SHIVARAJ V.PATIL, J. - (1.) ABOUT 496 acres of land including that of the appellants were acquired under the provisions of the Land Acquisition Act, 1894 (for short 'the Act'). Notifications under sections 4 and 6 were issued for the purpose of planned development of district Ghaziabad (now district Gautam Budh Nagar) through NOIDA on 5.1.1991 and 7.1.1992 respectively. The appellants challenged those notifications by filing writ petitions in the High Court which were dismissed. They filed appeals by Special Leave to this Court challenging the order of the High Court dismissing the writ petitions. This Court in Om Prakash and Anr. v. State of U.P. and Ors.1 disposed of those appeals giving certain directions. Although several contentions were raised before this Court challenging the acquisition proceedings, finally this Court has made observations and gave certain directions in paras 31 and 32, which read as under:- "31. Now remains the moot question as to what proper orders can be passed in the present proceedings in the light of our findings on the aforesaid points. We have already noted that the real and the only contention of the appellants for effectively challenging the acquisition proceedings is that because their lands are having abadi, they are covered by the existing State policy for not acquiring such lands under the Act. Whether these lands are having abadi or not, is a vexed question of fact which we have kept open for consideration of appropriate authorities instead of relegating the appellants to the remedy under Section 5-A of the Act. We deem it fit to relegate the appellants to the remedy by way of suitable representation before the appropriate State authorities under Section 48 of the Act. It reads as under:- "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 acquisition of any land of which possession has not been taken. (2) Whenever the government withdraws from any such 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 thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under, this Act relating to the said land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this Section." As laid down by sub-section (1) of section 48, the Government is at liberty to withdraw from the acquisition of any land of which possession has not been taken. Leaned senior counsel for the contesting respondents submitted that possession of these lands has already been taken. Our attention was invited to a possession receipt annexed to the counter-affidavit filed on behalf of respondent 4, Secretary, New Okhla Industrial Development Authority. It is stated in the counter that NOIDA has been put in possession of the acquired lands from 30-3-1992 and the lands under acquisition now form a part of sectors 43 and 44 of NOIDA. The Secretary of New Okhla Industrial Development Authority, Shri Rama Shankar has also earlier filed counter-affidavit to that effect. In para 6 thereof, it is averred as under:- "6. I further say and submit that the Hon'ble High Court of judicature at Allahabad on 31.2.1992 passed an interim order to the effect that there would be status quo and/or that the petitioner would not be dispossessed from the land in dispute unless he has already been dispossessed. I say and submit that a day prior to the date on which the interim order was passed, the petitioner had already lost possession and the 4th respondent was put in actual physical possession of the land which is the subject-matter of this petition." Our attention was also invited to Possession Certificate at p. 202 which mentions that for the lands detailed in the certificate, possession should be given to the Tehsildar/Admin- istrative Officer, NOIDA on 30-3-1992. The number of lands are listed totalling to 492.91 acres wherein the appellants' khasra numbers are also mentioned. It is difficult to appreciate as to how the Possession Certificate for all these number of lands would necessarily include actual taking over of all the number of lands on which there were constructions on the spot at the relevant time It is also pertinent to note that the Possession Certificate is dated 30-3-1992 and the High Court of Allahabad granted status quo order on the next day, i.e., 31.3.1992. It, therefore, appears to us that so far as the appellants' lands are concerned, only an effort was made to take paper possession on 30.3.1992 and actual possession does not seem to have been taken. No possession receipt signed by any of the appellants could be produced to substantiate that contention. Not only that, as noted earlier, the evidence on record showed that even pending the writ petition, the site inspection report of 11.3.1996 showed that some of the lands in question were actually occupied by residents and the lands were constructed upon and a factory was being run. Consequently, it is not possible to agree with the submission of learned senior counsel for the respondents that the possession of the acquired lands belonging to the appellants was actually taken on the spot on 30.3.1992. It is not in dispute that status quo order granted by the High Court continued all throughout till the dismissal of the writ petition. It was then contended that before this Court could grant any interim relief, possession appeared to have been taken of these lands at least on 18.11.1995. Our attention was invited to the authority letter written by one Shri Chandra Pal Singh, Additional District Magistrate, Land Acquisition, NOIDA, Ghaziabad that possession should be given on 18.11.1995. It is obviously after the decision of the High Court dated 24.8.1995. However, it must be noted that this Court by order dated 29.9.1995 had already granted ad interim stay limited to the extent that any existing construction should not be demolished without leave of the Court and that order has continued all throughout till the hearing of the present appeals. It is, therefore, difficult to appreciate as to how despite the order of this Court, possession of the present appellants' lands could have been taken on 18.11.1995. However, Shri Mohta, learned senior counsel for NOIDA, submitted that this Court order was only not to demolish the construction and has nothing to do with taking possession. It is difficult to appreciate this submission. If the constructions on the disputed lands under acquisition were not to be disturbed, how could it be contended that still the possession of the constructions was with NOIDA and that they would not demolish the construction having taken their possession? Even that apart, the authority letter dated 18.11.1995 itself shows the details of lands possession of which was given to NOIDA and the land of Survey No. 488 is not one of them. For all these reasons, therefore, it must be held that possession of the tands under acquisition belonging to the present appellants has remained with the appellants till date. Once that conclusion is reached, section 48 subsection (1) can be legitimately invoked by the appellants for consideration of the State authorities. It is, of course, true that the said provision gives liberty to the State to withdraw from acquisition of any land but if the appellants are in a position to convince the State authorities that their lands were having abadi on the date on which section 4 notification was issued on 5.1.1991 and it was that abadi which had continued without any additional construction thereon till the date of section 6 notification and thereafter and such abadi was squarely covered by the State policy of not acquiring lands having abadi, then it will be open to the State authorities to pass appropriate orders for withdrawing such lands from acquisition and give appropriate relief to the applicants concerned. We, therefore, grant liberty to the appellants, if so advised to file written representations before appropriate authorities of the State of Uttar Pradesh invoking the State government's powers under section 48 sub-section (1) of the Act It is made clear that we express no opinion on the question whether the appellants' lands had such abadi on the date of section 4 notification which would attract the State policy of not acquiring such lands and whether such policy had continued thereafter at the stage of section 6 notification of 7.1.1992 and whether such policy is still current and operative at the time when the appellants' representations came up for consideration of appropriate authorities of the State government. It will be for the State authorities to take their informed decision in this connection. We may not be understood to have stated anything on this aspect nor are we suggesting that the State must release these lands from acquisition if the State authorities are not satisfied about the merits of the representations. The State authorities will have to be satisfied on the following aspects in this connection:- (i) Whether there was any abadi on the acquired lands at the time of section 4(1) notification; (ii) Whether such abadi was a legally permissible abadi; (iii) Whether such abadi has continued to exist till the date of representation; (iv) Whether such abadi was covered by any government policy in force at the time of issuance of section 4(1) notification and/or section 6 notification for not acquiring lands having such abadi; (v) Whether such government policy has continued to be in force till the date of representation. 32 In short, the entire matter is left at large for the consideration of the State authorities in the appellants' representations. We also make it clear that if the appellants file their written representations to the aforesaid effect on or before 31.8.1998, then the appropriate authorities of the State government shall consider their representations regarding the feasibility of releasing such lands from acquisition under section 48(1) of the Act on the ground that there were "abadis" on these lands at the relevant time and are governed by any existing State policy for releasing such lands from acquisition on that score as indicated hereinabove and for that purpose they may give a hearing to the appellants, either personally or through their counsel, and permit them to lead whatever evidence they want to lead in this connection. The State authorities shall consider these written representations within a period of two months from the date such representations are received, i.e., latest by 31.10.1998 and will take appropriate decisions on these representations and will inform the representationists concerned in writing about the decision of the State government in this connection." [emphasis supplied]
(2.) PURSUANT to the said directions, the appellants made representations before the State government. The authority, after considering their representations, rejected the same by order dated 3.12.1999. Hence, the appellants approached the High Court for the second time by filing the writ petitions challenging the order of authorities dated 3.12.1999. The Division Bench of the High Court, after considering the contentions raised, dismissed the writ petitions on 25.2.2000. Hence, the appellants have approached this Court by filing these appeals questioning the validity and correctness of the order dated 25.2.2000 made by the High Court in the writ petitions upholding the order dated 3.12.1999 passed by the authority. It is appropriate to recapitulate the substance of the directions given and the observations made as can be gathered from paragraphs 31 and 32 extracted above. This Court noticed that the real and only contention of the appellants for effectively challenging the acquisition proceedings was that their lands having abadi could not be acquired as per the existing policy for not acquiring such lands; whether those lands are having abadi or not is a vexed question of facts, which is left open for consideration of appropriate authorities; instead of relegating the appellants to the remedy under section 5-A of the Act it was deemed fit to relegate the appellants to the remedy by way of suitable representation before the appropriate State authorities under section 48 of the Act. There was some dispute as to taking of possession of the lands by the authorities in the context that under Section 48(1) the Government is at liberty to withdraw from the acquisition of any land of which possession has not been taken. On examination of rival contentions on this point this Court held that the possession of the lands under acquisition belonging to the appellants had remained with them. Hence section 48(1) of the Act could be legitimately invoked by the appellants for consideration of the State authorities; it is true that the said provision gives liberty to the State to withdraw from acquisition of any land but if the appellants are in a position to convince the State authorities that their lands were having abadi on the date on which section 4 notification was issued on 5.1.1991 and it was that abadi which had continued without any additional construction thereon till the date of second notification and that such abadi was squarely covered by the State policy of not acquiring lands having abadi, then it will be open to the State authorities to pass appropriate orders for withdrawing such lands from acquisition and give appropriate relief to the applicants concerned; liberty was given to the appellants to file representations before the appropriate authorities under section 48(1) of the Act; it is made clear that this Court did express no opinion on the question whether the appellants' lands had such abadi on the date of section 4 notification, which was attracted the State policy of not acquiring such lands and whether such policy had continued there- after at the stage of section 6 notification on 7.1.1992 and whether such policy was still current and operative at the time when appellants' representations came up for consideration. It would be for the State authorities to take their informed decision in that connection. This Court also made it clear that it may not be understood that anything stated on this aspect nor any suggestion was made that the State must release these lands from acquisition if the State authorities are not satisfied about the merits of the representations. The State authorities will have to be satisfied in that regard on five aspects stated in paragraph 31 above. In paragraph 32 it is further stated that the entire matter is left at large for the consideration of the State authorities on the appellants' representations. It is made clear that the State government shall consider the representations as to feasibility of releasing such lands from acquisition under section 48(1) of the Act on the ground that there were abadis on these lands at the relevant time and are governed by any existing State policy for releasing such lands from acquisition on that score. In para 11 of the judgment, the following points were raised for determination:- "1. Whether the State authorities were justified in invoking section 17(4) of the Act for dispensing with inquiry under section 5-A of the Act. 2. In any case, whether the appellants' lands have to be treated as immune from acquisition proceedings on the ground that they were having abadi thereon and were, therefore, governed by the policy decision of the State of U P. not to acquire such lands. 3. Whether this Court should refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India in the facts and circumstances of the case. 4. What final orders." The first point was answered in the negative, in favour of the appellants and against the contesting respondents. Point No. 2 was kept open for consideration of the proper State authorities, as indicated while considering points 3 and 4. Point No. 3 was answered in the affirmative against the appellants and in favour of the respondents refusing to exercise discretionary jurisdiction under Article 136 of the Constitution of India for interfering in the proceedings with the impugned notifications. Dealing with point No. 4 directions were given and observations were made as stated in paragraphs 31 and 32 of the judgment.
(3.) SHRI Shanti Bhushan, learned senior counsel appearing for the appellants in Civil Appeal Nos. 999-1001/2001 and 1004/ 2001 and Contempt Petition Nos. 274/ 1991 and 281/1991, specifically drew our attention to the discussion and conclusion of point no.1. To emphasize that acquisition proceedings were otherwise bad, but only in order not to disturb the scheme for the purpose of which large area was acquired, the directions as contained in para 31 were given. He further urged that the High Court committed an error in upholding the order dated 3.12.1999. issued by the Secretary, Ministry of Industries, Government of Uttar Pradesh, who did not follow the specific directions of this Court; the High Court committed an error in passing the common judgment in number of writ petitions without discussing the individual cases on merits as the Secretary, Ministry of Industries had also committed the similar mistake in not deciding the cases individually on their own merits in spite of specific directions given by this Court in Om Prakash case (supra), and the order dated 6.9.1999 in Contempt Petition filed by I.M. Dawar and connected special leave petitions. The impugned judgment cannot be sustained in view of the fact that when there was a specific government policy as is evident from the letter dated 8.8.1997 that at the time of acquisition of any area the village abadi be left out from acquisition and if acquisition is very urgent, in that case equal development area of the acquired land shall be given to the owners of the land, whose land was sought to be acquired. He added that the order dated 3.12.1999, passed by the authority, was violative of Article 14 of the Constitution of India being arbitrary and discriminatory in view of policy of the government of U.P. that no abadi land will be acquired. The High Court also failed to correct the said order. The spot inspection report made by the team of the officers of the Revenue Board clearly established that abadi existed at the lands of the appellants. He took us through the relevant documents placed on record in support of his submissions. The other learned counsel, appearing in other appeals, while adopting the arguments made by SHRI Shanti Bhushan, made few more submissions in relation to facts of their respective cases. On the other hand, Shri Rakesh Uwivedi learned counsel representing respondent no. 2 (NOIDA Authonty) made submissions in support and justification of the impugned order. He urged that the Secretary, Ministry of Industries scrupulously and correctly followed the directions given by this Court in considering the representations made by the appellants and after recording finding of fact and after considering the feasibility of releasing the lands from acquisition under section 48(1) rejected the representations. There has been a detailed consideration of every one of the contentions urged on behalf of the appellants in the light of the material that was available on record. According to the learned senior counsel the High Court was right and perfectly justified in not interfering with the finding of fact recorded by the authority in dealing with their representations; the High Court on consideration of the contentions, urged on behalf of the appellants, by a considered order, upheld the order of the authority and rightly so.;