Supreme Court of India
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING COMMISSIONERversusRAM SINGH (D) TH. LRS. & ORS.
- Citation
- 2022 INSC 448
- Decided
- 20 April 2022
- Disposal
- Dismissed
- Bench
- K M JOSEPH
Holding
Withdrawal under Section 48 is permissible only if actual possession has not been taken and after the beneficiary is given a chance to be heard; the 2008 notification was set aside and the appeals were dismissed.
Summary
The Uttar Pradesh Awas Evam Vikas Parishad (appellant) sought to withdraw from the acquisition of two plots of land under Section 48 of the Land Acquisition Act, 1894, invoking a 2008 notification that cancelled an earlier 2005 exemption. The respondents, heirs of the original landowner, challenged the withdrawal, arguing that actual possession of the land had been taken and that the authority had not afforded them a hearing or complied with notice requirements under Section 9(3). The Supreme Court examined the scope of Section 48, held that withdrawal is permissible only when actual possession has not been taken and must be preceded by an opportunity to the beneficiary, and found that the 2008 notification was invalid as the procedural safeguards were not met. Consequently, the Court dismissed the appeals, leaving the earlier exemption order in force and directing the parties to bear their costs.
Issues considered
- The power under Section 48 of the Land Acquisition Act can be exercised only when actual possession of the land has not been taken.
- Whether the authority must provide an opportunity of hearing to the beneficiary before withdrawing from acquisition under Section 48.
- Whether the absence of a notice under Section 9(3) invalidates the withdrawal or the acquisition process.
- Whether the 25 April 2008 notification cancelling the 7 July 2005 exemption is legally valid.
- Whether the decision to withdraw from acquisition is justiciable and subject to judicial review.
Legislation cited
- Constitution of Indias. Article 300A
- Land Acquisition Act, 1894s. 10, s. 11, s. 17, s. 4, s. 48, s. 5A, s. 6, s. 9, s. 9(3)
- U.P. Awas Evam Vikas Parishad Adhiniyam, 1965s. 28, s. 32
Subjects
land acquisitionSection 48withdrawal from acquisitionactual possessionnatural justicecompensationpublic interesteminent domainnotificationprocedural fairness
Judgment
[2022] 19 S.C.R. 853 853
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING A
COMMISSIONER
v.
RAM SINGH (D) TH. LRS. & ORS.
(Civil Appeal Nos. 3023–3024 of 2022) B
APRIL 20, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Land Acquisition Act, 1894:s. 48 – Scope of – ‘Actual’
Possession – Completion of acquisition not compulsory, but
C
compensation to be awarded when not completed – Acquisition of
land u/s. 28 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965
– Urgency Clause invoked – Actual Possession of acquired land
not taken – Notification purporting to exempt the acquired land in
question – Representation by the beneficiary of the acquisition –
By notification dated 25.04.2008 exemption notification cancelled D
and concerned department was directed to consider the matter –
Writ petitions by land owner, challenging the notification dated
25.04.2008 – High Court allowed the petition – On appeal, held:
Decision to withdraw from acquisition is justiciable– Such
withdrawal must be preceded by offering an opportunity to the
E
beneficiary – Notification under Section 48 has been issued on
07.07.2005 and the contents of the notification would tend to
indicate, inter alia, that possession of the land was not taken and
taking of possession is not actual possession – The taking of
possession which would prevent the exercise of power u/s. 48 must
be taking of khas possession or actual possession – Appellants F
have not been able to establish any notice u/s. 9(3) which was issued
for acquisition of land of the Respondent – Beneficiary-appellant
has not made out a case for interference with the impugned orders.
Constitution of India, 1950: Art. 300A – No person shall be
deprived of his property save by authority of law - Held: An G
acquisition of land is permitted to be made in public interest – Art.
300A declares that it is a constitutional right of a person to protect
his property from deprivation and deprivation can be permitted only
in accordance with law.
H
853
854 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Dismissing the appeals, the Court
HELD: 1.1 An acquisition of land is permitted to be made
in public interest. Undoubtedly, Article 300A declares that it is a
constitutional right of a person to protect his property from
deprivation and deprivation can be permitted only in accordance
B with law. However, in exercise of powers of eminent domain in
regard to which law finds its manifestation in the Land Acquisition
Act from time-to-time, lands/properties of individuals may have
to be acquired, for which the procedure is stipulated in the Land
Acquisition Act inter alia. Starting with a notification under Section
4 passing through the declaration under Section 6 followed up by
C notices under Section 9, finally it culminates in an award. In the
meantime, if urgency warrants the immediate possession being
taken, possession can be taken by even dispensing with the
inquiry under Section 5A when the notification is issued under
Section 4 and after 15 days of the notice issued under Section
D 9(1) of the Land Acquisition Act. [Para 13, 14][870-G-H; 871-A-
B]
1.2 Power u/s. 48 of Land Acquisition Act is vested with a
statutory authority as in the case of all power, the trammels of
fairness in Governmental action and the imperative need to avoid
E arbitrariness is inevitable in the exercise of the power under
Section 48. [Para 15][871-F]
1.3 The decision to withdraw from acquisition is justiciable.
In other words, what is described as a liberty or a power with the
Government must be understood also as being attended with the
F duty to act in a fair and bona fide manner. This means that present
the inevitable and indispensable requirement, namely, that actual
possession of the land has not been taken under the Act, it is
open in a fit and appropriate case and bearing in mind public
interest and the facts for the Government to withdraw from the
acquisition. It is the duty of the authority to be mindful of all
G relevant inputs before it takes a decision to withdraw from the
acquisition. It is also clear that withdrawal from the acquisition
must be preceded by offering an opportunity to the beneficiary at
whose instance the acquisition is to be made. It is also clear that
the withdrawal from acquisition can be made only by issuance of
H a notification. [Para 16][873-F-H]
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING 855
COMMISSIONER v. RAM SINGH (D) TH. LRS.
1.4 A question may arise as to what is the true nature of the A
power exercised under Section 48. It is a power which is vested
with a statutory authority. No doubt the power would be exercised
in terms of the orders under which the competent authority would
be empowered to act in the matter. Whoever is the authority
which is exercising the power in accordance with the extant norms,
B
he is exercising the power which would be subject to judicial
review on well–settled principles in the face of a challenge to the
exercise of the power. [Para 17][874-B-C]
1.5 In the present case, it was, inter alia, the case of the
respondent that possession had not been taken. On the basis of
the said request, a Notification under Section 48 has been issued C
on 07.07.2005. The contents of the notification would tend to
indicate, inter alia, that possession of the land was not taken and
taking of possession is not actual possession. The taking of
possession which would prevent the exercise of power under
Section 48 must be taking of khas possession or actual possession. D
The notification dated 07.07.2005 further recites that the appellant
was notified about the proposal and what is more it was followed
up by three reminders. There was no response from the appellant.
Therefore, this is not a case where flouting the law laid down by
this Court, withdrawal from the acquisition was made under
Section 48 without compliance with principles of Natural Justice E
as far as the beneficiary is concerned. [Para 18][874-D-F]
1.6 A perusal of Section 17 (1) of the Land Acquisition Act
would show that the possession can be taken in cases where
urgency clause is invoked, upon the expiry of 15 days of the
publication of notice under Section 9(1). Here the authority F
apparently has not looked into the question as to whether
possession was taken with reference to the relevant date which
is the publication of notice under Section 9(1). Section 9(1) of the
Land Acquisition Act in fact speaks about the need to give a public
notice. Section 9(3) speaks about duty to give individual notices G
to land owners. As correctly pointed out, non-service of notice
under Section 9(3) would not be sufficient to invalidate the
acquisition. But then the relevance of Section 9(3) notice is that
if it had been produced and proved, it would have gone a
H
856 SUPREME COURT REPORTS [2022] 19 S.C.R.
A long way in proving the case of the appellant that possession had
in fact been taken. It is apposite to notice that in the appeal
carried by the appellant to this Court, the appellant held out that
it had material to show that notice was issued. [Para 19][874-G-
H; 875-A-C]
B 1.7 It is a notice notifying the owner about the fact that the
award is going to be passed on 28.09.1985. The date of the so-
called notice under Section 9(3) is 25.09.1985. A notice under
section 9 is to be followed by enquiry under Section 10 and award
under Section 11 certainly cannot be confused with notice which
merely notifies the owner about the date fixed for passing the
C award. There is only a gap of three days between the date of the
notice and the date fixed for passing of the award. Therefore, the
appellants have not been able to establish any notice under
Section 9 (3) was issued. [Para 21][877-C-D]
1.8 The authority has purported to draw support from the
D order dated 15.09.2006 issued by the Government. The order
dated 15.09.2006 undoubtedly proclaimed that exemption from
acquisition or rather withdrawal from acquisition must receive
the attention of the concerned department. Its terms would
indicate that Government decided to do away with the earlier
E order passed in the year 2002. The order dated 15.09.2006 is
explicit in that, it was to have an ‘immediate effect’. This means
that it was not retrospective. This further inevitably means that
it cannot affect orders/notifications which had been issued
invoking power under Section 48 prior to 15.09.2006. Yet a perusal
of the order dated 25.04.2008 would reveal that the Government
F has proceeded to act on the basis of order dated 15.09.2006. In
other words, the impugned order which has been set aside by
the High Court is entirely based on an order which has no
application to the facts. It is clarified that it is not as if when a
notification is issued under section 48, it can never be undone
G irrespective of the facts obtaining in a case. Apart from the fact
that it is open to challenge in a court of law at the instance of an
aggrieved party in a given case if it is shown it is procured by
fraud, it may be open to the authority to undo the same. It is an
administrative order, no doubt issued under a statutory provision
H
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING 857
COMMISSIONER v. RAM SINGH (D) TH. LRS.
by a public authority. Since the law is that principles of natural A
justice apply and the power can be exercised only after offering
an opportunity to the beneficiary as distinct from the owner, in a
case where it is found that a notification was issued without notice,
which is indispensable to passing of a valid notification, it may be
open to the Government to undo the effect of the notification. In
B
the facts of this case, it is not even the case of the appellant in its
representation that the recital in the notification that it was given
opportunity to make its representation against the proposed action
was wrong. The appellant did not have a case in its representation
that it was not given any opportunity to represent against the
order. The appellant seeks to make good this omission by C
contending that a ground was raised that there was violation of
natural justice. The appellant should not be permitted to make
good an omission which stares in our faces, in the facts of this
case. The appellant has not made out a case for interference with
the impugned orders. [Para 23][877-F-H; 878-A-E]
D
Amarnath Ashram Trust Society and Ors. v. Governor
of U.P. and Ors. (1998) 1 SCC 591 : 1997(6) Suppl.
SCR 143; Larsen and Toubro Ltd. v. State of Gujarat
and Ors. (1998) 4 SCC 387 : 1998 (2) SCR 339; State
Govt. Houseless Harijan Employees Association v. State
of Karnataka and Ors. (2001) 1 SCC 610 : 2000 (5) E
Suppl. SCR 483 – relied on.
Mohinder Singh Gill and Ors. v. The Chief Election
Commissioner, New Delhi and Ors. (1978) 1 SCC 405 :
1978 (2) SCR 272 – referred to.
F
Case Law Reference
[1978] 2 SCR 272 referred to Para 8
[1997] 6 Suppl. SCR 143 relied on Para 15
[1998] 2 SCR 339 relied on Para 16
G
[2000] 5 Suppl. SCR 483 relied on Para 16
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3023-
3024 of 2022.
From the Judgment and Order dated 31.8.2010 of the High Court
of Judicature at Allahabad in Writ Petition No. 49944 of 2008. H
858 SUPREME COURT REPORTS [2022] 19 S.C.R.
A With
Civil Appeal Nos. 3025-3026 of 2022.
Vishwajit Singh, Sr. Adv., Abhishek Kumar Singh, Pankaj Singh,
Ms. Ridhima Singh, Vignesh Singh, Ms. Rashi Singh, Ms. Vibha Bhat,
Advs. for the appellant.
B Yatindra Singh, Sr. Adv., Anurag Ojha, Karan Aggarwal, Sushil
Kumar Singh, K.P. Singh, Kanishk Chaudhary, Shashank Singh, Pushkin
Chaudhary, Ms. Chitra Chaudhary, Madhav Saraswat, Diwakar Shukla,
Prashant Chaudhary, Dhawal Uniyal, Kamlendra Mishra, Advs. for the
respondents.
C The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. Permission to file rejoinder affidavit in SLP(C) Nos. 23899-
23900 of 2017 is granted.
Delay condoned.
D Leave granted.
2. These appeals have behind them a chequered history. It all
began with the issuance of a Notification by the appellant under Section
28 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter
referred to as the “Adhiniyam”) on 10.11.1973. The said Notification is
E to be treated as equivalent to a Notification issued under Section 4 of the
Land Acquisition Act, 1894, proposing to acquire among other lands,
Khasra Plot No. 7 and Khasra Plot No. 3, having a total area of 5.98
Acres in a certain village which originally belonged to one Shri Ram
Ratan. It may be noticed here itself that Ram Ratan has passed away
and the respondent-Ram Singh was his son and he has in turn passed
F away and is represented by his legal representatives. The appellant issued
a Notification under Section 32 of the Adhiniyam on 17.8.1977. This is
the equivalent to the Notification issued under Section 6 of the Land
Acquisition Act. The urgency clause under Section 17(1) of the Land
Acquisition Act was invoked on 18.07.1979. According to the appellant,
G the possession of the land was taken on 11.12.1981 and 31.3.1983.
The further case of the appellant is that there was a case of a
sale effected by the original respondent-Ram Singh. There is a reference
to the notice issued under Section 9 of the Land Acquisition Act on
25.09.1985 and an Award being passed on 28.09.1985.
H
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING 859
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
3. It is the further case of the appellant that the original respondent- A
Ram Singh submitted an application on 19.11.1985 claiming compensation
stating, inter alia, that he was the son of the Original Tenure Holder and
that he had not executed any sale deed in respect of the land. There is a
copious reference to certain litigation initiated against the subsequent
purchasers (Dr. Raj Kumar Chaturvedi & Ors.). To come to the point in
B
issue, it started with the Notification which was issued on 07.07.2005
purporting to exempt Khasra No. 3 and 7 from the acquisition. The
appellant thereupon submitted a representation on 24.10.2005, inter alia,
pointing out that the land has been acquired and the Award has been
passed and what is more, possession was also taken. It is also contended
that mutation was effected in favour of the appellant. This led to the C
Government issuing Notification dated 25.04.2008. The Government in
the said Notification cancelled the earlier Notification dated 07.07.2005
and directed the matter for consideration by the concerned department.
Aggrieved by the said Notification dated 25.04.2008, respondent-Ram
Singh filed a Civil Misc. Writ Petition No. 49944 of 2008. The said writ
D
petition came to be allowed by the High Court by judgment dated
31.08.2010. Aggrieved by the judgment dated 31.08.2010, the appellant
preferred special leave petitions SLP(C) Nos.34271 OF 2010 and 34090
of 2010. Leave was granted and Civil Appeal No. 6272 of 2012 and
Civil Appeal No. 6273 of 2012 came to be disposed of by this Court
permitting the appellant to seek a recall of the order dated 31.08.2010. E
The appellant moved an application for recall of order dated 31.08.2010
and the same was rejected by the High Court vide order dated 20.12.2016.
The appellant challenges the orders dated 31.08.2010 and 20.12.2016.
The other appeals are filed by the same appellant challenging the judgment
on similar lines which have been passed in litigation lodged by persons
F
claiming to have purchased from Shri Ram Singh in the year 1984.
4. We have heard Shri Vishwajit Singh, learned senior counsel
appearing for the appellant and Shri Yatinder Singh, learned senior counsel
appearing on behalf of the legal representatives of the original respondent
– Shri Ram Singh as also Shri Anurag Ojha, learned counsel appearing
for the subsequent purchaser(s). G
5. Learned senior counsel for the appellant Shri Vishwajit Singh
would urge before us that this is a case where all that was done by the
impugned order dated 25.04.2008 was to withdraw the earlier order and
to relegate the matter to the competent authority to take a decision as to
H
860 SUPREME COURT REPORTS [2022] 19 S.C.R.
A whether the Government should withdraw from the acquisition and there
was no warrant for interfering with the said order by the High Court in
the writ petition(s) filed by Shri Ram Singh and the so-called purchasers
from Ram Singh.
It is pointed out that this is a case where the land in question
B forms the subject matter of the Notification issued under Section 28 of
the Adhiniyam followed by the declaration under Section 6 of the Land
Acquisition Act. This is followed up by issuance of notice under Section
9 of the Land Acquisition Act and finally it culminated in an Award. The
amount due under the Award was duly deposited. All this is eloquently
established by the unequivocal action of the respondent-original owner
C of the land in addressing a communication dated 19.11.1985:
“To,
Special Land Acquisition Officer
U.P. Avas Evam Vikas Parishad,
D
Kamla Nagar, Agra
Sir,
In connection with taking the meaning of your letter no.
414/81 Dwa. (A.V. Parishad) dated 11.11.85 otherwise, this to
E inform you that the land of Khasra no. 3 and 7 has continuously
been entering in the name of Ram Ratan and the applicant Ram
Singh s/o Shri Ram Ratan r/o Nagari Mohalla, Mathura is the
only son of Shri Ram Ratan and, thus, he is the sole owner of the
said land. It is humbly submitted that the applicant has executed
neither any Sale Deed nor Power of Attorney in respect of the
F
aforesaid land. Therefore, you are requested to please grant
compensation of the aforesaid entire land to the applicant Ram
Singh. Submitted for consideration.
Thanking you.
G Yours faithfully,
Sd/- Illegible
Ram Singh s/o Ram Ratan
r/o Mohalla Nagari, Mathura
Date: 19.11.85
H Sd/- Ram Singh”
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING 861
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
6. He would submit that having accepted the fact of the Award A
being passed and what is more not bringing the procedure, antecedent to
the passing of the Award under a cloud or not having questioned that the
possession was indeed taken prior to the Award being passed, it does
not lie in the mouth of the respondents to contend that possession was
not taken. If possession was not taken, as is indeed the case, there is
B
absolutely no jurisdiction with the Government to withdraw under Section
48 of the Land Acquisition Act. This went to the root of the matter.
It is further pointed out that apart from possession being taken,
the matter had progressed to the stage where lay out had been approved.
These lands are central and integral to the execution of a housing scheme
evolved to cater to the needs of the Low-Income Group. The case of C
the appellant is attended with the highest public interest. Withdrawal
from an acquisition which is not in conformity with the statutory provisions
must not be lightly sabotaged, at the instance of the persons like the
respondent herein who has held himself out as limiting his rights to laying
a claim for the compensation which has been deposited by the appellant. D
7. Per contra, Mr. Yatindra Singh, learned senior counsel appearing
for the respondents would stoutly oppose the appeals by pointing out
that this is a case where the entire premise of the appellant is flawed.
Possession within the meaning of Section 48 of the Land Acquisition
Act cannot be symbolic. In other words, the taboo against withdrawal E
from acquisition is attracted only if actual possession has been taken. In
this case, possession has not been taken. The efforts on the part of the
appellant to establish possession through certain documents would at
best show that possession was shown to be taken. This does not suffice
in law to prevent the exercise of the power under Section 48 of the Land
Acquisition Act. F
As regards reliance placed on the communication dated 19.11.1985
wherein demand for request for disbursement of compensation is
concerned, it is contended that it was deposited only in 2004 and it cannot
determine the fate of this case.
G
More importantly, he drew our attention to the order dated
24.05.2008 which has been set aside by the High Court. He would point
out that it has no legs to stand on in law for the reason that it is primarily
founded on an order which was passed by the Government after the
passing of the Notification dated 07.07.2005. In other words, the
Notification dated 07.07.2005 was founded on the power ceded to the H
862 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Revenue Department by the Government order dated 19.06.2002. The
case of the appellant on the other hand which found acceptance with
the Government in the order dated 25.4.2008 is based on the contents of
the order dated 15.09.2006.
The order dated 15.09.2006 expressly has prospective operation.
B It does not affect the orders which have been passed earlier to it. On
that short ground, the order dated 25.04.2008 would not have any legs to
stand on. Secondly, he would point out that contrary to the complaint of
the appellant, it is indisputable, having regard to the contents of the
Notification dated 07.07.2005 that the appellant was offered an opportunity
to make its representation or to be heard before the Notification dated
C 07.07.2005 was passed.
8. He would further contend that a government order must be
judged in terms of what flows from its express terms. It is impermissible
for an order passed under a statute by a public authority to be rendered
valid by affidavits or submissions made in a Court. It must be judged on
D its own merits, with reference to the foundation which is laid in the
order. Reliance is placed on the judgment of this Court in Mohinder
Singh Gill vs CEC reported in 1978 (1) SCC 405.
9. The learned counsel for the respondent in the other appeal
would also submit that this Court may notice that the appellant did not
E think it fit to challenge the Notification dated 07.07.2005. Therefore, no
interference is called for.
10. The facts which are not in dispute are as follows:
There was a Notification which we will characterize as a
Notification issued under Section 4 of the Land Acquisition Act on
F 10.11.1973. It is followed by a declaration under the provisions of
Adhiniyam, which is equivalent to Section 6 of the Land Acquisition Act
on 17.08.1977. Undoubtedly urgency clause was invoked under Section
17(1) of the Land Acquisition Act. An award was passed on 28.09.1985.
It is also true that the original respondent in the first appeal did seek the
compensation on the basis of award on 19.11.1985. On 19.06.2002 the
G
Government has passed an order, the terms of which read as follows:
“No.: 592/1-13-2002-Ra-13
From,
Harish Chandra
H
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING 863
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
Principal Secretary A
Govt. Of U.P.
To,
1. All Principal Secretaries/Secretaries
Government of U.P. B
2. All Department Heads/Divisional Commissioners/
District Magistrates, U.P.
Revenue Deptt.-13 Lucknow: 19 June, 2002
Sub: Regarding exemption of land from acquisition u/s 17 of the
Land Acquisition Act, 1894 C
Sir,
On the aforementioned subject, I have been directed to state
that the State Government has been receiving complaints from
time to time that almost each case of land acquisition, Section 17
of the Land Acquisition Act is being used and despite using Section D
17 of the Act, most of the Acquisition Bodies are neither providing
required amount of compensation nor trying to take possession of
the land. In some cases, where half-hearted efforts are made u/s
17 of the Act by the Administrative Departments of the Acquisition
Body, they have been proved to be contrary to the essence of E
using Section 17 toward development projects of the State
Government. In fact, most of the Acquisition Bodies, despite there
being no necessity, used to make requests for using Section 17 of
the Act in the proposed Scheme/Projects. As a result, even after
passing of several years, neither the Acquisition Body takes
possession of the acquired land nor the farmers get their F
compensation because of not providing funds from the Body.
In the event of using the provisions of Section 17 of the
Land Acquisition Act, 1894, the provisions of Section 5A gets
extinct and the landowners lost their right of opportunity of hearing.
It is provided in Section 17 that possession of the land, in which G
Section 17 has been applied, should be taken on the expiration of
fifteen days. As a result of not taking immediate possession and
non-deposit of required money, the importance of Section 17 proves
to be ineffective.
H
864 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Therefore, with a view to prevent misuse of implementation
of Section 17 in various development projects and after due
consideration, it has been decided that the Acquisition Bodies
should take immediate possession of the land where provisions of
Section 17 have been used. Only the Revenue Department shall
have the power to exempt any part of land whose possession has
B
not been taken and such lands where necessity of acquisition is
not required. The Administrative Deptt. of the Acquisition Body
shall have no power to do so.
Yours faithfully,
C Harish Chandra
Principal Secretary”
11. The respondents (sons of the respondent-Ram Singh) submitted
the representation on 12.11.2003 to the Minister of Revenue complaining
that they had not been issued any notice or opportunity of hearing and
D the entire acquisition was finalized ex-parte.
There was also a representation by the alleged subsequent
purchasers on 10.12.2004. It is acting upon the same that the Government
invoked Section 48 of the Land Acquisition Act, and issued a notification
dated 07.07.2005. It reads as follows: -
E “GOVERNMENT OF UTTAR PRADESH
REVENUE SECTION-13
No.: 31 RM/2-13-2005-7-5(11)/2004
Lucknow: 7 July, 2005
F NOTIFICATION
For the purpose of acquiring land for the “Maholi Bhumi Vikas
Evam Grihsthan Yojana No.2, Mathura” of the Uttar Pradesh
Avas Evam Vikas Parishad, Notification u/s 28 and 32 of the
Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 were
published on 10.11.1973 and 10.9.1977 respectively. The land of
G
Khasra no. 7 rakba 3.12 acre and Khasra no. 3 rakba 2.66 acre
(total rakba 5. 78 acre) situated in village Palikheda, Tehsil and
Dist. Mathura was included in the aforesaid Yojana. The
landowners of Khasra no. 7 and 3 sent their representation to the
government on 12.11.2003 thereby requesting that the aforesaid
H land may be excluded from the acquisition mainly on the ground
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING 865
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
that the land is under their tenure and possession. That an electric A
tube well was installed in Khasra no. 3 which was used to irrigate
both khasras. That a Shiv Temple comprising of two rooms was
also situated on the said land which was built in 1970. Houses of
the landowners are there near the Shiv Temple and at the time of
acquisition, the Government overlooked the Shiv Temple and the
B
houses/constructions on the land. As per rule, this land cannot be
acquired. It was further submitted that on the aforesaid grounds,
some land was exempted in the Maholi Yojana Part-1 vide Awas
Anubhag G.O. dated 2.3.2001.
2. Photocopy of the aforesaid application of the landowners was
sent to District Magistrate, Mathura and his report was sought in C
the matter. In this connection, the Special Land Acquisition Officer,
U.P.Avas Evam Vikas Parishad, Agra, who carried out the
acquisition proceedings for the Yojana, vide his letter dated
16.6.2004, has informed that the landowners have not received
the amount of compensation and the land is in their possession D
and they are dwelling on the land.
3. After getting aforesaid report from the Special Land Acquisition
Officer, U.P.Avas Evam Vikas Parishad, Agra, another letter dated
7.8.2004 was sent to District Magistrate, Mathura, asking him as
to whether Notice u/s 9 of the Land Acquisition Act, 1894 (as E
amended in 1984) was sent to the landowners or not. In reply to
the query from the government, the Special Land Acquisition
Officer, U.P.Avas Evam
Vikas Parishad, Agra, vide letter dated 7.10.2004 informed that
as per the available record in the file, Notice u/s 9 of the Land F
Acquisition Act was not sent to the landowners.
4. In this connection, report was also sought from the U.P.Avas
Evam Vikas Parishad vide letter dated 18.1.2005 followed by three
reminders, but so far no report or interim reply has been received
from the Avas Vibhag.
G
5. It is clear from perusal of all documents that the landowners
did not receive compensation of Khasra no. 7 and 3 rakba 3.12
acre and 2.66 acre respectively (total 5. 78 acre). Despite passing
28 years from the dates of publication of Notification u/s 28 and
32 of the Parishad Adhiniyam for acquiring the land in question
i.e. 10.11.1973 and 10.9.1977 respectively, the Acquisition Body H
866 SUPREME COURT REPORTS [2022] 19 S.C.R.
A did not take any action for taking possession of the land. More so,
any Notice u/s 9 of the Land Acquisition Act, which is a compulsory
step for the acquisition, was not issued to the landowners. It
indicates that the Acquisition Body does not have any interest on
the land in question. In this connection, opinion of the Administrative
Department of Acquisition Body i.e. Avas Evam Shahari Niyojan
B
was sought vide letter dated 18.1.2005 but so far no reply has
been received despite several reminders. Therefore, in view of
the aforementioned facts and circumstances, specially in view of
the fact that presently the land in question is under the physical
possession of the landowners and no notice was sent to them u/s
C 9 of the Land Acquisition Act, 1894 (as amended in 1984) the
Governor of Uttar Pradesh, while allowing the representation dated
12.11.2003 submitted by the landowners, has been pleased to
exempt Khasra no. 7 and 3 rakba 3.12 acre and 2.66 acre
respectively (total 5.78 acre) situated in village Palikheda, Tehsil
and Dist. Mathura from acquisition u/s 48(1) of the Land
D
Acquisition Act, 1894 (as amended in 1984).
Amarnath
Under Secretary”
It is apposite that the appellant did not deem it fit to challenge the
E same. Instead, appellant moved the Government on 24.10.2005. It is
necessary to notice what the appellant has stated.
U.P. Avas Evam Vikas Parishad
(Land Acquisition Section)
No.: 242/ ________ /
F
Dated 24.10.05
To,
Principal Secretary
Govt. Of U.P.
G
Housing & Urban Planning Deptt.
Lucknow.
Sub.:Regarding exemption of Land Khasra no. 7 and 3 areas 3.12
Acre and 2.66 Acres respectively (total 5.78 Acres) situated Village
Palikheda, Tehsil and District Mathura under Maholi Bhumi Vikas
H
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING 867
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
Evam Grihsthan Yojana No. 2 in District Mathura floated by Uttar A
Pradesh Avas Evam Vikas Parishad.
Dear Sir,
On the aforementioned subject, please refer to letter no.
1258/1-13-2005-7-5(II)/2004-Ra-13 dated 25.7.05 of the Revenue
Deptt. 13, Government of U.P. and Notification No. 31/RM/2- B
13-2005-7-5(II)/2004 dated 7.7.05 (copy enclosed) by which copy
of Gazette publication on this matter was sent for information and
necessary action.
2. In this connection, it is to inform you that land Khasra no. 7
Rakba 3.12 Acre and Khasra No. 3 Rakba 2.66 Acres (total 5.78 C
Acres) situated Village Palikheda, Tehsil and District Mathura
have been properly acquired under Maholi Bhumi Vikas Evam
Grihsthan Yojana No. 2 in District Mathura and possession of the
said land has already been given by the Special Land Acquisition
Officer, Agra. Award of this land has also been declared and the
land has been mutated in favour of the Parishad. D
3. In regard to the aforesaid land, the Parishad obtained stay order
on 29.4.92 in favour of the Parishad from the Hon’ble High Court
of Allahabad by which the Hon’ble Court stayed all actions for
changing of nature and transfer of the said land.
4. The Layout Plan of the aforesaid land has been approved and E
work could not be carried out because of the Stay Order.
5. In case the Khasra numbers in question are exempted from
acquisition, the road construction work as per the layout plan will
be obstructed.
6. The Parishad had deposited the entire amount of compensation F
against the Award passed.
In view of the aforesaid facts, it does not appear proper to
exempt land whose possession has already been taken. You are,
therefore, requested to reconsider the orders relating to land
exemption and get the order revoked. G
Sd/- Niraj Kumar Gupta
Housing Commissioner
12. In the meantime, or rather after the notification dated 07.07.2005
and the request made by the appellant dated 24.10.2005, Government
brought out another order dated 15.09.2006 which reads as follows: H
868 SUPREME COURT REPORTS [2022] 19 S.C.R.
A No.: 1291/1-13-2006-20(46)/2002-Ra-13
From,
V.K. Sharma,
Principal Secretary
B Govt. Of Uttar Pradesh.
To,
All Principal Secretaries/Secretaries
Govt. Of Uttar Pradesh.
Revenue Deptt. 13 Lucknow: 15 Sept, 2006
C
Sub: Delegation of the powers conferred u/s 48(1) of the Land
Acquisition Act, 1894 (Amended 1984).
Dear Sir,
On the subject mentioned above, I have been directed to
D state that vide G.O. no. 592/1-13-2002-Ra-13 dated 19 June, 2002,
decision has been taken that the Acquisition Bodies should take
immediate possession of the land which has been acquired u/s
Section 17 of the Land Acquisition Act. The Revenue Department
shall have the power to release a part of land whose possession
has not been taken and any such land where acquisition is not
E
required by the Body. The Administrative Deptt. of the Acquisition
Body shall have no power to that effect.
2. After passing the aforesaid G.O., it was realized that practical
difficulties, especially, there was unduly delay in deciding the
applications of landowners for exemption of their land. Therefore,
F it was found to be appropriate that proper and speedy decision
can only be taken only by the Department who had carried out
the acquisition proceedings of such land.
3. Therefore, after due consideration, the Government has decided
that, while vacating the G.O. no. 592/1-13-2002-Ra-13 dated 19
G June, 2002 with immediate effect, henceforth all applications
relating to exemption of land from acquisition will be decided u/s
48(1) of the L.A. Act by the Administrative Department of the
Acquisition Body, who carried out its acquisition proceedings.
4. Please ensure taking action in accordance with the aforesaid
H Government Order.
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING 869
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
Yours faithfully, A
Sd/- Illegible
V.K. Sharma
Principal Secretary
It is thereafter that the order in controversy, namely, the order B
dated 25.04.2008 came to be passed. The said order reads as follows.
GOVERNMENT OF UTTAR PRADESH
Revenue Section – 13
No.: 69/1-13-08-7-5(11)/2004-Sa.-13
C
Lucknow: 25 April, 2008
NOTIFICATION/CANCELLATION
The Revenue Department, by means of Notification No. 34/RM/
1-13-2005-7-5(12)/2004 dated 7th July, 2005, had passed orders
for exempting Khasra no. 7 rakba 3.12 acre and Khasra no. 3 D
rakba 2.66 acre (total 5.78 acre) from acquisition which was
acquired in the year 1973 for its Maholi Bhumi Vikas Evam
Grihsthan Yojana No. 2 in District Mathura under the provisions
of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 in village
Palikheda, Tehsil and District Mathura. The said Notification was
issued by the Revenue Department in exercise of the power E
conferred in Govt. Order no. 592/1-13-2002-Ra.-13 dated 19 June,
2002 relating to exemption of land from acquisition.
2. While cancelling the aforesaid G.O. dated 19 June, 2002, the
powers of Revenue Department relating to exemption of land
from acquisition u/s 48(1) of Land Acquisition Act, 1894 (as F
amended in 1984) have been allocated to all Administrative
Departments, vide G.O. No. 2991/1-13-2006-20(46)/2002-Ra.-13
dated 15 September, 2006. As per these orders, now the
Department who carried out acquisition proceedings for the land
shall have the power to dispose off the land exemption application
G
and to take action thereon. The aforesaid powers were delegated
to all Administrative Departments for the reason that sometime
disputes arise in the event of possession and opinion of the
Acquisition Body/Administrative Department do not receives in
time to the effect as to whether possession of such land has been
taken or not or whether the land is required by the Acquisition H
870 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Body/Administrative Department or not. In this connection, it has
been found that the Administrative Department of the Acquisition
Body can take proper decision on all the aforesaid points.
3. The Awas Vibhag (Administrative Department) has raised
objection against the contents of Para-1 and the Notification no.
B 34/RM/1-13-2005-7-5(12)/2004 dated 7th July, 2005 on the ground
that the said Notification has been issued without taking consent
from the Acquisition Body/Administrative Department which are
adversely affecting the Schemes of the U.P. Avas Evam Vikas
Parishad. The Administrative Department has requested for
cancellation of the aforesaid Notification dated 7 July, 2005 of the
C Revenue Department.
4. After due consideration in the matter, it has been found that in
the light of the situation mentioned in para 2 as well as contents of
Notification no. 1291/1-13-2006-20(46)/2002-Ra-13 dated 15
September, 2006, it appears to be appropriate that disposal of
D applications received in this regard should be done by the
Administrative Department (Avas Vibhag). Therefore, the
aforesaid Notification dated 7 July, 2005 is hereby withdrawn.
The application of the landowner along with the report of the
District Magistrate, Mathura is being forwarded to the
E Administrative Department (Avas Vibhag) with the remark that
the matter may please be disposed off and proper/final decision
taken in the light of the G.O. dated 15 September, 2006 issued by
the Revenue Department and take further action accordingly.
Balwinder Kumar
F Principal Secretary
It is this order which has been set aside and which has generated
the appeals in question.
13. We may, before dealing with the controversy, notice the law
on the point laid down by this Court. An acquisition of land is permitted
G to be made in public interest. Undoubtedly, Article 300A declares that it
is a constitutional right of a person to protect his property from deprivation
and deprivation can be permitted only in accordance with law.
14. However, in exercise of powers of eminent domain in regard
to which law finds its manifestation in the Land Acquisition Act from
H time-to-time, lands/properties of individuals may have to be acquired,
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING 871
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
for which the procedure is stipulated in the Land Acquisition Act inter A
alia. Starting with a notification under Section 4 passing through the
declaration under Section 6 followed up by notices under Section 9, finally
it culminates in an award. In the meantime, if urgency warrants the
immediate possession being taken, possession can be taken by even
dispensing with the inquiry under Section 5A when the notification is
B
issued under Section 4 and after 15 days of the notice issued under
Section 9(1) of the Land Acquisition Act. Section 48 of the Land
Acquisition Act, 1894 read as follows:
“48. Completion of acquisition not compulsory, but compensation
to be awarded when not completed. –(1) Except in the case
provided for in section 36, the Government shall be at liberty to C
withdraw from the acquisition of any land of which possession
has not been taken.
(2) Whenever the Government withdraws from any such
acquisition, the Collector shall determine the amount of
compensation due for the damage suffered by the owner in D
consequence of the notice or of any proceedings thereunder, and
shall pay such amount to the person interested, together with all
costs reasonably incurred by him in the prosecution of the
proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as may E
be, to the determination of the compensation payable under this
section.”
15. At first blush, it gives the impression that it gives an unbridled
license, as it were, to the Government to withdraw from an acquisition.
Since it is a power which is vested with a statutory authority as in the F
case of all power, the trammels of fairness in Governmental action and
the imperative need to avoid arbitrariness is inevitable in the exercise of
the power under Section 48. This has been made clear by this Court in
the Judgments reported in 1998 (1) SCC 591 and 1998 (4) SCC 387. In
1998 (1) SCC 591, the acquisition was made of land adjacent to the
appellant’s school. The government invoked Section 48 of the Land G
Acquisition Act, 1894. The reason stated for withdrawing was that as
no part of the cost was to be borne by the government, the acquisition
would not be sustained as for a public purpose. The court found the
reason illegal being based on a misconception, arbitrary and not bonafide.
The appellant succeeded. The government was left free to reconsider H
872 SUPREME COURT REPORTS [2022] 19 S.C.R.
A the matter. There is no arbitrary power to withdraw from the acquisition.
The decision under Section 48 was held to be a justiciable issue.
In Larsen & Toubro Ltd. v. State of Gujarat and Others, 1998 (4)
SCC 387 this court declared that a notification is to be published if power
is to be exercised under Section 48, and furthermore opportunity must
B be given to the company for which the acquisition was being made. We
notice the following discussion.
“31. Principles of law are, therefore, well settled. A notification in
the Official Gazette is required to be issued if the State Government
decides to withdraw from the acquisition under Section 48 of the
C Act of any land of which possession has not been taken. An owner
need not be given any notice of the intention of the State
Government to withdraw from the acquisition and the State
Government is at liberty to do so. Rights of the owner are well
protected by sub-section (2) of Section 48 of the Act and if he
suffered any damage in consequence of the acquisition
D proceedings, he is to be compensated and sub-section (3) of
Section 48 provides as to how such compensation is to be
determined. There is, therefore, no difficulty when it is the owner
whose land is withdrawn from acquisition is concerned. However,
in the case a company, opportunity has to be given to it to show
E cause against any order which the State Government proposes to
make withdrawing from the acquisition. Reasons for this are not
far to seek. After notification under Section 4 is issued, when it
appears to the State Government that the land in any locality is
needed for a company, any person interested in such land which
has been notified can file objections under Section 5-A(1) of the
F Act. Such objections are to be made to the collector in writing
and who after giving the objector an opportunity of being heard
and after hearing of such objections and after making such further
enquiry, if any, as the Collector thinks necessary, is to make a
report to the State Government for its decision. Then the decision
of the State Government on the objections is final. Before the
G
applicability of other provisions in the process of acquisition, in
the case of company, previous consent of the State Government
is required under Section 39 of the Act nor unless the company
shall have executed the agreement as provided in Section 41 of
the Act. Before giving such consent, Section 40 contemplates a
H previous enquiry. Then compliance with Rules 3 and 4 of the Land
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING 873
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
Acquisition (Company) Rules, 1963 is mandatory required. After A
the stage of Section 40 and 41 is reached, the agreement so entered
into by the company with the State Government is to be published
in the Official Gazette, This is Section 42 of the Act which provides
that the agreement on its publication would have the same effect
as if it had formed part of the Act. After having done all this, State
B
Government cannot unilaterally and without notice to the company
withdraw from acquisition. Opportunity has to be given to the
company to show cause against the proposed action of the State
Government top withdraw from acquisition. A declaration under
Section 6 of the Act is made by notification only after formalities
under part VII of the Act which contains Section 39 to 42 have C
been complied and report of the Collector under Section 5-A(2)
of the Act is before the State Government who consents to acquire
the land on its satisfaction that it is needed for the company. A
valuable right, thus, accrues to the company to oppose the proposed
decision of the State government withdrawing from acquisition.
D
The State Government may have sound reasons to withdraw from
acquisition but those must be made known to the company which
may have equally sound reasons or perhaps more which might
persuade the State Government to reverse its decision withdrawing
from acquisition. In this view of the matter it has to be held that
Yadi (Memo) dated 11.4.91 and Yadi (Memo) dated 3.5.91 were E
issued without notice to the appellant (L&T Ltd.) and are, thus,
not legal.
16. The decision to withdraw from acquisition is justiciable. In
other words, what is described as a liberty or a power with the Government
must be understood also as being attended with the duty to act in a fair F
and bona fide manner. This means that present the inevitable and
indispensable requirement, namely, that actual possession of the land
has not been taken under the Act, it is open in a fit and appropriate case
and bearing in mind public interest and the facts for the Government to
withdraw from the acquisition. It is the duty of the authority to be mindful
of all relevant inputs before it takes a decision to withdraw from the G
acquisition. It is also clear that withdrawal from the acquisition must be
preceded by offering an opportunity to the beneficiary at whose instance
the acquisition is to be made. It is also clear that the withdrawal from
acquisition can be made only by issuance of a notification. The reasoning
for the same has been elaborately supplied in the judgment of this Court H
874 SUPREME COURT REPORTS [2022] 19 S.C.R.
A in the case of 1998 (4) SCC 387 (supra). In 2001 (1) SCC 610 this court
reiterated that an opportunity of being heard must be given to the
beneficiary before power is involved under Section 48.
17. A question may arise as to what is the true nature of the
power exercised under Section 48. It is a power which is vested with a
B statutory authority. No doubt the power would be exercised in terms of
the orders under which the competent authority would be empowered to
act in the matter. Whoever is the authority which is exercising the power
in accordance with the extant norms, he is exercising the power which
would be subject to judicial review on well-settled principles in the face
of a challenge to the exercise of the power.
C
18. The question would arise as to whether once the power has
been exercised in the proper manner and it has culminated in a notification
spoken of by this Court in 1998 (4) SCC 387 (supra), it is open to the
authority to withdraw the notification. In this case, a representation was
given by the land owner and the alleged purchasers from the land owner.
D It was, inter alia, their case that possession had not been taken. On the
basis of the said request, a Notification under Section 48 has been issued
on 07.07.2005. The contents of the notification would tend to indicate,
inter alia, that possession of the land was not taken and taking of
possession is not actual possession. We have already noticed that the
E taking of possession which would prevent the exercise of power under
Section 48 must be taking of khas possession or actual possession. The
notification dated 07.07.2005 further recites that the appellant was notified
about the proposal and what is more it was followed up by three
reminders. It is further noticed that there was no response from the
appellant. Therefore, this is not a case where flouting the law laid down
F by this Court, withdrawal from the acquisition was made under Section
48 without compliance with principles of Natural Justice as far as the
beneficiary is concerned.
19. The order recites no doubt that there is no notice issued under
Section 9 (3) of the Land Acquisition Act. Here we may notice that a
G perusal of Section 17 (1) of the Land Acquisition Act would show that
the possession can be taken in cases where urgency clause is invoked,
upon the expiry of 15 days of the publication of notice under Section 9
(1). Here the authority apparently has not looked into the question as to
whether possession was taken with reference to the relevant date which
is the publication of notice under Section 9 (1). Section 9(1) of the Land
H
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING 875
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
Acquisition Act in fact speaks about the need to give a public notice. A
Section 9 (3) speaks about duty to give individual notices to land owners.
As correctly pointed out by Shri Vishwajit Singh, non-service of notice
under Section 9 (3) would not be sufficient to invalidate the acquisition.
But then the relevance of Section 9(3) notice as pointed out by Shri
Yathendra Singh is that if it had been produced and proved, it would
B
have gone a long way in proving the case of the appellant that possession
had in fact been taken. In this regard, it is apposite to notice that in the
appeal carried by the appellant to this Court, the appellant held out that it
had material to show that notice was issued. We may notice the contents
of the order passed by this Court on 11.02.2016 in Civil Appeal No. 6272
of 2012. C
“1. The challenge in the writ petition before the High Court was
in respect of a notification dated 25.04.2008 cancelling an earlier
notification dated 07.07.2005 by which the subject land was
exempted in exercise of power under Section 48 of the Land
Acquisition Act, 1894 (for short, “the Act”). The High Court D
allowed the writ petition and set aside the order dated 25.04.2008,
inter alia, holding that the notification dated 07.07.2005 was legal
and valid inasmuch as no notice 2 under Section 9 of the Act was
issued nor possession had been taken over under Sections 16 or
17 of the Act. Accordingly, the High Court held that there was no
power to issue the impugned notification dated 25.04.2008 E
superseding the earlier notification dated 07.07.2005.
2. Before us, it is contended on behalf of the appellant that the
High Court has committed a factual error in holding that no notice
under Section 9 of the Act had been issued or that possession of
the land had not been taken. The above-mentioned argument is F
sought to be canvassed on the strength of certain documents which
have been laid before us along with memo of appeal. On being
queried it is stated on behalf of the appellant that the said
documents were also laid before the High Court but were not
considered. The plea urged would find support from the counter
G
affidavit filed on behalf of the appellant before the High Court. 3.
As a consideration of the said documents would require us to
determine several connected questions/issues of fact and may
also require looking into the documents in original, we are of the
view that instead of entertaining this appeal any further, it would
H
876 SUPREME COURT REPORTS [2022] 19 S.C.R.
A be more appropriate for the appellant to move the High Court for
recall of impugned order, if it so desires.
4. We, accordingly, dispose of the appeal in the above terms
maintaining the interim order passed by this Court for a period of
six weeks, within which it will be also open for the appellant to
B seek interim relief from the High Court.
5. We make it clear that we have expressed no opinion on the
merits of the case.”
20. An attempt was made by Shri Vishwajit Singh, learned senior
counsel to lay store by notice dated 25.09.1985 and to claim it to be a
C notice under Section 9 (3):
“NOTICE
OFFICE OF THE SPECIAL LAND ACQUISITION
OFFICER (II),
U.P. AVAS EVAM VIKAS PARISHAD, AGRA
D
No.: 6/8-SLAO(AVP) – Dated: 25.9.85
Subject: Maholi Bhumi Vikas Evam Grihsthan Yojana No. 2,
Mathura
Shri Ram Ratan s/o Ghure
E Village Nakati, Mathura
By way of this Notice, this is to inform you that 28.9.85 has
been fixed for passing Award for the land of Village Palikheda,
Pargana, Tehsil and District Mathura which has been acquired
under the aforesaid Yojana.
F Therefore, it is requested to be present on the aforesaid date before
me in Collectorate, Mathura and be informed about the Award.
Sd/- illegible
25.9.85
G Atma Ram Tripathi
Special Land Acquisition Officer
U.P. Awas Evam Vikas Parishad, Agra
Sd/- Ram Singh
===============================================
H
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING 877
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
Sir, A
As per your instructions, I went to the aforesaid address to
deliver the Notice. Receiver Ram Ratan was not found to be
present in the house.
Therefore, one copy of the notice was handed over to the
son of the addressee and obtained his signature. B
Sd/- Ram Autar”
21. The contents of the notice would clearly show that it cannot
be understood as a notice under Section 9(3). Instead, it is a notice
notifying the owner about the fact that the award is going to be passed
on 28.09.1985. We may notice that the date of the so-called notice under C
Section 9 (3) is 25.09.1985. A notice under section 9 is to be followed by
enquiry under Section 10 and award under Section 11 certainly cannot
be confused with notice which merely notifies the owner about the date
fixed for passing the award. There is only a gap of three days between
the date of the notice and the date fixed for passing of the award. D
Therefore, the appellants have not been able to establish any notice
under Section 9 (3) was issued.
22. It is no doubt true that Shri Vishwajit Singh is correct in pointing
out that the recitals in the award are that the respondent (original owner’s
son) was heard and, in the award, it is mentioned also that there was a
E
money suit which was decreed against the respondent and the decretal
amount came to be partially adjusted from out of the proceeds of the
award.
23. However, passing on to the premise of the impugned order
dated 25.04.2008, we find that after referring to the request made by the
appellant, the authority has purported to draw support from the order F
dated 15.09.2006 issued by the Government. The order dated 15.09.2006
undoubtedly proclaimed that exemption from acquisition or rather
withdrawal from acquisition must receive the attention of the concerned
department. Its terms would indicate that Government decided to do
away with the earlier order passed in the year 2002. The order dated G
15.09.2006 is explicit in that, it was to have an ‘immediate effect’. This
means that it was not retrospective. This further inevitably means that it
cannot affect orders/notifications which had been issued invoking power
under Section 48 prior to 15.09.2006. Yet a perusal of the order dated
25.04.2008 would reveal that the Government has proceeded to act on
H
878 SUPREME COURT REPORTS [2022] 19 S.C.R.
A the basis of order dated 15.09.2006. In other words, the impugned order
which has been set aside by the High Court is entirely based on an order
which has no application to the facts. We say this for the reason that we
wish to clarify that it is not as if when a notification is issued under
section 48, it can never be undone irrespective of the facts obtaining in a
case. Apart from the fact that it is open to challenge in a court of law at
B
the instance of an aggrieved party in a given case if it is shown it is
procured by fraud, it may be open to the authority to undo the same. It is
an administrative order, no doubt issued under a statutory provision by a
public authority. Since the law is that principles of natural justice apply
and the power can be exercised only after offering an opportunity to the
C beneficiary as distinct from the owner, in a case where it is found that a
notification was issued without notice, which is indispensable to passing
of a valid notification, it may be open to the Government to undo the
effect of the notification. In the facts of this case, it is not even the case
of the appellant in its representation that the recital in the notification
that it was given opportunity to make its representation against the
D
proposed action was wrong. The appellant did not have a case in its
representation that it was not given any opportunity to represent against
the order. The appellant seeks to make good this omission by contending
that a ground was raised that there was violation of natural justice. We
do not think we should permit the appellant to make good an omission
E which stares in our faces, in the facts of this case. We think that the
appellant has not made out a case for interference with the impugned
orders. Thus, the appeals stand dismissed. This will not stand in the way
of the appellant to acquire the lands in accordance with law. Parties are
left to bear their respective costs.
F
Nidhi Jain and Amarendra Kumar Appeals dismissed.
(Assisted by : Ajay, LCRA)
G
H
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