1
"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2650-2652 OF 1998
Tika Ram & Ors. ....Appellants
Versus
State of U.P. & Ors. ....Respondents
WITH
CIVIL APPEAL NO. 3162 OF 1998
Smt. Saroj Agarwal ......Appellant
Versus
State of U.P. & Ors. ......Respondents
WITH
CIVIL APPEAL NO. 3176 OF 1998
Shivaji Nagar Sahakari Girah
Nirman Samiti Ltd., Lucknow ....Appellant
Versus
State of U.P. & Anr. ....Respondents
2
WITH
CIVIL APPEAL NO. 3415 OF 1998
M/s Pratap Sahakari Grih
Nirman Samiti Ltd. ...Appellant
Versus
State of Uttar Pradesh & Ors. .....Respondents
WITH
CIVIL APPEAL NO. 3561 OF 1998
M/s Shama Timber Works & Anr. .....Appellants
Versus
State of U.P. & Anr. .....Respondents
WITH
CIVIL APPEAL NO. 3597 OF 1998
Ganga Bux Singh & Ors. ....Appellants
Versus
State of U.P. & Ors. .....Respondents
3
WITH
CIVIL APPEAL NO. 3923 OF 1998
M/s. Janta Steel Industry & Anr. .....Appellants
Versus
State of U.P. & Anr. .....Respondents
WITH
CIVIL APPEAL NO. 3939 OF 1998
M/s Sachin Surkhi Udyog & Anr. ....Appellants
Versus
State of U.P. & Ors. .....Respondents
WITH
CIVIL APPEAL NO. 3645 OF 1998
Awadh Industries through its
Proprietor & Ors. ....Appellants
Versus
State of U.P. & Ors. .....Respondents
4
WITH
CIVIL APPEAL NO. 3691 OF 1998
Pragatisheel Sahakari Grih Nirman
Samiti Ltd., Lucknow ......Appellant
Versus
State of U.P. & Ors. .....Respondents
WITH
CIVIL APPEAL NO. 5346 OF 1998
M/s Indira Nagar Sahkari Awas Samiti Ltd. ....Appellant
Versus
State of U.P. & Ors. .....Respondents
WITH
CIVIL APPEAL NOS. 2116-2118 OF 1999
Tika Ram & Ors. Etc. Etc. ....Appellants
Versus
State of U.P. & Ors. Etc. Etc. .....Respondents
5
WITH
CIVIL APPEAL NO. 2139 OF 1999
Smt. Saroj Aggarwal ....Appellant
Versus
State of U.P. & Ors. .....Respondents
WITH
CIVIL APPEAL NO. 2121 OF 1999
Shivaji Nagar Sahkari Girah Nirman
Samiti Ltd., Lucknow ......Appellant
Versus
State of U.P. & Anr. ......Respondents
WITH
CIVIL APPEAL NO. 2113 OF 1999
Ganga Bux Singh & Ors. .....Appellants
Versus
State of U.P. & Ors. .....Respondents
6
WITH
CIVIL APPEAL NOS. 4995-4996 OF 1998
Swarg Ashram Sahakari Avas Samiti Ltd. .....Appellant
Versus
State of U.P. & Ors. ....Respondents
WITH
SLP (C) NO. CC. 1540 OF 1999
Pragatisheel Sahkari Grih Nirman Samiti .....Appellant
Versus
State of U.P. & Ors. .....Respondents
JUDGMENT
V.S. SIRPURKAR, J.
Background of Appeals
1. This judgment will dispose of Civil Appeal Nos. 2650-2652 of 1998,
3162 of 1998, 3176 of 1998, 3415 of 1998, 3561 of 1998, 3597 of 1998,
3923 of 1998, 3939 of 1998, 3645 of 1998, 3691 of 1998, 5346 of 1998,
2116-2118 of 1999, 2139 of 1999, 2121 of 1999, 2113 of 1999, 4995-4996
7
of 1998 and SLP(C) No…(CC) 1540 of 1999. All these appeals and the
Special Leave Petition challenge a common judgment passed by
Allahabad High Court, disposing of several Writ Petitions. The High Court
has granted certificate granting leave to file appeal. These Writ Petitions
were filed covering various subjects. Basically, in some of the Writ
Petitions, constitutionality of provisions of Sections 17(1), 17(1)(A),
17(3)(A), 17(4) and proviso to Section 17(4) of the Land Acquisition Act
(hereinafter referred to as `the Act’ for short) alongwith Section 2 of the
U.P. Act No. VIII of 1994 (hereinafter called `the Validating Act’ for short)
was challenged, so also constitutionality of Sections 3(A), 3(B), 4, 5, 6, 7
and 8 of the Act was also challenged. In that set of Writ Petitions,
basically, the notification issued under Section 4(1) of the Act and the
award dated 25.2.1987 were in challenge.
2. In some other Writ Petitions, besides the challenge to the above
mentioned provisions, some other notifications dated 30.12.1995,
25.1.1992, 4.1.1992 and 15.12.1992 under Section 4(1) of the Act, as well
as, the declaration under Section 6 of the Act were in challenge.
3. In some Writ Petitions, the petitioners prayed for a Writ of
mandamus, commanding the State of U.P. to frame necessary rules and
regulations in respect of Sections 11, 11-A and 17(3)(A) of the Act
pertaining to the functioning of the Land Acquisition Officer and also
sought for an injunction restraining the authorities from interfering with the
8
possession of the Writ Petitioners’ land and to comply with the provisions
under Sections 3(1A), 3(B), 4(2), 5 and 9(1) of the Act. They have also
prayed for a disciplinary action against the Station Officer, Police Station
Gomti Nagar, Lucknow, U.P.
4. These are the three sets of Writ Petitions, which came to be
disposed of by the High Court by a common judgment.
5. In one of the Writ Petitions, bearing No. 16(L/A) of 1996 filed by one
Ram Bharosey, award dated 25.2.1987 which was validated in pursuance
of Section 2 of the Validating Act, was in challenge.
6. In still another set of Writ Petitions, Pratap Housing Cooperative
Society and some industries prayed for exempting their land from the land
acquisition proceedings. In these Writ Petitions, the Writ Petitioners had
contended that they had purchased their land from tenure holders for
Cooperative Societies for providing land to their members and construction
of the houses. The Writ Petitioners contended that some being industries
were manufacturing certain articles and their running business had come
to the standstill because of the land acquisition activities.
7. In one set of Writ Petitions, it was found that notifications were
issued under Section 4 and sub Section (4) of Section 17 of the Act,
simultaneously with the declaration under Section 6 of the Act. In these
cases, the possession was taken by Lucknow Development Authority
9
(hereinafter referred to as `LDA’ for short), so also the award was passed
on 25.2.1987.
8. In another set of Writ Petitions, wherein the leading Writ Petition was
W.P. No. 2220 (L/A) of 1996 filed by Tika Ram & Anr., the notification was
issued under Section 4(1) and 17 and declaration under Section 6 of the
Act simultaneously. However, they were treated to be lapsed and a fresh
notification came to be issued on 30.12.1991 under Section 4(1) and 17 of
the Act. Even in these Writ Petitions, the awards were passed and the
concerned persons were asked to receive payment of 80% compensation
by a general notice. In short, the challenge generally was to the land
acquired at the instance of LDA. Besides this challenge to the provisions
of the Act, as also to the provisions of the Validating Act, the Writ
Petitioners have claimed the non-compliance with the essential provisions
of Section 4 and 6 of the Act. They have also challenged the urgency
clause made applicable to the various land acquisitions. On merits, it has
been suggested that there has been no proper publication in the
newspapers or at the convenient places of the locality as required under
Section 4(1) and Section 6 of the Act. There has been no preliminary
survey as envisaged under Section 3(A) of the Act and no damages were
paid to any tenure holder as provided under Section 3(B) of the Act, either
before or after passing of the Validating Act. There are various such
challenges on merit to the process of acquisition.
1
Short History of Validating Act
9. Earlier, the acquisitions were made by formulating a scheme known
as Ujariyaon Housing Scheme (Part-II and Part III). In these, the
notifications under Section 4(1) and declaration under Section 6(2) of the
Act were issued simultaneously. That was challenged before the High
Court at the instance of one Kashmira Singh. All the Writ Petitions came
to be allowed on the ground that simultaneous notifications under Sections
4(1) and 6(2) could not be issued, particularly, after the amendment of
Section 17(4) of the Act, which provision was amended by Amending Act
No. 68 of 1984. State of Uttar Pradesh filed Special Leave Petition before
this Court, where the order passed by the High Court was upheld in a
reported decision in State of Uttar Pradesh Vs. Radhey Shyam Nigam
reported in 1989 (1) SCC 591. In these petitions, schemes known as
Ujariyaon Housing Scheme Part-II and Ujariyaon Housing Scheme Part-III
were the subject matter of the dispute. While disposing of the case of
State of Uttar Pradesh Vs. Radhey Shyam (cited supra), this Court
observed:-
“It will, however, be open to the appellants to issue a fresh
declaration under Section 6, if so advised, within a period
contemplated in the proviso to Section 6(1) of the Act read
with its first explanation.”1
However, instead of doing that, it seems that a Bill was brought
before the State Legislature and was passed and the same also received
assent of the President of India in February, 1991, which was published in
the Gazette on 27.2.1991. There was a prefatory note to the following
effect:-
“The Supreme Court in case of its judgment dated January 11,
1989 held that after the commencement of the land
Acquisition (Amendment) Act, 1984 (Act No. 68 of 1984), the
declaration under Section 6 of the Land Acquisition Act, 1894
cannot be made simultaneously with the publication in the
Gazette Notification under Section 4(1) even though the
application of Section 5-A has been dispensed with under
Section 17(4) of the said Act. In a large number of
proceedings of acquisition of land for the Development
Authorities for the implementation of various housing
schemes, the declaration under Section 6 were made
simultaneously with publication in the Gazette of notification
under Section 4(1). The said proceedings were likely to be
held void in view of the aforesaid judgment of the Supreme
Court. In order to save the said scheme from being adversely
affected, it was decided to amend the Land Acquisition Act,
1894 in its application to Uttar Pradesh to provide for
validating the proceedings of land acquisition in respect of
which the notifications under sub Section (1) of Section 4 and
sub Section (4) of Section 17 of the said Act had been
published in the Gazette on after September 24, 1984 (the
date of amendment) but before January 11, 1989 (the date of
judgment of the Supreme Court) and the declaration under
Section 6 had been issued either simultaneously or at any
time after the application in the Gazette of the said notification
under Section 4(1).”Sections 2, 3 and 4 of the said Validating Act were as under:-
“2. Amendment of Section 17 of Act No. 1 of 1894:-
In Section 17 of the Land Acquisition Act, 1894 as
amended in its application to Uttar Pradesh, hereinafter
referred to as the Principal Act, in sub-Section (4), the
following proviso shall be inserted at the end and shall
1be deemed to have been inserted on September 24,
1984, namely:-Provided that where in the case of any land notification
under Section 4, sub-Section (1) has been published in
the official Gazette on or after September 24, 1984 but
before January 11, 1989 and the appropriate
Government has under this sub-Section directed that
the provisions of Section 5-A shall not apply, a
declaration under Section 6 in respect of the land may
be made either simultaneously with or at any time after
the publication in the official Gazette of the notification
under section 4, sub-Section (1).3. Validation of certain acquisitions:-
Notwithstanding and judgment, decree or order of any
Court, Tribunal or other authority, no acquisition of land
made, or purporting to have been made under the
Principal Act, before the commencement of this Act and
no action taken or thing done (including any order or
alteration made, agreement entered into or notification
published in connection with such acquisition which is in
conformity with the provisions of the Principal Act as
amended by this Act shall be deemed to be invalid of
ever to have been invalid merely on the ground that
declaration under Section 6 of the Principal Act was
published in the official Gazette on the same date on
which notification under Section 4, sub Section (1) of
the Principal Act was published in the official Gazette or
on any other date prior to the date of publication of such
notification as defined in Section 4, sub Section (1) of
the Principal Act.4. Repeal and saying:-
(1) The land Acquisition (Uttar Pradesh Amendment
and Validation) ordinance 1990 (U.P. Ordinance
No. 32 of 1990) is hereby repealed.(2) Notwithstanding such repeal, anything done or
any action taken under the provisions of the
Principal Act, as amended by the Ordinance
referred to in sub Section (1) shall be deemed to
have been done or taken under the
corresponding provisions of the Principal Act, as
1amended by this Act, as it the provisions of this
Act were in force at all material times.”10. It should be noted that this Act, which came on 27.2.1991, receiving
assent of the President of India, was earlier challenged before the
Allahabad High Court, where it was found to be valid. The High Court held
that the invalidity of the land acquisition in issuance of the Section 4 and
Section 6 notification simultaneously, was cured by this Act, which was
made applicable with retrospective effect. It was not with an intention to
wipe out the judgment of this Court in the case of Radhey Shyam (cited
supra). Validity of the Validating Act also came before this Court in
Meerut Development Authority Vs. Satvir Singh & Ors. reported in
1996(11) SCC 462. There, it was held that the exercise of the power
under Section 4(1) and declaration under Section 6 were not vitiated and
the Validating Act was not invalid. This Court specifically observed in that
case:-
“It is not in dispute that the State Amendment Act 5 of 1991
was enacted or reserved for consideration of the President
and received the assent of the President on 26.2.1991 and the
Act was published in the Gazette on 27.2.1991. It is to be
seen that as regards simultaneous publication of the
notification and the declaration in respect of acquisition of the
land for public purpose exercising the power of eminent
domain in certain situation where possession was needed
urgently, depending upon the local needs and the urgency,
Government requires such power. Consequently, the State
Legislature thought it appropriate that despite the enactment
of the Amendment Act, 68 of 1984 amending Section 17(4),
the State needed further amendment. Resultantly, the U.P.
Amendment Act 5 of 1991 came to be made and it was given
1retrospective effect from the date of the Amendment Act 68 of
1984 has come into force, i.e., September 24, 1984.It is true that the proviso was not happily worded but a reading
of it would clearly give us an indication that the proviso to sub
Section (4) introduced by Section 2 of the Amendment Act 5 of
1991 would deal with both the situations, namely, the
notifications published on or after September 24, 1984 but
before January 11, 1989 but also the declaration to be
simultaneously published subsequent thereto. The literal
interpretation sought to be put up by Shri Pradeep Misra
would defeat the legislative object. Therefore, ironing out the
creases we are of the view that the proviso applies not only to
the notifications and declarations simultaneously published
after the date of coming into force of the Amendment Act 68 of
1984, but also to the future declarations as well. Thus, it could
be seen that the proviso would operate prospectively and
retrospectively from April 24, 1984 applying to the previous
notifications and declarations but also the notification and
declaration to be published subsequently.It is true that normally the Legislature has to give effect to the
judgment of the Court only to cure the defects pointed out in
the previous judgment so that the operation of the law would
be but in view of the peculiarity namely the special needs of
the State Article 254(2) itself gives such a power to the State
Legislature to amend the law, to make applicable in relation to
that State through Central Law may be inconsistent with the
law operation in the other States. In other words, when the
topic is occupied in the Concurrent List, uniformity of the
operation of the law is not the rule but simultaneous existence
of the inconsistency would also operate in the same field. But
when the assent of the President to the extent of
inconsistency is saved in relation to that State. Therefore, the
amendment by proviso to Section 17(4) is not invalid. Any
other construction would dry out the power of the State
Legislature to enact the law on the subject of acquisition.”The effect of judgment in case of Radhey Shyam (cited supra),
thus, was nullified. This Court also took note of the fact that despite
enactment of the Amendment Act 68 of 1984, amending Section 17(4), the
State needed further amendments and for that reason, the U.P.
1Amendment Act V of 1991 was passed by giving the retrospective effect
from the date of the Amendment Act, 1984, which came into force on
24.9.1984.
11. Relying on these two judgments, the High Court, by the impugned
judgment, affirmed the validity again and the High Court further repealed
the argument that these judgments were per incurium and hence required
reconsideration. The High Court came to the finding:-
“We have no reason to differ from the decisions of the Division
Benches of this Court, which upheld the vires of Validation Act
particularly after the decisions of Hon’ble Supreme Court
which binding upon this court under Article 141 of the
Constitution. As we have indicated in the foregoing
paragraph, this Court in exercise of power under Article 226 of
the Constitution of India cannot open a chapter which had
been closed by Hon’ble Supreme Court by upholding the vires
of the Validating Act. This Court cannot declare the
pronouncement of the Hon’ble Supreme Court, as per
incurium, even if the Hon’ble Supreme Court has not dwelled
into the”The High Court held that the Legislature, by amending Act, has
merely removed the defect pointed out by this Court in case of Radhey
Shyam (cited supra) and removed the basis of the decision rendered by
the Court. The High Court also rejected the argument regarding the
Section 17(4) and the proviso added to it by Validating Act. Ultimately, the
High Court, wholly relying on the judgments in Ghaziabad Development
Authority Vs. Jan Kalyan Samiti Sheopuri reported in 1996 (1) SCC
562, Ghaziabad Development Authority Vs. Jan Kalyan Samiti,
Sheopuri reported in 1996(2) SCC 365 and Meerut Development
1Authority Vs. Satvir Singh & Ors. (cited supra), held that the High Court
had no authority to hold these three cases as per incurium and since in
these three cases the Validating Act was upheld, there was no question of
finding fault with the Validating Act. Similarly, the High Court also rejected
the argument regarding the invalidity of Sections 17(1)(3A) and (4) of the
Act. The High Court also independently considered the principle of
eminent domain. The High Court also considered the Ujariyaon Housing
Scheme Part-II and found that the final award was made on 25.2.1987
while in Ujariyaon Housing Scheme Part-III Scheme, proceedings for
passing the award were completed and were sent to the appropriate
authority for scrutiny, consideration and approval. The High Court went on
to approve of the application of the urgency clause in both the schemes. It
also took into account the argument of the LDA that the possession of the
lands were already taken and a new city has already come up on the
banks of river Gomti and a huge township has come up consisting of flats,
houses and markets etc. which was constructed by LDA. Not only this,
those premises have been transferred to thousands of people, inhabited in
the colonies and, therefore, it would not be worthwhile to interfere in the
process of acquisition. The High Court also approved the argument that
once a possession was already taken, the Government would not withdraw
from acquisition nor would the proceedings lapse. The High Court also
found, as a matter of fact, that the possession of the whole land was
already taken over, contrary to the claim made by the Writ Petitioners that
1they were still in possession. Ultimately, on all these grounds, the Writ
Petitions came to be dismissed. All the present appeals are against the
aforementioned common judgment of the High Court, disposing of the Writ
Petitions.
12. Before this Court also, prolonged arguments were submitted by the
parties and more particularly, by Shri R.N. Trivedi, Learned Senior Counsel
and Shri Qamar Ahmad & Shri Sudhir Kulshreshtha, Learned Counsel, all
appearing on behalf of the appellants. We will consider their contentions
serially. All these contentions raised were opposed by Shri Rakesh Kumar
Dwivedi, Learned Senior Counsel appearing on behalf of the LDA, Shri
Dinesh Dwivedi, Learned Senior Counsel appearing on behalf of State of
Uttar Pradesh, as also other Learned Counsel like Shri Manoj Swarup, Shri
Anil Kumar Sangal, Shri C.D. Singh and Shri Arvind Varma etc., who
addressed us extensively, supporting the order. We have now to consider
the various contentions raised.
Rival Contentions (Broadly) I. The Validating Act did not remove the defects13. Shri Trivedi, Learned Senior Counsel, who ably led arguments on
behalf of the appellants, as also Shri Qamar Ahmad, first pointed out that
1the U.P. Legislature passed U.P. Ordinance No. 32 of 1990, being the
Land Acquisition (Uttar Pradesh Amendment and Validation) Ordinance,
1990 and enforced the same on 27.12.1990. This Ordinance later on got
the status of an Act, being Land Acquisition (Uttar Pradesh Amendment
and Validation) Act, 1991 (U.P. Act No. V of 1991). Amending Act was
identical as the Ordinance. The thrust of the argument of Shri Trivedi,
Learned Senior Counsel, as also other Learned Counsel was against the
constitutional validity of this Act. The Act consisted of 4 Sections. Section
1 is reproduced hereunder:-
“1. Short Title, extent and commencement:-
(1) This Act may be called the Land Acquisition (Uttar
Pradesh Amendment and Validation) Act, 1991.
(2) It extends to the whole of Uttar Pradesh.
(3) It shall be deemed to have come into force on
December 28, 1990.Sections 2, 3 & 4 have already been quoted hereinabove. The basic
argument against this Act was that the only purpose of this Act was to set
at naught or nullify the judgment of this Court in State of Uttar Pradesh
Vs. Radhey Shyam reported in 1989(1) SCC 591, by which it was held
that the declarations under Section 6 of the Land Acquisition Act, which
were made simultaneously with the publication of the notification under
Section 4 of the Land Acquisition Act, was an invalid exercise. It was
pointed out by the Learned Senior Counsel further that it is clear from the
Prefatory Note and Statement of Objects and Reasons that in a large
number of cases, the declarations under Section 6 of the Act were made
1simultaneously with the publication of a notification under Section 4 of the
Act and all those acquisitions had become invalid on account of the
aforementioned judgment of this Court. Further, in order to save the
scheme of the land acquisition, it was decided to amend the Act for
validating the proceedings in respect of the notifications under Section 4 of
the Act published on or after 24.9.1984 but before 11.1.1989. Our
attention was invited to sub-Section (4) of Section 17, which was
introduced by the amendment, thereby amending Section 17 of the Act in
its application to State of Uttar Pradesh. The Learned Senior Counsel
contended that while it was permissible for the State Legislature to pass
any legislation, it was not permissible to pass such a legislation only to
nullify the judgment of this Court, without providing for the displacement of
the basis or foundation of that judgment. Number of reported decisions of
this Court were relied upon for this purpose. In short, the contention was
that the State Legislature, by passing the Validating Act, could not knock
down the judgment passed by this Court unless and until the said Act took
care to remove the defects or mischiefs pointed out by this Court in its
judgment, on which the said action was invalidated, and since the
Validating Act of 1991 did not remove the basis or foundation of the
aforementioned judgment of this Court in State of Uttar Pradesh Vs.
Radhey Shyam (cited supra), the Act itself was constitutionally invalid.
According to the Learned Senior Counsel, this exercise of passing the
Validating Act is nothing, but the invalid trenching upon the judicial powers.
2The Learned Senior Counsel, in support of his arguments, relied on the
following decisions:-
1. S.R. Bhagwat Vs. State of Mysore reported in 1995
(6) SCC 16.2. ITW Signode India Ltd. Vs. Collector of Central
Excise reported in 2004(3) SCC 48.3. Bakhtawar Trust Vs. M.D. Narayan & Ors. reported in
2003 (5) SCC 2984. Madan Mohan Pathak Vs. Union of India reported in
1978 (2) SCC 505. Indira Gandhi Vs. Raj Narayan reported in 1975
Supp. SCC 16. Virender Singh Hooda Vs. State of Haryana reported
in 2004(12) SCC 5887. I.N. Saxena Vs. State of Madhya Pradesh reported in
1976(4) SCC 7508. Janpad Sabha Vs. C.P. Syndicate reported in 1970
(1) SCC 509.II. Act is ultra vires and constitutionally invalid
14. The second submission was that the said Act is ultra vires the Article
300A of the Constitution of India, as its effect was to deprive the appellants
of higher compensation which may be admissible, pursuant to the fresh
acquisition proceedings after 1987. Three decisions of this Court were
relied upon for this purpose, they being:-
2
1. State of Gujarat Vs. Ramanlal reported in 1983 (2)
SCC 332. T.R. Kapur & Ors. Vs. State of Haryana reported in
1986 Supp. SCC 5843. Union of India Vs. Tushar Ranjan Mohanty reported
in 1994 (5) SCC 450Apart from the challenge to the validity of the Act itself, or, as the
case may be, to the legislative exercise, the amendment brought about by
that Act vide sub-Section (4) of Section 17 of the Act was challenged as
ultra vires, as it sought to validate the simultaneous notifications only
between 24.9.1984 and 11.9.1989 and no others. Thereby, the Learned
Counsel contended that the other simultaneous notifications were not
covered in the Act, therefore, the provision was discriminatory. As a
sequel of this Act, it was contended that Section 3 of the Amending Act
was ultra vires the Land Acquisition Act, as it permitted declaration being
made even earlier than the publication of a notification under Section 4 of
the Act, which was in clear breach of provisions of Sections 4 and 6 of the
Act. The Learned Senior Counsel further urged that even as per the
language of the amended Section 17(4), the said provision insisted that a
declaration under Section 6 should come “after” Section 4 notification and
did not permit the declaration under Section 6 of the Act and the
notification under Section 4 of the Act being published simulateneously. It
was pointed out that main part of the Section 17(4) was not amended.
2
15. The further contention was that Section 3 of the Amending Act is
ultra vires, inasmuch as the various steps in between Section 4 notification
and Section 6 declaration were sought to be avoided by the same. The
Learned Senior Counsel also sought to highlight the basic difference in
Section 4 and Section 6 by contending that while in the former, there is no
declaration required, in the latter, first the declaration would come and
thereafter, the notification thereof would come under Section 6(2) of the
Act. It was, therefore, pointed out that what was sought to be seen is the
date of declaration under Section 6 of the Act and not its publication and
thereby, the Learned Senior Counsel pointed out that since the declaration
under Section 6 of the Act was made on 4.12.1984, i.e., before the date of
publication of the notification, therefore, the same is invalid. The judgment
in Khadim Hussain vs. State of U.P. & Ors. reported in 1976(1) SCC 843
was relied upon. Number of other cases were relied upon to suggest that
the law required in case of Khadim Hussain vs. State of U.P. & Ors.
(cited supra) was still good law and held the field.
15A. The Learned Senior Counsel also contended that even otherwise,
the language of the Validating Act and more particularly, of the proviso
added to Section 17(4) of the principal Act could not remove or cure the
defect. It was also contended that casus omissus cannot be supplied by
the Court
216. The Learned Senior Counsel then suggested that there was
discrimination in Ujariyaon Housing Scheme Part-II and Ujariyaon Housing
Scheme Part-III and, therefore, there was invidious discrimination meted
out to the Writ Petitioners (appellants herein).
17. Finding that the challenge to the notification was held to be valid by
this Court in Ghaziabad Development Authority Vs. Jan Kalyan Samiti
(cited supra) and in Meerut Development Authority Vs. Satvir Singh
(cited supra), the Learned Senior Counsel assailed these cases on the
ground that in these cases, the constitutional validity was not considered at
all. It was pointed out then that the High Court judgment was bad, as it did
not consider the question of validity of the Act merely on the ground that in
the aforementioned two decisions in Ghaziabad Development Authority
Vs. Jan Kalyan Samiti (cited supra) and in Meerut Development
Authority Vs. Satvir Singh (cited supra), the said Act was held valid
though extensive arguments were made before the High Court suggesting
as to why the two cases did not apply to the matter. It was also suggested
that we should refer the matter to the larger Bench, as in the
aforementioned two cases, the questions raised in the appeal were not
decided. The contentions raised by Shri Trivedi, Learned Senior Counsel
for the appellants can be classified in two major parts, the first part being
constitutional validity of the Amending Act and the constitutional validity of
Section 17(4) proviso of the Act introduced thereby, as also the
2constitutionality of Section 3 of the Amending Act. This would be the first
part. The other contentions of Shri Trivedi pertain to the merits of the land
acquisition on the question of date of taking possession, non payment of
80% compensation and the policy of the State Government regarding
Cooperative Societies.
Constitutional Validity of the Principal Act provisions
Doctrine of per incuriam
18. These contentions of Shri Trivedi, Learned Senior Counsel were
adopted by Shri Qamar Ahmad, Learned Counsel who led the arguments
in Tika Ram’s case on behalf of appellants. According to him, the
judgments referred to in the earlier para were per incuriam. Learned
Counsel further argued that Sections 17 (1), 17(1A), 17(3A) and 17(4) as
also Section 2 are ultra vires of Constitution. Learned Counsel further
contends in reference to the “explanation” that power given to issue
Section 4 notification is without any guidelines. Learned Counsel further
relied on the case of Anwar Ali Sarkar v. State of U.P. reported in AIR
1952 SC 75 and contended that the said decision which was given by a
Larger Bench of this Court has remained undisturbed. The stress of
Learned Counsel is on Article 14 of the Constitution and he contended that
the Validation Act allowed the State to discriminate and as a result, the
2State Government allowed the notification pertaining to Ujariyaon Part-III
Scheme to lapse while the notifications pertaining to Ujariayon Part-II
Scheme were allowed to get protection of the Validation Act and, therefore,
the Validation Act itself is hit by Article 14. The Learned Counsel, as
regards the Constitutional validity of Section 17 (1) to 17 (4), contends that
the guidelines on urgency or emergency in Section 17 did not furnish a
clear and definite guideline and consequently the State Government
discriminated by arbitrarily invoking these provisions in some cases while
doing so in other cases of similar nature. It is for this purpose that Anwar
Ali Sarkar’s case and State of Punjab v. Gurdial Singh reported in AIR
1980 SC 319 were relied on by Shri Qamar Ahmad besides the decisions
which followed Anwar Ali Sarkar’s case (cited supra).
Defence
19. As against this, Shri Rakesh Kumar Dwivedi, Learned Senior
Counsel appearing on behalf of the LDA and Shri Dinesh Dwivedi, Learned
Senior Counsel appearing on behalf of State of Uttar Pradesh vehemently
contended that the argument regarding the invalidity of the Amending Act
could not be reconsidered. The Learned Senior Counsel relied on
Doctrine of stare decisis in support of their contentions. They pointed out
that this very Act was tested by this Court in the aforementioned two
2decisions in Ghaziabad Development Authority Vs. Jan Kalyan Samiti
(cited supra) and in Meerut Development Authority Vs. Satvir Singh
(cited supra) and found to be valid and, therefore, it was no more open to
the appellants to reiterate the constitutional invalidity all over again on the
spacious ground that this Court had not considered some particular
arguments. The Learned Senior Counsel were at pains to point out that
such course is not permissible in law.
20. Even otherwise, according to the Learned Senior Counsel for the
respondents, there was not dearth of power in the State Legislature in
introducing Section 17(4) proviso to the Act for the State. It was then
contended that the very basis of the judgment in State of Uttar Pradesh
Vs. Radhey Shyam (cited supra) was the invalidity of the State action in
passing simultaneously the notification under Section 4 and the declaration
under Section 6 of the Act. Considering the language of Sections 2 and 3
of the amending Act, as also considering the proviso provided to Section
17 of the Principal Act, this Court had come to the conclusion that even
after applying the urgency clause under Section 17, such exercise of
passing the Section 4 notification and Section 6 declaration simultaneously
was valid. All that the Amending Act had done was to provide a power to
do so by introducing a proviso by the amendment with retrospective effect
and, therefore, in reality, the State Government had removed the defect
pointed out by this Court of there being no power on the part of the State
2Government to issue the notification under Section 4 of the Act and
declaration under Section 6 of the Act simultaneously. The Learned
Senior Counsel further argued that such exercise has been approved of by
this Court on number of occasions in number of reported decisions. The
Learned Senior Counsel for the State, therefore, submitted that the
Amending Act, as passed, was perfectly valid, even apart from the
argument that it was found to be valid by the two earlier decisions of this
Court. As regards the argument of Shri Trivedi that by the newly added
proviso the defect was not cured. The Learned Senior Counsel for the
State argued that the challenge was based on the phrase, “a declaration
may be made”. Learned Counsel further contended that the plain reading
or the literal construction of those words was not correct for the reason that
the Legislature which is the author of Section 6(1) is the Central
Legislature while the proviso which was introduced was by the Legislature
of the State of Uttar Pradesh. Learned Counsel argued that both the
Legislatures being different, their choice of words are guided by their own
objectives and, therefore, the word “made” in Section 6(1) of the principal
Act and Section 2 of the U.P. Amendment Act can have different meanings
depending upon the objectives which either Legislature had in mind while
legislating. The argument went further and suggested that if by giving
effect to the plain meaning, the very purpose of the law (the Amendment
Act) is defeated or is rendered nugatory or redundant, it would raise the
issue of ambiguity necessitating the purposive construction based not only
2on text but also the context. Therefore, the Learned Counsel argued that
the plain meaning could not be attributed to the concerned words. Leaned
Counsel further argued that since the Objects and Reasons appended to
the U.P. Amendment Act were clear so as to save the scheme which were
affected by the declaration in Radhey Shyam’s case (cited supra) such
context had to be kept in mind while interpreting the terms. In Radhey
Shyam’s case (cited supra) admittedly the notifications under Sections
4(1) and 6(2) were published simultaneously in the Gazette clearly
implying that the declaration under Section 6(1) was “made” before
Gazette publication of the notification under Section 4(1). If the object of
Amendment Act was to save the schemes affected by Radhey Shyam’s
case (cited supra), which is clear also from the language of Section 3 of
the Amendment Act, then by accepting the plain meaning, the UP
Amendment Act would be rendered redundant and, therefore, such
interpretation has to be avoided. Learned Counsel, relying on various
reported decisions like D. Saibaba v. Bar Council of India & Anr.
reported in 2003 (6) SCC 186, Union of India v. Hansoli Devi & Ors.
reported in 2002 (7) SCC 273, Prakash Kumar @ Prakash Bhutto v.
State of Gujarat reported in 2005 (2) SCC 409, High Court of Gujarat &
Anr. v. Gujarat Kisan Mazdoor Panchayat & Ors. reported in 2003 (4)
SCC 712, Padmausundara Rao (Dead)& Ors. v. State of Tamil Nadu &
Ors. reported in 2002 (3) SCC 533, Smt. Meera Gupta v. State of West
Bengal & Ors. reported in 1992 (2) SCC 494, M.V. Javali v. Mahajan
2Borewell & Co. & Ors. reported in 1997 (8) SCC 72 stressed upon the
purposive interpretation or, as the case may be, contextual interpretation
and to avoid the literal construction rule. He relied on a few other cases
like State of Tamil Nadu v. Kodai Kanal reported in 1986 (3) SCC 91,
Union of India & Ors. v. Filip Tiago De Gama of Vedem Vasco De
Gama reported in 1990 (1) SCC 277 and Tirath Singh v. Bachittar Singh
& Ors. reported in AIR 1955 SC 830. The Learned Counsel contended
that it was the duty of the Court to reshape the provisions, if need be, by
adding or deleting words to make the provisions effective tools to achieve
legislative objective and the Courts could not sit with folded hands blaming
the draftsmen. As regards the concerned words appearing in the UP
Amendment Act, the Learned Counsel suggested that while interpreting,
the phrase “may be made” should be read as “may be published in the
Gazette”.
21. As regards the further arguments on merits, Learned Senior Counsel
and, more particularly, the Learned Senior Counsel appearing on behalf of
the LDA pointed out that the challenge to the land acquisitions on merits
could not survive, particularly, in view of the fact that in all the land
acquisitions, possessions were already taken and the awards were already
passed. Both the Learned Counsel pointed out that in case of Ujariyaon
Housing Scheme Part-III, the Government had shown its bona fides by
allowing the notifications therein to lapse and thereby, the interests of the
3land holders covered in Ujariyaon Housing Scheme Part-III were
safeguarded, particularly, because that scheme had not been completed.
However, Ujariyaon Housing Scheme Part-II was long back completed and
could not be rejuvenated now, finding fault with the process of land
acquisition covered between Section 4 and Section 18 thereof. Learned
Counsel further pointed out that the delay in filing the writ petitions is also
liable to be taken into account since it is likely to cause prejudice to those
for whom the schemes were framed. As regards the urgency clause,
Learned Counsel urged that the land was very urgently required for urban
housing and after the acquisition there has been large scale development
and utilization on the acquired land and thousands of constructions have
been made and the schemes have been evolved leading to allotments to
third parties. Now at this stage, if the notifications were to be quashed it
would seriously prejudice the interest of the large number of people and
the High Court was right in dismissing the Writ Petitions on this ground.
The Learned Counsel further argued that in this case it must be noted that
there are no allegations of mala fides or any evidence in support of it.
Relying on a judgment in State of U.P. V. Pista Devi reported in 1986 (4)
SCC 251 the Senior Counsel pointed out that judicial notice has been
taken by the High Court of the fact that the housing development and
planned developments are matters of great urgency and obviate Section
5A enquiry. In short, the argument was that the housing development was
itself in urgency justifying the invocation of the urgency clause. It was then
3pointed out by the Learned Senior Counsel that the High Court had looked
into the record and found that there was sufficient material before the State
Government so as to invoke the urgency clause. It was also urged that
there was no discrimination in between Ujariyaon Part-II Scheme and
Ujariyaon Part- III Scheme as the factual situation was different. It was
further argued that the argument pressed on Section 17 (3A) i.e. non-
payment of compensation before taking possession cannot be held fatal to
the acquisition as the Land Acquisition Act does not so provide, though it
has so provided in case of Section 11 and Section 11A read with Section
23 (1A) of the Land Acquisition Act. Besides, the use of word “shall” in
Section 17 (3A) is directory and not mandatory as held in S.P. Jain v.
State of U.P. reported in 1993 (4) SCC 369, Nasiruddin & Ors. v. Sita
Ram Agrawal reported in 2003 (2) SCC 577, State of U.P. v.
Manbodhan Lal Srivastava reported in 1957 SCR 533. It was also
pointed out that the rulings relied on by the appellants covering this aspect,
namely, Hindustan Petroleum Corporation Ltd. v. Darius Shapur
Chenai & Ors. reported in 2005 (7) SCC 627 and Union of India & Ors.
v. Mukesh Hans reported in 2004 (8) SCC 14 were not applicable and
were distinct.
22. The appeals were also opposed by respondent No. 9 Avadh School
who supported the arguments on behalf of the State of Uttar Pradesh and
LDA. The respondent No.9 Avadh School pointed out that the land was
3granted to it by LDA for 99 years dated 01.12.1995 whereas the Writ
Petition challenging the same bearing No. 2220 (L/A)/1996 from which the
Civil Appeal No. 2650/1998 arose was filed only later on, in the year 1996.
It was pointed out that the respondent-Avadh School had already paid the
entire amount due to the LDA. It was also pointed out that the total
constructed area on the land is 26,000 square feet. It was urged that
considering the laudable objects of the scheme, the school was developed
and further considering its progress in the matter of infrastructure and the
standard of education, it would be too late to cancel the acquisition of land
a portion of which was allegedly allotted by the LDA.
23. Learned Counsel on behalf of LDA referred to the history of case law
and reiterated upon the validity of the UP Act No.5 of 1991. The Learned
Counsel also reiterated that the declaration under Section 6 (1) was
different from a published declaration. The contention, therefore, was that
considering the scheme of the Act, the declaration referred to in Section 6
is public or notified declaration. Taking that clue, it is argued that there will
be no difficulty if Sections 2 and 3 of the Validating Act are properly
understood. It was argued that the Validating Act removes the defect
pointed out in the case of Radhey Shyam (cited supra) and also the
validating provisions and, therefore, it is not a case of simplicitor overruling
of the judgment of the Supreme Court.
3
24. Learned Counsel for LDA also opposed reference to Larger Bench.
It was further pointed that since the schemes of Ghaziabad Development
Authority(GDA) and Meerut Development Authority(MDA) were already
upheld, the dispute in Ujariyaon Part-II scheme of LDA involved only 150
bighas whereas the notification pursuant to Ujariyaon Part-II Scheme
involved 1776 acres of land and barring the appellants, everybody had
accepted this scheme. Learned Counsel seriously disputed the claim in
Tika Ram’s case and contended that the landowners had already accepted
the compensation. In case of Pratap Sahakari Grih Nirman Samiti Ltd., it
was pointed out that the sale agreement in that case was that there was no
passing of consideration and even transfers were subsequent to Section 4
notification. Therefore, it was contended that the sale deed and the
agreement of sale were created to take advantage of the policy decision of
the State for giving back 25 per cent of the developed land to the Society
for its members. The bona fides of the Pratap Sahakari Grih Nirman
Samiti Ltd. were, therefore, seriously questioned by the Counsel. It was
also pointed out that the land involved in this case was already taken over
in the year 1985 and the same also stood utilized inasmuch as the whole
township had come up thereupon. Learned Counsel also relied on the
principle of staire decisis insofar as the validity of the UP Amendment Act
is concerned.
3
25. Learned Counsel further argued that there was no question of future
operation of the proviso as it was not concerned in this case. It was
pointed out that only two appeals of Ujariyaon Part-III Scheme were
concerned, with that question. However, in that case the notification was
published in the year 1991 and the Section 6 declaration was signed and
published in the year 1992. Therefore, there was no question of
simultaneous publication and, therefore, the issue of reference to the
Larger Bench was a non-issue and could not be gone into. It is pointed out
that the case of Meerut Development Authority (cited supra) was the
complete answer to the validation aspect as that issue had arisen directly.
It was further argued that there was no question of discriminating between
the Ujariyaon Part-II Scheme and Part-III Scheme, and, therefore, there
was no question of breach of Article 14 of the Constitution of India. It was
argued that in Ujariyaon Part-II Scheme, the award was made by the
Collector within the time prescribed, so there was no question of
discrimination between Ujariyaon Part-II and Part-III Schemes where the
award was not made within time. Therefore, it was lapsed and hence,
there was necessity of a fresh notification. As regards the question of
validity of Section 17 of the Act, it was mainly in Tika Ram’s appeal, it was
pointed out by Shri Qamar Ahmad, Learned Counsel that the reference to
the decision in Anwar Ali Sarkar v. State of U.P. reported in AIR 1952
SC 75 and State of Punjab v. Gurdial Singh (cited supra) was not
called for. In support of his argument Shri Dwivedi pointed out that Anwar
3Ali Sarkar’s case (cited supra) was distinguished in the later decisions of
Kathi Ranning Rawat v. State of Saurashtra reported in 1952 SCR 435
and Kedar Nath Bajoria v. State of West Bengal reported in 1953 SCR
30. It was pointed out that it was now crystallized law that if the
Legislature indicates the policy which inspired it and the object which it
seeks to attain then it can leave selective application of the law to be made
by the Executive Authority. Learned Counsel relied on R.K. Dalmia v.
S.R. Tendolkar reported in 1959 SCR 279 and In re: Special Courts
Bills, 1978 reported in 1979 (1) SCC 380. It was pointed out that the
criteria of “urgency” and “emergency” in the instant case have been
prescribed in the context of the exercise of power of eminent domain and
this power under the Constitution of India can be exercised only for public
purpose.
26. Learned Counsel argued that the process of acquisition begins only
when there is a public purpose and in such situation the effectuation of
public purpose does not brook any delay and requires quick
implementation, then alone the power under Section 17 (1) read with
Section 17 (4) can be exercised. The Learned Counsel firmly admits that
the criterion of “emergency” is still narrower category and there is sufficient
guideline in sub-Section (2) of Section 17. Therefore, the Counsel argues
that the true criteria being clear guidelines, they are not arbitrary. It was
further argued that there is no discretion in the matter of applied urgency
3clause to these acquisitions in question. Carrying the same argument
further, Learned Counsel firmly admitted that Section 5A is a protection to
the land acquisition and should not be lightly dispensed with. He also
admitted that there are cases where it was held that the mere existence of
urgency is not enough and State Government must independently apply its
mind to the need of dispensing with Section 5A enquiry. Further it is
pointed out that the High Court had considered this aspect in details and
recorded the finding that the land was acquired for planning and
development of housing accommodations. It was pointed out that the High
Court had also looked into the records and it found that there was sufficient
material for forming opinion that the land was needed urgently for
developing a new township known as Gomti Nagar. Learned Counsel also
pointed out to the finding of the High Court to the effect that the township
had already come into the existence and the houses were allotted to
thousands of people.
27. Relying on Keshav Das v. State of U.P. reported in 1995 (6) SCC
240, Learned Counsel urged that it has been held in the above ruling that
where the possession of the land was already taken during the acquisition
process and construction had been made and completed, the question of
urgency and exercise of duty under Section 17 (4) of the Act could not be
raised at a belated stage. Therefore, Learned Counsel insisted that the
situation is no different in the present case. Further relying on Aditya
3Bhagat v. State of Bihar reported in 1974 (2) SCC 501 and Om Prakash
v. State of U.P. reported in 1998 (6) SCC 1, Learned Counsel urged that
as compared to the total acquisition, the appellants’ land holding is limited
to only 150 bighas of land and in such circumstances the Court should not
block the acquisition. As regards the question of non-payment of
compensation under Section 17 (3) and (3A) of the Act, Learned Counsel
pointed out that the documents filed in support of their plea were never
filed before the High Court whereas this Writ Petition was pending for as
long as 13 years and even after filing the special leave petition, it was
pending for about 10 years. The documents came to be filed only after 8
years. Since the document involved question of fact, applications made in
this behalf, namely, I.A. Nos. 4-5 of 2006, were liable to be rejected. It was
pointed out that the documents filed along with the said I.As. were not
authenticated and verified by the appellant. The sources from which the
documents emanated were also not indicated. It was further pointed out
that sub-Section (3) of Section 3(3A) of Section 17 are not attracted to a
case where the power under Section 17 (4) has been exercised and
Section 5A has been dispensed with. It is again pointed out that Section
17 (3) and (3A) do not provide consequences of non-tendering and non-
payment of estimated compensation in terms of the said provision and the
Act does not say that the if possession and development have been taken
and the development work has been done without compliance of the
provisions then the taking of possession and the work done would become
3illegal. Learned Counsel further pointed out that all that it provided for was
the payment of interest at the rate of 9 per cent per annum on the amount
of compensation where compensation is not paid or deposited on or before
taking possession. In support of this argument the Counsel relied on S.P.
Jain v. State of U.P. reported in 1993 (4) SCC 369 and State of
Maharashtra v. Manubhai Pragaji Vashi & Ors. reported in 1996 (3)
SCC 1.
28. On the basis of these rival claims we shall now proceed to decide
the issues raised in this appeal, which are as follows.
I. Constitutional Validity of Amendment Act 5/1991
29. The basic issue raised is regarding the Constitutional validity of the
Land Acquisition Act (Amendment Act No. 5 of 1991) (hereinafter called,
“the Amending Act”). In this case the notification under Section 4 read with
Section 17 (4), as it stood then, was made on 04.12.1984. This notification
was published in the Gazette on 08.12.1984. It is claimed that the
declaration under Section 6 of the Act was made on 04.12.1984 and the
said declaration was published in the Gazette on 08.12.1984. It was
found that simultaneous notification under Sections 4 and 6 of the Act
could not be made and, therefore, the acquisitions were bad, as held in
Kashmira Singh Vs. State of U.P. reported in AIR 1987 Allahabad 113
3(II/1). Kashmira Singh’s judgment was upheld by this Court. It was,
therefore, that an Ordinance came to be passed on 27.12.1989 by U.P. Act
No. 32 of 1990 which ultimately became an Act on 27.02.1991 being UP
Act No.5 of 1991. The Statement of Objects and Reasons made reference
to the aforementioned judgment in the Kashmira Singh’s case (cited
supra) and provided that in large number of cases, declarations under
Sections 6 were made simultaneously with publication of notification under
Section 4 and the said proceedings were likely to be held void and,
therefore, in order to save the scheme, it was decided to amend the Act for
validating the proceedings in respect of the notification under Section 4
publication on or after 24.09.1984 but before 11.01.1989. The amendment
of Section 17 was brought on the legal anvil by way of a proviso to sub-
section (4) thereof which ran as under:
“provided that where in case of any land notification
under Section 4(1) has been published in the official
Gazette on or after 24.09.1984 but before 11.01.1989
and the appropriate Government has under this sub-
Section direction that proviso of Section 5A was not
applied, a declaration under Section 6 in respect of the
land may be made either simultaneously at a time after
the publication in the official Gazette of the notification
under Section 4(1)”30. The first objection which was raised by Shri Trivedi, Learned Senior
Counsel for the appellants, as well as, the other Learned Counsel was that
it was merely to overrule the decision of this Court in the aforementioned
case of Kashmira Singh (cited supra) or, as the case may be, State of
4U.P. v. Radhey Shyam Nigam (cited supra) which matter was also
disposed of along with Kashmira Singh’s case (cited supra) and,
therefore, the State Legislature could not do so. This argument is
completely answered in Meerut Development Authority Vs. Satbir
Singh reported in 1996 (11) SCC 462. This Court was considering this
very proviso of Section 17 (4) inserted by Land Acquisition [U.P.
Amendment and Validation Act, 1991 [UP Act No. 5 of 1991] and relying
upon the judgment reported as GDA Vs. Jan Kalyan Samiti, Sheopuri
reported in 1996 (2) SCC 365, the Court took the view in paragraph 10 that
when this Court had declared a particular statute to be invalid, the
Legislature had no power to overrule the judgment. However, it has the
power to suitably amend the law by use of proper phraseology removing
the defects pointed out by the Court and by amending the law inconsistent
with the law declared by the Court so that the defects which were pointed
out were never on statute for enforcement of law. Such an exercise of
power to amend a statute is not an incursion on the judicial power of the
Court but as a statutory exercise on the constituent power to suitably
amend the law and to validate the actions which have been declared to be
invalid. The Court had specifically referred to the aforementioned
judgment of State of UP. v. Radhey Shyam Nigam (cited supra) as also
Somwanti & Ors. v. State of Punjab reported in 1963 (2) SCR 775. The
Court also referred to the judgment reported as Indian Aluminium Co. 7
Ors. v. State of Kerala & Ors. reported in 1996 (7) SCC 637 and referred
4to the nine principles of legislation referred to in this case, where principle
Nos. 8 and 9 ran thus:
“[8] In exercising legislative power the Legislature by mere
declaration, without anything more, cannot directly
overrule, revise or override a judicial decision. It can
render judicial decision ineffective by enacting valid law
on the topic within its legislative field fundamentally
altering or changing its character retrospectively. The
changed or altered conditions are such that the previous
decision would not have been rendered by the Court, if
those conditions had existed at the time of declaring the
law as invalid. It is also empowered to give effect to
retrospective legislation with a deeming date or with
effect from a particular date. The Legislature can change
the character of the tax or duty form impermissible to
permissible tax but the tax or levy should answer such
character and the Legislature is competent to recover
the invalid tax validating such a tax or removing the
invalid base for recovery from the subject or render the
recovery from the State ineffectual. It is competent for
the legislature to enact the law with retrospective effect
and authorize its agencies to levy and collect the tax on
that basis, make the imposition of levy collected and
recovery of the tax made valid, notwithstanding the
declaration by the Court or the direction given for
recovery thereof.[9] The consistent thread that runs through all the decisions
of this Court is that the legislature cannot directly
overrule the decision or make a direction as not binding
on it but has power to make the decision ineffective by
removing the base on which the decision was rendered,
consistent with the law of the Constitution and the
legislature must have competence to do the same.”31. As regards the proviso in question, the Court firstly observed in
paragraph 13 and 14 as under:
“13. It is not in dispute that the State Amendment Act 5 of
1991 was enacted and reserved for consideration of the
4President and received the assent of the President on
26.02.1991 and the Act was published in the Gazette n
27.02.1991. It is to be seen that as regards
simultaneous publication of the notification and the
declaration in respect of acquisition of the land for public
purpose exercising the power of eminent domain in
certain situations where possession was needed
urgently, depending upon the local needs and the
urgency, Government requires such power.Consequently, the State Legislature thought it
appropriate that despite the enactment of the
Amendment Act 68 of 1984 amending Section 17(4), the
State needed further amendment. Resultantly, the UP
Amendment Act 5 of 1991 came to be made and it was
given retrospective effect from the date the Amendment
Act 68 of 1984 has come into force, i.e. 24.09.1984.14. It is true that the proviso was not happily worded. But a
reading of it would clearly give us an indication that the
proviso to sub-Section (4) introduced by Section 2 of the
Amendment Act 5 of 1991 would deal with both the
situations, namely, the notifications published on or after
24.09.1984 but before 11.01.1989 but also the
declaration to be simultaneously published subsequent
thereto. The literal interpretation sought to be put up by
Shri Pradeep Misra would defeat the legislative object.
Therefore, ironing out the creases we are of the view
that the proviso applies not only to the notifications and
declarations simultaneously published after the date of
coming into force of the Amendment Act 68 of 1984 but
also to the future declarations as well. Thus, it could be
seen that the proviso would operate prospectively and
retrospectively from 24.04.1984 (sic 24.9.1984) applying
to the previous notifications and declarations but also to
the notification and declaration to be published
subsequently.”Further in paragraph 16, the Court held:
“16. It is seen that Section 3 of the Amending Act No.5 of
1991 seeks to validate the illegal declarations made
simultaneously with the publication of Section 4
notification and in some cases even prior to the
publication of Section 4 notification; it also seeks to
4validate certain acquisitions envisaged therein. This
validation is not illegal.”32. In the same paragraph the Court found that the amendment was not
illegal merely because it was brought during the pendency of matter before
this Court. The Court also did not find anything wrong with the
retrospective operation of the Amendment Act. The Court further in
paragraph 19 observed:
“It is seen that where large extent of land was acquired mere
existence of some houses even if they were constructed may
be according to the rules or may not be according to the rules;
the exercise of power under Section 17 (4) by the Government
dispensing with the enquiry does not become invalid, when
there was urgency to take possession of the acquired land. It
is now settled legal position that the acquisition for planned
development of housing scheme is also an urgent purpose as
laid down by this Court in Aflatoon v. Lieutenant Governor of
Delhi, State of UP v. Pista Devi and in recent judgment of this
Court .in State of Tamil Nadu v. L. Krishnan. In the light of
settled legal position the acquisition for housing development
is an urgent purpose and exercise of the power under Section
17(4) dispensing with the enquiry under Section 5A is not
invalid.”33. In fact, this judgment is a complete answer to the questions raised
by Shri Trivedi, Learned Senior Counsel for the appellants. It holds
Section 3 to be valid and also holds that it had cured the defect. The
judgment also takes care of the contention that there was no necessity to
raise the urgency clause in these acquisitions and the exercise of raising
the urgency clause was not bona fide. Various other judgments were
referred by Shri Trivedi which we have included in the earlier part of the
4judgment like S.R. Bhagwat v. State of Mysore (cited supra), ITW
Signode India Ltd. v. Collector of Central Excise (cited supra),
Bakhtawar Trust v. M.D. Narayan & Ors. (cited supra), Madan Mohan
Pathak v. Union of India (cited supra), Indira Gandhi v. Raj Narayan
(cited supra), Virender Singh Hooda v. State of Haryana (cited
supra), I.N. Saxena v. State of Madhya Pradesh (cited supra) and
Janpad Sabha v. C.P. Syndicate (cited supra). In view of the specific
questions of this very act having been considered in Meerut Development
Authority’s case (cited supra) there would be no necessity to go into the
principles laid down in aforementioned cases in details here.
34. The next argument of Shri Trivedi, Learned Senior Counsel was that
the Amending Act did not remove the defect. In our opinion, the contention
is incorrect in view of the fact that this question was considered and
concluded in Meerut Development Authority’s case (cited supra). The
same applies to the further question challenging Section 3 of the
Amending Act wherein it is provided that the notification would not be
invalid on the ground that declaration under Section 6 of the Act was
published on the same day on which the notification under Section 4 of the
Act was published or on any other date prior to the date of publication of
notification under Section 4 of the Act. We have already pointed out that
this Section was also considered specifically in paragraph 7 where it is
4quoted. Further in paragraph 16 which we have quoted, this question is
specifically answered. We, therefore, need not dilate on that issue here.
35. At this juncture, we must note the argument raised in the present
case that the declaration under Section 6 of the Act was made on
04.12.1984 but was published on 08.12.1984. Therefore, in reality, the
proviso did not actually cure the defect. It is because of the wording used
to the effect “a declaration under Section 6 in respect of the land may be
made either simultaneously with or at any time after the publication in the
official Gazette of the notification under Section 4.”
36. Learned Counsel pointed out that in the present case, Section 6
declarations were made earlier to the publication of notification under
Section 4 of the Act. They further pointed out in proviso again the wording
used is “declaration may be made.” Learned Counsel, therefore, argued
that even reading Sections 2 and 3 of the Amending Act, the defect is not
cured as the proviso empowers to “make a declaration” and does not refer
to “notification of declaration” under Section 6(2). The Learned Counsel,
therefore, intended that it is not permissible to supply words (casus
omissus) to the proviso and, therefore, if the proviso is read as it is, then it
conflicts with the language of Section 3 which speaks not of declaration,
but “publication of Section 6 notification”. We do not think that the
contention is correct. In paragraph 16 of Meerut Development
4Authority’s case (cited supra), this Court considered Section 3 and
observed that:-
“it is seen that Section 3 of the Amending Act No.5 of 1991 seeks to
validate the illegal declarations made simultaneously with the
publication of Section 4 notification and in some cases even prior to
the publication of Section 4 notification.”Thus, even a situation where Section 6 declaration was made prior
to the publication of notification under Section 4, was held to be covered
and cured under Section 3, the validity of which was confirmed by this
Court. It would, therefore, be futile to argue that the Act did not cure the
defect and on that account, the provision is bad. In our opinion, added
proviso would have to be read along with and in the light of Section 3 of
the amending Act which clearly envisages a situation of the declaration
under Section 6 being published in the official Gazette on the same date
on which notification under Section 4 sub-section (1) of the principal Act
was published in official Gazette or on any day prior to the date of
publication of such notification as defined in Section 4 sub-section (1) of
the principal Act (emphasis supplied). Therefore, what is contemplated in
proviso is the “publication” of notification. Since this position was not
happily obtained in the proviso, the Court in MDA’s case (cited supra), in
paragraph 14, commented that proviso was not happily worded.
37. It must be noted here that in Somwanti’s case (cited supra), as
also in Mohd. Ali & Ors. Vs. State of U.P. & Ors. reported in 1998 (9)
4SCC 480 decided by 3 Judge Bench, identical situation was obtained on
the facts where there was a simultaneous publication of the Section 4
notification along with the publishing of Section 6 declaration. The Court
observed in Mohd. Ali’s case (cited supra):
“And, therefore, in relation to the State of U.P., it is now
settled law that when the State exercises power of imminent
domain and in exercise of the power under Section 17 (4)
dispensing with the enquiry under Section 5A to acquire the
land under Section 4 (1), the State is entitled to have the
notification under Section 4(1) and the declaration under
Section 6 simultaneously published so as to take further steps
as required under Section 9 of the Act…….”38. In that case, the notification under Section 4(1) of the Act was
published on 12.10.1974 whereas the declaration under Section 6 of the
Act was dated 28.09.1974. However, it was published along with Section
4 notification simultaneously. This being the factual situation the argument
regarding the prior declaration under Section 6 of the Act must fall to the
ground.
39. We are also of the opinion that the word `a declaration’ in proviso to
Section 17 (4) as inserted by the Validating Act would mean published or a
notified declaration under Section 6 (2) of the Act when it is read in the
light of Section 3 which refers to and validates not merely “a declaration”,
but the publication thereof in official Gazette. As such we do not find
anything wrong even if the declaration is prior in time and its notification is
4simultaneous with the notification under Section 4 of the Land Acquisition
Act. The two authorities cited above, namely, Ghaziabad Development
Authority’s case and Meerut Development Authority’s case have taken
the same view and we are in respectful agreement with the same.
40. It was then argued that Section 17 (4) of the Act as amended by the
Amending Act is ultra vires of the Articles 245 and 246 of the Constitution
as it nearly overrules the decision of this Court in State of UP v. Radhey
Shyam Nigam (cited supra). We have already dealt with this issue and
pointed out that this question was specifically dealt with in the two
judgments of Lucknow Development Authority and Meerut
Development Authority (cited supra). A very strong reliance was placed
on Madan Mohan Pathak v. Union of India reported in 1978 (2) SCC 50
by Shri Trivedi, Learned Senior Counsel for the appellants. In Meerut
Development Authority’s case (cited supra), the aforementioned
decision in Madan Mohan Pathak’s case (cited supra) has already been
considered in paragraph 11 of that judgment. Reliance was also placed on
the judgment in Bakhtawar Trust v. M.D. Narayan & Ors. reported in
2003 (5) SCC 298. Learned Counsel for the appellant relied on
paragraphs 14 to 16. In our opinion, paragraph 14 was completely against
the appellants wherein the State Legislature’s power to make retrospective
legislation and thereby validating the prior executive and legislative acts
retrospectively is recognized. Of course, the same has to be done only
4after curing the defects that led to the invalidation. We respectfully agree
with the propositions laid down in paragraphs 14, 15 and 16 thereof. In
Shri Prithvi Cotton Mills Ltd. Vs. Broach Borough Municipality
reported in 1969 (2) SCC 283, which is referred to in paragraph 16 of the
decision, it is stated that:-
“the Legislature may follow any one method or all of them and while
it does so, it may neutralize the effect of earlier decision of the Court
which becomes ineffective after the change of law”.It is further stated therein that the validity of the validating law,
therefore, depends upon whether the Legislature possesses the
competence which it claims over the subject matter and whether in making
the validation it removes the defect which the Courts had found in the
existing law. The Amending Act has clearly passed these tests. All the
relevant cases on this subject have been considered in this judgment.
Again in ITW Signode v. Collector of Central Excise reported in 2004 (3)
SCC 48 (cited supra), our attention was invited by Shri Trivedi to
paragraphs 44 to 46 of this decision which dealt with the question of
validity of validating Act and reference is made to Shri Prithvi Cotton
Mills Ltd. Vs. Broach Borough Municipality reported in 1969 (2) SCC
283 and M/s. Ujagar Prints and Others (II) Vs. Union of India and
Others reported in 1989 (3) SCC 488. There is nothing in these
paragraphs which would go counter to the expressions made in MDA’s
case (cited supra) or the finding that the present Amending Act has
5removed the defects pointed out in Radhey Shyam’s case (cited supra).
Of course, this case pertains to the taxing statutes. We do not find
anything contrary in the other decisions, namely, S.R. Bhagwat’s and
Indira Gandhi’s case (both cited supra) to which we have already made
reference. The other cases, namely, Virender Singh Hooda’s case, I.M.
Saxena’s case, and Janpad Sabha’s case (all cited supra) need not be
considered in view of what we have held above and further there is nothing
in those cases which would make us take another view of the matter. We,
therefore, do not agree with the contention raised by Shri Trivedi that
amended Section 17 (4) is ultra vires as it does not remove the defects
That question is closed by MDA’s case (cited supra). We also do not
agree that it merely nullifies the judgment in Radhey Shyam’s case (cited
supra).
41. It was further argued by Shri Trivedi that the Amending Act is ultra
vires the Article 300 A of the Constitution inasmuch as it deprives the
petitioner of higher compensation as may be admissible pursuant to the
fresh acquisition proceedings after 1987. Three cases have been relied
upon, namely, State of Gujarat & Anr. v. Raman Lal Keshav Lal Soni &
Ors. reported in 1983 (2) SCC 33, T.R. Kapoor & Ors. v. State of
Haryana & Ors. reported in 1986 Suppl. SCC 584 and Union of India v.
Tushar Rajan Mohanty reported in 1994 (5) SCC 450, wherein it is held
that the Legislature cannot create prospective or retrospective law so as to
5contravene the fundamental rights and that the law must satisfy the
requirements of the Constitution. We have absolutely no quarrel with that,
however, we fail to understand as to how it applies here. For establishing
their rights, the appellants would have to establish that the State
Government was required, in law, to make a fresh acquisition and could
not continue with the old one. We have already held that we are not
convinced by the argument that there was anything wrong with the old
proceedings which came to be validated by the Amending Act. We have
also found that the Amending Act was a perfectly valid legislation. In that
view, the challenge must fail.
42. The second decision relied upon is T.R. Kapoor & Ors. v. State of
Haryana & Ors. reported in 1986 Suppl. SCC 584. This case has been
relied upon for the contents in paragraphs 5 and 16 wherein it has been
held that benefits acquired under the existing rules cannot be taken away
by an amendment with retrospective effect. The present case is not such
a case. No benefits could be said to have been accrued in favour of the
appellants herein which have been taken away.
43. To the same effect, is the third decision reported as Union of India
v. Tushar Rajan Mohanty reported in 1994 (5) SCC 450. We do not think
that the case is relevant to the present issue.
5
44. The further argument by the Shri R.N. Trivedi, Learned Senior
Counsel appearing on behalf of the appellants herein was about the
validity of Section 3 of the Validating Act, providing that a notification would
not be invalid on a ground that a declaration under Section 6 of the Act
was published on the same date, on which the notification under Section 4
of the Act was published or any other day prior to the date of publication of
the notification under Section 4 of the Act. The contentions made in this
behalf have already been considered by us in the earlier part of the
judgment, where we held that the relevant date would be that of notification
under Section 4 of the Act or the notification of declaration under Section 6
of the Act and not the mere declaration under Section 6 of the Act. We
have already held with reference to the earlier decisions in this behalf that
this is not res integra and is partly covered in Mohd. Ali’s case (cited
supra). In Mohd. Ali’s case (cited supra), a reference was made to
Khadim Hussain’s case (cited supra), where it has been held that a
notification under Section 6(2) amounts to the evidence of declaration,
which is in the form of an order. The notification is the publication of such
declaration and the proof of its existence. Our attention was invited to
another reported decision of this Court in Sriniwas Ramnath Khatod Vs.
State of Maharashtra & Ors. reported in 2002(1) SCC 689 to the effect
that publication under Section 6(2) is a ministerial act. What is tried be
impressed is that the relevant date should only be the declaration and not
its publication. We have already dealt with this subject earlier, particularly
5relying on Mohd. Ali’s case (cited supra) and the MDA’s case (cited
supra). In view of the subsequent decisions, we are not in a position to
accept the argument that Section 3 itself, providing for the eventuality
contained therein, is in any way invalid. We, therefore, reject the
argument. The Learned Senior Counsel also referred to the decision in the
case of Eugenio Misquita & Ors. Vs. State of Goa & Ors. reported in
1997(8) SCC 47, in which reference was made to the decision in the case
of Krishi Utpadan Mandi Samiti Vs. Makrand Singh & Ors. reported in
1995(2) SCC 497. It must be immediately pointed out that both these
decisions would not be relevant to the present controversy, as in these
decisions, what was being considered was as to which would be the last
date under Section 6(2) of the Act for the purposes of Section 11A. The
controversy involved in the case of Eugenio Misquita & Ors. Vs. State of
Goa & Ors. (cited supra), as well as in the case of Krishi Utpadan
Mandi Samiti Vs. Makrand Singh & Ors. (cited supra) is entirely
different than the one involved in this matter. Those two cases in Eugenio
Misquita & Ors. Vs. State of Goa & Ors. (cited supra) and Krishi
Utpadan Mandi Samiti Vs. Makrand Singh & Ors. (cited supra) would
not be apposite.
45. A further reference was made by the Learned Senior Counsel for the
appellants to the decision in the case of Mohan Singh & Ors. Vs.
International Airport Authority of India & Ors. reported in 1997(9) SCC
5132 and S.H. Rangappa Vs. State of Karnataka & Anr. reported in
2002(1) SCC 538. In the second matter, a reference was made to the
larger Bench, as the Court was of the opinion that the view taken in two
decisions in Eugenio Misquita & Ors. Vs. State of Goa & Ors. (cited
supra) and Krishi Utpadan Mandi Samiti Vs. Makrand Singh & Ors.
(cited supra) was contrary to the decision in Khadim Hussain’s case
(cited supra). As regards the case of Mohan Singh & Ors. Vs.
International Airport Authority of India & Ors. (cited supra), the
Learned Senior Counsel relied on the observations made in paragraphs 13
and 16. In paragraph 13, it is stated there that:-
“What is needed is that there should be a gap of time of at
least a day between the publication of the notification under
Section 4(1) and of the declaration under Section 6(1).”Further in paragraph 16, it is observed that:-
“What is material is that the declaration under Section 6
should be published in the Gazette after the notification under
Section 4(1) was published, i.e., after a gap of at least one
day.”
It will be seen that a reference is made to the decision in the case of
Radhey Shyam Nigam (cited supra) in this paragraph, as also to the
simultaneous publication of notification under Section 4 and the declaration
under Section 6 of the Act. A reference was also made to Section 17(4),
as also Section 17(1) A. It is significant to note that later on when the
question of validity of the Validating Act came before this Court [which
validating provision and proviso to Section 17 (4) were not available in
5Mohan Singh’s case (cited supra), this Court upheld the validity of the
Validating Act, refuting the argument that the Validating Act was only for
the purpose of invalidating the decision in Radhey Shyam Nigam’s case
(cited supra). In our opinion, once this Court upheld the validity and once
we have also approved of the Constitutional validity of Validating Act, all
these questions must lose their relevance. We do not think that decision in
the case of Mohan Singh & Ors. Vs. International Airport Authority of
India & Ors. (cited supra) can be of any help to the appellants in the light
of the facts of the present case. Decision in S.H. Rangappa Vs. State of
Karnataka & Anr. reported in 2002(1) SCC 538, which is a decision after
the reference was made to the larger Bench was also referred before us by
the Learned Senior Counsel. The question, which fell for consideration in
that decision was whether the notification under Section 6(2) of the Act
should be published within the period prescribed by the proviso to Section
6(1) of the Act. The Court ultimately upheld the decision in Khadim
Hussain’s case (cited supra) and observed that in the decisions in
Eugenio Misquita & Ors. Vs. State of Goa & Ors. (cited supra) and
Krishi Utpadan Mandi Samiti Vs. Makrand Singh & Ors. (cited supra),
the binding decision of Khadim Hussain’s case (cited supra) was not
referred. It was also observed that even otherwise in both these cases,
declaration under Section 6 of the Act had been published within one year
of the notification under Section 4 of the Act and the question in form, in
which it has arisen in S.H. Rangappa’s case (cited supra), did not arise
5there. We would like to say the same thing in respect of the decision in the
case of S.H. Rangappa’s case (cited supra) that the question which we
have to consider in the present case, as also the facts, are entirely
different than the ones in that case. Once Section 3 of the Validating Act
came validly on the statute book, there will be no question of any further
consideration. The decision in the case of S.H. Rangappa’s case (cited
supra) turns essentially on the question of limitation. In the decision in
S.H. Rangappa’s case (cited supra), the law laid down in Khadim
Hussain’s case (cited supra) has been approved. Once we give the
interpretation that we have given to Section 3 and the proviso supplied by
Section 2, the things become clear. We are, therefore, of the clear opinion
that decision in S.H. Rangappa’s case (cited supra) also does not help
the appellants herein in view of the different factual scenario, as also
because the question of validity of the Validating Act is entirely different
from the question of limitation.
46. The Learned Senior Counsel further argued that we should make a
reference to the larger Bench and has formulated the questions as under:-
“1. Whether the proviso to Section 17(4) inserted by the
Amending Act cures the defect pointed out in Radhey
Shyam only for the period between 24.9.1984 and
11.1.1989?
5
2. Whether “declaration” mentioned in the aforesaid
proviso refers to it as understood by Section 6(1) or
Section 6(2)?
3. Whether the validation provision in Section 3 of the
Amending Act goes beyond the newly inserted proviso
inasmuch as:-
(h) it cures the defect of "publication" of the
declaration and not making of the
declaration.
(i) it validates publication of the declaration
under Section 6 prior and subsequent to
the date of the publication under Section
4(1) of the principal Act.
4. Whether the distinction between declaration simpliciter
in Section 6(1) and a published declaration under
Section 6(2), pointed out in Khadim Hussain (4 Judges’
decision) and followed by 3 Judges’ decision in
Rangappa’s Case was ignored in Meerut Development
Authority’s case?
5. It would appear that what is cured is not validated and
what it validates is not cured.
6. Whether in view of the admitted incapacity to offer,
tender and pay the compensation under sub-Section (3)
and (3A) of Section 17, the notification under Section
17(4) becomes void?
5
47. We do not think that there is any need to refer any of the questions
raised above in view of our observations in the earlier paragraphs, as the
schemes of Ghaziabad Development Authority and Meerut Development
Authority have already been upheld by this Court in the earlier decisions.
Secondly, the basic objective of the Validating Act was to protect the
scheme during the period 1984-89 only and subsequently, there has been
no such case of simultaneous notification in the State of Uttar Pradesh for
the last two decades, as stated by the Learned Senior Counsel appearing
on behalf of the LDA. Even in respect of Ujariyaon Housing Scheme Part-
III, the declaration under Section 6 of the Act is published much after the
publication of notification under Section 4 of the Act. Thirdly, as has been
done in MDA’s case (cited supra) we have held that Section 17 (4)
proviso has to be read together with and in the light of Section 3 of the
amending Act and not de hors of each other in view of the statement of
objects and reasons of that Act. It must be realized that this Court ironed
the creases in the proviso added to Section 17(4) in MDA’s case (cited
supra). Fourthly, in one of the appeals before us in Civil Appeal Nos.
2116-2118 (Tika Ram & Ors. Vs. The State of U.P. & Ors.) represented by
Shri Qamar Ahmad, Learned Counsel, the land owners have already
accepted the compensation, while in the matter of Civil Appeal No. 3415 of
1998 (Pratap Sahkari Grih Nirman Samiti Ltd. Vs. State of Uttar Pradesh &
Ors.), the title of Society itself has been found to be infirm and not
established as per the findings of the High Court. It is obvious that
5
registration of the Sale Deed in respect of the Society is subsequent to the
notification under Section 4 of the Act and, therefore, inconsequential. The
agreements in favour of that Society do not show that there was any
consideration passed. Again, the possession of the land has already been
taken, as claimed by the LDA, way back in the year 1985 for which there
are documents like Panchanama and the whole township has now come
up, persons have built their houses. As far as the sixth point of reference
is concerned, we would deal with the same separately in this judgment as
we do not agree with the proposition made in that point. Lastly, as held in
the cases of Mishri Lal (Dead) by L.Rs. Vs. Dhirendra Nath (Dead) by
L.Rs. reported in 1999 (4) SCC 11 and Central Board of Dawoodi Bohra
Community Vs. State of Maharashtra reported in 2005(2) SCC 673, the
principle of Stare Decisis would apply. In this case, their Lordships
referred to observations by Lord Reid and quoted seven principles
regarding the binding precedent. They are:
“(1) The freedom granted by the 1966 Practice Statement
ought to be exercised sparingly (the ‘use sparingly’
criterion) (Jones Vs. Secretary of State for Social
Services, 1972 AC 944, 966).
(2) A decision ought not to be overruled if to do so would
upset the legitimate expectations of people who have
entered into contracts or settlements or otherwise
regulated their affairs in reliance on the validity of that
decision (the ‘legitimate expectations’ criterion) (Ross
Smith Vs. Ross-Smith, 1963 AC 280, 303 and Indyka Vs.
Indyka, (1969) AC 33, 69).
6
(3) A decision concerning questions of construction of
statutes or other documents ought not to be overruled
except in rare and exceptional cases (the ‘construction’
criterion) (Jones case (supra))(4) (a) A decision ought not to be overruled if it would be
impracticable for the Lords to foresee the consequence of
departing from it (the ‘unforeseeable consequences’
criterion) (Steadman Vs. Steadman, 1976 AC 536, 542C).
(b) A decision ought not to be overruled if to do so would
involve a change that ought to be part of a comprehensive
reform of the law. Such changes are best done ‘by
legislation following on a wide survey of the whole field’
(the ‘need for comprehensive reform’ criterion) (Myers Vs.
DPP, 1965 AC 1001, 1022; Cassell & Co. Ltd. Vs.
Broome, 1972 AC 1027, 1086; Haughton Vs. Smith, 1975
AC 476, 500).
(5) In the interest of certainty, a decision ought not to be
overruled merely because the Law Lords consider that it
was wrongly decided. There must be some additional
reasons to justify such a step (the ‘precedent merely
wrong’ criterion) (Knuller Vs. DPP, 1973 AC 435, 455).
(6) A decision ought to be overruled if it causes such great
uncertainty in practice that the parties’ advisers are unable
to give any clear indication as to what the courts will hold
the law to be (the ‘rectification of uncertainty’ criterion),
(Jones case (supra)); Oldendorff (E.L.) & Co. GamBH Vs.
Tradax Export SA, 1974 AC 479, 533, 535: (1972) 3 All
ER 420)(7) A decision ought to be overruled if in relation to some
broad issue or principle it is not considered just or in
keeping with contemporary social conditions or modern
conceptions of public policy (the ‘unjust or outmoded’
criterion) (Jones case (supra)); Conway Vs. Rimmer,
(1968) AC 910, 938).”
48. We would immediately point out that principles at serial Nos. 2, 3, 4
(a) above as also principle No. 5 would apply to the present situation,
6
where, by upsetting the whole acquisition tremendous upheaval is likely to
follow. In that view we do not see any reason for making the reference as
argued by the Learned Counsel.
II Effect of alleged non-payment of 80% compensation under
Section 17 of the Principal Act
49. As has been observed in Para 47, we would not take up the above
topic. It was urged by the Learned Counsel that the State Government,
though it acquired the possession under Section 17 of the Act, did not pay
the 80% of compensation, as required under Section 17 of the Act and on
that account, the whole exercise was bad. We do not think that the
proposition is correct. It was tried to be established that the sufficient
funds were not available with the Government. We would prefer not to go
into the factual questions as the High Court has commented upon the
same in great details. The tenor of the argument is that Sections 17(3)
and 17(3A) of the Act are mandatory and the compensation ought to have
been offered, tendered and paid to the land owners before taking the
possession. Some documents were referred to in I.A. Nos. 4 and 5 of
2006 to show that LDA did not have the funds and it failed to provide
sufficient funds even as late as upto 2004. The further argument was that
even if it was assumed that the possession was taken on 21.5.1985, yet
6
the compensation was paid to the concerned persons much later and in
some cases, it was never paid.
50. Heavy reliance was placed on the documents which were filed
alongwith I.A. Nos. 4 and 5. This question in the precise form, was not
raised before the High Court. These documents were not the part of the
High Court record. Shri Dwivedi, Learned Senior Counsel for LDA further
argued that these documents could not be accepted at this late stage and
that the LDA did not have any opportunity to meet those documents, since
on I.A. Nos. 4 and 5, no notice has been issued by this Court. Since the
source, authentication and verification of those documents was not clear,
these documents were not liable to be considered. The Learned Senior
Counsel, however, submitted that the land acquisition proceedings on that
account cannot be faulted with and cannot be set at naught.
50A. The Learned Senior Counsel argued that in case where the
accelerated possession is required to be taken, Section 17(1) of the Act,
as also Section 17(2) of the Act would be attracted and such possession
can be taken immediately after the publication of Section 9(1). Section
17(3) of the Act provides that in every case under Section 17(1) and
Section 17(2) of the Act, the Collector shall offer compensation for
standing crops and trees or other damage at the time of taking possession.
The Learned Senior Counsel pointed out that the expression – “under
either of the Sub-Sections” shows that Sub-Section (3) is attracted only
6
when the possession is taken under Sub-Section (1) or (2) of Section 17 of
the Act. He, therefore, contended that where Section 5-A is dispensed
with under Section 17(4) of the Act, two Sub-Sections, i.e., (3) and (3A) of
Section 17 of the Act would not apply. The argument is clearly incorrect.
By this, the attempt is to dissect Sub-Section (4) in two parts, firstly, where
Sub-Section (1) and (2) are applicable and secondly, where the enquiry
under Section 5-A is dispensed with. That is not the import of the
language. Section 17 has to be read in full. It plainly reads that where the
possession is taken with the aid of Section 17(2), the compensation must
fall in advance as per the provisions of Section 3A. In fact, Section 3A has
been brought on the legislature with the sole purpose of providing a
compensation for the possession taken. That is why 80% of the estimated
compensation is to be paid because even thereafter, the award
proceedings would go on and the total compensation would be decided
upon. The attempt on the part of the Learned Senior Counsel to read that
the payment of compensation is not required where Section 5-A enquiry is
dispensed with, would be doing violence to the language, firstly, of Section
3A and secondly, of Sub-Section (4) itself. The clear legal position is that
the dispensation of Section 5-A enquiry is only and only to enable the
State Government to take possession under Sub-Section (1) and (2) of
Section 17. A third category cannot be created so as to avoid the payment
of compensation. The contention is, therefore, clearly wrong.
6
51. However, the question is as to what happens when such payment is
not made and the possession is taken. Can the whole acquisition be set at
naught? In our opinion, this contention on the part of the appellants is also
incorrect. If we find fault with the whole acquisition process on account of
the non-payment of the 80% of the compensation, then the further
question would be as to whether the estimation of 80% of compensation is
correct or not. A further controversy can then be raised by the landlords
that what was paid was not 80% and was short of 80% and, therefore, the
acquisition should be set at naught. Such extreme interpretation cannot be
afforded because indeed under Section 17 itself, the basic idea of avoiding
the enquiry under Section 5-A is in view of the urgent need on the part of
the State Government for the land to be acquired for any eventuality
discovered by either Sub-Section (1) or Sub-Section (2) of Section 17 of
the Act.
52. The only question that would remain is that of the estimation of the
compensation. In our considered view, even if the compensation is not
paid or is short of 80%, the acquisition would not suffer. One could
imagine the unreasonableness of the situation. Now suppose, there is
state of emergency as contemplated in Section 17(2) of the Act and the
compensation is not given, could the whole acquisition come to a naught?
It would entail serious consequences. This situation was considered,
firstly, in Satendra Prasad Jain & Ors. Vs. State of U.P. & Ors. reported
6
in 1993 (4) SCC 369. It was held therein that once the possession is taken
as a matter of fact, then the owner is divested of the title to the land. The
Court held that there was then no question of application of even Section
11-A. Commenting upon Section 11-A, it was held that that Section could
not be so construed as to leave the Government holding title of the land
without an obligation to determine the compensation, make an award and
pay to the owner the difference between the amount of the award and the
amount of the 80% of the estimated compensation. The three Judges’
Bench of the Court took the view that even where 80% of the estimated
compensation was not paid to the land owners, it did not mean that the
possession was taken illegally or that the land did not vest in the
Government. In short, this Court held that the proceedings of acquisition
are not affected by the non-payment of compensation. In that case, the
Krishi Utpadan Mandi Samiti, for which the possession was made, sought
to escape from the liability to make the payment. That was not allowed.
The Court, in para 17, held as under:-
“17. In the instant case, even that 80% of the estimated
compensation was not paid to the appellants although
Section 17(3-A) required that it should have been paid
before possession of the said land was taken but that
does not mean that the possession was taken illegally
or that the said land did not thereupon vest in the first
respondent. It is, at any rate, not open to the third
respondent, who, as the letter of the Special Land
Acquisition Officer dated June 27, 1990 shows, failed to
make the necessary monies available and who has
been in occupation of the said land ever since its
possession was taken, to urge that the possession was
6taken illegally and that, therefore, the said land has not
vested in the first respondent and the first respondent is
under no obligation to make an award.”
53. Further, in a judgment of this Court in Pratap & Anr. Vs. State of
Rajasthan & Ors. etc. etc. reported in 1996 (3) SCC 1, similar view was
reported. That was a case under the Rajasthan Urban Improvement Act,
1987, under which the acquisition was made using Section 17 of the Act.
The Court took the view that once the possession was taken under Section
17 of the Act, the Government could not withdrew from that position under
Section 18 and even the provisions of Section 11-A were not attracted.
That was of course a case where the award was not passed under Section
11-A after taking of the possession. A clear cut observation came to be
made in that behalf in Para 12, to the effect that the non-compliance with
Section 17 of the Act, insofar as, payment of compensation is concerned,
did not result in lapsing of the land acquisition proceedings. The law laid
down by this Court in Satendra Prasad Jain & Ors. Vs. State of U.P. &
Ors. (cited supra) was approved. The Court also relied on the decision in
P. Chinnanna Vs. State of A.P. reported in 1994 (5) SCC 486 and
Awadh Bihari Yadav Vs. State of Bihar reported in 1995 (6) SCC 31,
where similar view was taken regarding the land acquisition proceedings
not getting lapsed. The only result that may follow by the non-payment
would be the payment of interest, as contemplated in Section 34 and the
proviso added thereto by 1984 Act. In that view, we do not wish to further
refer the matter, as suggested by Shri Trivedi, Learned Senior Counsel
6
and Shri Qamar Ahmad, Learned Counsel for the appellants. Therefore,
even on the sixth question, there is no necessity of any reference.
III. Challenge under Article 14 of the Constitution of India
54. Learned Senior Counsel then urged that the provisions of the
amending Act and also the provisions of Land Acquisition Act like Section
17 (4) are invalid on the test of Article 14 of the Constitution. It is pointed
out by Shri Trivedi, Learned Senior Counsel that in GDA’s case (cited
supra) the impugned notification was held to be valid in view of the
amendment made to Section 17 (4) of the Act. However, there was no
challenge to the validity of Section 17 (4) of the Act in the said case.
Similarly, it was argued that in MDA v. Satbir Singh [1996 (11) SCC 462],
the Court had made observation in paragraph 8 that the validity of Section
17 (4) was upheld in GDA’s case (cited supra), whereas in fact it was not
tested in GDA’s case (cited supra) at all. It was further urged that the
validity of the Act was not tested with respect to its inconsistency with
Article 14 and Article 300A of the Constitution of India. In this behalf it was
argued by the Learned Counsel that there was an observation to the effect
in paragraph 14 that the proviso was not happily worded. But a reading of
it would clearly give us an indication that the proviso to sub-section (4)
introduced by Section 2 of the Amendment Act 5 of 1991 would deal
6
with both the situations ,namely, the notification published on or after
September 24, 1984 but before January 11, 1989 as also the declaration
to be simultaneously published subsequent thereto. It was further argued
that if we read the proviso in the manner that we have already done then it
would be a case of casus omissus being supplied by the Court. We have
already taken all these arguments into consideration. In view of the
interpretation given by us to Section 3 and the proviso and the necessity of
reading the two provisions in the light of each other, there would be no
occasion of supplying casus omissus and the argument in that behalf must
fail.
55. Insofar as the validity on the backdrop of Article 14 is concerned, it is
true that in paragraph 8 there has been an observation that the validity of
the proviso added by the State Legislature by way of an amendment to
Section 17 (4) of the Act has been upheld by the two Judge Bench
decision in GDA’s case (cited supra). However, when we see the rest of
the judgment it can be said that no such question was considered.
However, the fact remains that in GDA’s case (cited supra), the validity
was not questioned or doubted and the challenged Section was interpreted
and treated to be valid by the Court. When we see the further judgment in
MDA’s case (cited supra) in the further paragraphs, this Court has
approved of the whole amending Act reiterating on the decision in Indian
Aluminium Co. (cited supra). The Court has taken a full review of the
6
then existing law by way of the decision of this Court in State of Orissa
Vs. Gopal Chandrarath reported in 1995 (6) SCC 243, Bhubaneswar
Singh and Anr. Vs. Union of India and Ors. reported in 1994 (6) SCC 77
and Comorin Match Industries P. Ltd, Vs. State of Tamil Nadu reported
in 1996 (4) SCC 281. Thereafter, referring to Gouri Shankar Gauri and
Ors. Vs. State of U.P. and Ors. reported in 1994 (1) SCC 92, the Court
also referred to the provisions of Article 254 (2) and (3) and approved of
the whole Amending Act as such. In our opinion, reading paragraph 14 of
this judgment in its correct perspective would repel the argument of the
appellants that the provision is arbitrary in any manner or has the effect of
creating impermissible classification. In our opinion, the language of
paragraph 14 does not help the petitioners. If the petitioners in MDA’s
case (cited supra) did not specifically address the Court on the question
of Constitutional validity of the Amending Act (as is being claimed by the
appellants), we do not think it will be permissible for the petitioners to raise
this point which was admittedly not raised either in GDA’s case (cited
supra) or MDA’s case (cited supra). Petitioners would not be permitted
to take such a course [see Delhi Cloth and General Mills Co. Ltd. Vs.
Shambhu Nath Mukherji & Ors. reported in AIR 1978 SC 8]. We need
not go in that question since MDA’s case (cited supra) is a Larger Bench
decision.
7
56. However, this is apart from the fact that in our opinion there can be
no question of Section 17 (4) proviso or the provisions of the Amending Act
being invalid in any way. We, therefore, do not feel necessary to refer this
case on this issue to a Larger Bench, particularly, in respect of the validity
of the provisions vis-`-vis Article 14 of the Constitution. We do not find the
provisions in any manner arbitrary or making impermissible classifications
or suggesting invidious discrimination nor can the provisions in the
amending Act can be termed as “arbitrary” providing no guiding principles.
57. The Learned Senior Counsel appearing for the appellants had
heavily relied on paragraph 14 of the judgment in Meerut Development
Authority Vs. Satvir Singh & Ors. (cited supra). Basically we do not
accept the contention raised that the contents in paragraph 14 holding that
the provisions of the amending Act are not limited to the two dates
mentioned and can be applicable even subsequently, results in creation of
two classes and the possible discrimination. In our opinion, it will not be
necessary to go into that question as the present appeals pertaining to
Ujariyaon Housing Scheme Part-II are relating only to the period between
24.9.1984 and 11.1.1989. It is stated by the Learned Senior Counsel
appearing for the LDA that only two appeals pertain to Ujariyaon Housing
Scheme Part-III and even in that case, the notifications were published in
the year 1991 and the issue of simultaneous publication of notification
does not arise, as Section 6 declaration was signed and published in 1992.
7
Therefore, there will be no need to go into the academic question whether
Amending Act applies only to the period between 24.9.1984 and 11.1.1989
or even the subsequent period. Further, even if, as held in MDA’s Case
(cited supra), it applied to the subsequent period, it does not infringe
Article 14 for the reasons given by us earlier.
58. Shri Trivedi, Learned Senior Counsel for the appellants further
argued that there was invidious discrimination between the Ujariyaon
Housing Scheme Part-II and Ujariyaon Housing Scheme Part-III, inasmuch
as while the notification published on 8.12.1984 under Section 4 read with
Section 17(4) of the Act was allowed to proceed with the help of the
Validating Act, in case of Ujariyaon Housing Scheme Part-III, however, a
fresh notification was issued on 30.12.1991 and Section 6 declaration
came to be issued on 30.12.1992. Thus, while the notification in respect of
Ujariyaon Housing Scheme Part-II was validated, the notification in respect
of the Ujariyaon Housing Scheme Part-III was allowed to lapse and a fresh
notification was published, meaning thereby that persons coming under
Ujariyaon Housing Scheme Part-III, got the better deal (if they really did)
and higher compensation. This argument of Shri Trivedi was adopted by
Shri Qamar Ahmad. Though we have considered this argument in the
earlier part of the judgment we again reiterate that the argument is clearly
incorrect. The Validation Act did not confer any discretion on the State
Government to apply its provisions to a particular scheme and then issue
7
notifications. It was a one time exercise for validating a particular scheme
by amending the Act which has already been found to be valid in MDA’s
case (cited supra). Again Ujariyaon Housing Scheme Part-III did not
lapse because of the decision of the Government. Since the award was
not made within the time prescribed by the Section 11A of the Act, it had
the effect of lapsing the notifications. Therefore, the State Government
was left with no other way and had to issue a fresh notification. In
Ujariyaon Housing Scheme Part-II, the award was made by the Collector
within the time and, therefore, those notifications were not affected.
Therefore, the argument that there was invidious discrimination in between
the two schemes has to fail.
59. It was reiterated by Shri Trivedi, Learned Senior Counsel, as also,
Shri Qamar Ahmed, Learned Counsel that the question of constitutional
validity of the Act was not considered by the High Court as the Act was
held to be valid in GDA’s case (cited supra) and in MDA’s case (cited
supra). It was, however, urged that the question of Constitutional validity
was never considered in these cases. Reliance was placed on judgments
reported as Arnit Das v. State of Bihar reported in 2000 (5) SCC 488,
State of UP & Anr. v. Synthetics & Chemicals Ltd. & Anr. reported in
1991 (4) SCC 139, Nirmal Jeet Kaur v. State of Madhya Pradesh & Anr.
reported in 2004 (7) SCC 558, ICICI Bank & Anr. v. Municipal
Corporation of Greater Bombay & Ors. reported in 2005 (6) SCC 404,
7
A.R. Antulay v. R.S. Naik & Ors. reported in 1988 (2) SCC 602, Zee
Telefilms Ltd. & Anr. v. Union of India & Ors. reported in 2005 (4) SCC
649, P. Ramachandra Rao v. State of Karnataka reported in 2002 (4)
SCC 578, Nand Kishore v. State of Punjab reported in 1995 (6) SCC
614, Isabella Johnson v. M.A. Susai reported in 1991 (1) SCC 494. We
do not think that the law laid down in these cases would apply to the
present situation. In all these cases, it has been basically held that a
Supreme Court decision does not become a precedent unless a question
is directly raised and considered therein, so also it does not become a law
declared unless the question is actually decided upon. We need not take
stock of all these cases and we indeed have no quarrel with the
propositions settled therein. However, we may point out that, firstly, the
question of validity is settled in MDA’s case (cited supra). This is apart
from the fact that we are of the opinion that there is nothing wrong with the
Amending Act insofar as its Constitutional validity is concerned. We have
already rejected the argument that there was any discrimination between
Ujariyaon Part II and Ujariyaon Part III schemes. We are convinced with
the explanation given by the State Government as to why Ujariyaon Part III
scheme was left out of the consideration of validation. Indeed the
acquisition therein could not have been validated on account of the time
having lapsed for doing so. Once Sections 2 and 3 and the proviso are
read in the manner indicated in MDA’s case (cited supra) as also in the
light of observations made by us, no question remains of any
7
Constitutional invalidity. We are not at all impressed by the contention
raised that the Amending Act cannot pass the test of Article 14. We hold
accordingly.
60. Our attention was invited to R.K. Dalmia v. S.R. Tendolkar (cited
supra). In fact, according to us this judgment does not help the appellants
for assailing the Constitutional validity of the statute. In so far as the
Executive action is concerned, we do not think that there is any scope to
interfere in this matter. Shri Qamar Ahmed in his written arguments has
adopted the arguments of Shri Trivedi. In his written submissions he has
challenged the provisions of Sections 17 (1), 17 (1A), 17 (3A) and 17 (4A)
and proviso to Section 17 (4) as ultra vires to the Constitution. He has also
challenged the provisions of Section 2 of the UP Act No. 8 of 1974 as
violative and ultra vires to Section 3A, 3B, 4, 5, 6, 7, 8 of Land Acquisition
Act No.1 of 1894 as amended from time to time. In support of his
argument, Learned Counsel has relied on the law laid down in Anwar Ali
Sarkar’s case (cited supra). According to him, Sections 17(1), 17(1A),
17(3A) and 17(4) of the Act and Section 2 of the UP Act No. VIII of 1974,
as also the UP Act No. 5 of 1991 are violative of Articles 14, 19, 21, 39, 48,
48A and 300A for invidious discrimination. Learned Counsel also submits
that there are no guidelines for the exercise of power under Sections 17(1),
17(1A) and Section 17 (4), as the word “urgency” is too vague, uncertain
and elusive criteria to form the basis of a valid and reasonable
7
classification. Learned Counsel also referred to the case of Lachman Das
v. State of Bombay reported in AIR 1952 SC 235. A reference was also
made to Charanjit Lal Chowdhury v. Union of India & Ors. reported in
AIR 1951 SC 41. Learned Counsel has traced the whole case law
following Anwar Ali Sarkar’s case (cited supra) and has quoted
extensively from that case as also from Kathi Ranning Rawat v. State of
Saurashtra reported in AIR 1952 SC 123. We have already pointed out
that this group of cases would be of no help to the appellants, particularly,
because the fact situation and the controversy involved in the present
matter is entirely different. We do not agree with the Learned Counsel that
there is any classification, much less any impermissible classification and
any group has been treated favourably as against another group or that
the law has treated a group more favourably than the other, refusing equal
protection to such group. As regards the general principles from Anwar
Ali Sarkar’s case (cited supra) as also from State of Punjab v. Gurdial
Singh reported in AIR 1980 SC 319, we must point out that ultimately this
Court culled out the principle that if the Legislature indicates a policy which
inspires it and the object which it seeks to attain, then the selective
application of the law can be left to the discretion of the Executive authority
[see Kedar Nath Bajoria’s case reported in 1953 SCR 30]. Such law has
been approved in R.K. Dalmia’s case (cited supra) as also in In Re:
Special Courts Bill (cited supra).
7
61. There can be no dispute that the law must indicate the policy and
the object clearly while acquiring. Discretion upon the application of law
and the power under Section 17 of the Act of doing away with Section 5A
inquiry has to be exercised in a proper manner. There are cases where
this Court has not brooked any breach of provision under Section 17 of the
Act. However, we must say that there are clear guidelines provided under
Section 17(1) read with Section 4 for understanding the concepts of
urgency and emergency. In this behalf, we must hold that the criteria of
emergency as provided under Sub-Section (2) of Section 17 is separate
and distinct from the criteria of urgency. In our opinion, these two criteria
provide clear guidelines and cannot be held as arbitrary. In Krishi
Utpadan Mandi Samiti’s case and Pista Devi’s case (cited supra), this
Court has laid down that mere existence of urgency is not enough and the
Government must further consider the matters objectively as to the
dispensation with Section 5A permissible under that particular situation.
Section 17 of the Act has existed on the statute book for a long time and
on a number of occasions the applicable criteria of urgency and
emergency have been tested by the Courts on account of the Government
actions in that behalf being challenged. Wherever the Courts have found
that urgency did not exist in reality or the dispensation of Section 5A was
not considered separately such notifications have been struck down on a
number of occasions. However, we do not see any reasonable argument
having been made against the Constitutional validity. The validity of this
7
Section 17 of the Act has been upheld by the Allahabad High Court as also
the Gujarat High Court in Sarju Prasad Sahu v. State of Uttar Pradesh &
Ors. reported in AIR 1962 ALL 221 and Ram Sevak v. State of UP Ors.
reported in AIR 1963 All 24. The second judgment of Allahabad High
Court has been approved by the court in Ishwarlal Girdharlal Joshi etc.
v. State of Gujarat & Anr. reported in AIR 1968 SC 870. We, therefore,
do not accept the contention raised by Shri Qamar Ahmad, Learned
Counsel for the appellants that the power under Section 17(4) of the Act of
dispensing with the enquiry under Section 5-A is in the nature of unbridled
and uncanalised power in the hands of Executive to take possession,
invoking urgency clause. As discussed in the earlier cases by this Court
(cited above), it cannot be said that the Section suffers from any
constitutional invalidity on account of being arbitrary in the nature.
62. In fact, the reliance was placed on the decision in Suraj Mall Mohta
and Company Vs. A.V. Visvanatha Sastri and Anr. reported in AIR 1954
SC 545. That was a case under the tax jurisprudence, dealing with certain
Sections of the Taxation on Income (Investigation Commission) Act, 1947.
It was found to be invalid as it had provided different procedure for the tax
abettors. This Court had found that the procedure was more drastic for a
certain group. The provisions of Sub-Section (4) of Section 5 were found
to be discriminatory. The High Court has also dealt with this case.
Though there can be no dispute on the principles, we do not think that the
7
principle are applicable to the present controversy. We have already given
a reference of the case of Ishwarlal Girdharlal Joshi etc. Vs. State of
Gujarat (cited supra). The Learned Counsel appearing on behalf of the
respondents invited our attention to the findings recorded by the High
Court, with which we are satisfied. We must observe that merely because
the decision of the Government on question of urgency is not justiciable, it
does not mean that Section 17(4) of the Act is discriminatory. The High
Court has made a reference to the observation by this Court in Matajog
Dubey Vs. H.C. Bhari reported in AIR 1956 SC 44, holding that a
discretionary power is not necessarily a discriminatory power and that
abuse of such power is not to be easily assumed. Even at the cost of
repetition, we may mention the case of R.K. Dalmia v. S.R. Tendolkar
(cited supra) as a complete answer to the argument of Shri Qamar
Ahmad, Learned Counsel for the appellants. Ishwarlal’s case (cited
supra) is also a total answer to the argument that Sub-Section (1) and (4)
of Section 17 of the Act are unconstitutional. The High Court has correctly
held that Sub-Sections (1), (3A) and (4) of Section 17 of the Act do not
suffer from any unconstitutionality on account of the alleged breach of
Article 14 of the Constitution of India. Shri Qamar Ahmad, Learned
Counsel for the appellants also argued that before deciding to take the
possession under the various provisions of Section 17 of the Act, a person
is entitled to a notice. The High Court has correctly dealt with this
question. It firstly considered the law laid down in the cases of Kraipak
7
Vs. Union of India reported in AIR 1970 SC 150, Maneka Gandhi Vs.
Union of India reported in AIR 1978 SC 597 and Olga Tellis Vs. Bombay
Municipal Corporation reported in AIR 1986 SC 180 as also in Union of
India Vs. Tulsi Ram reported in AIR 1985 SC 1416 which were relied
upon by the High Court. The High Court was, undoubtedly, correct in
holding that there was no necessity of a notice since the satisfaction
required on the part of the Executive is a subject of satisfaction, which can
only be assailed on the ground that there was no sufficient material to
dispense with the enquiry or the order suffers from malice. We will deal
with the question as to whether there was an urgency and what is the
nature of urgency required. We, therefore, do not think that Sub-Sections
(1) (3A) and (4) of Section 17 of the Act suffer, as there is no notice
provided in those Sub-Sections before the possession is taken.
IV. Issue of urgency and application of Section 17 of the
Principal Act
63. At this juncture itself, we must also consider the argument that there
was no real urgency in this matter. It can not be ignored that this land was
urgently needed for housing. Large-scale development and utilization of
acquired land after the acquisition is apparent on the face of the record. A
number of houses have been constructed, third party interests were
created in whose favour the plots were allotted and the High Court has
8
also commented while disposing of the writ petitions that the quashing of
the notification at this stage will prejudice the interests of the people for
whom the schemes were evolved. While considering as to whether the
Government was justified in doing away with the inquiry under Section 5A,
it must be noted that there are no allegations of mala fides against the
authority. No evidence has been brought before the judgment and the
High Court has also commented on this. The housing development and
the planned developments have been held to be the matters of great
urgency by the court in Pista Devi’s case (cited supra). In the present
case we have seen the judgment of the High Court which has gone into
the records and has recorded categorical finding that there was sufficient
material before the State Government and the State Government has
objectively considered the issue of urgency. Even before this Court, there
were no allegations of mala fides. A notice can be taken of the fact that all
the lands which were acquired ultimately came to be utilized for the
scheme. We, therefore, reject the argument that there was no urgency to
justify dispensation of Section 5A inquiry by applying the urgency clause.
In a reported decision Kishan Das & Ors. v. State of UP & Ors. reported
in 1995 (6) SCC 240, this Court has taken a view that where the
acquisition has been completed by taking the possession of the land under
acquisition and the constructions have been made and completed, the
question of urgency and the exercise of power under Section 17(4) would
not arise. We must notice that acquisitions in this case are of 1984-1985
8
and two decades have passed thereafter. The whole township has come
up, the houses and the lands have been allotted, sold and re-sold, awards
have been passed and overwhelming majority of land owners have also
accepted the compensation, this includes even some of the appellants. In
such circumstances we do not think that the High Court was in any way
wrong in not interfering with the exercise of power under Section 17 (4) of
the Act. At any rate, after the considered findings on the factual questions
recorded by the High Court, we would not go into that question.
64. The High Court has taken a stock of the argument on behalf of the
respondents herein that there was material available in support of the
satisfaction on the part of the Executive to take possession under Section
17 of the Act. The High Court has relied on the decisions in Raja Anand
Braha Shah Vs. State of U.P. reported in AIR 1967 SC 1081, in Narayan
Vs. State of Maharashtra reported in AIR 1977 SC 183, in Kailashwati
Vs. State of U.P. reported in AIR 1978 All. 181, in Deepak Pahwa Vs. Lt.
Governor of Delhi reported in AIR 1984 SC 1721, as also in Pista Devi’s
case (cited supra) and Krishi Utpadan Mandi Samiti’s case (cited
supra). The High Court has correctly come to the conclusion that there
was all the justification for invoking the urgency clause and taking the
possession for the lands in question. We endorse the said finding of the
High Court.
8
Other contentions on merits
65. Apart from these contentions, both Shri Trivedi, Learned Senior
Counsel, as also Shri Qamar Ahmed, Learned Counsel again raised the
same questions of facts like the non-publication of Sections 4 and 6
notifications. Insofar as that is concerned, we have mentioned it only for
rejecting the contention. After the judgment of the High Court we will not
go into that question again being a pure question of fact. Similar is the
question raised about the land belonging to the cooperative society and
the release of the same. We do not think that that question needs to be
answered in the wake of the High Court’s judgment. The High Court
judgment is absolutely correct in that behalf. In our considered opinion,
even if the Government had taken a decision not to acquire the land
belonging to the cooperative society as far as possible, there is nothing
wrong if such lands were acquired. What is to be seen is the bona fides of
the Government behind the decision to acquire the lands. On that account
no fault can be found with the concerned notifications under Sections 4
and 6.
66. Similar contentions were raised regarding the possession. We do
not propose to go into the question of facts and questions relating to the
individual claims. We have noted that the respondents herein having
specifically claimed that the possession of the lands has already been
8
taken. Therefore, accepting that claim, as has been done by the High
Court, we would not go into those questions of fact.
67. To put the record straight, there is enough evidence in shape of the
stand taken by the LDA in its counter affidavit before the High Court, where
it was asserted that the possession was already taken. Even in the
present Civil Appeal, the same stand is reported with reference to a
particular date, i.e., 21.5.1985 that the possession was taken and there is
also a true copy of the Panchanama on record. Insofar as the Civil Appeal
Nos. 2116-2118 (Tika Ram & Ors. Vs. The State of U.P. & Ors.) are
concerned, it was urged by the appellants that in the affidavit of State of
U.P. before the High Court, the date of taking possession was mentioned
as 30.3.1986 and, therefore, it was urged that the possession could not
have been taken on 21.5.1985 as per record. The Learned Senior
Counsel for the LDA pointed out that this was incorrect and the correct
date of taking possession was only 21.5.1985, while the possession of
some plots was handed over to the LDA on 30.3.1986. This is apart from
the fact that in today’s context, when the whole township is standing, this
question goes to the backdrop. In the face of Panchanama, which is on
record, we would endorse the finding of the High Court that the possession
was taken on 21.5.1985.
68. Shri Dwivedi, Learned Senior Counsel appearing on behalf of the
LDA also found fault with the Sale Deed in favour of Pratap Sahkari Grih
8
Nirman Samiti Ltd., which is being represented by Shri Trivedi, Learned
Senior Counsel. It was urged that its claim was based on the Sale
agreement, which was executed one day before the publication of Section
4 Notification in the Gazette, i.e., 8.12.1984. It is admitted case that the
Sale Deed was registered on 22.1.1986, which is clearly a date beyond the
date of Section 4 notification. It is already held by this Court in U.P. Jal
Nigam Vs. Kalra Properties Ltd. reported in 1996 (3) SCC 124 and Star
Wire (India) Ltd. Vs. State of Haryana & Ors. reported in 1996 (11) SCC
698 that if any purchases of the land are made after the publication of
Section 4(1) notification, landlords in this case would not get any right or
entitlement to question the validity of the title of the State based on the
acquisition. Obviously, the claim of this society is on the basis of the
Agreement of Sale dated 7.4.1983. It was reported by the Learned Senior
Counsel that Shri Hukum Chand Gupta also expired on 27.7.1983 and
ultimately, the Sale Deed was executed on 7.12.1984. We do not want to
go into this question of fact, but we will certainly go with and endorse the
finding of the High Court in this behalf that the society had purchased the
land after the issuance of notification.
69. It was urged by Shri Trivedi, Learned Senior Counsel for the
appellants that there was a policy to give back 25% of the acquired land to
the cooperative societies. This was suggested on the basis of various
letters on record, suggesting that LDA was considering the revision. Shri
8
Dwivedi, Learned Senior Counsel for LDA pointed out that once the land
was acquired and the possession had been taken, Section 48 did not
apply. Besides, according to the Learned Senior Counsel, the policy
applied to the cooperative societies, who had land before the acquisition
process begins. This was obviously with the object to safeguard the
interests of the members of the society. The Learned Senior Counsel was
at pains to point out that there is no such disclosure as to who were the
members of the society. According to the Learned Senior Counsel, the
society was nothing, but a front piece set up for obtaining 25% of the land.
Therefore, the rent of the 25% of the land was not acceptable. It was also
pointed out that the Sale Agreement was also entered into a day before
the publication of the notification in the Gazette and the registration of the
Sale Deed was also done much after the notification was published and,
therefore, this policy, even if there is one, would not be applicable to the
society in question. We would not, therefore, accept that claim that Pratap
Sahkari Grih Nirman Samiti Ltd. should be given back 25% of the land
acquired, which is again not possible in view of the township having come
up in Gomti Nagar.
70. In view of what we have held above, we confirm the judgment of the
High Court and dismiss all the appeals being Civil Appeal Nos. 2650-2652
of 1998, 3162 of 1998, 3176 of 1998, 3415 of 1998, 3561 of 1998, 3597 of
1998, 3923 of 1998, 3939 of 1998, 3645 of 1998, 3691 of 1998, 5346 of
8
1998, 2116-2118 of 1999, 2139 of 1999, 2121 of 1999, 2113 of 1999 and
4995-4996 of 1998.
SLP (CIVIL) No. 23551/2009 (CC 1540/1999)
71. Delay condoned in SLP (Civil) No. 23551/2009 (CC 1540/1999).
The Special Leave Petition is dismissed in view of the above order.
72. In the circumstances, there would be no orders as to the costs.
………………………………..J.
(Tarun Chatterjee)
………………………………..J.
(V.S. Sirpurkar)
New Delhi;
September 09, 2009