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2023 (2) TMI 1245

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....it Kumar Singh, AOR, Kamini Jaiswal, Rani Mishra, Advs. and Omanakuttan K.K., AOR JUDGMENT Krishna Murari, J. 1. These appeals are directed against the judgment and order dated 30.03.2018 passed by a Full Bench of the High Court of Judicature at Allahabad (hereinafter referred to as 'the High Court'), The reference to Full Bench came to be made under the following circumstances: 1.1. Writ Petition No. 61449 of 2009, Smt. Madhuri Srivasatava v. State of U.P. and Ors. (2016) 6 SCC OnLine AII 2832 along with other connected petitions were filed by certain landholders whose land was acquired by NOIDA challenging the decision of the Board of Directors of NOIDA dated 07.01.1998 as also the approval granted to the said resolution by the State Government dated 02.03.2009 whereby a distinction was carved out in the matter of payment of compensation by creating a classification between "Pushtaini" and "Gair-pushtaini" landholders. The 'Pushtaini' landholders whose lands were acquired, were given additional compensation @ Rs. 3 per sq. yard along with 15% as rehabilitation bonus on the compensation already awarded, as also the 10% area of the acquired land, whereas those w....

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....tself a much more powerful being, one which must be understood in the right historical context. 7. The word 'Pushtaini' is a Persian word and finds its origin from the word 'Pusht', which means 'back'. The said word has been historically used in the context of ancestry. Any possession, tale or legend, that has roots to a particular ancestry, to denote it's significance to the said ancestry, the word 'Pushtaini' is used. As is obvious, since the word 'Gair' which finds its origin in Urdu language means 'other than', thus, 'Gair-Pushtaini' would mean one which is not 'Pushtaini'. 8. What we find most interesting however, is that ancestry as a concept, especially before times of modern private property ownership, had remained to be a tool for inclusivity and not exclusion. In such a context, the use of the word "Pushtaini" by the Authority, to exclude compensation might be a historically inaccurate interpretation. While this is not consequential to the merits of the case, it is in our opinion a worthwhile observation, for law has to power to legitimize the meaning of words and can change the context in which a word ....

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....the said Writ Petitions came to be decided by the another Full Bench of the High Court titled as Gajraj v. State of U.P. (2011) SCC OnLine AII 1711. The High Court concluded that the urgency Clause was wrongly invoked, but saved the acquisition for the reason that much development had already taken place over the said land and the nature of land stands completely changed. The Full Bench further in order to compensate the landholders directed an additional compensation to be paid to the landholders at the rate of 64.70% of the already paid compensation and a further direction was issued to allot developed Abadi land to the extent of 10% of their acquired land, subject to a cap of Rs. 2,500/- square meter. The Full Bench never made any distinction between 'Pushtaini' and 'Gair-Pushtaini' farmers for payment of the additional compensation or allotment of land. The Full Bench also relying upon the decisions rendered in the case of Radheyshyam (Dead) through L.Rs. and Ors. v. State of U.P. and Ors. (2011) 5 SCC 553, Greater Noida Industrial Development Authority v. Devendra Kumar and Ors. (2011) 12 SCC 375, further held that merely because the farmers had received compen....

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....310 per square metre on account of Ex-gratia to the Ancestral Agriculturists of the land situate in 8 Villages. 15. The report of the Committee dated 25.10.2008 is being reproduced hereunder for a ready reference: ANNEXURE P-4 25.10.2008 Recommendation of the Committee constituted in connection with making consideration on the demands of bonus/ex-gratia/compensation enhancement at the enhanced rate in connection with the land of Village Ghodi Bachheda and other Villages as per Order No. 4/4/1/2008 - C.X. (1) Lucknow dated 4.09.2008 of the Government of Uttar Pradesh Following Committee has been constituted in connection with making consideration on these types of demands and bonus/ex-gratia/compensation enhancement at the enhanced rate in connection with the land of Village Ghodi Bachheda and other Villages vide Order No. 4/4/1/2008 C.X. (1) Lucknow dated 4.09.2008 of the Government of Uttar Pradesh: 1. Shri Thakur Jaibir Singh, Hon'ble Minister, Rural Engineering Service, Agricultural Foreign Trade and Agriculture Export Chairman 2. Chief Executive Officer, Greater Noida - Member 3. District Magistrate, Gautam Buddha Nagar - Member Coordinator Examined and perused....

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.... Land Record/la/2008 dated 13.03.2008, 1038/land-record/L.A./2008 dated 29.04.2008, 1055/land-record/LA/2008 dated 5.05.2008/1069/land-record/LA/2008 dated 9.05.2008, 1113, 1115/land-record/LA/2008 dated 06.06.08. Thereafter, by Order dated 10.05.2008 of the Chairman and Chief Executive Officer, Greater Noida, for examination of the demand of compensation enhancement raised by the Agriculturists, a Committee of District Magistrate, Gautam Buddha Nagar, Chief Executive Officer, Deputy Chief Executive Officer, Greater Noida was constituted and in its report dated 21.07.2008, recommendation was made to make consideration for additional amount @ Rs. 175-200 square metre to the Agriculturists of the land acquired in the Financial Years 2006-2007 of the Village Ghodi Bachheda including other Villages. Such directions were given while making perusal of the Recommendation of the Committee in the 72nd Meeting dated 11.08.2008 of the Authority Board, that while making calculation of the situation of its financial source and its management, the case be referred to the Government. Vide Order No. 4/4/1/2008 - C.X. (1) Lucknow dated 4.09.2008 of the Government of Uttar Pradesh, the above Committ....

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....on with the demands from the Villages in their meeting by the Committee. The agriculturist of the land acquired in the year of 2006-2007 of Village Ghodi Bachheda and including other Villages have collectively produced detailed and factual Memos including necessary records before the Committee and even grounds were also raised by the Agriculturists orally in support of their demand, wherein, main grounds are included, which are as under: 1. The farmers of questioned Villages have given value enhancement Memo on 2.04.2006, whereon, the Greater Noida Development Authority gave Assurance letter in written on 5.01.2007 after 10 days, that, after calling the rates of Tronica City and etc. in the GDA, till the last week of the February 2007, decision will be taken in connection with enhancing the compensation. In support of their statements copy of letter dated 5.01.2007 of the Deputy Chief Executive Officer, Greater Noida addressed to Ashok Pradhan, respected member, Lok Sabha and Sri Nawab Singh Nagar, is enclosed. 2. They had also revealed their demand in connection with compensation enhancement in the meeting of committee constituted under chairmanship of the Commissioner, Meerut....

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....gned by the then Deputy Chief Executive Officer, Greater Noida and consideration and consultation made on the Memos submitted on 5.01.2007 in the matter by the Villagers with Member of Parliament Shri Ashok Pradhan and the then MLA Shri Nawab Singh Nagar was also provided to the agriculturists, wherein, it is mentioned that this decision has been taken in connection with enhancing the compensation of the acquired land that after calling the rates of compensation of the land being acquired by the Ghaziabad Development Authority and the land of Tronica City of Housing Development Board, till the last week of February, decision will be taken in connection with enhancing the compensation. It is clear by it that the Agriculturists were raising demand of enhancing the compensation even in the month of February 2007, whereon, the Assurance was given at the Competent Level of Authority. The Committee constituted under chairmanship of the learned District Magistrate has revealed the facts in detail in its report dated 31.07.2008 on the above overall points raised by the Agriculturists. The Committee has perused the recommendation dated 21.07.2008 of the Committee constituted under the cha....

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....ural Engineering Service Agriculture Foreign Trade and Agriculture Export, Uttar Pradesh 16. Based on the aforesaid report, a decision was taken in the 74th Board Meeting of Greater Noida for payment of additional compensation/ex-gratia @ Rs. 310 per square metre only to the 'Pushtaini' farmers of 8 villages. 17. The Minutes of the 74th Board Meeting of the Greater Noida Authority dated 03.11.2008 are being reproduced hereunder: ANNEXURE P-5 S. No. 1 - For approval of minutes of 74th Board Meeting of the authority 74th Board meeting of Authority was held on 03.11.2008. Minutes of this meeting (enclosure), has been sent to the members of authority vide semi Government letter No. UMC/74th Board Meeting/2008/265 dated 3.11.2008. Minutes of the above meeting is being submitted herewith for approval of the Authority Board. S. No. 9 - In connection with demand of bonus/ex-gratia/compensation enhancement of the Agriculturists of the land of Village Ghodi Bachheda and Other Villagers acquired in the Financial Year 2006-2007 by Greater Noida The Agriculturists of the land of following Villagers, whose land was acquired in the financial year 2006 - 2007 by the Greater ....

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....f the land of Village Ghodi Bachheda and recommendation has been made to submit the matter with recommendation of the Committee before the Greater Noida Authority Board for necessary proceedings. The report dated 25.10.2008 of the Committee is enclosed and that it is a part of agenda. Overall Compensation Amount of Rs. 5522134695.00 (Rupees Five Arab fifty two crores twenty one lakhs thirty four thousand six hundred ninety five only), calculated @ Rs. 385 per square metre. applied at that time against the land measuring 1434.3207 of the above Villages acquired in the financial year 2006-2007, has already been sent to the learned Additional District Magistrate (L.A.). And as per letter No. 527/8 - VK BHL a dated 23.06.2008 received from the land acquisition officer, the amount of Rs. 5,27,56,68,568 (Five Arab Twenty seven crores, fifty six lakhs sixty eight thousand five hundred sixty eight only), which is 95.54%, has already been distributed among the concerned Agriculturists. As per the information received vide letter No. 833/Eight- A.D.O. (LA)/08 dated 21.10.2008 of the Additional Collector (L.A.), out of the questioned acquired land of the above Villages, the area measuring 1....

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....t value, and hence, any difference in the rate of compensation provided to any party is highly discriminatory and is violative of Article 14. III. Further, it has also been argued that merely by signing the agreement, the Appellants herein cannot be said to have waived their right to Appeal the compensation, especially since the fact that the ex-gratia payment granted to the Pushtaini landowners was awarded after the agreement was signed. IV. It has also been contended that the ex-gratia payment as a form of compensation does not exist in the Land Acquisition Act, and can only be interpreted as one of the reasons for payment within Section 23 of the Land Acquisition Act, and in such a scenario, the payment must be universally made to all parties. ARGUMENTS ADVANCED BY THE RESPONDENTS 21. The Ld. Counsel for the Respondents Contended that: I. The UP Land Acquisition Rules have been formed under the Land Acquisition Act, 1894. These Rules prescribe for method of compensation between the acquirer and the acquiree through an agreement. The Appellants, by way of an agreement, voluntarily accepted the compensation being granted to them. Further, while accepting the compensation, ....

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....ater Noida and Shri Ravindra Kumar Raizada, learned Counsel for the State of U.P./A.A.G., at great length. 24. At the outset, we would like to clarify that in the present appeals, we are only concerned with the legality and validity of action of G. Noida paying an enhanced compensation to the landholders by carving out an artificial class of 'Pushtaini' landholders from among the same class of landholders whose land was acquired by the same notification for the same purpose. There is no challenge to the validity of the acquisition itself as the same stands finally settled by this Court. Analysis Whether the Appellants are bound by the compensation as per the agreement under the Land Acquisition rules, and have waived off their right to seek enhanced compensation? 25. It has been vehemently submitted on behalf of Greater Noida that the Appellants herein did not exhaust their remedy Under Section 18 of the Land Acquisition Act and approach the High Court, and has sidestepped a procedural requirement. Section 18 of the 1894 Act reads as under: Reference to Court. - (1) Any person interested who has not accepted the award may, by written application to the Collector, req....

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....ned by both, Pushtaini and Gair-pushtaini Landowners. The Appellants herein, under those circumstances, could not have challenged the agreement vis a vis the ex-gratia payment on grounds of violation of Article 14, when no such violation existed at the time of the agreement. No man can be expected to predict a future violation of their rights and file a pre-emptive appeal. This Court is reminded of the words of Francis Bacon, who in the 17th century wrote about the link between legal certainty and justice: For if the trumpet give an uncertain sound, who shall prepare himself to the battle? So if the law give an uncertain sound, who shall prepare to obey it? It ought therefore to warn before it strikes... Let there be no authority to shed blood; nor let sentence be pronounced in any Court upon cases, except according to a known and certain law Nor should a man be deprived of his life, who did not first know that he was risking it.' (Quoted in Coquillette, Francis Bacon pp 244 and 248, from Aphorism 8 and Aphorism 39? A Treatise on Universal Justice). 30. On the basis of the above-mentioned reasons, we are of the considered opinion that the Appellants, because of their signing....

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....ue pertaining to classification and its reasonability, we must also keep in mind that the governance is not a simple thing. It encounters and deals with the problems which come from persons in an infinite variety of relations. Classification is the recognition of those relations, and, in making it a wide latitude of discretion and judgment must be given. Having considered all aspects of the matter by keeping in mind the Constitutional provisions discussed above and also the intent of the Act, 1894 especially the provisions of Sections 23 and 24 of the Act, 1894, we are of considered opinion that the classification introduced among the Pushtaini and Gair-pushtaini farmers is reasonable with intelligible differentia and that in no manner causes any discrimination among the similarly situated person. The law laid down in the case of Smt. Madhuri Srivastava (supra) has taken adequate care of all these provisions while concluding that the Pushtaini and Gairpushtaini farmers are two different classes and the resolution to award additional compensation on different rates is not at all discriminatory. 32. To assess the validity of the impugned classification, we must put it through the ....

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....ently situated. It is said that the entire problem under the equal protection Clause is one of classification or of drawing lines [Dowling: Cases on Constitutional Law, 4th Edn. 1139.]. In making the classification the legislature cannot certainly be expected to provide "abstract symmetry". It can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even "degrees of evil" [Skinner v. Oklahoma, 86 L Ed 1655 : 316 US 535 at p. 540 (1942)1942 SCC OnLine US SC 125], but the classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made; and classification made without any reasonable basis should be regarded as invalid [Southern Railway Co. v. Greene, 54 L Ed 536: 216 US 400 at p. 412 (1910)1910 SCC OnLine US SC 59]. These propositions have not been controverted before us and it is not disputed also on behalf of the Respondents that the presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it, t....

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....ing the provisions of The Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969. The Court while deciding this case held that it cannot overlook the violation of fundamental rights of the citizens on mere technicalities. It then further went on to state that the Courts won't look into the objects of the impugned act and rather they will look into the effect of the impugned act. The Court found the said Act in clear violation of Article 14 since only 14 banks were restrained from conducting banking business in the future while other banks including foreign banks were allowed to continue Banking in India. It has been observed in the said case as under: By Article 14 of the Constitution the State is enjoined not to deny to any person equality before the law or the equal protection of the laws within the territory of India. The Article forbids class legislation, but not reasonable classification in making laws. The test of permissible classification under an Act lies in two cumulative conditions: (1) classification under the Act must be founded on an intelligible differentia distinguishing persons, transactions or things grouped together from others left ou....

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....ploitation, if not blackmail, in a networked and digital age. The impact of Section 377 has travelled far beyond the punishment of an offence. It has been destructive of an identity which is crucial to a dignified existence 37. In the case at hand, it has been held by the Full Bench of the High Court that the classification between Pushtaini and Gair-pushtaini Landowners is based on one class of landowners being sons of the soil, while the other class being mere landowners, who are not directly attached to the land. Further, the object of this classification, as stated by the full bench of the High Court, is to rehabilitate the original residents, i.e. the sons of the soil, who are likely to become landless due to the acquisition of their land. 38. While prima facie, the classification and the object sought to be achieved through the said classification seems reasonable, however, the devil lies in the details. The justification given by the GNOIDA Authority, and the Full-bench of the High Court assumes that only Pushtaini landowners permanently reside in the subject land or that the subject land is the primary source of income only for Pushtaini landowners, and this assumption ha....

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....take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the Court can interfere. The power of the Court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them. The appeal must be dismissed with costs. 43. The Wednesbury principle was first introduced to Indian Jurisprudence in the case of Om Kumar and Ors. v. Union Of India  (2001) 2 SCC 386. Here, again, a similar question was posed before the Supreme Court, as to when can the Court exercise its power of judicial review in cases of executive law making. This Court, reiterated the same principles laid down in the Wed....

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....efore this judgment. The relevant paragraphs from the said report reads as under: 27. The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administrative action. But even long before that, the Indian Supreme Court has applied the principle of "proportionality" to legislative action since 1950, as stated in detail below. 28. By "proportionality", we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended....

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....islation and Courts had occasion throughout to consider the proportionality of the restrictions. In numerous judgments of this Court, the extent to which "reasonable restrictions" could be imposed was considered. In Chintamanrao v. State of M.P. [1950 SCC 695 : AIR 1951 SC 118 : 1950 SCR 759] Mahajan, J. (as he then was) observed that "reasonable restrictions" which the State could impose on the fundamental rights "should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public". 31. "Reasonable" implied intelligent care and deliberations, that is, the choice of a course which reason dictated. Legislation which arbitrarily or excessively invaded the right could not be said to contain the quality of reasonableness unless it struck a proper balance between the rights guaranteed and the control permissible Under Articles 19(2) to (6). Otherwise, it must be held to be wanting in that quality. Patanjali Sastri, C.J. in State of Madras v. V.G. Row [(1952) 1 SCC 410 : AIR 1952 SC 196 : 1952 SCR 597: 1952 Cri LJ 966], observed that the Court must keep in mind the "nature of the right alleged to have been infringed, the underlying purpose of the r....

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....ation. The aggrieved parties had to go to the European Court at Strasbourg for a declaration. 34. In U.S.A., in City of Boerne v. Flores [(1997) 521 US 507] the principle of proportionality has been applied to legislation by stating that "there must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end". 35. Thus, the principle that legislation relating to restrictions on fundamental freedoms could be tested on the anvil of "proportionality" has never been doubted in India. This is called "primary" review by the Courts of the validity of legislation which offended fundamental freedoms. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 45. Under Article 3(1) of the Human Rights Act, 1998 the English Court can now declare the legislative action as incompatible with the rights and freedoms referred to in the schedule. The Minister is then to move Parliament for necessary amendment to remove the incompatibility. While doing so, the English Court, can now apply strict scrutiny or proportionality to legislative and administrative action. The principle is now treated as central to English law (See Human Rights Law a....

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....essary to protect the legitimate objective and (v) The state should provide sufficient safeguards for the possibility of an abuse of such rights infringing interference. On the basis of these conditions of proportionality, this Court struck down the notification. 51. Although the fifth prong, as mentioned in the Gujarat Mazdoor Sabha (Supra) has not been expressly mentioned in Puttaswamy, Chandrachud J. (as His Lordship then was), in our view, rightly has read that in the Gujarat Mazdoor Sabha case (supra) to complete the test. State action that leaves sufficient room for abuse, thereby acting as a threat against free exercise of fundamental rights, ought to necessarily be factored in the delicate balancing act that the judiciary is called upon to do in determining the constitutionality of such state action - whether legislative, executive, administrative or otherwise. The relevant paragraph of the judgment has been mentioned herein: The principle of proportionality has been recognized in a slew of cases by this Court, most notably in the seven-judge bench decision in K.S. Puttaswamy v. Union of India. The principle of proportionality envisages an analysis of the following condi....

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....e object sought to be achieved. For this, it is pertinent to refer to Section 23 of the Act, which provides for matters to be taken into account while determining the compensation. The said Section reads as under: 23. Matters to be considered in determining compensation.- (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration first, the market value of the land at the date of the publication of the [notification Under Section 4, Sub-section (1)]; secondly, the damage sustained by the person interested, by reason of the taking of any standing crops trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of serving such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, in co....

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....Whether the classification made by the Full-Bench of the High Court between Pushtaini landowners and Gair-pushtaini landowners is in contravention to the law laid down by this Hon'ble Court in the case of Nagpur Improvement Trust and Anr. v. Vithal Rao and Ors. (1973) 1 SCC 500? 58. In the case of Nagpur Improvement Trust (Supra) this Hon'ble Court was tasked to deal with the question of whether certain provisions the Nagpur Improvement Trust Act, 1936 were in violation of Article 14. Here, the impugned provisions of the said Act allowed the acquisition of lands at rates lower than the rates as prescribed in the Land Acquisition Act. What is relevant to our case, is that the Court, while deciding this matter, held that the authority, while acquiring land, cannot distinguish between types of owners, as the object of achieving land for public purposes is met with, irrespective of the type of owner whose land is being acquired. The relevant paragraphs from the judgment reads as under: It is now well-settled that the State can make a reasonable classification for the purpose of legislation. It is equally well-settled that the classification in order to be reasonable must sat....

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....air-pushtaini landowners, on the basis of the reasoning mentioned above, is violative of the law laid down in the Nagpur Trust case (Supra) and Article 14 of the Constitution. Conclusion 61. In light of the above-mentioned reasoning, we are of the opinion that the classification made by both the executive actions is bad in law, and is liable to be set aside. The Land Acquisition Act does not envisage any differential compensation on the basis of such classification, and hence, this Court must infer the compensation to be provided by the executive actions within the confines of Section 23 of the Act. 62. Section 23 of the Land Acquisition Act states out the grounds for granting compensation in cases of acquisition of land under the Act. One such reason for the grant of compensation is rehabilitation, and it is this need for granting compensation for rehabilitation under the Act that is echoed by the impugned notification. A bare reading of both the executive actions in consonance with the Act would show that the need for giving compensation for rehabilitation is valid in law and is backed by the parent statute. The mischief then, is only limited to the arbitrary classification ma....