Sumit Makhija & Anr. vs State Of U.P. Thru Principal Secy. & Ors.

Heard Sri H.N. Singh, learned Senior Counsel assisted by Sri Vineet Sankalp, learned counsel for the petitioners, Sri Kartikeya Saran, learned Additional Advocate General assisted by Sri S.N. Shukla, learned Standing Counsel for the State-respondents and Sri S.P. Rai, learned counsel for Kanpur Development Authority.

The petitioners by means of the present writ petition have prayed for quashing the order dated 16.05.2008 passed by respondent no.1-Principal Secretary, Revenue Department by which he has recalled the Notification dated 03.05.2006 by which land comprised in Gata Nos.210, 221, 222 & 223, total area 6-16-0 Bighas was withdrawn from the acquisition.

The facts, in brief, are that petitioners claim that they are co-owners of Araji Nos.210, 221, 222 & 223 measuring area 6-16-0 Bighas land situated in Village Shahpur (Mohsinpur), District Kanpur Nagar (hereinafter referred to as ‘land in question’).

According to the petitioners, the respondent no.1 in the year 1959 had issued a Notification under Section 4 of The Land Acquisition Act, 1894 (hereinafter referred to as the ‘Act, 1894’) for acquiring the land in question. The Notification under Section 6 of the Act, 1894 was also issued in respect to the aforesaid land. The award was made in the year 1963. The petitioners state that they did not accept the award.

Further case of the petitioners is that the award was amended and respondent no.3 did not deposit the amount of amended award. It is further stated that possession of aforesaid land was not taken either from petitioners or from their ancestors, and the land in question remained in continuous possession of petitioners' family.

The petitioner no.1-Sumit Makhija and father of petitioner no.2-Late Ram Lal Makhija made a representation against the acquisition primarily on the ground that Scheme-40 for which the land was acquired was never implemented by respondent no.3 and possession had not been taken from the land owners for years together, and also on the ground that compensation was not paid by the respondent no.3.

Further it is the case of the petitioners that under the proviso to Section 17(1) of the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as the ‘Act, 1973’), if the land has not been utilised within the period of five years from the date of acquisition for the purpose for which it was acquired, the aggrieved person may file an application to the State Government for restoration of that land. Accordingly, the petitioners submitted a representation for releasing their land under Section 48 of the Act, 1894 read with Section 17 of the Act, 1973.

On the representation of the petitioners, the District Magistrate, Kanpur Nagar submitted a report to the Director, Land Acquisition Directorate, Revenue Department, State of U.P. Lucknow on 27.01.2005. It appears that acting upon the report of the District Magistrate dated 27.01.2005, the aforesaid land was exempted by Notification dated 03.05.2006.

It transpires from the record that State Government issued a Government Order dated 15.09.2006 which provided that necessary powers under Section 48(1) of the Act, 1894 for releasing the acquired land would be exercised by the department for which acquisition had been made. The respondent no.1 in pursuance to the Government Order dated 15.09.2006 recalled the Notification dated 03.05.2006 by order dated 16.05.2008.

The petitioners being aggrieved by the Order dated 16.05.2008 have preferred the present writ petition.

The respondent no.1-Principal Secretary, State of U.P. has filed a counter affidavit contending inter alia that area 541.38 acres land was acquired under the provisions of Kanpur Urban Area Development Act, 1945 (hereinafter referred to as ‘Act, 1945’) for execution of Kalyanpur, Panki Pandu Town Expansion and Green Belt Scheme. Accordingly, Notifications under Sections 53 & 60 of the Act, 1945 were issued on 08.07.1959/25.07.1959 and 23.12.1959 respectively, and the award was declared as Award No.47 on 29.07.1963 for the then Nagar Mahapalika Kanpur.

It is further stated that Arazi No.210 area 01-07-00, Arazi No.221 area 02-07-00, Arazi No.222 area 01-18-00, Arazi No.223 area 01-04-00 situated in Village Shahpur, Mohsinpur, District Kanpur were acquired under the Act, 1945 for the then Nagar Mahapalika Kanpur.

The recorded tenure holders of the aforesaid land were Beliram and Ram Lal, sons of Khan Chand. Since, the recorded tenure holders did not turn to receive the awarded amount, therefore, it was deposited in the R.D. account. It is further stated that the recorded tenure holders instituted Civil Suit No.129 of 1968, which was dismissed on 25.04.1975. The recorded tenure holders, thereafter, preferred Civil Appeal No.235 of 1975 against the judgement dated 25.04.1975 dismissing the suit, which was also dismissed.

The recorded tenure holders, thereafter, preferred Second Appeal No.2736 of 1981 against the judgement and decree dated 25.04.1975 passed in aforesaid suit and also against the judgement and decree passed in the aforesaid civil appeal.

It is further stated that Nagar Mahapalika constituted under the U.P. Municipal Corporation Act, 1959 (hereinafter referred to as ‘Act, 1959’) came into force with effect from 01.02.1960. It appears that due to typing error, ‘01.02.1907’ has been typed as ‘01.02.1960’, the date of coming into force of Nagar Mahapalika. Thereafter, the Kanpur Development Authority (hereinafter referred to as ‘KDA’) came into existence in the year 1974, and the aforesaid land was vested in the KDA by the order of State Government.

Further case of the respondent no.1 is that the land in question had been acquired after adopting due procedure by the then, Nagar Mahapalika and the acquisition proceeding had become final. It appears that recorded tenure holders Late Beliram had executed a ‘Will’ on 10.09.1985 in favour of his wife, and subsequently amended the ‘Will’ on 08.07.1991 on the basis of which petitioners are claiming their right on the acquired land. Thus, according to the respondents, the ‘Will(s)’ of acquired land could not be executed and same were void ab initio, therefore, petitioners have no right and title in the aforesaid land and thus, they are not entitled to get any relief.

The further case of respondent no.1 was that acquisition proceeding was carried out under the provisions of Act, 1945, and Section 48 (1) of the Act, 1894 is not applicable. It is further stated that the petitioners have concealed material facts, and thus, petitioners have not approached this Court with clean hands.

It is further stated that the acquisition proceeding is of the year1959 and writ petition has been filed in the year 2008 after a long gap of 50 years without explaining any delay, and as such writ petition is liable to be dismissed on the ground of delay and laches.

The respondent no.3 has also filed counter affidavit taking similar stand as has been taken by respondent no.1 in the counter affidavit.

When the respondents took a specific stand in their counter affidavit that petitioners have not approached this Court with clean hands as the petitioners have not disclosed the institution of Civil Suit No.129 of 1968 which was dismissed on 25.04.1975, and filing of Civil Appeal No.235 of 1975 against the judgement and decree of Trial Court dated 25.04.1975, and thereafter, filing of Second Appeal No.2736 of 1981 before this Court, and further disputed the right of petitioners to get the aforesaid land released in their favour, the petitioners filed supplementary affidavit stating therein that grandfather of petitioner no.1 Late Beliram and his brother Late Ram Lal Makhija were co-owners of the aforesaid land and their names were recorded in revenue records having transferable rights over the said land. The grandfather of petitioner no.1, Late Beliram had executed a registered ‘Will’ dated 10.09.1985 in favour of his wife, Smt. Thakuri Bai Makhija in respect of his movable and immovable properties including his shares in the land in question. However, it was specified in the said ‘Will’ that his wife would acquire, in the event of his demise prior to his wife, only life interest as user of the properties mentioned in the ‘Will’, but she would not acquire any right to transfer or alienate the property.

It was also stated in the said ‘Will’ that after the death of his wife Smt. Thakuri Bai Makhija, petitioner no.1 being the grandson of the testator Late Beliram Makhija would become absolute owner in respect of his movable and immovable properties including the land in question. However, the ‘Will’ dated 10.09.1985 was subsequently modified by the last ‘Will’ of testator Late Beliram on 08.07.1991 in which the conditions regarding ownership and title of movable and immovable properties qua petitioner no.1 continued to remain the same.

It is further stated that after the death of grandfather of petitioner no.1, his name was duly mutated in the revenue records.

So far as the institution of Civil Suit No.129 of 1968 by Late Beliram and Late Ram Lal and Civil Appeal No.235 of 1975, and Second Appeal No.2736 of 1981 is concerned, the same has been admitted by the petitioners. However, according to petitioners that has no adverse effect on the rights of petitioners in the facts and circumstances of the present case.

The respondent no.3 filed supplementary counter affidavit to the supplementary affidavit of petitioners taking same stand which they have taken in the main counter affidavit.

The petitioners have filed rejoinder affidavit denying the assertions made in the counter affidavit.

Challenging the impugned order, Sri H.N. Singh, learned Senior Counsel for the petitioners has contended that on the date when the Notification dated 03.05.2006 was issued releasing the land in question, it was the Revenue Department which was authorized to release the land in view of Government Order No.592/1-13-2002-π-13 dated 19.06.2002, and therefore, respondent no.1 has erred in law in recalling the Notification dated 03.05.2006 on the ground that under the Government Order dated 15.09.2006, it is the concerned Department for which the land had been acquired, had the power to release the land as the said Government Order did not operate retrospectively until and unless a specific provision was made in that regard.

It is further contended that there is no provision under the Act, 1894 for recalling the order passed under Section 48 of the Act, 1894, therefore, in absence of specific power of review, the impugned order dated 16.05.2008 is patently illegal and without jurisdiction. He further submits that the impugned order is illegal being in violation of principles of natural justice.

It is also contended that there are executive functions conferred upon the Government to be exercised by the Governor under the Legislative Acts by the Legislature. The executive power of Governor is vested under Article 162 of the Constitution of India.

It is further contended that the Governor is conferred with the power to frame rules of business under Article 166 of the Constitution of India, and in exercise of this power, the Governor, State of U.P. by Notification dated 11.08.1975 notified the Business of Uttar Pradesh (Allocation) Rules, 1975 (hereinafter referred to as ‘Rules, 1975’) under which the Revenue Department is vested with the jurisdiction in respect of Act, 1894 which is evident from Para-1 under the heading ‘एक-13-राजस्व अनुभाग -:3’ which reads as under:-

Accordingly, he contends that Section 17 of the Act, 1973 and Section 48 of the Act, 1894 confers power of release upon the State Government and this power of the State Government is to be exercised under the Rules, 1975. It is contended that under the heading 'एक-13-राजस्व अनुभाग -:3’ of para 1 of Rules, 1975, the power in respect of Act, 1973 is given to the Revenue Department, therefore, respondent no.1 has erred in law in holding that power of release is vested in the concerned Department.

Per contra, learned counsel for the respondents contends that there is no provision under the Act, 1945 or the Act, 1959 under which the land can be returned. He submits that Section 17 of the Act, 1973 would apply only in respect of lands which have been acquired under the Act, 1973. Thus, it is contended that since Section 48 of Act, 1894 is not applicable, therefore, the application of petitioners for releasing the land by invoking Section 17 of the Act, 1973 read with Section 48 of the Act, 1894 was not maintainable. Consequently, it has been urged that there was lack of inherent jurisdiction upon the authority in releasing such land.

He further contends that petitioners do not have any vested right under Section 48 of the Act, 1894 to get the land released. He submits that it is only the discretion of the State Government when conditions enumerated in Section 48 of the Act, 1894 are present to release the land.

It is further contended that petitioners have obtained the order of release by misrepresentation and fraud, inasmuch as they did not disclose the dismissal of Civil Suit No.129 of 1968 instituted by Late Beliram and Late Ram Lal, and filing of Civil Appeal No.235 of 1975, and Second Appeal No.2736 of 1981 before this Court wherein a categorical finding has been recorded by the Trial Court, affirmed by the Appellate Court that Late Beliram and Late Ram Lal, who were co-tenure holders of the aforesaid property, had no right to challenge the acquisition as they had purchased the property from the original tenure holder namely, Ratan, and the said finding having attained finality after the dismissal of Second Appeal preferred by Late Beliram and Late Ram Lal, therefore petitioners have no right to get the property released.

He contends that every authority has inherent power to recall or review its order if it had been obtained by fraud. He submits that if an order had been obtained by fraud, it is not incumbent upon the authority to follow the principles of natural justice.

He further contends that even if, without admitting in the instant case, petitioners ought to have been afforded an opportunity of hearing, that would have been a futile exercise, inasmuch as petitioners in the supplementary affidavit admit the fact of institution of Civil Suit No.129 of 1968, Civil Appeal No.235 of 1975 and Second Appeal No.2736 of 1981. It is submitted that if only one conclusion can be drawn by giving opportunity of hearing, it is not necessary for the authorities to follow the principles of natural justice inasmuch as such an exercise will be a futile exercise.

During the course of argument, when we were informed that the Second Appeal No.2736 of 1981 was filed by the petitioners, which was got dismissed by the petitioners as infructuous, we summoned the record of Second Appeal No.2736 of 1981 to find out as to what was the controversy involved in the Civil Suit No.129 of 1968 (Beliram and Others Vs. State of U.P. and Others).

We have heard learned counsel for the parties and perused the record.

In the light of pleadings of the parties stated above, the Court proceeds to consider the submission of respective parties.

The moot question which arises on the basis of submission advanced by learned counsel for the petitioners is that in the absence of any power of review, the respondent no.1 could review the order said to be passed under Section 48 of the Act, 1894 recalling the Notification dated 03.05.2006.

The further question which arises for consideration is whether the Government Order dated 15.09.2006 would operate retrospectively in the absence of any provision under the said Government Order providing that it shall operate with retrospective effect.

It is evident from the record that land had been released by the respondent no.1 by Notification dated 03.05.2006 in exercise of power under Section 48 of the Act, 1894. There is no provision in the Act, 1894 conferring the power upon the respondent No.1 to review or recall the order releasing the land under Section 48 of the Act, 1894.

It is trite law that in the absence of any power to recall or review provided in the Statute, the authority has no jurisdiction to review or recall its order. However, there is an exception carved out to the said proposition of law which permits the authority to review or recall it’s order if it had been obtained by fraud or misrepresentation.

The Apex Court in paragraph no.34 of the judgment in the case of Indian National Congress (I) Vs. Institute of Social Welfare and Others (2002) 5 SCC 685 has held as under:

The aforesaid preposition of law is reiterated by the Apex Court in case of United India Insurance Co. Ltd. Vs. Rajendra Singh and Others (2000) 3 SCC 581 wherein it held that no Court or Tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation.

The Apex Court in the case of Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550 has held that the court has inherent power to recall its order if it is obtained by fraud on Court.

It is also settled law that the authority before reviewing or recalling the order must follow the principles of natural justice by issuing notice and giving opportunity of hearing to the aggrieved person before recalling or reviewing the order.

The judgment of the Apex Court in the case of State of West Bengal & Others Vs. Jai Hind Private Limited (2026) 5 SCC 481 relied upon by the learned counsel for the petitioner also states the aforesaid proposition of law.

Now, in order to decide whether respondent No.1 has rightly invoked the power of review in the facts of the present case, the Court shall have to see whether the Notification dated 03.05.2006 by which the land in question had been released was obtained by placing correct facts or by concealing material facts due to which respondent No.1 was misled in releasing the land under Section 48 of the Act, 1894. In other words, whether the petitioners got the Notification dated 03.05.2006 by placing correct facts or by playing fraud or misrepresentation.

In order to appreciate the aforesaid question, it would be appropriate to reproduce the report of the District Magistrate, Kanpur Nagar dated 27.01.2005 addressed to the Director, Directorate Land Acquisition, Board of Revenue, U.P., Lucknow which reads as under:

Perusal of aforesaid report discloses that the acquisition of land in question was for Kalyanpur, Panki Pandu Town Expansion and Green Belt Scheme No.40, and the award of the said land was prepared on 29.07.1963.

The report also categorically states that the award of Rs.598/- was not received by the land owners and was deposited in RD account, and KDA did not deposit the revised award of Rs.9964.20/-.

It also states that the possession of land had not been taken nor the possession of land had been delivered to the acquiring body. The name of tenure holder is recorded in the revenue record as the possession of the land had not been taken.

The report further states that the acquisition proceeding had been conducted in the year 1959, and the purpose for which the land was acquired has not been implemented, and the Department has not utilised the land within the time frame prescribed under Section 17 of the Act, 1973. Accordingly, the District Magistrate recommended for releasing the land in favour of the petitioners.

Based upon the said recommendation, it transpires from the Notification dated 03.05.2006 that several letters had been issued to the Department of Housing and Urban Planning seeking their opinion and recommendation for releasing the land from the acquisition.

The aforesaid Notification reveals that when no opinion/objection was received from the Housing and Urban Planning Department, the land was released in favour of the petitioners. The report of the District Magistrate dated 27.01.2005, which was the basis for releasing the land has been extracted above.

The record reveals that aforesaid report does not state the correct facts and had been submitted by the District Magistrate by concealing necessary facts, which we are delineating herein below.

The respondent no.1 in the counter affidavit took specific plea that the petitioners had concealed material facts in filing the writ petition inasmuch as the petitioners had challenged the acquisition proceedings by filing Civil Suit No.129 of 1968 which was dismissed on 25.04.1975.

The judgement and decree passed in the aforesaid suit was, thereafter, challenged by the petitioner in Civil Appeal No.235 of 1975, which was also dismissed by the First Appellate Court. Thereafter, the petitioner preferred Second Appeal No.2736 of 1981 before this Court, which is still pending.

The respondent also raised an objection with regard to the right of petitioners to get the land released in their favour by pleading that petitioners are claiming their right on the land on the basis of a ‘Will’ which could not be executed as the land had already been acquired and had vested in the State Government, therefore, the testator had no right to execute a ‘Will’ in respect of the land which he did not own.

When the respondents raised the aforesaid two objections in their counter affidavit, the petitioners filed supplementary affidavit stating therein that the grandfather of petitioner no.1 Late Beliram and his brother Ram Lal Makhija were the co-owners and title holders of the land, and their names were recorded in the revenue record having transferable rights over the said land who were in possession over the land.

The grandfather of petitioner no.1 Late Beliram executed a registered ‘Will’ dated 10.09.1985 in favour of his wife Smt. Thakuri Bai Makhija in respect of his movable and immovable properties including his share in the land. It was also stipulated in the ‘Will’ that his wife would acquire, in the event of his demise prior to his wife, only lifetime rights as user of the properties mentioned in the ‘Will’, but she would not acquire any right to transfer or alienate the property. As per the said ‘Will’ after the death of Smt. Thakuri Bai Makhija, the petitioner no.1 being the grandson of testator Beliram Makhija would become absolute owner of the land owned by testator Beliram Makhija.

It is also stated that the registered ‘Will’ dated 10.09.1985 was subsequently modified by the last ‘Will’ of the testator Late Beliram Makhija on 08.07.1991, but the condition regarding ownership and title of movable and immovable properties of the petitioner no.1 continued to remain the same.

So far as the institution of suit is concerned, it has been stated that the suit was instituted at the behest of the predecessor in the interest of the petitioners and same would have no adverse impact on the right of petitioners in the facts and circumstances of the case.

We have perused the judgment of Trial Court and we find that the suit was instituted by Beliram (plaintiff no.1) and Ram Lal (plaintiff no.2), and the defendants in the original suit were as follows:-

The plaintiff-appellants instituted the suit inter alia for declaration that plaintiffs are the owners and Bhumidhars in possession of plot nos. 210, 221, 222, and 230 having an area of 6 Bighas and 16 Biswas, situated in Village Shahapur Mohsinpur (the same land involved in the present petition) after purchasing the same for a valuable consideration vide registered sale deed dated 20^th of August, 1962 from the previous owner Ratan S/o Sri Kewal, Caste Gadaria.

The further case set up by the plaintiff was that after purchasing the land, the plaintiffs submitted building plan on 20th December, 1962 for establishing a Dal Mill to the Nagar Mahapalika, Kanpur. It was also the case set up in the plaint that the plaintiffs in order to protect the land, built a boundary wall around the contiguous area comprised in the said plots, which was subsequently demolished by the officers and staff of the Nagar Mahapalika, Kanpur.

It is stated that plaintiffs later on got an information that the land purchased by them was sought to be acquired for the scheme known as ‘Green Belt Scheme No.40’, and in pursuance of the said Scheme, an award was alleged to have been declared by the Land Acquisition Officer i.e. defendant no.3 on 29th July, 1963.

It was also the case of the plaintiff that on inquiry, the plaintiff came to know that a Notification dated 13th December, 1956 had been published in the U.P. Gazette dated 22nd December, 1956 purporting to be under Section 60 (1) of the Act, 1945 sanctioning Kalyanpur Panki and Green Belt Scheme No.40 referring to an earlier Notification alleged to have been published in the Gazette of 6th October, 1952, but in spite of extensive search, the plaintiffs could not find out any such notification in the U.P. Gazette of the said date.

The plaintiffs further pleaded that after publication of the aforesaid notification, nothing was done for a long time for effecting the said Scheme, and a notification purporting to be under Section 16 (c) of the Act, 1945 was published in the UP Gazette dated 18th and 26th July, 1959 notifying that Scheme sanctioned by the Notification dated 13th December, 1956 was to be modified in accordance with said notification and objections were invited to the said notification.

The further case set up was that the previous owner of the land was an illiterate person and he did not come to know about invitation to the objections as the contents of invitation were never proclaimed in the locality in which the land in suit is situated nor was any notice issued to him nor any objections could be filed. The plaintiffs had taken several other pleas regarding the publication of the Scheme under the U.P. Nagar Mahapalika Adhiniyam Act-II of 1959 which came into force on 1st February, 1960.

The Trial Court’s judgement further reveals that the plaintiff, being aggrieved by the threatened dispossession from the land, filed Civil Miscellaneous Writ Petition Nos.3188 of 1963 and 3491 of 1965 before this Court, and this Court had stayed the dispossession of the plaintiffs during the pendency of the aforesaid writ petitions.

It also transpires from the judgment of Trial Court that the plaintiffs had pleaded that second writ petition became necessary as during the pendency of previous writ petition, the defendants initiated some other proceedings.

It further transpires from the Trial Court’s judgment that the further case set up by the plaintiffs was that when second Writ Petition No.3491 of 1965 came up for final hearing on 26^th October, 1967, it was found that the final decision of disputes between the parties required determination of question of fact, which could be properly determined in a civil suit, therefore, this Court passed an order dated 26^th October, 1967 dismissing the writ petition.

This Court in the order dated 26^th October, 1967 granted further time to the plaintiff up to 15^th January, 1968 to serve the requisite statutory notices and to file a civil suit so that plaintiffs may not be prevented from seeking requisite reliefs from a competent Court of law.

The suit was contested by the defendants contending inter alia that notice under Section 80 of CPC is illegal and invalid and occupation of the plaintiffs over the land is illegal and unauthorized. It was stated that the land acquisition proceedings for the land situated in Kalyanpur, Panki Pandu Green Belt Scheme No.40 were commenced as early as 25^th July, 1959 when admittedly, the plaintiffs had no right, title or interest in the suit land, who purchased it on 20^th August, 1962 during the pendency of the acquisition proceeding at their own risk and plaintiff must suffer the consequences of contravention of statutory provisions of law.

The defendants specifically pleaded that the plaintiffs have full knowledge of the acquisition proceedings as before the purchase of the said land, notice had been served on the plaintiff's predecessor in interest, Ratan on 08.05.1962 and the plaintiffs themselves filed an application for substitution of their names in place of Ratan before the Land Acquisition Officer on 01.08.1969. Besides above, the defendants have taken several other pleas.

Based on the pleadings of the parties, the Trial Court framed 15 issues, which are reproduced herein below:-

The Trial Court after appreciating the facts and evidence on record in detail recorded a finding that Ratan, the original tenure holder, intentionally relinquished his right to challenge the acquisition proceedings, therefore, the subsequent transfer of the land in suit in favour of the plaintiffs would not confer any right to them to challenge the acquisition proceeding which their predecessor Ratan himself had lost by waiver. Relevant extract of the judgment of Trial Court is reproduced herein below:-

The Trial Court though recorded a finding that the amendments in the Scheme were not in respect of the suit land, but later on all the irregularities stood regularized after the notices under Section 9 of the Act, 1894 having been served on Ratan, the original tenure holder, through Mohan Lal and his claim have been filed. Accordingly, the Trial Court categorically recorded that plaintiffs are not the owners and Bhumidhars of the plots in dispute. Relevant extract of the finding of the Trial Court in this regard is reproduced herein below:-

The judgment and decree passed by the Trial Court in suit was assailed by the plaintiffs in Civil Appeal No.235 of 1975, which was also dismissed by the First Appellate Court by judgment and decree dated 03.10.1981. The plaintiffs, thereafter, preferred Second Appeal No.2736 of 1981.

In the affidavit filed in the Second Appeal in support of the stay application, the plaintiffs had stated that they are in possession of the land in dispute and their dispossession had remain stayed in the Writ Petition No.3491 of 1965 by this Court as well as during the pendency of the suit before the Trial Court and the appeal before the First Appellate Court.

This Court admitted the Second Appeal No.2736 of 1981 on 03.11.1981. This Court also stayed the dispossession of the appellant. The stay order passed by this Court on 04.11.1981 in the aforesaid appeal reads as under:-

The record further reveals that Beliram had died on 26.05.1998 and petitioners submitted a Civil Misc. Substitution Application No.62505 of 1998 for being substituted as legal heir of Beliram, which was allowed by this Court and petitioner was substituted as legal heirs of Late Beliram in the Second Appeal.

The finding that plaintiffs, namely, Beliram and Ram Lal were not the owners and Bhumidhars of the plot in suit has attained finality after the petitioners got the Second Appeal dismissed as infructuous by this Court by judgment and order dated 28.07.2006. The petitioners are bound by the said finding. The order of this Court dated 28.07.2006 is reproduced herein below:-

At this stage, it would be apposite to consider whether petitioners could file an application under Section 17 of the Act, 1973 read with Section 48 of the Act, 1894 to get the property released in their favour.

It is undisputed that the proceedings of acquisition had taken place under the Act, 1945. Chapter IX of the Act, 1945 provides for acquisition and disposal of land. Section 71 of the Act, 1945 deals with power to acquire land under the Act, 1894 which is reproduced below:-

Section 114 of the Act, 1945 deals with the modification of Land Acquisition Act, 1894 which reads as under:-

Para-14 of Schedule (referred to in Section 71 and Section 114) in the context of the present case is relevant and is being reproduced herein below:-

Section 71 of the Act, 1945 confers power upon the Board to acquire the land under the provisions of Act, 1894 as modified by the provisions of this Act i.e. The Act, 1945 with the previous sanction of the State Government.

So the Act, 1894 has been adopted by the Act, 1945 and shall apply as modified by the provisions of Act, 1945. The application of Act, 1894 in the context of Act, 1945 is subject to the modification specified in the Schedule to this Act i.e. ‘Act, 1945’.

If we take a glance at para 14 of the Schedule, Section 48-A has been inserted after Section 48, but reading of Schedule does not disclose that Section 48 had also been adopted and incorporated by the Schedule in the Act 1945.

Once it is manifestly clear from reading of Section 71, 114 and Schedule of the Act, 1945 that Section 48 of the Act, 1894 has not been adopted and incorporated in the Act, 1945, there was no power with the State Government to release the land inasmuch as the acquisition had taken place under the Act, 1945 and provisions of the Act, 1894 have been adopted and incorporated by virtue of Section 71 and Section 114 and the Schedule of the Act, 1945 with certain modifications, and Section 48 had not been incorporated, therefore, the land could be released only if there was any provision in the Act, 1945 authorizing the State Government to release the land.

It is also pertinent to note that admittedly, the land had been acquired under the Act, 1945 and Act, 1894 had been adopted and incorporated in the Act, 1945 by virtue of Section 71 and 114 of the Act 1945, and after promulgation of U.P. Municipal Corporation Act, 1959, the Act, 1945 stood repealed by virtue of Section 581 of the Act 1959. Therefore, once the Act, 1945 had been repealed by Section 581 of the Act, 1959 and the Act, 1894 had been adopted in the Act, 1945 by virtue of Sections 71 and 114 of the Act, 1945, therefore, with the repeal of the Parent Act i.e. The Act, 1945, the provisions of Act, 1894, which had been adopted by Section 71 and 114 of the Act, 1945, have lost its existence and have no application. Thus, Section 48 of the Act, 1894 cannot be invoked to file an application for release of land.

Similarly, Section 17 of the Act, 1973 would also not attract in the instant case as the land was acquired under the Act, 1945 and not under the Act, 1973, therefore, the provisions of Section 17 had no application nor it could be invoked by the petitioners to get the land released.

The Division Bench of this Court dismissed the Civil Misc. Writ Petition No.37534 of 2004 (Smt. Sukhdeyi and Others Vs. State of U.P. and Others) wherein one of the relief sought was that a mandamus be issued to the competent authority under Section 17 of the Act, 1973 for restoring back the land to the petitioners as it has not been utilized in spite of having been acquired for the Kanpur Development Authority.

In the said case, the land was acquired under the notifications issued under Chapter XIV of the Nagar Mahapalika Adhiniyam, 1959 (U.P. Act No.II of 1959) that were published in the Gazette on 28.04.1962 and 05.10.1963.

On the date when the land was acquired, the Kanpur Development Authority was not in existence. This Court held as follows:-

It is also pertinent to note that the finding recorded by the District Magistrate in his report dated 27.01.2005 that the possession of the land was not taken is incorrect, inasmuch as in the suit, the respondents had categorically set up a case that possession of the predecessor of the petitioners and petitioners over the land in question was unauthorized and illegal, as the land in question was already acquired, and the petitioners were not the owners and Bhumidars of the land.

The petitioners did not disclose that an injunction order was operating in the writ petition filed by the predecessor of the petitioners before this Court challenging the acquisition proceeding, and also during the pendency of suit, appeal and even in the Second Appeal filed before this Court. Therefore, respondents could not take the possession because of the injunction order operating in the aforesaid proceedings against the respondents by which the respondents were restrained from evicting the petitioners. Therefore, it was not a case where respondents were at fault or there was any willful default on the part of respondents in taking over the possession, however, the respondents could not take the possession only for the reason that the injunction order was operating against the respondents restraining them from dispossessing the petitioners from the land in question.

Now, in the light of the aforesaid facts, we would proceed to examine whether report dated 27.01.2005 of the District Magistrate, which was the basis for releasing the land, was obtained by concealing material fact.

Following facts will establish that the report of the District Magistrate dated 27.01.2005 was obtained by concealing material fact:-

A- It is admitted by the petitioners that in the plaint of Civil Suit No.129 of 1968 that when the acquisition proceeding was conducted, one Ratan S/o Kewal caste Gadaria was the original tenure holder/owner of the land in question, and the Notification for acquisition of land under Section 53 of the Act, 1945 was issued on 18.07.1959/25.07.1959 and the Notification under Section 60 of the Act, 1945 was issued on 23.12.1959.

The following fact has direct bearing on the merits of the present case:-

The aforementioned facts establishes beyond doubt that the result of the suit had direct bearing on the merits of the present writ petition, yet the petitioners did not choose to give details of filing of civil suit, first appeal and second appeal.

Perusal of the report of the District Magistrate reveals that impression had been created that the possession of the land had not been taken by the State Government, but the facts on record are otherwise.

The predecessor of the petitioners preferred Civil Miscellaneous Writ Petition Nos.3188 of 1963 and 3491 of 1965 in which they obtained a stay order restraining the respondent-State from dispossessing the predecessor of the petitioners from the land in question in the said appeal.

Subsequently, the aforesaid writ petitions were got dismissed as not pressed with liberty to institute the civil suit, and in the civil suit, the plaintiff had got a temporary injunction order restraining the respondent from dispossessing the predecessors of petitioners from the land in question. The stay order granted by the Trial Court had continued in civil appeal, and thereafter, in the second appeal. The stay order was discharged after the petitioners got the Second Appeal dismissed as infructuous.

In the suit, the respondent has stated that the predecessor of the petitioners had been in unauthorized and illegal possession over the land in question. So, it is not a case where respondent had not voluntarily taken possession over the land, but the possession of the land could not be taken by the respondent because of the interim orders passed by this Court in Civil Miscellaneous Writ Petition Nos.3188 of 1963 and 3491 of 1965, and thereafter, in Civil Suit No.129 of 1968, First Appeal No.235 of 1975 and Second Appeal No.2736 of 1981. Thus for the aforesaid reasons, the possession of the land could not be taken by the respondents for the reason beyond its control.

The respondent has also stated before the Trial Court in the suit that the land had been acquired for Kalyanpur, Panki Pandu Town Expansion and Green Belt Scheme No.40 which has been executed, and therefore, statement made in the report of the District Magistrate dated 27.01.2005 that though the land was acquired in the year 1959, but the Scheme for which the land was acquired had not been executed is false, incorrect and against the record. Thus, in the light of Section 17 of the Act 1973, the application of the petitioners for release of the land could not be considered.

The report of District Magistrate dated 27.01.2005 reflects that the District Magistrate while submitting the report failed to consider that the acquisition proceeding had taken place under the Act, 1945, and the Act, 1945 adopts the procedure of acquisition provided in the Act, 1894 by virtue of Section 71 and Section 114 of the Act, 1945 with modifications prescribed in the Schedule (referred to in Section 71 and 114), and once, the Parent Act i.e. Act, 1945 had been repealed by Section 581 of U.P. Municipal Corporation Act, 1959, therefore, Section 48 of the Act, 1894 was not applicable, therefore, Section 48 of the Act, 1894 could not be invoked for release of the land from acquisition.

Further, the report of the District Magistrate discloses that he has invoked Section 17 of the Act, 1973 for release of the land which cannot be invoked in the facts of the present case for the reason that the land had been acquired under the Act, 1945 whereas, Section 17 of the Act, 1973 could be invoked with respect to land which have been acquired for development of an area under the Act, 1973, and the purpose for which the land was acquired under the Act, 1973 had not been implemented. Therefore, invocation of Section 17 of the Act, 1973 by the District Magistrate in recommending the application of the petitioners for release of land was completely misplaced.

Based upon the said report, it transpires from the Notification dated 03.05.2006 that the Director, Directorate of Land Acquisition sent a letter dated 23.02.2005 forwarding the report of the District Magistrate dated 27.01.2005 for consideration of release of land in the light of the Government Order dated 19.06.2002.

The said Notification further reveals that the objection was sought from the Housing and Urban Planning Development Department, and when no objection was raised by the Housing and Urban and Planning Development Department, the land was released by the Special Secretary under Section 48 (1) of the Land Acquisition Act, 1894 (as amended by Act, 1984).

In the case of G. Narayanaswamy Reddy (Dead) By LRS. and Another Vs. Government of Karnataka and Another (1991) 3 SCC 261, the Apex Court dismissed the appeal of the appellant on the ground that the appellant did not disclose the stay orders which was highly material for deciding the question of delay in making award under Section 11-A of the Land Acquisition Act. The relevant extract of the paragraph 2 of the judgement is being reproduced below.

The Apex Court in the case of V. Chandrasekaran and Another Vs. Administrative Officer and Others (2012) 12 SCC 133 has held that a person who seeks equity must do equity. It further held that the pleadings containing false, misleading or inaccurate statements to achieve ulterior purpose amounts to abuse of process of Court and such person must not be permitted to profit from frivolous litigation. Paragraph nos.44 to 48 of the said judgement are being reproduced herein below:-

At this stage, it would be useful to refer to judgement of the Apex Court in the case of K. Jayaram and Others Vs. Bangalore Development Authority and Others (2022) 12 SCC 815 wherein the Apex Court has held that the petitioner, while invoking the jurisdiction of High Court under Article 226 of the Constitution of India, must approach with clean hands by disclosing all material facts within his knowledge.

It further held that concealment or suppression of material facts would amount to playing fraud with the Court as well as opposite party, which itself is sufficient to dismiss the writ petition. It also held that the Writ Court while exercising extraordinary power would indeed bear in mind the conduct of the party which is invoking such jurisdiction. Paragraph nos.9, 10, 14 & 15 of the aforesaid judgement are being reproduced below:-

A Division Bench of this Court in the case of Dabur India Ltd. Vs. State of U.P. and Others 2002 All LJ 1811 dismissed the writ petition in exercise of extraordinary power under Article 226 on the ground that the petitioner was guilty of concealing material fact.

The Apex Court in the case of U.P. Awas Evam Vikas Parishad through Housing Commissioner and Another Vs. Noor Mohammad and Others 2021 SCC OnLine SC 1266 has held that the power to issue Notification would include a power to rescind the Notification. In the said case, the appellant, UP State Awas Evam Vikas Parishad, challenged the order of the High Court setting aside the Notification canceling a previous Notification issued under Section 48 (1) of the Act, 1894 for release of the land of the respondents from acquisition.

The High Court had set aside the Notification by which the State Government had withdrawn/rescinded the earlier Notification under Section 48(1) releasing the land from acquisition on two grounds namely; (i) that while there is a provision under Section 48(1) of the Land Acquisition Act for the withdrawal of the land from acquisition, there is no provision in the Act for cancellation of a Notification under Section 48 (1); (ii) that once a Notification under Section 48 (1) of the Land Acquisition Act is issued, the land gets vested in the original owner and that therefore, divesting cannot take place without following the process of acquisition as enunciated in the Statute.

The Apex Court in respect to the first ground, which we have noted above, on which the High Court set aside the notification, found the said ground not sustainable in view of Section 21 of the General Clauses Act, 1897 which provides the power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws. Paragraph nos.11, 15 and 16 of the aforesaid judgement are being reproduced below:-

In the aforesaid judgement, the Apex Court held that exemption of land from acquisition is an administrative act. Paragraph nos. 21 to 24 of the judgment of Apex Court in the case of U.P. Awas Evam Vikas Parishad (supra) are being reproduced below.

Since, the predecessors of petitioners had purchased the land from Ratan, the original tenure holder, therefore, the only right which the predecessor of the petitioners had was to receive compensation.

The predecessors of the petitioners could withdraw the awarded amount which had been deposited by the respondents in the RD account, and they could have further availed the remedy available to them under law for release of the revised compensation.

We have dealt in detail above that the earlier Notification dated 03.05.2006 was obtained by concealing material fact that predecessors of the petitioners had purchased the land after the commencement of acquisition proceeding from the original tenure holder who had no title or interest in the property. Therefore, the petitioners, who are claiming to be heirs of vendee of sale deed dated 20^th August, 1962 cannot have any title over the land in dispute. In such view of the fact, the land could not be released in favour of the petitioners.

The law is settled that fraud vitiates every solemn act. In this respect, it would be apt to refer to the judgement of the Apex Court in the case of Sukh Sagar Medical College and Hospital Vs. State of Madhya Pradesh and Others (2021) 13 SCC 587 wherein the Apex Court has held that the fraud can either be actual or constructive fraud. Paragraph nos.20 & 21 of the said judgement are being reproduced below:-

In view of the aforesaid deliberation by us, it is abundantly clear that the Notification dated 03.05.2006 was obtained by the petitioners by playing fraud and concealing material facts.

Now coming to the further submission of learned counsel for the petitioners that the impugned order has been passed by the authority on erroneous ground, it is only the concerned Department for whom the land had been acquired is authorized to release the land under the Government Order dated 15.09.2006 inasmuch as the Government Order dated 15.09.2006 would not operate retrospectively, and further, under the Rules, 1975, it is the Revenue Department which is vested with the jurisdiction in respect of the Act, 1894.

So far as the aforesaid contention of learned counsel for the petitioners is concerned, the record discloses that when the Notification dated 03.05.2006 releasing the land was issued, the Government Order dated 19.06.2002 was applicable, and in said Government Order, the land could be released by the Revenue Department.

Even under the Rules, 1975, it is the Revenue Department which is vested with the jurisdiction in respect of Act, 1894. Therefore, it is manifest on record that on the date when the Notification dated 03.05.2006 was issued, it was the Revenue Department which was authorized to release the land.

However, we have held above that the land had been acquired under the Act, 1945, and Section 48 of the Act, 1894 was not adopted in the Act, 1945 which is evident from the Schedule (referred to in Sections 71 and 114). Further, even if we accept the contention of learned counsel for the petitioners that Section 48 of the Act, 1894 has been incorporated in the Act, 1945, even then no application for release of land under Section 48 would lie inasmuch as by the repeal of the Parent Act i.e. Act, 1945, the provisions of Act, 1894 which had been incorporated in the Parent Act had also lost its existence.

Therefore, we are of the view that neither the Revenue Department, who was authorized to deal with Act, 1894, nor the concerned Department under whom the land comes had any power to release the land.

Now, the further contention, which has been advanced by the learned counsel for the petitioners is that the impugned order had been passed without following the principles of natural justice as no notice and opportunity of hearing was given to the petitioners before passing the impugned order.

Though, it is true that if an order passed by the authority or quasi-judicial authority or Tribunal prejudices the rights of a person, the fairness of judicial process demands that such person should be given an opportunity of hearing as it is settled law that principles of natural justice are integral part of Article 14 of the Constitution of India.

The law is no more res-integra that the principle of natural justice is applicable even though if an order or decision of the administrative or quasi-judicial authority prejudices or affects the rights of a person, even though it was not statutorily required, but it is also equally settled that the said principles is not absolute and would depend upon the facts of the case. There is an exception to the aforesaid law enunciated by the Courts that if the observance of principles of natural justice in a given case is useless formality or non-observance of it does not prejudice the concerned party, it is not necessary to adhere to the principles of natural justice.

In other words, there may be a case that a fair hearing would make no difference or would not change ultimate conclusion, then there is no legal duty cast upon the authority to follow the principles of natural justice because, in such situation, fair procedures appear to serve no purpose since the right result can be secured without according such treatment to the concerned person, and in such cases, the Courts are not obligated to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the principles of natural justice. Therefore, every violation of facet of principles of natural justice may not lead to a conclusion that the order passed is null and void. Therefore, the validity of such order is to be tested on the touchstone of the prejudice caused to the individual against whom such order has been passed.

In S.L. Kapoor Vs. Jagmohan and Others (1980) 4 SCC 379, the Apex Court in paragraph no.24 has held as under:-

In Aligarh Muslim University and Others Vs. Mansoor Ali Khan (2000) 7 SCC 529, the Apex Court in paragraph no.23 reiterated the law enunciated in the case of S. L. Kapoor (supra) that on admitted or indisputable facts only one view is possible, then the principle of natural justice is merely a formality as it does not prejudice the concerned person. Paragraph nos.24, 25 & 26 of the said judgement are being reproduced herein below:-

In paragraph 39 of the judgment of the Apex Court in the case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and Others (2015) 8 SCC 519, the Apex Court reiterates the aforesaid principle. Para 39 of the judgment is reproduced below.

Now, in the light of the aforesaid principle, if we analyze the facts of the present case, we find that the fact that Ratan was the original tenure holder of the land is undisputed, and the fact that predecessor of the petitioners, namely Beliram and Ramlal had purchased the land by registered sale deed dated 20^th of August, 1962 after the issuance of Notification under Sections 53 & 60 of the Act, 1945 for acquisition of land is not disputed.

The fact that the predecessors of the petitioner instituted Civil Suit No.129 of 1968 challenging the acquisition proceedings seeking a declaration in respect of land is also not disputed.

The Trial Court while dismissing the suit, recorded a categorical finding that the plaintiffs (predecessors of the petitioners) cannot challenge the acquisition proceedings when the original tenure holder-Ratan had waived his rights to challenge the acquisition proceedings.

The said finding has attained finality after dismissal of the Civil Appeal No.235 of 1975 against the judgment of the Trial Court and dismissal of Second Appeal No.2736 of 1981 against the judgment of Trial Court as well as Appellate Court.

Since the finding of the Trial Court that the predecessors of the petitioners from whom the petitioners claim to have acquired the land did not have any locus to challenge the acquisition proceeding as the sale deed dated 20.08.1962 executed in favour of predecessors of the petitioners by the original tenure holder, Ratan was void having been executed after the commencement of acquisition proceedings. Therefore, the petitioners cannot have a better title than their grandfather, and therefore, they have no right to get the land released.

It is pertinent to note that the petitioners claim to be the owner of the land by virtue of a ‘Will’ executed by his grandfather Late Beliram despite the fact that Beliram could not execute the ‘Will’ of a land which he did not own.

Since the land was acquired under the Act, 1945, which had been repealed by Section 581 of the Act, 1959 and the Act, 1894 had been adopted in the Act, 1945 by virtue of Sections 71 and 114 of the Act, 1945, therefore, after repeal of the Act, 1945, the provisions of Act, 1894 have no application. Thus, Section 48 of the Act, 1894 was not available to the petitioners to invoke the same for the purpose of release of land.

Further Section 17 of the Act, 1973 had also no application in the facts of the present case. Therefore, in the absence of any provision authorizing the authority to release the land, the Notification dated 03.05.2006 was per se illegal and without jurisdiction.

Therefore, in view of the aforesaid undisputed facts on record, the only inescapable conclusion is that the land could not be released from acquisition and non-adherence of the principles of natural justice in the present case by the authority did not prejudice the petitioners.

In such view of the fact, we are convinced that the impugned order cannot be declared illegal for want of adherence to the principles of natural justice.

It is also settled in law that the High Court while exercising extraordinary jurisdiction under Article 226 of the Constitution of India, can refuse to issue a writ of certiorari if by issuance of such writ, previous illegal order would revive.

In other words, this Court, while exercising under Article 226 of the Constitution of India cannot allow an illegality to perpetuate.

The Apex Court in the case of Central Council for Research in Ayurvedic Sciences and Another Vs. Bikartan Das and Others AIR 2023 SC 4011 eloquently explained the principle of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution of India particularly when it comes to the issue of writ of certiorari. The paragraph nos.49, 50 & 51 of the said judgment are being reproduced below:-

It would be apt to refer to paragraph nos.98 & 99 of the judgement of the Apex Court in the case of AL-Can Export Private Limited Vs. Prestige H.M. Polycontainers Limited and Others (2024) 9 SCC 94 which reads as under:-

We have already held that the Notification dated 03.05.2006 was obtained by fraud as the report of the District Magistrate dated 27.01.2005 was obtained by concealing material facts which we have already detailed above.

Even before this Court, the petitioners are guilty of concealing material facts inasmuch as in the writ petition they did not disclose the vital and important facts that the original tenure holder of the land was Ratan against whom acquisition proceeding had taken place and the land was subsequently purchased by the predecessors of the petitioners.

The petitioners did not disclose the filing of Civil Suit No.129 of 1968, Civil Appeal No.235 of 1975 and Second Appeal No.2736 of 1981 by their predecessors.

It is also pertinent to note here that in the instant case, the petitioners have misused the judicial process by concealing material facts to their advantage. Our said view is fortified from the fact that the land was acquired in the year 1959. After acquisition, the land was purchased by predecessors of the petitioners who instituted the suit challenging the acquisition proceedings. The suit was dismissed. The First Appellate Court dismissed the appeal preferred against the judgment and decree of the Trial Court and thereafter, the Second Appeal No.2736 of 1981 was filed in which an order staying the dispossession of the appellants was obtained.

After the death of one of the appellants, petitioners got themselves substituted in the Second Appeal and after about 50 years, when the petitioners managed the things to their advantage by procuring the report of the District Magistrate in their favour on the basis of which the land was released by Notification dated 03.05.2006, they got the Second Appeal dismissed as infructuous.

We have already detailed above that the report of the District Magistrate dated 27.01.2005 was submitted without considering the relevant facts. The petitioners misused judicial process up to optimum level inasmuch as they could manage the release of land which in fact they did not own.

In view of the discussions in the aforesaid paragraphs, we are of the view that the petitioners are guilty of playing fraud upon the Court, and if we interfere with the impugned order, that would amount to reviving an illegal order which was obtained by fraud.

Therefore, in the facts of the present case, we are of the view that the respondent no.1 has rightly exercised his power to recall of the Notification dated 03.05.2006 as the present case falls in the exception which permits the authority to recall or review an earlier order if it had been obtained by fraud and concealment.

In view of the aforesaid discussions, we do not find any merit in the writ petition, and the writ petition is dismissed.

We have recorded above that the petitioners with impunity have misused the judicial process upto their optimum advantage because of which they remained in possession over the land for over 65 years over which they have no title. Therefore, we are of the view that it is a fit case where heavy cost should be imposed upon the petitioners.

Accordingly, we impose a cost of Rs. 5 lacs upon the petitioners, which they shall deposit with the respondent no.1 within a period of two months.

The respondent no.1 on receiving the aforesaid cost, shall out of the said amount pay half of the amount to the Allahabad High Court Legal Services Committee.

In case the petitioners do not deposit the said costs within the aforesaid period, it is open to the respondent no.1 to recover the same as arrears of land revenue.