PETITIONER:
NARENDRA BAHADUR SINGH AND ANR.
Vs.
RESPONDENT:
STATE OF U.P. AND ORS.
DATE OF JUDGMENT26/11/1976
BENCH:
KHANNA, HANS RAJ
KRISHNAIYER, V.R.
CITATION:
1977 AIR 660 1977 SCR (2) 226
1977 SCC (1) 216
ACT
U.P. Land Acquisition (Rehabilitation of Refugees) Act
1948 Sec. 2(7), 6, 7(1)--Notification for acquiring land for
a society of refugees from Pakistan --Whether acquisition
notification can be struck down on hypertechnical grounds or
whether substantial compliance sufficient--In the absence of
averments in a writ petition on a question of fact whether
petitioner can be allowed to raise a ground based on assump-
tion of such facts.
HEADNOTE
U.P. Government issued a notification under Section 7(1)
of the U.P. Land Acquisition (Rehabilitation of Refugees)
Act, 1948 for acquiring the land belonging to the appellant
for the purpose of Sufferers Cooperative Housing Society.
The Society entered into an agreement with the Government
under section 6 of the Act. The Land Acquisition Officer
determined the amount of compensation for the acquired land.
The appellants challenged the validity of the said notifica-
tion on the following grounds:
1. The notification did not properly speci-
fy the land sought to be acquired.
2. The notification was ultra vires the Act
because it sought to acquire land for the
rehabilitation of displaced persons and not
for the rehabilitation of refugees.
3. The notification was not in accordance
with the provisions of section 7(1) of the
Act.
The single Judge of the High Court did not go into the
first ground but accepted the second and third grounds and
quashed the notification. He held that according to the
definition of refugees in section 2(7) a refugee is a person
who has migrated from Pakistan to any place in the U.P. and
has been since then residing in U.P. and that there was
nothing to show that the displaced persons who are the
members of the Society had settled in U.P. While accepting
the third ground the learned Judge held that section 7(1)
requires to indicate in the notification that it had decid-
ed to acquire the land. However, the notification did not
mention the expression "decided".
On an appeal, the Division Bench disagreed with the
conclusions of the Single Judge and allowed the appeal. The
Division Bench held that the notification was substantially
in accordance with the sect.ion 7( 1 ) and that the members
of the Society consisted of refugees. The Division Bench
also held that the notification was not vague and it proper-
ly specified the land sought to be acquired.
In an appeal by Special Leave the appellants repeated the 3
grounds.
Dismissing the appeal
HELD: 1. The ground about the members of the
Society not being refugees has not been taken
in the Writ Petition at all. The question
whether those members have settled in U.P. is
essentially one of fact. In the absence of
any averment in the writ petition the
material facts having bearing on the point
could not be brought on record. A party
seeking to challenge the validity of a notifi-
cation on a ground involving questions of fact
should make necessary averments of fact before
it can assail the notification on that ground.
[229 F-H]
227
2. The recital in the earlier part of the
notification as well as the operative part of
the notification that the land shall be deemed
to have been acquired permanently and shall
vest in the State Government lends clear
support to the conclusion that the State
Government decided to acquire the land and the
order of acquisition was merely an implementa-
tion of that decision. The fact that the word
decided has not been used in the notification
would not prove fatal when the entire tenor of
the notification reveals the decision of the
State Govt. to acquire land. The court would
not strike down a notification for acquisition
on hypertechnicality; what is needed is sub-
stantial compliance with law and the impugned
notification clearly satisfies that require-
ment. [230 D-F]
3. The contention that the notification in
question is vague is not substantiated. The
notification makes an express reference to the
site plan. [230 G-231 A]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 297 of 1976.
Appeal by Special Leave from the Judgment and Order
dated the 16-10-74 of the Allahabad High Court in Special
Appeal No. 169/72.
S.T. Desai, M.K. Garg, K.B. Rohtagi, V.K. Jain and M.M.
Kashyap, for the Appellant.
O.P. Rana for Respondents 1-4.
V.M. Tarkunde, Pramod Swarup and R.S. Verma for Respond-
ent No. 5.
The Judgment of the Court was delivered by
KHANNA, J.-- This appeal by special leave is against the
judgment of a Division Bench of the Allahabad High Court,
reversing on appeal the decision of learned single Judge,
whereby notification dated April 23, 1966 issued by the
State Government under section 7(1) of the U.P. Land Acqui-
sition (Rehabilitation of Refugees) Act, 1948 (hereinafter
referred to as the Act) had been quashed. As a result of
the decision of the Division Bench, the writ petition filed
by the appellants to quash that notification stood dis-
missed.
The Sufferers’ Co-operative Housing Society, Jaunpur,
respondent, applied to the Uttar Pradesh Government in 1955
for acquiring four acres of land for the purpose of erecting
houses, shops and workshops for the rehabilitation of the
refugees-who were members of that society. At the instance
of the State Government, the society deposited a sum of
Rs.15,000 towards the cost of the land to be acquired. In
1964, the society entered into an agreement with the State
Government under section 6 of the Act. The State Government
thereafter published on April 23, 1966, the impugned notifi-
cation and the same reads as under:
"Under sub-section (1 ) of section 7 of
the U.P. Land Acquisition (Rehabilitation of
Refugees) Act No. XXVI of 1948, the Governor
of Uttar Pradesh is pleased to declare that he
is satisfied that the land mentioned in the
Schedule is needed and is suitable for the
erection of houses, shops and
228
workshops for the rehabilitation of displaced
persons and/ or for the provision of amenities
directly connected therewith.
All the persons interested in the land in question are,
therefore, required to appear personally or by duly autho-
rised agent before the Compensation Officer of the Distt. at
Jaunpur on the twenty seventh day of April 1966, with neces-
sary documentary or other evidence for the determination of
the amount of compensation under section 11 of the Act.
The Collector of Jaunpur is directed to take possession
of the aforesaid land fourteen days after the publication
of this notice in the official gazette.
Upon the publication of this notice, the aforesaid land
shall be deemed to have been acquired permanently and shall
vest absolutely in the State Government free from all encum-
brances from. the beginning of the day on which the notice
is so published.
SCHEDULE
Distt.Pargana Mauza Municipality PlotNo. Area
Cantonment,
Town area or
Notified area 154
Mohalla Diwan Shah Kabir alias 152/1 1,00
Tartala
Pargana Haveli, Tahsil 152/2
Jaunpur Municipal Area 149
Jaunpur 153
2 shops No. 6 and 7
For what purpose required: for the rehabilitation of
displaced persons.
Note: A copy of the site plan may be inspected at the office
of the Collector, Jaunpur."
Subsequent to that notification, the Land Acquisition Offi-
cer determined the amount of compensation for the land and
shops to be acquired at a little over rupees forty one
thousand. The balance of the amount to be paid as compensa-
tion was thereafter deposited by the society.
On April 10, 1970 the appellants, claiming to be the
owners of a part of the land sought to be acquired, fried
petition under article 226 of the Constitution of India in
the Allahabad High Court with a prayer for quashing the
impugned notification. The notification was assailed on the
following three grounds:
(1) The notification did not properly
specify the lands sought to be acquired;
(2) The notification was ultra vires the
Act inasmuch as it sought to acquire lands for
the rehabilitation of the displaced persons
and not for the rehabilitation of refugees;
and
(3) The notification was not in accordance
with the provisions of section 7(1) of the
Act.
229
The learned single Judge, while allowing the writ peti-
tion, did not go into the first ground. He, however,
accepted the second and third grounds and in the result
quashed the notification. On the second ground, the
learned Judge referred to the definition in section 2(7) of
the Act, according to which refugee means any person who was
a resident in any place forming part of Pakistan and who, on
account of partition of civil disturbances or the fear of
such disturbance, has on or after the first day of March
1947 migrated to any place in the U.P. and has been since
residing there. It was observed that there was nothing to
show that the displaced persons for whose benefit the land
in question was being acquired had settled in Uttar Pradesh.
Regarding the third ground, the learned Judge expressed the
view that the notification under section 7(1) of the Act
required that the State Government should indicate in the
notification that it had decided to acquire the land. As
the word "decided" was not mentioned in the notification,
the notification was held to be not in accordance with law.
On appeal, the Division Bench of the High Court disagreed
with the learned single Judge on both the grounds on which
he had quashed the notification. It was held that the
notification was substantially in accordance with section
7(1) of the Act. It was further observed that the society
for whose benefit the land was being acquired consisted of
refugees. Dealing with the first ground, namely, that the
notification was vague as it did not properly specify the
land sought to be acquired, the Division Bench held that all
the necessary particulars in respect of the land sought to
be acquired had been given. In the result, the appeal was
allowed and the writ petition was dismissed.
In appeal before us, Mr. Desai has assailed the decision
of the Division Bench on all the three grounds and has
urged that the impugned notification is liable to be
quashed on each of those grounds. We shall accordingly deal
with those grounds.
So far as the ground is concerned that the persons for
whose rehabilitation the land is sought to be acquired are
not refugees, Mr. Desai could not in spite of our query
refer us to any paragraph in the writ petition wherein the
above ground had been taken. All the same, he submitted
that as the question had been allowed to be agitated before
the High Court, we should not debar the appellants from
advancing arguments on that score. The submission made by
the learned counsel in this behalf is that there is nothing
to show that the persons for whose benefit the land is being
acquired arc settled in Uttar Pradesh. In this respect we
are of the view that the question as to whether those per-
sons are settled in Uttar Pradesh or not is essentially one
of fact. In the absence of any averment in the writ peti-
tion that the person concerned were not settled in Uttar
Pradesh, it is obvious that the material facts having bear-
ing on this point could not be brought on record. A party
seeking to challenge the validity of a notification on a
ground involving questions of fact should make necessary
averments of fact before it can assail the notification on
that ground. As such we find it difficult to sustain the
contention of Mr. Desai that the persons for whose benefit
the land is being acquired were not settled in Uttar Pra-
desh. Apart from that, we find that
230
ground No. 13 taken in the writ petition proceeds upon the
assumption that the persons for whose benefit the land was
being acquired were in fact refugees. It further appears
from the judgment of the Division Bench that there was
hardly any dispute before the Division Bench on the point
that the respondent society, namely, Sufferers’ Co-opera-
tive Housing Society, consists of refugees and has refugees
as its members.
Coming to the second ground taken by the appellants that
the notification was not in conformity with section 7(1) of
the Act inasmuch. as it did not state that the State Gov-
ernment had decided to acquire the land in dispute, we are
of the opinion that a reading of the notification which has
been reproduced above leaves no manner of doubt that the
State Government had decided to acquire the land. It is
stated in the notification that the Governor of Uttar Pra-
desh is pleased to declare that he is satisfied that the
land mentioned in the schedule is needed and is suitable for
the erection of houses, shops and workshops for the rehabil-
itation of displaced persons and/or for the provision of
amenities directly connected therewith. The notification
further proceeds to state that the land in question shall be
deemed to have been acquired permanently and shall vest
absolutely in the State Government free from all encum-
brances from the date of the notification. The recital in
the earlier part of the notification as well as the opera-
tive part of the notification that the land shall be deemed
to have been acquired permanently and shall vest in the
State Government lend clear support for the conclusion that
the State Government decided to acquire the land and the
order of acquisition was merely an implementation of that
decision. The fact that the word "decided" has not been
used in the notification would not prove fatal when the
entire tenor of the notification reveals the decision of
the State Government to acquire the land and is consistent
only with the hypothesis of such a decision having been
arrived at. The courts should be averse to strike down a
notification for acquisition of land on fanciful grounds
based on hypertechnicality. What is needed is substantial
compliance with law. The impugned notification, in our
opinion, clearly satisfies that requirement.
Lastly, we may deal with the contention advanced on
behalf of the appellants that the notification in question
is vague. It is pointed out by Mr. Desai that the total area
of the land comprised in field numbers mentioned in the
notification is 1.26 acres, while the actual area which is
sought to be acquired is one acre. The learned counsel
accordingly urges that it is not possible to find out the
particular portions of those fields which are sought to be
acquired. As such, the notification is stated to be vague
and thus not in conformity with law. Our attention has also
been invited by Mr. Desaid to the report dated June 23, 1971
of the Tehsildar, who was deputed to deliver possession of
the acquired land to the society. In the said report the
Tehsildar stated that he found it difficult to find out as
to which part of the fields mentioned in the notification
were acquired. In this respect we find that the report of
the Tehsilder itself indicates that when he went to the spot
to deliver possession of the acquired
231
land, he did not take with, him the correct plan of the said
land.The impugned notification makes an express reference to
the site-plan. An affidavit has been filed on behalf of the
society and that affidavit makes it plain that the area of
the land which has been acquired comes to exactly one acre.
There appears to be no cogent ground to interfere with the
finding of the Division Bench of the High Court that the
impugned notification has not been shown to be vague.
We, therefore, find no infirmity in the impugned
notification. The appeal fails and is dismissed but in the
circumstances with no order as to costs.
Before we conclude, we would like to observe that the
case before us tells a sad tale of delays in a matter which
on sheer humanitarian grounds needed to be attended to with
expedition. The case, as would appear from the above,
pertains to the acquisition of land with a view to rehabili-
tate refugees who were uprooted from their hearths and homes
in areas now in Pakistan because of disturbances and fear of
disturbances which marred the partition of the country.
The refugees for this purpose formed a society, and applied
to the administration in 1955 for acquisition of land so
that they could erect shops and workshops on that land with
a view to earn their livelihood. It took the administra-
tion 11 years thereafter to issue necessary notification for
the acquisition of the land in dispute. Four years were
thereafter spent because possession of the land could not be
delivered. The only attempt made to deliver possession
proved infructuous as the Tehsildar entrusted with this task
took a wrong plan. From 1970 till today the delivery of
possession remained stayed because of the writ proceedings
initiated by the appellants. One can only hope that now
that the final curtain has been dropped, the matter would be
attended to with the necessary promptitude.
P.H.P. Appeal
dismissed.
232