Case: U.P. AVAS EVAM VIKAS PARISHAD THROUGH  HOUSING COMMISSIONER &amp; ANR Vs. NOOR MOHAMMAD &amp; ORS

3. A Notification dated 25.07.1964 was issued by the State Government under Section 36 of the United Provinces Town Improvement Act, 1919 (hereinafter referred to as the U.P. Act) for the acquisition of land of a total extent of acre 1.85 in Village Mirzapur, Tehsil-Sadar, District Gorakhpur for the public purpose of providing housing/residential accommodation. This notification is akin to Section 4(1) of the Land Acquisition Act, 1894.4. The above notification was followed by another notification dated 17.06.1967 under Section 42 of the U.P. Act, which is equivalent to Section 6 of the Land Acquisition Act, 1894. It appears that the emergency clause was invoked and the enquiry dispensed with, before the declaration was made. The possession of the entire land except one piece bearing plot No.292/2 measuring an extent to 0.028 acres, was taken over by the State Government on 24.07.1970 and an award was also passed on 30.03.1971.5. From the year 1983, the land owners made attempts to get the lands released from acquisition, but fortune fluctuated in a see-saw battle.6. Eventually by a Notification dated 7.04.2003 issued in exercise of the powers conferred by Section 49(1) of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 read with Section 48(1) and 49(1) of the Land Acquisition Act, 1894, the land was exempt from acquisition. But within a couple of years, the Government issued another notification dated 15.09.2005 cancelling the notification dated 07.04.2003 on the ground that the land owners had played fraud by making false representations, while seeking the release of the land.7. Challenging the said Notification dated 15.09.2005, the original land owners filed a writ petition in W.P (C) No.64727 of 2005 and the purchaser of one part of the land from the original owners filed another writ petition in W.P No.50151 of 2008. Both these writ petitions wereallowed by Division Bench of the High Court by an Order dated 31.08.2010, holding that once the acquired land is released from acquisition, by way of Notification, the Government can reclaim the land only by initiating a fresh process of acquisition. Aggrieved by the said order, the Housing and Development Authority has come up with the above appeals.

Reasoning:
10. But insofar as the first contention is concerned, Section 21 of the General Clauses Act, 1897 is a complete answer. It reads as follows:-21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.- Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye- laws so issued.15. Therefore, it is clear that the land owners were actually playing hide and seek by pleading religious sentiments, leading to the issue of the Notification dated 7.04.2003 under Section 48(1). In other words the Notification under Section 48(1) was invited by the land owners by making false representations. The land owners have actually played fraud upon the Government and secured the Notification dated 7.04.2003. Hence, they cannot be allowed to contend that the land can be acquired only through a fresh process of acquisition.19. But the decision in Industrial Infrastructure Development Corporation (supra) arose out of an order passed under Section 12-A of the Income Tax Act, 1961, which was admittedly a quasi judicial order. In paragraphs 19 and 20 of the said decision, this Court pointed out that the functions exercisable by CIT under section 12-A are neither legislative nor executive but essentially quasi-judicial in nature and that an order under section 12-A of the Income Tax Act does not fall in the category of orders mentioned in Section 21, which would be in the nature of Notification/Rules/bye-laws.20. But a proceeding under section 48(1) of the Land Acquisition Act is administrative in nature as can be seen from the language employed.What is provided in Section 48(1) is the power/liberty to withdraw from acquisition. It is an administrative act. Therefore, the reliance on the decision in Industrial Infrastructure Development Corporation (supra) is misplaced.21. For the very same reason, the decision in H.C.Suman, is also of no assistance to the respondents in as much as the first notification of the Lt. Governor, which was sought to be withdrawn by the subsequent notification, was issued pursuant to a 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.22. While a Notification for acquisition issued under Section 4(1) of the Land Acquisition Act seeks to take away an individuals 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.23. 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).24. Coming to the second limb of the argument that the Notification under Section 48(1) has created a vested right and that the same cannot be taken away unilaterally by a subsequent Notification for cancellation, we have to state that the first Notification was secured by the respondents by false representations and by playing fraud. When the respondents wanted to ward off the acquisition, they claimed that there were cemeteries of their forefathers, but after the first notification was issued, they started selling the land to third parties, who cannot and do not share the same religious sentiments with the respondents. We have already extracted the second Notification dated 15.09.2005 which contains the list of sales made by the land owners. The enquiry conducted by the Housing Commissioner has revealed that the land mafia has taken over the land. It is trite to point out that an order secured by fraud and misrepresentation will not confer any vested right and that, therefore, the land owners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A.But the decision in Mutha Associates (supra) is actually a double-edged weapon insofar as the respondents are concerned. In that case, this Court held that even for the exercise of the power of withdrawal under Section 48(1) of the Land Acquisition Act, an opportunity had to be given necessarily to the beneficiary. In fact two principles could be culled out from Mutha Associates. They are: (i) that the publication of the Notification under Section 48, is necessary just as the publication of notifications under Sections 4 and 6 are mandatory; and (ii) that the beneficiary should be heard before the withdrawal of land from acquisition.26. In this case, the Notification dated 7.04.2003 does not appear to have been preceded by an opportunity of hearing to the beneficiary, namely, U.P. Avas Evam Vikas Parishad. Therefore, the withdrawal of such an illegal notification, which was secured by fraud, cannot be found fault with.