Judgment:
Vikram Nath, J.
1. This writ petition has been filed with a prayer to quash the order dated 6.6.2005 (Annexure 6 to the Writ Petition) passed by the Special Secretary, Government of U.P. whereby the order dated 5-3-2003 passed by the State Government earlier under Section 48 of the Land Acquisition Act, 1894 (in short referred to as to the Act) excluding the petitioner's plot nos. 1059 area 0B-12B-10B and 1042 area 0B-13B-6B of village Rithani, district Meerut (in short referred to as the land in dispute) from the land acquisition proceedings, was cancelled.
2. The petitioner alleges to be the owner in possession of the land in dispute, over which he was running a factory in the name and style of M/S Vimco Chemical Industries manufacturing sodium silicate. It is further alleged that the factory was set up in the year 1978. By means of Gazette Notification under Section 4 & 6 of the Act issued on 14.8.1987 and 4.9.1987 respectively certain land was sought to be acquired for the benefit of the Meerut Development Authority, Meerut for establishing a residential colony in the name of 'Shatabdi Nagar Scheme'. The land in dispute was covered by the said notification. According to the petitioner, as he had a running factory established over the land in dispute, he objected for acquisition of the said land and prayed for exemption. As the State Government was not paying any heed to his request, the petitioner filed writ Petition No. 23183 of 1987 challenging the Notifications under Section 4 & 6 of the Act. During the pendency of the said writ petition it was also brought on record that Meerut Development Authority had recommended vide letter dated 14.2.1990 for excluding 35 plot from acquisition proceeding as they contained residential/industrial constructions. The list of 35 plots did not include the land in dispute. This Court while disposing of the Writ Petition No. 23183 of 1987 left it open for the State Government to consider the grant of exemption to the land in dispute, vide Judgment dated 11.9.1991. The State Government by the order dated 2.4.1996 rejected the representation of the petitioner for exemption, aggrieved by which the petitioner filed Writ Petition No. 16567 of 1996. According to the petitioner, the State Government by order dated 5-3-2003 granted exemption to the land in dispute from acquisition proceedings. However, the said order of exemption could not be communicated to the petitioner and in the meantime this Court by the order dated 17.7.2003 again left it open to the sole discretion of the State Government the question of granting exemption from acquisition. It appears that after the order dated 5.3.2003 was issued by the State Government, the Meerut Development Authority moved an application dated 10-12-2003 before the State Government for considering withdrawal of the said order granting exemption. The State Government by order dated 6.6.2005 withdrew the exemption granted earlier to the petitioner, the effect of which was that the land in dispute again became part of the acquisition proceedings. This order of withdrawal dated 6.6.2005 was also not communicated to the petitioner. However, he came to know of the same only when the Meerut Development Authority filed a Misc. Appeal before the District Judge being Misc. Appeal No. 109 of 2006. Thereafter the present writ petition has been filed for quashing the order dated 6.6.2005 passed by the State Government on the ground that there was violation of principles of natural justice and no opportunity of show cause or of hearing was afforded to the petitioner.
3. Counter affidavit has been filed by the State and also by the Meerut Development Authority, Meerut.
4. Stand taken by the State Government in its counter affidavit is that the order dated 5-3-2003 was passed without considering the report of the Meerut development Authority and therefore it was illegal and the State Government could rectify an illegal order and therefore, there was no illegality in the subsequent cancellation order dated 6-6-2005.
5. Meerut Development Authority has defended the order of the State Government more or less on the same ground and in addition another ground has been taken with regard to the delay and laches on the part of the petitioner in filing the present Writ Petition. It has been alleged that after the order dated 6-6-2005 was passed, the Meerut Development Authority filed a Caveat Application in this Court and copy of the Caveat Application has been sent by Registered Post, which was served upon the petitioner and therefore the present Writ Petition suffers from serious laches. It is further averred that in fact no constructions of the petitioner was standing over the land in dispute and there was only shed and boundary wall. There was no running factory.
6. The petitioner in his rejoinder affidavit has denied the service of the order dated 6-6-2005 and again reiterated that no notice was given and further that no Caveat was served. Petitioner has further added the documents in support of his contention that it was actual physical possession of the land in dispute and that the factory was actually running over the land in dispute.
7. In reply to the rejoinder affidavit the respondents have filed supplementary counter affidavit, in response to which supplementary rejoinder affidavit has also been filed.
8. We have heard Sri Ravi Kiran Jain, learned Senior Counsel assisted by Sri Vatsal Srivastava on behalf of petitioner and learned Standing Counsel for respondent nos. 1 & 2 and Sri Anurag Khanna for Meerut Development Authority (respondent No. 3).
9. Learned Counsel for the petitioner has submitted that the order dated 6.6.2005 withdrawing the exemption was passed without affording any opportunity of hearing to the petitioner. Specific averments in this regard have been made in paragraph No. 15 of the petition. This fact has not been denied in the counter affidavit filed by the State Government or by the Meerut Development Authority.
Paragraph 15 of the Writ Petition reads as follows-
That it is pertinent to mention here that the impugned order dated 060-06-2005 has not yet been communicated or brought to the knowledge to the petitioner nor at any point of time before passing this order any opportunity of hearing was extended to the petitioner. The order being violative of Principle of Natural Justice is non est and inoperative. Moreso, because it is barred by the principle of estoppal.
10. In the counter affidavit of the State Government paragraph 15 of the Writ Petition has been replied by means of paragraph 13 of the counter affidavit of Vijendra Singh, sworn on 12.1.2007 which reads as follows-
That the contents of para No. 13 to 16 of the writ petition relates to the Meerut Development Authority, hence need no reply from the answering respondent.
11. The Meerut Development Authority has replied para 15 of the Writ Petition by means of paragraph No. 13 of the counter affidavit of Babu Singh, sworn on 10th October, 2006. Paragraph 13 reads as follows-
That the contents of Para 14 & 15 of the writ petition are denied. It is to be noted that the petitioner had knowledge of the order dated 06.06.2005. Meerut Development Authority had filed the caveat in the Hon'ble High Court. The copy of the caveat has been served upon the petitioner by the registered post.
12. Therefore the undisputed fact remains that the order dated 6-6-2005 was passed by the State Government without hearing the petitioner. Learned counsel for the repondents have not been able to demonstrate from any of the documents that the State Government at any stage, before passing the order dated 6-6-2005 afforded opportunity of hearing to the petitioner.
13. The question to be considered is whether the opportunity was necessary or not? It is settled law that any action having civil consequences must necessarily conform to the principles of natural justice and fair play. Opportunity of show case and hearing are must in such matters. Section 48 of the Land Acquisition Act confers the powers on the State Government to withdraw from the acquisition of any land of which possession has not been taken. Sub-section 2 of Section 48 of the Act provides for compensation for the damage suffered by the land owner on the ground of any notice or proceeding under the Act and Sub-section 3 thereof provides for determination of compensation. Undoubtedly the land acquisition relates to taking over land of land owner. It relates to immovable property and it also provides for payment of compensation with regard to acquired land. In the circumstances any proceeding relating to title of land and its compensation would have civil consequences as it would relate to the rights of the parties. In that view of the matter opportunity is a must.
14. In the present case as the State Government had earlier exempted the petitioner's land from acquisition by order dated 5-3-2003, any withdrawal of such exemption would definitely effect the rights of the petitioner and therefore, petitioner ought to have been given opportunity of hearing before withdrawing the exemption. In the present case, as we have already recorded that, no notice or opportunity was given, the impugned order dated 6-6-2005 stands vitiated and cannot be sustained.
15. The submission with regard to delay and laches cannot be sustained for two reasons. Firstly, there is no evidence to show that either the order dated 06.06.2005 was ever served upon the petitioner or the service of the caveat application is established. Secondly, as we have held that the order date 06.06.2005 was passed in violation of principles of natural justice and fair play behind the back of the petitioner, we are not inclined to shut out hearing on technical ground of short delay even if service of caveat had been effected.
16. In view of the above discussion, Writ Petition succeeds and is allowed, the impugned order dated 6-6-2005 is hereby set aside and the matter is remitted back to the State Government to re-examine the issue and pass appropriate order after affording opportunity of he3aring to the petitioner and other concerned parties.