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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