Power to issue notification under Section 48(1) of The Land Acquisition Act includes power to rescind: Supreme Court of India

Judicature at Allahabad setting aside a Notification cancelling a Act 1894 for the release of the land of the respondents herein from 2. We have heard Shri Vishwajit Singh learned counsel appearing for A Notification dated 25.07.1964 was issued by the State Government under Section 36 of the United Provinces Town acquisition of land of a total extent of acre 1.85 in Village Mirzapur Tehsil­Sadar District Gorakhpur for the public purpose of providing 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 piece bearing plot No.292 2 measuring an extent to 0.028 acres was From the year 1983 the land owners made attempts to get the lands released from acquisition but fortune fluctuated in a see­saw the powers conferred by Section 49(1) of the U.P. Avas Evam Vikas Acquisition Act 1894 the land was exempt from acquisition. But within a couple of years the Government issued another notification dated Challenging the said Notification dated 15.09.2005 the original allowed by Division Bench of the High Court by an Order dated 31.08.2010 holding that once the acquired land is released from acquisition by way of Notification the Government can reclaim the land necessary to bring on record the background in which the original Notification dated 07.04.2003 under Section 48(1) of the Land notification dated 15.09.2005 cancelling the previous one. This Notification dated 15.09.2005 and hence it is reproduced as follows “ Land in Village Mirzapur Betiahtata Gorakhpur was acquired under the provisions of U.P. Town Improvement Act 1919 for the Evam Vikas Parishad for planned development of the area. The State Government issued Notification u s 17 of the Land Acquisition Act 1894 vide no. 93Ka 37­19(1)(16)­66 dated 0.51 Acre) Khasra no. 254Khasra no. 255 1 rakba 0.18 Acre) Khasra no. 255 2Khasra no 291 1 Khasra no. 291 2 w o Late Rojan Shri Noor Mohd. Shri Shafi Mohd. Shri Ramjan New Avas Vikas Colony) Post Office Sadar Dist. Gorakhpur was received by the Government on 23.1.84 by which the applicants brought to the notice of the government that the aforesaid plots house and that they would live there by making houses on the land. After due consideration on the applications received from applicants the government issued G.O. no. 472 37­2­85­3 HB(108) 83 dated 30.01.85 thereby exempting the aforesaid khasras from acquisition with the condition that the landowners issued by the Government whereby cancelling the earlier G.O dated 30.1.85 in which it was specifically mentioned that the layout map of the Yojana may be modified while excluding the orders of the Hon ble High Court after giving serious thoughts to before the Hon ble High Court in which the Hon ble High Court by the applicants from time to time. In their representations the after due consideration Notification no.1049 9­Aa­2­2003­3 HB 257Khasra no. 254Khasra no. 255 1Khasra no. 255 2Acre) Khasra no. 292 1 Khasra no. 292 2 After passing of the Notification it came to the notice of the In view of the complaints inquiry was got conducted from the sought. The Housing Commissioner submitted his inquiry report 0.30 acre) khasra no. 255khasra no. 257 rakba 0.51 acre)} was sold out on 23.4.2003 through b) 5220 sq.ft. land from Khasra no. 255 was sold through 2370 sq.ft. land from Khasra no. 254 was sold through d) 9000 sq.ft. land from Khasra no. 254 and 255 was sold n 16.9.2004 to Smt. Vartika Singh w o Shri Krishna Singh From the above it is evident that the facts placed by the was released from acquisition vide Notification dated 7.4.2003 were misleading and false. The applicants are in the process of selling the land after dividing it in small plots and they neither using the land for earning their livelihood by way of doing vegetation nor for any other purpose. Therefore after due 2003­3 HB 83 dated 7 April 1983 issued in respect of Notification dated 15.09.2005 was that once a Notification is issued under Section 48(1) of the Land Acquisition Act 1894 the land gets released from acquisition and that therefore the only way the State Government could retrieve the land is to initiate the process of acquisition afresh. This reasoning is based upon two premises namely i) that while there is a provision under Section 48(1) of the Land 10. But insofar as the first contention is concerned Section 21 of the “21. Power to issue to include power to add to amend vary or rescind notifications orders rules or bye­laws.­ notifications orders rules or bye­laws is conferred then that subject to the like sanction and conditionsto add to amend vary or rescind any notifications orders rules or bye­ 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 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 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 12. Therefore the land owners filed a writ petition in Civil Government and to the Parishad not to dispossess them. This Writ land owners to file a representation to the Government within one month and directing the State Government to consider the said 13. Pursuant to the said order the land owners made a representation 14. Challenging the Order of rejection dated 21.12.1991 the land said writ petition was dismissed as withdrawn on 9.04.1999 Thereafter a fresh representation was made on 29.05.1999. It was reiterated in the said representation that there are cemeteries and programmes were being conducted in the acquired land. It is on the basis of the said representation that the Notification dated 7.04.2003 15. Therefore it is clear that the land owners were actually playing 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 16. The learned counsel for the respondents­land owners contended that Section 21 of the General Clauses Act does not confer an overarching power on the Government to rescind a notification 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 17. In support of the aforesaid contention Mr. Anand Varma learned counsel for the respondents relies upon the decision of this Court in Industrial Infrastructure Development Corporation M.P “21. The general power under Section 21 of the General Clauses Act to rescind a notification or order has to be 18. The learned counsel for the respondents also relied upon the 4 SCC 494 decision in H.C. Suman vs. Rehabilitation Ministry Employees Co­ 19. But the decision in Industrial Infrastructure Development the Income Tax Act 1961 which was admittedly a quasi judicial order that “the functions exercisable by CIT under section 12­A are neither legislative nor executive but essentially quasi­judicial in Act does not fall in the category of orders mentioned in Section 21 which would be in the nature of 4 SCC 485 48. Completion of acquisition not compulsory but 3) The provision of Part III of this Act shall apply so far as may be to acquisition. It is an administrative act. Therefore the reliance on the decision in Industrial Infrastructure Development Corporation 21. For the very same reason the decision in H.C.Suman is also of no Lt. Governor which was sought to be withdrawn by the subsequent vested right which was given effect through a notification. Therefore recourse to the general power of rescindment available under 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 is quasi­judicial in nature is that it is preceded by an opportunity of 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 23. Therefore we reject the argument that a Notification under Section we have to state that the first Notification was secured by the respondents by false representations and by playing fraud. When the issued they started selling the land to third parties who cannot and do 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 and that therefore the land owners cannot pitch their claim either on Interestingly Sh. Anand Varma learned counsel for the and Ors. vs. State of Maharashtra and Ors.3 in support of his contention that even if the impugned notification is taken to be administrative in nature the same should be preceded by an Associates is actually a double­edged weapon insofar as the Acquisition Act an opportunity had to be given necessarily to the beneficiary. In fact two principles could be culled out from Mutha 14 SCC 304 Associates. They are: that the publication of the Notification under 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 27. Therefore in fine all the contentions of the respondents­ land

Summary: The essence of an order which is quasi­judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. Therefore, we reject the argument that a Notification under Section 48(1) is a quasi­judicial order. As a consequence, we reject the argument that the Government cannot fall back upon Section 21 of the General Clauses Act to rescind an order under Section 48(1). Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice Hemant Gupta &amp; Hon’ble Justice V. Ramasubramanian in the matter of U.P. AVAS EVAM VIKAS PARISHAD THROUGH  HOUSING COMMISSIONER &amp; ANR. vs NOOR MOHAMMAD &amp; ORS. [Civil Appeal No.8083 of 2011]. 
The facts of the case were that a Notification dated 25.07.1964   was issued by the   State Government under Section 36  of the   United   Provinces   Town Improvement Act, 1919  for the acquisition of land of a total extent of acre 1.85 in Village Mirzapur, Tehsil­Sadar, District Gorakhpur for the public purpose of providing housing/residential accommodation. From the year 1983, the landowners made attempts to get the lands released from acquisition, but fortune fluctuated in a see­saw battle. 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 canceling the notification dated 07.04.2003 on the ground that the landowners had played fraud by making false representations while seeking the release of the land. Aggrieved the original landowners preferred two writ petitions before Division Bench of the High Court who allowed both the writs and held 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 present appeals.

The Hon’ble Supreme Court observed that 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 a benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasi­judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original landowners. 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 landowners. 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. Therefore, the argument that the notification under section 48(1) is quasi-judicial in nature can be ruled out.

Additionally, the Hon’ble Supreme Court observed that the first Notification dated 7.04.2003 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. 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 landowners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A. 

Finally, the Hon’ble Supreme Court rejected all the contentions of the original landowners and allowed the present appeal.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 The facts of the case were that a Notification dated 25.07.1964   was issued by the   State Government under Section 36  of the   United   Provinces   Town Improvement Act, 1919  for the acquisition of land of a total extent of acre 1.85 in Village Mirzapur, Tehsil­Sadar, District Gorakhpur for the public purpose of providing housing/residential accommodation. From the year 1983, the landowners made attempts to get the lands released from acquisition, but fortune fluctuated in a see­saw battle. 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 canceling the notification dated 07.04.2003 on the ground that the landowners had played fraud by making false representations while seeking the release of the land. Aggrieved the original landowners preferred two writ petitions before Division Bench of the High Court who allowed both the writs and held 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 present appeals. 
The Hon’ble Supreme Court observed that 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 a benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasi­judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original landowners. 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 landowners. 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. Therefore, the argument that the notification under section 48(1) is quasi-judicial in nature can be ruled out.

Additionally, the Hon’ble Supreme Court observed that the first Notification dated 7.04.2003 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. 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 landowners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A. 

Finally, the Hon’ble Supreme Court rejected all the contentions of the original landowners and allowed the present appeal.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 The Hon’ble Supreme Court observed that 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 a benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasi­judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original landowners. 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 landowners. 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. Therefore, the argument that the notification under section 48(1) is quasi-judicial in nature can be ruled out. 
Additionally, the Hon’ble Supreme Court observed that the first Notification dated 7.04.2003 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. 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 landowners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A. 

Finally, the Hon’ble Supreme Court rejected all the contentions of the original landowners and allowed the present appeal.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 Additionally, the Hon’ble Supreme Court observed that the first Notification dated 7.04.2003 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. 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 landowners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A.  
Finally, the Hon’ble Supreme Court rejected all the contentions of the original landowners and allowed the present appeal.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 Finally, the Hon’ble Supreme Court rejected all the contentions of the original landowners and allowed the present appeal.