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1 REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONC ivil Appeal of AVAS EVAM VIKAS PARISHAD THROUGH HOUSING COMMISSIONER & ANR.. Appellant (s)VersusNOOR MOHAMMAD & ORS.. Respondent(s)WITH Civil Appeal of 2011J U D G M E N TV. Ramasubramanian, Avas Evam Vikas Parishad, which is a statutory authority ofthe State of Uttar Pradesh for housing and development, has come upwith the present appeals, challenging the orders of the High Court ofJudicature at Allahabad, setting aside a Notification cancelling a1previous Notification issued under Section 48(1) of the land AcquisitionAct, 1894 for the release of the land of the respondents herein have heard Shri Vishwajit Singh, learned counsel appearing forthe appellants and Mr.

2 Krishnam Mishra and Mr. Anand Varma, learnedcounsel appearing for the Notification dated was issued by the StateGovernment under Section 36 of the United Provinces TownImprovement Act, 1919 (hereinafter referred to as the Act ) for theacquisition of land of a total extent of acre in Village Mirzapur,Tehsil Sadar, District Gorakhpur for the public purpose of providinghousing/residential accommodation. This notification is akin to Section4(1) of the land acquisition Act, above notification was followed by another notification under Section 42 of the Act, which is equivalent toSection 6 of the land acquisition Act, 1894.

3 It appears that theemergency clause was invoked and the enquiry dispensed with, beforethe declaration was made. The possession of the entire land except one2piece bearing plot measuring an extent to acres, wastaken over by the State Government on and an award wasalso passed on the year 1983, the land owners made attempts to get thelands released from acquisition , but fortune fluctuated in a see by a Notification dated issued in exercise ofthe powers conferred by Section 49(1) of the Avas Evam VikasParishad Adhiniyam, 1965 read with Section 48(1) and 49(1) of the LandAcquisition Act, 1894, the land was exempt from acquisition . But withina couple of years, the Government issued another notification cancelling the notification dated on the groundthat the land owners had played fraud by making false representations,while seeking the release of the the said Notification dated , the originalland owners filed a writ petition in (C) of 2005 and thepurchaser of one part of the land from the original owners filed anotherwrit petition in of 2008.

4 Both these writ petitions were3allowed by Division Bench of the High Court by an Order , holding that once the acquired land is released fromacquisition, by way of Notification, the Government can reclaim the landonly by initiating a fresh process of acquisition . Aggrieved by the saidorder, the Housing and Development Authority has come up with theabove we address the rival contentions for consideration, it may benecessary to bring on record the background in which the originalNotification dated under Section 48(1) of the LandAcquisition Act was passed and the reasons for the issue of the latternotification dated cancelling the previous one.

5 Thisbackground as well as the reasons are stated very pithily in the secondNotification dated and, hence, it is reproduced as follows: land in Village Mirzapur/Betiahtata, Gorakhpur was acquiredunder the provisions of Town Improvement Act, 1919 for theBetiahata South Scheme , Gorakhpur of the Avas Evam VikasParishad and later on , it was transferred to the AvasEvam Vikas Parishad for planned development of the area. TheState Government issued Notification u/s 17 of the LandAcquisition Act, 1894 vide no. 93Ka/37 19(1)(16) 66 application dated along with a letter addressed to theChief Secretary dated nil in connection with Khasra no. 257 ( Acre), Khasra no.

6 254 (rakba Acre) , Khasra no. 255/1(rakba Acre), Khasra no. 255/2 (rakba Acre), Khasra (rakba Acre), Khasra no. 291/2 (rakba Acre),Khasra no. 292/1 (rakba Acre), Khasra no. 292/2 (rakba ) total rakba acre land , sent by applicants Smt. Shakuranw/o Late Rojan, Shri Noor Mohd., Shri Shafi Mohd., Shri RamjanMohd. all sons of sons of Late Salarbux Mohalla Tetiahata South(New Avas Vikas Colony), Post Office Sadar, Dist. Gorakhpur wasreceived by the Government on by which the applicantsbrought to the notice of the government that the aforesaid plotsbelonged to them which have been acquired by the Parishad. Thereexist 17 or 18 cemeteries of their forefathers and they earn theirlivelihood by way of vegetation/horticulture on the said land .

7 Thereare 20 members in their family and none of them have their ownhouse and that they would live there by making houses on theland. After due consideration on the applications received fromapplicants, the government issued no. 472/37 2 85 3HB(108)/83 dated thereby exempting the aforesaidkhasras from acquisition with the condition that the landownerswill not sell out the land . Following the aforesaid , the HousingCommissioner, Avas Evam Vikas Parishad wrote a letter to thegovernment requesting for cancellation of the aforesaid and accordingly, Amendment Order dated wasissued by the Government whereby cancelling the earlier in which it was specifically mentioned that thelayout map of the Yojana may be modified, while excluding theMazaars, if any exists on the disputed to the aforesaid order, the applicants filed writ petitionno.

8 19757 /1985 in the Hon'ble High Court. In compliance of theorders of the Hon'ble High Court, after giving serious thoughts tothe joint representation of the applicants, the same was rejected The applicants again filed writ petition no. 5002/1992before the Hon'ble High Court in which the Hon'ble High Courtpassed "dismissed as withdrawn" order on , the government reviewed the representations submittedby the applicants from time to time. In their representations, theapplicants had primarily stated that they were poor unemployedpersons. None of their family members was in government aforesaid land was the only source of their livelihood and they5earn their livelihood by way of vegetation/horticulture on the saidland.

9 There are 20 members in their family and none of them havetheir own house and that they would live there by making houseson the land . Cemeteries of their forefathers exist on the land and asper the general policy of the Government, such land should not beacquired. In view of the facts contained in the representation andafter due consideration, Notification Aa 2 2003 3 HB(AB)/83 dated 7 April 1983 was issued for exempting Khasra (rakba Acre), Khasra no. 254 (rakba Acre), Khasrano. 255/1 (rakba Acre), Khasra no. 255/2 (rakba acre),Khasra no. 291/1 (rakba Acre), Khasra (rakba ), Khasra no. 292/1 (rakba Acre), Khasra no. 292/2(rakba Acre) total rakba acre land from acquisition .

10 After passing of the Notification, it came to the notice of thegovernment from various sources that the aforesaid exempted landwas being used for commercial purposes and the land mafias werebuying and selling the land after raising illegal constructions on view of the complaints, inquiry was got conducted from theHousing Commissioner and the up to date status of the land wassought. The Housing Commissioner submitted his inquiry reportthereby informed as under: a) Acre {out of total Acre land of Khasra no. 254 ( acre), khasra no. 255 (rakba acre), khasra no. 257(rakba acre)} was sold out on throughAgreement Deed. b) 5220 land from Khasra no.