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 Amendment Act 5 of 1991 was enacted and
reserved for consideration of the 4 President and received the assent of the
President on 26.02.1991 and the Act was published in the Gazette n 27.02.1991.
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 situations 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 UP Amendment Act 5 of 1991 came to be made and it
was given retrospective effect from the date the Amendment Act 68 of 1984 has
come into force, i.e. 24.09.1984.
14. 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 24.09.1984 but before 11.01.1989 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 24.04.1984 (sic 24.9.1984) applying to
the previous notifications and declarations but also to the notification and
declaration to be published subsequently."
Further
in paragraph 16, the Court held:
"16.
It is seen that Section 3 of the Amending Act No.5 of 1991 seeks to validate
the illegal declarations made simultaneously with the publication of Section 4
notification and in some cases even prior to the publication of Section 4
notification; it also seeks to 4 validate certain acquisitions envisaged
therein. This validation is not illegal."
32.
In the same paragraph the Court found that the amendment was not
illegal merely because it was brought during the pendency of matter before this
Court. The Court also did not find anything wrong with the retrospective
operation of the Amendment Act. The Court further in paragraph 19 observed:
"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 the rules or may not
be according to the rules;
the
exercise of 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 the acquisition for
planned development of housing scheme is also an urgent purpose as laid down by
this Court in Aflatoon v. Lieutenant Governor of Delhi, State of UP v. Pista
Devi and in recent judgment of this Court .in State of Tamil Nadu v. L.
Krishnan. In the light of settled legal position the acquisition for housing
development is an urgent purpose and exercise of the power under Section 17(4)
dispensing with the enquiry under Section 5A is not invalid."
33.
In fact, this judgment is a complete answer to the questions
raised by Shri Trivedi, Learned Senior Counsel for the appellants. It holds
Section 3 to be valid and also holds that it had cured the defect. The judgment
also takes care of the contention that there was no necessity to raise the
urgency clause in these acquisitions and the exercise of raising the urgency
clause was not bona fide. Various other judgments were referred by Shri Trivedi
which we have included in the earlier part of the 4 judgment like S.R. Bhagwat
v. State of Mysore (cited supra), ITW Signode India Ltd. v. Collector of
Central Excise (cited supra), Bakhtawar Trust v. M.D. Narayan & Ors. (cited
supra), Madan Mohan Pathak v. Union of India (cited supra), Indira Gandhi v.
Raj Narayan (cited supra), Virender Singh Hooda v. State of Haryana (cited
supra), I.N. Saxena v. State of Madhya Pradesh (cited supra) and Janpad Sabha
v. C.P. Syndicate (cited supra). In view of the specific questions of this very
act having been considered in Meerut Development Authority's case (cited supra)
there would be no necessity to go into the principles laid down in
aforementioned cases in details here.
34.
The next argument of Shri Trivedi, Learned Senior Counsel was that
the Amending Act did not remove the defect. In our opinion, the contention is
incorrect in view of the fact that this question was considered and concluded
in Meerut Development Authority's case (cited supra). The same applies to the
further question challenging Section 3 of the Amending Act wherein it is
provided that the notification would not be invalid on the ground that
declaration under Section 6 of the Act was published on the same day on which
the notification under Section 4 of the Act was published or on any other date prior
to the date of publication of notification under Section 4 of the Act. We have
already pointed out that this Section was also considered specifically in
paragraph 7 where it is 4 quoted. Further in paragraph 16 which we have quoted,
this question is specifically answered. We, therefore, need not dilate on that
issue here.
35.
At this juncture, we must note the argument raised in the present
case that the declaration under Section 6 of the Act was made on 04.12.1984 but
was published on 08.12.1984. Therefore, in reality, the proviso did not
actually cure the defect. It is because of the wording used to the effect
"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."
36.
Learned Counsel pointed out that in the present case, Section 6
declarations were made earlier to the publication of notification under Section
4 of the Act. They further pointed out in proviso again the wording used is
"declaration may be made." Learned Counsel, therefore, argued that
even reading Sections 2 and 3 of the Amending Act, the defect is not cured as
the proviso empowers to "make a declaration" and does not refer to "notification
of declaration" under Section 6(2). The Learned Counsel, therefore,
intended that it is not permissible to supply words (casus omissus) to the
proviso and, therefore, if the proviso is read as it is, then it conflicts with
the language of Section 3 which speaks not of declaration, but
"publication of Section 6 notification". We do not think that the
contention is correct. In paragraph 16 of Meerut Development 4 Authority's case
(cited supra), this Court considered Section 3 and observed that:- "it is
seen that Section 3 of the Amending Act No.5 of 1991 seeks to validate the
illegal declarations made simultaneously with the publication of Section 4
notification and in some cases even prior to the publication of Section 4
notification."
Thus,
even a situation where Section 6 declaration was made prior to the publication
of notification under Section 4, was held to be covered and cured under Section
3, the validity of which was confirmed by this Court. It would, therefore, be
futile to argue that the Act did not cure the defect and on that account, the
provision is bad. In our opinion, added proviso would have to be read along
with and in the light of Section 3 of the amending Act which clearly envisages
a situation of the declaration under Section 6 being 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 official Gazette or on any day prior to
the date of publication of such notification as defined in Section 4
sub-section (1) of the principal Act (emphasis supplied). Therefore, what is
contemplated in proviso is the "publication" of notification. Since
this position was not happily obtained in the proviso, the Court in MDA's case
(cited supra), in paragraph 14, commented that proviso was not happily worded.
37.
It must be noted here that in Somwanti's case (cited supra), as 4
SCC 480 decided by 3 Judge Bench, identical situation was obtained on the facts
where there was a simultaneous publication of the Section 4 notification along with
the publishing of Section 6 declaration. The Court observed in Mohd. Ali's case
(cited supra):
"And,
therefore, in relation to the State of U.P., it is now settled law that when
the State exercises power of imminent domain and in exercise of the power under
Section 17 (4) dispensing with the enquiry under Section 5A to acquire the land
under Section 4 (1), the State is entitled to have the notification under
Section 4(1) and the declaration under Section 6 simultaneously published so as
to take further steps as required under Section 9 of the Act......."
38.
In that case, the notification under Section 4(1) of the Act was
published on 12.10.1974 whereas the declaration under Section 6 of the Act was
dated 28.09.1974. However, it was published along with Section 4 notification
simultaneously. This being the factual situation the argument regarding the
prior declaration under Section 6 of the Act must fall to the ground.
39.
We are also of the opinion that the word `a declaration' in
proviso to Section 17 (4) as inserted by the Validating Act would mean
published or a notified declaration under Section 6 (2) of the Act when it is
read in the light of Section 3 which refers to and validates not merely "a
declaration", but the publication thereof in official Gazette. As such we
do not find anything wrong even if the declaration is prior in time and its
notification is 4 simultaneous with the notification under Section 4 of the
Land Acquisition Act. The two authorities cited above, namely, Ghaziabad Development
Authority's case and Meerut Development Authority's case have taken the same
view and we are in respectful agreement with the same.
40.
It was then argued that Section 17 (4) of the Act as amended by
the Amending Act is ultra vires of the Articles 245 and 246 of the Constitution
as it nearly overrules the decision of this Court in State of UP v. Radhey
Shyam Nigam (cited supra). We have already dealt with this issue and pointed
out that this question was specifically dealt with in the two judgments of Lucknow
Development Authority and Meerut Development Authority (cited supra). A very
strong reliance was placed on Madan Mohan Pathak v. Union of India reported in
1978 (2) SCC 50 by Shri Trivedi, Learned Senior Counsel for the appellants. In
Meerut Development Authority's case (cited supra), the aforementioned decision
in Madan Mohan Pathak's case (cited supra) has already been considered in
paragraph 11 of that judgment. Reliance was also placed on the judgment in
Bakhtawar Trust v. M.D. Narayan & Ors. reported in 2003 (5) SCC 298.
Learned Counsel for the appellant relied on paragraphs 14 to 16. In our
opinion, paragraph 14 was completely against the appellants wherein the State
Legislature's power to make retrospective legislation and thereby validating the
prior executive and legislative acts retrospectively is recognized. Of course,
the same has to be done only 4 after curing the defects that led to the
invalidation. We respectfully agree with the propositions laid down in
paragraphs 14, 15 and 16 thereof. In reported in 1969 (2) SCC 283, which is
referred to in paragraph 16 of the decision, it is stated that:- "the
Legislature may follow any one method or all of them and while it does so, it
may neutralize the effect of earlier decision of the Court which becomes
ineffective after the change of law".
It is
further stated therein that the validity of the validating law, therefore,
depends upon whether the Legislature possesses the competence which it claims
over the subject matter and whether in making the validation it removes the
defect which the Courts had found in the existing law. The Amending Act has
clearly passed these tests. All the relevant cases on this subject have been
considered in this judgment.
Again in
ITW Signode v. Collector of Central Excise reported in 2004 (3) SCC 48 (cited
supra), our attention was invited by Shri Trivedi to paragraphs 44 to 46 of
this decision which dealt with the question of validity of validating Act and
reference is made to Shri Prithvi Cotton Others reported in 1989 (3) SCC 488.
There is nothing in these paragraphs which would go counter to the expressions
made in MDA's case (cited supra) or the finding that the present Amending Act
has 5 removed the defects pointed out in Radhey Shyam's case (cited supra).
Of course,
this case pertains to the taxing statutes. We do not find anything contrary in
the other decisions, namely, S.R. Bhagwat's and Indira Gandhi's case (both
cited supra) to which we have already made reference. The other cases, namely,
Virender Singh Hooda's case, I.M. Saxena's case, and Janpad Sabha's case (all
cited supra) need not be considered in view of what we have held above and
further there is nothing in those cases which would make us take another view
of the matter. We, therefore, do not agree with the contention raised by Shri
Trivedi that amended Section 17 (4) is ultra vires as it does not remove the
defects That question is closed by MDA's case (cited supra). We also do not
agree that it merely nullifies the judgment in Radhey Shyam's case (cited
supra).
41.
It was further argued by Shri Trivedi that the Amending Act is
ultra vires the Article 300 A of the Constitution inasmuch as it deprives the
petitioner of higher compensation as may be admissible pursuant to the fresh
acquisition proceedings after 1987. Three cases have been relied upon, namely,
State of Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors. reported in
1983 (2) SCC 33, T.R. Kapoor & Ors. v. State of Haryana & Ors. reported
in 1986 Suppl. SCC 584 and Union of India v. Tushar Rajan Mohanty reported in
1994 (5) SCC 450, wherein it is held that the Legislature cannot create
prospective or retrospective law so as to 5 contravene the fundamental rights
and that the law must satisfy the requirements of the Constitution. We have
absolutely no quarrel with that, however, we fail to understand as to how it
applies here. For establishing their rights, the appellants would have to
establish that the State Government was required, in law, to make a fresh
acquisition and could not continue with the old one. We have already held that
we are not convinced by the argument that there was anything wrong with the old
proceedings which came to be validated by the Amending Act. We have also found
that the Amending Act was a perfectly valid legislation. In that view, the
challenge must fail.
42.
The second decision relied upon is T.R. Kapoor & Ors. v. State
of Haryana & Ors. reported in 1986 Suppl. SCC 584. This case has been
relied upon for the contents in paragraphs 5 and 16 wherein it has been held
that benefits acquired under the existing rules cannot be taken away by an
amendment with retrospective effect. The present case is not such a case. No
benefits could be said to have been accrued in favour of the appellants herein
which have been taken away.
43.
To the same effect, is the third decision reported as Union of
India v. Tushar Rajan Mohanty reported in 1994 (5) SCC 450. We do not think
that the case is relevant to the present issue.
44.
The further argument by the Shri R.N. Trivedi, Learned Senior Counsel
appearing on behalf of the appellants herein was about the validity of Section
3 of the Validating Act, providing that a notification would not be invalid on
a ground that a declaration under Section 6 of the Act was published on the
same date, on which the notification under Section 4 of the Act was published
or any other day prior to the date of publication of the notification under
Section 4 of the Act. The contentions made in this behalf have already been
considered by us in the earlier part of the judgment, where we held that the
relevant date would be that of notification under Section 4 of the Act or the
notification of declaration under Section 6 of the Act and not the mere
declaration under Section 6 of the Act. We have already held with reference to
the earlier decisions in this behalf that this is not res integra and is partly
covered in Mohd. Ali's case (cited supra). In Mohd. Ali's case (cited supra), a
reference was made to Khadim Hussain's case (cited supra), where it has been
held that a notification under Section 6(2) amounts to the evidence of
declaration, which is in the form of an order. The notification is the
publication of such declaration and the proof of its existence. Our attention
was invited to State of Maharashtra & Ors. reported in 2002(1) SCC 689 to
the effect that publication under Section 6(2) is a ministerial act. What is
tried be impressed is that the relevant date should only be the declaration and
not its publication. We have already dealt with this subject earlier, particularly
5 relying on Mohd. Ali's case (cited supra) and the MDA's case (cited supra).
In view of the subsequent decisions, we are not in a position to accept the
argument that Section 3 itself, providing for the eventuality contained
therein, is in any way invalid. We, therefore, reject the argument. The Learned
Senior Counsel also referred to the decision in the 1997(8) SCC 47, in which
reference was made to the decision in the case 1995(2) SCC 497. It must be
immediately pointed out that both these decisions would not be relevant to the
present controversy, as in these decisions, what was being considered was as to
which would be the last date under Section 6(2) of the Act for the purposes of
Section 11A. The Goa & Ors. (cited supra), as well as in the case of Krishi
Utpadan different than the one involved in this matter. Those two cases in
Eugenio not be apposite.
45.
A further reference was made by the Learned Senior Counsel for the
International Airport Authority of India & Ors. reported in 1997(9) SCC 5
2002(1) SCC 538. In the second matter, a reference was made to the larger
Bench, as the Court was of the opinion that the view taken in two (cited supra)
was contrary to the decision in Khadim Hussain's case International Airport
Authority of India & Ors. (cited supra), the Learned Senior Counsel relied
on the observations made in paragraphs 13 and 16. In paragraph 13, it is stated
there that:- "What is needed is that there should be a gap of time of at
least a day between the publication of the notification under Section 4(1) and
of the declaration under Section 6(1)."
Further
in paragraph 16, it is observed that:- "What is material is that the
declaration under Section 6 should be published in the Gazette after the
notification under Section 4(1) was published, i.e., after a gap of at least
one day."
It will
be seen that a reference is made to the decision in the case of Radhey Shyam
Nigam (cited supra) in this paragraph, as also to the simultaneous publication
of notification under Section 4 and the declaration under Section 6 of the Act.
A reference was also made to Section 17(4), as also Section 17(1) A. It is
significant to note that later on when the question of validity of the
Validating Act came before this Court [which validating provision and proviso
to Section 17 (4) were not available in 5 Mohan Singh's case (cited supra),
this Court upheld the validity of the Validating Act, refuting the argument
that the Validating Act was only for the purpose of invalidating the decision
in Radhey Shyam Nigam's case (cited supra). In our opinion, once this Court
upheld the validity and once we have also approved of the Constitutional
validity of Validating Act, all these questions must lose their relevance. We
do not think that decision in India & Ors. (cited supra) can be of any help
to the appellants in the light Karnataka & Anr. reported in 2002(1) SCC
538, which is a decision after the reference was made to the larger Bench was
also referred before us by the Learned Senior Counsel. The question, which fell
for consideration in that decision was whether the notification under Section
6(2) of the Act should be published within the period prescribed by the proviso
to Section 6(1) of the Act. The Court ultimately upheld the decision in Khadim
Hussain's case (cited supra) and observed that in the decisions in the binding
decision of Khadim Hussain's case (cited supra) was not referred. It was also
observed that even otherwise in both these cases, declaration under Section 6
of the Act had been published within one year of the notification under Section
4 of the Act and the question in form, in which it has arisen in S.H.
Rangappa's case (cited supra), did not arise 5 there. We would like to say the
same thing in respect of the decision in the case of S.H. Rangappa's case
(cited supra) that the question which we have to consider in the present case,
as also the facts, are entirely different than the ones in that case. Once
Section 3 of the Validating Act came validly on the statute book, there will be
no question of any further consideration. The decision in the case of S.H.
Rangappa's case (cited supra) turns essentially on the question of limitation.
In the decision in S.H. Rangappa's case (cited supra), the law laid down in
Khadim Hussain's case (cited supra) has been approved. Once we give the
interpretation that we have given to Section 3 and the proviso supplied by
Section 2, the things become clear. We are, therefore, of the clear opinion
that decision in S.H. Rangappa's case (cited supra) also does not help the
appellants herein in view of the different factual scenario, as also because
the question of validity of the Validating Act is entirely different from the
question of limitation.
46.
The Learned Senior Counsel further argued that we should make a
reference to the larger Bench and has formulated the questions as under:-
"1. Whether the proviso to Section 17(4) inserted by the Amending Act
cures the defect pointed out in Radhey Shyam only for the period between
24.9.1984 and 11.1.1989? 5
2.
Whether "declaration" mentioned in the aforesaid proviso refers to it
as understood by Section 6(1) or Section 6(2)?
3.
Whether the validation provision in Section 3 of the Amending Act goes beyond
the newly inserted proviso inasmuch as:- (h) it cures the defect of "publication"
of the declaration and not making of the declaration.
(i) it
validates publication of the declaration under Section 6 prior and subsequent
to the date of the publication under Section 4(1) of the principal Act.
4.
Whether the distinction between declaration simpliciter in Section 6(1) and a
published declaration under Section 6(2), pointed out in Khadim Hussain (4
Judges' decision) and followed by 3 Judges' decision in Rangappa's Case was
ignored in Meerut Development Authority's case?
5. It
would appear that what is cured is not validated and what it validates is not
cured.
6.
Whether in view of the admitted incapacity to offer, tender and pay the
compensation under sub-Section (3) and (3A) of Section 17, the notification
under Section 17(4) becomes void? 5
47.
We do not think that there is any need to refer any of the
questions raised above in view of our observations in the earlier paragraphs,
as the schemes of Ghaziabad Development Authority and Meerut Development
Authority have already been upheld by this Court in the earlier decisions.
Secondly,
the basic objective of the Validating Act was to protect the scheme during the
period 1984-89 only and subsequently, there has been no such case of
simultaneous notification in the State of Uttar Pradesh for the last two
decades, as stated by the Learned Senior Counsel appearing on behalf of the
LDA. Even in respect of Ujariyaon Housing Scheme Part- III, the declaration
under Section 6 of the Act is published much after the publication of notification
under Section 4 of the Act. Thirdly, as has been done in MDA's case (cited
supra) we have held that Section 17 (4) proviso has to be read together with
and in the light of Section 3 of the amending Act and not de hors of each other
in view of the statement of objects and reasons of that Act. It must be
realized that this Court ironed the creases in the proviso added to Section
17(4) in MDA's case (cited supra). Fourthly, in one of the appeals before us in
Civil Appeal Nos. Shri Qamar Ahmad, Learned Counsel, the land owners have
already accepted the compensation, while in the matter of Civil Appeal No. 3415
of Ors.), the title of Society itself has been found to be infirm and not
established as per the findings of the High Court. It is obvious that 5
registration of the Sale Deed in respect of the Society is subsequent to the
notification under Section 4 of the Act and, therefore, inconsequential. The
agreements in favour of that Society do not show that there was any
consideration passed. Again, the possession of the land has already been taken,
as claimed by the LDA, way back in the year 1985 for which there are documents
like Panchanama and the whole township has now come up, persons have built
their houses. As far as the sixth point of reference is concerned, we would
deal with the same separately in this judgment as we do not agree with the
proposition made in that point. Lastly, as held in L.Rs. reported in 1999 (4)
SCC 11 and Central Board of Dawoodi Bohra principle of Stare Decisis would
apply. In this case, their Lordships referred to observations by Lord Reid and
quoted seven principles regarding the binding precedent. They are:
"(1)
The freedom granted by the 1966 Practice Statement ought to be exercised
sparingly (the 'use sparingly' Services, 1972 AC 944, 966).
(2) A
decision ought not to be overruled if to do so would upset the legitimate
expectations of people who have entered into contracts or settlements or
otherwise regulated their affairs in reliance on the validity of that decision
(the 'legitimate expectations' criterion) (Ross Indyka, (1969) AC 33, 69).
6 (3) A
decision concerning questions of construction of statutes or other documents
ought not to be overruled except in rare and exceptional cases (the
'construction' criterion) (Jones case (supra)) (4) (a) A decision ought not to
be overruled if it would be impracticable for the Lords to foresee the
consequence of departing from it (the 'unforeseeable consequences' (b) A
decision ought not to be overruled if to do so would involve a change that
ought to be part of a comprehensive reform of the law. Such changes are best
done 'by legislation following on a wide survey of the whole field' AC 476,
500).
(5) In
the interest of certainty, a decision ought not to be overruled merely because
the Law Lords consider that it was wrongly decided. There must be some
additional reasons to justify such a step (the 'precedent merely (6) A decision
ought to be overruled if it causes such great uncertainty in practice that the
parties' advisers are unable to give any clear indication as to what the courts
will hold the law to be (the 'rectification of uncertainty' criterion), Tradax
Export SA, 1974 AC 479, 533, 535: (1972) 3 All ER 420) (7) A decision ought to
be overruled if in relation to some broad issue or principle it is not
considered just or in keeping with contemporary social conditions or modern
conceptions of public policy (the 'unjust or outmoded' (1968) AC 910,
938)."
48.
We would immediately point out that principles at serial Nos. 2,
3, 4 (a) above as also principle No. 5 would apply to the present situation, 6
where, by upsetting the whole acquisition tremendous upheaval is likely to
follow. In that view we do not see any reason for making the reference as
argued by the Learned Counsel.
II Effect
of alleged non-payment of 80% compensation under Section 17 of the Principal
Act
49.
As has been observed in Para 47, we would not take up the above
topic. It was urged by the Learned Counsel that the State Government, though it
acquired the possession under Section 17 of the Act, did not pay the 80% of
compensation, as required under Section 17 of the Act and on that account, the
whole exercise was bad. We do not think that the proposition is correct. It was
tried to be established that the sufficient funds were not available with the
Government. We would prefer not to go into the factual questions as the High
Court has commented upon the same in great details. The tenor of the argument
is that Sections 17(3) and 17(3A) of the Act are mandatory and the compensation
ought to have been offered, tendered and paid to the land owners before taking
the possession. Some documents were referred to in I.A. Nos. 4 and 5 of 2006 to
show that LDA did not have the funds and it failed to provide sufficient funds
even as late as upto 2004. The further argument was that even if it was assumed
that the possession was taken on 21.5.1985, yet 6 the compensation was paid to
the concerned persons much later and in some cases, it was never paid.
50.
Heavy reliance was placed on the documents which were filed
alongwith I.A. Nos. 4 and 5. This question in the precise form, was not raised
before the High Court. These documents were not the part of the High Court
record. Shri Dwivedi, Learned Senior Counsel for LDA further argued that these
documents could not be accepted at this late stage and that the LDA did not
have any opportunity to meet those documents, since on I.A. Nos. 4 and 5, no
notice has been issued by this Court. Since the source, authentication and
verification of those documents was not clear, these documents were not liable
to be considered. The Learned Senior Counsel, however, submitted that the land
acquisition proceedings on that account cannot be faulted with and cannot be
set at naught.
50A. The
Learned Senior Counsel argued that in case where the accelerated possession is
required to be taken, Section 17(1) of the Act, as also Section 17(2) of the
Act would be attracted and such possession can be taken immediately after the
publication of Section 9(1). Section 17(3) of the Act provides that in every
case under Section 17(1) and Section 17(2) of the Act, the Collector shall
offer compensation for standing crops and trees or other damage at the time of
taking possession.
The
Learned Senior Counsel pointed out that the expression - "under either of
the Sub-Sections" shows that Sub-Section (3) is attracted only 6 when the
possession is taken under Sub-Section (1) or (2) of Section 17 of the Act. He,
therefore, contended that where Section 5-A is dispensed with under Section
17(4) of the Act, two Sub-Sections, i.e., (3) and (3A) of Section 17 of the Act
would not apply. The argument is clearly incorrect.
By this,
the attempt is to dissect Sub-Section (4) in two parts, firstly, where
Sub-Section (1) and (2) are applicable and secondly, where the enquiry under
Section 5-A is dispensed with. That is not the import of the language. Section
17 has to be read in full. It plainly reads that where the possession is taken
with the aid of Section 17(2), the compensation must fall in advance as per the
provisions of Section 3A. In fact, Section 3A has been brought on the
legislature with the sole purpose of providing a compensation for the
possession taken. That is why 80% of the estimated compensation is to be paid
because even thereafter, the award proceedings would go on and the total
compensation would be decided upon. The attempt on the part of the Learned
Senior Counsel to read that the payment of compensation is not required where
Section 5-A enquiry is dispensed with, would be doing violence to the language,
firstly, of Section 3A and secondly, of Sub-Section (4) itself. The clear legal
position is that the dispensation of Section 5-A enquiry is only and only to
enable the State Government to take possession under Sub-Section (1) and (2) of
Section 17. A third category cannot be created so as to avoid the payment of
compensation. The contention is, therefore, clearly wrong.
51.
However, the question is as to what happens when such payment is
not made and the possession is taken. Can the whole acquisition be set at
naught? In our opinion, this contention on the part of the appellants is also
incorrect. If we find fault with the whole acquisition process on account of
the non-payment of the 80% of the compensation, then the further question would
be as to whether the estimation of 80% of compensation is correct or not. A
further controversy can then be raised by the landlords that what was paid was
not 80% and was short of 80% and, therefore, the acquisition should be set at
naught. Such extreme interpretation cannot be afforded because indeed under
Section 17 itself, the basic idea of avoiding the enquiry under Section 5-A is
in view of the urgent need on the part of the State Government for the land to
be acquired for any eventuality discovered by either Sub-Section (1) or
Sub-Section (2) of Section 17 of the Act.
52.
The only question that would remain is that of the estimation of
the compensation. In our considered view, even if the compensation is not paid
or is short of 80%, the acquisition would not suffer. One could imagine the
unreasonableness of the situation. Now suppose, there is state of emergency as
contemplated in Section 17(2) of the Act and the compensation is not given,
could the whole acquisition come to a naught? It would entail serious
consequences. This situation was considered, 6 in 1993 (4) SCC 369. It was held
therein that once the possession is taken as a matter of fact, then the owner
is divested of the title to the land. The Court held that there was then no
question of application of even Section 11-A. Commenting upon Section 11-A, it
was held that that Section could not be so construed as to leave the Government
holding title of the land without an obligation to determine the compensation,
make an award and pay to the owner the difference between the amount of the
award and the amount of the 80% of the estimated compensation. The three
Judges' Bench of the Court took the view that even where 80% of the estimated
compensation was not paid to the land owners, it did not mean that the
possession was taken illegally or that the land did not vest in the Government.
In short, this Court held that the proceedings of acquisition are not affected
by the non-payment of compensation. In that case, the Krishi Utpadan Mandi
Samiti, for which the possession was made, sought to escape from the liability
to make the payment. That was not allowed.
53.
The Court, in para 17, held as under:- "17. In the instant
case, even that 80% of the estimated compensation was not paid to the
appellants although Section 17(3-A) required that it should have been paid
before possession of the said land was taken but that does not mean that the
possession was taken illegally or that the said land did not thereupon vest in
the first respondent. It is, at any rate, not open to the third respondent,
who, as the letter of the Special Land Acquisition Officer dated June 27, 1990
shows, failed to make the necessary monies available and who has been in
occupation of the said land ever since its possession was taken, to urge that
the possession was 6 taken illegally and that, therefore, the said land has not
vested in the first respondent and the first respondent is under no obligation
to make an award."
Rajasthan
& Ors. etc. etc. reported in 1996 (3) SCC 1, similar view was reported.
That was a case under the Rajasthan Urban Improvement Act, 1987, under which
the acquisition was made using Section 17 of the Act.
The Court
took the view that once the possession was taken under Section 17 of the Act,
the Government could not withdrew from that position under Section 18 and even
the provisions of Section 11-A were not attracted.
That was
of course a case where the award was not passed under Section 11-A after taking
of the possession. A clear cut observation came to be made in that behalf in
Para 12, to the effect that the non-compliance with Section 17 of the Act,
insofar as, payment of compensation is concerned, did not result in lapsing of
the land acquisition proceedings. The law laid Ors. (cited supra) was approved.
The Court also relied on the decision in where similar view was taken regarding
the land acquisition proceedings not getting lapsed. The only result that may
follow by the non-payment would be the payment of interest, as contemplated in
Section 34 and the proviso added thereto by 1984 Act. In that view, we do not
wish to further refer the matter, as suggested by Shri Trivedi, Learned Senior
Counsel 6 and Shri Qamar Ahmad, Learned Counsel for the appellants. Therefore,
even on the sixth question, there is no necessity of any reference.
III.
Challenge under Article 14 of the Constitution of India
54.
Learned Senior Counsel then urged that the provisions of the
amending Act and also the provisions of Land Acquisition Act like Section 17
(4) are invalid on the test of Article 14 of the Constitution. It is pointed
out by Shri Trivedi, Learned Senior Counsel that in GDA's case (cited supra)
the impugned notification was held to be valid in view of the amendment made to
Section 17 (4) of the Act. However, there was no challenge to the validity of
Section 17 (4) of the Act in the said case.
Similarly,
it was argued that in MDA v. Satbir Singh [1996 (11) SCC 462], the Court had
made observation in paragraph 8 that the validity of Section 17 (4) was upheld
in GDA's case (cited supra), whereas in fact it was not tested in GDA's case
(cited supra) at all. It was further urged that the validity of the Act was not
tested with respect to its inconsistency with Article 14 and Article 300A of
the Constitution of India. In this behalf it was argued by the Learned Counsel
that there was an observation to the effect in paragraph 14 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 6 with both the situations ,namely, the notification
published on or after September 24, 1984 but before January 11, 1989 as also
the declaration to be simultaneously published subsequent thereto. It was
further argued that if we read the proviso in the manner that we have already
done then it would be a case of casus omissus being supplied by the Court. We
have already taken all these arguments into consideration. In view of the
interpretation given by us to Section 3 and the proviso and the necessity of
reading the two provisions in the light of each other, there would be no
occasion of supplying casus omissus and the argument in that behalf must fail.
55.
Insofar as the validity on the backdrop of Article 14 is
concerned, it is true that in paragraph 8 there has been an observation that
the validity of the proviso added by the State Legislature by way of an
amendment to Section 17 (4) of the Act has been upheld by the two Judge Bench
decision in GDA's case (cited supra). However, when we see the rest of the
judgment it can be said that no such question was considered.
However,
the fact remains that in GDA's case (cited supra), the validity was not
questioned or doubted and the challenged Section was interpreted and treated to
be valid by the Court. When we see the further judgment in MDA's case (cited
supra) in the further paragraphs, this Court has approved of the whole amending
Act reiterating on the decision in Indian Aluminium Co. (cited supra). The
Court has taken a full review of the 6 then existing law by way of the decision
of this Court in State of Orissa in 1996 (4) SCC 281. Thereafter, referring to
Gouri Shankar Gauri and also referred to the provisions of Article 254 (2) and
(3) and approved of the whole Amending Act as such. In our opinion, reading
paragraph 14 of this judgment in its correct perspective would repel the
argument of the appellants that the provision is arbitrary in any manner or has
the effect of creating impermissible classification. In our opinion, the
language of paragraph 14 does not help the petitioners. If the petitioners in
MDA's case (cited supra) did not specifically address the Court on the question
of Constitutional validity of the Amending Act (as is being claimed by the
appellants), we do not think it will be permissible for the petitioners to
raise this point which was admittedly not raised either in GDA's case (cited
supra) or MDA's case (cited supra). Petitioners would not be permitted Shambhu
Nath Mukherji & Ors. reported in AIR 1978 SC 8]. We need not go in that
question since MDA's case (cited supra) is a Larger Bench decision.
56.
However, this is apart from the fact that in our opinion there can
be no question of Section 17 (4) proviso or the provisions of the Amending Act
being invalid in any way. We, therefore, do not feel necessary to refer this
case on this issue to a Larger Bench, particularly, in respect of the validity
of the provisions vis-`-vis Article 14 of the Constitution. We do not find the
provisions in any manner arbitrary or making impermissible classifications or
suggesting invidious discrimination nor can the provisions in the amending Act
can be termed as "arbitrary" providing no guiding principles.
57.
The Learned Senior Counsel appearing for the appellants had
heavily relied on paragraph 14 of the judgment in Meerut Development accept the
contention raised that the contents in paragraph 14 holding that the provisions
of the amending Act are not limited to the two dates mentioned and can be
applicable even subsequently, results in creation of two classes and the
possible discrimination. In our opinion, it will not be necessary to go into
that question as the present appeals pertaining to Ujariyaon Housing Scheme
Part-II are relating only to the period between 24.9.1984 and 11.1.1989. It is
stated by the Learned Senior Counsel appearing for the LDA that only two
appeals pertain to Ujariyaon Housing Scheme Part-III and even in that case, the
notifications were published in the year 1991 and the issue of simultaneous
publication of notification does not arise, as Section 6 declaration was signed
and published in 1992.
7
Therefore, there will be no need to go into the academic question whether
Amending Act applies only to the period between 24.9.1984 and 11.1.1989 or even
the subsequent period. Further, even if, as held in MDA's Case (cited supra),
it applied to the subsequent period, it does not infringe Article 14 for the
reasons given by us earlier.
58.
Shri Trivedi, Learned Senior Counsel for the appellants further
argued that there was invidious discrimination between the Ujariyaon Housing
Scheme Part-II and Ujariyaon Housing Scheme Part-III, inasmuch as while the
notification published on 8.12.1984 under Section 4 read with Section 17(4) of
the Act was allowed to proceed with the help of the Validating Act, in case of
Ujariyaon Housing Scheme Part-III, however, a fresh notification was issued on
30.12.1991 and Section 6 declaration came to be issued on 30.12.1992. Thus,
while the notification in respect of Ujariyaon Housing Scheme Part-II was
validated, the notification in respect of the Ujariyaon Housing Scheme Part-III
was allowed to lapse and a fresh notification was published, meaning thereby that
persons coming under Ujariyaon Housing Scheme Part-III, got the better deal (if
they really did) and higher compensation. This argument of Shri Trivedi was
adopted by Shri Qamar Ahmad. Though we have considered this argument in the
earlier part of the judgment we again reiterate that the argument is clearly
incorrect. The Validation Act did not confer any discretion on the State
Government to apply its provisions to a particular scheme and then issue 7
notifications. It was a onetime exercise for validating a particular scheme by
amending the Act which has already been found to be valid in MDA's case (cited
supra). Again Ujariyaon Housing Scheme Part-III did not lapse because of the
decision of the Government. Since the award was not made within the time prescribed
by the Section 11A of the Act, it had the effect of lapsing the notifications.
Therefore, the State Government was left with no other way and had to issue a
fresh notification. In Ujariyaon Housing Scheme Part-II, the award was made by
the Collector within the time and, therefore, those notifications were not
affected.
Therefore,
the argument that there was invidious discrimination in between the two schemes
has to fail.
59.
It was reiterated by Shri Trivedi, Learned Senior Counsel, as
also, Shri Qamar Ahmed, Learned Counsel that the question of constitutional
validity of the Act was not considered by the High Court as the Act was held to
be valid in GDA's case (cited supra) and in MDA's case (cited supra). It was,
however, urged that the question of Constitutional validity was never
considered in these cases. Reliance was placed on judgments reported as Arnit
Das v. State of Bihar reported in 2000 (5) SCC 488, State of UP & Anr. v.
Synthetics & Chemicals Ltd. & Anr. reported in 1991 (4) SCC 139, Nirmal
Jeet Kaur v. State of Madhya Pradesh & Anr. reported in 2004 (7) SCC 558,
ICICI Bank & Anr. v. Municipal Corporation of Greater Bombay & Ors.
reported in 2005 (6) SCC 404, 7 A.R. Antulay v. R.S. Naik & Ors. reported
in 1988 (2) SCC 602, Zee Telefilms Ltd. & Anr. v. Union of India & Ors.
reported in 2005 (4) SCC 649, P. Ramachandra Rao v. State of Karnataka reported
in 2002 (4) SCC 578, Nand Kishore v. State of Punjab reported in 1995 (6) SCC
614, Isabella Johnson v. M.A. Susai reported in 1991 (1) SCC 494. We do not
think that the law laid down in these cases would apply to the present
situation. In all these cases, it has been basically held that a Supreme Court
decision does not become a precedent unless a question is directly raised and
considered therein, so also it does not become a law declared unless the
question is actually decided upon. We need not take stock of all these cases
and we indeed have no quarrel with the propositions settled therein. However,
we may point out that, firstly, the question of validity is settled in MDA's
case (cited supra). This is apart from the fact that we are of the opinion that
there is nothing wrong with the Amending Act insofar as its Constitutional
validity is concerned. We have already rejected the argument that there was any
discrimination between Ujariyaon Part II and Ujariyaon Part III schemes. We are
convinced with the explanation given by the State Government as to why
Ujariyaon Part III scheme was left out of the consideration of validation.
Indeed the acquisition therein could not have been validated on account of the
time having lapsed for doing so. Once Sections 2 and 3 and the proviso are read
in the manner indicated in MDA's case (cited supra) as also in the light of
observations made by us, no question remains of any 7 Constitutional
invalidity. We are not at all impressed by the contention raised that the
Amending Act cannot pass the test of Article 14. We hold accordingly.
60.
Our attention was invited to R.K. Dalmia v. S.R. Tendolkar (cited
supra). In fact, according to us this judgment does not help the appellants for
assailing the Constitutional validity of the statute. In so far as the
Executive action is concerned, we do not think that there is any scope to
interfere in this matter. Shri Qamar Ahmed in his written arguments has adopted
the arguments of Shri Trivedi. In his written submissions he has challenged the
provisions of Sections 17 (1), 17 (1A), 17 (3A) and 17 (4A) and proviso to
Section 17 (4) as ultra vires to the Constitution. He has also challenged the
provisions of Section 2 of the UP Act No. 8 of 1974 as violative and ultra
vires to Section 3A, 3B, 4, 5, 6, 7, 8 of Land Acquisition Act No.1 of 1894 as
amended from time to time. In support of his argument, Learned Counsel has relied
on the law laid down in Anwar Ali Sarkar's case (cited supra). According to
him, Sections 17(1), 17(1A), 17(3A) and 17(4) of the Act and Section 2 of the
UP Act No. VIII of 1974, as also the UP Act No. 5 of 1991 are violative of
Articles 14, 19, 21, 39, 48, 48A and 300A for invidious discrimination. Learned
Counsel also submits that there are no guidelines for the exercise of power
under Sections 17(1), 17(1A) and Section 17 (4), as the word
"urgency" is too vague, uncertain and elusive criteria to form the
basis of a valid and reasonable 7 classification. Learned Counsel also referred
to the case of Lachman Das v. State of Bombay reported in AIR 1952 SC 235. A
reference was also made to Charanjit Lal Chowdhury v. Union of India & Ors.
reported in AIR 1951 SC 41. Learned Counsel has traced the whole case law
following Anwar Ali Sarkar's case (cited supra) and has quoted extensively from
that case as also from Kathi Ranning Rawat v. State of Saurashtra reported in
AIR 1952 SC 123. We have already pointed out that this group of cases would be
of no help to the appellants, particularly, because the fact situation and the
controversy involved in the present matter is entirely different. We do not
agree with the Learned Counsel that there is any classification, much less any
impermissible classification and any group has been treated favourably as
against another group or that the law has treated a group more favourably than
the other, refusing equal protection to such group. As regards the general
principles from Anwar Ali Sarkar's case (cited supra) as also from State of
Punjab v. Gurdial Singh reported in AIR 1980 SC 319, we must point out that
ultimately this Court culled out the principle that if the Legislature
indicates a policy which inspires it and the object which it seeks to attain,
then the selective application of the law can be left to the discretion of the
Executive authority [see Kedar Nath Bajoria's case reported in 1953 SCR 30].
Such law has been approved in R.K. Dalmia's case (cited supra) as also in In
Re:
Special
Courts Bill (cited supra).
61.
There can be no dispute that the law must indicate the policy and
the object clearly while acquiring. Discretion upon the application of law and
the power under Section 17 of the Act of doing away with Section 5A inquiry has
to be exercised in a proper manner. There are cases where this Court has not
brooked any breach of provision under Section 17 of the Act. However, we must
say that there are clear guidelines provided under Section 17(1) read with Section
4 for understanding the concepts of urgency and emergency. In this behalf, we
must hold that the criteria of emergency as provided under Sub-Section (2) of
Section 17 is separate and distinct from the criteria of urgency. In our
opinion, these two criteria provide clear guidelines and cannot be held as
arbitrary. In Krishi Utpadan Mandi Samiti's case and Pista Devi's case (cited
supra), this Court has laid down that mere existence of urgency is not enough
and the Government must further consider the matters objectively as to the
dispensation with Section 5A permissible under that particular situation.
Section
17 of the Act has existed on the statute book for a long time and on a number
of occasions the applicable criteria of urgency and emergency have been tested
by the Courts on account of the Government actions in that behalf being
challenged. Wherever the Courts have found that urgency did not exist in
reality or the dispensation of Section 5A was not considered separately such
notifications have been struck down on a number of occasions. However, we do
not see any reasonable argument having been made against the Constitutional
validity. The validity of this 7 Section 17 of the Act has been upheld by the
Allahabad High Court as also the Gujarat High Court in Sarju Prasad Sahu v.
State of Uttar Pradesh & Ors. reported in AIR 1962 ALL 221 and Ram Sevak v.
State of UP Ors. reported in AIR 1963 All 24. The second judgment of Allahabad
High Court has been approved by the court in Ishwarlal Girdharlal Joshi etc. v.
State of Gujarat & Anr. reported in AIR 1968 SC 870. We, therefore, do not
accept the contention raised by Shri Qamar Ahmad, Learned Counsel for the
appellants that the power under Section 17(4) of the Act of dispensing with the
enquiry under Section 5-A is in the nature of unbridled and uncanalised power
in the hands of Executive to take possession, invoking urgency clause. As
discussed in the earlier cases by this Court (cited above), it cannot be said
that the Section suffers from any constitutional invalidity on account of being
arbitrary in the nature.
62.
In fact, the reliance was placed on the decision in Suraj Mall
Mohta SC 545. That was a case under the tax jurisprudence, dealing with certain
Sections of the Taxation on Income (Investigation Commission) Act, 1947.
It was
found to be invalid as it had provided different procedure for the tax
abettors. This Court had found that the procedure was more drastic for a
certain group. The provisions of Sub-Section (4) of Section 5 were found to be
discriminatory. The High Court has also dealt with this case.
Though
there can be no dispute on the principles, we do not think that the 7 principle
are applicable to the present controversy. We have already given Gujarat (cited
supra). The Learned Counsel appearing on behalf of the respondents invited our
attention to the findings recorded by the High Court, with which we are
satisfied. We must observe that merely because the decision of the Government
on question of urgency is not justiciable, it does not mean that Section 17(4)
of the Act is discriminatory. The High Court has made a reference to the
observation by this Court in Matajog discretionary power is not necessarily a
discriminatory power and that abuse of such power is not to be easily assumed.
Even at the cost of repetition, we may mention the case of R.K. Dalmia v. S.R.
Tendolkar (cited supra) as a complete answer to the argument of Shri Qamar
Ahmad, Learned Counsel for the appellants. Ishwarlal's case (cited supra) is
also a total answer to the argument that Sub-Section (1) and (4) of Section 17
of the Act are unconstitutional. The High Court has correctly held that
Sub-Sections (1), (3A) and (4) of Section 17 of the Act do not suffer from any
unconstitutionality on account of the alleged breach of Article 14 of the
Constitution of India. Shri Qamar Ahmad, Learned Counsel for the appellants
also argued that before deciding to take the possession under the various
provisions of Section 17 of the Act, a person is entitled to a notice. The High
Court has correctly dealt with this question. It firstly considered the law
laid down in the cases of Kraipak 7 Municipal Corporation reported in AIR 1986
SC 180 as also in Union of upon by the High Court. The High Court was,
undoubtedly, correct in holding that there was no necessity of a notice since
the satisfaction required on the part of the Executive is a subject of satisfaction,
which can only be assailed on the ground that there was no sufficient material
to dispense with the enquiry or the order suffers from malice. We will deal
with the question as to whether there was urgency and what is the nature of
urgency required. We, therefore, do not think that Sub-Sections (1) (3A) and
(4) of Section 17 of the Act suffer, as there is no notice provided in those
Sub-Sections before the possession is taken.
IV. Issue
of urgency and application of Section 17 of the Principal Act
63.
At this juncture itself, we must also consider the argument that
there was no real urgency in this matter. It cannot be ignored that this land
was urgently needed for housing. Large-scale development and utilization of
acquired land after the acquisition is apparent on the face of the record. A
number of houses have been constructed, third party interests were created in
whose favour the plots were allotted and the High Court has 8 also commented
while disposing of the writ petitions that the quashing of the notification at
this stage will prejudice the interests of the people for whom the schemes were
evolved. While considering as to whether the Government was justified in doing
away with the inquiry under Section 5A, it must be noted that there are no
allegations of mala fides against the authority. No evidence has been brought
before the judgment and the High Court has also commented on this. The housing
development and the planned developments have been held to be the matters of
great urgency by the court in Pista Devi's case (cited supra). In the present
case we have seen the judgment of the High Court which has gone into the
records and has recorded categorical finding that there was sufficient material
before the State Government and the State Government has objectively considered
the issue of urgency. Even before this Court, there were no allegations of mala
fides. A notice can be taken of the fact that all the lands which were acquired
ultimately came to be utilized for the scheme. We, therefore, reject the
argument that there was no urgency to justify dispensation of Section 5A
inquiry by applying the urgency clause.
In a
reported decision Kishan Das & Ors. v. State of UP & Ors. reported in
1995 (6) SCC 240, this Court has taken a view that where the acquisition has
been completed by taking the possession of the land under acquisition and the
constructions have been made and completed, the question of urgency and the
exercise of power under Section 17(4) would not arise. We must notice that acquisitions
in this case are of 1984-1985 8 and two decades have passed thereafter. The
whole township has come up, the houses and the lands have been allotted, sold
and re-sold, awards have been passed and overwhelming majority of land owners
have also accepted the compensation, this includes even some of the appellants.
In such circumstances we do not think that the High Court was in any way wrong
in not interfering with the exercise of power under Section 17 (4) of the Act.
At any rate, after the considered findings on the factual questions recorded by
the High Court, we would not go into that question.
64.
The High Court has taken a stock of the argument on behalf of the
respondents herein that there was material available in support of the
satisfaction on the part of the Executive to take possession under Section 17
of the Act. The High Court has relied on the decisions in Raja Anand Governor
of Delhi reported in AIR 1984 SC 1721, as also in Pista Devi's case (cited
supra) and Krishi Utpadan Mandi Samiti's case (cited supra). The High Court has
correctly come to the conclusion that there was all the justification for
invoking the urgency clause and taking the possession for the lands in
question. We endorse the said finding of the High Court.
8 Other
contentions on merits
65.
Apart from these contentions, both Shri Trivedi, Learned Senior
Counsel, as also Shri Qamar Ahmed, Learned Counsel again raised the same
questions of facts like the non-publication of Sections 4 and 6 notifications.
Insofar as that is concerned, we have mentioned it only for rejecting the
contention. After the judgment of the High Court we will not go into that
question again being a pure question of fact. Similar is the question raised
about the land belonging to the cooperative society and the release of the
same. We do not think that that question needs to be answered in the wake of
the High Court's judgment. The High Court judgment is absolutely correct in
that behalf. In our considered opinion, even if the Government had taken a decision
not to acquire the land belonging to the cooperative society as far as
possible, there is nothing wrong if such lands were acquired. What is to be
seen is the bona fides of the Government behind the decision to acquire the
lands. On that account no fault can be found with the concerned notifications
under Sections 4 and 6.
66.
Similar contentions were raised regarding the possession. We do
not propose to go into the question of facts and questions relating to the
individual claims. We have noted that the respondents herein having
specifically claimed that the possession of the lands has already been 8 taken.
Therefore, accepting that claim, as has been done by the High Court, we would
not go into those questions of fact.
67.
To put the record straight, there is enough evidence in shape of
the stand taken by the LDA in its counter affidavit before the High Court,
where it was asserted that the possession was already taken. Even in the
present Civil Appeal, the same stand is reported with reference to a particular
date, i.e., 21.5.1985 that the possession was taken and there is also a true
copy of the Panchanama on record. Insofar as the Civil Appeal concerned, it was
urged by the appellants that in the affidavit of State of U.P. before the High
Court, the date of taking possession was mentioned as 30.3.1986 and, therefore,
it was urged that the possession could not have been taken on 21.5.1985 as per
record. The Learned Senior Counsel for the LDA pointed out that this was
incorrect and the correct date of taking possession was only 21.5.1985, while
the possession of some plots was handed over to the LDA on 30.3.1986. This is
apart from the fact that in today's context, when the whole township is
standing, this question goes to the backdrop. In the face of Panchanama, which
is on record, we would endorse the finding of the High Court that the
possession was taken on 21.5.1985.
68.
Shri Dwivedi, Learned Senior Counsel appearing on behalf of the
LDA also found fault with the Sale Deed in favour of Pratap Sahkari Grih 8
Nirman Samiti Ltd., which is being represented by Shri Trivedi, Learned Senior
Counsel. It was urged that its claim was based on the Sale agreement, which was
executed one day before the publication of Section 4 Notification in the
Gazette, i.e., 8.12.1984. It is admitted case that the Sale Deed was registered
on 22.1.1986, which is clearly a date beyond the date of Section 4
notification. It is already held by this Court in U.P. Jal 698 that if any
purchases of the land are made after the publication of Section 4(1)
notification, landlords in this case would not get any right or entitlement to
question the validity of the title of the State based on the acquisition.
Obviously, the claim of this society is on the basis of the Agreement of Sale
dated 7.4.1983. It was reported by the Learned Senior Counsel that Shri Hukum
Chand Gupta also expired on 27.7.1983 and ultimately, the Sale Deed was
executed on 7.12.1984. We do not want to go into this question of fact, but we
will certainly go with and endorse the finding of the High Court in this behalf
that the society had purchased the land after the issuance of notification.
69.
It was urged by Shri Trivedi, Learned Senior Counsel for the
appellants that there was a policy to give back 25% of the acquired land to the
cooperative societies. This was suggested on the basis of various letters on
record, suggesting that LDA was considering the revision. Shri 8 Dwivedi,
Learned Senior Counsel for LDA pointed out that once the land was acquired and
the possession had been taken, Section 48 did not apply. Besides, according to
the Learned Senior Counsel, the policy applied to the cooperative societies,
who had land before the acquisition process begins. This was obviously with the
object to safeguard the interests of the members of the society. The Learned
Senior Counsel was at pains to point out that there is no such disclosure as to
who were the members of the society. According to the Learned Senior Counsel,
the society was nothing, but a front piece set up for obtaining 25% of the
land.
Therefore,
the rent of the 25% of the land was not acceptable. It was also pointed out
that the Sale Agreement was also entered into a day before the publication of
the notification in the Gazette and the registration of the Sale Deed was also
done much after the notification was published and, therefore, this policy,
even if there is one, would not be applicable to the society in question. We
would not, therefore, accept that claim that Pratap Sahkari Grih Nirman Samiti
Ltd. should be given back 25% of the land acquired, which is again not possible
in view of the township having come up in Gomti Nagar.
70.
In view of what we have held above, we confirm the judgment of the
High Court and dismiss all the appeals being 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 8 1998,
2116-2118 of 1999, 2139 of 1999, 2121 of 1999, 2113 of 1999 and 4995-4996 of
1998.
SLP
(CIVIL) No. 23551/2009 (CC 1540/1999) 71. Delay condoned in SLP (Civil) No.
23551/2009 (CC 1540/1999).
The
Special Leave Petition is dismissed in view of the above order.
71.
In the circumstances, there would be no orders as to the costs.
......................................J. (Tarun Chatterjee)
......................................J. (V.S. Sirpurkar)
New Delhi;
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