AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
1996 (9) TMI 638
X X X X Extracts X X X X
X X X X Extracts X X X X
....hed on the ground that after the Amendment Act 68 of 1984 had come into force w.e.f. September 24,1984, the simultaneous publication of the declaration under Section 6 along with publication of notification under Section 4(1) was invalid in law. They relied upon judgment of this Court in State of U.P. and Ors. v. Radhey Shyam Nigam and Ors. etc. [1989]1SCR92 . The respondents filed cross appeals against the findings that were negatived by the High Court in respect of all the other five points. Thus these appeals by special leave. 4. Pending appeals, the Governor exercising the power under Article 213 of the Constitution issued the Ordinance No. 32 of 1990 and State Legislature enacted the Land Acquisition (U.P. Amendment and Validation) Act, 1991 (UP Act 5 1991) which came into force from December 28, 1990, introducing proviso to Section 17(4) of the Act and also by Section 3 thereof validated all the notifications and declarations issued under the Act prior to the date of the judgment of this Court in Radhey Shyam Nigam case (supra). The Ordinance came to be challenged by way of Writ Petition No. 153/96. Thus all the matters tagged are disposed of together. With a view to satis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cation 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 or 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 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. 8. The controversy is not longer res Integra. This Court in Ghaziabad Development Authority v. Jai Kalyan Samiti Sheopuri Ghaziabad and Anr. [1996]1SCR307 has considered the effect of the proviso introduced by the State Legislature by way of amendment to Section 17(4). The validity has been upheld by the two-Judge Bench of this Court. 9. Shri Pradeep Misra, learned Counsel for the respondents, contended that if the law is declared by this Court that simultaneous publication under Section 4(1) and declaration under Section 6 of the Act is invalid, the Legislature has no power to over-rule and nullify the jud....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to fulfil an egalitarian social order, the respective sovereign functionaries need free-play in their joints so that the march of social progress and order remain unimpeded. The smooth balance built with delicacy must always be maintained; (5) In its anxiety to safeguard judicial power, it is unnecessary to be over jealous and conjure up inclusion into the judicial preserve invalidating the valid law competently made; (6) The Court, there fore, need to carefully scan the law to find out; (a) whether the vice pointed out by the Court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the Legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part III of the Constitution; (7) The Court does not have the power to validate an invalid law or to legalise or to remove the norm of invalidation or provide a remedy. These are not judicial functions but the exclusive province of the Legislature. Therefore, they are not the encroachment on judicial power. (8) In exercising legislative power, the Legislature by mere declaration....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by this Court and thereby caused legislative repeal of the judicial decision or it has cured the defect pointed out by this Court so as to be in conformity with the law? In this behalf, it must be remembered on the facts in this case that acquisition is a concurrent subject vide Entry 42 in the List III of the Seventh Schedule to the Constitution on which both the Parliament as well as the State legislature have competence to enact the law suitable to the situation prevailing in the appropriate State. Article 254 of the Constitution deals with such an area. Clause (2) of Article 254 envisages that "Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by parliament, or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State". The scope thereof was elaborately considered by this Court in Gouri Shakar Gauri and Ors. v. State of U.P. and Ors. AIR 1994 SC 169 at 117-118 and it was held thus....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 retrospective effect from the date of the Amendment Act 68 of 1984 has come into force, i.e., September 24, 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 September 24, 1984 but before January 11, 1989 but also the declaration to be simultaneously published subsequent thereto. The literal in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the matters were not disposed of, the amendment was brought about to defuse the effect of the judgment. Therefore, the amendment is not valid in law. We find no force in the contention. 17. Government of Andhra Pradesh v. H.M.T [1975]2SCR384 was a case where pending appeals in this Court the Legislature has amended the Gram Panchayat Act and suitably defined 'house' which was found to be defective as declared by a judgment of A.P. High Court under appeal. Amendment was made to the Gram Panchayat Act. When the Validation Act was challenged, a bench of three judges of this Court had upheld the validity of the Amendment Act and held that the State Legislature has not overruled or set aside the judgment of the High Court. It has amended the definition of 'house' by substitution of a new Section 217 for the old section and it has provided that the new definition shall have retrospective effect notwithstanding anything contained in any judgment, decree or order of any court or other authority. In other words, it has removed the basis of the decisions rendered by the High Court so that the decisions would not have been given in the altered circumstances. The same ratio ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w of the High Court is not correct in law. We find no force in the contention. 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 rules or may not be according to rules, the exercise of the 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 acquisition for planned development of housing scheme is also urgent purpose as laid down by this Court in Aflatoon v. Lt. Governor of Delhi and Ors. [1975]1SCR802 and Smt. Pista Devi v. M.D.A. [1986]3SCR743 and in recent judgment of this Court in State of Tamil Nadu v. Krishnan [1996]1SCR708. In the light of the 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. 20. Mrs. Janani has further contended that since no developments have been undertaken and no plants have been prepared, the acquisition is bad in law. We find no force in the contention. Under the U.P. Urban Develop....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion under Section 6 should also be published. It is not in dispute that the State had in exercise of its power of eminent domain under Section 17(4) of the Act, dispensed with the enquiry under Section 5A. It is settled law that simultaneous publication of the notification under Section 4(1) and the declaration under Section 6 was valid in law prior to the coming into force of the Amendment Act 68 of 1984. It is also seen that in relation to the State of Uttar Pradesh, Land Acquisition (Amendment) Act 5 of 1991 has been brought into force w.e.f. February 17, 1991 and, therefore, in relation to the State of U.P. it is now settled law that when the State exercises the power of eminent domain and in exercise of the power under Section 17(4) dispensing with the enquiry under Section 5-A 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, i.e. issuance of the notice and taking possession thereof under Section 17(2) of the Act. Thereafter, the land stands vested in the State free from all encumbrances. In vie....