Meerut Development Authority Vs. Satbir
Singh & Ors [1996] INSC 1168 (19 September 1996)
K. Ramaswamy,
Faizan Uddin, G.B. Pattanaik
ACT:
HEAD NOTE:
WITH C.A.
Nos. 2217/88, 2758/88,1829/88, 2219/88,, 2221/88 2218/88, 2220/88, 2222/88,
1830/88, C.A Nos. 12810-12825/96@ SLP(C) Nos. 5832/88, 5833/88, 5834/88,
5835/88, 5836/88, 5837/88, 5838/88, 5839/88, 5840/88, 6094/88, 6095/88,
13207/88, 13577/88, 13296/88, 13463/88, 7331/88, W.P. [C] Nos.153/96,
C.As.12826-28/96@ SLP(C)Nos. 3822/76, 3823/76, 3824/76
O R D
E R
Substitution
allowed.
Leave
granted in all the special leave petitions.
Notification
under Section 4 [1] of the Land Acquisition Act, 1894 [for short, the
"Act"] was published on June 11, 1985. The Government also exercised the
power under Section 17 [4] of the Act and dispensed with the enquiry under
Section 5-A and had the declaration under Section 6 published on June 13, 1985. The publication of substance of
the notification in the local newspapers came to be made on July 25, 1985. In August 1985, the respondents
filed a batch of writ petitions in the High Court impugning the validity of the
notification under Section 4 [1] and of the declaration under Section 6 on six
grounds. Five of the grounds raised by the respondents were negatived by the
High Court as not sustainable but declaration under Section 6 was quashed on
the ground that after the Amendment Act 68 of 1984 had come in to force w.e.f,
September 24, 1984, the simultaneous publication of the declaration under
Section 6 along with publication of notification under Section 4 [1] was
invalid in law. They relied upon the judgment of this Court in State of U.P. and Ors. v. Radhey Shyam Nigam and Ors. etc. [(1989)
1 SCR 92] .
The
respondents filed cross appeals against the findings that were negatived by the
High Court in respect of all the other five points. Thus these appeals by
special leave.
Pending
appeals, the Governor exercising the power under Article 213 of the
Constitution issued the Ordinance No.32 of 1990 and the State Legislature enacted
the Land Acquisition [U.P. Amendment and Validation Act, 1991 [UP Act 5 of
1991] which came in to force from December 28,1990, introducing provision to
Section 17 [4] of the Act and also by Section 3 thereof validated all the
notifications and declarations issued under the Act prior to the date of the
judgment of this Court in Radhey Shyam Nigam case [supra].
The
Ordinance came to be challenged by way of writ petition No.153/96. Thus all the
matters tagged are disposed of together. With a view to satisfactorily resolve
the controversy, it is, at the first instance, necessary to dispose of the writ
petition.
It is
seen that this Court in Radhey Shyam Nigam's case had considered the provisions
of U.P. Urban Planning and Development Act and the Act. In exercise of power
under Section 17 [4] of the Act, the appropriate State Government was empowered
to issue and get published the notification under Section 4 [1] and the
declaration under Section 6 of the Act simultaneously. That was upheld by this
Court in Smt. Somawanti and Ors. v. State of Punjab and Ors. [(1963) 2 SCR 775]. After the Amendment Act 68 of
1984 was brought on statute, sub-section (4) of Section 17 envisages that the
authority empowered to have the declaration under Section 6 published after the
publication of the notification under Section 4 [1]. In other words, the
simultaneous exercise of power to get the notification under Section 6 was not
valid in law. This Court had held thus;
"It
is true that the expression "after the date of the publication of the
notification" introduced in Section 17 [4] can be explained...
changes
in Sections 4 and 6 of the Act".
It is
to be seen that the State Legislature thereafter, has enacted proviso to
sub-section [4] as under:
"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]".
This
proviso was inserted by Section 2 of the State Amendment Act 5 of 1991,
sub-section [3] validated the acquisitions pending as on the date of the
judgment of this Court which reads as under:
"
3. Validation of certain acquisitions. - Notwithstanding any judgment, decree
or order of any Court, Tribunal or other authority , no acquisition of land
made, or purporting Act before the commencement of this Act and no action taken
or thing done [including any order or declaration made, agreement entered in to
or notification published] in connection with such acquisition, which is in
conformity with the provisions of the Principal Act as amended by this Act as
amended by this Act shall be deemed to be invalid or ever to have been invalid
merely on the ground that declaration under Section 6 of the Principal Act was
published in the Official Gazette on the same date on which notification under
Section 4, sub-section [1] of the Principal Act, was published in 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".
The
controversy is no longer res integra. This Court in Ghaziabad Development Authority v. Jai Kalyan
Samiti Sheopuri Ghaziabad and Anr. [(1996) 2 SCC 365] has
considered the effect of the proviso introduced by the State Legislature by way
of amendment to Section 17 [4].
The
validity has been upheld by the Two-judge Bench of this Court.
Shri Pradeep
Misra, learned counsel for the respondents, contended that if the law is declared
by this Court that simultaneous publication under Section 4 [1] and declaration
under Section 6 of the Act is invalid, the Legislature has no power to
over-rule and nullify the judgment of this Court by way of amendment. It has
only to remove the defect, as pointed out by this Court, by suitably amending
the statute. In this case, a reading of the proviso would indicate that the
State Legislature, without removing the defect, as pointed out by this Court,
reiterated the defect and sought to validate all the invalid notification or
declarations as declared by this Court in Radhey Shyam Nigam's case [supra] as
valid. Therefore, the U.P. Amendment Act 5 of 1991 is invalid in law.
It is
well-settled by catena pf decisions of this Court that when this Court in
exercise of power of judicial review, has declared a particulate statute to be
invalid, the Legislature has no power to over-rule the judgment;
however,
it has the power to suitably amend the law by use of appropriate phraseology
removing the defects poins out by the court and by amending the law
inconsistent with the law declared by the court so that the defects were
pointed out were never on statute for effective enforcement of the law.
This
Court has considered in extenso the case law in a recent judgment in Indian Aluminium
Co. and Ors. v. State Of Kerala and Ors. [(JT 1996 (2) SC 85] had held that
such an exercise of power to amend a statute is not an Incursion on the
judicial power the court but is a statutory exercise of the constituent power
to suitably amend the law and to validate the actions which have been declared
to be invalid.
It
laid down the following principles:
"[1]
The adjudication of the rights of the parties is the essential judicial
function. Legislature has to lay down the norms of conduct or rules which will
govern the parties and the transactions and require the court to give effect to
them:
[2]
The Constitution delineated delicate balance in the exercise of the sovereign
power by the Legislature, Executive and Judiciary:
[3] In
a democracy governed by rule of law, the Legislature exercises the power under
Articles 245 and 246 and other companion Articles read with the entries in the
respective Lists in the Seventh Schedule to make the law which includes power
to amend the law:
[4] Courts
in their concern and endeavour to preserve judicial power equality must be
guarded to maintain the delicate balance devised by the constitution between
the three sovereign functionaries.
In
order that rule of law permeates to fulfil an egalitarian social order, the
respective sovereign functionaries need free-play in their joints so that the
march of social progress and order remain unimpeded. The smooth balance built
with delicacy must always be maintained:
[5] In
its anxiety to safeguard judicial power, it is unnecessary to be over jealous
and conjure up incusion in to the judicial preserve invalidating the valid law
competently made:
[6]
The Court, therefore, need to carefully scan the law to find out :
(a) whether
the vice pointed out by the Court and invalidity suffered by previous law is
cured complying with the legal and constitutional requirements:
(b) whether
the Legislature has competence to validate the law:
(c) whether
such validation is consistent with the rights guaranteed in Part III of the
constitution:
[7]
The Court does not have the power to validate an invalid law or to legalise or
to remove the norm of invalidation or provide a remedy. These are not judicial
functions but the exclusive province of the Legislature.
Therefore,
they are not the encroachment on judicial power.
[8] In
exercising legislative power the Legislature by mere declaration, 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 authorise 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".
The
same view as reiterated in State Of Orissa v. Gopal Chandrarath [(1995) 6 SCC 243], Bhubaneswar Singh and Anr. v. Union of India and Ors.
[(1994) 6 SCC 77] and Comorin Match Industries P. Ltd, v. State of Tamil Nadu
[(1996) 4 SCC 281]. It is equally settled law that validating Act cannot simply
seek to take away the effect of the judgment of the Court. In such an even, it
will be legislative repeal of judicial decision as had been held by this Court
in Madan Mohan Pathak v. Union of India [(1978) 2 SCC 50], State of U.P. and Anr.
v. Keshwav Prasad Singh [(1995) 5 SCC 587] and State of Haryana v. The Karnal
Co-operative Farmers' Society Ltd. [JT 1993 (2) SC 235].
The
question in this case is; whether the Legislature has merely reiterated the
defect pointed out by this Court and thereby caused legislative repeal of the
judicial decision or it has cured the defect pointed out by this Court so as to
be in conformity with the law? In this behalf, it must be remembered on the
facts in this case that acquisition is a concurrent subject vide Entry 42 in
the List III of the Seventh Schedule to the constitution on which both the
Parliament as well as the State Legislature have competence to enact the law
suitable to the situation prevailing in the appropriate State. Article 254 of
the Constitution deals with such an area. Clause [2] of Article 254 envisages
that "Where a law made by the Legislature of a State with respect to one
of the matters enumerated in the Concurrent List contains any provision
repugnant to the provisions of an earlier law made by parliament, or an existing
law with respect to that matter, then, the law so made by the Legislature of
such State shall, if it has been reserved for the consideration of the
President and has received his assent, prevail in that State". The scope
thereof was elaborately considered by this Court in Gouri Shankar Gauri and
Ors. v. State of U.P. and Ors. [(1994) 1 SCC 92 at 117-118] and it was held
thus:
"...[1]
Where the provisions of a Central Act and a State Act in the Concurrent List
are fully inconsistent and are absolutely irreconcilable, the Central Act will
prevail and the State Act will become void in view if the repugnancy:
[2]
where, however, a law passed by the States comes in to collision with a law
passed by Parliament on an Entry in the Concurrent List, the State Act shall
prevail to the extent of the Central Act would become void provided the State
Act has been passed in accordance with clause (2) Article 254:
(3) where,
however, a law made by the State Legislature on a subject covered by the
Concurrent List is inconsistent with or repugnant to a previous law made by
parliament, then such a law can be protected by obtaining the assent of the
President under Article 254 [2] of the Constitution. The result of obtaining
the assent of the President would be that so far as the State Act is concerned,
it will prevail in the State and overrule the provisions of the Central Act in
their applicability to State only. Such a state of affairs will exist only
until Parliament may at any time make a law adding to, or amending, varying or
repealing the law made by the State Legislature under the proviso to Article
254.
In
that case it was held that part of the provisions were not repugnant in their
application to the public men in Tamil Nadu but are void to the extent of
public servants. T. Baraj v. Henry Ah Hoe [(1983) 1 SCC 177] is a case where
Section 16 [1] (a) of the prevention of Food Adulteration Act, 1954 in the
Concurrent List prescribes a punishment of six years and fine. The West Bengal
State Legislature amended it by West Bengal Amendment Act, 1973 and prescribed
a punishment of imprisonment for life for the selfsame offence under Section 16
[1] of the Act. Prevention of Food Adulteration Act was amended by Parliament
in 1976. The proviso to Article 254 [2] the State law is void. Since the
Central Amendment Act, 1976 occupies the same filed imposing lesser punishment,
the previous State law imposing punishment of imprisonment for life, though
received the assent of the President, was held to be void".
It is
not in dispute that the State Amendment Act 5 of 1991 was enacted and 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 need
urgently, depending upon the local needs and the urgency, Government requires
such power.
Consequently,
the State Legislature thought it appropriate that despite the enactment of the
Amendment Act 68 of 1984 amending Section 17(4), the State needed further
amendment.
Resultantly,
the U.P. Amendment Act 5 of 1991 came to be made and it was given retrospective
effect from the date of the Amendment Act 68 of 1984 has come in to 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 situation, namely, the notification 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 in to 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 to the notification and declaration to
be published subsequently.
It is
true that normally the Legislature has to give effect to he judgment of the
court only to cure the defects pointed out in the previous judgment so that the
operation of the law would be consistent with the law declared by this Court.
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 though Central Law may be
inconsistent with the law operating in 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 State Amendment was reserved and
received 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.
It is
seen that Section 3 of the Amendment Act 5 of 1991 seeks to validate the illegal
declarations made simultaneously with the publication of the Section 4
notification and in some cases even prior to the publication of Section 4
notification: it also seeks to validate certain acquisitions envisaged there under.
This validation is not illegal. Shri Misra contended that since the appeals
were pending before this Court, the Legislature would not be competent to amend
the law so as to take away the effect of the decisions of this Court. In
support thereof he contended that leave was granted by this Court and it was
directed to post these cases along with the main matter, i.e. Radhey Shyam Nigam's
case. Since the matters were not disposed of, the amendment was brought about
to defuse the effect of the judgment. Therefore, the amendment is not valid in
law. We find no force in the contention.
Government
of Andhra Pradesh v. H.W.T. [1975 (supp) SCR 384] was a case where pending
appeals in this Court the Legislature has amended the Gram Panchayat Act and
suitably defined 'house' which was found to be defective as declared by a
judgment of A.P. High Court under appeal. Amendment was made to the Gram Panchayat
Act. When the Validation Act was challenged, a bench of three judges of this
Court had upheld the validity of the Amendment Act and held that the State
Legislature has not overruled or set aside the judgment of the High Court. It
has amended the definition of 'house' by substitution of a new Section 217 for
the old section and it has provided that the new definition shall have
retrospective effect notwithstanding anything contained in any judgment, decree
or order of any court or other authority. In other words, it has removed the
basis of the decisions rendered by the High Court so that the decision would
not have been given in the altered circumstances. The same ratio applies to the
facts in this case.
It is
then contended by Shri Krishnamani, learned Senior counsel appearing for some
of the appellants in cross appeals that in the Amendment Act two inconsistent
dates for coming in to force of the Act and giving effect to the provisions of
the Act have been introduced. That is also impermissible. We find no force in
the contention. It is seen that the Amendment Act 5 of 1991 was given effect
from the date when the amendment Ordinance was published in the Gazette but the
effect of the amendment was to remove the defects pointed out and to validate
the notifications and declarations which otherwise would be invalid.
Consequently,
the retrospective effect was given from the date of the issuance of the
Ordinance to the Act and operation retrospectively from the date of judgment.
Under those circumstances, we do not find any inconsistency in operation of the
Act or invalidity in giving two dates for the respective operation provision of
the Act.
Then
it is contended by Smt. S. Janani, learned counsel for the appellants in cross
appeals that the High Court was not justified in rejecting 5 of the contentions
raised by the appellants. The exercise of the power is arbitrary.
She
has highlighted her point by placing before us a map in which some of the
portions were omitted from acquisition while the lands in question came to be
acquired. Therefore, it is arbitrary exercise of the power. We find no force in
the contention. When we have enquired from the counsel appearing for the
M.D.A., it is pointed out that the lands left out were agricultural lands which
could be acquired under the Land Reforms Act and that, therefore, they had not
been resorted to the acquisition under the Land Acquisition Act. It is also pointed
out that some of the lands where abadi is situated, such lands were not
acquired. Shri Rajeev Dhawan, learned senior counsel for the MDA further
contended that certain lands were left out where greenery is in existence and
that was not sought to be disturbed so as to maintain ecology. Mrs. Janani has
pointed out that the Kanugo had intimated that the respondents are free to
construct house without obtaining permission. The High Court has pointed out
that such construction was invalid in law and therefore the notification under
Section 17(4) was not to be sustained on that ground. The view of the High
Court is not correct in law. We find no force in the contention.
It is
seen that where large extent of land was acquired, mere existence of some
houses even if they were constructed, may be according to rules or may not be
according to rules, the exercise of the power under Section 17(4) by the
Government dispensing with the enquiry does not become invalid, when there was
urgency to take possession of the acquired land. It is now settled legal
position that acquisition for planned development of housing scheme is also
urgent purpose as laid down by this Court in Aflatoon v. Lt. Governor of Delhi
and Ors. [(1975) 4 SCC 285] and Smt. Pista Devi v. H.D.A. [(1986) 4 SCC 251]
and in recent judgment of this Court in State of Tamil Nadu v. L.Krishnan
[(1996)7 SCC 450]. In the light of the settled legal position the acquisition
for housing development in an urgent purpose and exercise of the power under
Section 17(4) dispensing with the enquiry under Section 5A is not invalid.
Mrs. Janani
has further contended that since no developments have been undertaken and no
plans have been prepared, the acquisition is bad in law. We find no force in
the contention. Under the U.P. Urban Development Act is not mandatory that the
entire scheme should be prepared prior to the notification under section() was
published. Similar situation was considered by this Court in L.Krishnan's case
(supra) and it was held that the acquisition on that account is not bad in law.
Accordingly we hold that the exercise of the power under section() and
declaration under section() and declaration under section are not vitiated by
any manifest error of law warranting to quash the declaration under section as
was done by the High Court.
The
appeals of the Meerut Development Authority are accordingly allowed. The
appeals of the claimants- respondents stand dismissed. The writ petition also
stands dismissed. But in the circumstances, without costs.
Shri Markandeya,
learned counsel has pointed out that in some of the cases despite the status
quo order passed by this Court, some of the respondents/appellants in contempt
case have carried out the constructions and that, therefore, he has taken out
contempt proceedings for violation of the orders of the court. We need not take
any further steps in this case. Suffered to state that any constructions will
not bind the authority nor are they entitled to compensation for these illegal
construction. The same would be taken note by the Land Acquisition Officer at
the time of passing the award and would be deal with appropriately. The
contempt petitions are accordingly dismissed. The Land Acquisition Officer
should pass the award within six months from the date of the receipt of this
order.
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