# U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING COMMISSIONER v. RAM SINGH (D) TH. LRS. & ORS

- **Citation:** [2022] 19 S.C.R. 853
- **Court:** Supreme Court of India
- **Decided:** 2022-04-20
- **Case number:** Civil Appeal Nos. 3023-3024 of 2022
- **Bench:** K. M. Joseph, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/u-p-awas-evam-vikas-parishad-through-housing-commissioner-v-ram-singh-d-th-lrs-36006
- **Pages:** 26

## Headnote

Land Acquisition Act, 1894:s. 48 - Scope of - 'Actual'
Possession - Completion of acquisition not compulsory, but
compensation to be awarded when not completed - Acquisition of
land u/s. 28 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965
- Urgency Clause invoked - Actual Possession of acquired land
not taken - Notification purporting to exempt the acquired land in
question - Representation by the beneficiary of the acquisition -
By notification dated 25.04.2008 exemption notification cancelled
and concerned department was directed to consider the matter -
Writ petitions by land owner, challenging the notification dated
25.04.2008 - High Court allowed the petition - On appeal, held:
Decision to withdraw from acquisition is justiciable- Such
withdrawal must be preceded by offering an opportunity to the
beneficiary - Notification under Section 48 has been issued on
07.07.2005 and 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 u/s. 48 must
be taking of khas possession or actual possession - Appellants
have not been able to establish any notice u/s. 9(3) which was issued
for acquisition of land of the Respondent - Beneficiary-appellant
has not made out a case for interference with the impugned orders.
Constitution of India, 1950: Art. 300A - No person shall be
deprived of his property save by authority of law - Held: An
acquisition of land is permitted to be made in public interest - Art.
300A declares that it is a constitutional right of a person to protect
his property from deprivation and deprivation can be permitted only
in accordance with law.
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SUPREME COURT REPORTS
[2022] 19 S.C.R.
Dismissing the appeals, the Court
HELD: 1.1 An acquisition of land is permitted to be made
in public interest. Undoubtedly, Article 300A declares that it is a
constitutional right of a person to protect his property from
deprivation and deprivation can be permitted only in accordance
with law. However, in exercise of powers of eminent domain in
regard to which law finds its manifestation in the Land Acquisition
Act from time-to-time, lands/properties of individuals may have
to be acquired, for which the procedure is stipulated in the Land
Acquisition Act inter alia. Starting with a notification under Section
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 tha

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 [2022] 19 S.C.R. 853
853
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING
COMMISSIONER
v.
RAM SINGH (D) TH. LRS. & ORS.
(Civil Appeal Nos. 3023-3024 of 2022)
APRIL 20, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Land Acquisition Act, 1894:s. 48 - Scope of - 'Actual'
Possession - Completion of acquisition not compulsory, but
compensation to be awarded when not completed - Acquisition of
land u/s. 28 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965
- Urgency Clause invoked - Actual Possession of acquired land
not taken - Notification purporting to exempt the acquired land in
question - Representation by the beneficiary of the acquisition -
By notification dated 25.04.2008 exemption notification cancelled
and concerned department was directed to consider the matter -
Writ petitions by land owner, challenging the notification dated
25.04.2008 - High Court allowed the petition - On appeal, held:
Decision to withdraw from acquisition is justiciable- Such
withdrawal must be preceded by offering an opportunity to the
beneficiary - Notification under Section 48 has been issued on
07.07.2005 and 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 u/s. 48 must
be taking of khas possession or actual possession - Appellants
have not been able to establish any notice u/s. 9(3) which was issued
for acquisition of land of the Respondent - Beneficiary-appellant
has not made out a case for interference with the impugned orders.
Constitution of India, 1950: Art. 300A - No person shall be
deprived of his property save by authority of law - Held: An
acquisition of land is permitted to be made in public interest - Art.
300A declares that it is a constitutional right of a person to protect
his property from deprivation and deprivation can be permitted only
in accordance with law.
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854
SUPREME COURT REPORTS
[2022] 19 S.C.R.
Dismissing the appeals, the Court
HELD: 1.1 An acquisition of land is permitted to be made
in public interest. Undoubtedly, Article 300A declares that it is a
constitutional right of a person to protect his property from
deprivation and deprivation can be permitted only in accordance
with law. However, in exercise of powers of eminent domain in
regard to which law finds its manifestation in the Land Acquisition
Act from time-to-time, lands/properties of individuals may have
to be acquired, for which the procedure is stipulated in the Land
Acquisition Act inter alia. Starting with a notification under Section
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]
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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
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING
COMMISSIONER v. RAM SINGH (D) TH. LRS.
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[2022] 19 S.C.R.
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
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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.
Case Law Reference
[1978] 2 SCR 272
referred to
Para 8
[1997] 6 Suppl. SCR 143
relied on
Para 15
[1998] 2 SCR 339
relied on
Para 16
[2000] 5 Suppl. SCR 483
relied on
Para 16
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 30233024 of 2022.
From the Judgment and Order dated 31.8.2010 of the High Court
of Judicature at Allahabad in Writ Petition No. 49944 of 2008.
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING
COMMISSIONER v. RAM SINGH (D) TH. LRS.
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SUPREME COURT REPORTS
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With
Civil Appeal Nos. 3025-3026 of 2022.
Vishwajit Singh, Sr. Adv., Abhishek Kumar Singh, Pankaj Singh,
Ms. Ridhima Singh, Vignesh Singh, Ms. Rashi Singh, Ms. Vibha Bhat,
Advs. for the appellant.
Yatindra Singh, Sr. Adv., Anurag Ojha, Karan Aggarwal, Sushil
Kumar Singh, K.P. Singh, Kanishk Chaudhary, Shashank Singh, Pushkin
Chaudhary, Ms. Chitra Chaudhary, Madhav Saraswat, Diwakar Shukla,
Prashant Chaudhary, Dhawal Uniyal, Kamlendra Mishra, Advs. for the
respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. Permission to file rejoinder affidavit in SLP(C) Nos. 2389923900 of 2017 is granted.
Delay condoned.
Leave granted.
2. These appeals have behind them a chequered history. It all
began with the issuance of a Notification by the appellant under Section
28 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter
referred to as the "Adhiniyam") on 10.11.1973. The said Notification is
to be treated as equivalent to a Notification issued under Section 4 of the
Land Acquisition Act, 1894, proposing to acquire among other lands,
Khasra Plot No. 7 and Khasra Plot No. 3, having a total area of 5.98
Acres in a certain village which originally belonged to one Shri Ram
Ratan. It may be noticed here itself that Ram Ratan has passed away
and the respondent-Ram Singh was his son and he has in turn passed
away and is represented by his legal representatives. The appellant issued
a Notification under Section 32 of the Adhiniyam on 17.8.1977. This is
the equivalent to the Notification issued under Section 6 of the Land
Acquisition Act. The urgency clause under Section 17(1) of the Land
Acquisition Act was invoked on 18.07.1979. According to the appellant,
the possession of the land was taken on 11.12.1981 and 31.3.1983.
The further case of the appellant is that there was a case of a
sale effected by the original respondent-Ram Singh. There is a reference
to the notice issued under Section 9 of the Land Acquisition Act on
25.09.1985 and an Award being passed on 28.09.1985.
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3. It is the further case of the appellant that the original respondentRam Singh submitted an application on 19.11.1985 claiming compensation
stating, inter alia, that he was the son of the Original Tenure Holder and
that he had not executed any sale deed in respect of the land. There is a
copious reference to certain litigation initiated against the subsequent
purchasers (Dr. Raj Kumar Chaturvedi & Ors.). To come to the point in
issue, it started with the Notification which was issued on 07.07.2005
purporting to exempt Khasra No. 3 and 7 from the acquisition. The
appellant thereupon submitted a representation on 24.10.2005, inter alia,
pointing out that the land has been acquired and the Award has been
passed and what is more, possession was also taken. It is also contended
that mutation was effected in favour of the appellant. This led to the
Government issuing Notification dated 25.04.2008. The Government in
the said Notification cancelled the earlier Notification dated 07.07.2005
and directed the matter for consideration by the concerned department.
Aggrieved by the said Notification dated 25.04.2008, respondent-Ram
Singh filed a Civil Misc. Writ Petition No. 49944 of 2008. The said writ
petition came to be allowed by the High Court by judgment dated
31.08.2010. Aggrieved by the judgment dated 31.08.2010, the appellant
preferred special leave petitions SLP(C) Nos.34271 OF 2010 and 34090
of 2010. Leave was granted and Civil Appeal No. 6272 of 2012 and
Civil Appeal No. 6273 of 2012 came to be disposed of by this Court
permitting the appellant to seek a recall of the order dated 31.08.2010.
The appellant moved an application for recall of order dated 31.08.2010
and the same was rejected by the High Court vide order dated 20.12.2016.
The appellant challenges the orders dated 31.08.2010 and 20.12.2016.
The other appeals are filed by the same appellant challenging the judgment
on similar lines which have been passed in litigation lodged by persons
claiming to have purchased from Shri Ram Singh in the year 1984.
4. We have heard Shri Vishwajit Singh, learned senior counsel
appearing for the appellant and Shri Yatinder Singh, learned senior counsel
appearing on behalf of the legal representatives of the original respondent
- Shri Ram Singh as also Shri Anurag Ojha, learned counsel appearing
for the subsequent purchaser(s).
5. Learned senior counsel for the appellant Shri Vishwajit Singh
would urge before us that this is a case where all that was done by the
impugned order dated 25.04.2008 was to withdraw the earlier order and
to relegate the matter to the competent authority to take a decision as to
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
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[2022] 19 S.C.R.
whether the Government should withdraw from the acquisition and there
was no warrant for interfering with the said order by the High Court in
the writ petition(s) filed by Shri Ram Singh and the so-called purchasers
from Ram Singh.
It is pointed out that this is a case where the land in question
forms the subject matter of the Notification issued under Section 28 of
the Adhiniyam followed by the declaration under Section 6 of the Land
Acquisition Act. This is followed up by issuance of notice under Section
9 of the Land Acquisition Act and finally it culminated in an Award. The
amount due under the Award was duly deposited. All this is eloquently
established by the unequivocal action of the respondent-original owner
of the land in addressing a communication dated 19.11.1985:
"To,
Special Land Acquisition Officer
U.P. Avas Evam Vikas Parishad,
Kamla Nagar, Agra
Sir,
In connection with taking the meaning of your letter no.
414/81 Dwa. (A.V. Parishad) dated 11.11.85 otherwise, this to
inform you that the land of Khasra no. 3 and 7 has continuously
been entering in the name of Ram Ratan and the applicant Ram
Singh s/o Shri Ram Ratan r/o Nagari Mohalla, Mathura is the
only son of Shri Ram Ratan and, thus, he is the sole owner of the
said land. It is humbly submitted that the applicant has executed
neither any Sale Deed nor Power of Attorney in respect of the
aforesaid land. Therefore, you are requested to please grant
compensation of the aforesaid entire land to the applicant Ram
Singh. Submitted for consideration.
Thanking you.
Yours faithfully,
Sd/- Illegible
Ram Singh s/o Ram Ratan
r/o Mohalla Nagari, Mathura
Date: 19.11.85
Sd/- Ram Singh"
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6. He would submit that having accepted the fact of the Award
being passed and what is more not bringing the procedure, antecedent to
the passing of the Award under a cloud or not having questioned that the
possession was indeed taken prior to the Award being passed, it does
not lie in the mouth of the respondents to contend that possession was
not taken. If possession was not taken, as is indeed the case, there is
absolutely no jurisdiction with the Government to withdraw under Section
48 of the Land Acquisition Act. This went to the root of the matter.
It is further pointed out that apart from possession being taken,
the matter had progressed to the stage where lay out had been approved.
These lands are central and integral to the execution of a housing scheme
evolved to cater to the needs of the Low-Income Group. The case of
the appellant is attended with the highest public interest. Withdrawal
from an acquisition which is not in conformity with the statutory provisions
must not be lightly sabotaged, at the instance of the persons like the
respondent herein who has held himself out as limiting his rights to laying
a claim for the compensation which has been deposited by the appellant.
7. Per contra, Mr. Yatindra Singh, learned senior counsel appearing
for the respondents would stoutly oppose the appeals by pointing out
that this is a case where the entire premise of the appellant is flawed.
Possession within the meaning of Section 48 of the Land Acquisition
Act cannot be symbolic. In other words, the taboo against withdrawal
from acquisition is attracted only if actual possession has been taken. In
this case, possession has not been taken. The efforts on the part of the
appellant to establish possession through certain documents would at
best show that possession was shown to be taken. This does not suffice
in law to prevent the exercise of the power under Section 48 of the Land
Acquisition Act.
As regards reliance placed on the communication dated 19.11.1985
wherein demand for request for disbursement of compensation is
concerned, it is contended that it was deposited only in 2004 and it cannot
determine the fate of this case.
More importantly, he drew our attention to the order dated
24.05.2008 which has been set aside by the High Court. He would point
out that it has no legs to stand on in law for the reason that it is primarily
founded on an order which was passed by the Government after the
passing of the Notification dated 07.07.2005. In other words, the
Notification dated 07.07.2005 was founded on the power ceded to the
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
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[2022] 19 S.C.R.
Revenue Department by the Government order dated 19.06.2002. The
case of the appellant on the other hand which found acceptance with
the Government in the order dated 25.4.2008 is based on the contents of
the order dated 15.09.2006.
The order dated 15.09.2006 expressly has prospective operation.
It does not affect the orders which have been passed earlier to it. On
that short ground, the order dated 25.04.2008 would not have any legs to
stand on. Secondly, he would point out that contrary to the complaint of
the appellant, it is indisputable, having regard to the contents of the
Notification dated 07.07.2005 that the appellant was offered an opportunity
to make its representation or to be heard before the Notification dated
07.07.2005 was passed.
8. He would further contend that a government order must be
judged in terms of what flows from its express terms. It is impermissible
for an order passed under a statute by a public authority to be rendered
valid by affidavits or submissions made in a Court. It must be judged on
its own merits, with reference to the foundation which is laid in the
order. Reliance is placed on the judgment of this Court in Mohinder
Singh Gill vs CEC reported in 1978 (1) SCC 405.
9. The learned counsel for the respondent in the other appeal
would also submit that this Court may notice that the appellant did not
think it fit to challenge the Notification dated 07.07.2005. Therefore, no
interference is called for.
10. The facts which are not in dispute are as follows:
There was a Notification which we will characterize as a
Notification issued under Section 4 of the Land Acquisition Act on
10.11.1973. It is followed by a declaration under the provisions of
Adhiniyam, which is equivalent to Section 6 of the Land Acquisition Act
on 17.08.1977. Undoubtedly urgency clause was invoked under Section
17(1) of the Land Acquisition Act. An award was passed on 28.09.1985.
It is also true that the original respondent in the first appeal did seek the
compensation on the basis of award on 19.11.1985. On 19.06.2002 the
Government has passed an order, the terms of which read as follows:
"No.: 592/1-13-2002-Ra-13
From,
Harish Chandra
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Principal Secretary
Govt. Of U.P.
To,
1.
All Principal Secretaries/Secretaries
Government of U.P.
2.
All Department Heads/Divisional Commissioners/
District Magistrates, U.P.
Revenue Deptt.-13
 Lucknow: 19 June, 2002
Sub:
Regarding exemption of land from acquisition u/s 17 of the
Land Acquisition Act, 1894
Sir,
On the aforementioned subject, I have been directed to state
that the State Government has been receiving complaints from
time to time that almost each case of land acquisition, Section 17
of the Land Acquisition Act is being used and despite using Section
17 of the Act, most of the Acquisition Bodies are neither providing
required amount of compensation nor trying to take possession of
the land. In some cases, where half-hearted efforts are made u/s
17 of the Act by the Administrative Departments of the Acquisition
Body, they have been proved to be contrary to the essence of
using Section 17 toward development projects of the State
Government. In fact, most of the Acquisition Bodies, despite there
being no necessity, used to make requests for using Section 17 of
the Act in the proposed Scheme/Projects. As a result, even after
passing of several years, neither the Acquisition Body takes
possession of the acquired land nor the farmers get their
compensation because of not providing funds from the Body.
In the event of using the provisions of Section 17 of the
Land Acquisition Act, 1894, the provisions of Section 5A gets
extinct and the landowners lost their right of opportunity of hearing.
It is provided in Section 17 that possession of the land, in which
Section 17 has been applied, should be taken on the expiration of
fifteen days. As a result of not taking immediate possession and
non-deposit of required money, the importance of Section 17 proves
to be ineffective.
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
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SUPREME COURT REPORTS
[2022] 19 S.C.R.
Therefore, with a view to prevent misuse of implementation
of Section 17 in various development projects and after due
consideration, it has been decided that the Acquisition Bodies
should take immediate possession of the land where provisions of
Section 17 have been used. Only the Revenue Department shall
have the power to exempt any part of land whose possession has
not been taken and such lands where necessity of acquisition is
not required. The Administrative Deptt. of the Acquisition Body
shall have no power to do so.
Yours faithfully,
Harish Chandra
Principal Secretary"
11. The respondents (sons of the respondent-Ram Singh) submitted
the representation on 12.11.2003 to the Minister of Revenue complaining
that they had not been issued any notice or opportunity of hearing and
the entire acquisition was finalized ex-parte.
There was also a representation by the alleged subsequent
purchasers on 10.12.2004. It is acting upon the same that the Government
invoked Section 48 of the Land Acquisition Act, and issued a notification
dated 07.07.2005. It reads as follows: -
"GOVERNMENT OF UTTAR PRADESH
REVENUE SECTION-13
No.: 31 RM/2-13-2005-7-5(11)/2004
Lucknow: 7 July, 2005
NOTIFICATION
For the purpose of acquiring land for the "Maholi Bhumi Vikas
Evam Grihsthan Yojana No.2, Mathura" of the Uttar Pradesh
Avas Evam Vikas Parishad, Notification u/s 28 and 32 of the
Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 were
published on 10.11.1973 and 10.9.1977 respectively. The land of
Khasra no. 7 rakba 3.12 acre and Khasra no. 3 rakba 2.66 acre
(total rakba 5. 78 acre) situated in village Palikheda, Tehsil and
Dist. Mathura was included in the aforesaid Yojana. The
landowners of Khasra no. 7 and 3 sent their representation to the
government on 12.11.2003 thereby requesting that the aforesaid
land may be excluded from the acquisition mainly on the ground
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that the land is under their tenure and possession. That an electric
tube well was installed in Khasra no. 3 which was used to irrigate
both khasras. That a Shiv Temple comprising of two rooms was
also situated on the said land which was built in 1970. Houses of
the landowners are there near the Shiv Temple and at the time of
acquisition, the Government overlooked the Shiv Temple and the
houses/constructions on the land. As per rule, this land cannot be
acquired. It was further submitted that on the aforesaid grounds,
some land was exempted in the Maholi Yojana Part-1 vide Awas
Anubhag G.O. dated 2.3.2001.
2. Photocopy of the aforesaid application of the landowners was
sent to District Magistrate, Mathura and his report was sought in
the matter. In this connection, the Special Land Acquisition Officer,
U.P.Avas Evam Vikas Parishad, Agra, who carried out the
acquisition proceedings for the Yojana, vide his letter dated
16.6.2004, has informed that the landowners have not received
the amount of compensation and the land is in their possession
and they are dwelling on the land.
3. After getting aforesaid report from the Special Land Acquisition
Officer, U.P.Avas Evam Vikas Parishad, Agra, another letter dated
7.8.2004 was sent to District Magistrate, Mathura, asking him as
to whether Notice u/s 9 of the Land Acquisition Act, 1894 (as
amended in 1984) was sent to the landowners or not. In reply to
the query from the government, the Special Land Acquisition
Officer, U.P.Avas Evam
Vikas Parishad, Agra, vide letter dated 7.10.2004 informed that
as per the available record in the file, Notice u/s 9 of the Land
Acquisition Act was not sent to the landowners.
4. In this connection, report was also sought from the U.P.Avas
Evam Vikas Parishad vide letter dated 18.1.2005 followed by three
reminders, but so far no report or interim reply has been received
from the Avas Vibhag.
5. It is clear from perusal of all documents that the landowners
did not receive compensation of Khasra no. 7 and 3 rakba 3.12
acre and 2.66 acre respectively (total 5. 78 acre). Despite passing
28 years from the dates of publication of Notification u/s 28 and
32 of the Parishad Adhiniyam for acquiring the land in question
i.e. 10.11.1973 and 10.9.1977 respectively, the Acquisition Body
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
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[2022] 19 S.C.R.
did not take any action for taking possession of the land. More so,
any Notice u/s 9 of the Land Acquisition Act, which is a compulsory
step for the acquisition, was not issued to the landowners. It
indicates that the Acquisition Body does not have any interest on
the land in question. In this connection, opinion of the Administrative
Department of Acquisition Body i.e. Avas Evam Shahari Niyojan
was sought vide letter dated 18.1.2005 but so far no reply has
been received despite several reminders. Therefore, in view of
the aforementioned facts and circumstances, specially in view of
the fact that presently the land in question is under the physical
possession of the landowners and no notice was sent to them u/s
9 of the Land Acquisition Act, 1894 (as amended in 1984) the
Governor of Uttar Pradesh, while allowing the representation dated
12.11.2003 submitted by the landowners, has been pleased to
exempt Khasra no. 7 and 3 rakba 3.12 acre and 2.66 acre
respectively (total 5.78 acre) situated in village Palikheda, Tehsil
and Dist. Mathura from acquisition u/s 48(1) of the Land
Acquisition Act, 1894 (as amended in 1984).
Amarnath
Under Secretary"
It is apposite that the appellant did not deem it fit to challenge the
same. Instead, appellant moved the Government on 24.10.2005. It is
necessary to notice what the appellant has stated.
U.P. Avas Evam Vikas Parishad
(Land Acquisition Section)
No.: 242/ ________ /
Dated 24.10.05
To,
Principal Secretary
Govt. Of U.P.
Housing & Urban Planning Deptt.
Lucknow.
Sub.:Regarding exemption of Land Khasra no. 7 and 3 areas 3.12
Acre and 2.66 Acres respectively (total 5.78 Acres) situated Village
Palikheda, Tehsil and District Mathura under Maholi Bhumi Vikas
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Evam Grihsthan Yojana No. 2 in District Mathura floated by Uttar
Pradesh Avas Evam Vikas Parishad.
Dear Sir,
On the aforementioned subject, please refer to letter no.
1258/1-13-2005-7-5(II)/2004-Ra-13 dated 25.7.05 of the Revenue
Deptt. 13, Government of U.P. and Notification No. 31/RM/213-2005-7-5(II)/2004 dated 7.7.05 (copy enclosed) by which copy
of Gazette publication on this matter was sent for information and
necessary action.
2. In this connection, it is to inform you that land Khasra no. 7
Rakba 3.12 Acre and Khasra No. 3 Rakba 2.66 Acres (total 5.78
Acres) situated Village Palikheda, Tehsil and District Mathura
have been properly acquired under Maholi Bhumi Vikas Evam
Grihsthan Yojana No. 2 in District Mathura and possession of the
said land has already been given by the Special Land Acquisition
Officer, Agra. Award of this land has also been declared and the
land has been mutated in favour of the Parishad.
3. In regard to the aforesaid land, the Parishad obtained stay order
on 29.4.92 in favour of the Parishad from the Hon'ble High Court
of Allahabad by which the Hon'ble Court stayed all actions for
changing of nature and transfer of the said land.
4. The Layout Plan of the aforesaid land has been approved and
work could not be carried out because of the Stay Order.
5. In case the Khasra numbers in question are exempted from
acquisition, the road construction work as per the layout plan will
be obstructed.
6. The Parishad had deposited the entire amount of compensation
against the Award passed.
In view of the aforesaid facts, it does not appear proper to
exempt land whose possession has already been taken. You are,
therefore, requested to reconsider the orders relating to land
exemption and get the order revoked.
Sd/- Niraj Kumar Gupta
Housing Commissioner
12. In the meantime, or rather after the notification dated 07.07.2005
and the request made by the appellant dated 24.10.2005, Government
brought out another order dated 15.09.2006 which reads as follows:
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
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No.: 1291/1-13-2006-20(46)/2002-Ra-13
From,
V.K. Sharma,
Principal Secretary
Govt. Of Uttar Pradesh.
To,
All Principal Secretaries/Secretaries
Govt. Of Uttar Pradesh.
Revenue Deptt. 13
 Lucknow: 15 Sept, 2006
Sub: Delegation of the powers conferred u/s 48(1) of the Land
Acquisition Act, 1894 (Amended 1984).
Dear Sir,
On the subject mentioned above, I have been directed to
state that vide G.O. no. 592/1-13-2002-Ra-13 dated 19 June, 2002,
decision has been taken that the Acquisition Bodies should take
immediate possession of the land which has been acquired u/s
Section 17 of the Land Acquisition Act. The Revenue Department
shall have the power to release a part of land whose possession
has not been taken and any such land where acquisition is not
required by the Body. The Administrative Deptt. of the Acquisition
Body shall have no power to that effect.
2. After passing the aforesaid G.O., it was realized that practical
difficulties, especially, there was unduly delay in deciding the
applications of landowners for exemption of their land. Therefore,
it was found to be appropriate that proper and speedy decision
can only be taken only by the Department who had carried out
the acquisition proceedings of such land.
3. Therefore, after due consideration, the Government has decided
that, while vacating the G.O. no. 592/1-13-2002-Ra-13 dated 19
June, 2002 with immediate effect, henceforth all applications
relating to exemption of land from acquisition will be decided u/s
48(1) of the L.A. Act by the Administrative Department of the
Acquisition Body, who carried out its acquisition proceedings.
4. Please ensure taking action in accordance with the aforesaid
Government Order.
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Yours faithfully,
Sd/- Illegible
V.K. Sharma
Principal Secretary
It is thereafter that the order in controversy, namely, the order
dated 25.04.2008 came to be passed. The said order reads as follows.
GOVERNMENT OF UTTAR PRADESH
Revenue Section - 13
No.: 69/1-13-08-7-5(11)/2004-Sa.-13
Lucknow: 25 April, 2008
NOTIFICATION/CANCELLATION
The Revenue Department, by means of Notification No. 34/RM/
1-13-2005-7-5(12)/2004 dated 7th July, 2005, had passed orders
for exempting Khasra no. 7 rakba 3.12 acre and Khasra no. 3
rakba 2.66 acre (total 5.78 acre) from acquisition which was
acquired in the year 1973 for its Maholi Bhumi Vikas Evam
Grihsthan Yojana No. 2 in District Mathura under the provisions
of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 in village
Palikheda, Tehsil and District Mathura. The said Notification was
issued by the Revenue Department in exercise of the power
conferred in Govt. Order no. 592/1-13-2002-Ra.-13 dated 19 June,
2002 relating to exemption of land from acquisition.
2. While cancelling the aforesaid G.O. dated 19 June, 2002, the
powers of Revenue Department relating to exemption of land
from acquisition u/s 48(1) of Land Acquisition Act, 1894 (as
amended in 1984) have been allocated to all Administrative
Departments, vide G.O. No. 2991/1-13-2006-20(46)/2002-Ra.-13
dated 15 September, 2006. As per these orders, now the
Department who carried out acquisition proceedings for the land
shall have the power to dispose off the land exemption application
and to take action thereon. The aforesaid powers were delegated
to all Administrative Departments for the reason that sometime
disputes arise in the event of possession and opinion of the
Acquisition Body/Administrative Department do not receives in
time to the effect as to whether possession of such land has been
taken or not or whether the land is required by the Acquisition
U.P. AWAS EVAM VIKAS PARISHAD THROUGH HOUSING
COMMISSIONER v. RAM SINGH (D) TH. LRS. [K. M. JOSEPH, J.]
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[2022] 19 S.C.R.
Body/Administrative Department or not. In this connection, it has
been found that the Administrative Department of the Acquisition
Body can take proper decision on all the aforesaid points.
3. The Awas Vibhag (Administrative Department) has raised
objection against the contents of Para-1 and the Notification no.
34/RM/1-13-2005-7-5(12)/2004 dated 7th July, 2005 on the ground
that the said Notification has been issued without taking consent
from the Acquisition Body/Administrative Department which are
adversely affecting the Schemes of the U.P. Avas Evam Vikas
Parishad. The Administrative Department has requested for
cancellation of the aforesaid Notification dated 7 July, 2005 of the
Revenue Department.
4. After due consideration in the matter, it has been found that in
the light of the situation mentioned in para 2 as well as contents of
Notification no. 1291/1-13-2006-20(46)/2002-Ra-13 dated 15
September, 2006, it appears to be appropriate that disposal of
applications received in this regard should be done by the
Administrative Department (Avas Vibhag). Therefore, the
aforesaid Notification dated 7 July, 2005 is hereby withdrawn.
The application of the landowner along with the report of the
District Magistrate, Mathura is being forwarded to the
Administrative Department (Avas Vibhag) with the remark that
the matter may please be disposed off and proper/final decision
taken in the light of the G.O. dated 15 September, 2006 issued by
the Revenue Department and take further action accordingly.
Balwinder Kumar
Principal Secretary
It is this order which has been set aside and which has generated
the appeals in question.
13. We may, before dealing with the controversy, notice the law
on the point laid down by this Court. An acquisition of land is permitted
to be made in public interest. Undoubtedly, Article 300A declares that it
is a constitutional right of a person to protect his property from deprivation
and deprivation can be permitted only in accordance with law.
14. However, in exercise of powers of eminent domain in regard
to which law finds its manifestation in the Land Acquisition Act from
time-to-time, lands/properties of individuals may have to be acquired,
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for which the procedure is stipulated in the Land Acquisition Act inter
alia. Starting with a notification under Section 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. Section 48 of the Land
Acquisition Act, 1894 read as follows:
"48. Completion of acquisition not compulsory, but compensation
to be awarded when not completed.