Vishal Sahakari Awas Samiti vs Secretary Housing Section-3 and Others

This writ petition has been filed raising a large number of disputed questions of fact claiming release of 50% of the land of the petitioner in Khasra No. 195 in village Mirzapur, Tehsil and District Ghaziabad, which had been acquired under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as the ''Act''). The petitioner claims to be a Registered Housing Society. A large area of land had been purchased by the said Society for the purpose of constructing the houses for its members but the State Government issued the notification u/s 4 of the Act on 11.6.1986 acquiring large area of land including that of the petitioner and the declaration u/s 6 of the Act was made on 16.6.1986 by resorting to the provisions of Section 17 of the Act dispensing with the enquiry under the provisions of Section 5A of the Act. The acquisition proceedings were challenged by the petitioner by filing Writ Petition No. 5996 of 1986 before the Lucknow Bench of this Court. It is stated in the petition that the proceedings of land acquisition in respect of the land of the petitioner had been stayed by the Lucknow Bench but that writ petition was dismissed in default vide order dated 9.5.2001. The interim order passed therein came to an end automatically but the petitioner has filed an application for restoration of the said writ petition, which is still pending consideration before the Lucknow Bench. This writ petition has been filed for taking the benefit of the Government Order dated 2.6.1998 (Annexure ''2'' to the writ petition) by which the State Government provided that as far as possible the land belonging to the Housing Co-operative Societies should not be acquired where the land had been purchased prior to the issue of the notification u/s 4/17 of the Act or where the Society had executed Registered Deeds in favour of its members and where the land stood acquired, it should be released. Further, conditions have been imposed for making available the land to the extent of 60% as contained in Clause (3) of the said Government Order.

We have heard the learned Counsel for the petitioner and S/Sri R.N. Singh, Ved Vyash Mishra and A.K. Misra, learned Counsel appearing for the respondents.

There cannot be a dispute in law that upon possession being taken u/s 16 or 17 of the Act, the land vests in the State free from all encumbrances. In this connection reference may be made to the following decisions of the Supreme Court in Satendra Prasad Jain and Others Vs. State of U.P. and Others, and Niladri Narayan Chandradhurja (d) by L.Rs. Vs. State of West Bengal,

However, at the same time there is no bar in law for the Development Authority in providing land for the purposes of constructing the houses to such Housing Co-operative Societies whose land has been acquired as held by the Supreme Court in Hiralal Chawla and Another Vs. State of U.P. and Others, and Uttar Pradesh Residents Employees Co-operative House Building Society and others Vs. The New Okhla Industrial Development Authority and another,

So far as the application of Section 48 of the Act is concerned, in State of Madhya Pradesh and Others Vs. Vishnu Prasad Sharma and Others, the Hon''ble Supreme Court has held as under :

"The argument is that Section 48 is the only provision in the Act which deals with withdrawal from acquisition and that is the only way in which Government can withdraw from the acquisition and unless action is taken u/s 48(1), the Notification u/s 4(1) would remain, presumably for ever... We are not impressed by this argument. In the first place, u/s 21 of the General Clauses Act (Act No. 10 of 1897), the power to issue a notification includes the power to rescind it. Therefore, it is always open to the Government to rescind a notification u/s 4 or 6 and withdrawal u/s 48(1) is not the only way in which a notification u/s 4 or 6 can be brought to an end.... The argument that Section 48(1) is the only method in which the Government can withdraw from the acquisition, has, therefore, no force because the Government can always cancel the notifications under Sections 4 or 6 by virtue of its power u/s 21 of the General Clauses Act...."

Similar view has been reiterated in Special Land Acquisition Officer, Bombay and Others Vs. Godrej and Boyce, wherein the Hon''ble Supreme Court held that the Government is competent to withdraw from the acquisition proceedings and while doing so, the Government is neither required to afford opportunity of hearing to the land owners and nor it is required to record any reasons for such a withdrawal. At the most, landowners may be held entitled to claim compensation under Sub-section (2) of Section 48 in such an eventuality. However, the withdrawal is permissible only prior to the vesting of the land in the State free from all encumbrances.

In Satendra Prasad Jain and Others Vs. State of U.P. and Others, , the Hon''ble Supreme Court held that once land vests in the State free from all encumbrances, it cannot be divested and proceedings under the Act would not lapse even if award is not made within the statutory period. The same view has been reiterated in Awadh Bihari Yadav and Others Vs. State of Bihar and Others, ; U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, ; Allahabad Development Authority Vs. Nasiruzzaman and Others, M. Ramalinga Thevar Vs. State of Tamil Nadu and Others, and Government of Andhra Pradesh v. Syed Akbar and Ors. AIR 2004 SCW 7125.

Learned Counsel for the petitioner has brought to our notice the minutes of the meeting of the Board of the Development Authority held on 31.1.2005 relating to the decision taken by the Board in respect of land which belonged to the petitioner. In view of the order that we propose to pass, it is not necessary to examine this contention.

Be that as it may, as there is no bar even after completion of the acquisition proceedings in allotting the land to the Housing Co-operative Societies for the purposes of constructing the houses for its members and for that purpose the Government Order dated 2.6.1998 has been issued, the application of the petitioner requires to be considered by the Ghaziabad Development Authority strictly in accordance with law.

We, therefore, dispose of this petition with a direction to the Ghaziabad Development Authority to consider the application of the petitioner for the purpose of making available the land strictly in accordance with law and the directions contained in the Government Order dated 2.6.1998 and other relevant Government Orders issued from time to time which are in force after verifying all the facts expeditiously preferably within a period of two months from the date of filing of a certified copy of this order before the respondent No. 2. It is further clarified that we have not expressed any opinion on merits of the case.