Sumit Makhija And Another vs State Of U.P. Thru Principal Secy. And Others

HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 27501 of 2008
AFR
Reserved on 10.08.2026
Delivered on 27.10.2026
Sumit Makhija and another
…..Petitioner(s)
Versus
State of U.P. Thru Principal Secy. and others
…..Respondent(s)
Counsel for Petitioner(s) : Abhinav Krishna, Amit Saxena,
Ashok K Pandey, Vineet Sankalp
Counsel for Respondent(s) : Ajit Kr Singh, C.S.C., M.C.
Tripathi, Shashi Prakash Rai
HON'BLE SARAL SRIVASTAVA, J.
HON'BLE SUDHANSHU CHAUHAN, J.
(Delivered by Hon’ble Saral Srivastava,J.)
1. Heard Sri H.N. Singh, learned Senior Counsel assisted by Sri
Vineet Sankalp, learned counsel for the petitioners, Sri Kartikeya Saran,
learned Additional Advocate General assisted by Sri S.N. Shukla,
learned Standing Counsel for the State-respondents and Sri S.P. Rai,
learned counsel for Kanpur Development Authority.
2. The petitioners by means of the present writ petition have prayed
for quashing the order dated 16.05.2008 passed by respondent no.1-
Principal Secretary, Revenue Department by which he has recalled the
Notification dated 03.05.2006 by which land comprised in Gata

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WRIC No. - 27501 of 2008
Nos.210, 221, 222 & 223, total area 6-16-0 Bighas was withdrawn from
the acquisition.
3. The facts, in brief, are that petitioners claim that they are co-
owners of Araji Nos.210, 221, 222 & 223 measuring area 6-16-0 Bighas
land situated in Village Shahpur (Mohsinpur), District Kanpur Nagar
(hereinafter referred to as ‘land in question’).
4. According to the petitioners, the respondent no.1 in the year 1959
had issued a Notification under Section 4 of The Land Acquisition Act,
1894 (hereinafter referred to as the ‘Act, 1894’) for acquiring the land in
question. The Notification under Section 6 of the Act, 1894 was also
issued in respect to the aforesaid land. The award was made in the year
1963. The petitioners state that they did not accept the award.
5. Further case of the petitioners is that the award was amended and
respondent no.3 did not deposit the amount of amended award. It is
further stated that possession of aforesaid land was not taken either from
petitioners or from their ancestors, and the land in question remained in
continuous possession of petitioners' family.
6. The petitioner no.1-Sumit Makhija and father of petitioner no.2-
Late Ram Lal Makhija made a representation against the acquisition
primarily on the ground that Scheme-40 for which the land was acquired
was never implemented by respondent no.3 and possession had not been
taken from the land owners for years together, and also on the ground
that compensation was not paid by the respondent no.3.
7. Further it is the case of the petitioners that under the proviso to
Section 17(1) of the Uttar Pradesh Urban Planning and Development
Act, 1973 (hereinafter referred to as the ‘Act, 1973’), if the land has not
been utilised within the period of five years from the date of acquisition
for the purpose for which it was acquired, the aggrieved person may file
an application to the State Government for restoration of that land.
Accordingly, the petitioners submitted a representation for releasing their
land under Section 48 of the Act, 1894 read with Section 17 of the Act,
1973.

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WRIC No. - 27501 of 2008
8. On the representation of the petitioners, the District Magistrate,
Kanpur Nagar submitted a report to the Director, Land Acquisition
Directorate, Revenue Department, State of U.P. Lucknow on 27.01.2005.
It appears that acting upon the report of the District Magistrate dated
27.01.2005, the aforesaid land was exempted by Notification dated
03.05.2006.
9. It transpires from the record that State Government issued a
Government Order dated 15.09.2006 which provided that necessary
powers under Section 48(1) of the Act, 1894 for releasing the acquired
land would be exercised by the department for which acquisition had
been made. The respondent no.1 in pursuance to the Government Order
dated 15.09.2006 recalled the Notification dated 03.05.2006 by order
dated 16.05.2008.
10. The petitioners being aggrieved by the Order dated 16.05.2008
have preferred the present writ petition.
11. The respondent no.1-Principal Secretary, State of U.P. has filed a
counter affidavit contending inter alia that area 541.38 acres land was
acquired under the provisions of Kanpur Urban Area Development Act,
1945 (hereinafter referred to as ‘Act, 1945’) for execution of Kalyanpur,
Panki Pandu Town Expansion and Green Belt Scheme. Accordingly,
Notifications under Sections 53 & 60 of the Act, 1945 were issued on
08.07.1959/25.07.1959 and 23.12.1959 respectively, and the award was
declared as Award No.47 on 29.07.1963 for the then Nagar Mahapalika
Kanpur.
12. It is further stated that Arazi No.210 area 01-07-00, Arazi No.221
area 02-07-00, Arazi No.222 area 01-18-00, Arazi No.223 area 01-04-00
situated in Village Shahpur, Mohsinpur, District Kanpur were acquired
under the Act, 1945 for the then Nagar Mahapalika Kanpur.
13. The recorded tenure holders of the aforesaid land were Beliram
and Ram Lal, sons of Khan Chand. Since, the recorded tenure holders
did not turn to receive the awarded amount, therefore, it was deposited in
the R.D. account. It is further stated that the recorded tenure holders

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WRIC No. - 27501 of 2008
instituted Civil Suit No.129 of 1968, which was dismissed on
25.04.1975. The recorded tenure holders, thereafter, preferred Civil
Appeal No.235 of 1975 against the judgement dated 25.04.1975
dismissing the suit, which was also dismissed.
14. The recorded tenure holders, thereafter, preferred Second Appeal
No.2736 of 1981 against the judgement and decree dated 25.04.1975
passed in aforesaid suit and also against the judgement and decree
passed in the aforesaid civil appeal.
15. It is further stated that Nagar Mahapalika constituted under the
U.P. Municipal Corporation Act, 1959 (hereinafter referred to as ‘Act,
1959’) came into force with effect from 01.02.1960. It appears that due
to typing error, ‘01.02.1907’ has been typed as ‘01.02.1960’, the date of
coming into force of Nagar Mahapalika. Thereafter, the Kanpur
Development Authority (hereinafter referred to as ‘KDA’) came into
existence in the year 1974, and the aforesaid land was vested in the KDA
by the order of State Government.
16. Further case of the respondent no.1 is that the land in question
had been acquired after adopting due procedure by the then, Nagar
Mahapalika and the acquisition proceeding had become final. It appears
that recorded tenure holders Late Beliram had executed a ‘Will’ on
10.09.1985 in favour of his wife, and subsequently amended the ‘Will’
on 08.07.1991 on the basis of which petitioners are claiming their right
on the acquired land. Thus, according to the respondents, the ‘Will(s)’ of
acquired land could not be executed and same were void ab initio ,
therefore, petitioners have no right and title in the aforesaid land and
thus, they are not entitled to get any relief.
17. The further case of respondent no.1 was that acquisition
proceeding was carried out under the provisions of Act, 1945, and
Section 48 (1) of the Act, 1894 is not applicable. It is further stated that
the petitioners have concealed material facts, and thus, petitioners have
not approached this Court with clean hands.

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WRIC No. - 27501 of 2008
18. It is further stated that the acquisition proceeding is of the
year1959 and writ petition has been filed in the year 2008 after a long
gap of 50 years without explaining any delay, and as such writ petition is
liable to be dismissed on the ground of delay and laches.
19. The respondent no.3 has also filed counter affidavit taking similar
stand as has been taken by respondent no.1 in the counter affidavit.
20. When the respondents took a specific stand in their counter
affidavit that petitioners have not approached this Court with clean hands
as the petitioners have not disclosed the institution of Civil Suit No.129
of 1968 which was dismissed on 25.04.1975, and filing of Civil Appeal
No.235 of 1975 against the judgement and decree of Trial Court dated
25.04.1975, and thereafter, filing of Second Appeal No.2736 of 1981
before this Court, and further disputed the right of petitioners to get the
aforesaid land released in their favour, the petitioners filed
supplementary affidavit stating therein that grandfather of petitioner no.1
Late Beliram and his brother Late Ram Lal Makhija were co-owners of
the aforesaid land and their names were recorded in revenue records
having transferable rights over the said land. The grandfather of
petitioner no.1, Late Beliram had executed a registered ‘Will’ dated
10.09.1985 in favour of his wife, Smt. Thakuri Bai Makhija in respect of
his movable and immovable properties including his shares in the land in
question. However, it was specified in the said ‘Will’ that his wife would
acquire, in the event of his demise prior to his wife, only life interest as
user of the properties mentioned in the ‘Will’, but she would not acquire
any right to transfer or alienate the property.
21. It was also stated in the said ‘Will’ that after the death of his wife
Smt. Thakuri Bai Makhija, petitioner no.1 being the grandson of the
testator Late Beliram Makhija would become absolute owner in respect
of his movable and immovable properties including the land in question.
However, the ‘Will’ dated 10.09.1985 was subsequently modified by the
last ‘Will’ of testator Late Beliram on 08.07.1991 in which the

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WRIC No. - 27501 of 2008
conditions regarding ownership and title of movable and immovable
properties qua petitioner no.1 continued to remain the same.
22. It is further stated that after the death of grandfather of petitioner
no.1, his name was duly mutated in the revenue records.
23. So far as the institution of Civil Suit No.129 of 1968 by Late
Beliram and Late Ram Lal and Civil Appeal No.235 of 1975, and
Second Appeal No.2736 of 1981 is concerned, the same has been
admitted by the petitioners. However, according to petitioners that has
no adverse effect on the rights of petitioners in the facts and
circumstances of the present case.
24. The respondent no.3 filed supplementary counter affidavit to the
supplementary affidavit of petitioners taking same stand which they have
taken in the main counter affidavit.
25. The petitioners have filed rejoinder affidavit denying the
assertions made in the counter affidavit.
26. Challenging the impugned order, Sri H.N. Singh, learned Senior
Counsel for the petitioners has contended that on the date when the
Notification dated 03.05.2006 was issued releasing the land in question,
it was the Revenue Department which was authorized to release the land
in view of Government Order No.592/1-13-2002 - -13 dated 19.06.2002,
रा 
and therefore, respondent no.1 has erred in law in recalling the
Notification dated 03.05.2006 on the ground that under the Government
Order dated 15.09.2006, it is the concerned Department for which the
land had been acquired, had the power to release the land as the said
Government Order did not operate retrospectively until and unless a
specific provision was made in that regard.
27. It is further contended that there is no provision under the Act,
1894 for recalling the order passed under Section 48 of the Act, 1894,
therefore, in absence of specific power of review, the impugned order
dated 16.05.2008 is patently illegal and without jurisdiction. He further

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WRIC No. - 27501 of 2008
submits that the impugned order is illegal being in violation of principles
of natural justice.
28. It is also contended that there are executive functions conferred
upon the Government to be exercised by the Governor under the
Legislative Acts by the Legislature. The executive power of Governor is
vested under Article 162 of the Constitution of India.
29. It is further contended that the Governor is conferred with the
power to frame rules of business under Article 166 of the Constitution of
India, and in exercise of this power, the Governor, State of U.P. by
Notification dated 11.08.1975 notified the Business of Uttar Pradesh
(Allocation) Rules, 1975 (hereinafter referred to as ‘Rules, 1975’) under
which the Revenue Department is vested with the jurisdiction in respect
of Act, 1894 which is evident from Para-1 under the heading ‘
एक-13-
3’ which reads as under:-
राजस्व अनुभाग-:
“1. लैण्ड एक्यूजीशन ऐक्ट, 1894 का प्रशासन, संशोधन तथा अधिधकारों का प्रधित-
निनघायन और मुकदमें आनिद.”
30. Accordingly, he contends that Section 17 of the Act, 1973 and
Section 48 of the Act, 1894 confers power of release upon the State
Government and this power of the State Government is to be exercised
'
under the Rules, 1975. It is contended that under the heading
एक-13-
3’
of para 1 of Rules, 1975, the power in respect of Act,
राजस्व अनुभाग-:
1973 is given to the Revenue Department, therefore, respondent no.1 has
erred in law in holding that power of release is vested in the concerned
Department.
31. Per contra, learned counsel for the respondents contends that there
is no provision under the Act, 1945 or the Act, 1959 under which the
land can be returned. He submits that Section 17 of the Act, 1973 would
apply only in respect of lands which have been acquired under the Act,
1973. Thus, it is contended that since Section 48 of Act, 1894 is not
applicable, therefore, the application of petitioners for releasing the land
by invoking Section 17 of the Act, 1973 read with Section 48 of the Act,

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WRIC No. - 27501 of 2008
1894 was not maintainable. Consequently, it has been urged that there
was lack of inherent jurisdiction upon the authority in releasing such
land.
32. He further contends that petitioners do not have any vested right
under Section 48 of the Act, 1894 to get the land released. He submits
that it is only the discretion of the State Government when conditions
enumerated in Section 48 of the Act, 1894 are present to release the land.
33. It is further contended that petitioners have obtained the order of
release by misrepresentation and fraud, inasmuch as they did not
disclose the dismissal of Civil Suit No.129 of 1968 instituted by Late
Beliram and Late Ram Lal, and filing of Civil Appeal No.235 of 1975,
and Second Appeal No.2736 of 1981 before this Court wherein a
categorical finding has been recorded by the Trial Court, affirmed by the
Appellate Court that Late Beliram and Late Ram Lal, who were co-
tenure holders of the aforesaid property, had no right to challenge the
acquisition as they had purchased the property from the original tenure
holder namely, Ratan, and the said finding having attained finality after
the dismissal of Second Appeal preferred by Late Beliram and Late Ram
Lal, therefore petitioners have no right to get the property released.
34. He contends that every authority has inherent power to recall or
review its order if it had been obtained by fraud. He submits that if an
order had been obtained by fraud, it is not incumbent upon the authority
to follow the principles of natural justice.
35. He further contends that even if, without admitting in the instant
case, petitioners ought to have been afforded an opportunity of hearing,
that would have been a futile exercise, inasmuch as petitioners in the
supplementary affidavit admit the fact of institution of Civil Suit No.129
of 1968, Civil Appeal No.235 of 1975 and Second Appeal No.2736 of
1981. It is submitted that if only one conclusion can be drawn by giving
opportunity of hearing, it is not necessary for the authorities to follow
the principles of natural justice inasmuch as such an exercise will be a
futile exercise.

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WRIC No. - 27501 of 2008
36. During the course of argument, when we were informed that the
Second Appeal No.2736 of 1981 was filed by the petitioners, which was
got dismissed by the petitioners as infructuous , we summoned the record
of Second Appeal No.2736 of 1981 to find out as to what was the
controversy involved in the Civil Suit No.129 of 1968 (Beliram and
Others Vs. State of U.P. and Others).
37. We have heard learned counsel for the parties and perused the
record.
38. In the light of pleadings of the parties stated above, the Court
proceeds to consider the submission of respective parties.
39. The moot question which arises on the basis of submission
advanced by learned counsel for the petitioners is that in the absence of
any power of review, the respondent no.1 could review the order said to
be passed under Section 48 of the Act, 1894 recalling the Notification
dated 03.05.2006.
40. The further question which arises for consideration is whether the
Government Order dated 15.09.2006 would operate retrospectively in
the absence of any provision under the said Government Order providing
that it shall operate with retrospective effect.
41. It is evident from the record that land had been released by the
respondent no.1 by Notification dated 03.05.2006 in exercise of power
under Section 48 of the Act, 1894. There is no provision in the Act, 1894
conferring the power upon the respondent No.1 to review or recall the
order releasing the land under Section 48 of the Act, 1894.
42. It is trite law that in the absence of any power to recall or review
provided in the Statute, the authority has no jurisdiction to review or
recall its order. However, there is an exception carved out to the said
proposition of law which permits the authority to review or recall it’s
order if it had been obtained by fraud or misrepresentation.

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WRIC No. - 27501 of 2008
43. The Apex Court in paragraph no.34 of the judgment in the case of
Indian National Congress (I) Vs. Institute of Social Welfare and
Others (2002) 5 SCC 685 has held as under:
“34. Coming to the first exception, it is almost settled law that fraud
vitiates any act or order passed by any quasi-judicial authority even
if no power of review is conferred upon it. In fact, fraud vitiates all
actions. In Smith v. East Elloe Rural Distt. Council (1956) 1 All E.R.
855 it was stated that the effect of fraud would normally be to vitiate
all acts and order. In Indian Bank vs. Satyam Fibres (India) (P) Ltd.
(1996) 5 SCC 550 it was held that a power to cancel/recall an order
which has been obtained by forgery or fraud applies not only to
courts of law, but also statutory tribunals which do not have power of
review. Thus, fraud or forgery practised by a political party while
obtaining a registration, if comes to the notice of the Election
Commission, it is open to the Commission to deregister such a
political party.”
44. The aforesaid preposition of law is reiterated by the Apex Court in
case of United India Insurance Co. Ltd. Vs. Rajendra Singh and
Others (2000) 3 SCC 581 wherein it held that no Court or Tribunal can
be regarded as powerless to recall its own order if it is convinced that the
order was wangled through fraud or misrepresentation.
45. The Apex Court in the case of Indian Bank Vs. Satyam Fibres
(India) Pvt. Ltd. (1996) 5 SCC 550 has held that the court has inherent
power to recall its order if it is obtained by fraud on Court.
46. It is also settled law that the authority before reviewing or
recalling the order must follow the principles of natural justice by
issuing notice and giving opportunity of hearing to the aggrieved person
before recalling or reviewing the order.
47. The judgment of the Apex Court in the case of State of West
Bengal & Others Vs. Jai Hind Private Limited (2026) 5 SCC 481 relied
upon by the learned counsel for the petitioner also states the aforesaid
proposition of law.

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WRIC No. - 27501 of 2008
48. Now, in order to decide whether respondent No.1 has rightly
invoked the power of review in the facts of the present case, the Court
shall have to see whether the Notification dated 03.05.2006 by which the
land in question had been released was obtained by placing correct facts
or by concealing material facts due to which respondent No.1 was
misled in releasing the land under Section 48 of the Act, 1894. In other
words, whether the petitioners got the Notification dated 03.05.2006 by
placing correct facts or by playing fraud or misrepresentation.
49. In order to appreciate the aforesaid question, it would be
appropriate to reproduce the report of the District Magistrate, Kanpur
Nagar dated 27.01.2005 addressed to the Director, Directorate Land
Acquisition, Board of Revenue, U.P., Lucknow which reads as under:
“प्रेषक,
जिजलाधिधकारी
कानपुर नगर।
सेवा में ,
निनदेशक,भूनिम अध्यानिपत निनदेशालय,
о
राजस्व परिरषद,उ प्रo
लखनऊ।
संध्या:260/आठ-निव.भू.अ.अ.(निव.प्राधिध.) कानपुर निदनांक: 27-1-05
निवषय :- जनपद कानपुर नगर के ग्राम शाहपुर (मोनिहसिंसपुर ) के गाटा संख्या- 210, 221, 222,
223, क्षेत्रफल 6-16-0 बीघा भूनिम अजPन से मुक्त निकये जाने के सम्बन्ध में।
महोदय,
उपरोक्त निवषयक निनदेशालय के पत्र सं० 2219/10(भू.अ.)94 अ./04 निदनांक
16.10.2004 का सन्दभP ग्रहण करने का कष्ट करें, प्रश्नगत प्रकरण के सम्बन्ध में तत्समय
स्थिस्थत कानपुर निवकास प्राधिधकरण इकाई से आख्या प्राप्त की गई तथा अभिभलेखों का परीक्षण
कराया गया।परीक्षणोपरान्त आख्या निनम्नवत् है :-
1. ग्राम शाहपुर (मोनिहजिसनपुर) की भूनिम संख्या-210, 221, 222, 223 रकबा
6-16-0 बीघा है जिजसका अजPन कल्यानपुर, पनकी पाण्डु ग्रीन वेल्ट स्कीम संख्या 40
के तहत् मु०नं० 25/59-60 एवाडP सं०.47 निदनांक 29.07.63 द्वारा अर्जिजत की गई।
2. यह निक प्रपत्र 11 के अनुसार श्री वेलीराम व रामलाल पुत्रगण लाला खानचन्द्र
कानपुर के नाम क्षेत्रफल 6-16-0 बीघा का प्रधितकर रू०598.80 निनधाPरिरत निकया गया।

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WRIC No. - 27501 of 2008
निनधाPरिरत की गई प्रधितकर की धनराभिश भू-स्वामी द्वारा प्राप्त न निकये जाने के कारण
आर०डी० मद में जमा होना अंनिकत है तथा संशोधिधत धनराभिश रु० 9964.20 निवभाग
का०निव०प्रा० द्वारा उपलब्ध नहीं कराई गयी है, प्रपत्र 11 की छायाप्रधित संलग्न है।
3. यह निक प्रश्नगत आराजी का कब्जा अजPन निनकाय को नहीं निदया गया जैसा निक
सम्पत्तिm निवभाग की आख्या निदनांक 14.06.2004 से स्वतः स्पष्ट है (छायाप्रधित संलग्न है)।
4. यह निक प्रश्नगत आराजी का अधिधग्रहण ग्रीन वेल्ट योजना संख्या-40 के अन्तगPत
1959 में निकया गया तथा अधिधग्रहीत भूनिम का एवाडP निदनांक 29.07.1963 को घोनिषत
निकया निकन्तु निवभाग द्वारा भूनिम का कब्जा अभी तक नहीं त्तिलया गया और न ही
संशोधिधत प्रधितकर की धनराभिश जमा की गई है। कब्ज़ा न त्तिलए जाने की स्थिस्थधित मे भू-
अभिभलेखों मे भू-स्वामी का नाम दजP खातेदार है। युक्त के अधितरिरक्त यह भी अवगत करना
है निक वषP 1959 मे अधिधग्रहण कायPवाही की गई किंकतु अजPन निनकाय द्वारा जिजस उद्देश्य के
त्तिलए भूनिम का अधिधग्रहण निकया गया उसका निsयान्वयन अभी तक नहीं निकया गया है।
अतएव उक्त वर्णिणत परिरस्थिस्तभिथयों को दृनिष्टगत रखते हुये भूनिम अध्यानिप्त अधिधनिनयम में
निनधाPरिरत समय सीमा व अजPन प्लाकिंनग एण्ड डेवलपमेंट एक्ट की धारा- 17 में दी गई
व्यवस्था का अनुपालन निवभाग द्वारा नहीं गया है जिजसके कारण भूनिम का अजPन से मुक्त निकये
जाने के परिरपेक्ष्य मे भू-स्वामी द्वारा निदये गये प्राथPना पत्र पर निवचार निकये जाने की संस्तुधित
की जाती है।
जहां तक निनयमानुसार कायPवाही कर कृत कायPवाही से निनदेशालय को अवगत
कराने का प्रश्न है, भू-स्वामी द्वारा पूवP में निदये गये प्राथPना पत्र पर अपर जिजलाधिधकारी
(भू.अ.)/निवशेष भूनिम अध्यानिप्त अधिधकारी (निवकास प्राधिधकरण) कानपुर द्वारा आदेश
संख्या- 97 निदनांक 29-09-2004 पारिरत कर अवगत कराया जा चुका है, छायाप्रधित
संलग्न है। चूंनिक प्रश्नगत भूनिम का एवाडP निद०. 29.07.63 को घोनिषत निकया जा जा चुका
है। अतएव भूनिम को अजPन से मुक्त करने का अधिधकार निवशेष भूनिम अध्यानिप्त अधिधकारी (काo
निवo प्राo) को नहीं है। प्रश्नगत प्रकरण में अग्रेतर कायPवाही निनदेशालय/शासन स्तर से ही
निनणPय त्तिलया जाना उधिचत होगा।"
50. Perusal of aforesaid report discloses that the acquisition of land in
question was for Kalyanpur, Panki Pandu Town Expansion and Green
Belt Scheme No.40, and the award of the said land was prepared on
29.07.1963.
51. The report also categorically states that the award of Rs.598/- was
not received by the land owners and was deposited in RD account, and
KDA did not deposit the revised award of Rs.9964.20/-.
52. It also states that the possession of land had not been taken nor the
possession of land had been delivered to the acquiring body. The name
of tenure holder is recorded in the revenue record as the possession of
the land had not been taken.

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WRIC No. - 27501 of 2008
53. The report further states that the acquisition proceeding had been
conducted in the year 1959, and the purpose for which the land was
acquired has not been implemented, and the Department has not utilised
the land within the time frame prescribed under Section 17 of the Act,
1973. Accordingly, the District Magistrate recommended for releasing
the land in favour of the petitioners.
54. Based upon the said recommendation, it transpires from the
Notification dated 03.05.2006 that several letters had been issued to the
Department of Housing and Urban Planning seeking their opinion and
recommendation for releasing the land from the acquisition.
55. The aforesaid Notification reveals that when no opinion/objection
was received from the Housing and Urban Planning Department, the
land was released in favour of the petitioners. The report of the District
Magistrate dated 27.01.2005, which was the basis for releasing the land
has been extracted above.
56. The record reveals that aforesaid report does not state the correct
facts and had been submitted by the District Magistrate by concealing
necessary facts, which we are delineating herein below.
57. The respondent no.1 in the counter affidavit took specific plea that
the petitioners had concealed material facts in filing the writ petition
inasmuch as the petitioners had challenged the acquisition proceedings
by filing Civil Suit No.129 of 1968 which was dismissed on 25.04.1975.
58. The judgement and decree passed in the aforesaid suit was,
thereafter, challenged by the petitioner in Civil Appeal No.235 of 1975,
which was also dismissed by the First Appellate Court. Thereafter, the
petitioner preferred Second Appeal No.2736 of 1981 before this Court,
which is still pending.
59. The respondent also raised an objection with regard to the right of
petitioners to get the land released in their favour by pleading that
petitioners are claiming their right on the land on the basis of a ‘Will’
which could not be executed as the land had already been acquired and

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WRIC No. - 27501 of 2008
had vested in the State Government, therefore, the testator had no right
to execute a ‘Will’ in respect of the land which he did not own.
60. When the respondents raised the aforesaid two objections in their
counter affidavit, the petitioners filed supplementary affidavit stating
therein that the grandfather of petitioner no.1 Late Beliram and his
brother Ram Lal Makhija were the co-owners and title holders of the
land, and their names were recorded in the revenue record having
transferable rights over the said land who were in possession over the
land.
61. The grandfather of petitioner no.1 Late Beliram executed a
registered ‘Will’ dated 10.09.1985 in favour of his wife Smt. Thakuri Bai
Makhija in respect of his movable and immovable properties including
his share in the land. It was also stipulated in the ‘Will’ that his wife
would acquire, in the event of his demise prior to his wife, only lifetime
rights as user of the properties mentioned in the ‘Will’, but she would
not acquire any right to transfer or alienate the property. As per the said
‘Will’ after the death of Smt. Thakuri Bai Makhija, the petitioner no.1
being the grandson of testator Beliram Makhija would become absolute
owner of the land owned by testator Beliram Makhija.
62. It is also stated that the registered ‘Will’ dated 10.09.1985 was
subsequently modified by the last ‘Will’ of the testator Late Beliram
Makhija on 08.07.1991, but the condition regarding ownership and title
of movable and immovable properties of the petitioner no.1 continued to
remain the same.
63. So far as the institution of suit is concerned, it has been stated that
the suit was instituted at the behest of the predecessor in the interest of
the petitioners and same would have no adverse impact on the right of
petitioners in the facts and circumstances of the case.
64. We have perused the judgment of Trial Court and we find that the
suit was instituted by Beliram (plaintiff no.1) and Ram Lal (plaintiff
no.2), and the defendants in the original suit were as follows:-

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WRIC No. - 27501 of 2008
“i. State of U.P. service to be effected on the Collector, Kanpur.
ii. The Nagar Mahapalika Kanpur service to be effected on
Administrator Nagar Mahapalika Kanpur.
iii. The Land Acquisition Officer, Nagar Mahapalika Kanpur.
iv. The Indian Oil Corporation having its registered office at Kalpi
Road, Kanpur.”
65. The plaintiff-appellants instituted the suit inter alia for declaration
that plaintiffs are the owners and Bhumidhars in possession of plot nos.
210, 221, 222, and 230 having an area of 6 Bighas and 16 Biswas,
situated in Village Shahapur Mohsinpur (the same land involved in the
present petition) after purchasing the same for a valuable consideration
th
vide registered sale deed dated 20 of August, 1962 from the previous
owner Ratan S/o Sri Kewal, Caste Gadaria.
66. The further case set up by the plaintiff was that after purchasing
the land, the plaintiffs submitted building plan on 20th December, 1962
for establishing a Dal Mill to the Nagar Mahapalika, Kanpur. It was also
the case set up in the plaint that the plaintiffs in order to protect the land,
built a boundary wall around the contiguous area comprised in the said
plots, which was subsequently demolished by the officers and staff of the
Nagar Mahapalika, Kanpur.
67. It is stated that plaintiffs later on got an information that the land
purchased by them was sought to be acquired for the scheme known as
‘Green Belt Scheme No.40’, and in pursuance of the said Scheme, an
award was alleged to have been declared by the Land Acquisition
Officer i.e. defendant no.3 on 29th July, 1963.
68. It was also the case of the plaintiff that on inquiry, the plaintiff
came to know that a Notification dated 13th December, 1956 had been
published in the U.P. Gazette dated 22nd December, 1956 purporting to
be under Section 60 (1) of the Act, 1945 sanctioning Kalyanpur Panki
and Green Belt Scheme No.40 referring to an earlier Notification alleged
to have been published in the Gazette of 6th October, 1952, but in spite

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WRIC No. - 27501 of 2008
of extensive search, the plaintiffs could not find out any such notification
in the U.P. Gazette of the said date.
69. The plaintiffs further pleaded that after publication of the aforesaid
notification, nothing was done for a long time for effecting the said
Scheme, and a notification purporting to be under Section 16 (c) of the
Act, 1945 was published in the UP Gazette dated 18th and 26th July,
1959 notifying that Scheme sanctioned by the Notification dated 13th
December, 1956 was to be modified in accordance with said notification
and objections were invited to the said notification.
70. The further case set up was that the previous owner of the land
was an illiterate person and he did not come to know about invitation to
the objections as the contents of invitation were never proclaimed in the
locality in which the land in suit is situated nor was any notice issued to
him nor any objections could be filed. The plaintiffs had taken several
other pleas regarding the publication of the Scheme under the U.P. Nagar
Mahapalika Adhiniyam Act-II of 1959 which came into force on 1st
February, 1960.
71. The Trial Court’s judgement further reveals that the plaintiff,
being aggrieved by the threatened dispossession from the land, filed
Civil Miscellaneous Writ Petition Nos.3188 of 1963 and 3491 of 1965
before this Court, and this Court had stayed the dispossession of the
plaintiffs during the pendency of the aforesaid writ petitions.
72. It also transpires from the judgment of Trial Court that the
plaintiffs had pleaded that second writ petition became necessary as
during the pendency of previous writ petition, the defendants initiated
some other proceedings.
73. It further transpires from the Trial Court’s judgment that the
further case set up by the plaintiffs was that when second Writ Petition
th
No.3491 of 1965 came up for final hearing on 26 October, 1967, it was
found that the final decision of disputes between the parties required
determination of question of fact, which could be properly determined in

17
WRIC No. - 27501 of 2008
th
a civil suit, therefore, this Court passed an order dated 26 October, 1967
dismissing the writ petition.
th
74. This Court in the order dated 26 October, 1967 granted further
th
time to the plaintiff up to 15 January, 1968 to serve the requisite
statutory notices and to file a civil suit so that plaintiffs may not be
prevented from seeking requisite reliefs from a competent Court of law.
75. The suit was contested by the defendants contending inter alia that
notice under Section 80 of CPC is illegal and invalid and occupation of
the plaintiffs over the land is illegal and unauthorized. It was stated that
the land acquisition proceedings for the land situated in Kalyanpur,
th
Panki Pandu Green Belt Scheme No.40 were commenced as early as 25
July, 1959 when admittedly, the plaintiffs had no right, title or interest in
th
the suit land, who purchased it on 20 August, 1962 during the pendency
of the acquisition proceeding at their own risk and plaintiff must suffer
the consequences of contravention of statutory provisions of law.
76. The defendants specifically pleaded that the plaintiffs have full
knowledge of the acquisition proceedings as before the purchase of the
said land, notice had been served on the plaintiff's predecessor in
interest, Ratan on 08.05.1962 and the plaintiffs themselves filed an
application for substitution of their names in place of Ratan before the
Land Acquisition Officer on 01.08.1969. Besides above, the defendants
have taken several other pleas.
77. Based on the pleadings of the parties, the Trial Court framed 15
issues, which are reproduced herein below:-
“1. Are the plaintiffs are owners and Bhumidhars of plots no.210, 221,
222, and 223?
2. Had the plaintiffs lawfully erected the boundary wall around the
plots? If so, was the demolition of the boundary wall without authority
and in contravention of the stay order? If so, its effect?
3. Was the previous owner not served with any notice of the proposed
scheme of acquisition of the land in dispute and the notification

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WRIC No. - 27501 of 2008
regarding the proposed amendment in the scheme? if so, if the scheme
not binding on the plaintiffs?
4. Had the previous owner failed to file objections notice? if so, its
effect?
5. Was the scheme not for a public purpose and the award was not
binding on the plaintiffs and was void ab-initio and an enforceable due
to reasons given in paras 19 and 20 of the plaint?
6. Was Shri Ratan predecessor in interest of the plaintiffs served with
any notice on 8.5.62 or 8.6.62? If so, its effect?
7. Were the plaintiffs or their predecessor not entitled to any notice
u/sec. 55 of U.P. Act VI of 1945.
8. Were the amendments of the original notification not in respect of the
suit land? If so, its effect?
9. Have the plaintiff no right to challenge the acquisition proceedings?
10. Whether the premises occupied by the defendant no.3 has been
declared a protected area? if so, its effect?
11. Whether the plaintiffs applied for substitution of their names in the
land acquisition proceedings? If so, with what result and its effect?
12. Whether the suit is barred by principles or res-judicata and
estoppel?
13. Are the defendants bonafide lessee without notice and if so, are they
protected U/sec. 41 of the TP. Act.?
14. Is the suit bad for want of notice as pleaded in para 22 of the W.S.
of the defendant no.4?
15. To what relief, if any as the plaintiffs entitled?”
78. The Trial Court after appreciating the facts and evidence on record
in detail recorded a finding that Ratan, the original tenure holder,
intentionally relinquished his right to challenge the acquisition
proceedings, therefore, the subsequent transfer of the land in suit in
favour of the plaintiffs would not confer any right to them to challenge
the acquisition proceeding which their predecessor Ratan himself had

19
WRIC No. - 27501 of 2008
lost by waiver. Relevant extract of the judgment of Trial Court is
reproduced herein below:-
“...that Ratan intentionally relinquished his right to challenge the
acquisition proceedings and similar silence is found in his statement
contained in page 82 of Ex. 43 clearly showing that he intentionally
relinquished his right to challenge the acquisition proceedings
amounting to waiver of his right and that too in writing giving it a place
of compromise or agreement that adequate compensation be awarded to
him and he does not challenge the proceedings...”.
79. The Trial Court though recorded a finding that the amendments in
the Scheme were not in respect of the suit land, but later on all the
irregularities stood regularized after the notices under Section 9 of the
Act, 1894 having been served on Ratan, the original tenure holder,
through Mohan Lal and his claim have been filed. Accordingly, the Trial
Court categorically recorded that plaintiffs are not the owners and
Bhumidhars of the plots in dispute. Relevant extract of the finding of the
Trial Court in this regard is reproduced herein below:-
“I further find that the amendments in the scheme were not in respect
of the suit land but later on all the irregularities stood regularised
after the notices U/sec. 9 of the land acquisition Act having been
served on Ratan through Mohan Lal and his claim having been filed. I
further find that the plaintiffs applied for the mutation of their names
before the land acquisition officer and the compensation has been
ordered to be paid to them instead of Ratan. I further find that the suit
is not barred by the principles of res-judicata but is barred by the
principles of estoppel and waiver. Thus, I find that the plaintiffs are
not the owners and Bhumidhars of the plots in suit.”
80. The judgment and decree passed by the Trial Court in suit was
assailed by the plaintiffs in Civil Appeal No.235 of 1975, which was also
dismissed by the First Appellate Court by judgment and decree dated
03.10.1981. The plaintiffs, thereafter, preferred Second Appeal No.2736
of 1981.

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WRIC No. - 27501 of 2008
81. In the affidavit filed in the Second Appeal in support of the stay
application, the plaintiffs had stated that they are in possession of the
land in dispute and their dispossession had remain stayed in the Writ
Petition No.3491 of 1965 by this Court as well as during the pendency of
the suit before the Trial Court and the appeal before the First Appellate
Court.
82. This Court admitted the Second Appeal No.2736 of 1981 on
03.11.1981. This Court also stayed the dispossession of the appellant.
The stay order passed by this Court on 04.11.1981 in the aforesaid
appeal reads as under:-
“Issue notice.
Meanwhile, the appellants shall not be dispossessed from the land in
suit.”
83. The record further reveals that Beliram had died on 26.05.1998
and petitioners submitted a Civil Misc. Substitution Application
No.62505 of 1998 for being substituted as legal heir of Beliram, which
was allowed by this Court and petitioner was substituted as legal heirs of
Late Beliram in the Second Appeal.
84. The finding that plaintiffs, namely, Beliram and Ram Lal were not
the owners and Bhumidhars of the plot in suit has attained finality after
the petitioners got the Second Appeal dismissed as infructuous by this
Court by judgment and order dated 28.07.2006. The petitioners are
bound by the said finding. The order of this Court dated 28.07.2006 is
reproduced herein below:-
“Sri P.K. Jain, appellant’s counsel states that appeal has become
infructuous.
It is accordingly dismissed as infructuous.”
85. At this stage, it would be apposite to consider whether petitioners
could file an application under Section 17 of the Act, 1973 read with
Section 48 of the Act, 1894 to get the property released in their favour.

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WRIC No. - 27501 of 2008
86. It is undisputed that the proceedings of acquisition had taken place
under the Act, 1945. Chapter IX of the Act, 1945 provides for acquisition
and disposal of land. Section 71 of the Act, 1945 deals with power to
acquire land under the Act, 1894 which is reproduced below:-
“ 71. Power to acquire land under the Land Acquisition Act, 1894- (1)
The Board may, with the previous sanction of the State Government,
acquire land under the provisions of the Land Acquisition Act, 1894, as
modified by the provisions of this Act, for the carrying out of any of the
purposes of this Act.
(2) (a). In any case in which the State Government has sanctioned an
acquisition of land, in any area comprised in an improvement scheme,
which is not required for the execution of the scheme, the owner of the
land, or any person having an interest therein, may at any time before
the land is acquired make an application to the Board, requesting that
the acquisition of the land should be abandoned in consideration of the
payment by him of a sum to be fixed by the Board in that behalf.
(b) If an application made under Cl. (a) of sub-section (2) is accepted
by the Board, it shall proceed to fix the sum, in consideration of which
the acquisition of the land may be abandoned, and shall also fix the
terms and conditions to be observed by the applicant.
(c) After the sum and the terms and conditions mentioned in Cl. (b) have
been fixed by the Board and accepted by the applicant, all land
acquisition proceedings in respect of such land shall be quashed, and no
betterment tax shall be levied.
(d) If the applicant at any time does not comply with the terms and
conditions fixed under Cl. (b), the Board may acquire the land and the
money, if any, paid by the applicant shall be refunded to him without
any interest.”
87. Section 114 of the Act, 1945 deals with the modification of Land
Acquisition Act, 1894 which reads as under:-
“114. Modification of the Land Acquisition Act, 1894- For the
purpose of the acquisition of land for the Board under Land
Acquisition Act, 1894-

22
WRIC No. - 27501 of 2008
(a). The said Act shall be subject to the modifications specified in the
Schedule to this Act;
(b). The award of the Tribunal shall be deemed to be the award of the
Court under the Land Acquisition Act, 1894.”
88. Para-14 of Schedule (referred to in Section 71 and Section 114) in
the context of the present case is relevant and is being reproduced herein
below:-
“14. New section 48-A. -After section 48, the following shall be deemed
to be inserted, namely,-
"48-A. Compensation to be awarded when land not required within two
years. (1) If within a period of two years from the date of the publication
of the declaration under section 6 in respect of any land, the Collector
has not made an award under section 11, with respect to such land, the
owner of the land shall, unless he has been to a material extent
responsible for the delay, be entitled to receive compensation for the
damage suffered by him in consequence of the delay.
(2) 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."
89. Section 71 of the Act, 1945 confers power upon the Board to
acquire the land under the provisions of Act, 1894 as modified by the
provisions of this Act i.e. The Act, 1945 with the previous sanction of the
State Government.
90. So the Act, 1894 has been adopted by the Act, 1945 and shall
apply as modified by the provisions of Act, 1945. The application of Act,
1894 in the context of Act, 1945 is subject to the modification specified
in the Schedule to this Act i.e. ‘Act, 1945’.
91. If we take a glance at para 14 of the Schedule, Section 48-A has
been inserted after Section 48, but reading of Schedule does not disclose
that Section 48 had also been adopted and incorporated by the Schedule
in the Act 1945.
92. Once it is manifestly clear from reading of Section 71, 114 and
Schedule of the Act, 1945 that Section 48 of the Act, 1894 has not been

23
WRIC No. - 27501 of 2008
adopted and incorporated in the Act, 1945, there was no power with the
State Government to release the land inasmuch as the acquisition had
taken place under the Act, 1945 and provisions of the Act, 1894 have
been adopted and incorporated by virtue of Section 71 and Section 114
and the Schedule of the Act, 1945 with certain modifications, and
Section 48 had not been incorporated, therefore, the land could be
released only if there was any provision in the Act, 1945 authorizing the
State Government to release the land.
93. It is also pertinent to note that admittedly, the land had been
acquired under the Act, 1945 and Act, 1894 had been adopted and
incorporated in the Act, 1945 by virtue of Section 71 and 114 of the Act
1945, and after promulgation of U.P. Municipal Corporation Act, 1959,
the Act, 1945 stood repealed by virtue of Section 581 of the Act 1959.
Therefore, once the Act, 1945 had been repealed by Section 581 of the
Act, 1959 and the Act, 1894 had been adopted in the Act, 1945 by virtue
of Sections 71 and 114 of the Act, 1945, therefore, with the repeal of the
Parent Act i.e. The Act, 1945, the provisions of Act, 1894, which had
been adopted by Section 71 and 114 of the Act, 1945, have lost its
existence and have no application. Thus, Section 48 of the Act, 1894
cannot be invoked to file an application for release of land.
94. Similarly, Section 17 of the Act, 1973 would also not attract in the
instant case as the land was acquired under the Act, 1945 and not under
the Act, 1973, therefore, the provisions of Section 17 had no application
nor it could be invoked by the petitioners to get the land released.
95. The Division Bench of this Court dismissed the Civil Misc. Writ
Petition No.37534 of 2004 ( Smt. Sukhdeyi and Others Vs. State of U.P.
and Others) wherein one of the relief sought was that a mandamus be
issued to the competent authority under Section 17 of the Act, 1973 for
restoring back the land to the petitioners as it has not been utilized in
spite of having been acquired for the Kanpur Development Authority.
96. In the said case, the land was acquired under the notifications
issued under Chapter XIV of the Nagar Mahapalika Adhiniyam, 1959

24
WRIC No. - 27501 of 2008
(U.P. Act No.II of 1959) that were published in the Gazette on
28.04.1962 and 05.10.1963.
97. On the date when the land was acquired, the Kanpur Development
Authority was not in existence. This Court held as follows:-
“Having heard learned counsel for the parties and the learned Standing
Counsel for the State we find that Section 17 is designed to impose an
obligation on the State Government to acquire any land for the Authority
in terms of the 1894 Act. The same however carves out a proviso that if
after the expiry of five years from the date of such acquisition, the land
has not been utilized, then the tenure holders can apply to the State
Government for restoration of their land, and on a satisfaction to that
effect the restoration can be allowed provided the tenure holders deposit
the charges that were incurred in connection with the acquisition
together with interest @ 12%. Section 17 is extracted hereinunder:
"17. Compulsory acquisition of land - (1) If in the opinion of the
State Government any land is required for the purpose of
development, or for any other purpose, under this Act, the State
Government may acquire such land under the provisions of the
Land Acquisition Act, 1894:
(2) …..."
A perusal of the said provisions would indicate that there are two sub-
Sections in Section 17. The first gives a discretion given to the
Government that if the land is not utilized for the purpose for which it
was acquired then the State Government can take action in this regard.
In the instant case this is not a land acquired under the 1894 Act as
contemplated under Section 17 by the respondent authority. The land
was acquired much prior to the enforcement of the 1973 Act in 1962 and
1963 under the provisions of the 1959 Act referred to hereinabove.
There is no such provision in the 1959 Act at par with Section 17 of the
1973 Act whereunder any such power was available with the State
Government for restoring the land back to the tenure holders. Upon
acquisition, the Scheme could have been abandoned with the approval
of the State Government under Section 367-A of the 1959 Act or the
land could have been disposed off by the Corporation under Section

25
WRIC No. - 27501 of 2008
368. No such action was taken or attempted by the tenure holders. The
acquisition therefore became complete free from all encumbrances. Any
revenue entry in favour of the petitioners continuing thereafter, has no
legal effect and any claim of possession would be unlawful.
The Development Authority succeeded to the assets of the Nagar
Mahapalika after the coming into force of the 1973 Act. The acquisition
was therefore not under the 1894 Act or in terms of Section 17 of the
1973 Act. The said provision would therefore not apply on the facts of
the present case as the acquisition was under the 1959 Act as explained
above.”
98. It is also pertinent to note that the finding recorded by the District
Magistrate in his report dated 27.01.2005 that the possession of the land
was not taken is incorrect, inasmuch as in the suit, the respondents had
categorically set up a case that possession of the predecessor of the
petitioners and petitioners over the land in question was unauthorized
and illegal, as the land in question was already acquired, and the
petitioners were not the owners and Bhumidars of the land.
99. The petitioners did not disclose that an injunction order was
operating in the writ petition filed by the predecessor of the petitioners
before this Court challenging the acquisition proceeding, and also during
the pendency of suit, appeal and even in the Second Appeal filed before
this Court. Therefore, respondents could not take the possession because
of the injunction order operating in the aforesaid proceedings against the
respondents by which the respondents were restrained from evicting the
petitioners. Therefore, it was not a case where respondents were at fault
or there was any willful default on the part of respondents in taking over
the possession, however, the respondents could not take the possession
only for the reason that the injunction order was operating against the
respondents restraining them from dispossessing the petitioners from the
land in question.
100. Now, in the light of the aforesaid facts, we would proceed to
examine whether report dated 27.01.2005 of the District Magistrate,

26
WRIC No. - 27501 of 2008
which was the basis for releasing the land, was obtained by concealing
material fact.
101. Following facts will establish that the report of the District
Magistrate dated 27.01.2005 was obtained by concealing material fact:-
A- It is admitted by the petitioners that in the plaint of Civil Suit
No.129 of 1968 that when the acquisition proceeding was conducted,
one Ratan S/o Kewal caste Gadaria was the original tenure
holder/owner of the land in question, and the Notification for acquisition
of land under Section 53 of the Act, 1945 was issued on
18.07.1959/25.07.1959 and the Notification under Section 60 of the Act,
1945 was issued on 23.12.1959.
B. The land was purchased by the predecessor of the petitioners,
namely Beliram and Ram Lal from Ratan by registered sale deed dated
th
20 August, 1962.
C. Perusal of the report of the District Magistrate discloses that the
aforesaid facts were not considered by the District Magistrate in his
report dated 27.01.2005. The aforesaid fact has also not been disclosed
by the petitioners either in the writ petition or in the supplementary
affidavit filed by them.
D. So far as the fact regarding non-payment of awarded amount is
concerned, it is not disputed on record that the award was prepared and
the awarded amount of Rs.598/- was deposited with the RD account. It
has also come on record that the revised compensation of Rs.9964.20/-
was not paid by the respondents. The fact that the awarded amount had
been deposited is not disputed, and the petitioners or their predecessor
could get the aforesaid amount released in their favour.
E. So far as the fact that revised amount is not paid to the petitioners
is concerned, the petitioners could avail appropriate remedy for release
of the said amount, but this ground cannot be considered to be a vital
ground on which the land can be released.

27
WRIC No. - 27501 of 2008
F. The petitioners did not disclose their right over the land in the
writ petition, and when the issue of locus of petitioners to file writ
petition was raised by the respondents in their counter affidavit, the
petitioners filed supplementary affidavit giving the details as to how they
became owners of the land, but they did not disclose the fact that the
original tenure holder of the land was Ratan against whom the
acquisition proceeding was initiated, and the predecessor of the
petitioners purchased the land after publication of notification under
Section 60 of the Act, 1945 on 23.12.1959.
G. The aforesaid fact has not been disclosed by the petitioners
th
perhaps for the reason that the sale deed dated 20 August, 1962
executed by original tenure holder Ratan in favour of the predecessor of
the petitioners was void in view of the fact that once the land had been
acquired in accordance with law, the land vests in the State Government
free from all encumbrances and cannot be transferred by the original
tenure holder, and if any transfer of land takes place after acquisition
proceeding, the only right which the predecessor of the petitioners being
vendee had in law was that they were entitled to receive compensation of
the acquired land.
102. The following fact has direct bearing on the merits of the present
case:-
A. The fact that the original suit had been instituted by the
predecessor of the petitioners, Beliram and Ramlal in respect of
challenging the acquisition proceeding and seeking decree of
declaration.
B. The suit was dismissed by the Trial Court by judgement and
decree dated 25.04.1975 by recording a categorical finding that
subsequent transfer of the plots in suit in favour of plaintiff
(predecessor) would not confer any right to them to challenge the
acquisition proceeding which Ratan, the original tenure holder, himself
has lost by principle of waiver.

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C. The aforesaid finding has been affirmed by the First Appellate
Court in Civil Appeal No.235 of 1975, and Second Appeal No.2736 of
1981 preferred against the judgement of Trial Court and First Appellate
Court was got dismissed as infructuous.
D. The Trial Court had recorded a categorical finding that the
original tenure holder Ratan had waived his right to challenge
acquisition proceeding, the subsequent transfer of land to the
predecessor of the petitioners would not confer any right to challenge
acquisition proceeding. The aforesaid finding is binding upon the
petitioners.
E. It is trite law that the plaintiffs cannot have a better title than
what the original owner had. Therefore, the sale deed did not confer
any right over the land upon the petitioners in view of the aforesaid
finding of the Trial Court, and thus, the petitioners also do not have any
locus, title or vested right over the land in question.
F. The petitioners did not disclose the institution of Civil Suit No.129
of 1968, filing of Civil Appeal No.235 of 1975 against the dismissal of
civil suit and the Second Appeal No.2736 of 1981 against the dismissal
of civil suit as well as civil appeal in the writ petition.
G. In the supplementary affidavit, he had cursorily made a statement
that institution of suit had no bearing on the fate of the present case.
103. The aforementioned facts establishes beyond doubt that the result
of the suit had direct bearing on the merits of the present writ petition,
yet the petitioners did not choose to give details of filing of civil suit,
first appeal and second appeal.
104. Perusal of the report of the District Magistrate reveals that
impression had been created that the possession of the land had not been
taken by the State Government, but the facts on record are otherwise.
105. The predecessor of the petitioners preferred Civil Miscellaneous
Writ Petition Nos.3188 of 1963 and 3491 of 1965 in which they obtained
a stay order restraining the respondent-State from dispossessing the

29
WRIC No. - 27501 of 2008
predecessor of the petitioners from the land in question in the said
appeal.
106. Subsequently, the aforesaid writ petitions were got dismissed as
not pressed with liberty to institute the civil suit, and in the civil suit, the
plaintiff had got a temporary injunction order restraining the respondent
from dispossessing the predecessors of petitioners from the land in
question. The stay order granted by the Trial Court had continued in civil
appeal, and thereafter, in the second appeal. The stay order was
discharged after the petitioners got the Second Appeal dismissed as
infructuous .
107. In the suit, the respondent has stated that the predecessor of the
petitioners had been in unauthorized and illegal possession over the land
in question. So, it is not a case where respondent had not voluntarily
taken possession over the land, but the possession of the land could not
be taken by the respondent because of the interim orders passed by this
Court in Civil Miscellaneous Writ Petition Nos.3188 of 1963 and 3491
of 1965, and thereafter, in Civil Suit No.129 of 1968, First Appeal
No.235 of 1975 and Second Appeal No.2736 of 1981. Thus for the
aforesaid reasons, the possession of the land could not be taken by the
respondents for the reason beyond its control.
108. The respondent has also stated before the Trial Court in the suit
that the land had been acquired for Kalyanpur, Panki Pandu Town
Expansion and Green Belt Scheme No.40 which has been executed, and
therefore, statement made in the report of the District Magistrate dated
27.01.2005 that though the land was acquired in the year 1959, but the
Scheme for which the land was acquired had not been executed is false,
incorrect and against the record. Thus, in the light of Section 17 of the
Act 1973, the application of the petitioners for release of the land could
not be considered.
109. The report of District Magistrate dated 27.01.2005 reflects that the
District Magistrate while submitting the report failed to consider that the
acquisition proceeding had taken place under the Act, 1945, and the Act,

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1945 adopts the procedure of acquisition provided in the Act, 1894 by
virtue of Section 71 and Section 114 of the Act, 1945 with modifications
prescribed in the Schedule (referred to in Section 71 and 114), and once,
the Parent Act i.e. Act, 1945 had been repealed by Section 581 of U.P.
Municipal Corporation Act, 1959, therefore, Section 48 of the Act, 1894
was not applicable, therefore, Section 48 of the Act, 1894 could not be
invoked for release of the land from acquisition.
110. Further, the report of the District Magistrate discloses that he has
invoked Section 17 of the Act, 1973 for release of the land which cannot
be invoked in the facts of the present case for the reason that the land
had been acquired under the Act, 1945 whereas, Section 17 of the Act,
1973 could be invoked with respect to land which have been acquired
for development of an area under the Act, 1973, and the purpose for
which the land was acquired under the Act, 1973 had not been
implemented. Therefore, invocation of Section 17 of the Act, 1973 by
the District Magistrate in recommending the application of the
petitioners for release of land was completely misplaced.
111. Based upon the said report, it transpires from the Notification
dated 03.05.2006 that the Director, Directorate of Land Acquisition sent
a letter dated 23.02.2005 forwarding the report of the District Magistrate
dated 27.01.2005 for consideration of release of land in the light of the
Government Order dated 19.06.2002.
112. The said Notification further reveals that the objection was sought
from the Housing and Urban Planning Development Department, and
when no objection was raised by the Housing and Urban and Planning
Development Department, the land was released by the Special
Secretary under Section 48 (1) of the Land Acquisition Act, 1894 (as
amended by Act, 1984).
113. In the case of G. Narayanaswamy Reddy (Dead) By LRS. and
Another Vs. Government of Karnataka and Another (1991) 3 SCC
261, the Apex Court dismissed the appeal of the appellant on the ground
that the appellant did not disclose the stay orders which was highly

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material for deciding the question of delay in making award under
Section 11-A of the Land Acquisition Act. The relevant extract of the
paragraph 2 of the judgement is being reproduced below.
“2….Curiously enough, there is no reference in the special leave
petitions to any of the stay orders and we came to know about these
orders only when the respondents appeared in response to the notice
and filed their counter-affidavit. In our view, the said interim orders
have a direct bearing on the question raised and the non-disclosure
of the same certainly amounts to suppression of material facts. On
this ground alone, the special leave petitions are liable to be rejected.
It is well settled in law that the relief under Article 136 of the
Constitution is discretionary and a petitioner who approaches this
Court for such relief must come with frank and full disclosure of
facts. If he fails to do so and suppresses material facts, his
application is liable to be dismissed. We accordingly dismiss the
special leave petitions.”
114. The Apex Court in the case of V. Chandrasekaran and Another
Vs. Administrative Officer and Others (2012) 12 SCC 133 has held that
a person who seeks equity must do equity. It further held that the
pleadings containing false, misleading or inaccurate statements to
achieve ulterior purpose amounts to abuse of process of Court and such
person must not be permitted to profit from frivolous litigation.
Paragraph nos.44 to 48 of the said judgement are being reproduced
herein below:-
“44. The appellants have not approached the court with clean hands, and
are therefore, not entitled for any relief. Whenever a person approaches a
court of equity, in the exercise of its extraordinary jurisdiction, it is
expected that he will approach the said court not only with clean hands
but also with a clean mind, a clean heart and clean objectives. Thus, he
who seeks equity must do equity. The legal maxim “Jure Naturae Aequum
Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem”,
means that it is a law of nature that one should not be enriched by
causing loss or injury to another. (Vide: Ramjas Foundation v. Union of

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WRIC No. - 27501 of 2008
India AIR 1993 SC 852, Nooruddin v. K.L. Anand (1995) 1 SCC 242 and
Ramniklal N. Bhutta v. State of Maharashtra AIR 1997 SC 1236.
45. The judicial process cannot become an instrument of oppression or
abuse, or a means in the process of the court to subvert justice, for the
reason that the court exercises its jurisdiction, only in furtherance of
justice. The interests of justice and public interest coalesce, and therefore,
they are very often one and the same. A petition or an affidavit containing
a misleading and/or an inaccurate statement, only to achieve an ulterior
purpose, amounts to an abuse of process of the court.
46. In Dalip Singh v. State of U.P. (2010) 2 SCC 114, this Court noticed
an altogether new creed of litigants, that is, dishonest litigants and went
on to strongly deprecate their conduct by observing that the truth
constitutes an integral part of the justice delivery system. The quest for
personal gain has become so intense that those involved in litigation do
not hesitate to seek shelter of falsehood, misrepresentation and
suppression of facts in the course of court proceedings. A litigant who
attempts to pollute the stream of justice, or who touches the pure fountain
of justice with tainted hands, is not entitled to any relief, interim or final.
47. The truth should be the guiding star in the entire judicial process.
“Every trial is a voyage of discovery in which truth is the quest”. An
action at law is not a game of chess, therefore, a litigant cannot
prevaricate and take inconsistent positions. It is one of those fundamental
principles of jurisprudence that litigants must observe total clarity and
candour in their pleadings. (Vide: Ritesh Tewari v. State of U.P. (2010) 10
SCC 677 and Amar Singh v. Union of India (2011) 7 SCC 69.)
48. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeira
(2012) 5 SCC 370, this Court taking note of its earlier judgment in
Ramrameshwari Devi v. Nirmala Devi (2011) 8 SCC 249 held: (Maria
Margarida case, SCC p.393, para 81)
“81. False claims and defences are really serious problems with
real estate litigation, predominantly because of ever- escalating
prices of the real estate. Litigation pertaining to valuable real
estate properties is dragged on by unscrupulous litigants in the
hope that the other party will tire out and ultimately would settle
with them by paying a huge amount. This happens because of the

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enormous delay in adjudication of cases in our courts. If
pragmatic approach is adopted, then this problem can be
minimised to a large extent.”
The Court further observed that wrongdoers must be denied profit
from their frivolous litigation, and that they should be prevented
from introducing and relying upon false pleadings and forged or
fabricated documents in the records furnished by them to the
court.”
115. At this stage, it would be useful to refer to judgement of the Apex
Court in the case of K. Jayaram and Others Vs. Bangalore
Development Authority and Others (2022) 12 SCC 815 wherein the
Apex Court has held that the petitioner, while invoking the jurisdiction
of High Court under Article 226 of the Constitution of India, must
approach with clean hands by disclosing all material facts within his
knowledge.
116. It further held that concealment or suppression of material facts
would amount to playing fraud with the Court as well as opposite party,
which itself is sufficient to dismiss the writ petition. It also held that the
Writ Court while exercising extraordinary power would indeed bear in
mind the conduct of the party which is invoking such jurisdiction.
Paragraph nos.9, 10, 14 & 15 of the aforesaid judgement are being
reproduced below:-
“9. The documents produced by the BDA would clearly disclose that
the entire extent of 5 acres 9 guntas of land including 12 guntas of
kharab-B land was notified for acquisition. M. Krishna Reddy, the
father of the appellants, claimed to be the owner of 1 acre 26 guntas of
lands in the said survey number and it was further contended that 1
acre and 18 guntas have been acquired and 8 guntas was left out from
the acquisition. It was further contended that BDA had formed the sites
in the said 8 guntas of land left out from acquisition and allotted them
to Respondents 5 and 6. Admittedly, the appellants had filed OS
No.3936 of 1999 before the Additional City civil court against the BDA
seeking permanent injunction while pleading identical facts and urging

34
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similar grounds. The said suit was dismissed by the trial court. The
appeal filed against the said judgment of the trial court was also
dismissed by the High Court. The appellants have not disclosed the
filing of the suit, its dismissal by the civil court and the confirmation of
the said judgment by the High Court in the writ petition. It is clear that
the appellants have suppressed these material facts which are relevant
for deciding the question involved in the writ petitions. Thus, the
appellants have not come to the court with clean hands.
10. It is well-settled that the jurisdiction exercised by the High Court
under Article 226 of the Constitution of India is extraordinary,
equitable and discretionary and it is imperative that the petitioner
approaching the writ court must come with clean hands and put
forward all facts before the court without concealing or suppressing
anything. A litigant is bound to state all facts which are relevant to the
litigation. If he withholds some vital or relevant material in order to
gain advantage over the other side then he would be guilty of playing
fraud with the court as well as with the opposite parties which cannot
be countenanced.
14. It is necessary for us to state here that in order to check multiplicity
of proceedings pertaining to the same subject-matter and more
importantly to stop the menace of soliciting inconsistent orders through
different judicial forums by suppressing material facts either by
remaining silent or by making misleading statements in the pleadings
in order to escape the liability of making a false statement, we are of
the view that the parties have to disclose the details of all legal
proceedings and litigations either past or present concerning any part
of the subject-matter of dispute which is within their knowledge. In
case, according to the parties to the dispute, no legal proceedings or
court litigations were or are pending, they have to mandatorily state so
in their pleadings in order to resolve the dispute between the parties in
accordance with law.
15. In the instant case, since the appellants have not disclosed the
filing of the suit and its dismissal and also the dismissal of the appeal
against the judgment of the civil court, the appellants have to be non-
suited on the ground of suppression of material facts. They have not

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come to the court with clean hands and they have also abused the
process of law. Therefore, they are not entitled for the extraordinary,
equitable and discretionary relief.”
117. A Division Bench of this Court in the case of Dabur India Ltd.
Vs. State of U.P. and Others 2002 All LJ 1811 dismissed the writ
petition in exercise of extraordinary power under Article 226 on the
ground that the petitioner was guilty of concealing material fact.
118. The Apex Court in the case of U.P. Awas Evam Vikas Parishad
through Housing Commissioner and Another Vs. Noor Mohammad
and Others 2021 SCC OnLine SC 1266 has held that the power to issue
Notification would include a power to rescind the Notification. In the
said case, the appellant, UP State Awas Evam Vikas Parishad, challenged
the order of the High Court setting aside the Notification canceling a
previous Notification issued under Section 48 (1) of the Act, 1894 for
release of the land of the respondents from acquisition.
119. The High Court had set aside the Notification by which the State
Government had withdrawn/rescinded the earlier Notification under
Section 48(1) releasing the land from acquisition on two grounds
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); (ii) that once a Notification under Section 48 (1) of the
Land Acquisition Act is issued, the land gets vested in the original owner
and that therefore, divesting cannot take place without following the
process of acquisition as enunciated in the Statute.
120. The Apex Court in respect to the first ground, which we have
noted above, on which the High Court set aside the notification, found
the said ground not sustainable in view of Section 21 of the General
Clauses Act, 1897 which provides the power to issue, to include power
to add to, amend, vary or rescind notifications, orders, rules or bye-laws.
Paragraph nos.11, 15 and 16 of the aforesaid judgement are being
reproduced below:-

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“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
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.
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 07.04.2003 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
07.04.2003. 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 respondents-land owners contended
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 immovable 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.”

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121. In the aforesaid judgement, the Apex Court held that exemption of
land from acquisition is an administrative act. Paragraph nos. 21 to 24 of
the judgment of Apex Court in the case of U.P. Awas Evam Vikas
Parishad (supra) are being reproduced below.
“21. 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
(Gwalior) M.P. Ltd. v. CIT (2018) 4 SCC 494 is misplaced.
22. 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 quasi-judicial order passed by
the Lt. Governor on a statutory appeal. The quasi judicial order
created a vested right which was given effect through a notification.
Therefore, this Court held in para 35 of the decision in H.C. Suman
that the vested right created by a quasi-judicial 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.
23. 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 quasi-judicial 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
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.

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24. Therefore, we reject the argument that a Notification under Section
48(1) is a quasi-judicial 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).”
122. Since, the predecessors of petitioners had purchased the land from
Ratan, the original tenure holder, therefore, the only right which the
predecessor of the petitioners had was to receive compensation.
123. The predecessors of the petitioners could withdraw the awarded
amount which had been deposited by the respondents in the RD account,
and they could have further availed the remedy available to them under
law for release of the revised compensation.
124. We have dealt in detail above that the earlier Notification dated
03.05.2006 was obtained by concealing material fact that predecessors of
the petitioners had purchased the land after the commencement of
acquisition proceeding from the original tenure holder who had no title
or interest in the property. Therefore, the petitioners, who are claiming to
th
be heirs of vendee of sale deed dated 20 August, 1962 cannot have any
title over the land in dispute. In such view of the fact, the land could not
be released in favour of the petitioners.
125. The law is settled that fraud vitiates every solemn act. In this
respect, it would be apt to refer to the judgement of the Apex Court in
the case of Sukh Sagar Medical College and Hospital Vs. State of
Madhya Pradesh and Others (2021) 13 SCC 587 wherein the Apex
Court has held that the fraud can either be actual or constructive fraud.
Paragraph nos.20 & 21 of the said judgement are being reproduced
below:-
“20. As to when it would be a case of fraud played on the State
Government, would depend on whether it was an attempt by the
appellant to present facts, so as to misrepresent the State. The fraud can
either be actual or constructive fraud. The actual fraud is a
concealment or false representation through an intentional or reckless
statement or conduct that injures another who relies on it in acting,
whereas the constructive fraud is unintentional deception or

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misrepresentation that causes injury to another. The actual or
th
constructive fraud as predicated in Black’s Law Dictionary, 11 Edn. is
as follows:
“actual fraud. A concealment or false representation through an
intentional or reckless statement or conduct that injures another
who relies on it in acting. – Also termed fraud in fact; positive
fraud; moral fraud.
constructive fraud. 1. Unintentional deception or misrepresentation
that causes injury to another. 2. Fraud in law. Fraud that is
presumed under the circumstances, without regard to intent, usu.
through statutorily created inference. Fraud may be presumed, for
example, when a debtor transfers assets and thereby impairs
creditors’ efforts to collect sums due. This type of fraud arises by
operation of law, from conduct that, if sanctioned, would (either in
the particular circumstance or in common experience) secure an
unconscionable advantage, irrespective of evidence of an actual
intent to defraud. – Also termed legal fraud; fraud in contemplation
of law; equitable fraud; fraud in equity.”
21. It may be also useful to advert to the meaning of “actionable
fraud” in the Sixth Edn. of the same Law dictionary, as follows:
“Actionable fraud. Deception practiced in order to induce another
to part with property or surrender some legal right. A false
representation made with an intention to deceive; such may be
committed by stating what is known to be false or by professing
knowledge of the truth of a statement which is false, but in either
case, the essential ingredient is a falsehood uttered with intent to
deceive. To constitute “actionable fraud,” it must appear that
defendant made a material representation; that it was false; that
when he made it he knew it was false, or made it recklessly without
any knowledge of its truth and as a positive assertion; that he
made it with intention that it should be acted on by plaintiff; that
plaintiff acted in reliance on it; and that plaintiff thereby suffered
injury…. Essential elements are representation, falsity, scienter,
deception, reliance and injury.”

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126. In view of the aforesaid deliberation by us, it is abundantly clear
that the Notification dated 03.05.2006 was obtained by the petitioners by
playing fraud and concealing material facts.
127. Now coming to the further submission of learned counsel for the
petitioners that the impugned order has been passed by the authority on
erroneous ground, it is only the concerned Department for whom the
land had been acquired is authorized to release the land under the
Government Order dated 15.09.2006 inasmuch as the Government Order
dated 15.09.2006 would not operate retrospectively, and further, under
the Rules, 1975, it is the Revenue Department which is vested with the
jurisdiction in respect of the Act, 1894.
128. So far as the aforesaid contention of learned counsel for the
petitioners is concerned, the record discloses that when the Notification
dated 03.05.2006 releasing the land was issued, the Government Order
dated 19.06.2002 was applicable, and in said Government Order, the
land could be released by the Revenue Department.
129. Even under the Rules, 1975, it is the Revenue Department which
is vested with the jurisdiction in respect of Act, 1894. Therefore, it is
manifest on record that on the date when the Notification dated
03.05.2006 was issued, it was the Revenue Department which was
authorized to release the land.
130. However, we have held above that the land had been acquired
under the Act, 1945, and Section 48 of the Act, 1894 was not adopted in
the Act, 1945 which is evident from the Schedule (referred to in Sections
71 and 114). Further, even if we accept the contention of learned counsel
for the petitioners that Section 48 of the Act, 1894 has been incorporated
in the Act, 1945, even then no application for release of land under
Section 48 would lie inasmuch as by the repeal of the Parent Act i.e. Act,
1945, the provisions of Act, 1894 which had been incorporated in the
Parent Act had also lost its existence.
131. Therefore, we are of the view that neither the Revenue
Department, who was authorized to deal with Act, 1894, nor the

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concerned Department under whom the land comes had any power to
release the land.
132. Now, the further contention, which has been advanced by the
learned counsel for the petitioners is that the impugned order had been
passed without following the principles of natural justice as no notice
and opportunity of hearing was given to the petitioners before passing
the impugned order.
133. Though, it is true that if an order passed by the authority or quasi-
judicial authority or Tribunal prejudices the rights of a person, the
fairness of judicial process demands that such person should be given an
opportunity of hearing as it is settled law that principles of natural justice
are integral part of Article 14 of the Constitution of India.
134. The law is no more res-integra that the principle of natural justice
is applicable even though if an order or decision of the administrative or
quasi-judicial authority prejudices or affects the rights of a person, even
though it was not statutorily required, but it is also equally settled that
the said principles is not absolute and would depend upon the facts of the
case. There is an exception to the aforesaid law enunciated by the Courts
that if the observance of principles of natural justice in a given case is
useless formality or non-observance of it does not prejudice the
concerned party, it is not necessary to adhere to the principles of natural
justice.
135. In other words, there may be a case that a fair hearing would make
no difference or would not change ultimate conclusion, then there is no
legal duty cast upon the authority to follow the principles of natural
justice because, in such situation, fair procedures appear to serve no
purpose since the right result can be secured without according such
treatment to the concerned person, and in such cases, the Courts are not
obligated to strike down the action and refer the matter back to the
authorities to take fresh decision after complying with the principles of
natural justice. Therefore, every violation of facet of principles of natural
justice may not lead to a conclusion that the order passed is null and

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void. Therefore, the validity of such order is to be tested on the
touchstone of the prejudice caused to the individual against whom such
order has been passed.
136. In S.L. Kapoor Vs. Jagmohan and Others (1980) 4 SCC 379 , the
Apex Court in paragraph no.24 has held as under:-
“24. The matter has also been treated as an application of the general
principle that justice should not only be done but should be seen to be
done. Jackson's Natural Justice (1980 Edn.) contains a very interesting
discussion of the subject. He says:
The distinction between justice being done and being seen to be done
has been emphasized in many cases...
The requirement that justice should be seen to be done may be
regarded as a general principle which in some cases can be satisfied
only by the observance of the rules of natural justice or as itself
forming one of those rules. Both explanations of the significance of
the maxim are found in Lord Widgery C.J's judgment in R. v. Home
Secretary (1977) 1 W.L.R. 766, 772 Ex. P. Hosenball, where after
saying that "the principles of natural justice are those fundamental
rules, the breach of which will prevent justice from being seen to be
done" he went on to describe the maxim as "one of the rules generally
accepted in the bundle of the rules making up natural justice".
It is the recognition of the importance of the requirement that justice is
seen to be done that justifies the giving of a remedy to a litigant even
when it may be claimed that a decision alleged to be vitiated by a breach
of natural justice would still have been reached had a fair hearing been
given by an impartial tribunal. The maxim is applicable precisely when
the Court is concerned not with a case of actual injustice but with the
appearance of injustice or possible injustice. In Altco Ltd. v. Sutherland
(1971) 2 Lloyd's Rep. 515 Donaldson, J., said that the court, in deciding
whether to interfere where an arbitrator had not given a party a full
hearing was not concerned with whether a further hearing would
produce a different or the same result. It was important that the parties
should not only be given justice, but, as reasonable men, know that they
had justice or "to use the time hallowed phrase" that justice should not

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only be done but be seen to be done. In R. v. Thames Magistrates’ Court,
Ex.P. Polemis (1974)1 W.L.R. 1371, the applicant obtained an order of
certiorari to quash his conviction by a stipendiary magistrate on the
ground that he had not had sufficient time to prepare his defence. The
Divisional Court rejected the argument that, in its discretion, it ought to
refuse relief because the applicant had no defence to the charge.
It is again absolutely basic to our system that justice must not only be
done but must manifestly be seen to be done. If justice was so clearly not
seen to be done, as on the afternoon in question here, it seems to me that
it is no answer to the applicant to say:
'Well, even if the case had been properly conducted, the result would
have been the same'. That is mixing up doing justice with seeing that
justice is done (per Lord Widgery C.J. at page. 1375).
In our view the principles of natural justice know of no exclusionary rule
dependent on whether it would have made any difference if natural
justice had been observed. The non-observance of natural justice is itself
prejudice to any man and proof of prejudice independently of proof of
denial of natural justice is unnecessary. It will comes from a person who
has denied justice that the person who has been denied justice is not
prejudiced. As we said earlier where on the admitted or indisputable
facts only one conclusion is possible and under the law only one penalty
is permissible, the Court may not issue its writ to compel the observance
of natural justice, not because it is not necessary to observe natural
justice but because Courts do not issue futile writs. We do not agree with
the contrary view taken by the Delhi High Court in the judgment under
appeal.”
137. In Aligarh Muslim University and Others Vs. Mansoor Ali Khan
(2000) 7 SCC 529, the Apex Court in paragraph no.23 reiterated the law
enunciated in the case of S. L. Kapoor (supra) that on admitted or
indisputable facts only one view is possible, then the principle of natural
justice is merely a formality as it does not prejudice the concerned
person. Paragraph nos.24, 25 & 26 of the said judgement are being
reproduced herein below:-

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“24. The principle that in addition to breach of natural justice,
prejudice must also be proved has been developed in several cases. In
K.L. Tripathi v. State Bank of India ( 1984) 1 SCC 43, Sabyasachi
Mukherji, J. ( as he then was) also laid down the principle that not mere
violation of natural justice but de facto prejudice (other than non-issue
of notice) had to be proved. It was observed, quoting Wade’s
Administrative Law (5th Edn. pp.472-475) as follows: ( para 31)
"[1]t is not possible to lay down rigid rules as to when principles
of natural justice are to apply, nor as their scope and
extent ....There must have been some real prejudice to the
complainant; there is no such thing as a merely technical
infringement of natural justice. The requirements of natural justice
must depend on the facts and circumstances of the case, the nature
of the inquiry, the rules under which the tribunal is acting, the
subject matter to be dealt with, and so forth".
Since then, this Court has consistently applied the principle of
prejudice in several cases. The above ruling and various other
rulings taking the same view have been exhaustively referred to in
State Bank of Patiala v. S.K. Sharma (1996) 3 SCC 364. In that
case, the principle of “prejudice” has been further elaborated. The
same principle has been reiterated again in Rajendra Singh v.
State of M.P. ( 1996) 5 SCC 460.
25. The “useless formality” theory, it must be noted, is an exception.
Apart from the class of cases of "admitted or indisputable facts leading
only to one conclusion " referred to above, there has been considerable
debate of the application of that theory in other cases. The divergent
views expressed in regard to this theory have been elaborately
considered by this Court in M.C. Mehta v. Uniion of India (1999) 6
SCC 237 referred to above. This Court surveyed the views expressed in
various judgments in England by Lord Reid, Lord Wilberforce, Lord
Woolf, Lord Bingham, Megarry, J. and Straughton L.J. etc. in various
cases and also views expressed by leading writers like Profs. Garner,
Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that
orders passed in violation must always be quashed for otherwise the
Court will be prejudging the issue. Some others have said, that there is

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no such absolute rule and prejudice must be shown. Yet, some others
have applied via media rules. We do not think it necessary in this case
to go deeper into these issues. In the ultimate analysis, it may depend
on the facts of a particular case.
26. It will be sufficient, for the purpose of the case of Mr. Mansoor Ali
Khan to show that his case will fall within the exceptions stated by
Chinnappa Reddy, J. in S.L. Kapoor v. Jagmohan, namely, that on the
admitted or indisputable facts, only one view is possible. In that event
no prejudice can be said to have been caused to Mr. Mansoor Ali Khan
though notice has not been issued.”
138. In paragraph 39 of the judgment of the Apex Court in the case of
Dharampal Satyapal Limited Vs. Deputy Commissioner of Central
Excise, Gauhati and Others (2015) 8 SCC 519 , the Apex Court
reiterates the aforesaid principle. Para 39 of the judgment is reproduced
below.
“39. We are not concerned with these aspects in the present case as the
issue relates to giving of notice before taking action. While emphasizing
that the principles of natural justice cannot be applied in straight-jacket
formula, the aforesaid instances are given. We have highlighted the
jurisprudential basis of adhering to the principles of natural justice
which are grounded on the doctrine of procedural fairness, accuracy of
outcome leading to general social goals, etc. Nevertheless, there may be
situations wherein for some reason–perhaps because the evidence
against the individual is thought to be utterly compelling – it is felt that
a fair hearing “would make no difference” – meaning that a hearing
would not change the ultimate conclusion reached by the decision-
maker – then no legal duty to supply a hearing arises. Such an
approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen
Corpm., (1971) 1 WLR 1578, who said that: (WLR p. 1595 : All ER p.
1294)
“...A breach of procedure...cannot give (rise to) a remedy in the
courts, unless behind it there is something of substance which has
been lost by the failure. The court dos not act in vain”.

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Relying on these comments, Brandon L.J. opined in Cinnamond v.
British Airports Authority (1980) 1 WLR 582 that: (WLR p. 593 : All
ER p. 377)
“…. no one can complain of not being given an opportunity to make
representations if such an opportunity would have availed him
nothing”.
In such situations, fair procedures appear to serve no purpose since
“right” result can be secured without according such treatment to the
individual.”
139. Now, in the light of the aforesaid principle, if we analyze the facts
of the present case, we find that the fact that Ratan was the original
tenure holder of the land is undisputed, and the fact that predecessor of
the petitioners, namely Beliram and Ramlal had purchased the land by
th
registered sale deed dated 20 of August, 1962 after the issuance of
Notification under Sections 53 & 60 of the Act, 1945 for acquisition of
land is not disputed.
140. The fact that the predecessors of the petitioner instituted Civil Suit
No.129 of 1968 challenging the acquisition proceedings seeking a
declaration in respect of land is also not disputed.
141. The Trial Court while dismissing the suit, recorded a categorical
finding that the plaintiffs (predecessors of the petitioners) cannot
challenge the acquisition proceedings when the original tenure holder-
Ratan had waived his rights to challenge the acquisition proceedings.
142. The said finding has attained finality after dismissal of the Civil
Appeal No.235 of 1975 against the judgment of the Trial Court and
dismissal of Second Appeal No.2736 of 1981 against the judgment of
Trial Court as well as Appellate Court.
143. Since the finding of the Trial Court that the predecessors of the
petitioners from whom the petitioners claim to have acquired the land
did not have any locus to challenge the acquisition proceeding as the sale
deed dated 20.08.1962 executed in favour of predecessors of the
petitioners by the original tenure holder, Ratan was void having been

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executed after the commencement of acquisition proceedings. Therefore,
the petitioners cannot have a better title than their grandfather, and
therefore, they have no right to get the land released.
144. It is pertinent to note that the petitioners claim to be the owner of
the land by virtue of a ‘Will’ executed by his grandfather Late Beliram
despite the fact that Beliram could not execute the ‘Will’ of a land which
he did not own.
145. Since the land was acquired under the Act, 1945, which had been
repealed by Section 581 of the Act, 1959 and the Act, 1894 had been
adopted in the Act, 1945 by virtue of Sections 71 and 114 of the Act,
1945, therefore, after repeal of the Act, 1945, the provisions of Act, 1894
have no application. Thus, Section 48 of the Act, 1894 was not available
to the petitioners to invoke the same for the purpose of release of land.
146. Further Section 17 of the Act, 1973 had also no application in the
facts of the present case. Therefore, in the absence of any provision
authorizing the authority to release the land, the Notification dated
03.05.2006 was per se illegal and without jurisdiction.
147. Therefore, in view of the aforesaid undisputed facts on record, the
only inescapable conclusion is that the land could not be released from
acquisition and non-adherence of the principles of natural justice in the
present case by the authority did not prejudice the petitioners.
148. In such view of the fact, we are convinced that the impugned order
cannot be declared illegal for want of adherence to the principles of
natural justice.
149. It is also settled in law that the High Court while exercising
extraordinary jurisdiction under Article 226 of the Constitution of India,
can refuse to issue a writ of certiorari if by issuance of such writ,
previous illegal order would revive.
150. In other words, this Court, while exercising under Article 226 of
the Constitution of India cannot allow an illegality to perpetuate.

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151. The Apex Court in the case of Central Council for Research in
Ayurvedic Sciences and Another Vs. Bikartan Das and Others AIR
2023 SC 4011 eloquently explained the principle of law governing
exercise of extraordinary jurisdiction under Article 226 of the
Constitution of India particularly when it comes to the issue of writ of
certiorari. The paragraph nos.49, 50 & 51 of the said judgment are being
reproduced below:-
“49. Before we close this matter, we would like to observe something
important in the aforesaid context:
Two cardinal principles of law governing exercise of extraordinary
jurisdiction under Article 226 of the Constitution more particularly
when it comes to issue of writ of certiorari.
50. The first cardinal principle of law that governs the exercise of
extraordinary jurisdiction under Article 226 of the Constitution, more
particularly when it comes to the issue of a writ of certiorari is that in
granting such a writ, the High Court does not exercise the powers of
Appellate Tribunal. It does not review or reweigh the evidence upon
which the determination of the inferior tribunal purports to be based. It
demolishes the order which it considers to be without jurisdiction or
palpably erroneous but does not substitute its own views for those of the
inferior tribunal. The writ of certiorari can be issued if an error of law
is apparent on the face of the record. A writ of certiorari, being a high
prerogative writ, should not be issued on mere asking.
51. The second cardinal principle of exercise of extraordinary
jurisdiction under Article 226 of the Constitution is that in a given case,
even if some action or order challenged in the writ petition is found to
be illegal and invalid, the High Court while exercising its extraordinary
jurisdiction thereunder can refuse to upset it with a view to doing
substantial justice between the parties. Article 226 of the Constitution
grants an extraordinary remedy, which is essentially discretionary,
although founded on legal injury. It is perfectly open for the writ court,
exercising this flexible power to pass such orders as public interest
dictates & equity projects. The legal formulations cannot be enforced
divorced from the realities of the fact situation of the case. While

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administering law, it is to be tempered with equity and if the equitable
situation demands after setting right the legal formulations, not to take
it to the logical end, the High Court would be failing in its duty if it does
not notice equitable consideration and mould the final order in exercise
of its extraordinary jurisdiction. Any other approach would render the
High Court a normal court of appeal which it is not.”
152. It would be apt to refer to paragraph nos.98 & 99 of the judgement
of the Apex Court in the case of AL-Can Export Private Limited Vs.
Prestige H.M. Polycontainers Limited and Others (2024) 9 SCC 94
which reads as under:-
“98. Assuming for the moment that the Additional Commissioner had
no jurisdiction to adjudicate and decide the two appeals filed by
Respondent 1 and Respondent 6, respectively, yet the common order
passed by the Additional Commissioner allowing the appeals and
remanding the matter back to the authority concerned could not have
been disturbed and the High Court rightly did not disturb the same.
Had the High Court taken the view that the Additional Commissioner
had no jurisdiction and the order passed by it was a nullity, the result
would have been the revival of the illegal order passed by the
Additional Collector confirming the sale.
99. It is well-settled principle in law that issuance of a writ or
quashing/setting aside of an order if revives another pernicious or
wrong or illegal order then in that eventuality the writ court should not
interfere in the matter and should refuse to exercise its discretionary
power conferred upon it under Article 226 of the Constitution. The writ
court should not quash the order if it revives a wrong or illegal order.
(Vide: Gadde Venkateswara Rao v. State of A.P. AIR 1966 SC 828;
Chintamani Saran Nath Shahdeo v. State of Bihar (1999) 8 SCC 16;
M.C. Mehta v. Union of India (1999) 6 SCC 237; Mallikarjuna
Mudhagal Nagappa v. State of Karnataka (2000) 7 SCC 238; Chandra
Singh v. State of Rajasthan (2003) 6 SCC 545 and Raj Kumar Soni v.
State of U.P. (2007) 10 SCC 635) ”
153. We have already held that the Notification dated 03.05.2006 was
obtained by fraud as the report of the District Magistrate dated

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27.01.2005 was obtained by concealing material facts which we have
already detailed above.
154. Even before this Court, the petitioners are guilty of concealing
material facts inasmuch as in the writ petition they did not disclose the
vital and important facts that the original tenure holder of the land was
Ratan against whom acquisition proceeding had taken place and the land
was subsequently purchased by the predecessors of the petitioners.
155. The petitioners did not disclose the filing of Civil Suit No.129 of
1968, Civil Appeal No.235 of 1975 and Second Appeal No.2736 of 1981
by their predecessors.
156. It is also pertinent to note here that in the instant case, the
petitioners have misused the judicial process by concealing material
facts to their advantage. Our said view is fortified from the fact that the
land was acquired in the year 1959. After acquisition, the land was
purchased by predecessors of the petitioners who instituted the suit
challenging the acquisition proceedings. The suit was dismissed. The
First Appellate Court dismissed the appeal preferred against the
judgment and decree of the Trial Court and thereafter, the Second Appeal
No.2736 of 1981 was filed in which an order staying the dispossession
of the appellants was obtained.
157. After the death of one of the appellants, petitioners got themselves
substituted in the Second Appeal and after about 50 years, when the
petitioners managed the things to their advantage by procuring the report
of the District Magistrate in their favour on the basis of which the land
was released by Notification dated 03.05.2006, they got the Second
Appeal dismissed as infructuous .
158. We have already detailed above that the report of the District
Magistrate dated 27.01.2005 was submitted without considering the
relevant facts. The petitioners misused judicial process up to optimum
level inasmuch as they could manage the release of land which in fact
they did not own.

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159. In view of the discussions in the aforesaid paragraphs, we are of
the view that the petitioners are guilty of playing fraud upon the Court,
and if we interfere with the impugned order, that would amount to
reviving an illegal order which was obtained by fraud.
160. Therefore, in the facts of the present case, we are of the view that
the respondent no.1 has rightly exercised his power to recall of the
Notification dated 03.05.2006 as the present case falls in the exception
which permits the authority to recall or review an earlier order if it had
been obtained by fraud and concealment.
161. In view of the aforesaid discussions, we do not find any merit in
the writ petition, and the writ petition is dismissed .
162. We have recorded above that the petitioners with impunity have
misused the judicial process upto their optimum advantage because of
which they remained in possession over the land for over 65 years over
which they have no title. Therefore, we are of the view that it is a fit case
where heavy cost should be imposed upon the petitioners.
163. Accordingly, we impose a cost of Rs. 5 lacs upon the petitioners,
which they shall deposit with the respondent no.1 within a period of two
months.
164. The respondent no.1 on receiving the aforesaid cost, shall out of
the said amount pay half of the amount to the Allahabad High Court
Legal Services Committee.
165. In case the petitioners do not deposit the said costs within the
aforesaid period, it is open to the respondent no.1 to recover the same as
arrears of land revenue.
(Sudhanshu Chauhan,J.) (Saral Srivastava,J.)
October 27, 2026
Sattyarth/NS
Digitally signed by :-
SATTYARTH ANAND
High Court of Judicature at Allahabad