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PETITIONER: NARENDRA BAHADUR SINGH AND ANR.

       Vs.

RESPONDENT: STATE OF U.P. AND ORS.

DATE OF JUDGMENT26/11/1976

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ KRISHNAIYER, V.R.

CITATION:  1977 AIR  660            1977 SCR  (2) 226  1977 SCC  (1) 216  CITATOR INFO :  F          1985 SC1622  (13,15)

ACT:             U.P.  Land Acquisition (Rehabilitation of Refugees)  Act         1948 Sec. 2(7), 6, 7(1)--Notification for acquiring land for         a  society of refugees from Pakistan  --Whether  acquisition         notification can be struck down on hypertechnical grounds or         whether substantial compliance sufficient--In the absence of         averments  in a writ petition on a question of fact  whether         petitioner can be allowed to raise a ground based on assump-         tion of such facts.

HEADNOTE:             U.P. Government issued a notification under Section 7(1)         of  the U.P. Land Acquisition (Rehabilitation  of  Refugees)         Act,  1948 for acquiring the land belonging to the appellant         for  the purpose of Sufferers Cooperative  Housing  Society.         The  Society entered into an agreement with  the  Government         under  section 6 of the Act.  The Land  Acquisition  Officer         determined the amount of compensation for the acquired land.         The appellants challenged the validity of the said notifica-         tion on the following grounds:                          1. The notification did not properly speci-                       fy  the  land sought  to  be acquired.                          2. The notification was ultra vires the Act                       because  it  sought to acquire  land  for  the                       rehabilitation  of displaced persons  and  not                       for the rehabilitation of refugees.                         3.  The notification was not  in  accordance                       with  the  provisions of section 7(1)  of  the                       Act.             The  single Judge of the High Court did not go into  the         first  ground but accepted the second and third grounds  and         quashed  the  notification.  He held that according  to  the         definition of refugees in section 2(7) a refugee is a person         who has migrated from Pakistan to any place in the U.P.  and         has  been  since then residing in U.P. and  that  there  was         nothing  to  show  that the displaced persons  who  are  the         members of the Society had settled in U.P.  While  accepting         the  third ground the learned Judge held that  section  7(1)         requires  to indicate in the notification that it had decid-         ed  to acquire the land.  However, the notification did  not

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       mention the expression "decided".             On  an  appeal, the Division Bench  disagreed  with  the         conclusions of the Single Judge and allowed the appeal.  The         Division Bench held that the notification was  substantially         in accordance with the sect.ion 7( 1 ) and that the  members         of  the Society consisted of refugees.  The  Division  Bench         also held that the notification was not vague and it proper-         ly specified the land sought to be acquired.         In an appeal by Special Leave the appellants repeated the  3         grounds.         Dismissing the appeal                       HELD:  1. The ground about the members of  the                       Society not being refugees has not been  taken                       in  the Writ  Petition at all.   The  question                       whether those members have settled in U.P.  is                       essentially  one of fact.  In the  absence  of                       any   averment  in  the   writ   petition  the                       material  facts  having bearing on  the  point                       could  not  be  brought on  record.   A  party                       seeking to challenge the validity of a notifi-                       cation on a ground involving questions of fact                       should make necessary averments of fact before                       it can assail the notification on that ground.                       [229 F-H]                       227                          2.  The recital in the earlier part of  the                       notification as well as the operative part  of                       the notification that the land shall be deemed                       to  have been acquired permanently  and  shall                       vest  in  the State   Government  lends  clear                       support  to  the  conclusion  that  the  State                       Government decided to acquire the land and the                       order of acquisition was merely an implementa-                       tion of that decision.  The fact that the word                       decided has not been used in the  notification                       would not prove fatal when the entire tenor of                       the  notification reveals the decision of  the                       State Govt. to acquire land.  The court  would                       not strike down a notification for acquisition                       on  hypertechnicality; what is needed is  sub-                       stantial compliance with law and  the impugned                       notification  clearly satisfies that  require-                       ment.  [230 D-F]                          3. The contention that the notification  in                       question  is vague is not substantiated.   The                       notification makes an express reference to the                       site plan. [230 G-231 A]

JUDGMENT:         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 297 of 1976.             Appeal  by  Special Leave from the  Judgment  and  Order         dated  the 16-10-74 of the Allahabad High Court  in  Special         Appeal No. 169/72.             S.T. Desai, M.K. Garg, K.B. Rohtagi, V.K. Jain and  M.M.         Kashyap, for the Appellant.         O.P. Rana for Respondents 1-4.             V.M. Tarkunde, Pramod Swarup and R.S. Verma for Respond-         ent No. 5.         The Judgment of the Court was delivered by             KHANNA, J.-- This appeal by special leave is against the         judgment  of a Division Bench of the Allahabad  High  Court,         reversing  on appeal the decision of learned  single  Judge,         whereby  notification  dated April 23, 1966  issued  by  the

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       State Government under section 7(1) of the U.P. Land  Acqui-         sition  (Rehabilitation of Refugees) Act, 1948  (hereinafter         referred  to as the Act) had been quashed.  As a  result  of         the decision of the Division Bench, the writ petition  filed         by   the  appellants to quash that notification  stood  dis-         missed.             The  Sufferers’ Co-operative Housing  Society,  Jaunpur,         respondent, applied to the Uttar Pradesh Government in  1955         for acquiring four acres of land for the purpose of erecting         houses,  shops and workshops for the rehabilitation  of  the         refugees-who were members of that society.  At the  instance         of  the  State Government, the society deposited  a  sum  of         Rs.15,000  towards the cost of the land to be  acquired.  In         1964,  the society entered into an agreement with the  State         Government under section 6 of the Act.  The State Government         thereafter published on April 23, 1966, the impugned notifi-         cation and the same reads as under:                             "Under sub-section (1 ) of section 7  of                       the U.P.  Land Acquisition (Rehabilitation  of                       Refugees)  Act No. XXVI of 1948, the  Governor                       of Uttar Pradesh is pleased to declare that he                       is  satisfied that the land mentioned  in  the                       Schedule  is  needed and is suitable  for  the                       erection of houses, shops and                       228                       workshops for the rehabilitation of  displaced                       persons and/ or for the provision of amenities                       directly connected therewith.         All  the  persons interested in the land  in  question  are,         therefore,  required to appear personally or by duly  autho-         rised agent before the Compensation Officer of the Distt. at         Jaunpur on the twenty seventh day of April 1966, with neces-         sary documentary or other evidence for the determination  of         the amount of compensation under section 11 of the Act.             The Collector of Jaunpur is directed to take  possession         of   the aforesaid land fourteen days after the  publication         of this notice in the official gazette.             Upon the publication of this notice, the aforesaid  land         shall be deemed to have been acquired permanently and  shall         vest absolutely in the State Government free from all encum-         brances  from. the beginning of the day on which the  notice         is so published.         SCHEDULE          Distt.Pargana    Mauza        Municipality    PlotNo.  Area                                        Cantonment,                                        Town area or                                        Notified area    154          Mohalla Diwan Shah Kabir alias                 152/1   1,00                          Tartala          Pargana Haveli, Tahsil                         152/2         Jaunpur Municipal Area                          149         Jaunpur                                         153                                      2 shops No. 6 and 7             For  what  purpose required: for the  rehabilitation  of         displaced persons.         Note: A copy of the site plan may be inspected at the office         of the Collector, Jaunpur."         Subsequent to that notification, the Land Acquisition  Offi-         cer  determined the amount of compensation for the land  and         shops   to   be acquired at a little over rupees  forty  one         thousand.  The balance of the amount to be paid as compensa-         tion was thereafter deposited by the society.             On  April  10, 1970 the appellants, claiming to  be  the         owners  of a part of the land sought to be  acquired,  fried         petition  under article 226 of the Constitution of India  in

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       the  Allahabad  High Court with  a prayer for  quashing  the         impugned notification.  The notification was assailed on the         following three grounds:                           (1)  The  notification  did  not  properly                       specify the lands sought to be acquired;                           (2)  The notification was ultra vires  the                       Act inasmuch as it sought to acquire lands for                       the  rehabilitation  of the displaced  persons                       and  not for the rehabilitation  of  refugees;                       and                           (3) The notification was not in accordance                       with  the  provisions of section 7(1)  of  the                       Act.         229             The learned single Judge, while allowing the writ  peti-         tion,  did  not  go into the first  ground.    He,  however,         accepted  the  second  and third grounds and in  the  result         quashed  the  notification.   On   the  second  ground,  the         learned Judge referred to the definition in section 2(7)  of         the Act, according to which refugee means any person who was         a resident in any place forming part of Pakistan and who, on         account  of partition of civil disturbances or the  fear  of         such  disturbance,  has on or after the first day  of  March         1947  migrated to any place in the U.P. and has  been  since         residing  there.  It was observed that there was nothing  to         show  that the displaced persons for whose benefit the  land         in question was being acquired had settled in Uttar Pradesh.         Regarding the third ground, the learned Judge expressed  the         view  that  the notification under section 7(1) of  the  Act         required  that the State Government should indicate  in  the         notification  that it had decided to acquire the  land.   As         the  word "decided" was not mentioned in  the  notification,         the notification was held to be not  in accordance with law.         On  appeal, the Division Bench of the High  Court  disagreed         with  the learned single Judge on both the grounds on  which         he  had  quashed  the notification.  It was  held  that  the         notification  was substantially in accordance  with  section         7(1)  of the Act. It was further observed that  the  society         for whose benefit the  land was being acquired consisted  of         refugees.  Dealing with the  first ground, namely, that  the         notification  was vague as it did not properly  specify  the         land sought to be acquired, the Division Bench held that all         the  necessary particulars in respect of the land sought  to         be  acquired had been given.  In the result, the appeal  was         allowed and the writ petition was dismissed.             In appeal before us, Mr. Desai has assailed the decision         of   the  Division Bench on all the three  grounds  and  has         urged  that   the  impugned notification  is  liable  to  be         quashed on each of those grounds. We shall accordingly  deal         with those grounds.             So  far as the ground is concerned that the persons  for         whose  rehabilitation the land is sought to be acquired  are         not   refugees,  Mr. Desai could not in spite of  our  query         refer  us to any paragraph in the writ petition wherein  the         above  ground had been taken.   All the same,  he  submitted         that as the question had been allowed to be agitated  before         the  High  Court, we should not debar the  appellants   from         advancing  arguments on that score.  The submission made  by         the learned counsel in this behalf is that there is  nothing         to show that the persons for whose benefit the land is being         acquired arc settled  in Uttar Pradesh.  In this respect  we         are  of the view that the question as to whether those  per-         sons are settled in Uttar Pradesh or not  is essentially one         of  fact.  In the absence of any averment in the writ  peti-         tion  that  the person concerned were not settled  in  Uttar

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       Pradesh, it is obvious that the material facts having  bear-         ing  on this point could not be brought on record.  A  party         seeking  to  challenge the validity of a notification  on  a         ground  involving  questions of fact should  make  necessary         averments of fact before it can assail the notification   on         that  ground.  As such we find it difficult to  sustain  the         contention  of Mr. Desai that the persons for whose  benefit         the  land is being acquired were not settled in  Uttar  Pra-         desh.  Apart from that, we find that         230         ground  No. 13 taken in the writ petition proceeds upon  the         assumption  that the persons for whose benefit the land  was         being  acquired were in fact refugees.  It  further  appears         from  the  judgment of  the Division Bench  that  there  was         hardly  any dispute before the Division Bench on  the  point         that  the respondent society, namely,  Sufferers’  Co-opera-         tive Housing Society, consists of refugees and has  refugees         as its members.             Coming to the second ground taken by the appellants that         the notification was not in conformity with section 7(1)  of         the   Act inasmuch. as it did not state that the State  Gov-         ernment  had decided to acquire the land in dispute, we  are         of the opinion that a reading of the notification which  has         been  reproduced  above leaves no manner of doubt  that  the         State  Government  had decided to acquire the  land.  It  is         stated  in the notification that the Governor of Uttar  Pra-         desh  is  pleased to declare that he is satisfied  that  the         land mentioned in the schedule is needed and is suitable for         the erection of houses, shops and workshops for the rehabil-         itation  of  displaced persons and/or for the  provision  of         amenities  directly connected therewith.   The  notification         further proceeds to state that the land in question shall be         deemed  to  have been acquired permanently  and  shall  vest         absolutely  in  the State Government free  from  all  encum-         brances  from the date of the notification.  The recital  in         the  earlier part of the notification as well as the  opera-         tive part of the notification that the land shall  be deemed         to  have  been acquired permanently and shall vest  in   the         State Government lend clear support for the conclusion  that         the  State  Government decided to acquire the land  and  the         order  of acquisition was merely an implementation  of  that         decision.   The  fact that the word "decided" has  not  been         used  in  the notification would  not prove fatal  when  the         entire  tenor of the notification  reveals the  decision  of         the  State Government to acquire the land and is  consistent         only  with  the hypothesis of such a  decision  having  been         arrived  at.  The courts should be averse to strike  down  a         notification  for  acquisition of land on  fanciful  grounds         based  on hypertechnicality. What is needed  is  substantial         compliance  with  law.  The impugned  notification,  in  our         opinion, clearly satisfies that requirement.             Lastly,  we  may deal with the  contention  advanced  on         behalf  of the appellants that the notification in  question         is vague. It is pointed out by Mr. Desai that the total area         of  the  land comprised in field numbers  mentioned  in  the         notification  is 1.26 acres, while the actual area which  is         sought  to  be acquired is one acre.   The  learned  counsel         accordingly  urges that it is not possible to find  out  the         particular portions of  those fields which are sought to  be         acquired.   As such, the notification is stated to be  vague         and thus not in conformity with law.  Our attention has also         been invited by Mr. Desaid to the report dated June 23, 1971         of  the Tehsildar, who was deputed to deliver possession  of         the  acquired land to the society.   In the said report  the         Tehsildar  stated that he found it difficult to find out  as

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       to  which part of the fields mentioned in  the  notification         were acquired.   In this respect we find that the report  of         the Tehsilder itself indicates that when he went to the spot         to deliver possession of the acquired         231         land, he did not take with, him the correct plan of the said         land.The impugned notification makes an express reference to         the site-plan.  An affidavit has been filed on behalf of the         society  and that affidavit makes it plain that the area  of         the land which has been acquired comes to exactly one  acre.         There appears to be no cogent ground  to  interfere with the         finding  of the Division Bench of the High Court   that  the         impugned notification has not been shown to be vague.               We,  therefore,  find  no infirmity  in  the  impugned         notification.  The appeal fails and is dismissed but in  the         circumstances with no order  as to costs.             Before  we conclude, we would like to observe  that  the         case before us tells a sad tale of delays in a matter  which         on sheer humanitarian grounds needed to be attended to  with         expedition.    The  case,  as would appear from  the  above,         pertains to the acquisition of land with a view to rehabili-         tate refugees who were uprooted from their hearths and homes         in areas now in Pakistan because of disturbances and fear of         disturbances  which  marred the partition  of  the  country.         The refugees for this purpose formed a society, and  applied         to  the  administration in 1955 for acquisition of  land  so         that they could erect shops and workshops on that land  with         a  view to earn their livelihood.   It took the  administra-         tion 11 years thereafter to issue necessary notification for         the  acquisition of the land in dispute.   Four  years  were         thereafter spent because possession of the land could not be         delivered.  The  only  attempt made  to  deliver  possession         proved infructuous as the Tehsildar entrusted with this task         took  a wrong plan.   From 1970 till today the  delivery  of         possession  remained stayed because of the writ  proceedings         initiated  by  the appellants.  One can only hope  that  now         that the final curtain has been dropped, the matter would be         attended to with the necessary promptitude.         P.H.P.                                                Appeal         dismissed.         232