U.P. AVAS EVAM VIKAS PARISHADversusCHANDRA SHEKHAR AND ORS.

                  [2024] 3 S.C.R. 585 : 2024 INSC 210

                    U.P. Avas Evam Vikas Parishad
                                  v.
                      Chandra Shekhar And Ors.
                       (Civil Appeal No. 3855 of 2024)
                                 05 March 2024
              [Surya Kant* and K.V. Viswanathan, JJ.]

                            Issue for Consideration
       High Court, if justified in quashing the acquisition in respect of the
       Khasra on the ground that the tenure holders were not accorded
       opportunity to submit objections against the proposed acquisition
       in accordance with s. 29 of the UP Avas Evam Vikas Parishad
       Adhiniyam, 1965.

                                   Headnotes
       UP Avas Evam Vikas Parishad Adhiniyam, 1965 – s. 29
       – Issuance of pre-acquisition notice to tenure-holders –
       Requirement of – Public notice issued by the Board regarding
       Housing Scheme, however no notice served on respondents
       who claimed to be tenure holders but served in favour of other,
       who cliams to be the tenure-holder – High Court quashed
       the acquisition in respect of Khasra on the ground that the
       respondent-tenure holders were not accorded opportunity
       to submit objections against the proposed acquisition in
       accordance with s. 29 resulting in denial of the valuable right
       of objections available to them, and non-observance thereto,
       vitiates the acquisition qua the plot – Correctness:
       Held: The 1965 Act mandates issuance of a pre-acquisition notice to
       such individuals whose land/property falls within the purview of the
       proposed Scheme – The Board, at best, could have claimed deemed
       or substantial compliance of audi alteram partem rule provided that
       Khasra of respondent was expressly notified in the public notice but
       those were conspicuously missing – No individual notices served
       on the respondents since they were not recorded as tenure-holders
       of the subject land immediately before the issuance of a notice u/s.
       29 – In the absence of any public or individual notice proposing to
       acquire Khasra the respondents were denied an effective opportunity
       to submit objections to oppose the acquisition in question – Impugned

* Author
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       judgment holding that the acquisition process qua the Khasra
       stands vitiated on account of non-compliance with the prescribed
       procedure, not interfered with – Furthermore, the tenure-holders/
       owners of Khasra was still under the acquisition process when
       2013 Act came into force, thus, entitled to be paid compensation in
       accordance with s. 24(1) of the 2013 Act – Appropriate Government
       to dispense with the procedure contemplated under Chapter II of
       the 2013 Act since the acquired land has already been utilized for
       the notified public purpose and would delay the assessment and
       payment of compensation to the true tenure holders – Prescribed
       Authority to accord an opportunity to submit objections u/s. 15 of
       the 2013 Act and, thereafter, pass an award as per s. 24(1) of the
       2013 Act – Whosoever is found entitled to the compensation after
       the decision in the title suit, the appellant-Board would release the
       compensation to them within the stipulated period – Right to Fair
       Compensation and Transparency in Land Acquisition, Rehabilitation
       and Resettlement Act, 2013 – s. 24(1). [Paras 16, 17, 19-21]

                                  List of Acts
       U.P. Avas Evam Vikas Parishad Adhiniyam, 1965; Land Acquisition
       Act, 1894; Right to Fair Compensation and Transparency in Land
       Acquisition, Rehabilitation and Resettlement Act, 2013.

                               List of Keywords
       Acquisition; Tenure holders; Opportunity to submit objections
       against the proposed acquisition; Pre-acquisition notice; Audi
       alteram partem rule; Non-compliance with the prescribed procedure;
       Compensation.

                              Case Arising From
       CIVIL APPELLATE JURISDICTION : Civil Appeal No.3855 of 2024
       From the Judgment and Order dated 07.10.2015 of the High Court
       of Judicature at Allahabad, Lucknow Bench, Lucknow in WP No.97
       of 2014
                           Appearances for Parties
       Vishwajit Singh, Sr. Adv., Abhishek Kumar Singh, Pankaj Singh, Ms.
       Vibha Bhat, Ms. Anamika Yadav, Advs. for the Appellant.
       Sanyat Lodha, Lavam Tyagi, Shaurya Sahay, Shobhit Dwivedi, Advs.
       for the Respondents.
[2024] 3 S.C.R.                                                       587

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


                Judgment / Order of the Supreme Court

                               Judgment
     Surya Kant, J.
1.   Leave granted.
2.   The appellant-U.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 respondent-tenure holders were not accorded
     opportunity to submit objections against the proposed acquisition in
     accordance with Section 29 of the U.P. Avas Evam Vikas Parishad
     Adhiniyam, 1965 (in short, `the 1965 Act’).
3.   The 1965 Act was enacted by the State legislature through Act No.1
     of 1966 and has, thereafter, been re-enacted 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.
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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
            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 No. I of 1894).”
8.     In purported exercise of its powers under Section 28 of the Act, the
       appellant-Board issued a notice on 17.07.2004 (Annexure P-1) 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.
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.
[2024] 3 S.C.R.                                                          589

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


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 subject-land 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 tenure-holders as per the
    revenue record.
13. The question whether the appellant-Board 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:
           “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.
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          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 non-observance thereto, vitiates the acquisition process qua
    plot No. 673 and the same cannot sustain.
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 pre-acquisition 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
    tenure-holders 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.
[2024] 3 S.C.R.                                                        591

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


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 tenure-holders 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 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 non-compliance 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 appellant-Board,
    so that neither the public interest to utilize the subject-land 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 ex-propriated owners, as is
    to be assessed in accordance with Section 24(1) of the 2013 Act.
19. Consequently, we hold that the tenure-holders/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 Chapter-II
    of the 2013 Act, mandates to carry out the Social Impact Assessment
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       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 tenure-holders/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.
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 third-party 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 appellant-Board
    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.


       Headnotes prepared by: Nidhi Jain                   Result of the case:
                                                           Appeal disposed of.