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

The essence of an order which is quasi­judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. Therefore, we reject the argument that a Notification under Section 48(1) is a quasi­judicial order. As a consequence, we reject the argument that the Government cannot fall back upon Section 21 of the General Clauses Act to rescind an order under Section 48(1). Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice Hemant Gupta & Hon’ble Justice V. Ramasubramanian in the matter of U.P. AVAS EVAM VIKAS PARISHAD THROUGH  HOUSING COMMISSIONER & ANR. vs NOOR MOHAMMAD & ORS. [Civil Appeal No.8083 of 2011].

The facts of the case were that a Notification dated 25.07.1964   was issued by the   State Government under Section 36  of the   United   Provinces   Town Improvement Act, 1919  for the acquisition of land of a total extent of acre 1.85 in Village Mirzapur, Tehsil­Sadar, District Gorakhpur for the public purpose of providing housing/residential accommodation. From the year 1983, the landowners made attempts to get the lands released from acquisition, but fortune fluctuated in a see­saw battle. Eventually, by a Notification dated 7.04.2003 issued in exercise of the powers conferred by Section 49(1) of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 read with Section 48(1) and 49(1) of the Land Acquisition Act, 1894, the land was exempt from acquisition. But within a couple of years, the Government issued another notification dated 15.09.2005 canceling the notification dated 07.04.2003 on the ground that the landowners had played fraud by making false representations while seeking the release of the land. Aggrieved the original landowners preferred two writ petitions before Division Bench of the High Court who allowed both the writs and held that once the acquired land is released from acquisition, by way of Notification, the Government can reclaim the land only by initiating a fresh process of acquisition. Aggrieved by the said order, the Housing and Development Authority has come up with the present appeals.

The Hon’ble Supreme Court observed that while a Notification for acquisition issued under Section 4(1) of the Land   Acquisition   Act seeks to take away an individual’s right to property, a Notification under Section 48(1) is actually the reverse or opposite. It confers a benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasi­judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original landowners. If at all any person will be aggrieved by the notification under Section 48(1), it will be the beneficiary of the acquisition, which in this case is the Parishad and not the landowners. Therefore, we can understand if the Parishad makes out a grievance that their rights were taken away by the notification under Section 48(1) especially after the land vested in them. Therefore, the argument that the notification under section 48(1) is quasi-judicial in nature can be ruled out.

Additionally, the Hon’ble Supreme Court observed that the first Notification dated 7.04.2003 was secured by the respondents by false representations and by playing fraud. When the respondents wanted to ward off the acquisition, they claimed that there were cemeteries of their forefathers, but after the first notification was issued, they started selling the land to third parties, who cannot and do not share the same religious sentiments with the respondents. The enquiry conducted by the Housing Commissioner has revealed that the land mafia has taken over the land. It is trite to point out that an order secured by fraud and misrepresentation will not confer any vested right and that, therefore, the landowners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A. 

Finally, the Hon’ble Supreme Court rejected all the contentions of the original landowners and allowed the present appeal.

Click Here To Read The Judgment.

Judgment Reviewed by: Rohan Kumar Thakur

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