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State of Mysore & ANR Vs. D. Achiah Chetty [1968] INSC 313 (11 December 1968)

11/12/1968 HIDAYATULLAH, M. (CJ) HIDAYATULLAH, M. (CJ) SHAH, J.C.

RAMASWAMI, V.

MITTER, G.K.

GROVER, A.N.

CITATION: 1969 AIR 477 1969 SCR (3) 55 1969 SCC (1) 248

CITATOR INFO :

RF 1970 SC 564 (143,146) R 1972 SC2205 (19,20)

ACT:

The Bangalore Acquisition of Lands (Validation) Act (Mys. 19 of 1962), s. 2-Scope of-Legislative competence to remove discrimination retrospectively-Validating ActsClassification produced thereby-If reasonable classification.

HEADNOTE:

In Mysore there were two Acts bearing on acquisition of private land for public purposes, namely, the Mysore Land Acquisition Act, 1894, and City of Bangalore Improvement Act, 1945. A notification under s. 4 of the Mysore Land Acquisition Act, 1894, was issued for acquisition of the respondents' plots in Bangalore. The procedure in the Acquisition Act is a shortened procedure which is prejudicial to the owner of property acquired. The respondents challenged the acquisition in the High Court on various grounds and the High Court allowed the petitions.

The State appealed to this Court and while the appeal was pending the Bangalore Acquisition of Lands (Validation) Act, 1962, was passed and received the assent of the President, as required by the Constitution on May 4, 1963. It validates all acquisitions made, proceedings held, notifications issued or orders made in connection therewith, by the State Government purporting to act under the Mysore Land Acquisition Act, before the Validating Act came into force, for the purpose of improvement, expansion or development of the City of Bangalore. It also provides that pending proceedings may be continued under the Mysore Land Acquisition Act. The provisions are to be effective notwithstanding the City of Bangalore Improvement Act, or any other law, judgment, decree or order of any court.

Section 2(1) of the Validation Act, provides, that no order made under the Mysore Land Acquisition Act is to be called in question on the ground that the State Government was not competent to make acquisition for the Purpose of improvement or on any ground whatsoever, and s. 2(2) provides that a notification or order may be questioned in accordance with the provisions of the Mysore Land Acquisition Act -and the Land Acquisition Act, 1894, and the rules made there under.

In this Court in spite of the Validating Act the respondents sought to support the judgment of the High Court on the grounds that : (1) there were still two Acts which covered the same field but prescribed two different procedures, and that the notifications issued following the more prejudicial procedure in the Mysore Land Acquisition Act were unconstitutional as that Act was discriminatory; (2) an acquisition or anything done, previously hit by Art. 14 cannot be validated unless the vice of unreasonable classification is removed, and so, the Validating Act was ineffective; (3) the Mysore Land Acquisition Act and the Land Acquisition Act. 1894, are general laws which must give way to the special law in the Improvement Act; and (4) There is still discrimination, because. there are two classes of cases one, in whose case the Validating Act dispenses with the procedure of the Improvement Act and' those, in whose case that procedure will be followed 56

HELD : (1) The supremacy of the Legislatures in India, within the constitutional limits of their jurisdiction is complete. By the non-obstante clause ' in the Validating Act, the Improvement Act is put out of the way as if it were repealed or as if it had not been passed. The Legislature, has made retrospectively a single law for the acquisition of property and rendered all acquisitions, made before the Validating Act was passed, to be governed by the Mysore Land Acquisition Act alone. Objections based on breach of Constitution or fundamental rights could be raised in spite of the words 'or on any ground whatsoever' in the Validating Act, but, objections on the ground that there has been nonobservance of the provisions of the Improvement Act must fail. [62 A-C; 63 A-B] (2) It is wrong to assume that a discrimination arising from selection of one law for action rather than another, where two procedures are available, can never be righted by removing retrospectively one of the competing laws from the field. If there is legislative competence, the Legislature can always put out of action retrospectively one of the procedures leaving one procedure only available, namely, the one that was followed and thus get over the discrimination.

In the present case, the only curb on the Legislature's powers was the requirement of the President's assent and that was obtained. [63 B] Piara Dusadh v. King Emperor, [1944] F.C.R. 61, applied.

(3) There is no question of general Acts giving way to a special Act because, after the Validating Act was passed there was no Improvement Act to consider. [63 E-F] (4) All Validating Acts lead to two distinct classes those in which validation is necessary and those in which it is not. Such class legislation is permissible and the Legislature is competent to validate procedural defects. [63 H]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 111 to 113, 115 to 117 of 1966.

Appeals by special leave from the judgment and order dated March 3, 1961 of the Mysore High Court in Writ Petitions Nos. 1076, 1083 and 1087 of 1959 and 270, 359 and 360 of 1960.

C. K. Daphtary, B. R. L. Iyengar, R. H. Dhebar and S. P. Nayar, for the appellants (in all the appeals).

S. T. Desai, J. Mahajan, J. B. Dadachanji and P. R. Srinivasan, for the respondent (in C.A. No. 111 of 1966).

Sarjoo Prasad, B. Datta, J. B. Dadachanji and P. R. Srinivasan, for respondent No. 1(in C.A. No. 113 of 1966).

R. Thiagarajan, for respondent No. 2 (in C.A. No. 113 of 1966).

A. N. Singh and D. N. Gupta, for the respondent (in C.A. No. 115 of 1966).

J. B. Dadachanji and P. R. Srinivasan, for the respondent (in C.A. No. 116 of 1966).

57 Shyamala Pappu, M.R. Ramamurthy and Vineet Kumar, for the respondent (in C.A.-No. 117 of 1966).

The Judgment of the Court was Hidayatullah, C.J, These appeals by special leave are against a common judgment of the High Court of 1961, allowing a batch of writ petitions. By the order now impugned the High Court had quashed two notifications issued under ss. 4 and 6 of the Mysore Land Acquisition Act 1894 and published in the Mysore Gazette dated May 7,1959 and October 15, 1959, respectively, and restrained the State Government from acquiring the land affected by the said notifications The State now appeal .

The petitions were directed against the State of Mysore and the Special Land Acquisition Officer, City Improvement Trust Board, Bangalore. In some of the Petitions there were other respondents either with or without the Special, Land Acquisition Officer. Nothing, however, turns upon the array of the respondents.

In Mysore there are two Acts bearing on acquisition of private land for public purposes. The first is the Mysore Land Acquisition Act which following the same scheme as the Land Acquisition Act in force in India. The other is the City of Bangalore Improvement Act, 1945. The latter Act constitutes a Board of Trustees charged with the execution of the Act and in its Third Chapter lays down the duties and powers of the Board and the manner in which improvement schemes are to be effectuated. Sections 14 to 18 and s. 27 outline the procedure by which acquisition of land is to be made.

Section 52 of the Act lays down that any provision of law contained in any other enactment in force in Mysore repugnant to any provision contained in the Improvement Act is to stand down to the extent of the repugnancy. The Mysore, Land Acquisition Act has also sections 4, 5A and 6 analogous to the corresponding sections in the Central Land Acquisition Act in force in the whole of India.

The land in respect of which the present dispute has. arisen is Survey No. 2 of Raja Mahal village, Kasba Hobli, Bangalore North Taluk. This land belonged originally to the Maharaja who divided it into plots. The petitioners who came before the High Court, are owners of some of the plots which were transferred to them by different modes such as sale, gift, etc. These, petitioners acquired plots for purposes of their own. Some, had made lay-outs already with the prior sanction of the Board and spent money in laying out the plots including amount paid out to the Board in this connection. The notification under s. 4 issued for acquisition of these plots stated that they were being 7Sup.C.I.169-5 58 acquired for public purpose to wit Raja Mahal Vilas Layout.

Many petitions were, filed in the High Court to question the validity of the action. It was said that the Notification under s. 4 of the Mysore Land Acquisition Act gave no particulars and was followed by tile Notification under s. 6 with the result that the opportunity under s. 5A of objecting to the acquisition was lost to the petitioners.

It was also contended that the scheme of layout was feasible only under the Improvement Act through the Board of Trustees for the Improvement of the City of Bangalore and the procedure in Chapter III of that Act had to be followed.

The acquisition, however, was being made entirely under the Land Acquisition Act without any advertence to the provisions of the Improvement Act. It was, therefore, contended that the action of the Government was ultra-vires, section 52 of the Improvement Act and the provisions of the Third Chapter of that Act. It was also submitted that the action in using the provisions of the Mysore Land Acquisition Act was discriminatory because in -other cases the provisions of the Improvement Act were applied.

The petitions were filed between the last week of December, 1959 and the last week of March, 1960. Before the petitions came up for hearing the Governor of Mysore promulgated on June 9, 1960 an Ordinance called the City of Bangalore Improvement (Amendment) Ordinance (No. 1 of 1960) introducing retrospectively s. 27-A. This was followed by an Act which reenacted the provisions of the Ordinance. The Act was, however, not reserved for the assent of the President, nor was his assent taken to its introduction. By this; section compliance with the Third Chapter of the Improvement Act was dispensed with. The petitioners then challenged the Amending Ordinance and the Amending Act as not complying with Arts. 213(1) and 254(1) of the Constitution. The State of Mysore relied upon the Mysore Land Acquisition Act for the validity of the proceedings. The petitioners submitted that the public purpose was linked up with the improvement of the city of Bangalore and thus fell to be governed by the Improvement Act., They contended that the discrimination still continued if the attempted inclusion of s. 27-A in the City Improvement Act was held to be unconstitutional. It may be mentioned that in one petition a ground of estoppel had been raised, as expenditure had been incurred in laying out the plot and the Board had received payment for its sanction.

The petitions in the High Court, therefore, proceeded on the following three broad points : (1) validity of Ordinance 1 of 1960 and the Mysore Act XIll of 1960; (2) non-compliance with the City of Bangalore Improvement Act, 1945; and (3) 59 discrimination between two classes of cases, i.e. those in which the provisions of Chapter III of the Improvement Act were followed and those like the case of the petitioners in which they were not followed. An additional point of estoppel was special to one petition only.

The High Court rightly declared unconstitutional Ordinance 1 of 1960 and the Amending Act XIII of 1960 on the' short ground that the former offended cl. (1) of Art. 213 being promulgated without the instructions of the President and the latter offended cl. (2) of Art. 254, and it was not reserved for the consideration of the President and was not assented to by him. These grounds are so patent that no attempt was made before us to urge anything to the contrary.

The High Court next considered the validity of the notifications on the ground of discrimination and found that the provisions of the Third Chapter of the Improvement Act had to be, followed in law. Since they were by-passed, the High Court found discrimination between these cases and the cases of others in which the provisions were followed. The High Court held that this shortened procedure offended against the equality clause in the Constitution. The State was aggrieved by the decision and this appeal is the result.

Before this appeal came up for hearing a Validating Act was passed by the Legislature of the State. This Validating Act was reserved for the assent of the President. The State in arguing these appeals seeks support from the provisions of the Validating Act and contends that the judgment under appeal cannot now be supported because of the validation of the acquisition not, withstanding the provisions of the Improvement Act. The case before us, therefore, was considered under the new Validating Act. Before we discuss the arguments, which are advanced in support of the decisions of the High Court and those against it we may set out here the provisions of the Validating Act since they are the main subject of controversy in the appeal before us.

The Act in question is the Bangalore Acquisition of Lands (Validation) Act, 1962 (Act 19 of 1963). It received the assent of the President on the Fourth day of May, 1963. As its long title shows it is an Act to validate the acquisition under the Mysore Land Acquisition Act, 1894 of lands by the State Government for the purpose of improvement, expansion or development of the City of Bangalore, and the orders passed and the proceedings held in connection therewith. The Act is intended to apply to any area to which the City of Bangalore Improvement Act, 1945 extends and validates orders passed and proceedings held in connection therewith. The Act consists of only two sections. The first section gives the short title and the second section deals with validation of certain acquisition of lands and 60 proceedings and orders connected therewith. The second section reads as follows :

"2. Validation of certain acquisition of lands and proceedings and orders connected therewith.(1) Notwithstanding anything contained in the City of Bangalore Improvement Act, 1945 (Mysore Act V of 1945), or in any other law, or in any judgment, decree or order of any Court,(a) every acquisition of land for the purpose of improvement; expansion or development of the City of Bangalore or any area to which the City of Bangalore Improvement Act, 1945, extends, made by the State Government acting or purporting to act under the Mysore Land Acquisition Act, 1894 (Mysore, Act VII of 1894), at any time before the commencement of this Act, and every proceeding held, notification issued and order made in connection with the acquisition of land for the said purpose shall be deemed for all purposes to have been validly made, hold or issued, as the case may be, and any acquisition proceeding commenced under the Mysore Land Acquisition Act, 1894, for the said purpose before the commencement of this Act but not concluded before such commencement, may be continued under the Land Acquisition Act, 1894 (Central Act 1 of 1894), as extended to the State of Mysore by the Land Acquisition (Mysore Extension and Amendment) Act 1961 and accordingly no acquisition so made, no proceeding held, no notification issued and no order made by the State Government or by any authority under the Mysore Land Acquisition Act, 1894, or the Land Acquisition Act, 1894, in connection with any such acquisition shall be called in question on the ground that the State Government was not competent to make acquisition of land for the said purpose under the said Act or on any other ground whatsoever;

(b) any land to the acquisition of which the provisions of clause (a) are applicable shall, after it has vested in the State Government, be deemed to have been transferred, or stand transferred, as the case may be, to the Board of Trustees for the improvement of the City of Bangalore.

(2) For the removal of doubts it is hereby declared that nothing in sub-section (1) shall be construed as preventing any person from questioning in accordance 61 with the provisions of the Mysore Land Acquisition Act, 1894, of the Land Acquisition Act, 1894, and the rules made under the said Acts, any notification or order made there under." Now the effect of this section is in many directions. It applies first to every acquisition of land for the purpose of improvement, expansion or development of the city of Bangalore by the State Government, purporting to act under the Mysore Land Acquisition Act but only to acquisitions made before that Act came into force. Next it applies to every proceeding held, notification issued or order made in connection therewith. Then it provides that all these shall be deemed to be validly made, held or issued. Then it provides that pending proceedings may be continued under the Mysore Land Acquisition Act and no order made is to be called in question on the ground that the State Government was not competent to make acquisition for the said purpose under that Act or on any ground whatsoever. All these provisions are to be effective notwithstanding the City of Bangalore Improvement Act, 1945 or any other law, judgment, decree or order of any Court. The land to which these provisions apply is further to be deemed to have been transferred or stand transferred to the Board of Trustees for the improvement of the city of Bangalore. The only room left for questioning any order or notification is in accordance with the provisions of the Mysore Land Acquisition Act, 1894. the Land Acquisition Act, 1894 and the rules made under those Acts.

The State Government claims that this Validating Act cuts short all controversy. It has validated all past actions notwithstanding any breach of the, Improvement Act or -any other law or the decree and order of the High Court. It further submits that the action cannot be called in question on the ground that State Government Was not competent to make the acquisition of land or on any other ground whatsoever. It further submits that proceedings already afoot can continue.

This contention is met by the respondents on three main grounds. The first is that there are still two Acts which cover the same field but prescribe two different procedures . In one procedure there is an inquiry assessment of the public purpose preparation of scheme, and in the other, there is none. The,, more prejudicial procedure which is that of the Acquisition Act. must be disallowed as it is discriminatory and therefore the two notifications still continue to' be unconstitutional.

The above argument denies to the legislatures the supremacy which it possesses to make laws on the subject of acquisition. What the Legislature has done is to make retrospectively a single law for the acquisition of these properties. The Legislature 62 could always have repealed retrospectively the Improvement Act rendering all acquisitions to be governed by the Mysore Land Acquisition Act alone. This power of the Legislature is not denied. The resulting position after the validating Act is not different. By non-obstante clause the Improvement Act is put out of the way and by the operative part the proceedings for acquisition are wholly brought under the Mysore Land Acquisition Act to be continued only under that Act. The Validating Act removes altogether from consideration any implication arising from Chapter III or Section 52 of the Improvement Act in much the same way as if that Act had not been passed.

The Validating Act goes further and says that all the acquisitions shall not be called in question on the ground that the State Government was not competent to make the acquisition. No claim based upon the failure to observe the Improvement Act can, therefore, be heard. The State relies upon the last six words of the first clause of s. 2(1) of the Validation Act to contend further, that the acquisition cannot be called in question on any ground whatsoever except in so far as door for objections is kept open by the second sub-section. This is perhaps a larger claim than these words warrant. What those words mean is no more than that in addition to the ground that the State Government was not competent, no other ground based upon breach of the Improvement Act or any other law is to be entertained.

Those words must be read down. They do not mean what they appear to say Objections for example of breach of the Constitution or of fundamental rights will of course remain.

It is for this reason that the Legislature enacts subsection (2) to remove doubts and expressly allows objections under the Mysore Land Acquisition Act, 1894 or the Land Acquisition Act, 1894 to be raised, notwithstanding the wide language of the last six words of the previous section.

Therefore all objections on the ground that in the acquisition there has been non-observance of the provisions of the Improvement Act must fail.

Mr. S. T. Desai, however, contends that an acquisition hit by Article 14 or anything done previously cannot ever be validated, unless the vice of unreasonable classification is removed and the validating Act is ineffective for that reason. This argument leads to the logical conclusion that a discrimination arising from selection of one law for action rather than the other, when two procedures are available, can never be righted by removing retrospectively one of the competing laws from the field. This is a wrong assumption. In Piara Dusadh and others v. K.E.(1) trials before special judges (not sessions Judges under the Code of Criminal Procedure) were deemed to be trial before Sessions.

(1) [1944] F.C.R. 61.

63 Judges in accordance with the Code and the Federal Court upheld the constitutionality of the ordinance by which this fiction was created. The supremacy of the Legislatures in India, within the constitutional limits of their jurisdiction is as complete as that of the British Parliament. If two procedures exist and one is followed and the other 'discarded, there may in a given case be found discrimination. But the Legislature has still the competence to put out of action retrospectively one of the procedures leaving one procedure only available, namely, the one followed and thus to make disappear the discrimination.

In this way a Validating Act can get over discrimination.

Where, however, the legislative competence is not available, the discrimination must remain for ever, since that discrimination can only be removed by a legislature having power to create a single procedure out of two and not by a legislature which has not that power.

Here the Legislature was supreme in the, field of acquisition. The only curb on its powers was the requirement of President's assent and that admittedly was obtained unlike the previous occasion when the Amending Act failed for want of such assent. Therefore the Validating Act enacted in 1963 does not suffer from the defect from which the Amending Act of 1960 suffered.

The same argument is next put in another way. It is said that the Mysore Land Acquisition Act, 1894 and the Land Acquisition Act, 1894 are general laws and they must give way to the special law in the Improvement Act, more so in view of section 52 of the Act last mentioned. But this again ignores, the position that after the Validating Act there is no Improvement Act to consider.

It is contended that acquisition by the Improvement Trust is not a public purpose. We declined to hear this argument which does not arise in the appeal before us since it was not raised in the High Court.

Mr. Sarjoo Prasad also argues that there will be now two classes of cases, one in which the Validating Act dispenses with the procedure of the Improvement Act and those in which the procedure will be followed. This is the same argument in another form and is equally futile. Class legislation is always permissible. There is a special class in whose case the acquisition was under 'the Acquisition Act without following the procedure of the Improvement Act. There are two distinct classes of cases and the differential is the striking down of action in the second class and the need for validation. All Validating Acts lead to two distinct classes-those in which validation is necessary and 64 those in which it is not The legislature is always competent to Validate procedural defects without in any way losing its jurisdiction, by reason of the existence of the other class.

The arguments that no opportunity was given to oppose the acquisition on the ground that no public purpose was sub-served, must fail because a notification has already been issued under section 6 of the Land Acquisition Act. It is too late for this Court, to enter into the question of public purpose.

It remains to consider the argument based on estoppel which is, claimed in C.A. No. III of 1966. There is no doubt that the, High Court, has not decided that issue. The writ petition must therefore be remanded to the High Court for the consideration of that ground.

The result therefore is that all appeals are allowed. All writ petitions: (except 114 which is to be compromised and C.A. No. 111,of 1966 'in which there is a remand) will be dismissed. There shall, however, be no order as to costs.

Writ petition No. 1076 of 1959 (C.A. No. 111 of 1966) shall stand remanded to the High Court but there shall be no order about costs.

Y.P. Appeals allowed.

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