Full Judgement
Tika Ram & Ors Vs. State of U.P. & Ors [2009] INSC 1559 (9 September 2009)
Judgment
"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
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 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 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 1 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 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 1 amended 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 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 1 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. 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.
1 Amendment 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 Sheopuri reported in 1996(2) SCC 365 and Meerut Development 1 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 1 they 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 defects
13. Shri Trivedi, Learned Senior Counsel, who ably led arguments on behalf of the appellants, as also Shri Qamar Ahmad, first pointed out that 1 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 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 1 simultaneously 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 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.
2 The Learned Senior Counsel, in support of his arguments, relied on the following decisions:- (6) SCC
Excise reported in 2004(3) SCC 48.
2003 (5) SCC 298 1978 (2) SCC 50 Supp. SCC 1 in 2004(12) SCC 588 1976(4) SCC 750 (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 SCC 33 1986 Supp. SCC 584 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 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.
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 2
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 (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 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 2 constitutionality 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, nonpayment 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 2 State 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 2 (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 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 2 Government 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 2 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 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 2 Borewell & 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 3 land 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 3 pointed 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 3 granted 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.
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.
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 3 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 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 3 clause 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 3 Bhagat 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 3 illegal. 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 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 4 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 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 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 4 to 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 Amend
