The Allahabad High Court has imposed a cost of Rs. 5 lakhs on two petitioners who obtained the release of land acquired in 1959 by concealing material facts.

The Court held that they had suppressed the fact that their predecessors had purchased the land after the acquisition had commenced, and had not disclosed the civil suit, first appeal and second appeal in which the acquisition was unsuccessfully challenged.

Dismissing the writ petition, the Court held that Section 48 of the Land Acquisition Act, 1894 cannot be invoked to seek release of land which was acquired under the Kanpur Urban Area Development Act, 1945. It held that Section 48 was never adopted into the Act of 1945, and the provisions of the Act of 1894 which were adopted lost their existence once the Act of 1945 was itself repealed by Section 581 of the U.P. Municipal Corporation Act, 1959.

Section 71 of the Kanpur Urban Area Development Act, 1945 empowers the Board, with the previous sanction of the State Government, to acquire land under the Land Acquisition Act, 1894 as modified by the Act of 1945. Section 114 provides that for the purpose of such acquisition, the Act of 1894 shall be subject to the modifications specified in the Schedule to the Act of 1945.

Para 14 of that Schedule inserts a new Section 48-A after Section 48 of the Act of 1894, providing for compensation where the Collector has not made an award within two years of the declaration under Section 6.

The bench of Justice Saral Srivastava and Justice Sudhanshu Chauhan held,

“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.”

The Court also held that Section 17 of the U.P. Urban Planning and Development Act, 1973, under which an aggrieved person may apply to the State Government for restoration of land not utilised within five years of acquisition, had no application, as it can be invoked only in respect of land acquired under the Act of 1973.

Land measuring 6-16-0 bighas in Village Shahpur (Mohsinpur), District Kanpur Nagar was acquired in 1959 under the Act of 1945 for the Kalyanpur, Panki Pandu Town Expansion and Green Belt Scheme, and Award No. 47 was declared on 29.07.1963 for the then Nagar Mahapalika Kanpur. The land later vested in the Kanpur Development Authority. The awarded amount of Rs. 598 was not collected by the recorded tenure holders and was deposited in the R.D. account, and the revised award of Rs. 9,964.20 was never deposited.

The petitioners, claiming to be co-owners of the land, applied for its release under Section 48 of the Act of 1894 read with Section 17 of the Act of 1973, pleading that the scheme for which the land had been acquired was never implemented, that possession was never taken, and that compensation was not paid. On a report of the District Magistrate, Kanpur Nagar dated 27.01.2005 recommending release, the land was exempted from acquisition by Notification dated 03.05.2006.

The Principal Secretary, Revenue Department recalled that Notification by order dated 16.05.2008, acting on a Government Order dated 15.09.2006 which placed the power of release under Section 48(1) with the department for which the acquisition had been made. The petitioners challenged the recall order before the High Court.

The Court summoned the record of the Second Appeal and found that the original tenure holder of the land was one Ratan, and that the petitioners' predecessors, Beliram and Ram Lal, purchased it from him by registered sale deed dated 20.08.1962, after the acquisition notifications under Sections 53 and 60 of the Act of 1945 had been issued in 1959. The suit filed by the predecessors was dismissed on 25.04.1975 on a finding that Ratan had waived his right to challenge the acquisition, and that the subsequent transfer could confer no such right on the purchasers.

The first appeal was dismissed, and the Second Appeal was got dismissed as infructuous on 28.07.2006, after the release Notification had been obtained.

The Court held that the petitioners could have no better title than their grandfather, and the only right which their predecessors acquired under the sale deed was to receive compensation for the acquired land.

On the report of the District Magistrate, the Court held that it had been obtained by concealing material facts. It noted that the report did not disclose that Ratan was the original tenure holder against whom the acquisition proceeding had been taken, or that the petitioners' predecessors had purchased the land after publication of the notification under Section 60 of the Act of 1945.

The Court further held that the report's statement that possession had not been taken was incorrect, as possession could not be taken because of the injunction orders operating in the two writ petitions of 1963 and 1965, and thereafter in the suit, the first appeal and the second appeal.

“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.”

The Court also held that the report's statement that the scheme for which the land was acquired had not been executed was against the record, the respondents having stated before the Trial Court that the scheme had been executed.

On the power of recall, the Court held,

“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.”

Further, the Court held that the principles of natural justice are not absolute and where a fair hearing would make no difference to the ultimate conclusion, no legal duty to grant one arises. Since the land could not have been released from acquisition at all, the Court held,

“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.”

The Court further held that the High Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, can refuse a writ of certiorari where quashing the order under challenge would revive an earlier illegal order. Since the Notification dated 03.05.2006 had itself been obtained by fraud, interference with the recall order would have revived it.

Holding that the petitioners had concealed material facts before the High Court as well, the Court observed,

“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.”

Accordingly, the writ petition was dismissed and a cost of Rs. 5 lakhs was imposed on the petitioners, to be deposited with respondent no.1 within two months, half of which is to be paid to the Allahabad High Court Legal Services Committee. In default of deposit, respondent no.1 is at liberty to recover the amount as arrears of land revenue.