Hon'ble Shamsher Bahadur Singh,J.
(Delivered by Honble Sudhir Agarwal,J.)
1. Heard Sri H.R. Misra, learned Senior Advocate assisted by Sri K.M. Mishra and Sri Nikhil Agarwal, learned counsel for petitioner in Writ-C No. 7897 of 2009, Sri Ajay Kumar Sharma, learned counsel for petitioners in Writ-C No. 26519 of 2009, Sri Saiful Islam Siddiqui, learned counsel for petitioner in Writ-C No. 8360 of 2009, learned Standing Counsel for State of U.P. and Sri Madan Mohan, learned counsel for Uttar Pradesh Avas Evam Vikas Parishad.
2. Since all these writ petitions relate to same scheme notified by Uttar Pradesh Avas Evam Vikas Parishad (hereinafter referred to as "UPAEVP") and relate to land acquired under same acquisition notifications dated 2.8.1997 and 4.12.1997, hence have been heard together and are being decided by this common judgment.
3. First of all, we proceed to deal with writ petition no. 7897 of 2009. Petitioner Dheeraj Singh has filed this writ petition under Article 226 of Constitution of India, assailing Notification dated 7.2.2009 issued by State Government cancelling its earlier Notification dated 28.1.2009 in respect of Khasra no. 254 area 2.730 Hectare situated at Village Nawikala, District Saharanpur. Aforesaid land was denotified by Notification dated 28.1.2009 but by means of impugned notification dated 7.2.2009 earlier notification dated 28.1.2009 has been cancelled/revoked.
4. Facts giving rise to present dispute are as under:-
5. UPAEVP proposed and approved a Housing and Improvement Scheme namely, "Delhi-Road Land Development and Residential Scheme No.8 Saharanpur." A notification dated 17.7.1997 under Section 28 of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965(hereinafter referred to as "UP Act, 1965) was published in U.P. Gazette dated 2.8.1997, inviting objections from concerned land owners whose land was proposed to be acquired. Individual notices were also issued to all concerned land owners. Pursuant thereto, various persons filed objections. They were heard on 11th and 12th of December, 1997 before Planning Committee who submitted a report. Since acquisition of land was urgent, UPAEVP got another notification dated 11.11.1999 published in the Gazette dated 4.12.1999 under Section 32(1) of UP Act, 1965 stating that U.P. Government has sanctioned scheme in exercise of power under Section 31(2) of UP Act, 1965. State Government also issued notice dated 4.1.2000 referring to notification issued under Section 32(1) and in exercise of power under Section 17(1) authorised Collector, Saharanpur to take possession of acquired land within 15 days from the date of notice under Section 9 of Land Acquisition Act, 1894(hereinafter referred to as "Act, 1894").
6. State Government also issued order dated 25.1.2000 authorising Collector under Section 7 of Act, 1894 to take order for acquisition of land. Individual notices under Section 9 of Act, 1894 to all recorded tenure holders were issued on 9.11.2001 and thereafter vide possession memo dated 24.4.2002 possession of acquired land was taken which included disputed land also i.e. khasra no. 254 area 2.730 Hectare.
7. We may point out that khasra no. 254 was mentioned as 254/1 though area was mentioned as 2.730 Hectare which is the area of disputed land. Hence no substantial difference has been shown for mention of khasra no. 254/1 instead of khasra no. 254.
8. Earlier Petitioner Dheeraj Singh alongwith 54 others filed Civil Misc. Writ Petition No. 17094 of 2002 wherein an interim order dated 25.4,2002 was passed that petitioners shall not be dispossessed from the land, if they are still in possession.
9. UPAEVP contested aforesaid writ petition and filed a detailed counter affidavit in which all aforesaid facts were stated and we have also taken aforesaid facts from the record of writ petition no. 17094 of 2002.
10. Matter was heard by this Court and vide judgment dated 11.5.2004 above writ petition was dismissed. Relevant finding recorded by Court, necessary for our consideration is reproduced as under:-
"On the facts of the case we find no merit in this petition. The facts of the case have already been stated above. The land was acquired after due notification under Section 28 and 32 of the U.P. Avas Evam Vikas Parishad Adhiniyam and notices were issued to the landholders including the petitioners inviting objections and the objections were duly considered by the Niyojan Samiti which was delegated power under Section 12 read with Rules of 1968. The State Government vide notification dated 11.11.1999 sanctioned the scheme and thereafter the notification under Section 32 was issued on 4.12.1999. Notice for possession under Section 9 was given on 9.11.2001 and the possession of the land was taken on 24.4.2002 vide possession memo Annexure C.A. 8. The Parishad has deposited the estimated compensation vide Annexure C.A.9.
As regards the contention that in view of Section 11-A of the Land Acquisition Act the acquisition proceedings have lapsed it is now well settled that Section 11 A does not apply to proceedings under the U.P. Avas Evam Vikas Parishad Adhiniyam vide Patharoo vs. U.P. Avas Evam Vikas Parishad, 2002(5) AWC 3665 which has been followed by a Division Bench of this Court in writ petition no. 13786 of 2002, Ram Jeevan vs. Secretary, U.P. Avas Evam Vikas Parishad decided on 15.3.2004. In the said decisions it has been held that the Adhiniyam is a self contained code in itself and therefore the amended provisions of the Land Acquisition Act are not applicable. Moreover, even otherwise Section 11-A does not apply because possession has been taken by the respondents as per possession memo dated 24.4.2002 (Annexure C.A.8) vide Kaloo Ram vs. State of U.P., writ petition no. 27317 of 2001 decided on 5.3.2004. In Kaloo Ram's case(supra) it was also held (following several Supreme Court decisions) that urgency is a matter for the subjective satisfaction of the government.
As regards the submission that the Parishad is not competent to acquire the land within the notified are of Saharanpur Development Authority without the prior permission of the State Government, in our opinion there is no merit in this submission. In fact the State Government granted sanction on 11.11.1999. This point is covered against the petitioner by the decision of the Supreme Court in U.P. Avas Evam Vikas Parishad vs. Friends Cooperative Society Ltd, AIR 1996 SC 114 and U.P. Avas Evam Vikas Parishad vs. Ram Kishan, AIR 2002 SC 1056. It has been held therein that the approval of the scheme by the State Government at any stage is sufficient and that prior approval is not necessary and once approval is granted all previous acts and actions get validated.
It has been repeatedly held by the Supreme Court and this Court that acquisition for housing purpose is an urgent matter and is for a public purpose vide Sarva Hitkari Sahkari Avas Samiti Ltd. vs. State of U.P., writ petition no. 23552 of 1999 decided on 5.3.2004, State of U.P. v. Pista Devi, AIR 1986 S.C. 2025, etc. Thus there is no force in this writ petition and it is dismissed."
11. The aforesaid acquisition notifications of UPAEVP were also challenged in Civil Misc. Writ Petition No. 14230 of 2002 filed by four land owners namely, Shiv Kumar son of Atar Singh, Ashok Kumar son of Sri Girwar Singh, Ashok Kumar son of Krishan Lal Kapil and Rajeev Kumar son of Raj Pal Singh. This writ petition was also dismissed in terms of judgment dated 11.5.2004 passed in Civil Misc. Writ Petition No. 17094 of 2002.
12. We may notice here that in Writ-C No. 26519 of 2009 there are three petitioners Bhanwar Singh, Mahendra Singh and Pahal Singh and they were also party in Civil Misc. Writ Petition No. 17094 of 2002 impleaded as petitioners 19,20 and 21. Similarly, in third petition namely, Writ-C No. 8360 of 2009 with which we are concerned here, filed by Shesh Raj Singh, he was also impleaded as petitioner No. 4 in Civil Misc. Writ Petition No. 17094 of 2002.
13. Thus, all these petitioners in three writ petitions, with which we are concerned, are those who earlier challenged acquisition notifications before this Court but failed. They are all co-sharers in khasra no. 254 area 2.730 Hectare.
14. After having lost their challenge to acquisition proceedings, these petitioners, it appears, made representations to State Government for exempting land of khasra no. 254 area 2.730 Hectare. Representation made by Dheeraj Singh addressed to the Chief Minister is dated 12.9.2004 while representation made by Shesh Raj Singh is undated, copy whereof is annexed as annexure 8 to Writ-C No. 8360 of 2009.
15. Government sought report from Collector, Saharanpur. One Dr. Abha Gupta, Additional Collector(Land Acquisition) Avas, Meerut sent a letter dated 18.1.2005 stating that possession of acquired land was transferred to UPAEVP on 24.4.2002. However, she has further said that Amin has submitted a subsequent report dated 24.12.2004 stating that UPAEVP has not taken possession on the spot of khasra no. 254. Said official stated in her letter dated 18.1.2005 that khasra no. 254 being 'Abadi' ought not to have been included in acquisition notifications. State Government relying on aforesaid letter dated 18.1.2005, issued a notification, in purported exercise of power under Section 49 of UP Act, 1965, and exempted khasra no. 254 (area 2.730 Hectare) from aforesaid scheme.
16. Thereafter UPAEVP woke up and Additional Housing Commissioner(Land) sent a letter dated 16.1.2009 to State Government pointing out that khasra 254 was already taken possession and land had vested in State . Therefore, there was no occasion to exempt it from acquisition under Section 49(1) and even otherwise, if aforesaid land is excluded, it will cause serious hindrance and obstruction in development of acquired land and would also create some other problems. Pursuant to aforesaid facts placed by UPAEVP before State Government, notification dated 7.2.2009 has been issued.
17. Learned counsel for petitioner submitted that petitioner's land was already exempted from acquisition vide notification dated 28.1.2009, hence said exemption could not have been withdrawn by subsequent notification dated 7.2.2009; and that too without any opportunity to petitioners. It is also said that it amounts to review of earlier order which is not permissible since there is no power of review.
18. We find that in representation dated 12.9.2004 (Annexure-7 to the counter affidavit), petitioner Dheraj Singh had not said anything regarding writ petition no. 17094 of 2002. Representation of Shesh Raj Singh is also similarly worded and did not disclose anything about challenge to acquisition proceedings and dismissal of writ petition No. 17094 of 2002 by this Court affirming said acquisition.
19. Even letter dated 18.1.2005 sent by Dr. Abha Gupta, Additional Collector(Land Acquisition), Avas, Meerut is completely silent over judicial proceedings wherein acquisition notifications were challenged and upheld by this Court. She has also failed to notice herself and informed State Government that possession of entire land including khasra 254 measuring 2.730 Hectare was taken in possession on 24.4.2002 and transferred to UPAEVP and this was a stand taken by her which was accepted and thereafter writ petition was decided. She blindly and mechanically followed alleged Amin's report dated 24.12.2004.
20. We find nothing on record to show as to on what basis Amin submitted said report and whether he made spot visit under notice to officials of UPAEVP. From perusal of record what we find is that by playing fraud and misrepresentation in respect to actual state of affairs vis-a-vis disputed acquired land, a coordinated effort in collusion was made by petitioner and some officials as a result whereof State Government was kept in dark and for such misrepresentation, the State was persuaded to pass order under Section 49 of UP Act,1965 to exempt khasra no.254 from acquisition.
21. Submission that there is no power of review and therefore once a land is exempted, State Government could not have revoked such order, has no force for the reason that it is well established that fraud vitiates anything and any order which has been obtained on account of fraud or misrepresentation cannot deprive authorities concerned to recall, revoke or cancel such order even if there is no power of review.
22. In S.P. Chengalvaraya Naidu (dead) by LRs. V. Jagannath (dead) by LRs. & Ors. (1994) 1 SCC 1, the Apex Court had an occasion to consider the doctrine of fraud and the effect thereof on the order obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. Trial court upheld the contention and dismissed application for final decree. High Court, however, set aside the order of the trial court, observing that "there was no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". B approached the Apex Court. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', the Apex Court observed as under:
"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation".
23. In United India Insurance Co. Ltd. Vs. Rajendra Singh & others (2000) 3 SCC 581 the Apex Court observed as under:
"3. Fraud and justice never dwell together. (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper over al these centuries. Lord Denning observed in a language without equivocation that "no Judgment of a Court, no order of Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything" (Lazarus Estate Ltd. Vs. Beasley 1956 (1)QB.702."
24. This is what has been referred to and followed by this Court in Civil Misc. Writ Petition No. No. 14824 of 1990 (Shamsuddin and others Vs. Addl. District Judge, Azamgarh) decided on 31.10.2011.
25. Since here is a case where proceedings with respect to acquisition and possession of land having already completed and land already vested in State, are such facts, which were neither mentioned in alleged representation by petitioners nor by Additional Collector(Land Acquisition), Avas, Meerut in her letter dated 18.1.2005. We find that notification dated 28.1.2009 was passed on account of misrepresentation of facts and also fraud played upon State Government and there was no dearth of power with State Government to recall/revoke/cancel such an order. Notification dated 7.2.2009, therefore, cannot be said to be invalid for that reason.
26. There are two more aspects. As already held, acquisition proceedings were completed and acquired land had vested in the State. Once land is vested, it is impermissible for the State to divest and return the land to land owners from whom it was acquired. This question has been considered in one of the earlier judgments in LT. Governor of Himachal Pradesh and Another vs. Sri Avinash Sharma 1970(2) SCC 149 where in para 8 Court has said as under:-
"8. ...... It is clearly implicit in the observations that after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification."
27. Very recently this aspect has been considered in Laxmi Devi vs. State of Bihar and others (2015) 10 SCC 241 and it has been observed in paragraph 20 of judgment "This Court has continuously held that once land has vested in the State, the question of re-vesting its possession in the erstwhile landowners is no longer available as an option to the State." Even Section 48 of Act, 1894 could not have been resorted for reverting land to petitioners.
28. Next aspect is that such exemption under Section 49 of Act, 1965 is also impermissible. Section 49 of Act 1965 reads as under:-
"Power of State Government to call for the records of the Board and to modify or annual any scheme:
(1) Notwithstanding anything contained in the foregoing provisions of this Chapter, the State Government may at any time call for and examine the records of the Board relating to any housing or improvement scheme which is proposed to be or has been framed by the Board or which is being executed by it, and modify, annual or remit for reconsideration to the Board any such scheme or direct that the scheme be executed with such modification as may be specified, or issue such other directions as it may deem fit:
Provided that if any modification involves acquisition, otherwise than by agreement, of any land or building not proposed to be acquired in the original scheme, or if owing to any modifications any land not previously liable under the original scheme to payment of betterment fee becomes liable to such payment, the modification shall not be made without giving an opportunity to the persons so affected of making objections against the proposed modification.
(2) The State Government may stay the execution of any such scheme pending the passing of orders under sub-section (1).
(3) Any modification of a scheme under sub-section (1) shall be notified in the Gazette and shall have effect from the date of such notification, so, however, that any modification shall be without prejudice to the validity of anything previously done under the original scheme."
29. Scheme of Act 1965 shows that U.P.A.E.V.P, amongst its various functions, one function is to frame and execute Housing and Improvement Scheme and other projects. Functions of U.P.A.E.V.P are detailed in Section 15 of Act 1965. Mode of framing scheme is provided in Section 16 which says that Board may frame scheme, of its motion or at the instance of a local authority but when it is so directed by State Government, shall frame the scheme, meaning thereby that of its motion or at the instance of local authority, U.P.A.E.V.P has a discretion to frame a housing or improvement scheme but when directed by State Government it is an under an obligation to frame the same.
30. When a local authority requires Board to frame and execute housing or improvement scheme, sub Section (2) of Section 16 empowers U.P.A.E.V.P to refuse to frame and execute such scheme if it is satisfied that it is unnecessary or not feasible or that funds at its disposal do not permit such scheme. Constituents of housing or improvement scheme are detailed in Section 18.
31. Once a scheme is framed, for the purpose of its execution, if acquisition of land is necessary, at that stage procedure prescribed under Sections 28 to 32 would come into picture.
32. The effect of notifications under Section 28 read with Section 32 can further be examined in the light of Section 55 read with Schedule. Section 55 reads as under:-
"Power to acquire land- (1) Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of the Land Acquisition Act, 1984 (Act No. 1 of 1984), as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to this Act.
(2) If any land in respect of which betterment fee has been levied under this Act is subsequently required for any of the purposes of this Act, such levy shall not be deemed to prevent the acquisition of land under the Land Acquisition Act, 1894 (Act No. 1 of 1894)."
33. Clause 2 of Schedule explains effect of notice under Section 28 and 32. Besides other sections, it makes clear with notifications under Section 28 and 32 shall have the same effect as that would have been on issuance of notifications under Section 4(1) and 6 of Act 1894. Clause 2 of Schedule is reproduced as under:-
"2. Effect of notices under this Act:-
(1) The first publication, in the officeial Gazette, of a notice of any housing or improvement scheme under Section 28 or under clause (a) of sub section (3) of Section 31 of the Act shall be substituted for and have, in relation to any land proposed to be acquired under the scheme, the same effect as publication in the official Gazette, and in the locality, of a notification under sub-section (1) of Section 4 of the said Act, except where a notificaion under Section 4 or a declaration under Section 6 of the said Act has prviously been made and is still in force, and the provisions of Secion 5-A of the Said Act shall be inapplicable in the case of such land.
(2) The issue of a notice under clause (c) of sub-section (3) of Section 23 of this Act in the case of land acquired under a Bhavi Sarak Yojana and the publication of a notification under sub-section (1) or, or as the case may be, under sub-section (4) of Section 32 of this Act in the case of land acquired under any other housing or improvement scheme under this Act shall be substituted for and have the same effect as a declaration by the State Government under section 6 of the Said Act, unless a declaration under the last mentioned Section has previously been made and is still in force.
(3) In a case to which sub-paragraph (1) or sub-paragraph (2) applied, a notification under sub-section (2) of Section 33 or under sub-section (3) of Section 49 of this Act involving alteration of the extent of the land proposed to be acquired shall have the effect of correspondingly modifying the notification under sub-section (1) of Section 4 and the declaration under Section 6 of the said, Act so, however that any such modification shall be without prejudice to the validity of anything previously done under the original notification or declaration. (emphasis added)
34. Sub-clause (3) of Clause 2 also explains and makes it clear that, an alteration if made by issuing notification under Section 49 (3) which has effect of alteration of the extent of land proposed to be acquired, it will have the effect of correspondingly modifying notifications under sub-section (1) of Section 4 and declaration under Section 6 of Act 1894, but such modification shall be without prejudice to the validity of anything previously done under the original notification or declaration.
35. Reading together the aforesaid provisions it is clear that whatever has already been done in respect to acquisition, that cannot be undone. Further when possession of land is taken by State and transferred to U.P.A.E.V.P, Schedule, clause 4, inserting Section 17A in Act 1894 provides for vesting of land in UPAEVP as is evident from the following.
"17-A. Transfer to land to Board. - In every case referred to in Section 16 or Section 17, the collector shall upon payment of the cost of acquisition make over charge of the land to the Housing Commissioner, or an officer authorized in this behalf under the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965, and the land shall, thereupon vest in the Board subject to the liability fo the Board to pay any further costs which may be incurred on account of its acquisition."
36. Considering the entire scheme of statute it is clear that a scheme framed and under execution can be modified, annulled and remitted for reconsideration to U.P.A.E.V.P by State but that will not have the effect of re-writing events which have already occurred and if certain interests and rights have transferred from one person to another, the same would not stand nullified. The effect of notification under Section 49 (1) would be, moreover, prospective only and not retrospective. The land once taken and vested in State and the Board, will not stand divested and notification under Section 49 cannot have such effect.
37. Interpreting provisions of UP Act, 1965 as also Section 49 similar controversy has also been examined by this Court in Writ-C No. 5895 of 2010 Vibhuti Singh Yadav & Another vs. State of U.P. & others decided on 4.5.2016 and there also this Court has taken similar view by observing in paragraphs 24 and 25 as under:-
"24. Learned counsel appearing for respondents could not show any provision or binding authority to this Court to support their stand that once scheme is annulled by issuing notification under Section 49 of Act 1965, all exercise done earlier including vesting of land in State etc. would stand nullified and the land would stand reverted to erstwhile owners.
25. We have no hesitation on observing that once land is vested in State it shall not be divested and reverted to erstwhile owners. Hence right of owners of acquired land to claim compensation under the award already given would subsist and is enforceable in law."
38. Counsel for petitioners have referred to a number of authorities on the question that quasi-judicial or judicial power in absence of any provision for review would not be permissible. Aforesaid authorities relied on behalf of learned counsel for petitioners are Patel Narshi Thakershi and others vs. Shri Pradyumansinghji Arjunsinghji 1971(3) SCC 844;State of Bihar vs. D.N. Ganguly & others AIR 1958 SC 1018;Raghunath Thakur vs. State of Bihar and others (1989) 1 SCC 229;State of Kerala and others vs. K.G. Madhavan Pillai and others (1988) 4 SCC 669;H.C. Suman and another vs. Rehabilitation Ministry Employees' Cooperative House Building Society Ltd., New Delhi and others (1991) 4 SCC 485; Indian National Congress(I) vs. Institute of Social Welfare 2002 AIR(SC) 2158; Mansoor Khan and others vs. State of U.P. and others (1973) 2 SCC 227 and Harbhajan Singh vs. Karam Singh and others AIR 1966 SC 641.
39. We have examined said authorities and have no quarrel with exposition of law laid down, rather it is binding on us. We find that such proposition has no application in case in hand. Firstly, as we have already said, earlier notification dated 28.1.2009 was result of fraud and misrepresentation, hence did not prevent State Government from cancelling the same and secondly power of modification or annulling a scheme under Section 49 is not a quasi-judicial power but an administrative power.
40. We may also notice here that as judgment of this Court dated 11.5.2004 did prevail after dismissal by Supreme Court and it has been admitted by Dheeraj Singh in writ-C No.7897 of 2009, still these facts have not been brought before State Government as a result thereof notification dated 28.1.2009 got issued and the same now has rightly been revoked/cancelled.
41. We, therefore, find no legal or factual infirmity in notification dated 7.2.2009. Land in khasra no. 254 area 2.730 Hectare once vested in the State, could not have been divested or reverted to erstwhile owners and hence relief otherwise sought by petitioners cannot be granted.
42. All three writ petitions lack merits and are dismissed.
43. However, there shall be no order as to costs.
Order Date :- 30.9.2016 P.P.