KHANNA, J. - (1.) 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 23/04/1966 issued by the State Government under Section 7 (1) of the U. P. Land Acquisition (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 dismissed.
(2.) THE Sufferer's Co-operative Housing Society, Janupur, Respondent, applied to the U. P. 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 23/04/1966, the impugned notification 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 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 authorised agent before the Compensation Officer of the Distt. at Jaunpur on the twenty seventh day of April 1966, with necessary documentary or other evidence for the determination of the amount of compensation under Section 11 of the Act. THE Collector of Janupur 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 encumbrances from the beginning of the day on which the notice is so published. SCHEDULE JUDGEMENT_216_1_1977Html1.htm For what purpose required: for 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 Officer 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 compensation was thereafter deposited by the society. On 10/04/1970 the appellants, claiming to be the owners of a part of the land sought to be acquired filed petition under Article 226 of the Constitution of India in 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. The learned single Judge, while allowing the writ petition, 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 or 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.
(3.) 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 are settled in Uttar Pradesh. In this respect we are of the view that the question as to whether those persons are settled in Uttar Pradesh or not is essentially one of fact. In the absence of any averment in the writ petition that the persons concerned were not settled in Uttar Pradesh, it is obvious that the material facts having bearing 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 Pradesh. Apart from that, we find that 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-operative Housing Society, consists of refugees and has refugees as its members.;