TaxTMI 
TaxTMI 
2009 (9) TMI 713
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....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 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 Statio....
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....ion 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. 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, s....
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....lication 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 be 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 provision....
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....s 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 retrospective 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. ....
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.... 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 Authority 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 pri....
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.... Ahmad, first pointed out that the 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 un....
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....n Mohan Pathak Vs. Union of India reported in 1978 (2) SCC 50 5. Indira Gandhi Vs. Raj Narayan reported in 1975 Supp. SCC 1 6. Virender Singh Hooda Vs. State of Haryana reported in 2004(12) SCC 588 7. I.N. Saxena Vs. State of Madhya Pradesh reported in 1976(4) SCC 750 8. 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:- 1. State of Gujarat Vs. Ramanlal reported in 1983 (2) SCC 33 2. T.R. Kapur &Ors. Vs. State of Haryana reported in 1986 Supp. SCC 584 3. Union of India Vs. Tushar Ranjan Mohanty reported in 1994 (5) SCC 450 Apart 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 soug....
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....us cannot be supplied by the Court. 16. 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 large....
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....f 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 decisions 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 f....
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....gument 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 on 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 Amendm....
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....nding 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 a....
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....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. 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 appell....
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....ppeal, 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 Ali 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 t....
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....d 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 Ac....
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....ub- 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 U.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. Amend....
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....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 President 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 up....
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....ith 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 judgment like S.R. Bhagwat v. State of Mysore (cited supra), ITW Signode India Ltd. v....
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.... 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 Authority'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 ....
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....on is simultaneous 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....
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....rther 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 contravene 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 unde....
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.... 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 relying 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 b....
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....f 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 V....
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....n 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? 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 aft....
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....idity of that decision (the 'legitimate expectations' criterion) (Ross Smith Vs. Ross-Smith, 1963 AC 280, 303 and Indyka Vs. Indyka, (1969) AC 33, 69). (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 t....
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....e 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....
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....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 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 Sectio....
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....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 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 ....
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....ole amending Act reiterating on the decision in Indian Aluminium Co. (cited supra). The Court has taken a full review of the 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 p....
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....llants 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 notifications. It was a one ....
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....s 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 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....
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.... 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). 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....
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....hi 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. ....
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.... 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 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 a....
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....ding 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 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 incor....