U.P. Avas Evam Vikas Parishad vs Chandra Shekhar And Ors

REPORTABLE 2024 INSC 210

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3855 OF 2024 (ARISING OUT OF SLP (C) NO. 779 OF 2016)

U.P. AVAS EVAM VIKAS PARISHAD … APPELLANT Versus

CHANDRA SHEKHAR AND ORS. … RESPONDENTS

JUDGMENT

SURYA KANT, J.

1. Leave granted.

2. The appellant­U.P. Avas Evam Vikas Parishad (Board) is aggrieved

by the judgment dated 07.10.2015, passed by a Division Bench of the

High Court of Judicature at Allahabad, Lucknow Bench, whereby

acquisition in respect of Khasra No.673 (mentioned as plot No. 673 in the

impugned judgment), situated within the revenue estate of village

Hariharpur, Tehsil and District Lucknow, has been quashed on the

ground that the respondent­tenure holders were not accorded

opportunity to submit objections against the proposed acquisition in Signature Not Verified

accordance with Section 29 of the U.P. Avas Evam Vikas Parishad Digitally signed by satish kumar yadav Date: 2024.03.16 12:57:53 IST Reason:

Adhiniyam, 1965 (in short, `the 1965 Act’).

3. The 1965 Act was enacted by the State legislature through Act No.1 2

of 1966 and has, thereafter, been re­enacted by U.P. Act No.30 of 1974,

to provide for the establishment, incorporation and functioning of a

Housing and Development Board in Uttar Pradesh.

4. Section 28 of the 1965 Act contemplates that when any Housing or

Improvement Scheme is framed, the Board shall prepare a notice

depicting the boundaries of the area comprised in that Scheme; the

details of the land proposed to be acquired and the date by which the

objections to the Scheme are to be invited. Such notice is required to be

published weekly for three consecutive weeks in the Gazette and two

daily newspapers having circulation in the area comprised in the

Scheme, at least one of which shall have to be a Hindi newspaper.

5. Section 29 of the 1965 Act provides that the Board shall serve a

notice in such form on such persons or classes of persons in the

prescribed manner for executing the Scheme.

6. Section 30 of the 1965 Act enables the person on whom a notice

under Section 29 has been served to make an objection in writing to the

Board against the Scheme or the proposed acquisition or levy, etc. After

consideration of such objections, and when the prior sanction from the

State Government is obtained, the Scheme shall be notified under

Section 32 of the 1965 Act, and it shall come into force therefrom.

7. Section 55 of the 1965 Act confers power to acquire land for

implementation of the Scheme under the Act, and it reads as follows:

“55. Power to acquire land.­ (1) Any land or any interest 3

therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of the Land Acquisition Act, 1894 (Act No. I of 1894), as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modification 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 the land under the Land Acquisition Act, 1894 (Act Ne. I of 1894).”

8. In purported exercise of its powers under Section 28 of the Act, the

appellant­Board issued a notice on 17.07.2004 (Annexure P­1) giving a

description of the Scheme called as the Sultanpur Road Bhoomi Vikas

Evam Grahsthan Yojna at Lucknow. The said notice vividly described

the lands/properties which were to fall within the Scheme, the map of

the area, particulars of the Scheme and the details of the land which was

proposed to be acquired was notified to be available in the Office of the

Housing Commissioner. It was further stipulated that the objections to

the Scheme shall also be received by the Office of the Housing

Commissioner (Land Acquisition Section) within 30 days from the date of

publication of the said notification.

9. It is a matter of record that Khasra No.673 at village Hariharpur did

not find any mention in the aforesaid notification dated 17.07.2004.

10. The case of the respondents is that Khasra Nos.672 and 673 were

mutated in their favour on 10.10.1999, as can be seen from the entries

in the revenue record, a copy whereof has been placed on record as

Annexure P.6.

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11. It is also not in dispute that the tenure holding/ownership of

Khasra No.673 was later on changed in favour of one Chandrika S/o

Harishchandra, Guruprasad S/o Jawahir, and the entries to this effect

were reportedly made in the revenue record on 13.08.2003 and

09.02.2004.

12. While the respondents pleaded that the entries in the revenue

record were altered fraudulently behind their backs in collusion and

connivance with Chandrika and others and the statutory procedure

envisaged to make such changes was not followed, the case of the Board

is that the notice proposing to acquire the subject­land was issued to

Guruprasad, in whose favour the entries subsisted on the date

immediate prior to the issuance of Notification under Section 28 of the

1965 Act. In other words, the appellant’s stand is that they were not

obligated to serve any notice on the respondents as they were not

amongst the interested persons as per the entries in the revenue record,

and that such a notice was duly served on the persons who were

recorded as the tenure­holders as per the revenue record.

13. The question whether the appellant­Board ought to have served

individual notice upon the respondents under Section 29 of the 1965

Act, has been answered by the High Court vide the impugned judgment

in favour of the respondents for two sets of reasons. Firstly, the High

Court, with regard to the entries made in favour of Chandrika and

others, has observed as follows:

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“It has been brought to our notice by the learned Standing Counsel, on the basis of enquiry, which has been held by the respondents, that surprisingly the name of Chandrika has been found to be recorded in khatas of three villages to the extent of area 9.64 hectares. The entry of Chandrika in respect of khatas of three villages is not to be confined to this extent only, but the authorities are obliged to make further enquiry in respect of such entries prevailing in Sadar Tehsil in district Lucknow.

It is to be noted that not only Chandrika whose name has been recorded in clandestine manner, but there may be other persons, whose names have also been recorded in the like manner and the poor farmers do not come to know that some name has been entered on the eve of acquisition and that too without any knowledge to them. If the name of any person has to be recorded in the khata, then it is incumbent upon the Tehsildar to give notice and hear the recorded tenure holder personally and thereafter make any change in the khata of the recorded tenure holder.

The novel method adopted in entering the name of Chandrika in so many khatas itself throws doubt upon the manner in which, the entry in the name of Chandrika has been made. This is a serious matter and it requires thorough enquiry.

The Secretary, Board of Revenue himself or his nominee was directed to conduct an enquiry into the matter. The Secretary, Board of Revenue or his nominee does not mean that the Secretary, Board of Revenue will not supervise the enquiry personally. It is incumbent upon the Secretary, Board of Revenue to supervise the enquiry personally and call the officers and also to scrutinize the facts and the evidence 'collected by the officers and thereafter take action in accordance with law.” [Emphasis applied]

14. Thereafter, the High Court proceeded on the premise that the effect

of no notice having been served on the respondents entails denial of the

very valuable right of objections available to them. That limited

opportunity is akin to Section 5A of the Land Acquisition Act, 1894, and

non­observance thereto, vitiates the acquisition process qua plot No. 673

and the same cannot sustain.

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15. We have heard learned Senior Counsel appearing on behalf of the

appellant as well as learned counsel appearing on behalf of the

respondents and carefully perused the material placed on record.

16. The 1965 Act mandates issuance of a pre­acquisition notice to such

individuals whose land/property falls within the purview of the proposed

Scheme. On a liberal reading to such provision, the appellant, at best,

could have claimed deemed or substantial compliance of audi alteram

partem rule provided that Khasra No. 673 was expressly notified in the

public notice dated 17.07.2004. Unfortunately, Khasra Nos. 672 and 673

are conspicuously missing in the public notice dated 17.07.2004. No

individual notices were indisputably served on the respondents for the

reason that they were not recorded as tenure­holders of the subject land

immediately before the issuance of a notice under Section 29 of the 1965

Act. In the absence of any public or individual notice proposing to

acquire Khasra No.673, we find merit in the cause espoused on behalf of

the respondents.

17. Nevertheless, we are equally conscious of the fact that there is a

combative title dispute between the respondents on one hand, and

Chandrika and others on the other. We, therefore, decline to hold or

declare the respondents to be the true tenure­holders of the subject land.

All that we say is that in the absence of any public or individual notice

proposing to acquire Khasra No. 673, the observations made by the High

Court to the extent that the respondents have been denied an effective 7

opportunity to submit objections to oppose the acquisition in question,

appears to be correct and based upon the record. That being so, the

impugned judgment to the extent it holds that the acquisition process

qua Khasra No.673 stands vitiated on account of non­compliance with

the prescribed procedure, does not call for any interference.

18. Having held so, the question that falls for further consideration is

as to what should be the future course of action for the appellant­Board,

so that neither the public interest to utilize the subject­land for the

Scheme that has been substantially developed is frustrated nor the true

tenure holders are deprived of the adequate compensation for their land.

It may be seen from Section 55 of the 1965 Act that the compensation for

the acquired land was required to be assessed in accordance with the

provisions of the Land Acquisition Act 1894, which stood repealed w.e.f.

01.01.2014 by the Right to Fair Compensation and Transparency in

Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter

referred to as “the 2013 Act”). Section 55 of the 1965 Act cannot be

given effect unless it is declared by way of a deeming fiction that instead

of 1894 Act which now stands repealed, the compensation shall be

assessed in accordance with the provisions of the 2013 Act. We hold

accordingly. Since the acquisition could not attain finality before

01.01.2014, we are of the considered opinion that the Acquiring

Authority/Board are obligated to pay compensation to the ex­propriated

owners, as is to be assessed in accordance with Section 24(1) of the 2013 8

Act.

19. Consequently, we hold that the tenure­holders/owners of Khasra

No.673, which was still under the acquisition process when 2013 Act

came into force, shall be entitled to be paid compensation in accordance

with Section 24(1) of the 2013 Act.

20. We may hasten to add that the procedure prescribed under

Chapter­II of the 2013 Act, mandates to carry out the Social Impact

Assessment Study in certain situations. The adherence to such a

cumbersome procedure in the instant case will be an exercise in futility

for two reasons. Firstly, a major part of the acquired land has already

been utilized for the notified public purpose. Secondly, the study referred

to above, will delay the assessment and payment of compensation to the

true tenure­holders/owners of Khasra No.673. Consequently, we direct

the appropriate Government to dispense with the procedure

contemplated under Chapter II of the 2013 Act. The Prescribed

Authority is permitted to accord an opportunity to submit objections

under Section 15 of the 2013 Act and, thereafter, pass an award as per

Section 24(1) of the 2013 Act. The Prescribed Authority/Collector shall

give notice to the respondents as well as to other persons who claim

interest in Khasra Nos.672 and 673, within a period of six weeks. The

objections, if any, shall be filed within four weeks and on consideration of

such objections, the Collector shall be obligated to pass an award on or

before 30.06.2024.

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21. We further direct that the awarded amount shall be kept in a

nationalized bank in the FDR where it can fetch the maximum rate of

interest. The FDR shall be renewed from time to time till the title dispute

between the respondents and other claimants is resolved by a court of

competent jurisdiction. Whosoever is found entitled to, the appellant­

Board shall release the compensation to them as early as possible but

not later than four weeks after the final adjudication of the title dispute.

22. The parties shall maintain status quo regarding the nature of the

land, creation of third­party rights or any encumbrance over the subject­

land until the award is passed, as directed above. On the passing of the

award and deposit of the compensation amount, the appellant­Board

shall be at liberty to utilize the said land for the notified Scheme and/or

for any other public purpose in accordance with law.

23. Ordered accordingly.

24. The appeal stands disposed of in the above terms. No order as to

costs.

……...........................J. (SURYA KANT)

...................……….........J. (K.V. VISWANATHAN)

NEW DELHI;

MARCH 05, 2024.

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