Narendra Bahadur Singh & ANR Vs.
State of U.P. & Ors [1976] INSC 303 (26 November 1976)
KHANNA, HANS RAJ KHANNA, HANS RAJ
KRISHNAIYER, V.R.
CITATION: 1977 AIR 660 1977 SCR (2) 226 1977
SCC (1) 216
CITATOR INFO :
F 1985 SC1622 (13,15)
ACT:
U.P. Land Acquisition (Rehabilitation of
Refugees) Act 1948 Sec. 2(7), 6, 7(1)--Notification for acquiring land for a
society of refugees from Pakistan --Whether acquisition notification can be
struck down on hyper-technical grounds or whether substantial compliance sufficient--In
the absence of averments in a writ petition on a question of fact whether
petitioner can be allowed to raise a ground based on assumption of such facts.
HEADNOTE:
U.P. Government issued a notification under
Section 7(1) of the U.P. Land Acquisition (Rehabilitation of Refugees) Act,
1948 for acquiring the land belonging to the appellant for the purpose of
Sufferers Cooperative Housing Society.
The Society entered into an agreement with
the Government under section 6 of the Act. The Land Acquisition Officer
determined the amount of compensation for the acquired land.
The appellants challenged the validity of the
said notification on the following grounds:
1. The notification did not properly specify
the land sought to be acquired.
2. The notification was ultra vires the Act
because it sought to acquire land for the rehabilitation of displaced persons
and not for the rehabilitation of refugees.
3. The notification was not in accordance
with the provisions of section 7(1) of the Act.
The single Judge of the High Court did not go
into the first ground but accepted the second and third grounds and quashed the
notification. He held that according to the definition of refugees in section
2(7) a refugee is a person who has migrated from Pakistan to any place in the
U.P. and has been since then residing in U.P. and that there was nothing to
show that the displaced persons who are the members of the Society had settled
in U.P. While accepting the third ground the learned Judge held that section 7(1)
requires to indicate in the notification that it had decided to acquire the
land. However, the notification did not mention the expression
"decided".
On an appeal, the Division Bench disagreed
with the conclusions of the Single Judge and allowed the appeal. The Division
Bench held that the notification was substantially in accordance with the
sect.ion 7( 1 ) and that the members of the Society consisted of refugees. The
Division Bench also held that the notification was not vague and it properly specified
the land sought to be acquired.
In an appeal by Special Leave the appellants
repeated the 3 grounds.
Dismissing the appeal
HELD: 1. The ground about the members of the
Society not being refugees has not been taken in the Writ Petition at all. The
question whether those members have settled in U.P. is essentially one of fact.
In the absence of any averment in the writ petition the material facts having
bearing on the point could not be brought on record. A party seeking to
challenge the validity of a notification on a ground involving questions of
fact should make necessary averments of fact before it can assail the
notification on that ground.
[229 F-H] 227
2. The recital in the earlier part of the
notification as well as the operative part of the notification that the land
shall be deemed to have been acquired permanently and shall vest in the State
Government lends clear support to the conclusion that the State Government
decided to acquire the land and the order of acquisition was merely an
implementation of that decision. The fact that the word decided has not been
used in the notification would not prove fatal when the entire tenor of the
notification reveals the decision of the State Govt. to acquire land. The court
would not strike down a notification for acquisition on hyper-technicality;
what is needed is substantial compliance with law and the impugned notification
clearly satisfies that requirement. [230 D-F]
3. The contention that the notification in
question is vague is not substantiated. The notification makes an express
reference to the site plan. [230 G-231 A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 297 of 1976.
Appeal by Special Leave from the Judgment and
Order dated the 16-10-74 of the Allahabad High Court in Special Appeal No.
169/72.
S.T. Desai, M.K. Garg, K.B. Rohtagi, V.K.
Jain and M.M.
Kashyap, for the Appellant.
O.P. Rana for Respondents 1-4.
V.M. Tarkunde, Pramod Swarup and R.S. Verma
for Respondent No. 5.
The Judgment of the Court was delivered by KHANNA,
J.-This appeal by special leave is against the judgment of a Division Bench of
the Allahabad High Court, reversing on appeal the decision of learned single
Judge, whereby notification dated April 23, 1966 issued by the State Government
under section 7(1) of the U.P. Land Acquisition (Rehabilitation of Refugees)
Act, 1948 (hereinafter referred to as the Act) had been quashed. As a result of
the decision of the Division Bench, the writ petition filed by the appellants
to quash that notification stood dismissed.
The Sufferers' Co-operative Housing Society,
Jaunpur, respondent, applied to the Uttar Pradesh Government in 1955 for
acquiring four acres of land for the purpose of erecting houses, shops and
workshops for the rehabilitation of the refugees-who were members of that
society. At the instance of the State Government, the society deposited a sum
of Rs.15,000 towards the cost of the land to be acquired. In 1964, the society
entered into an agreement with the State Government under section 6 of the Act.
The State Government thereafter published on April 23, 1966, the impugned
notification and the same reads as under:
"Under sub-section (1 ) of section 7 of
the U.P. Land Acquisition (Rehabilitation of Refugees) Act No. XXVI of 1948,
the Governor of Uttar Pradesh is pleased to declare that he is satisfied that
the land mentioned in the Schedule is needed and is suitable for the erection
of houses, shops and 228 workshops for the rehabilitation of displaced persons
and/ or for the provision of amenities directly connected therewith.
All the persons interested in the land in
question are, therefore, required to appear personally or by duly authorised
agent before the Compensation Officer of the Distt. at Jaunpur on the twenty
seventh day of April 1966, with necessary documentary or other evidence for the
determination of the amount of compensation under section 11 of the Act.
The Collector of Jaunpur is directed to take
possession of the aforesaid land fourteen days after the publication of this
notice in the official gazette.
Upon the publication of this notice, the
aforesaid land shall be deemed to have been acquired permanently and shall vest
absolutely in the State Government free from all encumbrances from. the
beginning of the day on which the notice is so published.
SCHEDULE Distt.Pargana Mauza Municipality
Plot No. Area Cantonment, Town area or Notified area 154 Mohalla Diwan Shah
Kabir alias 152/1 1,00 Tartala Pargana Haveli, Tahsil 152/2 Jaunpur Municipal
Area 149 Jaunpur 153 2 shops No. 6 and 7 For what purpose required: for the
rehabilitation of displaced persons.
Note: A copy of the site plan may be
inspected at the office of the Collector, Jaunpur." Subsequent to that
notification, the Land Acquisition Officer determined the amount of
compensation for the land and shops to be acquired at a little over rupees
forty one thousand. The balance of the amount to be paid as compensation was
thereafter deposited by the society.
On April 10, 1970 the appellants, claiming to
be the owners of a part of the land sought to be acquired, fried petition under
article 226 of the Constitution of India in the Allahabad High Court with a
prayer for quashing the impugned notification. The notification was assailed on
the following three grounds:
(1) The notification did not properly specify
the lands sought to be acquired;
(2) The notification was ultra vires the Act
inasmuch as it sought to acquire lands for the rehabilitation of the displaced
persons and not for the rehabilitation of refugees;
and (3) The notification was not in
accordance with the provisions of section 7(1) of the Act.
229 The learned single Judge, while allowing
the writ petition, did not go into the first ground. He, however, accepted the
second and third grounds and in the result quashed the notification. On the
second ground, the learned Judge referred to the definition in section 2(7) of
the Act, according to which refugee means any person who was a resident in any
place forming part of Pakistan and who, on account of partition of civil
disturbances or the fear of such disturbance, has on or after the first day of
March 1947 migrated to any place in the U.P. and has been since residing there.
It was observed that there was nothing to show that the displaced persons for whose
benefit the land in question was being acquired had settled in Uttar Pradesh.
Regarding the third ground, the learned Judge
expressed the view that the notification under section 7(1) of the Act required
that the State Government should indicate in the notification that it had
decided to acquire the land. As the word "decided" was not mentioned
in the notification, the notification was held to be not in accordance with
law.
On appeal, the Division Bench of the High
Court disagreed with the learned single Judge on both the grounds on which he
had quashed the notification. It was held that the notification was
substantially in accordance with section 7(1) of the Act. It was further
observed that the society for whose benefit the land was being acquired consisted
of refugees. Dealing with the first ground, namely, that the notification was
vague as it did not properly specify the land sought to be acquired, the
Division Bench held that all the necessary particulars in respect of the land
sought to be acquired had been given. In the result, the appeal was allowed and
the writ petition was dismissed.
In appeal before us, Mr. Desai has assailed
the decision of the Division Bench on all the three grounds and has urged that
the impugned notification is liable to be quashed on each of those grounds. We
shall accordingly deal with those grounds.
So far as the ground is concerned that the
persons for whose rehabilitation the land is sought to be acquired are not
refugees, Mr. Desai could not in spite of our query refer us to any paragraph
in the writ petition wherein the above ground had been taken. All the same, he
submitted that as the question had been allowed to be agitated before the High
Court, we should not debar the appellants from advancing arguments on that
score. The submission made by the learned counsel in this behalf is that there
is nothing to show that the persons for whose benefit the land is being
acquired arc settled in Uttar Pradesh. In this respect we are of the view that
the question as to whether those persons are settled in Uttar Pradesh or not
are essentially one of fact. In the absence of any averment in the writ petition
that the person concerned were not settled in Uttar Pradesh, it is obvious that
the material facts having bearing on this point could not be brought on record.
A party seeking to challenge the validity of a notification on a ground
involving questions of fact should make necessary averments of fact before it
can assail the notification on that ground. As such we find it difficult to
sustain the contention of Mr. Desai that the persons for whose benefit the land
is being acquired were not settled in Uttar Pradesh. Apart from that, we find
that 230 ground No. 13 taken in the writ petition proceeds upon the assumption
that the persons for whose benefit the land was being acquired were in fact
refugees. It further appears from the judgment of the Division Bench that there
was hardly any dispute before the Division Bench on the point that the
respondent society, namely, Sufferers' Co-operative Housing Society, consists
of refugees and has refugees as its members.
Coming to the second ground taken by the
appellants that the notification was not in conformity with section 7(1) of the
Act inasmuch as it did not state that the State Government had decided to
acquire the land in dispute, we are of the opinion that a reading of the
notification which has been reproduced above leaves no manner of doubt that the
State Government had decided to acquire the land. It is stated in the
notification that the Governor of Uttar Pradesh is pleased to declare that he
is satisfied that the land mentioned in the schedule is needed and is suitable
for the erection of houses, shops and workshops for the rehabilitation of
displaced persons and/or for the provision of amenities directly connected
therewith. The notification further proceeds to state that the land in question
shall be deemed to have been acquired permanently and shall vest absolutely in
the State Government free from all encumbrances from the date of the
notification. The recital in the earlier part of the notification as well as
the operative part of the notification that the land shall be deemed to have
been acquired permanently and shall vest in the State Government lend clear
support for the conclusion that the State Government decided to acquire the
land and the order of acquisition was merely an implementation of that
decision. The fact that the word "decided" has not been used in the
notification would not prove fatal when the entire tenor of the notification
reveals the decision of the State Government to acquire the land and is
consistent only with the hypothesis of such a decision having been arrived at.
The courts should be averse to strike down a notification for acquisition of
land on fanciful grounds based on hyper-technicality. What is needed is
substantial compliance with law. The impugned notification, in our opinion,
clearly satisfies that requirement.
Lastly, we may deal with the contention
advanced on behalf of the appellants that the notification in question is
vague. It is pointed out by Mr. Desai that the total area of the land comprised
in field numbers mentioned in the notification is 1.26 acres, while the actual
area which is sought to be acquired is one acre. The learned counsel
accordingly urges that it is not possible to find out the particular portions
of those fields which are sought to be acquired. As such, the notification is
stated to be vague and thus not in conformity with law. Our attention has also
been invited by Mr. Desaid to the report dated June 23, 1971 of the Tehsildar,
who was deputed to deliver possession of the acquired land to the society. In
the said report the Tehsildar stated that he found it difficult to find out as
to which part of the fields mentioned in the notification were acquired. In
this respect we find that the report of the Tehsilder itself indicates that
when he went to the spot to deliver possession of the acquired 231 land, he did
not take with, him the correct plan of the said land. The impugned notification
makes an express reference to the site-plan. An affidavit has been filed on
behalf of the society and that affidavit makes it plain that the area of the
land which has been acquired comes to exactly one acre.
There appears to be no cogent ground to
interfere with the finding of the Division Bench of the High Court that the
impugned notification has not been shown to be vague.
We, therefore, find no infirmity in the
impugned notification. The appeal fails and is dismissed but in the
circumstances with no order as to costs.
Before we conclude, we would like to observe
that the case before us tells a sad tale of delays in a matter which on sheer
humanitarian grounds needed to be attended to with expedition. The case, as
would appear from the above, pertains to the acquisition of land with a view to
rehabilitate refugees who were uprooted from their hearths and homes in areas
now in Pakistan because of disturbances and fear of disturbances which marred
the partition of the country.
The refugees for this purpose formed a
society, and applied to the administration in 1955 for acquisition of land so
that they could erect shops and workshops on that land with a view to earn
their livelihood. It took the administration 11 years thereafter to issue
necessary notification for the acquisition of the land in dispute. Four years
were thereafter spent because possession of the land could not be delivered.
The only attempt made to deliver possession proved in fructuous as the Tehsildar
entrusted with this task took a wrong plan. From 1970 till today the delivery
of possession remained stayed because of the writ proceedings initiated by the
appellants. One can only hope that now that the final curtain has been dropped,
the matter would be attended to with the necessary promptitude.
P.H.P. Appeal dismissed.
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