Power To Issue Notification Under S. 48(1) Of Land Acquisition Act Includes Power To Rescind : Supreme Court

A bench of Justice Hemant Gupta and Justice V. Ramasubramanian looked into the question as to whether a notification under S. 48(1) of Land Acquisition Act is a quasi-judicial order and thus, does not give government the power to recall an order previously made, or is it an administrative order. And the bench noted that "a proceeding under S. 48(1) of the Land Acquisition Act is administrative in nature and what is provided in S.48(1) is the power/liberty to withdraw from acquisition." The bench was hearing an appeal filed by U.P. Avas Ekam Vikas Parishad which is a statutory body under the State of Uttar Pradesh for housing and development.

Facts of the case pertain to State government issuing a notification under S.36 of United Provinces Town Improvement Act, 1919 to acquire land of 1.85 acre in Mirzapur village, Gorakhpur district for the purpose of residential accommodation. This notification was followed by another notification where the government invoked an emergency clause and took possession of the land. Land owners made several attempts to get the land released and eventually, through a notification in 2003, under S. 49(1) of the UP Avas Ekam Vikas Parishad Adhiniyam, 1965 read with S.48(1) and S.49(1) of Land Acquisition Land, land was exempted from acquisition. But in 2005 again, the government issued a notification cancelling the previous 2003 notification on grounds that land owners had played fraud by making false representations while seeking release of the land. The land owners filed a writ petition in HC which was allowed via rationale that once the land is released from acquisition, the government can reclaim the land only by initiating a fresh process of acquisition. Thus, the above appeal filed by the Housing and Development Authority came up before this bench.

The bench had to look into two questions here: First, whether the State government has the power to rescind a previous order given under S.48(1). And whether this power is administrative or judicial. Because the counsel for respondents argued that this is a quasi-judicial power and thus, they should have been given an opportunity to be heard before rescinding the previous notification. Regarding this, the bench stated that, "A notification under S.48(1) confers benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasi-judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under S.48(1) does not warrant any notice or opportunity of hearing to the original landowners because it is administrative in nature and not quasi-judicial. If at all any person will be aggrieved by the Notification under S.48(1), it will be the beneficiary of the acquisition, which is in this case the Parishad and not the land owners. Therefore, we reject the argument that a notification under S.48(1) is a quasi-judicial order."

Second question that the bench had to look into was whether the High Court was right in observing that once a land is released from acquisition, it can only be reclaimed by initiation a fresh process of acquisition. Counsel for respondents argued that a notification under S.48(1) had created a vested right and the same could not be taken away unilaterally by a subsequent notification for cancellation. Regarding this, the bench noted, "Since the first notification for release of land in 2003 was secured by the respondents by false representations and by playing fraud, S.48(1) does not create any vested right. It is trite to point out that an order secured by fraud and misrepresentation will not confer any vested right and that, therefore, the land owners cannot pitch their claim either on the basis of vesting or on the basis of A.300A."

Therefore, the bench noted that, "Land owners are liable to be rejected and appeals liable to be allowed" and thus, the appeals were allowed and impugned orders of the High Court were set aside, while the writ petitions filed by respondents were dismissed. The bench also adjudged that "since the acquisition has been complete in all respects, the appellant – Parishad may proceed to implement the public purpose for which the land was acquired."

There was no order as to costs.

Case Title: U.P. Avas Evam Vikas Parishad Through Housing Commissioner & Anr. v. Noor Mohammad And Ors.

Citation : LL 2021 SC 749

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