Notification dated 7.04.2003
was issued under Section 48(1).
15. Therefore, it is clear that the land owners were actually playing
hide and seek by pleading religious sentiments, leading to the issue of
the Notification dated 7.04.2003 under Section 48(1). In other words the
Notification under Section 48(1) was invited by the land owners by
making false representations. The land owners have actually played
fraud upon the Government and secured the Notification dated
7.04.2003. Hence, they cannot be allowed to contend that the land can
be acquired only through a fresh process of acquisition.
16. The learned counsel for the respondentsland owners contended
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that Section 21 of the General Clauses Act, does not confer an
overarching power on the Government to rescind a notification
conferring vested rights in immoveable property, especially when such a
power is not contemplated by the Land Acquisition Act, 1894. The right
to property, though not a fundamental right, is held to be a
Constitutional right and a human right and that, therefore, according to
the counsel for the respondents, the same cannot be taken away by
taking recourse to Section 21 of the General Clauses Act.
17. In support of the aforesaid contention, Mr. Anand Varma learned
counsel for the respondents relies upon the decision of this Court in
Industrial Infrastructure Development Corporation (Gwalior) M.P.
1
, wherein it was held as follows:
Ltd. vs. CIT
“21. The general power, under Section 21 of the General
Clauses Act, to rescind a notification or order has to be
understood in the light of the subjectmatter, context and the
effect of the relevant provisions of the statute under which the
notification or order is issued and the power is not available
after an enforceable right has accrued under the notification
or order. Moreover, Section 21 has no application to vary or
amend or review a quasijudicial order…”
18. The learned counsel for the respondents also relied upon the
1 (2018) 4 SCC 494
11
decision in H.C. Suman vs. Rehabilitation Ministry Employees Co
2
wherein
Operative House Building Society Ltd. New Delhi and Ors. ,
it was held that a substantial right created in favour of a party, which is
enforceable in law cannot be taken away by a subsequent order under
general power of rescindment available under the General Clauses Act.
19. But the decision in
Industrial Infrastructure Development
Corporation (supra) arose out of an order passed under Section 12A of
the Income Tax Act, 1961, which was admittedly a quasi judicial order.
In paragraphs 19 and 20 of the said decision, this Court pointed out
that “
the functions exercisable by CIT under section 12A are
neither legislative nor executive but essentially quasijudicial in
and that “
nature” an order under section 12A of the Income Tax
Act does not fall in the category of orders mentioned in
Section 21, which would be in the nature of
Notification/Rules/byelaws” .
20. But a proceeding under section 48(1) of the Land Acquisition Act is
2 (1991) 4 SCC 485
12
administrative in nature as can be seen from the language employed.
Section 48 of the Act reads 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 there under, 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 provision of Part III of this Act shall apply, so far as may be, to
the determination of the compensation payable under this section.”
What is provided in Section 48(1) is the power/liberty to withdraw from
acquisition. It is an administrative act. Therefore, the reliance on the
decision in Industrial Infrastructure Development Corporation
(supra) is misplaced.
21. For the very same reason, the decision in H.C.Suman, is also of no
assistance to the respondents in as much as the first notification of the
Lt. Governor, which was sought to be withdrawn by the subsequent
notification, was issued pursuant to a quasijudicial order passed by the
Lt. Governor on a statutory appeal. The quasi judicial order created a
13
vested right which was given effect through a notification. Therefore,
this Court held in para 35 of the decision in that the vested
H.C.Suman
right created by a quasijudicial order cannot be taken away by taking
recourse to the general power of rescindment available under the
General Clauses Act. Hence the reasoning contained in the said decision
cannot be applied to the case on hand.
22. While a Notification for acquisition issued under Section 4(1) of the
Land Acquisition Act seeks to take away an individual’s right to
property, a Notification under Section 48(1) is actually the reverse or
opposite. It confers benefit upon an individual and hence it is not
supposed to be preceded by any enquiry. The essence of an order which
is quasijudicial in nature is that it is preceded by an opportunity of
hearing to the party affected thereby. A notification under Section 48(1)
does not warrant any notice or opportunity of hearing, to the original
land owners. If at all any person will be aggrieved by the Notification
under Section 48(1), it will be the beneficiary of the acquisition, which in
this case is the Parishad, and not the land owners. Therefore, we can
14
understand if the Parishad makes out a grievance that their rights were
taken away by the notification under Section 48(1) especially after the
land vested in them.
23. Therefore, we reject the argument that a Notification under Section
48(1) is a quasijudicial order. As a consequence, we reject the argument
that the Government cannot fall back upon Section 21 of the General
Clauses Act to rescind an order under Section 48(1).
24. Coming to the second limb of the argument that the Notification
under Section 48(1) has created a vested right and that the same cannot
be taken away unilaterally by a subsequent Notification for cancellation,
we have to state that the first Notification was secured by the
respondents by false representations and by playing fraud. When the
respondents wanted to ward off the acquisition, they claimed that there
were cemeteries of their forefathers, but after the first notification was
issued, they started selling the land to third parties, who cannot and do
not share the same religious sentiments with the respondents. We have
already extracted the second Notification dated 15.09.2005 which
contains the list of sales made by the land owners. The enquiry
15
conducted by the Housing Commissioner has revealed that the land
mafia has taken over the land. It is trite to point out that an order
secured by fraud and misrepresentation will not confer any vested right
and that, therefore, the land owners cannot pitch their claim either on
the basis of vesting or on the basis of Article 300A.
25. Interestingly, Sh. Anand Varma, learned counsel for the
respondents relied upon the decision of this Court in
Mutha Associates
3
and Ors. vs. State of Maharashtra and Ors. , in support of his
contention that even if the impugned notification is taken to be
administrative in nature, the same should be preceded by an
opportunity of hearing to the land owners. But the decision in
Mutha
Associates (supra) is actually a doubleedged weapon insofar as the
respondents are concerned. In that case, this Court held that even for
the exercise of the power of withdrawal under Section 48(1) of the Land
Acquisition Act, an opportunity had to be given necessarily to the
beneficiary. In fact two principles could be culled out from Mutha
3 (2013) 14 SCC 304
16
Associates . They are: (i) that the publication of the Notification under
Section 48, is necessary just as the publication of notifications under
Sections 4 and 6 are mandatory; and (ii) that the beneficiary should be
heard before the withdrawal of land from acquisition.
26. In this case, the Notification dated 7.04.2003 does not appear to
have been preceded by an opportunity of hearing to the beneficiary,
namely, U.P. Avas Evam Vikas Parishad. Therefore, the withdrawal of
such an illegal notification, which was secured by fraud, cannot be
found fault with.
27. Therefore, in fine, all the contentions of the respondents land
owners are liable to be rejected and the appeals liable to be allowed.
Accordingly both the appeals are allowed, the impugned orders of the
High Court are set aside and the writ petitions filed by the respondents
are dismissed. Since the acquisition has been complete in all respects
the appellantParishad may proceed to implement the public purpose for
which the land was acquired. There will be no order as to costs.
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…..…………....................J.
(Hemant Gupta)
.…..………......................J
(V. Ramasubramanian)
DECEMBER 16, 2021
NEW DELHI.
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