U.P. AVAS EVAM VIKAS PARISHAD THROUGH HOUSING COMMISSIONER & ANR.versusNOOR MOHAMMAD & ORS.

1060                       [2021]
                SUPREME COURT     9 S.C.R. 1060
                               REPORTS                       [2021] 9 S.C.R.


 A             U.P. AVAS EVAM VIKAS PARISHAD THROUGH
                     HOUSING COMMISSIONER & ANR.
                                  v.
                         NOOR MOHAMMAD & ORS.
 B                        (Civil Appeal No. 8083 of 2011)
                              DECEMBER 16, 2021
         [HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
              Land Acquisition Act, 1894 – ss.48(1), 4, 6 – United Provinces
 C     Town Improvement Act, 1919 – ss.36, 42 – Notification issued u/
       s.48(1), 1894 Act for release of the land of the respondents-land
       owners from acquisition – However, by another notification the
       aforesaid notification was cancelled – Latter notification challenged
       by land owners, set aside by High Court – On appeal, held: First
       Notification was secured by the respondents by false representations
 D     and by playing fraud – When the respondents wanted to ward off
       the acquisition, they claimed that there were cemeteries of their
       forefathers – However, after the first notification was issued they
       started selling the land to third parties, who do not share the same
       religious sentiments with the respondents – An order secured by
 E     fraud and misrepresentation will not confer any vested right – Thus,
       the land owners cannot pitch their claim either on the basis of vesting
       or on the basis of Art.300A – They cannot be allowed to contend
       that the land can be acquired only through a fresh process of
       acquisition – Impugned orders of the High Court set aside – Writ
       petitions filed by the respondents dismissed – Constitution of India
 F     – Art.300A.
             Land Acquisition Act, 1894 – s.48(1) – Notification under, if
       a quasi-judicial order – Held: No – Thus, the argument that the
       Government cannot fall back upon s.21, General Clauses Act to
       rescind an order u/s.48(1) is rejected – General Clauses Act – s.21
 G
              Land Acquisition Act, 1894 – ss.4(1), 48(1) – Notification u/
       s.4(1) vis-à-vis u/s.48(1) – Discussed.
             Allowing the appeals, the Court
            HELD: 1.1 The power to issue Notification would include
 H     a power to rescind the Notification. This position was not
                                 1060
       U.P. AVAS EVAM VIKAS PARISHAD THROUGH HOUSING                    1061
               COMMISSIONER v. NOOR MOHAMMAD


contested by the respondents, when their attempts to have the           A
land released from acquisition, proved unsuccessful on earlier
occasions. As a matter of fact, on the application presented by
the respondents on 28.02.1983, the Government issued a letter
dated 30.01.1985 requesting the appellant-Parishad to initiate
necessary action for exemption of the land, subject to the condition
                                                                        B
that the land owners will not sell the land. This condition was
stipulated in view of the fact that the request of the respondent
was based on religious sentiments due to the alleged existence
of cemeteries of about 20 of their forefathers on the acquired
land. But the proposal mooted by the State Government on
30.01.1985 was opposed by the Parishad on the ground that there         C
was no mention about any cemeteries, when the land owners filed
objections to the acquisition. In the light of such objections, the
Government issued proceedings dated 27.06.1985 withdrawing
the earlier proposal dated 30.01.1985. In a fresh representation
made on 29.05.1999 it was reiterated that there are cemeteries
                                                                        D
and Mazaars of the forefathers of the land owners and that regular
religious programmes were being conducted in the acquired land.
It is on the basis of the said representation that the Notification
dated 7.04.2003 was issued under Section 48(1). [Paras 11,
14][1068-E-G; 1069-C-D]
       1.2 The land owners were actually playing hide and seek          E
by pleading religious sentiments, leading to the issue of the
Notification dated 7.04.2003 under Section 48(1). The Notification
under Section 48(1) was invited by the land owners by making
false representations. The land owners have actually played fraud
upon the Government and secured the Notification dated                  F
7.04.2003. Hence, they cannot be allowed to contend that the
land can be acquired only through a fresh process of acquisition.
The first Notification was secured by the respondents by false
representations and by playing fraud. When the respondents
wanted to ward off the acquisition, they claimed that there were
cemeteries of their forefathers, but after the first notification was   G
issued, they started selling the land to third parties, who cannot
and do not share the same religious sentiments with the
respondents. The second Notification dated 15.09.2005 which
contains the list of sales made by the land owners. The enquiry
conducted by the Housing Commissioner has revealed that the             H
1062            SUPREME COURT REPORTS                      [2021] 9 S.C.R.


 A     land mafia has taken over the land. An order secured by fraud
       and misrepresentation will not confer any vested right and that,
       therefore, the land owners cannot pitch their claim either on
       the basis of vesting or on the basis of Article 300A. [Paras 15,
       24][1069-D-F; 1072-C-E]
 B           2. A proceeding under Section 48(1) of the Land Acquisition
       Act is administrative in nature as can be seen from the language
       employed. What is provided in Section 48(1) is the power/liberty
       to withdraw from acquisition. It is an administrative act. While a
       Notification for acquisition issued under Section 4(1) of the Land
       Acquisition Act seeks to take away an individual’s right to
 C     property, a Notification under Section 48(1) is actually the reverse
       or opposite. It confers benefit upon an individual and hence it is
       not supposed to be preceded by any enquiry. The essence of an
       order which is quasi-judicial in nature is that it is preceded by an
       opportunity of hearing to the party affected thereby. A notification
 D     under Section 48(1) does not warrant any notice or opportunity
       of hearing, to the original land owners. If at all any person will be
       aggrieved by the Notification under Section 48(1), it will be the
       beneficiary of the acquisition, which in this case is the Parishad,
       and not the land owners. Therefore, it can be understood if the
       Parishad makes out a grievance that their rights were taken away
 E     by the notification under Section 48(1) especially after the land
       vested in them. Therefore, the argument that a Notification under
       Section 48(1) is a quasi-judicial order is rejected. As a
       consequence, the argument that the Government cannot fall back
       upon Section 21 of the General Clauses Act to rescind an order
 F     under Section 48(1) is rejected. [Paras 20, 22][1070-F; 1071-C,
       F-H; 1072-A-B]
             Industrial Infrastructure Development Corporation
             (Gwalior) M.P. Ltd. vs. CIT (2018) 4 SCC 494 :
             [2018] 10 SCR 481; H.C. Suman vs. Rehabilitation
             Ministry Employees CoOperative House Building Society
 G
             Ltd. New Delhi and Ors. (1991) 4 SCC 485: [1991] 3 SCR
             839 – held inapplicable.
             3. The impugned orders of the High Court are set aside
       and the writ petitions filed by the respondents are dismissed.
       Since the acquisition has been complete in all respects the
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        U.P. AVAS EVAM VIKAS PARISHAD THROUGH HOUSING                          1063
                COMMISSIONER v. NOOR MOHAMMAD


appellant may proceed to implement the public purpose for which                A
the land was acquired. [Para 27][1073-B-C]
       Mutha Associates and Ors. vs. State of Maharashtra
       and Ors. (2013) 14 SCC 304: [2013] 10 SCR 1051 –
       referred to.
                          Case Law Reference                                   B
[2018] 10 SCR 481                    held inapplicable        Para 17
[1991] 3 SCR 839                     held inapplicable        Para 18
[2013] 10 SCR 1051                   referred to              Para 25
       CIVIL APPELLATE JURISDICTION : Civil Appeal No.8083
of 2011.                                                                       C
       From the Judgment and Order dated 31.08.2010 of the High Court
of Judicature at Allahabad in Writ Petition No.64727 of 2005.
       With
       Civil Appeal No.8072 of 2011.
                                                                               D
       Vishwajit Singh, Pankaj Singh, Ms. Veena Kaul Singh, Advs. for
the Appellants.
       Krishnam Mishra, Param Kumar Mishra, Ms. Sharmila Upadhyay,
Anand Varma, Ms. Chitranka Naik, Ms. Apoorva Pandey, Advs. for the
Respondents.
                                                                               E
       The Judgment of the Court was delivered by
       V. RAMASUBRAMANIAN, J.
       1. U.P. Avas Evam Vikas Parishad, which is a statutory authority
of the State of Uttar Pradesh for housing and development, has come up
with the present appeals, challenging the orders of the High Court of
                                                                               F
Judicature at Allahabad, setting aside a Notification cancelling a previous
Notification issued under Section 48(1) of the Land Acquisition Act,
1894 for the release of the land of the respondents herein from acquisition.
       2. We have heard Shri Vishwajit Singh, learned counsel appearing
for the appellants and Mr. Krishnam Mishra and Mr. Anand Varma,
learned counsel appearing for the respondents.                                 G
      3. A Notification dated 25.07.1964 was issued by the State
Government under Section 36 of the United Provinces Town
Improvement Act, 1919 (hereinafter referred to as “the U.P. Act”) for
the acquisition of land of a total extent of acre 1.85 in Village Mirzapur,
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1064             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


 A     Tehsil-Sadar, District Gorakhpur for the public purpose of providing
       housing/residential accommodation. This notification is akin to Section
       4(1) of the Land Acquisition Act, 1894.
              4. The above notification was followed by another notification
       dated 17.06.1967 under Section 42 of the U.P. Act, which is equivalent
 B     to Section 6 of the Land Acquisition Act, 1894. It appears that the
       emergency clause was invoked and the enquiry dispensed with, before
       the declaration was made. The possession of the entire land except one
       piece bearing plot No.292/2 measuring an extent to 0.028 acres, was
       taken over by the State Government on 24.07.1970 and an award was
       also passed on 30.03.1971.
 C
              5. From the year 1983, the land owners made attempts to get the
       lands released from acquisition, but fortune fluctuated in a see-saw battle.
              6. Eventually by a Notification dated 7.04.2003 issued in exercise
       of the powers conferred by Section 49(1) of the U.P. Avas Evam Vikas
 D     Parishad Adhiniyam, 1965 read with Section 48(1) and 49(1) of the Land
       Acquisition Act, 1894, the land was exempt from acquisition. But within
       a couple of years, the Government issued another notification dated
       15.09.2005 cancelling the notification dated 07.04.2003 on the ground
       that the land owners had played fraud by making false representations,
       while seeking the release of the land.
 E
              7. Challenging the said Notification dated 15.09.2005, the original
       land owners filed a writ petition in W.P (C) No.64727 of 2005 and the
       purchaser of one part of the land from the original owners filed another
       writ petition in W.P No.50151 of 2008. Both these writ petitions were
       allowed by Division Bench of the High Court by an Order dated
 F     31.08.2010, holding that once the acquired land is released from
       acquisition, by way of Notification, the Government can reclaim the land
       only by initiating a fresh process of acquisition. Aggrieved by the said
       order, the Housing and Development Authority has come up with the
       above appeals.
 G            8. Before we address the rival contentions for consideration, it
       may be necessary to bring on record the background in which the original
       Notification dated 07.04.2003 under Section 48(1) of the Land Acquisition
       Act was passed and the reasons for the issue of the latter notification
       dated 15.09.2005 cancelling the previous one. This background as well
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    U.P. AVAS EVAM VIKAS PARISHAD THROUGH HOUSING                         1065
COMMISSIONER v. NOOR MOHAMMAD [V. RAMASUBRAMANIAN, J.]


as the reasons are stated very pithily in the second Notification dated   A
15.09.2005 and, hence, it is reproduced as follows:
      “Land in Village Mirzapur/Betiahtata, Gorakhpur was
      acquired under the provisions of U.P. Town Improvement Act,
      1919 for the Betiahata South Scheme , Gorakhpur of the U.P.
      Avas Evam Vikas Parishad and later on 8.6.1965, it was              B
      transferred to the U.P. Avas Evam Vikas Parishad for planned
      development of the area. The State Government issued
      Notification u/s 17 of the Land Acquisition Act, 1894 vide no.
      93Ka/37-19(1)(16)-66 dated 13.1.1970.
      An application dated 28.2.83 along with a letter addressed          C
      to the Chief Secretary dated nil in connection with Khasra
      no. 257 (rakba 0.51 Acre), Khasra no. 254 (rakba 0.30 Acre)
      , Khasra no. 255/1 (rakba 0.18 Acre), Khasra no. 255/2
      (rakba 0.18 Acre), Khasra no. 291/1 (rakba 0.31 Acre),
      Khasra no. 291/2 (rakba 0.31 Acre), Khasra no. 292/1 (rakba
      0.03 Acre), Khasra no. 292/2 (rakba 0.03 Acre) total rakba          D
      1.85 acre land, sent by applicants Smt. Shakuran w/o Late
      Rojan, Shri Noor Mohd., Shri Shafi Mohd., Shri Ramjan
      Mohd. all sons of sons of Late Salarbux Mohalla Tetiahata
      South (New Avas Vikas Colony), Post Office Sadar, Dist.
      Gorakhpur was received by the Government on 23.1.84 by              E
      which the applicants brought to the notice of the government
      that the aforesaid plots belonged to them which have been
      acquired by the Parishad. There exist 17 or 18 cemeteries of
      their forefathers and they earn their livelihood by way of
      vegetation/horticulture on the said land. There are 20 members
      in their family and none of them have their own house and           F
      that they would live there by making houses on the land. After
      due consideration on the applications received from
      applicants, the government issued G.O. no. 472/37-2-85-3
      HB(108)/83 dated 30.01.85 thereby exempting the aforesaid
      khasras from acquisition with the condition that the                G
      landowners will not sell out the land. Following the aforesaid
      G.O., the Housing Commissioner, U.P. Avas Evam Vikas
      Parishad wrote a letter to the government requesting for
      cancellation of the aforesaid G.O. dated 30.01.85 and
      accordingly, Amendment Order dated 27.6.85 was issued by
                                                                          H
1066     SUPREME COURT REPORTS                       [2021] 9 S.C.R.


 A     the Government whereby cancelling the earlier G.O. dated
       30.1.85 in which it was specifically mentioned that the layout
       map of the Yojana may be modified, while excluding the
       Mazaars, if any exists on the disputed land.
       Subsequent to the aforesaid order, the applicants filed writ
 B     petition no. 19757 /1985 in the Hon’ble High Court. In
       compliance of the orders of the Hon’ble High Court, after
       giving serious thoughts to the joint representation of the
       applicants, the same was rejected on 21.12.91. The applicants
       again filed writ petition no. 5002/1992 before the Hon’ble
       High Court in which the Hon’ble High Court passed
 C     “dismissed as withdrawn” order on 19.5.99.
       Thereafter, the government reviewed the representations
       submitted by the applicants from time to time. In their
       representations, the applicants had primarily stated that they
       were poor unemployed persons. None of their family members
 D     was in government service. The aforesaid land was the only
       source of their livelihood and they earn their livelihood by
       way of vegetation/horticulture on the said land. There are 20
       members in their family and none of them have their own
       house and that they would live there by making houses on the
 E     land. Cemeteries of their forefathers exist on the land and as
       per the general policy of the Government, such land should
       not be acquired. In view of the facts contained in the
       representation and after due consideration, Notification
       no.1049/9-Aa-2-2003-3 HB (AB)/83 dated 7 April 1983 was
       issued for exempting Khasra no. 257 (rakba 0.51 Acre),
 F     Khasra no. 254 (rakba 0.30 Acre), Khasra no. 255/1 (rakba
       0.18 Acre), Khasra no. 255/2 (rakba 0.18 acre), Khasra no.
       291/1 (rakba 0.31 Acre), Khasra no.291/2 (rakba 0.31 Acre),
       Khasra no. 292/1 (rakba 0.03 Acre), Khasra no. 292/2 (rakba
       0.03 Acre) total rakba 1.85 acre land from acquisition.
 G     After passing of the Notification, it came to the notice of the
       government from various sources that the aforesaid exempted
       land was being used for commercial purposes and the
       land-mafias were buying and selling the land after raising
       illegal constructions on it. In view of the complaints, inquiry
 H     was got conducted from the Housing Commissioner and the
    U.P. AVAS EVAM VIKAS PARISHAD THROUGH HOUSING                            1067
COMMISSIONER v. NOOR MOHAMMAD [V. RAMASUBRAMANIAN, J.]


      up-to-date status of the land was sought. The Housing                  A
      Commissioner submitted his inquiry report thereby informed
      as under:-
      a)1.00 Acre {out of total 1.17 Acre land of Khasra no. 254
      (rakba 0.30 acre), khasra no. 255 (rakba 0.36 acre), khasra
      no. 257 (rakba 0.51 acre)} was sold out on 23.4.2003 through           B
      Agreement Deed.
      b) 5220 sq.ft. land from Khasra no. 255 was sold through
      registry on 29.4.2004 to Shri Shravan s/o Jaket, Dist. Deoria.
      c) 2370 sq.ft. land from Khasra no. 254 was sold through
      registry on 16.9.2004 to Shri Bajrang Prasad Gupta s/o Shri            C
      Mahavir Prasad.
      d) 9000 sq.ft. land from Khasra no. 254 and 255 was sold through
      registry on 21.9.2004 to Smt. Lalita Chhabaria v1/o Shri Hari
      Prasad Chhabaria.
                                                                             D
      e) Entire rakba 0.51 of Khasra no. 257 was sold through
      registry n 16.9.2004 to Smt. Vartika Singh w/o Shri Krishna
      Singh and Shri Brijesh Kumar Singh s/o Shri Shiv Poojan
      Singh.
      From the above, it is evident that the facts placed by the
                                                                             E
      applicants before the Government, on the basis of which their
      land was released from acquisition vide Notification dated
      7.4.2003, were misleading and false. The applicants are in
      the process of selling the land after dividing it in small plots
      and they neither using the land for earning their livelihood
      by way of doing vegetation nor for any other purpose.                  F
      Therefore, after due consideration, the Governor of Uttar
      Pradesh has been pleased to approve cancellation of the
      aforesaid Notification no. 1049/9-Aa-2- 2003-3 HB (AB)/83
      dated 7 April, 1983 issued in respect of releasing the aforesaid
      land from acquisition.”
                                                                             G
       9. The main ground on which the High Court set aside the second
Notification dated 15.09.2005 was that once a Notification is issued under
Section 48(1) of the Land Acquisition Act, 1894, the land gets released
from acquisition and that, therefore, the only way the State Government
could retrieve the land is to initiate the process of acquisition afresh.
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1068             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


 A     This reasoning is based upon two premises, 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); and (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
 B
       cannot take place without following the process of acquisition as
       enunciated in the Statute.
             10. But insofar as the first contention is concerned, Section 21 of
       the General Clauses Act, 1897 is a complete answer. It reads as follows:-
 C           “21. Power to issue, to include power to add to, amend, vary
             or rescind notifications, orders, rules or bye-laws.- Where, by
             any Central Act or Regulations a power to issue notifications,
             orders, rules or bye-laws is conferred, then that power includes
             a power, exercisable in the like manner and subject to the
             like sanction and conditions (if any), to add to, amend, vary
 D           or rescind any notifications, orders, rules or bye- laws so
             issued.”
               11. Therefore, the power to issue Notification would include a
       power to rescind the Notification. This position was not contested by the
       respondents, when their attempts to have the land released from
 E     acquisition, proved unsuccessful on earlier occasions. As a matter of
       fact, on the application presented by the respondents on 28.02.1983, the
       Government issued a letter dated 30.01.1985 requesting the Parishad to
       initiate necessary action for exemption of the land, subject to the condition
       that the land owners will not sell the land. This condition was stipulated
 F     in view of the fact that the request of the respondent was based on
       religious sentiments due to the alleged existence of cemeteries of about
       20 of their forefathers on the acquired land. But the proposal mooted by
       the State Government on 30.01.1985 was opposed by the Parishad on
       the ground that there was no mention about any cemeteries, when the
       land owners filed objections to the acquisition. In the light of such
 G     objections, the Government issued proceedings dated 27.06.1985
       withdrawing the earlier proposal dated 30.01.1985.
             12. Therefore, the land owners filed a writ petition in Civil
       Miscellaneous writ Petition No.19757 of 1985, seeking a direction to the
       Government and to the Parishad not to dispossess them. This Writ Petition
 H
    U.P. AVAS EVAM VIKAS PARISHAD THROUGH HOUSING                              1069
COMMISSIONER v. NOOR MOHAMMAD [V. RAMASUBRAMANIAN, J.]


was disposed of by an Order dated 30.09.1988, permitting the land owners       A
to file a representation to the Government within one month and directing
the State Government to consider the said representation.
      13. Pursuant to the said order, the land owners made a
representation dated 10.10.1988. But the same was rejected by the State
Government by an Order dated 21.12.1991, pointing out that the land            B
already stood vested in the Parishad and that Parishad has already become
the owner.
       14. Challenging the Order of rejection dated 21.12.1991, the land
owners filed a fresh writ petition in W.P. (C) No.5002 of 1992. But the
said writ petition was dismissed as withdrawn, on 9.04.1999. Thereafter,       C
a fresh representation was made on 29.05.1999. It was reiterated in the
said representation that there are cemeteries and Mazaars of the
forefathers of the land owners and that regular religious programmes
were being conducted in the acquired land. It is on the basis of the said
representation that the Notification dated 7.04.2003 was issued under
Section 48(1).                                                                 D

       15. Therefore, it is clear that the land owners were actually playing
hide and seek by pleading religious sentiments, leading to the issue of the
Notification dated 7.04.2003 under Section 48(1). In other words the
Notification under Section 48(1) was invited by the land owners by making
false representations. The land owners have actually played fraud upon         E
the Government and secured the Notification dated 7.04.2003. Hence,
they cannot be allowed to contend that the land can be acquired only
through a fresh process of acquisition.
       16. The learned counsel for the respondents-land owners
contended that Section 21 of the General Clauses Act, does not confer          F
an overarching power on the Government to rescind a notification
conferring vested rights in immoveable property, especially when such a
power is not contemplated by the Land Acquisition Act, 1894. The right
to property, though not a fundamental right, is held to be a Constitutional
right and a human right and that, therefore, according to the counsel for      G
the respondents, the same cannot be taken away by taking recourse to
Section 21 of the General Clauses Act.
      17. In support of the aforesaid contention, Mr. Anand Varma
learned counsel for the respondents relies upon the decision of this Court
                                                                               H
1070                SUPREME COURT REPORTS                       [2021] 9 S.C.R.


 A     in Industrial Infrastructure Development Corporation (Gwalior) M.P.
       Ltd. vs. CIT1, wherein it was held as follows:
              “21. The general power, under Section 21 of the General
              Clauses Act, to rescind a notification or order has to be
              understood in the light of the subject-matter, context and the
 B            effect of the relevant provisions of the statute under which
              the notification or order is issued and the power is not
              available after an enforceable right has accrued under the
              notification or order. Moreover, Section 21 has no application
              to vary or amend or review a quasi-judicial order…”
              18. The learned counsel for the respondents also relied upon the
 C     decision in H.C. Suman vs. Rehabilitation Ministry Employees Co-
       Operative House Building Society Ltd. New Delhi and Ors. 2, wherein
       it was held that a substantial right created in favour of a party, which is
       enforceable in law cannot be taken away by a subsequent order under
       general power of rescindment available under the General Clauses Act.
 D            19. But the decision in Industrial Infrastructure Development
       Corporation (supra) arose out of an order passed under Section 12-A
       of the Income Tax Act, 1961, which was admittedly a quasi judicial
       order. In paragraphs 19 and 20 of the said decision, this Court pointed
       out that “the functions exercisable by CIT under section 12-A are
 E     neither legislative nor executive but essentially quasi-judicial in
       nature” and that “an order under section 12-A of the Income Tax
       Act does not fall in the category of orders mentioned in Section 21,
       which would be in the nature of Notification/Rules/bye-laws”.
              20. But a proceeding under section 48(1) of the Land Acquisition
       Act is administrative in nature as can be seen from the language
 F     employed. Section 48 of the Act reads as follows:
              48. Completion of acquisition not compulsory, but
              compensation to be awarded when not completed. –
              (1) Except in the case provided for in section 36, the
              Government shall be at liberty to withdraw from the
 G            acquisition of any land of which possession has not been
              taken.

       1
           (2018) 4 SCC 494
       2
           (1991) 4 SCC 485

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    U.P. AVAS EVAM VIKAS PARISHAD THROUGH HOUSING                               1071
COMMISSIONER v. NOOR MOHAMMAD [V. RAMASUBRAMANIAN, J.]


      (2) Whenever the Government withdraws from any such                       A
      acquisition, the Collector shall determine the amount of
      compensation due for the damage suffered by the owner in
      consequence of the notice or of any proceedings there under,
      and shall pay such amount to the person interested, together
      with all costs reasonably incurred by him in the prosecution
                                                                                B
      of the proceedings under this Act relating to the said land.
      (3) The provision of Part III of this Act shall apply, so far as
      may be, to the determination of the compensation payable
      under this section.”
      What is provided in Section 48(1) is the power/liberty to withdraw        C
from acquisition. It is an administrative act. Therefore, the reliance on
the decision in Industrial Infrastructure Development Corporation
(supra) is misplaced.
       21. For the very same reason, the decision in H.C. Suman, is
also of no assistance to the respondents in as much as the first notification   D
of the Lt. Governor, which was sought to be withdrawn by the subsequent
notification, was issued pursuant to a quasi-judicial order passed by the
Lt. Governor on a statutory appeal. The quasi judicial order created a
vested right which was given effect through a notification. Therefore,
this Court held in para 35 of the decision in H.C.Suman that the vested
right created by a quasi-judicial order cannot be taken away by taking          E
recourse to the general power of rescindment available under the General
Clauses Act. Hence the reasoning contained in the said decision cannot
be applied to the case on hand.
       22. While a Notification for acquisition issued under Section 4(1)
of the Land Acquisition Act seeks to take away an individual’s right to         F
property, a Notification under Section 48(1) is actually the reverse or
opposite. It confers benefit upon an individual and hence it is not supposed
to be preceded by any enquiry. The essence of an order which is
quasi-judicial in nature is that it is preceded by an opportunity of hearing
to the party affected thereby. A notification under Section 48(1) does          G
not warrant any notice or opportunity of hearing, to the original land
owners. If at all any person will be aggrieved by the Notification under
Section 48(1), it will be the beneficiary of the acquisition, which in this
case is the Parishad, and not the land owners. Therefore, we can
understand if the Parishad makes out a grievance that their rights were
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1072               SUPREME COURT REPORTS                          [2021] 9 S.C.R.


 A     taken away by the notification under Section 48(1) especially after the
       land vested in them.
             23. Therefore, we reject the argument that a Notification under
       Section 48(1) is a quasi-judicial order. As a consequence, we reject the
       argument that the Government cannot fall back upon Section 21 of the
 B     General Clauses Act to rescind an order under Section 48(1).
               24. Coming to the second limb of the argument that the Notification
       under Section 48(1) has created a vested right and that the same cannot
       be taken away unilaterally by a subsequent Notification for cancellation,
       we have to state that the first Notification was secured by the respondents
 C     by false representations and by playing fraud. When the respondents
       wanted to ward off the acquisition, they claimed that there were
       cemeteries of their forefathers, but after the first notification was issued,
       they started selling the land to third parties, who cannot and do not share
       the same religious sentiments with the respondents. We have already
       extracted the second Notification dated 15.09.2005 which contains the
 D     list of sales made by the land owners. The enquiry conducted by the
       Housing Commissioner has revealed that the land mafia has taken over
       the land. It is trite to point out that an order secured by fraud and
       misrepresentation will not confer any vested right and that, therefore,
       the land owners cannot pitch their claim either on the basis of vesting or
 E     on the basis of Article 300A.
              25. Interestingly, Sh. Anand Varma, learned counsel for the
       respondents relied upon the decision of this Court in Mutha Associates
       and Ors. vs. State of Maharashtra and Ors.3, in support of his contention
       that even if the impugned notification is taken to be administrative in
 F     nature, the same should be preceded by an opportunity of hearing to the
       land owners. But the decision in Mutha Associates (supra) is actually a
       double-edged weapon insofar as the respondents are concerned. In that
       case, this Court held that even for the exercise of the power of withdrawal
       under Section 48(1) of the Land Acquisition Act, an opportunity had to
       be given necessarily to the beneficiary. In fact two principles could be
 G     culled out from Mutha Associates. They are: (i) that the publication of
       the Notification under Section 48, is necessary just as the publication of
       notifications under Sections 4 and 6 are mandatory; and (ii) that the
       beneficiary should be heard before the withdrawal of land from
       acquisition.
       3
 H         (2013) 14 SCC 304
    U.P. AVAS EVAM VIKAS PARISHAD THROUGH HOUSING                               1073
COMMISSIONER v. NOOR MOHAMMAD [V. RAMASUBRAMANIAN, J.]


       26. In this case, the Notification dated 7.04.2003 does not appear       A
to have been preceded by an opportunity of hearing to the beneficiary,
namely, U.P. Avas Evam Vikas Parishad. Therefore, the withdrawal of
such an illegal notification, which was secured by fraud, cannot be found
fault with.
       27. Therefore, in fine, all the contentions of the respondents- land     B
owners are liable to be rejected and the appeals liable to be allowed.
Accordingly both the appeals are allowed, the impugned orders of the
High Court are set aside and the writ petitions filed by the respondents
are dismissed. Since the acquisition has been complete in all respects
the appellant-Parishad may proceed to implement the public purpose for
which the land was acquired. There will be no order as to costs.                C


Divya Pandey                                                 Appeals allowed.



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