# Hardayal Singh & Anr v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 1256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-23
- **Bench:** Sudhir Agarwal, Shamsher Bahadur Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hardayal-singh-anr-v-state-of-u-p-ors-43721
- **Pages:** 16

## Headnote

Land Acquisition Act, 1894 - Sections 4, 5A, 6, 17 and 48 - Acquisition for planned development -
Challenge to notifications - Delay and laches - Earlier writ petitions - Challenge not pressed - Bar against
re-agitation - Validity of acquisition notifications not open in subsequent writ petitions. (Paras 12-13)
5 All. Hardayal Singh & Anr. Vs State Of U.P. & Ors.

1257
Land Acquisition Act, 1894 - Section 48 - Nature of power - Liberty of State - Not a right of
landowner - Discretionary power - Scope. Section 48 confers liberty upon State Government to withdraw
from acquisition of land of which possession has not been taken - No corresponding right in landowner to
insist upon release - Refusal to exercise discretion not justiciable - Court cannot sit in appeal over
Government's decision declining release. (Paras 20-21, 27-28, 31, 36-37)

Land Acquisition Act, 1894 - Section 48 - Possession - Vesting.
Once possession of acquired land is taken and land vests in State - Section 48 becomes inapplicable - Land
cannot be released thereafter - Representations seeking exemption rightly rejected where possession already
taken. (Paras 17-18, 21, 26)

Planned development - Residential scheme - Abadi / unauthorised constructions.
Existence of Abadi or structures on acquired land not a bar to acquisition for planned development -
Unauthorised constructions raised without sanctioned map - Cannot defeat or obstruct planned and
systematic development - Compensation for structures available under law. (Paras 17, 19, 40)

Judicial review - Orders under Section 48.
Decision of State Government on applications under Section 48 not subject to judicial review as appellate
scrutiny - No obligation on State to give hearing or reasons to landowner - Principles of natural justice
excluded by statutory scheme - Review permissible only at instance of beneficiary in exceptional cases.
(Paras 20, 28-32)

Land Acquisition - Objections - Section 5A - Finality.
Right to object to acquisition confined to stage prior to declaration under Section 6 - After issuance of
Section 6 notification, no further channel available to landowner to reopen acquisition proceedings - Section
48 cannot be used as second round of objections. (Paras 25-27)
Land Acquisition - Misuse of Section 48 - Caution by Court.
Repeated litigation by landowners seeking release after completion of acquisition process deprecated -
Opening second channel of litigation under Section 48 likely to frustrate development schemes - Courts must
not encourage such practice. (Paras 41-44)

IN Result: Writ petition dismissed

List of Cases cited:

Union of India & Another v. Bal Ram Singh & Another, 1992 Supp. (2) SCC 136
State of Tamil Nadu & Another v. Mahalakshmi Ammal & Others, (1996) 7 SCC 269
Special Land Acquisition Officer, Bombay & Others v. M/s Godrej & Boyce, (1988) 1 SCC 50
Amarnath Ashram Trust Society & Another v. Governor of U.P. & Others, (1998) 1 SCC 591
Larsen & Toubro Ltd. v. State of Gujarat & Others, (1998) 4 SCC 387
State Govt. Houseless Harijan Employees Association v. State of Karnataka & Others, AIR 2001 SC 437
City Montessori School v. State of U.P. & Others, 2007 (2) AWC 1072
Smt. Manju Lata Agrawal v. State of U.P. & Others, 2007 (9) ADJ 447
Babu v. State of U.P. & Others, 2008 (5) ADJ 171
Jagdish & Others v. State of U.P. & Others, 2008 (5) ADJ 5
Jagdish & Others v. State of U.P. & Others, SLP (Civil) No. 11641 of 2008, decided on 13.05.2008
Mills v. Colchester Corporation, (1867) L.R. 2 C.P. 476

## Text

_Characters 0–39,973 of 49,902. This is a partial read: ask again with offset=39973 for what follows._

1256 INDIAN LAW REPORTS ALLAHABAD SERIES
not in dispute, it was not open to DDC to grant relief to Respondent 4 in a revision preferred before
him against order of SOC by ignoring the said compromise.

33. The compromise document was already on record. If that be so, in absence of anything
to doubt the same, DDC was bound to treat it as an admission on the part of Respondent 4 and in
that view it could not have declared any share of Respondent 4 to continue which he admitted, and
in any case surrendered, in favour of petitioners.

34. In view of above discussion, I am clearly of the view that impugned judgment passed
by Revisional Court, in so far as Respondent 4 is concerned, i.e., to the extent it allowed Revision
No. 469 preferred by Respondent 4, cannot sustain.

35. The writ petition is allowed partly. Impugned judgment and order dated 02.02.1974, to
the extent it has allowed Revision No. 469 filed by Respondent 4, Ram Autar, is set aside and the
direction with respect of declaring share of Respondent 4 in respect of property in dispute is also
set aside. Instead, I declare that, in respect of disputed property Respondent 3 shall have half share
and remaining part is jointly in the co-ownership of both petitioners.

36. There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHAMSHER BAHADUR SINGH, J.

Writ C No.- 5016 Of 2012
&
Connected With Other Cases

Hardayal Singh & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
S.K. Tyagi

Counsel for the Respondents:
C.S.C., Mahesh Narain Singh

Land Acquisition Act, 1894 - Sections 4, 5A, 6, 17 and 48 - Acquisition for planned development -
Challenge to notifications - Delay and laches - Earlier writ petitions - Challenge not pressed - Bar against
re-agitation - Validity of acquisition notifications not open in subsequent writ petitions. (Paras 12-13)
5 All. Hardayal Singh & Anr. Vs State Of U.P. & Ors.

1257
Land Acquisition Act, 1894 - Section 48 - Nature of power - Liberty of State - Not a right of
landowner - Discretionary power - Scope. Section 48 confers liberty upon State Government to withdraw
from acquisition of land of which possession has not been taken - No corresponding right in landowner to
insist upon release - Refusal to exercise discretion not justiciable - Court cannot sit in appeal over
Government's decision declining release. (Paras 20-21, 27-28, 31, 36-37)

Land Acquisition Act, 1894 - Section 48 - Possession - Vesting.
Once possession of acquired land is taken and land vests in State - Section 48 becomes inapplicable - Land
cannot be released thereafter - Representations seeking exemption rightly rejected where possession already
taken. (Paras 17-18, 21, 26)

Planned development - Residential scheme - Abadi / unauthorised constructions.
Existence of Abadi or structures on acquired land not a bar to acquisition for planned development -
Unauthorised constructions raised without sanctioned map - Cannot defeat or obstruct planned and
systematic development - Compensation for structures available under law. (Paras 17, 19, 40)

Judicial review - Orders under Section 48.
Decision of State Government on applications under Section 48 not subject to judicial review as appellate
scrutiny - No obligation on State to give hearing or reasons to landowner - Principles of natural justice
excluded by statutory scheme - Review permissible only at instance of beneficiary in exceptional cases.
(Paras 20, 28-32)

Land Acquisition - Objections - Section 5A - Finality.
Right to object to acquisition confined to stage prior to declaration under Section 6 - After issuance of
Section 6 notification, no further channel available to landowner to reopen acquisition proceedings - Section
48 cannot be used as second round of objections. (Paras 25-27)
Land Acquisition - Misuse of Section 48 - Caution by Court.
Repeated litigation by landowners seeking release after completion of acquisition process deprecated -
Opening second channel of litigation under Section 48 likely to frustrate development schemes - Courts must
not encourage such practice. (Paras 41-44)

IN Result: Writ petition dismissed

List of Cases cited:

Union of India & Another v. Bal Ram Singh & Another, 1992 Supp. (2) SCC 136
State of Tamil Nadu & Another v. Mahalakshmi Ammal & Others, (1996) 7 SCC 269
Special Land Acquisition Officer, Bombay & Others v. M/s Godrej & Boyce, (1988) 1 SCC 50
Amarnath Ashram Trust Society & Another v. Governor of U.P. & Others, (1998) 1 SCC 591
Larsen & Toubro Ltd. v. State of Gujarat & Others, (1998) 4 SCC 387
State Govt. Houseless Harijan Employees Association v. State of Karnataka & Others, AIR 2001 SC 437
City Montessori School v. State of U.P. & Others, 2007 (2) AWC 1072
Smt. Manju Lata Agrawal v. State of U.P. & Others, 2007 (9) ADJ 447
Babu v. State of U.P. & Others, 2008 (5) ADJ 171
Jagdish & Others v. State of U.P. & Others, 2008 (5) ADJ 5
Jagdish & Others v. State of U.P. & Others, SLP (Civil) No. 11641 of 2008, decided on 13.05.2008
Mills v. Colchester Corporation, (1867) L.R. 2 C.P. 476

(Delivered by Hon'ble Sudhir Agarwal, J.
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
&
Hon'ble Shamsher Bahadur Singh, J.)

1. Sri S.K. Tyagi, learned counsel for the petitioners, learned Standing Counsel for
respondents State and Sri M.D. Singh 'Shekhar', learned Senior Advocate assisted by Sri M.N.
Singh, Advocate for respondent Hapur Pilakhua Development Authority.

2. Petitioners are claiming exemption of their land from acquisition, pursuant to
notifications issued under Section 4(1) of Land Acquisition Act, 1894(hereinafter referred to as the
"Act, 1894") published by State Government vide Gazette Notification dated 24.11.2005 and under
Section 6 vide notification dated 13.07.2006.

3. Factual matrix giving rise to the present dispute, in brief, may be stated as under.

4. Hapur Pilakhua Development Authority (hereinafter referred to as the "HPDA")
constituted under the provisions of U.P. Urban Planning and Development Act, 1973 (hereinafter
referred to as the "Act, 1973") for the area of Hapur and Pilakhua, needed certain land at Villages
Achcheja, Sabadi and Chamri in Tahsil Hapur, District Ghaziabad for Planned Development by
constructing residential colonies and requisitioned acquisition of land under the provisions of Act,
1894. Pursuant thereto State Government issued notification dated 24.11.2005 under Section 4(1)
of Act, 1894 proposing to acquire land in Villages Achcheja, Sabadi and Chamri, measuring
181.308 hectares. Proposed acquired land comprised of 88 Khasras, area 52.741 hectares in Village
Achcheja; 103 Khasras, area 80.028 hectares in Village Sabadi; and, 59 Khasras, area 49.539
hectares in Village Chamri. It also proposed to dispense with inquiry under Section 5A of Act,
1894 by resorting to Section 17(1) and (4) of Act, 1894.

5. Declaration under Section 6 was made vide notification dated 13.07.2006. Disputed land
of petitioners, in these writ petitions, is detailed as under:

Writ No.
Names
of
land owners
Khasra
No
Area in
hectares
Village
Date of
Sale deed
5016/12
Harayal
Singh and
Gurmeet
Singh
597 (old
No. 609)
0.076
Chamri
05.06.89
22.12.90
29.06.98
20.02.01
22994/12
Raisuddin
and
Anisuddin
643
0.240
Chamri
1999
5527/12
Om Prakash
Gava and
Bal
Kishan
Gava
597
0.076
(disputed
area 124
sq. yard)
Chamri
1989
28.06.97
5 All. Hardayal Singh & Anr. Vs State Of U.P. & Ors.

1259
2372/12
Om Prakash
and Smt.
Kamlesh
Devi
641, 643
0.158
0.240
Chamri
19.01.96
29.08.97
18.06.98
2373/12
Suresh
Chand Garg
and
Smt.
Sarla
Devi
638, 639
0.427
0.855
Chamri
03.01.92
11345/11
Smt.
Mithlesh
Tyagi
712
0.914
(disputed
area 162
sq.meter)
Chamri
15.01.90
(lease
deed)
16827/12
Rakesh
Goel and
two
others
712
0.914
(disputed
area 473
sq. meter)
Chamri
11.02.04
10.09.04

6. Petitioners in Writ Petition No. 5016 of 2012 initially came to this Court in Writ Petition
No. 2103 of 2006 seeking a writ of certiorari for quashing notification dated 24.11.2005 published
under Section 4(1) of Act, 1894. However, it appears that at the time of argument when this writ
petition came up for consideration on 18.02.2011, learned counsel for petitioners confined his
argument that disputed land, belong to petitioners, is Abadi and their residential house is existing
thereon, therefore, their land be exempted. This Court permitted petitioners to make a
representation and State Government was directed to consider the same under Section 48 of Act,
1894. Court referred to the judgments in Union of India and another Vs. Bal Ram Singh and
another 1992 Suppl.(2) SCC 136 and State of Tamil Nadu and another Vs. Mahalakshmi
Ammal and others, 1996(7) SCC 269 and observing that dispossession of petitioners was stayed,
disposed of writ petition directing Government to decide petitioners' application under Section 48
of Act, 1894 after considering their prayer for release of land. Status quo was directed to be
maintained. The order passed this Court is reproduced as under:

"By means of present writ petition under Article 226 of the Constitution of India,
the petitioner has prayed for the following reliefs:

i Issue a writ, rule, order or direction in the nature of certiorari quashing the
notification dated 24.11.2005 bearing No. 4345/832005165LA/ 2005 U/s 4(1) read with Section
17(1) of the Land Acquisition Act issued by the respondent No. 1 in so far as it relates to plot in
question.

Learned counsel appearing on behalf of the petitioner contended that since the
petitioner is owner and his name and abadi are mentioned in the Khasra and Khatauni over the
lands in dispute, therefore his land may be exempted from the acquisition proceeding, as over the
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
land in dispute residential houses are existing. He has also contended that in the similarly situated
circumstances, the land has been released/exempted by the State Government from acquisition
proceedings, hence the plots of the petitioner may also be exempted. Learned counsel appearing on
behalf of the petitioner has placed reliance upon certain decisions of the Apex Court.

 On the other hand, learned counsel appearing on behalf of the respondents
contended that possession over the land in dispute has been taken over and the notifications under
the Land Acquisition Act (herein after referred to as 'Act') has been issued in accordance with law.

Having heard learned counsel appearing on behalf of the parties and going
through the decisions cited, we are of the view that the State Government has not taken into
account the guidelines laid down by the Apex Court in Union of India and another Vs. Bal Ram
Singh and anther 1992 Suppl.(2) SCC, 136; State of Tamil Nadu and another Vs. Mahalakshmi
Ammal and others (1996) 7 SCC, 269 [{JT 2001 (6) SC, 578}], wherein in both the decisions the
Apex Court has held, which reads as under :

"If the land is required for residential or commercial purposes and on a portion
thereof the residential or commercial establishment are already existing on the date of issuance of
notification under Section 4 of the Land Acquisition Act, particularly its publication in the official
gazette, the land holder makes an application in such a circumstances and satisfies that his
establishment is for residential purposes and the respondents have to establish the residential
colonies and its existence would not, by any means hinder development of the residential colonies,
the authorities should consider his case sympathetically."

Therefore, considering the facts and circumstances of the present case, we are of
the opinion that the finding of residential building etc. has already been recorded on the date of
issuance of notifications and it has not been recorded anywhere that it will create hindrance in the
development of the residential colonies. We further found that finding of possession of the land in
dispute has wrongly been recorded to have been taken over, as the stay order of dispossession has
been passed by this Court in the similar nature of writ petition.

In the result, the writ petition is finally disposed of with the direction that the
petitioner may file an application under Section 48 of the Act for release of the land within a period
of one month from today along with a certified copy of this order and the State Government is
directed to consider the application of the petitioner and pass a fresh appropriate order in the light
of the observations made by the Apex Court, the gist of which is quoted above within a period of
two months from the date of receipt of the application. Till the decision on the application under
Section 48 of the Act, the statusquo shall be maintained by the parties."

7. Similarly other petitioners also came to this Court in various writ petitions which were
disposed of with similar orders, as detailed below:

Writ No.
Petitioners
Earlier
Date of
5 All. Hardayal Singh & Anr. Vs State Of U.P. & Ors.

1261
Petition No.
decision
22994/12
Sabu and others
42866/08
18.08.10
5527/12
Om Prakash Gava
and others
42870/08
18.08.10
2372/12
Om Prakash and
another
6324/06
30.11.10
2373/12
Suresh Chand Garg
and another
24946/09
22.12.10
11345/11
Smt.
Mithlesh
Tyagi
47237/08
10.09.08
16827/12
Rakesh Goel and
others
5858/09
22.12.10

8. Learned counsel for petitioners contended that impugned acquisition notifications are
bad in law inasmuch as inquiry under Section 5A has been dispensed with without there being any
urgency, in a wholly illegal manner and, therefore, acquisition notifications must be quashed.

9. Challenging orders passed by Government rejecting petitioners' representations for
exemption of their land from acquisition, it is contended that State Government has exercised
powers arbitrarily and has not considered the fact that disputed land is already occupied by
residential houses and other structures raised by petitioners and hence same ought not to have been
acquired for residential purposes inasmuch as that purpose has already been served since residential
accommodations are already existing on disputed land.

10. Learned Standing Counsel on the contrary submitted that representations of petitioners
have been examined in detail and finding that land in question cannot be exempted under Section
48 of Act, 1894, representations have been rejected. It is also said that land of petitioners alongwith
existing structures, if any, has been acquired and possession taken on various dates as detailed
below:

Writ No.
Date of Possession
5016/12
16.02.2012
22994/12
11.07.2008
5527/12
11.07.2008
2372/12
11.07.2008
2373/12
11.07.2008
11345/11
11.07.2008
16827/12
11.07.2008

11. In the counter affidavit filed on behalf of respondents no. 1 to 3 it has been said that out
of 181.308 hectares of land, acquired under aforesaid notifications dated 24.11.2005 and
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
13.07.2006, 175.0018hectares land was taken in possession by Collector and handed over to
respondentHPDA on 11.07.2008. Only 6.3062 hectares of land could not be taken in possession
due to interim orders passed by this Court at that time. Further, acquired land belong to 1146
farmers out of which 948 farmers entered into agreement under U.P. Land Acquisition
(Determination of Compensation and Declaration of Award) Rules, 1997 (hereinafter referred to as
the "Rules, 1997") and compensation was paid to them to the tune of Rs. 1,09,07,04,869/in respect
of land comprising 151.7472 hectares. HPDA after taking possession over acquired land has laid
down 19.165 kilometers road as per lay out plan and after undergoing other developmental
activities like, sewer line, drains etc., overhead tanks for water supply of 429 flats have already
been constructed against proposed 4395 flats. 3914 plots/flats have also been allotted to different
persons. Land belong to petitioners are at crucial places in proposed housing colony and necessary
to be taken by HPDA for planned and systematic development of colony otherwise scheme would
stand frustrated and disturbed.\

12. So far as challenge to acquisition notifications are concerned, we find that except Writ
Petition No. 6324 of 2006, rests were filed in 2008 and 2009, i.e., with a delay of two years and
more. No reason has been given by petitioners as to why they filed writ petition with such a delay
and laches. This Court did not grant any relief in respect of challenge to acquisition notifications
and instead confined their claim with respect to exemption to be considered under Section 48 of
Act, 1894. Meaning thereby, challenge to acquisition notification was not accepted. So far as Writ
Petition No. 6324 of 2006 is concerned, we find that when matter came up for hearing on
30.11.2010 learned counsel for the petitioners did not press his challenge to validity of acquisition
notification and instead claimed that land belong to petitioners should be exempted by exercise of
power under Section 48 of Act, 1894. Thus, in this case also challenge to acquisition notification
again in second writ petition after decision on petitioners' representation under Section 48 of Act,
1894, cannot be allowed.

13. Moreover, in Writ Petition No. 2103 of 2006 petitioners did not challenge declaration
under Section 6 though it was disposed of on 18.02.2011. Similar is the position in respect of other
writ petitions also inasmuch as petitioners basically confined their claim only for exemption of
their land instead of stressing upon their challenge to validity of acquisition notification. Having
not pressed this relief in earlier writ petitions, now in these writ petitions such challenge, in our
view, cannot be permitted. Hence, we are not inclined to accept challenge of petitioners to validity
of acquisition notifications and in fact during course of argument, learned counsel appearing for
petitioners has also rightly not pressed this part of relief.

14. He has basically confined his challenge to the impugned orders passed by State
Government rejecting petitioners application for exemption under Section 48 of Act, 1894. We are,
therefore, basically confining our scrutiny to the validity of orders passed by State Government
rejecting petitioners' applications/ representations seeking exemption of their land from acquisition
under Section 48 of Act, 1894.

15. Section 48 of Act, 1894 reads as under:
5 All. Hardayal Singh & Anr. Vs State Of U.P. & Ors.

1263
"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 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
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 be, to the
determination of the compensation payable under this section."

16. It gives a liberty to Government to withdraw from acquisition of any land, possession
whereof has not been taken.

17. It has been said in all the cases that construction, if any, raised by petitioners is without
approval of plan/map and is unauthorised. Moreover, possession of land of most of petitioners was
already taken since there was no order of Court and that being so, Section 48 even otherwise is not
applicable.

18. Possession of acquired land belong to petitioners in Writ Petitions No. 22994 of 2012,
5527 of 2012, 2372 of 2012, 2373 of 2012, 11345 of 2011 and 16827 of 2012 is said to have been
taken on 11.07.2008. Nothing has been argued before us to show that said finding recorded by State
Government and the stand taken by respondents in counter affidavit is incorrect. That being so, in
respect of all these petitioners Section 48 of Act, 1894 is not attracted at all and, therefore, for this
reason alone we find no reason to interfere with the orders passed by State Government rejecting
representation of these petitioners for exemption of their land under Section 48 of Act, 1894.

19. Even otherwise we do not find ourselves persuaded with the argument advanced by
learned counsel for the petitioners that there is any patent illegality on the part of State Government
in rejecting petitioners' request for exemption of their land under Section 48 of Act, 1894. The
purpose of acquisition is for a planned development and mere fact that there is some Abadi does
not prevent State to acquire land since compensation of raised structure can also be claimed by
owners. Unplanned structures raised by individuals cannot be allowed to disturb entire planned
development else the very scheme of planned development is bound to affect adversely.

20. With regard to justifiability of an order passed by State Government on an application
made under Section 48, this Court has taken the view that judicial review is not available as if the
Court is sitting in appeal since it is a liberty granted to State and not a right conferred upon
individual landowners
to claim exemption.
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
21. A bare perusal of Section 48 makes it clear that once possession of land has been taken
by State Government and land vested in it, the same cannot be released from acquisition and to that
extent Section 48 has no application. However, where process of acquisition to the extent of
issuance of notification under Section 6 has been completed but possession of land has not been
taken by State Government, so long as possession has not been taken it is open to State
Government to release land from acquisition.

22. In order to understand the nature of power of State Government under Section 48 of
Act, 1894, it would be appropriate to recollect the procedure of acquisition under the said Act.
Whenever, it appears to the Government that any land in any locality is needed or is likely to be
needed for any public purpose or for a company, it shall publish a notification to that effect in the
official gazette. Besides, two daily newspaper circulating in that locality of which one atleast shall
be in regional language shall also contain the said notification and Collector shall cause public
notice of the substance of such notification to be given at convenient places in the said locality.
However, in view of U.P. Amendment vide U.P. Act No. 8 of 1974 an exception has been provided
in respect of such land to which by virtue of a direction of State Government under subsection 4 of
Section 17, provisions of Section 5A shall not apply and an explanation has also been inserted
w.e.f. 16.10.1978 which reads as under:

"Explanation.In respect of any land in a regulated area as defined in the Uttar
Pradesh (Regulation of Building Operations) Act, 1958, a notification under this subsection may be
issued in anticipation of the preparation and finalisation of a scheme for the planned development
of the area in which the land is situated and notwithstanding anything contained in section 5A, it
shall be sufficient to specify in such notification that the land is needed or is likely to be needed for
the planned development of that area without furtherr specification of the particulars of the
proposed development."

23. Section 17 of Act, 1894 provides that in cases of emergency whenever appropriate
government so directs, Collector on the expiration of 15 days from the date of publication of
declaration mentioned in Section 9 or with the consent in writing of the person concerned at any
time, after publication of notification under Section 4 may take possession of any waste or arable
land needed for public purpose or for a company and thereupon such land shall vest in the State
Government free from all encumbrances. Subsection 4 of Section 17 provides that in case where
subsections 1 or 2 are applicable, provisions of Section 5A shall not apply where Government so
directs or possession of the land has been taken with consent of the person concerned.

24. Section 5A, however provides, where notification under Section 4 has been issued any
person interested in any land which has been notified under section 4 may file objection to
acquisition of land or of any land in the locality as the case may be. Such objection shall be made to
Collector in writing who shall give an opportunity of being heard to the person concerned or any
person authorised by him and after hearing of such objections, shall make further inquiry, if any, as
he thinks necessary, and make a report to the Government containing his recommendation on the
objection together with the record of proceedings held by him for decision of the Government.
5 All. Hardayal Singh & Anr. Vs State Of U.P. & Ors.

1265
25. The Government concerned thereafter would take a decision on the objection which
shall be final. Thereafter, a notification is required to be issued under Section 6 declaring intention
of the Government for acquisition of land covered by notification under Section 4 and it shall also
authorise Collector to take possession of the land. Collector thereafter shall proceed to make award
with respect to compensation payable to the persons whose land is acquired and after making award
under Section 11 of Act, 1894 may take possession of land under Section 16 of Act, 1894. The
procedure, therefore, prescribed under Act, 1894 shows that the scope of filing objections with
respect to acquisition of land is available to the person concerned before issue of notification under
Section 6 of Act, 1894 and once a notification under Section 6 is issued, there is no provision under
which persons whose land has been acquired, are permitted to rake up the issue again by filing
objection before the Government or before any other authority objecting the proceeding of
acquisition.

26. Only cases in which procedure of filing objection may not be available are where
requirement of Section 5A is dispensed with by issuing notification under Section 17(4) of Act,
1894 on the ground of urgency and taking possession of land after notification issued under Section
4. The reason is quite obvious. Since possession is already taken, therefore, even after issue of
notification under Section 6 there is no occasion to apply Section 48 of Act, 1894 since possession
of land is already taken and land has vested in the Government. Such land cannot be released
thereunder.

27. However, whenever Section 48 is applicable, since State Government has been
conferred with a liberty to denotify an area from acquisition, provided no possession has been
taken, it has been made permissible in some of the matters to the persons whose land has been
acquired to approach State Government with a request to release their land from acquisition before
possession is taken. Whether an indulgence allowed by Courts can make inroad for creating another
channel of adjudication of dispute with respect to acquisition of land and also permit judicial
review when Government declines release of land from acquisition as if while considering such
objection/representation, State Government is required to act objectively, as is the case when it is
required to pass an order on the objections filed under Section 5A is the moot question to be
considered in this case. In our view the answer is no.

28. Section 48 of Act, 1894 gives a liberty to the Government to withdraw from acquisition
of any land of which possession has not been taken. Meaning thereby so long as land is not vested
in the Government, it has a discretion not to go ahead with the process of acquisition by taking
possession and can withdraw from such acquisition. The choice is of the Government and whether
it would act to release the land or not is within its sole discretion. So long as land is not vested in
the Government it remains property of the owner and when right to withdraw is exercised by
Government, it does not affect the owner prejudiciously in any manner.

29. A question arose in Special Land Acquisition Officer, Bombay and others Vs. M/s
Godrej and Boyce, 1988 (1) SCC 50 as to whether the Government is bound to give reasons for
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
availing its liberty of withdrawing any land from acquisition under Section 48 of the Act. Court in
para 6 of the judgement, held:

"It is difficult to see why the State Government should at all be compelled to give
any cogent reasons for a decision not to go ahead with its proposal to acquire a piece of land. It is
well settled in the field of specific performance of contracts that no person will be compelled to
acquire a piece of land as any breach of a contract to purchase it can always be compensated for
by damages. That is alsothe principle of S. 48(2)......"

30. Similarly in Amarnath Ashram Trust Society and another Vs. Governor of U.P.
and others, 1998 (1) SCC 591 referring to the power of Government under Section 48 of Act,
1894 in para 9 of the judgement, Court held that as a result of withdrawal from acquisition, the
owner of land is not likely to suffer any prejudice or irreparable loss. However, the company for
whose benefit land was to be acquired, if that suffer a substantial loss on account of such
withdrawal, to that extent and at the instance of such beneficiary, the issue may be justiciable as to
whether Government has rightly exercised its power under Section 48 or not but so far as owner is
concerned, it was held by Court that he is not likely to suffer any prejudice or irreparable loss.

31. In Larsen & Toubro Ltd. Vs. State of Gujrat and others, 1998 (4) SCC 387, Court
reiterated the above principle and said that an owner need not be given any notice of the intention
of State Government to withdraw from acquisition and State Government is at liberty to do so. It
was further held rights of the owner are well protected by Section 48(2) if he suffer any damage in
consequence of acquisition proceedings. Therefore, Court held that the right of Government to
withdraw from acquisition can be exercised at any point of time before having possession of the
land in question and such exercise of power by Government is not justiciable since it does not
affect or causes any prejudice to the owner. If that be so, we fail to understand as to how for not
exercising power under Section 48 of the Act, owner would stand on a higher footing compelling
the Government to assign reasons thereto. Similarly, when such an order is passed by Government
giving reasons for not exercising power under Section 48, in our view, it also cannot be contended
that such an order would be justiciable. If the Government is not inclined to avail its liberty under
Section 48 of Act, 1894 for releasing land from acquisition, it is not for the Court to sit in appeal as
to why Government is not inclined to avail such liberty. If this liberty has been given to the
Government, it is the best judge of the facts and circumstances when such liberty, it must avail, and
it cannot be adjudged by Courts as if we are exercising an appellate power.

32. Referring to the above judgements namely, M/s Godrej and Boyce (Supra) and
Amarnath Ashram Trust Society (Supra), Court in State Govt. Houseless Harijan Employee
Association Vs. State of Karnataka and others, AIR 2001 SC 437 in para 32 of the judgement
held, that Section 48 ipso facto does not in terms excludes principles of natural justice but it has
been construed to exclude owners right to be heard before acquisition is withdrawn, for the reason
that his grievances are redressable under Section 48(2) if he has suffered any losses. No irreparable
prejudice is caused to the owner of the land if State Government exercises its discretion of
releasing land from acquisition under Section 48(1) but when it comes to the turn of a beneficiary
5 All. Hardayal Singh & Anr. Vs State Of U.P. & Ors.

1267
of acquisition, the position is different and such beneficiary is entitled to be heard before land is
released from acquisition. Thus so far as owner is concerned, if for exercising discretion under
Section 48 a Government is not required either to hear the owner or give any reason, we fail to
understand, how owner can insist that for not exercising jurisdiction of releasing land from
acquisition, State must afford him opportunity and give reasons therefor. This exercise, as we have
already observed, in law is treated to have already been completed before notification for
acquisition of land is issued under Section 6 and thereafter for releasing land from acquisition or
not no opportunity is contemplated under law.

33. We may also refer hereat a Division Bench decision of this Court in City Montessori
School Vs. State of U.P. and others, 2007 (2) AWC 1072 where after referring aforesaid
decisions of Apex Court and also Section 48 of Act, 1894, this Court in para 58 of the judgement
observed as under:

"58. Apart from this, we feel it appropriate to put on record that but for the liberty
given by the Supreme Court for challenging the notification under Section 48(1) by any interested
person, this Court would not have entertained the writ petition."

34. The legislature has used the word "liberty" in Section 48 of Act, 1894 which has a
certain connotation, well known in law. It has used the word "liberty" knowing it well that when a
liberty is conferred upon someone, it does not correspondingly confer any right upon others to
insist upon the former to avail such liberty in a particular manner or otherwise. A liberty implies
absence of duty to do so or not to do so. When somebody has a liberty to do or not to do something,
correspondingly it does not confer any claim upon anybody to enforce upon the former to exhaust
liberty in a particular manner. We may remind ourselves the case of Mills Vs. Colchester
Corporation, (1867) L.R. 2 C.P. 476. Owners of oyster fishery had granted licences to fish to
persons who satisfied certain conditions. Plaintiff, who satisfied them but was refused a licence,
brought an action, alleging a customary claim correlative to a duty in the defendants to grant him
one. Court held that the defendants had always been exercising a discretion in the matter. This
implied not only a liberty to grant licences, but also a liberty not to grant licences, which implied
the absence of a duty to do so.

35. Learned, "William Guthrie Salmond" in his 'Jurisprudence' 12th Edition, Chapter VII,
page 42 while dealing with the kinds of legal rights in wider sense of term has observed that
'liberty' has correlative of it as 'no rights'. It has explained the same as under:

"1. Liberties and norights. Just as my legal rights (in the strict sense) are the
benefits which I derive from legal duties imposed upon other persons, so my legal liberties
(sometimes called licences or privileges) are the benefits which I derive from the absence of legal
duties imposed upon myself. They are the various forms assumed by the interest which I have in
doing as I please. They are the things which I may do without being prevented by the law. The
sphere of my legal liberty is that sphere of activity within which the law is content to leave me
alone. It is clear that the term right is often used in a wide sense to include such liberty. I have a
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
right (that is to say, I am at liberty) to do as I please with my own; but I have no right and am not
at liberty to interfere with what is another's. I have a right to express my opinions on public affairs,
but I have no right to publish a defamatory or seditious libel. I have a right to defend myself
against violence, but I have no right to take revenge upon him who has injured me."

36. In the case of Section 48, if liberty has been granted to the Government to release a
land from acquisition before possession is taken, it does not confer any obligation or a duty upon
the Government to make an inquiry in the matter even after issuance of a notification under Section
6 to decide whether it should exercise its discretion under Section 48 or not. Simultaneously,
whether Government shall avail its liberty under Section 48 or not would not confer a right upon
the person whose land has been acquired to insist upon the Government to avail such liberty or not
or to act in a particular manner. Any such insistence upon the Government will change the very
nature of exercise which is to be performed by Government under Section 48 of the Act. Section
48, in our view, would be attracted when the Government in the facts and circumstances of the case
decide to release any land from acquisition but if it does not decide to do so, neither it has any
occasion to consider application of Section 48 in any manner nor it can be forced to exercise its
discretion under Section 48 of releasing land for acquisition. This is a voluntary exercise on the part
of Government and it cannot and should not be forced and that too by a rigorous judicial review of
an order passed by Government declining to avail liberty as conferred under Section 48 of the Act.

37. Learned counsel for the petitioner could not show us that the State Government is
under a statutory obligation to exercise its discretion under Section 48 at the instance of owner of
the land which has been acquired and notification under Section 6 has already been issued. He also
could not show as to how Section 48 can be read in a manner so as to create another channel of
dispute involving acquisition of land by Government at the instance of owner of land on the ground
that State Government is not exercising its liberty by releasing the land from acquisition.

38. The view which we have taken also find support from the Division Bench decision of
this Court in Smt. Manju Lata Agrawal Vs. State of U.P. and others, 2007(9) ADJ 447 where in
para 90 of the judgment this Court has said:

"The order passed by the State Government rejecting their applications under
Section 48(1) of the Act, for releasing the land is also challenged. This Court cannot sit in appeal
against the said order passed by the State Government on their applications....."

39. Similar view has been taken by a Division Bench of this Court in which one of us
(Hon'ble Sudhir Agarwal, J.) is a Member in Babu Vs. State of U.P. and others, 2008(5) ADJ 171
and Jagdish and others Vs. State of U.P. and others, 2008(5) ADJ 5. The judgment in Jagdish
and others Vs. State of U.P. and others (supra) has attained finality after dismissal of Special
Leave Petition (Civil) 11641 of 2008 (Jagdish and others Vs. State of U.P. and others), decided
on 13.05.2008.
5 All. Hardayal Singh & Anr. Vs State Of U.P. & Ors.

1269
40. In these writ petitions State Government has not passed a non speaking order but has
given its reasons for declining to release petitioners' land from acquisition. It has observed that
alleged construction is not authorized since no sanctioned map was placed before it to show that
construction was raised after following procedure prescribed in law. The residential scheme was
already approved by Government vide Government Order dated 09.02.2005.