- (1.) This writ petition was decided by a Division Bench of this Court by means of the order dated 31.8.2010 the order passed by the Court which reads as follows:- By means of this writ petition the petitioners have prayed for quashing the impugned notification No.69/1 -13-08-7-5(11)/2004 Sa 13 dated 25.4.2008 by which the Notification No. 31 RM/233 Lucknow dated 7th July, 2005 has been cancelled. A Notification dated 10.11.73 and 17.8.77 respectively under section 28 and 32 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 were issued and the land of the petitioner was acquired under Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965. An application under section 48 (1) of the Land Acquisition Act for release of the land was moved as no notice under section 9 of Land Acquisition Act was issued and the possession of the land was not taken over either under section 16 or 17 of the Land Acquisition Act. The Government after considering the entire matter, issued a Notification under section 48 (1) releasing the land vide Notification No. 31 RM/233 Lucknow dated 7th July, 2005. The Notification No. 31 RM/233 Lucknow dated 7th July,2005 has been cancelled by the impugned Notification No. 31RM/233 Lucknow dated 7th July, 2005. (Correct number and date of the impugned Notification is 69/1-13-08-7-5(11)/2004 Sa 13 dated 25.4.2008) Section 48 (1) of the Land Acquisition Act provides that the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken over. Sub-section (2) provides that whenever the Government withdraw 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. Thus, it is clear that the land is released in favour of the petitioners and re-vested with the tenure holder who becomes owner of the property and gets the protection of 300 (A). Article 300(A) of the Constitution of India provides that persons shall not be deprived of property save by authority of law. Thus if the government is again in need of the said land which has been released to tenure holder/owner of the property the Government has to follow the procedure prescribed under the Land Acquisition with the notification under section 4 and 6 which required to be issued according to the aforesaid section and the order is to be passed by the State Government under section 7 of the Land Acquisition Act. Therefore, it is held that merely by cancellation of notification under section 48 - (1) the land cannot be taken away as it will be contrary to the provisions of Article 300(A) of the Constitution of India. In the present case cancellation order/Notification has passed/issued after 2 years 9 months and 18 days. For this period the petitioner remained owner of property. Learned counsel for the U.P. Awas Evam Vikas Parishad vehemently argued that the power to issue notification includes the power to cancel the notification under section 21 of the General Clauses Act. Therefore the Government was competent to issue the said notification. The argument of learned counsel for U.P. Awas Evam Vikas Parishad is mis-conceived. In the present case the provisions of section 21 of the General Clauses Act will not apply as after release of the land to the tenure holder/owner of the property as the land can be acquired only after following the procedure prescribed under the Land Acquisition Act and it is settled law that procedural formalities prescribed in the specific statutory provisions can not be circumvented by resort to section 21 of the General Clauses Act. (Reliance has been placed in the case of Lachmi Narain v. Union of India reported in AIR 1976 SC 714) . Thus the cancellation order of the notification does not revive acquisition of land. The cancellation order dated 25.4.2008 is hereby quashed and the petitioners are held to be tenure holder/owner of the property in dispute. Since the petition deserves to be allowed only on one point other points raised are not required to be considered. The petition is allowed. No order as to costs.
(2.) Not being satisfied with the order so passed by this Court, U.P. Avas Evam Vikas Parishad filed Special Leave to Appeal, which was converted in Civil Appeal No. 6272 of 2012, before the Apex Court. The said appeal has been decided by the Apex Court under the order dated 11.2.2016. The relevant part of the order passed by the Apex Court is being quoted below:- CIVIL APPEAL NO. 6272 OF 2012 1. The challenge in the writ petition before the High Court was in respect of a notification dated 25.4.2008 cancelling an earlier notification dated 07.07.2005 by which the subject land was exempted in excercise of poser under Section 48 of the Land Acquisition Act, 1894 (for short, :the Act:). The High Court allowed the writ petition and set aside the order dated 25.04.2008, inter alia, holding that the notification dated 07.07.2005 was legal and valid inasmuch as no notice under Section 9 of the Act was issued nor possession had been taken over under Sections 16 or 17 of the Act. Accordingly, the High Court held that there was no power to issue the impugned notification dated 25.04.2008 superseding the earlier notification dated 07.07.2005. 2. Before us, it is contended on behalf of the appellant that the High Court has committed a factual error in holding that no notice under Section 9 of the Act had been issued or that possession of the land had not been taken. The above-mentioned argument is sought to be canvassed on the strength of certain documents which have been laid before us along with memo of appeal. On being queried it is stated on behalf of the appellant that the said documents were also laid before the High Court but were not considered. The plea urged would find support from the counter affidavit filed on behalf of the appellant before the High Court. 3. As a consideration of the said documents would require us to determine several connected questions/issues of fact and may also require looking into the documents in original, we are of the view that instead of entertaining this appeal any further, it would be more appropriate for the appellant to move the High Court for recall of impugned order, if it so desires. 4. We, accordingly, dispose of the appeal in the above terms maintaining the interim order passed by this Court for a period of six weeks, within which it will be also open for the appellant to seek interim relief from the High Court. 5. We make it clear that we have expressed no opinion on the merits of the case.
(3.) From the simple reading of paragraph 2 of the order of the Apex Court, it is apparently clear that U.P. Avas Evam Vikas Parishad contended before the Apex Court that notice under Section 9 of the Act had been issued as well as possession of the land had been taken but the High Court had committed an error in holding otherwise. In support thereof, certain documents, which were filed along with the appeal were proposed to be relied upon. The Apex Court was also informed that these documents were filed before the High Court but the High Court failed to take notice thereof. In support of the said plea, the learned counsel for the U.P. Avas Evam Vikas Parishad relied upon the counter affidavit which was filed before this Court. On the basis of such pleadings, the Apex Court held that it would be more appropriate for the appellant to move the High Court for recall of impugned order, if it so desires.;