U.P. Awas Evam Vikas Parishad through Housing Commissioner vs Ram Singh (D) Th. Lrs. & Ors.

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 issued under Section 4 and after 15 days of the notice issued under Section 9(1) of the Land Acquisition Act. [Para 13, 14][870-G-H; 871-AB]

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 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 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 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 a notification. [Para 16][873-F-H]

1.4 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 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. [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 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. 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 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 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 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 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-GH; 875-A-C]

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 socalled 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 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 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 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 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 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 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 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 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. 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]

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) 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.