Moradabad Development Authority ... vs State Of U.P. And Others
2015 Latest Caselaw 1789 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 3
 
A.F.R.
 

 

 

 
Case :- WRIT - C No. - 36398 of 2006
 

 
Petitioner :- Moradabad Development Authority Moradabad
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- P.K. Singh,Mohd. Shariq
 
Counsel for Respondent :- C.S.C.,D.S.Chauhan,Manish Chandra Tiwari,O.P. Sharma "Payad",O.P. Srivastava,P.S. Chaubey,S.A. Imam
 

 

 
Hon'ble Krishna Murari, J.

Hon'ble Amar Singh Chauhan, J.

By means of this petition filed under Article 226 of the Constitution of India, the petitioner Moradabad Development Authority has approached this Court challenging the notification dated 10.02.2006 issued by Special Secretary, Govt. of U.P., Lucknow under Section 48(1) of the Land Acquisition Act (for short the 'Act') exempting 0.30 decimal land of plot no. 234 from acquisition.

We have Sri P.K.Singh, learned counsel for the petitioner and learned Standing Counsel for respondents no. 1, 2 & 3. However, no one has appeared on behalf of the private respndents no. 4 to 10 though the name of Sri O.P. Sharma "Payad", Sri O.P. Srivastava, Sri P.S. Chaubey, Sri D.S. Chauhan, Sri S.A. Imam, Sri Manish Chandra Tiwari and Mohd. Shariq are shown in the cause list as counsel appearing for the respondents.

One counter affidavit filed by Mohd. Shariq on behalf of respondent no. 10 and another counter affidavit filed through Sri O.P. Srivastava on behalf of respondents no. 4 to 8 are on the record.

Factual matrix giving rise to the dispute are as under :

In the year 1989-90, the petitioner Moradabad Development Authority sent a proposal to the State Government for acquisition of 22.005 acre land situate in village Mau, district Moradabad for development and extension of its residential colony in the name of and style Aashiayan Awasiya Yojna. Notification under Section 4(1) of the Act was issued by the State Government on 18-09-1991. Declaration under Section 6 of the Act was made on 14.8.1992. Provisions of Section 17(4) of the Act was invoked and an inquiry under Section 5-A of the Act was dispensed with. The acquired land included the disputed plot no. 234, which was recorded in the name of Smt. Amna Begum wife of Shamshad Hussain, who was mother of the respondents no. 4 to 10. According to the petitioner, possession of the acquired land was taken over by the State and transferred in favour of the petitioner vide possession memo dated 04.03.1994/29.04.1994 after it had deposited 80% of the proposed compensation as per the office report of the Special Land Acquisition Officer, Moradabad. An award dated 10.2.1995 is alleged to have been prepared by the Special Land Acquisition Officer, Moradabad wherein besides compensation of the acquired land, compensation with respect to other properties/structures standing on the land acquired was also determined. The petitioner deposited the entire compensation with the office of the Special Land Acquisition Officer, Moradabad. After transfer of possession, the land came to be recorded in the name of the petitioner in the revenue record. After about 9 years of conclusion of the land acquisition proceedings, respondents no. 4 to 9 made an application dated 30.01.2004 before the Principal Secretary under Section 48 of the Act for exemption of 0.30 decimal of plot no. 234 on the ground that they continue to retain the possession of the same and it has not been utilized by the petitioner for the purpose it was acquired.

The Principal Secretary called for a report from the District Magistrate, Moradabad, Awas Anubhag-3 and the Law Department of Govt. of U.P. The District Magistrate in turn called for a report from the petitioner which submitted the same on 15.12.2004 categorically specifying that the land acquisition proceedings with respect to the disputed plot no. 234 concluded in the year 1994 whereafter the possession was transferred and the compensation has been paid to the land owners on 18.05.1996 and at this belated stage, the same cannot be exempted from acquisition either under Section 48 of the Act or under Section 17 of U.P. Urban Planning & Development Act. Similar report was alleged to have been submitted by Awas Anubhag-3 and Law Department. After submission of the aforesaid report by the Moradabad Development Authority and other departments, the respondent no. 1 left the matter as it is and no further proceedings were drawn. After a gap of about 2 years, another application was made by the respondents no. 4 to 10 on 05.01.2006 again alleging that since the transfer of possession of the land in dispute has not been taken by the acquiring agency and the compensation was illegally paid to some imposter and not to them and there are structures standing on the said part of the plot no. 234, hence, it may be exempted. On the subsequent application made by respondents no. 4 to 10, respondent no. 1 issued impugned notification dated 10.04.2006 exempting 0.30 decimal land of plot no. 234 from acquisition, which has been challenged by the petitioner by filing instant petition.

A Division Bench of this Court vide judgment and order dated 19.02.2009 dismissed the writ petition on the ground that possession of the land was never taken by the State Government, as such, it could be denotified and released in favour of the land owners. The judgment and order was challenged by the petitioner Moradabad Development Authority by filing Special Leave Petition No. 17460 of 2009 which was converted into Civil Appeal No. 7307 of 2013. Hon'ble Apex Court vide judgment and order dated 29.8.2013 allowed the appeal and remitted the matter back to this Court for disposal of the writ petition by making following observations :

"The appellant challenged notification dated 10.04.2006 in Civil Miscellaneus Writ Petition No. 36398 of 2006 which was dismissed by the Division Bench of the High Court. The Division Bench neither adverted to the factual matrix of the case nor considered the legal issues raised in the writ petition and dismissed the same by assuming that possession of the acquired land was still with the private respondents.

We have heard learned counsel for the parties and scrutinized the record. In our opinion, the order under challenge is liable to be set aside on the ground of non-consideration of the important issues raised by the appellant including the one relating to competence of the State Government to exercise power under Section 48(1) of the Act.

Shri P.H.Parekh, learned senior counsel appearing for respondent no. 9 made efforts to persuade us to examine the issue raised in the writ petition on merits but we are not inclined to do so because that would result in depriving either party of its legitimate right to avail the remedy of appeal.

In the result, the appeal is allowed, the impugned order is set aside and the matter is remitted to the High Court for fresh disposal of Civil Miscellaneous Writ Petition No. 36398 of 2006".

It is submitted by learned counsel for the petitioner that the impugned notification is patently illegal and without jurisdiction inasmuch as the same has been passed behind the back of the petitioner without any opportunity of hearing or inviting report /objection. It is also alleged that earlier report submitted by the petitioner and other departments of the State of U.P. have also not been taken into account while issuing impugned notification.

We have considered the argument advanced by learned counsel for the petitioner and learned Standing Counsel and perused the counter affidavit filed on behalf of respondents no. 4 to 10.

From a perusal of the impugned notification, it appears that a report was called from the Special Land Acquisition Officer, Moradabad on the subsequent application dated 05.01.2006 made by the respondents no. 4 to 10, who submitted a report on 07.02.2006 to the effect that documents with respect to issuance of notice, under Section 9 of the Act, to the recorded tenure holders or any objection filed in pursuance thereto does not exist on the record of the case. Possession memo dated 29.9.1994 records that only possession of open vacant land has been handed over and the compensation has also not been paid to Smt. Amna Begum rather it has been paid to some imposter and for this the Amin has been penalised by dismissal from service.

It is clear from the impugned notification that while passing the order on the subsequent application made by respondents no. 4 to 10, the respondent no. 1 neither issued any notice to the petitioner nor called for any report and the order has been passed behind its back without any notice or opportunity of haring.

The question of the rights of beneficiary of an acquisition under the Land Acquisition Act to resist withdrawal of acquisition proceedings came up for consideration before the Hon'ble Apex Court in the case of State Govt. Houseless Harijan Employees' Association v. State of Karnataka, 2001(1) SCC 610. The issue has been answered by the Hon'ble Apex Court in paragraphs 26 to 33 as under "

"26. The arguments have been wide ranging and the parties have submitted written notes of their arguments. But the basic grievance of the appellant is that the order withdrawing the acquisition under Section 48(1) of the Act was passed without any notice or hearing the appellant. According to the appellant, the right of the beneficiary to be heard has been recognized by the decision of this Court in Larsen & Toubro Ltd. v. State of Gujarat and Ors., [1998]2SCR339 . According to the respondents, the decision in Larsen & Toubro Ltd is limited to the case of a company for which land had been acquired after formalities under Part VII of the Act had been completed. It was submitted that the principles of natural justice should not be extended to withdrawal of an acquisition for public purpose.

27. This Court has consistently held that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication.

28. In the case of Union of India v. Col. J.N. Sinha , (1970)IILLJ284SC , this Court said:

...It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice.

29. The Constitution Bench in Olga Tellis v. Bombay Municipal Corporation, AIR1986SC180 placed the onus to prove the exclusion of the rules of natural justice by way of exception and not as a general rule on the person who asserted it. '

The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence.

30. Both these views were affirmed by the Constitution Bench in CM. Gautam v. Union of India,[1993]199ITR530(SC) .

31. Admittedly, the appellant was given no opportunity of being heard before the decision was taken by the respondent-authorities to withdraw the acquisition in exercise of Section 48(1) of the Act.

32. Section 48(1) of the Act provides:

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.

33. The Section does not in terms exclude the principles of natural justice. However, the section has been construed to exclude the owner's right to be heard before the acquisition is withdrawn. This is because the owners' grievances are redress able under Section 48(2). "No irreparable prejudice is caused to the owner of the land and, if at all the owner has suffered any damage in consequence of the acquisition proceeding; or incurred costs in relation thereto, he will be paid compensation thereof under Section 48(2) of the Act." [See: Amar Nath Ashram Trust Society v. Governor of U.P., (1998)1SCC591 . [See: also Special Land Acquisition Collector v. Godrej Boyce, [1988]1SCR590 ], But as far as the beneficiary of the acquisition is concerned there is no similar statutory provision. In contrast with the owners position the beneficiary of the acquisition may by withdrawal from the acquisition suffer substantial loss without redress particularly when it may have deposited compensation money towards the cost of the acquisition and the steps for acquisition under the Act have substantially been proceeded with. An opportunity of being heard may allow the beneficiary not only to counter the basis for withdrawal, but also, if the circumstances permitted, to cure any defect or shortcoming and fill any lacuna. No reason has been put forward by the respondents to 'exclude the application of the principle of natural justice to Section 48(1) of the Act."

Neither a perusal of the impugned notification nor counter affidavit filed on behalf of the State of U.P. spells out that the petitioner which was beneficiary of the acquisition proceedings, was given any notice or opportunity of hearing before issuing the impugned notification and thus the same is directly in the teeth of the law laid down by the Hon'ble Apex Court in State Govt. Houseless Harijan Employees' Association (Supra) and cannot be sustained.

As a result, the impugned notification dated 10.04.2006 under Section 48(1) of the Land Acquisition Act (Annexure No. 6 to the writ petition) is quashed.

Writ petition stands allowed.

The matter stands remitted back to the State Government to take a decision afresh in accordance with law by means of a reasoned and speaking order after notice and opportunity of hearing to the petitioner.

Dt.13-08-2015

nd.