Supreme Court: The Division Bench comprising of Hemant Gupta and V. Ramasubramanian*, JJ., held that notification u/s 48(1) of the Land Acquisition Act, 1894 for exempting land from acquisition is of administrative nature and not of quasi-judicial nature. Therefore, it will not confer any vested rights in immoveable property forbidding the State to call back the same.
A Notification was issued by the State Government under Section 36 of the United Provinces Town Improvement Act, 1919 (akin to Section 4(1) of the Land Acquisition Act, 1894) for the acquisition of land of a total extent of acre 1.85 in Village Mirzapur, Gorakhpur for the public purpose of providing housing/residential accommodation. The emergency clause was invoked and the enquiry dispensed with and possession of the entire land except one 2 piece bearing plot No.292/2 measuring an extent to 0.028 acres, was taken over by the State Government and an award was also passed.
In an attempt to get their land released from acquisition, the land owners contended before the Government that the aforesaid land was the only source of their livelihood and they earn their livelihood by way of vegetation/horticulture on the said land. There are 20 members in their family and none of them have their own house and that they would live there by making houses on the land. Cemeteries of their forefathers exist on the land and as per the general policy of the Government; such land should not be acquired.
Cancellation of Notification Exempting Land from Acquisition
Eventually, a notification was issued under Sections 48(1) and 49(1) of the Land Acquisition Act, 1894 by the government to exempt the land from acquisition subject to the condition that the land owners will not sell the land. But within a couple of years, the Government issued another notification cancelling the notification u/s 48(1) on the ground that the land owners had played fraud by making false representations, while seeking the release of the land as it came to the notice of the government from various sources that the aforesaid exempted land was being used for commercial purposes and the land mafias were buying and selling the land after raising illegal constructions on it.
Findings of the High Court
The High Court of judicature at Allahabad set aside the second Notification holding 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 was based upon two premises, namely,
- There is no provision in the Land Acquisition Act for cancellation of a Notification under Section 48(1); and
- 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 7 of acquisition as enunciated in the Statute.
Is State empowered to call back Notification exempting land from Acquisition?
Section 21 of the General Clauses Act, 1897 states that power to issue include power to add to, amend, vary or rescind notifications, orders, rules or byelaws. Therefore, the power to issue Notification would include a power to rescind the Notification.
- 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.
Is Notification under section 48(1) of the Land Acquisition Act a Quasi-judicial order?
On the reliance placed by the respondent on Industrial Infrastructure Development Corporation (Gwalior) M.P. Ltd. v. CIT, (2018) 4 SCC 494, to contend that power under Section 21 of the General Clauses Act is not available after an enforceable right has accrued under the notification or order, the Bench stated that Section 21 has no application to vary or amend or review a quasi-judicial order but a proceeding under section 48(1) of the Land Acquisition Act is administrative in nature. Therefore, the Bench opined that reliance on the decision in Industrial Infrastructure Development was misplaced.
The Bench clarified, the essence of a quasi-judicial order 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 the case at hand was the Parishad, and not the land owners. Therefore, the Bench rejected the argument that a Notification under Section 48(1) is a quasi-judicial order.
Coming to the argument that the Notification under Section 48(1) had created a vested right and that the same could not be taken away unilaterally by a subsequent Notification for cancellation, the Bench emphasised that the first Notification was secured by the respondents by false representations and by playing fraud as 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 could not and did not share the same religious sentiments with the respondents.
Therefore, the withdrawal of such an illegal notification, which was secured by fraud, could not be found fault with. Accordingly, all the contentions of the respondents were rejected and the appeals were allowed. The impugned orders of the High Court were set aside and since the acquisition had been completed in all respects the Parishad was granted to proceed to implement the public purpose for which the land was acquired. [U.P. Avas Evam Vikas Parishad v. Noor Mohammad, 2021 SCC OnLine SC 1266, decided on 16-12-2021]
Kamini Sharma, Editorial Assistant has put this report together
For the Appellants: Vishwajit Singh, Advocate
For the Respondent: Krishnam Mishra, Advocate and Anand Varma, Advocate
*Judgment by: Justice V. Ramasubramanian