Supreme Court of India
TIKA RAM & ORS.versusSTATE OF U.P. & ORS.
- Citation
- 2009 INSC 1123
- Decided
- 9 September 2009
- Disposal
- Dismissed
- Bench
- TARUN CHATTERJEE
Holding
The Uttar Pradesh Amendment and Validation Act, 1991 is constitutionally valid, it validly amends the Land Acquisition Act to cure the defect of simultaneous notification, and the acquisition proceedings stand.
Summary
The Supreme Court examined the constitutional validity of the Uttar Pradesh Amendment and Validation Act, 1991, which retrospectively validated land acquisition proceedings that had issued simultaneous notifications under Sections 4(1) and 6(2) of the Land Acquisition Act, 1894. The petitioners argued that the Act attempted to overrule the Court’s earlier decision in State of Uttar Pradesh v. Radhey Shyam Nigam and violated Articles 14, 19, 21, 245, 246 and 300A of the Constitution, as well as the requirement to pay 80% compensation before possession. The Court held that the legislature may amend the law to cure defects identified by the judiciary and that the 1991 Act validly amended Section 17(4) and, together with its proviso and Section 3, cured the defect of simultaneous publication. It further ruled that the Act is not ultra‑vires the Constitution, the urgency clause was properly invoked, and non‑payment of the full 80% compensation does not invalidate the acquisition. Consequently, the challenges were dismissed and the acquisition scheme upheld.
Issues considered
- The constitutional validity of the Uttar Pradesh Amendment and Validation Act, 1991 and whether it overrules the Supreme Court judgment in State of Uttar Pradesh v. Radhey Shyam Nigam.
- Whether the amendment of Section 17(4) and the proviso, together with Section 3 of the Act, cure the defect of simultaneous notification under Sections 4(1) and 6(2) of the Land Acquisition Act.
- Whether the Act violates Articles 245, 246, 14, 19, 21, 39, 48A and 300A of the Constitution.
- Whether non‑payment of the 80% compensation required under Section 17(3) and 17(3A) invalidates the acquisition.
- Whether the invocation of the urgency clause under Section 17(4) is arbitrary or unconstitutional.
- Whether differential treatment of the Ujariyaon Housing Scheme Part‑II and Part‑III amounts to invidious discrimination under Article 14.
Legislation cited
- Constitution of Indias. Article 14, s. Article 19, s. Article 21, s. Article 245, s. Article 246, s. Article 300A, s. Article 39, s. Article 48A
- Land Acquisition Act, 1894s. 17(1), s. 17(2), s. 17(3), s. 17(3A), s. 17(4), s. 3(8), s. 3(A), s. 4(1), s. 5A, s. 6(2)
Subjects
land acquisitionvalidation actconstitutional validitysimultaneous notificationurgency clausecompensationArticle 14Article 300Aretrospective legislationSection 17(4)Uttar Pradesh
Judgment
[2009] 14 S.C.R. 905
...
... ~
. TIKA RAM & ORS. A
v.
STATE OF U.P. & ORS.
(Civil Appeal Nos. 2650-2652 of 1998)
J
-'' SEPTEMBER 9, 2009
8
[TARUN CHATTERJEE AND V.S. SIRPURKAR, JJ.]
Land Acquisition Act, 1894 - ss. 4(1) and 6(2) and s.
17(4) (as amended by Amending Act No. 68of1984) - Land
Acquisition (Uttar Pradesh Amendment and Validation) Act, c
1991 - Issuance of simultaneous notifications u/ss. 4(1) and
6(2) held to be invalid by Supreme Court - Legislature
. passing Amendment Act of 1991 validating the notifications
/
and declarations issued between the period from date of 1984
amendment and the judgment of Supreme Court - D
"' Constitutional validity of the validating Act challenged -
=r
Upheld by High Court relying on judgments passed by
.;
Supreme Court upholding the Validating Act - On appeal,
held: The Amending Act is valid and constitutional -
Legislature has the power to amend the law validating the E
(
actions declared invalid by a court of law - Such amendment
is not an incursion on the judicial power of the court - The
4 provisions of Validating Act is not ultra vires Articles 245, 246
·"' of Constitution - The provisions are also not violative of
Articles 14, 19, 21, 39, 48A and 300A of the Constitution for
F
invidious discrimination - On facts invocation of the the
urgency clause was justified - Constitution of India, 1950 -
Articles 14, 19, 21, 39, 48A, 300A, 245 and 246.
In a land acquisition proceedings, notifications under
Section 4(1) and declaration under Section 6(2) of Land G
j
Acquisition Act were issued simultaneously. The same,
were challenged and the High Court held that
simultaneous notifications under Sections 4(1) and 6(2)
could not be issued, particularly, after the amendment of
905 H
906 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A 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, where the order passed by
the High Court was upheld in State of Uttar Pradesh v.
Radhey Sh yam Nigam 1989 (1) SCC 591. The Court
B observed that it was open to the appellants to issue a
fresh declaration under Section 6. The State, instead of
issuing fresh declaration, brought a Bill before the State
Legislature. It was decided to amend the. Land >
i
Acquisition Act, 1894 in its application to Uttar Pradesh >
)
c 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 after
September 24, 1984 (the date .of amendment) but before
0 January H, 1989 (the date of judgment of the Supreme
Court) and the declaration under Section 6 which had
been issued either simultaneously or at any time after the
application in the Gazette of the said notification under
Section 4(1). This Ordinance later on got .the status of an
E Act, being Land Acquisition (Uttar Pradesh Amendmen~
and Validation) Act, 1991 (U.P. Act No. V of 1991). The Act,
was challenged before High Court, where it was found
to be valid, holding that the invalidity of the land
acquisition in issuance of Section 4 and Section 6
notifications simultaneously, was cured by this Act,
F which .was made applicable with retrospective effect; and
that the Act was not with an intention to wipe out the
judgment of this Court in the case of Radhey Shyam.
Validity of the Validating Act also came to be
G challenged before this Court in Meerut Develop.m.ent
Authority v. Satvir Singh and Ors. 1996 (11) SCC 462. Th~re,
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 also took
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 907
_.-I-
note of the fact that despite enactment of the Amendment A
Act 68 of 1984, amending Section 17(4), the State needed
further amendments and for that reason, the U.P.
Amendment Act V of 1991 was passed by giving the
retrospective effect from the date of the Amendment Act,
'
_____.._
1984. The effect of judgment in case of Radhey Shyam, B
thus, was nullified.
~ Writ petitions in the instant case were filed
... challenging generally the land acquired at the instance
of Lucknow Development Authority. Besides this,
challenge to the provisions of the Act, as also to the c
provisions of the Validating Act, the Writ Petitioners have
--- challenged the non-compliance of 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 was suggested D
~
' that there had 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 had been no preliminary survey as envisaged
under Section 3(A) of the Act and no damages were paid E
to any tenure holder as provided under Section 3(8) of
-4.
the Act, either before or after passing of the Validating
> Act. There are various such challenges on merit to the
process of acquisition. Relying on the judgments in
Ghaziabad Development Authority v. Jan Kalyan Samiti F
Sheopuri 1996 (1) SCC 562; Ghaziabad Development
Authority v. Jan Kalyan Samiti, Sheopuri 1996 (2) SCC 365
and Meerut Development Authority case., the High Court,
by the impugned judgment, affirmed the validity again
and the High Court further repealed the argument that G
+ these judgments were per incurium and hence required
reconsideration. High Court also rejected the argument
regarding the invalidity of Sections 17(1)(3A) and (4) of
the Act. Hence the present appeals.
H
,,_
908 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
t+
A The questions for consideration before this Court +'...
were as regards Constitutional Validity of Amendment
Act 5/1991; effect of alleged non-payment of 80%
compensation u/s. 17 of Land Acquisition Act, 1894;
challenge under Article 14 of the Constitution of India;
B and issue of urgency and applicability of Section 17 of
Land Acquisition Act.
Dismissing the appeals, the Court ...
I-
HELD: I. Constitutional Validity of Amendment Act 5/
c 1991:
1.1. The Legislature had no power to overrule a
-.-
judgment. However, it has the power to suitably amend
the law by use of proper phraseology removing the
D 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
-J.
..
•
""
amend a statute is not an incursion on the judicial power
E 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 inv_alid. [Para 30)
[953-0-E] .J..
.....
Meerut Development Authority v. Satbir Singh 1996 (11)
F sec 462 - relied on
Kashmira Singh vs. State of U.P. AIR 1987 Allahabad
113 (11/1); State of UP. v. Radhey Shyam Nigam 1989 (1)
SCC 591; Somwanti and Ors. v. State of Punjab 1963 (2)
G SCR 775; Indian Aluminium Co. and Ors. v. State of Kera/a
and Ors. 1996 (7) SCC 637; Ghaziabad Development +
Authority v. Jan Kalyan Samiti, Sheopuri 1996 (2) SCC 365;
S.R. Bhagwat vs. State of Mysore 1995 (6) SCC 16; ITW
Signode India Ltd. v. Collector of Central Excise 2004 (3)
SCC 48; Bakhtawar Trust v. M.D. Narayan and Ors. 2003 (5)
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 909
'
,..-t SCC 298; Madan Mohan Pathak v. Union of India 1978 (2) A
SCC 50; Indira Gandhi .v. Raj Narayan 1975 Supp. SCC 1;
Virender Singh Hooda vs. State of Haryana 2004 (12) SCC
588; l.N. Saxena v. State of Madhya Pradesh 1976 (4) SCC
750; Janpad Sabha vs. C.P. Syndicate 1970 (1) SCC 509,
referred to. B
~
1.2. It is not correct to say that the Amending Act did
}•
not remove the defect. This question was considered and
.... concluded in Meerut Development Authority's case~ The
same applies to the further question challenging Section
3 of the Amending Act wherein it is provided that the
c
notification would not be invalid on the ground that
declaration uls. 6 of Land Acquisition Act was published
on the same day on which the notification uls. 4 of the
principal Act was published or on any other date prior to
(
;t-
the date of publication of notification u/s. 4 of the Act. D
[Para 34] [957-E-G]
1.3. Even a situation, where Section 6 declaration was
made prior to the publication of notification uls. 4, was
held to be covered and cured under Section 3 of E
Amending Act, the validity of which was confirmed by this
Court. Added proviso would have to be read along with
.I.,
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 F
same date on which notification under Section 4 (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. Therefore, what is contemplated in proviso is the
G
+ "publication" of notification. [Para 36] (958-G-H; 959-A-C]
Somwanti and Ors. v. State of Punjab 1963 (2) SCR 775;
Mohd. Ali and Ors. v. State of U.P. and Ors. 1998 (9) SCC
480, relied on
H
·~
910 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A 1.4. 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
·B publication thereof in official Gazette. As such there is
nothing wrong even if the declaration is prior in time and
its notification is simultaneous with the notification under A
Section 4 of the principal Act [Para 39] (960-A-C]
~
Meerut Development Authority 1996 (11) SCC 462;
c Ghaziabad Development Authority v. Jan Kalyan Samiti,
Sheopuri 1996 (1) SCC 562; Ghaziabad Development
Authority v. Jan Kalyan Samiti, Sheopuri 1996 (2) SCC 365,
relied on.
D 1.5. Section 17(4) of the Act as amended by the
Validating Act is not ultra vires of the Articles 245 and 246
of the Constitution, on the ground that it nearly overrules
the decision of this Court in Radhey Shyam's case. The
validity of the validating law, depends upon whether the
E 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
,J.
found in the existing law. The Amending Act has clearly
...
passed these tests. That question is also closed by
F Meerut Development Authority case. [Para 40] (960-D-E;
961-e-D]
Meerut Development Authority 1996 (11) SCC 462, relied
on
G Bhri Prithvi Cotton Mills Ltd. v. Broach Borough
Municipality 1969 (2) Sec 283; Ujagar Prints and Ors. (II) v. +
Union of India and Ors. 1989 (3) sec 488, distinguished
Madan Mohan Pathak v. Union of India 1978 (2) SCC
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 911
50; Bakhtawar Trust v. M.O. Narayan and Ors. 2003 (5) SCC A
298; ITW Signode v. Collector of Central Excise 2004 (3)
SCC 48; Shri Prithvi Cotton Mills Ltd. v. Broach Borough
Municipality 1969 (2) SCC 283, referred to
1.6. It is not correct to say that the Amending Act is
8
ultra vires Article 300A of the Constitution, inasmuch as
.)-.
it deprives the petitioner of higher compensation as may
be admissible pursuant to the fresh acquisition
I!>
proceedings after 1987. For establishing their rights, the
appellants would have to establish that the State
Government was required, in law, to make a fresh c
acquisition and could not continue with the old one.
There was nothing wrong with the old proceedings which
came to be validated by the Amending Act. The Court has
also found that the Amending Act was a perfectly valid
legislation. In that view, the challenge must fail. [Para 41] D
(962-B-C, E-F]
State of Gujarat and Anr. v. Raman Lal Keshav Lal Soni
and Ors. 1983 (2) SCC 33; T.R. Kapoor and Ors. v. State of
Haryana and Ors. 1986 Suppl. SCC 584; Union of India v. E
Tushar Rajan Mohanty 1994 (5) SCC 450, held inapplicable
~
,. 1.7. It is not correct to say that 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 F
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 relevant date would be that of notification under
Section 4 of the Act or the notification of declaration G
under Section 6 of the Act and not the mere declaration
under Section 6 of the Act. [Para 44] (963-C-E]
Mohd. Ali and Ors. v. State of U.P. and Ors. 1998 (9) sec
480; Khadim Hussain vs. State of UP. and Ors. 1976 (1) H
912 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
-~-
A SCC 843; Meerot Development Authority v. Satvir Singh 1996
(11) SCC 462; S.H. Rangappa v. State of Kamataka and Anr.
2002 (1) sec 538 - relied on
Eugenio Misquita and Ors. v. State of Goa and Ors. ,
1997(8) SCC 47; Krishi Utpadan Mandi Samiti v. Makrand
B
Singh and Ors. 1995(2) SCC 497; Mohan Singh and Ors. v.
International Airport Authority of India and Ors. 1997(9) SCC _A,
132; S.H. Rangappa v. State of Kamataka and Anr. 2002(1) f
sec 538, distinguished
c Sriniwas Ramnath Khatod v. State of Maharashtra and
Ors. 2002 (1) SCC 689, referred to.
1.8. The schemes of Ghaziabad Development
Authority and Meerut Development Authority have
D already been upheld by this Court in the earlier decisions.
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 on behalf of the LOA. Even
E
in respect of Ujariyaon Housing Scheme Part-111, the
declaration u/s. 6 of the Act is published much after the .__
publication of notification under Section 4 of the Act. ....
Section 17(4) proviso has to be read together with and
in the light of Section 3 of the Amending Act and not de
F hors of each other in view of the statement of objects and
reasons of that Act. This Court ironed the creases in the
proviso added to Section 17(4) in Meerut Development
Authority case. In one of the appeals, the land owners
have already accepted the compensation, while in
G another matter, the title of the Housing Society itself has
been found to be infirm and not established as per the
findings of the High Court. It is obvious that registration
of the sale deed in respect of the Society is subsequent
to the notification u/s. 4 of the Act and, therefore,
H inconsequential. The agreements in favour of that Society
914 SUPREME COURT REPORTS [2009] 14 (ADDL.) $.C.R.
A under Section 17 of the Act and on that account, the
whole exercise was bad. This question in the precise
form, was not raised before the High Court. These
documents were not the part of the High Court record.
Since the source, authentication and verification of those
B documents was not clear, these documents were not
liable to be considered. [Paras 49 and 50] (970-F-G; 971-
C-E]
.2.2. It cannot be said that where Section 5-A is
dispensed with u/s. 17(4) of the Act, two Sub-Sections,
C i.e., (3) and (3A) of Section 17 would not appl.y. By this,
the attempt is to dissect Sub-Section (4) in two parts,
first.ly, where Sub-Section (1) and (2) are applicable and·
secondly, where the enquiry u/s. 5-A is dispensed with.
That is not the import of the language. Section 17 has to
D be read in full. It plai,nly 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
E 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 to
read that the payment of compensation is not required
F 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
G possession under Sub-Section (1) and (2) of Section 17.
A third category cannot be created so as to avoid the
payment of compensation. [Para 50A] (972-A-F]
2.3. If fault is found with the whole acquisition
process on account of the non-payment of 80% of the
H
TIKA RAM &·ORS. v. STATE OF U.P. & ORS. 915
A.
compensation, then the further question would be as to A
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 B
afforded because indeed u/s. 17 itself, the basic idea of
,,.. avoiding the enquiry u/s. 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. c
[Para 51] .[972-G-H, 973-A-B]
2.4. Even if the compensation is not paid or is short
of 80%, the acquisition would not suffer. Therefore, even
).
on the question as to whether in view of the admitted
capacity to offer, tender and pay the compensation under D
-
sub-section (3) and (3A) of Section 17, the notification
under Section 17(4) becomes void, there is no necessity
of any reference. [Paras 46, 52 and 53] [967-E-F; 973-B-
C; 975-B)
E
Satendra Prasad Jain and Ors. v. State of U.P. and Ors.
1993 (4) SCC 369; Pratap and Anr. v. State of Rajasthan and
~
~
Ors. etc. etc. 1996 (3) SCC 1; P. Chinnanna v. State of A.P.
1994 (5) SCC 486; Awadh Bihari Yadav v. State of Bihar
.. 1995 (6) sec 31, relied on F
Ill. Challenge under Article 14 of the Constitution of India
3.1. It is not correct to say that the provisions of the
Amending Act and also the provisions of Land
Acquisition Act like Section 17(4) are invalid on the test G
of Article 14 of the Constitution. Reading paragraph 14
of Meerut Development Authority case, in its correct
perspective would repel the argument that the provision
is arbitrary in any manner or has the effect of creating
impermissible classification. If the petitioners in Meerut H
916 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A Development Authority case, did not specifically address
the Court on the question of Constitutional validity of the
Amending Act (as is being claimed by the appellants), it L
will not be permissible for the petitioners to raise this
point which was admittedly not raised either in Ghaziabad
8 Development Authority case. or Meerut Development
-
-..,,.
,·-
Authority case, Petitioners would not be permitted to take
· such a course. There can be no question of Section 17(4) ...>..
proviso or the provisions of the Amending Act being I
invalid in any way. The provisions in any manner are not
c 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. [Paras 54, 55
and 56] (975-C-D; 976-F-H; 977-C-D]
D State of.Orissa v: Gopal Chandrarath 1995 (6) SCC 243;
Bhubaneswar Singh and Anr. v. Union of India and Ors. 1994
(6) SCC 77; Comorin Match Industries P. Ltd, v. State of ......
Tamil Nadu 1996 (4) SCC 281; Gouri Shankar Gauri and Ors.
v. State of U.P. and Ors. 1994 (1) sec 92, relied on.
E
Ghaziabad Development Authority vs. Jan Kalyan Samiti
Sheopur 1996 (2) SCC 365; Ghaziabad Development
-}.
' Authority vs. Jan Kalyan Samiti Sheopur 1996 (1) SCC 562; ~
MDA v. Satbir Singh 1996 (11) SCC 462; Delhi Cloth and
F General Mills Co. Ltd. v. Shambhu Nath Mukherji and Ors. ...
AIR 1978 SC 8, referred to
3.2. The contention that the contents in paragraph 14
of the judgment in Meerut Development Authority case,
holding that the provisions of the Amending Act are not
G limited to the two dates mentioned and can be applicable
even subsequently, results in creation of two classes and
the possible discrimination, is not acceptable. It will not
be necessary to go into that question as the present
appeals pertaining to Ujariyaon Housing Scheme Part-II
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 917
are relating only to the period between 24.9.1984 and A
11.1.1989. Further, even if, as held in Meerut Development
Authority case, it applied to the subsequent period, it
does not infringe Article 14. [Para 57] [977-E-G; 978-A-B]
3.3. The Validation Act did not confer any discretion 8
\ on the State Government to apply its provisions to a
particular scheme and then issue notifications. It was a
one time exercise for validating a particular scheme by
amending the Act which has already been found to be
( valid in Meerut Development Authority case. Again C
\
• Ujariyaon Housing Scheme Part-Ill did not lapse because
of the decision of the Government. Since the award was
not made within the time prescribed by 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 D
Housing Scheme Part-II, the award was made by the
\ Collector within the time and, therefore, those
_J
notifications were not affected. [Para 58] [978-E-H;
979-A]
E
Amit Das v. State of Bihar 2000 (5) SCC 488; State of
UP and Anr. v. Synthetics and Chemicals Ltd. and Anr. 1991
(4) SCC 139; Nirrna/ Jeet Kaur v. State of Madhya Pradesh
and Anr. 2004 (7) SCC 558; /CIC/ Bank and Anr. v. Municipal
Corporation of Greater Bombay and Ors. 2005 (6) SCC 404; F
A.R. Antulay v. R.S. Naik and Ors. 1988 (2) SCC 602; Zee
Telefilms Ltd. and Anr. v. Union of India and Ors. 2005 (4)
SCC 649; P. Ramachandra Rao v. State of Kamataka 2002
... (4) SCC 578; Nand Kishore v. State of Punjab 1995 (6) SCC
614; Isabella Johnson v. M.A. Susai 1991 (1) SCC 494; R.K. G
Dalmia v. S.R. Tendolkar 1959 SCR 279, distinguished.
3.4. 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 not violative of Articles 14, 19,
21, 39, 48, 48A and 300A for invidious discrimination. H
918 SUPREME COURT REPORTS (2009] 14 (ADDL.) S.C.R.
A There is no classification, much less any impermissible ,.__
classification and no group has been treated favourably
as against another group, refusing equal protection to
such group. [Para 60] (980-F-G; 981-C-D]
Lachman Das v. State of Bombay AIR 1952 SC 235;
B
Charanjit Lal Chowdhury v. Union of India and Ors. AIR 1951
SC 41; Anwar Ali Sarkar v. State of U.P. AIR 1952 SC 75;
.).
Kathi Ranning Rawat v. State of Saurashtra AIR 1952 SC
123; State of Punjab v. Gurdial Singh AIR 1980 SC 319, J
.
c distinguished
Kedar Nath Bajoria slo Ramjidas Bajoria v. State of West
Bengal 1954 SCR 30; R.K. Dalmia v. S.R. Tendolkar 1959
SCR 279 and In re: Special Courts Bills, 1978 1979 (1) SCC
380, referred to .
D -""-
3.5. Discretion upon the· application of law and the
power under Section 17 of the Act of doing away with
Section SA inquiry has to be exercised in a proper .._
manner. However, there are clear guidelines provided u/
s. 17(1) r/w Section 4 for understanding the concepts of
E
urgency and emergency. In this behalf, the criteria of
emergency as provided under Sub-Section (2) of Section
17 is separate and distinct from the criteria of urgency. -~.
These two criteria provide clear guidelines and cannot be .
held as arbitrary. [Para 61] (981-F-H; 982-A]
F
Krishi Utpadan Mandi Samiti vs. Makrand Singh and
Ors. 1995(2) SCC 497; State of
U.P. v. Pista Devi 1986 (4)
sec 251, relied on
.
Suraj Mall Mohta and Company v. A. V. Visvanatha
G
Sastri and Anr. AIR 1954 SC 545, distinguished +
Sarju Prasad Sahu v. State of Uttar Pradesh and Ors.
AIR 1962 ALL 221; Ram Sevak v. State of UP Ors. AIR 1963
All 24; /shwarlal Girdharlal Joshi etc. v. State of Gujarat and
H
..:
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 919
-,.,,, Anr. AIR 1968 SC 870, referred to. A
3.6. 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 correctly held that Sub-Sections (1 ), (3A) 8
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. Sub-Sections (1)
(
• (3A) and (4) of Section 17 of the Act do not suffer, as there
is no notice provided in those Sub-Sections before the
c
- possession is taken. [Para 62] [983-C-D, F; 984-C]
Matajog Dubey v. H.C. Bhari AIR 1956 SC 44; R.K.
Dalmia v. S.R. Tendolkar 1959 SCR 279; /shwarlal Girdharlal
Joshi etc. v. State of Gujarat and Anr. AIR 1968 SC 870;
/ _).. Kraipak v. Union of India AIR 1970 SC 150, Maneka Gandhi D
v. Union of India AIR 1978 SC 597; Olga Tellis v. Bombay
Municipal Corporation AIR 1986 SC 180; Union of India v.
Tutsi Ram AIR 1985 SC 1416, relied on
IV. Issue of urgency and application of Section 17 of the E
Principal Act
4. 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. It can not be ignored that this land was F
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 G
Court has 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
H
920 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A the Government was justified in doing away with the
inquiry under Section 5A, it must be noted that there are ""-
no allegations of ma/a tides against the authority. In the
present case, the High Court has gone into the records
and has recorded categorical finding that there was
B sufficient material before the State Government and the ..__
State Government has objectively considered the issue
of urgency. Even before this Court, there were no (:
;.._ L
allegations of mala tides. Therefore, it is not correct to say
that there was no urgency to justify dispensation of .,
.
c Section SA inquiry by applying the urgency clause.
Acquisitions in this case are of 1984-1985 and two
decades have passed thereafter. [Paras 63 and 64) [984- ....-
,,l I
0--0; 985-A, B, D, HJ
Kishan Das and Ors. v. State of UP and Ors. 1995 (6)
-o SCC 240; State of U.P. v. Pista Devi 1986 (4) SCC 251, ~
relied on
Raja Anand Braha Shah v. State of U.P. AIR 1967 SC
1081; Narayan v. State of Maharashtra AIR 1977 SC 183;
E Kailashwati v. State of U.P. A_IR 1978 All 181; Deepak Pahwa
v. Lt. Governor of Delhi AIR 1984 SC 1721, referred to r;-
V. Other issues on merit . ,..
5. This Court will not go into the questions of facts ~
F like the non-publication of Sections 4 and 6 notifications.
Similar is the question raised about the land belonging
to the co-operative society and the release of the same.
The High Court judgment is absolutely correct in that
behalf. Even if the Government had taken a decision not
G to acquire the land belonging to the co-operative society
as far as possible, there is nothing wrong if such lands +
were acquired. What is to be seen is the bona tides of the
Government behind the decision to acquire the lands. On
that account no fault can be found with the concerned
H notifications u/ss. 4 and 6. [Para 65) (986-B-E] ..__
•
"':
.. TIKA RAM & ORS. v. STATE OF U.P. & ORS. 921
_,,, 6. As regards the question of possession, the Court A
does not propose to go into the question of facts and
"<
questions relating to the individual claims. When the
whole township is standing, this question goes to the
backdrop. In the face of Panchanama, which is on record,
the finding of the High Court that the possession was B
taken on 21.5.1985 is endorsed. [Paras 66 and 67] (986-
F, 987-C-D]
)..
..... 7. LOA also found fault with the Sale Deed in favour
,.t
•
of Pratap Sahkari Grih Nirman Samiti Ltd.. It was urged
'
that its claim was based on the Sale Agreement, which
c
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. If any purchases of the land are made after D
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. The High E
Court was correct in holding that the Society had
purchasedthe land after the issuance of notification. The
)I
policy to give back 25% of the acquired land to the co-
,j
operative societies, even if there is one, would not be
applicable to the Society in question. Therefore, it is not F
acceptable 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. [Paras 68 and 69] [987-0-H; 988-E-G]
G
U.P. Jal Nigam v. Katra Properties Ltd. 1996 (3) SCC
+ 124; Star Wire (India) Ltd. v. State of Haryana and Ors. 1996
(11) sec 698, relied on
H
\
922 SUPREME COURT REPORTS [2009] 14 (ADD~.) S.C.R. .l
A Case Law Reference: .... _
1989 (1) sec 591 Referred to. Paras 9, 13,19, r
23 and 40 ....
1996 (11) sec 462 Relied on. Paras 10,11,
B 17,19, 25,30,
34,36,39 and
54
_.l.
1996 (1) sec 562 Relied on. Paras 11,17, ...
19,30 and 39
c
1996(2) sec 365 Relied on. Paras 11, 17,
19, 30 and 39
1976 (1) sec 843 Relied on. Para 15
D AIR 1952 SC 75 Distinguished Paras 18 and _...(_
25AIR 1980 SC 319 Distinguished Paras 18 and 60
,_
2003 (6) sec 186 Referred to. Para 20
2002 (7) sec 213 Referred to. Para 20
E
2005 (2) sec 409 Referred to Para 20
. 2003 (4) sec 112 Referred to Para 20 -;<-
2002 (3) sec 533 Referred to Paras 20 and 21 .
..
F '
1992 (2) sec 494 Referred to Para 20
1997 (8) sec 12 Referred to Para 20
1986 (3) sec 91
,_
Referred to Para 20 ;~
G 1990 (1) sec 211 Referred to Para 20
+
AIR 1955 SC 830 Referred to Para 20
1986 (4) sec 251 Relied on Paras 21 and 63
H
r
}--
l
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 923
_.,.,,
1993 (4) sec 369 Relied on Paras 21, 52 A
and 53
2003 (2) sec 577 Referred to. Para 21
2005 (7) sec 627 Referred to. Para 21
B
2004 (8) sec 14 Referred to. Para 21
). 1952 SCR 435 Referred to. Para 25
,.
1954 SCR 30 Referred to. Paras 25 and 60
1959 SCR 279 Referred to. Paras 25 and 60 c
'""" Distinguished Para 60
Relied on. Para 62
_.\. 1919 (1) sec 380 Referred to. Para 25 D
1995 (6) sec 240 Relied on. Paras 27 and 63
. 1914 (2) sec 501
1998 (6) sec 1
Referred to.
Referred to.
Para 27
Para 27
E
1996 (3) sec 1 Referred to. Para 27
AIR 1987 Allahabad 113 Referred to. Para 29
"*"' 1963 (2) SCR 775 Referred to. Para 30
F
Relied on. Para 37
--
1996 (7) sec 637 Referred to. Para 30
1995 (6) sec 16 Referred to. Para 33,40
2004(3) sec 48 Referred to. Para 33,40 G
~
2003 (5) sec 298 Referred to. Para 33,40
1978 (2) sec so Referred to. Para 33,40
1975 Supp. sec 1 Referred to. Para 33,40
H
-
924 SUPREME COURT REPORTS (2009) 14 (ADDL} $.C.R.
A 2004(12) sec 588 Referred to. Para 33,~ ')-'-
1976 (4) sec 150 Referred to. Para 33,40
1910 (1) sec 509 Referred to. Para 33,40
1998 (9) sec 480 Relied on. Para 37 and 40
B
1969 (2) sec 283 Referred to. Para 40
1989 (3) sec 488 Distinguished Para 40 .l.
1983 (2) sec 33 Held inapplicable Para 41
•
c
1986 Suppl. SCC 584 Held inapplicable Para 41
1994 (5) sec 450 Held inapplicable Para 41,43
2002 (1) sec 689 Referred to. Para 44
D 1997 (8) sec 47 Distinguished Para 44 ~
1995 (2) sec 497 Distinguished Para 44'
Relied on. Para 61
E 1997 (9) sec 132 Distinguished Para 45
2002(1) sec 538 Distinguished Para 45
1999 (4) sec 11 Relied on · Para 45 -It
.
2005 (2) sec 673 Relied on. Para 47
F
1996 (3) sec 1 Relied on. Para 53
1994 (5) sec 486 Relied on. Para 53
1995 (6) sec 31 Relied on. Para 53
G
1995 (6) sec 243 Relied on. Para 55·
+
1994 (6) sec 11 Relied on. Para 55
1996 (4) sec 2s1 Relied on. Para·ss
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 925
_,,.,
1994 (1) sec 92 Relied on. Para 55 A
2000 (5) sec 488 Distinguished Para 59
~
' 1991 (4) sec 139 Distinguished Para 59
2004 (7) sec 558 Distinguished Para 59
B
2005 (6) sec 404 Distinguished Para 59
)..
1988 (2) sec 602 Distinguished Para 59
"
2005 (4) sec 649 Distinguished Para 59
c
2002 (4) sec 578 Distinguished Para 59·
1995 (6) sec 614 Distinguished Para 59
1991 (1) sec 494 Distinguished Para 59
> D
AIR 1952 SC 235 Distinguished Para 60
AIR 1951 SC 41 Distinguished Para 60
AIR 1952 SC 123 Distinguished Para 60
AIR 1962 ALL 221 Referred to. Para 61 E
AIR 1963 All 24 Referred to. Para 61
~
..I AIR 1968 SC 870 Relied on. Para 62
AIR 1954 SC 545 Distinguished Para 62
F
AIR 1956 SC 44 Relied on. Para 62
AIR 1970 SC 150 Relied on. Para 62
AIR 1978 SC 597 Relied on. Para 62
G
AIR 1986 SC 180 Relied on. Para 62
AIR 1985 SC 1416 Relied on. Para 62
AIR 1967 SC 1081 Referred to. Para 64
H
926 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A AIR 1977 SC 183 Referred to. Para 64 ¥_
AIR 1978 All. 181 Referred to. Para 64
AIR 1984 SC 1721 Referred to. Para 64
1996 (3) sec 124 Relied on. Para 68 "
B
1996 (11) sec 698 Relied on. Para 68
~
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
2650-2652 of 1998.
..
c
· From the Judgment & Order dated 40.3.1998 of the High
Court of Judicature at Allahabad (Lucknow Bench) in Lucknow
in Writ Petition No. 2220 (UA) of 1996, 3020 (UA) of 1996 and
16 (UA) of 1996.
D --4.._
WITH
.,
C.A. Nos. 3162, 3176, 3415, 3561, 3597, 3923, 3939, 3645,
3691, 5346, 4995-4996 of 1998 & 2116-2118, 2139, 2121,
E
2113 of 1999, SLP(C) 23551 of 2009 arising out of CG No.
1540 of 1999.
~'f
R.N. Trivedi, Rakesh Kr. Dwivedi, Dinesh Dwivedi, Shail ..
Kumar Dwivedi, D.K. Arora, Addi. A.G., Pramod Agarwal,
F
Shweta Garg, Ashish Gopal Garg, Qamar Ahmad (NP), Arvind
Kumar Shukla, Ashutosh Pathak, N.D. Peter, lrshad Ahmad,
Sudhir Kulshreshtha, Navin Prakash, Gaurav Aggarwal, B.K.
Prasad, Shakil Ahmed Syed, Abhishek Chaudhary, Manoj Kr.
Dwivedi, Vandana Mishra, Manish Kumar, Prateek Dwivedi,
G G.V. Rao, Kamlendra Mishra, Manoj Swarup, Lalita Kohli,
+
Charu Singhal (for Manoj Swarup & Co.), Anil Kumar Sangal,
Deba Prasad Mohanty, C.D. Singh, Vairagya Vardhan Dubey,
Arvind Varma, Malvika Trivedi, T. Mahipal, C.S. Ashri, E.C.
Vidya Sagar for the appearing parties.
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 927
_y
The Judgment of the Court was delivered by A
V.S. SIRPURKAR, J.
Background of Appeals
1. This judgment will dispose of Civil Appeal Nos. 2650- 8
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, 2121of1999, 2113of1999, 4995-4996
of 1998 and SLP(C) No ... (CC) 1540 of 1999. All these c
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, D
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
E
constitutionality of Sections 3(A), 3(8), 4, 5, 6, 7 and 8 of the
Act was also challenged. In that set of Writ Petitions, basically,
-4 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 F
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.
G
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
H
928 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.
y_
A restraining the authorities from interfering with the possession
of the Writ Petitioners' land and to comply with the provisions
under Sections 3(1A), 3(8), 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.
B
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(UA) of 1996 ..
filed by one Ram Bharosey, award dated 25.2.1987 which was
c 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
D 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
E
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
F · 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 (hereinafter referred to as ~
'LOA' for short), so also the award was passed on 25.2.1987.
8. In another set of Writ Petitions, wherein the leading Writ
G
Petition was W.P. No. 2220 (UA) 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
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 929
[V.S. SIRPURKAR, J.]
Act. Even in these Writ Petitions, the awards were passed and A
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 LOA.
Besides this challenge to the provisions of the Act, as also to
the provisions of the Validating Act, the Writ Petitioners have B
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 c
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(8)
of the Act, either before or after passing of the Validating Act. ·
0
There are various such challenges on merit to the process of
acquisition.
Short History of Validating Act
9. Earlier, the acquisitions were made by formulating a E
scheme known as Ujariyaon Housing Scheme (Part-II and Part
Ill). 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 F
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 G
+ passed by the High Court was upheld in a reported decision
in State of Uttar Pradesh vs. Radhey Shyam Nigam reported
in 1989 (1) SCC 591. In these petitions, schemes known as
Ujariyaon Housing Scheme Part-II and Ujariyaon Housing
Scheme Part-Ill were the subject matter of the dispute. While H
930 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A disposing of the case of State of Uttar Pradesh vs. Radhey 'r ....
Shyam (cited supra), this Court 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
B
with its first explanation."
_,\_
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,
c 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
D 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
E
proceedings of acquisition of land for the Development
Authorities for the implementation of various housing
schemes, the declaration under Section 6 were made .f.
simultaneously with publication in the Gazette of notification
under Section 4(1). The said proceedings were likely to ...,.
F 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
G 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
H Supreme Court) and the declaration under Section 6 had
'
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 931
[V.S. SIRPURKAR, J.]
_,.-...,, been issued either simultaneously or at any time after the A
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:-
B
"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- c
Section (4), the following proviso shall be inserted
at the end and shall be deemed to have been
inserted on September 24, 1984, namely:-
...
Provided that where in the case of any land
;It.
notification under Section 4, sub-Section (1) has
D
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 E
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 ).
F
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 G
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 H
932 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
··'l-·-
A 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
B 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 __.l
Section (1) of the Principal Act.
"
4. Repeal and saying:-
c
(1) The land Acquisition (Uttar Pradesh A;.mendment
and Validation) ordinance 1990 (U.P. Ordinance
No. 32 of 1990) is hereby repealed.
D (2) Notwithstanding such repeal, anything done or any .:L
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 amended by this Act, as it the
E
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
F 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
-...
G 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 Meerut Development Authority vs.
Satvir Singh & Ors. reported in 1996(11) SCC 462. There, it
was held that the exercise of the power under Section 4(1) and
H declaration under Section 6 were not vitiated and the Validating
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 933
[V.S. SIRPURKAR, J.]
__ ....
Act was not invalid. This Court specifically observed in that A
...... case:-
f
"It is not in dispute that the State Amendment Act 5of1991
was enacted or reserved for consideration of the President
and received the assent of the President on 26.2.1991 and 8
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,
c
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 D
be made and it was given 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 E
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 F
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
G
'f 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
H
934 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A 'y._
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
B
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 -A
applicable in relation to that State through Central Law may ..
be inconsistent with the law operation in the other States.
c 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
D relation to that State. Therefore, the amendment by proviso .il.
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." ·
E 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. Amendment Act V of 1991 was
F 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
G 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
H Validati'on Act particularly after the decisions of Hon'ble
~
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 935
[V.S. SIRPURKAR, J.]
~'f Supreme Court which binding upon this court under Article A
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 B
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
c
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
I ~ relying on the judgments in Ghaziabad Development Authority D
vs. Jan Kalyan Samiti Sheopuri reported in 1996 (1) SCC 562,
Ghaziabad Development Authority vs. Jan Kalyan Samiti,
Sheopuri reported in 1996(2) SCC 365 and Meerut
Development Authority vs. Satvir Singh & Ors. (cited supra),
held that the High Court had no authority to hold these three E
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 F
" 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-Ill Scheme, proceedings for passing the
award were completed and were sent to the appropriate G
-1 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 LOA that the possession of the lands were
already taken and a new city has already come up on the banks
H
'
936 SUPREME COURT REPORTS (2009] 14 (ADDL.) S.C.R. ·'-
A of river Gomti and a huge township has come up consisting of y'-
flats, houses and markets etc. which was constructed by LOA.
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
B 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 A
possession of the whole land was already taken over, contrary • ,\
to the claim made by the Writ Petitioners that they were still in
c 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.
,....
0 12. Before this Court also, prolonged arguments were A.
' ~~
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 _
l
of the appellants. We will consider their contentions serially. All
E these contentions raised were opposed by Shri Rakesh Kumar
Dwivedi, Learned Senior Counsel appearing on behalf of the
LOA, Shri Oinesh Dwivedi, Learned Senior Counsel appearing
on behalf of State of Uttar Pradesh, as also other Learned ..t
Counsel like Shri Manoj Swarup, Shri Anil Kumar Sangal, Shri
F C.O. 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)
G 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 the U.P. Legislature passed U.P.
H Ordinance No. 32 of 1990, being the Land Acquisition (Uttar
.)
_l
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 937
[V.S. SIRPURKAR, J.]
.... '1.
Pradesh Amendment and Validation) Ordinance, 1990 and A
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 B
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:-
c
(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.
A
D
(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 E
Court in State of Uttar Pradesh vs. Radhey Shyam reported
~
in 1989(1) sec 591, by which it was held 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. F
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 simultaneously with the
publication of a notification under Section 4 of the Act and all G
~ 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 H
938 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. '
)' .....
A 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 '
B Legislature to pass any legislation, it was not permissible to r-
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
c 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 judgmE1nt, on which the said
action was invalidated, and since the Validating Act of 1991 /',
.
did not remove the basis or foundation of the aforementioned ;I...,
D
judgment of this Court in State of Uttar Pradesh vs. 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. The Learned Senior Counsel, in
E support of his arguments, relied on the following decisions:-
1. S.R. Bhagwat vs. State of Mysore 1995 {6) SCC ...
,._
16.
2. ITW Signode India Ltd. vs. Collector of Central r
F
Excise 2004(3) SCC 48.
3. Bakhtawar Trust vs. M.D. Narayan & Ors. 2003 (5)
sec 298.
G 4. Madan Mohan Pathak vs. Union of India 1978 (2) -'t-
sec 50.
5. Indira Gandhi vs. Raj Narayan 1975 Supp. SCC
1
H 6. Virender Singh Hooda vs. State of Haryana
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 939
[V.S. SIRPURKAR, J.]
- -T
2004(12) sec 588. A
7. /.N. Saxena vs. State of Madhya Pradesh 1976(4)
sec 750 .
.... I
8. Janpad Sabha vs. C.P. Syndicate 1970 (1) SCC
509 .
B
... II. Act is ultra vires and constitutionall~ invalid
-----<
...
14. The second submission was that the said Act is ultra
vires the Article 300A of the Constitution of India, as its effect c
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:-
,.:..:
1. State of Gujarat vs. Raman/al reported in 1983 (2) D
<"
sec 33
~
2. T.R. Kapur & Ors. vs. State of Haryana reported
in 1986 Supp. sec 584
E
3. Union of India vs. Tushar Ranjan Mohanty
reported in 1994 (5) sec 450
j_
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 F
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. G
-f
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 H
940 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
)- -
A 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
B Act being published simulateneously. It was pointed out that
main part of the Section 17(4) was not amended.
_..1
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
c 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
D 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
E the date of publication of the notificatio~. therefore, the same
is invalid. The judgment in Khadim Hussain vs. State of U.P.
J(
& Ors. reported in 1976(1) SCC 843 was relied upon. Number ...
of other cases were relied up~n to suggest that the law required
in case of Khadim Hussain vs. State of U.P. & Ors. (cited
F 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 -¥
G
contended that casus omissus cannot be supplied by the Court
16. The Learned Senior Counsel then suggested that there
was discrimination in Ujariyaon Housing Scheme Part-II and
Ujariyaon Housing Scheme Part-Ill and, therefore, there was
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 941
[V.S. SIRPURKAR, J.]
invidious discrimination meted out to the Writ Petitioners A
~'f.
(appellants herein).
17. Finding that the challenge to the notification was held
to be valid by this Court in Ghaziabad Development Authority
vs. Jan Kalyan Samiti (cited supra) and in Meerut
B
Development Authority vs. Satvir Singh (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
c
decisions in Ghaziabad Development Authority vs. Jan
Kalyan Samiti (cited supra) and in Meerut Development
Authority vs. Satvir Singh (cited supra), the said Act was held
valid though extensive arguments were made before the High
-' ..'-:. Court suggesting as to why the two cases did not apply to the D
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 E
being constitutional validity of the Amending Act and the
constitutional validity of Section 17(4) proviso of the Act
~ introduced thereby, as also the 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 F
acquisition on the question of date of taking possession, non
payment of 80% compensation and the policy of the State
i Government regarding ·Cooperative Societies.
Constitutional Validity of the Principal Act provisions
G
-1 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 H
942 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A of appellants. According to him, the judgments referred to in
the earlier para were per incuriam. Learned Counsel further
r-.
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
B 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 _l
this Court has remained undisturbed. The stress of Learned •
c 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 State Government allowed the notification
pertaining to Ujariyaon Part-Ill Scheme to lapse while the
notifications pertaining to Ujariayon Part-II Scheme were
allowed to get protection of the Validation· Act and, therefore,
D
the Validation Act itself is hit by Article 14. The Learned :4
~
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
E 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
F (cited supra).
Defence
'\.
19. As against this, Shri Rakesh Kumar Dwivedi, Learned
Senior Counsel appearing on behalf of the LOA and Shri
G
Dinesh Dwivedi, Learned Senior Counsel appearing on behalf
of State of Uttar Pradesh vehemently contended that the ·'t-
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
H pointed out that this very Act was tested by this Court in the
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 943
[VS. SIRPURKAR, J.]
aforementioned two decisions in Ghaziabad Development A
-"" Authority vs. Jan Kalyan Samiti (cited supra) and in Meerut
~ Development Authority vs. Satvir Singh (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
l. on the spacious ground that this Court had not considered B
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 Learneo Senior
Counsel for the respondents, there was not dearth of power in
the State Legislature in introducing Section 17(4) proviso to the
c
Act for the State. It was then contended that the very basis of
the judgment in State of Uttar Pradesh vs. Radhey Shyam
(cited supra) was the invalidity of the State action in passing
simultaneously the notification under Section 4 and the
;::,.:. declaration under Section 6 of the Act. Considering the D
~ 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
f
applying the urgency clause under Section 17, such exercise
of passing the Section 4 notification and Section 6 declaration E
simultaneously was valid. All that the Amending Act had done
was to provide a power to do so by introducing a proviso by
j. the amendment with retrospective effect and, therefore, in reality,
I - the State Government had removed the defect pointed out by
this Court of there being no power on the part of the State F
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 G
..., 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 H
944 ~UPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A 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 th9 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
B 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. ,._
c 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
D
the purposive construction based not only 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
x..
-
i""
Reasons appended to the U.P. Amendment Act were clear so
E 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
F 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
G 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 0. Saibaba v. Bar Council
of India & Anr. reported in 2003 (6) SCC 186, Union of India
H v. Hansoli Devi & Ors. reported in 2002 (7) SCC 273, Prakash
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 945
[V.S. SIRPURKAR, J.]
Kumar@ Prakash Bhutto v. State of Gujarat reported in 2005 A
- -1
(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. B
Javali v. Mahajan Borewell & Co. & Ors. reported in 1997 (8)
sec 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 Kanai reported in 1986 (3) SCC 91, c
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 D
~ 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"
E
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 LOA pointed out that the
challenge to the land acquisitions on merits could not survive, F
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-Ill, the Government had shown
its bona fides by allowing the notifications therein to lapse and G
1 thereby, the interests of the land holders covered in Ujariyaon
Housing Scheme Part-Ill 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 H
946 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.
A 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
B Counsel urged that the land was very urgently required for urban
housing and after the acquisition there has been large scale
development ahd utilization on the acquired land and thousands
of constructions have been made and the schemes have been ;l
evolved leading to allotments to third parties. Now at this stage, ...
c 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 ma/a fides or
any evidence in support of it. Relying on a judgment in State of T
D
U.P. V. Pista Devi reported in 1986 (4) SCC 251 the Seriior ::4
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
E housing development was itself in urgency justifying the
invocation of the urgency clause. It was then 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
F also urged that there was no discrimination in between
Ujariyaon Part-II Scheme and Ujariyaon Part- Ill 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
G 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.
H reported in 1993 (4) SCC 369, Nasiruddin & Ors. v. Sita Ram
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 947'
[V.S. SIRPURKAR, J.]
~ -1
Agrawal reported in 2003 (2) SCC 577, State of U.P. v. A
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 B
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 LOA. The respondent No.9 Avadh
c
School pointed out that the land was granted to it by LOA for
99 years dated 01.12.1995 whereas the Writ Petition
challenging the same bearing No. 2220 (UA)/1996 from which
the Civil Appeal No. 2650/1998 arose was filed only later on,
)Ir in the year 1996. It was pointed out that the respondent-Avadh D
School had already paid the entire amount due to the LOA. 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 E
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 LOA.
23. Learned Counsel on behalf of LOA referred to the F
~
history of case law and reiterated upon the validity of the UP
Act No.5of1991. 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
G
..y 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,
H
948 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A therefore, it is not a case of simplicitor overruling of the
r- . . .
judgment of the Supreme Court.
24. Learned Counsel for LOA also opposed reference to
Larger Bench. It was further pointed that since the schemes of
Ghaziabad Development Authority (GOA) and Meerut
B
Development Authority (MDA) were already upheld, the dispute
in Ujariyaon Part-II scheme of LOA 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
c 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
D 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 tides of the Pratap Sahakari Grih
E 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 >-
F 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
G
of Ujariyaon Part-Ill Scheme were concerned, with that question.
However, in that case the notification was published in the year ·'r·
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
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 949
[V.S. SIRPURKAR, J.]
--- ...,.
to the Larger Bench was a non-issue and could not be gone A
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-Ill Scheme, and, B
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-Ill Schemes where the award was not
made within time. Therefore, it was lapsed and hence, there
c
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
D
-· Punjab v. Gurdial Singh (cited supra) was not called for. In
support of his argument Shri Dwivedi pointed out that Anwar
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 E
)_ 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. F
.. 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 G
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
... H
9SO SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
r..._
A 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
B 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 clause to these acquisiti0ns -·(
in question. Carrying the same argument further, Learned I"'
Counsel firmly admitted that Section SA is a protection to the
land acquisition and should not be lightly dispensed with. He
c 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 SA enquiry. Further it is pointed out that the High
Court had considered this aspect in details and recorded the ...-..
D 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
E Gomti Nagar. Learned Counsel also pointed out to the finding
of the High Court to the effect that the township had already
J.
come into the existence and the houses were allotted to
thousands of people.
..
F 27. Relying on Keshav Das v. State of U.P. reported in
199S (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
di!-
construction had been made and completed, the question of
urgency and exercise of duty under Section 17 (4) of the Act
G
could not be raised at a belated stage. Therefore, Learned
-:rr
Counsel insisted that the situation is no different in the present
case. Further relying on Aditya Bhagat v. State of Bihar
reported in 1974 (2) SCC S01 and Om Prakash v. State of
U.P. reported in 1998 (6) SCC 1, Learned Counsel urged that
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 951
[V.S. SIRPURKAR, J.]
_,,'"""'!'
as compared to the total acquisition, the appellants' land holding A
is limited to only 150 big has 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 B
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 c
of 2006, were liabl~ 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 D
are not attracted to a case where the power under Section 17
(4) has been exercised and Section SA 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
E
Act does not say that the if possession and development have
been taken and the development work has been done without
i
- compliance of the provisions then the taking of possession and
the work done would become 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 F
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. G
28. On the basis of these rival claims we shall now proceed
to decide the issues raised in this appeal, which are as follows.
H
952 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.
)<- ~
A 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
B 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
c 6 of the Act could not be made and, therefore, the acquisitions
were bad, as held in Kashmira Singh vs. State of U.P.
reported in AIR 1987 Allahabad 11.3 (11/1). Kashmira Singh's
D
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 9bjects arid
.
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
E 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
F 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
G
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
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 953
[V.S. SIRPURKAR, J.]
in the official Gazette of the notification under Section 4(1)" A
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 8
(cited supra) or, as the case may be, State of 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 completely answered in Meerut Development Authority vs. C
·satbir Singh reported in 1996 (11) sec 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 upon the judgment reported as
GOA vs. Jan Kalyan Samiti, Sheopuri reported in 1996 (2)
SCC 365, the Court took the view in paragraph 10 that when D
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 E
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 F
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 G
Ors. v. State of Kera/a & Ors. reported in 1996 (7) SCC 637
and referred 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
H
954 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A 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
B 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 ,.,
c to retrospective legislation with a deeming date or
with effect from a particular date. The Legislature I.-
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
D
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
E 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.
,.. I
F [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
G 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: '\-..'_
H "·~
·~1
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 955
[V.S. SIRPURKAR, J.]
"13. It is not in dispute that the State Amendment Act 5 A
of 1991 was enacted and reserved for
consideration of the 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 B
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, c
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
0
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 E
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 F
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 G
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 H
956 SUPREME COURT REPORTS [2009] 14 (~DDL.) S.C.R.
A retrospectively from 24.04.1984 (sic 24.9.1984)
applying to the previous notifications and
declarations but also to the ngtification and
declaration to be published subsequently."
Further in paragraph 16, the Court held:
B
"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
c publication of Section 4 notification; it also seeks
to validate certain acquisitions envisaged therein.
This validation is not illegal."
32. In the same paragraph the Court found that the ..
D amendment was not illegal merely because it was brought
:k-
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:
E "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
.J.
according to the rules; the exercise of power under Section
)
17 (4) by the Government dispensing with the enquiry does
F 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 Af/atoon v. Lieutenant Governor of Delhi,
G 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
H under Section 5A is not invalid."
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 957
[V.S. SIRPURKAR, J.]
~ ., 33. In fact, this judgment is a complete answer to the A
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 th~ urgency
clause in these acquisitions and the exer~ise of raising the 8
urgency clause was not bona fide. Various other judgments
~-
wer~ referred by Shri Trivedi which we have included in the
earlier part of the 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 c
& 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), l.N.
Saxena v. State of Madhya Pradesh (cited supra) and Janpad
Sabha v. C.P. Syndicate (cited supra). In view of the specific
7l. D
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 E
Counsel was that the Amending Act did not remove the defect.
it
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 F
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 oi notification under Section 4 G
-i· of the Act. We have already pointed out that this Section was
also considered specifically in paragraph 7 where it is quoted.
Further in paragraph 16 which we have quoted, this question
is specifically answered. We, therefore, need not dilate on that
issue here. H
958 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A · 35. At this juncture, we must note the argument raised in ....
y~
_
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
B ·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,
c 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
D -;,!<.-
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
E of Section 6 notification". We do not think that the contention
is correct. In paragraph 16 of Meerut Development Authority's
case (cited supra), this Court considered Section 3 and
~
observed that:- ...
F "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."
G
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
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 959
[V.S. SIRPURKAR, J.]
cure the defect and on that account, the provision is bad. A
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- B
section (1) of the principal Act was published in official
Gazette or on any day prior to the date o(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 C
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 D
supra), as also in Mohd. Ali & Ors. vs. State of U.P. & Ors.
reported in 1998 (9) 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 E
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 F
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 G
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
H
960 SUPREME COURT, REPORTS [2009] 14 (ADDL.) S.C.R.
A was published along with Section 4 notification simultaneously. y..._
~
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
B
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
c notification is 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.
D ,t~.
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
E 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
F reported in 1978 (2) SCC 50 by Shri Trivedi, Learned Senior
1
-
Counsel for the appellants. In Meerut Development Authority's I
case (cited supra), the aforementioned decision in Madan F
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
G & 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
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 961
[V.S. SIRPURKAR, J.]
- --1 retrospectively is recognized. Of course, the same has to be A
done only 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 Shri Prithvi Cotton Mills
Ltd. vs. Broach Borough Municipality reported in 1969 (2) SCC
283, which is referred to in paragraph 16 of the decision, it is B
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''.
c
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 D
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) sec 48 (cited supra), our attention was invited by E
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 Mills Ltd. vs. Broach Borough
Municipality reported in 1969 (2) SCC 283 and Mis. Ujagar
Prints and Others (//) vs. Union of India and Others reported F
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 removed the defects pointed out in Radhey Shyam's case
(cited supra). Of course, this case pertains to the taxing
-+ G
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, J.M. Saxena's
case, and Janpad Sabha's case (all cited supra) need not be
H
962 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
r-_
A 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
B 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
c 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
D-' & 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 contravene the fundamental rights
and that the law must satisfy the requirements of the
-
E 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
F 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.
G
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
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 963
...
«
' "(
[V.S. SIRPURKAR, J.]
retrospective effect. The present case is not such a case. No
benefits could be said to have been accrued in favour of the
A
.... 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) B
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, c
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 Sedion 4 of the Act. The D
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. E
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
-I
supra), a reference was made to Khadim Hussain's case (cited
supra), where it has been held that a notification under Section F
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 another reported decision of this Court in Sriniwas
Ramnath Khatod vs. State of Maharashtra & Ors. reported in
G
-~ 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 relying on Mohd. Ali's case (cited supra) and the
H
964 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
)
A MDA 's case (cited supra). In view of the subsequent decisions, r--_
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 case of
B Eugenio Misquita & Ors. vs. State of Goa & Ors. reported in
1997(8) sec 47, in which reference was made to the decision
in the case of Krishi Utpadan Mandi Samiti vs. Makrand .;.,
Singh & Ors. reported. in 1995(2) SCC 497. It must be ~
immediately pointed out that both these decisions would not be
c 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 controversy involved in the case of Eugenio Misquita &
Ors. vs. State of Goa & Ors. (cited supra), as well as in the
case of Krishi Utpadan Mandi Samiti vs. Makrand Singh &
D ~-
Ors. (cited supra) is entirely different than the one involved in
this matter. Those two cases in Eugenio Misquita & Ors. vs.
State of Goa & Ors. (cited supra) and Krishi Utpadan Mandi
Samiti vs. Makrand Singh & Ors. (cited supra) would not be
apposite.
E
45. A further reference was made by the Learned Senior
Counsel for the appellants to the decision in the case of Mohan
J.
Singh & Ors. vs. International Airport Authority of India & Ors. ....
reported in 1997(9) SCC 132 and S.H. Rangappa vs. State
F of Karnataka & Anr. reported in 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 decisions
in Eugenio Misquita & Ors. vs. State of Goa & Ors. (cited
supra) and Krishi Utpadan Mandi Samiti vs. Makrand Singh
G & Ors. (cited supra) was contrary to the decision in Khadim -+-
Hussain's case (cited supra). As regards the case of Mohan
Singh & Ors. vs. 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:-
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 965
[V.S. SIRPURKAR, J.]
/-... "What is needed is that there should be a gap of time of A
at least a day between the p blication of the notification
under Section 4(1) and of th declaration under Section
6(1)."
Further in paragraph 16, it is observed that:-
B
"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."
c
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.
-x A reference was also made to Section 17(4), as also Section 0
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 Mohan Singh's case (cited supra), this Court
upheld the validity of the Validating Act, refuting the argument E
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 the case of Mohan Singh & Ors. vs. F'
International Airport Authority of India & Ors. (cited supra) can
be of any help to the appellants in the light of the facts of the
present case. Decision in S.H. Rangappa vs. State of
Karnataka & Anr. reported in 2002(1) SCC 538, which is a
decision after the reference was made to the larger Bench was G
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 H
966 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A in Khadim Hussain's case (cited supra) and observed that in '•><- .....
the decisions in Eugenio Misquita & Ors. vs. State of Goa &
Ors. (cited supra) and Krishi Utpadan Mandi Samiti vs.
Makrand Singh & Ors. (cited supra), the binding decision of
Khadim Hussain's case (cited supra) was not referred. It was
B 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. -i..
_.,
Rangappa's case (cited supra), did not arise there. We would
c 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
D ~--
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
E 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
F the question of limitation.
46. The Learned Senior Counsel further argued that we
should make a reference to the farger Bench and has
formulated the questions as under:-
G Whether the proviso to Section 17(4) inserted by
"1.
the Amending Act cures the defect pointed out in
+
Radhey Shyam only for the period between
~
24.9.1984 and 11.1.1989?
H 2. Whether "declaration" mentioned in the aforesaid
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 967
[V.S. SIRPURKAR, J.]
proviso refers to it as understood by Section 6(1) A
or Section 6(2)?
3. Whether the validation provision in Section 3 of the
Amending Act goes beyond the newly inserted
proviso inasmuch as:-
B
(h) it cures the defect of "publication" of the
)r
declaration and not making of the
declaration.
(i) it validates publication of the dec;Laration c
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 D
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?
E
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- F
Section (3) and (3A) of Section 17, the notification
under Section 17(4) becomes void?
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 G
--r- 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 H
968 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A notification in the State of Uttar Pradesh for the last two )<---...._
decades, as stated by the Learned Senior Counsel appearing
on behalf of the LOA. Even in respect of Ujariyaon Housing
Scheme Part-Ill, the declaration under Section 6 of the Act is
published much after the publication of notification under
B 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
~ I,
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
c Section ~
17(4) in MDA's case (cited supra). Fourthly, in one of
the appeals before us in Civil Appeal Nos. 2116-2118 (Tika
Ram & Ors. vs. The State of U.P. & Ors.) represented by Shri
Qamar Ahmad, Learned Counsel, the land owners have already
accepted the compensation, while in the matter of Civil Appeal
D -i,--
No. 3415 of 1998 (Pratap Sahkari Grih Nirman Samiti Ltd. vs.
State of Uttar Pradesh & 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 registration of the Sale
Deed in respect of the Soeiety is subsequent to the notification
E 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 _,4
has already been taken, as claimed by the LOA, way back in ~-
the year 1985 for which there are documents like Panchanama
F 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 the cases of Mishri Lal (Dead) by L. Rs. vs. Dhirendra
G Nath (Dead) by L.Rs. reported in 1999 (4) SCC 11 and
Central Board of Dawoodi Bohra Community vs. State of --1---
Maharashtra reported in 2005(2) SCC 673, the principle of
Stare Decisis would apply. In this case, their Lordships referred
to observations by Lord Reid and quoted seven principles
H regiarding the binding precedent. They are:
I
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 969
[V.S. SIRPURKAR, ,J.]
_. -~ "(1) The freedom granted by the 1966 Practice A
Statement ought to be exercised sparingly (the 'use
sparingly'. criterion) (Jones vs. Secretary of State
for Social Services, 1972 AC 944, 966).
(2) A decision ought not to be overruled if to do so 8
would upset the legitimate expectations of people
who have entered into contracts or settlements or
x otherwise regulated their affairs in reliance on the
~ validity of that decision (the 'legitimate
expectations' criterion) (Ross Smith vs. Ross- C
Smith, 1963 AC 280, 303 and lndyka vs. lndyka,
(1969) AC 33, 69).
(3) A decision concerning questions of construction of
', statutes or other documents ought not to be
-x overruled except in rare and exceptional cases (the D
'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 E
'unforeseeable consequences' criterion)
(Steadman vs. Steadman, 1976 AC 536, 542C). (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
F
are best done 'by legislation following on a wide
survey of the whole field' (the 'need for
comprehensive reform' criterion) (Myers vs. OPP,
1965 AC 1001, 1022; Cassell & Cb. Ltd. VS.
Broome, 1972 AC 1027, 1086; Haughton vs.
Smith, 1975 AC 476, 500). G
(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 H
970 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
i'
'I
~
A (the 'precedent merely wrong' criterion) (Knufler vs. ~-~
OPP, 1973 AC 435, 455).
(6) A decision ought to be overruled if it causes such
great uncertainty in practice that the parties'
B advisers are unable to give any clear indication as
to what the courts will hold the law to be (the
'rectification of uncertainty' criterion), (Jones case
-j._
(supra)); Oldendorff (E.L.) & Co. GamBH vs.
Tradax Export SA, 1974 AC 479, 533, 535: (1972) .,
3 All ER 420)
c
(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 ..
D (the 'unjust or outmoded' criterion) (Jones case ~-
(supra)); Conway vs. Rimmer, (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
E
the present situation, 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. ~
F II Effect of alleged non-Qay_ment of 80% comQensation
under Section 17 of the PrinciQal 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
G 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
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 971
[V.S. SIRPURKAR, J.]
_,, .-"*
would prefer not to go into the factual questions as the High A
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 B
and 5 of 2006 to show that LOA 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 the compensation was
paid to the concerned persons much later and in some cases,
c
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 0
Owivedi, Learned Senior Counsel for LOA further argued that
these documents could not be accepted at this late stage and
that the LOA 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 E
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.
...... F
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
---Ii be attracted and such possession can be taken immediately
after the publication of Section 9(1 ). Section 17(3) of the Act
t -r- provides that in every case under Section 17(1) and Section G
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-
H
972 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A Section (3) is attracted only 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.
B
two parts, firstly, where Sub-Section (1) and (2) are applicable
and secondly, where the enquiry under Section 5-A is
-A
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
c 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 -'}l_-
D 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
E secondly, of Sub-Section (4) itself. The clear legal position is
that the dispensation of Section 5-A enquiry is only and only to
l
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
F 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 I
contention on the part of the appellants is also incorrect. If we
G -f--
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
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 973
[V.S. SIRPURKAR, J.]
___ ,/+ A
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 B
( 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
c
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, firstly, in Satendra Prasad Jain & D
Ors. vs. State of U.P. & Ors. reported 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 E
held that that Section could not be so construed as to leave the
Government holding title of the land without an obligation to
).,_
-I 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 F
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 G
' -1 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. The Court, in para 17, held as under:-
H
974 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A "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
B 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 •
c monies available and who has been in occupation
of the said land ever since its possession. was
taken, to urge that the/possession was 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
D ~-
award."
53. Further, in a judgment of this Court in Pratap & Anr.
vs. State of Rajasthan & Ors. etc. etc. reported in 1996 (3)
sec 1, similar view was reported. That was a case under the
E 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
F 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 I
G concerned, did not result in lapsing of the land acquisition
proceedings. The law laid down by this Court in Satendra -..-----
Prasad Jain & Ors. vs. State of U.P. & Ors. (cited supra) was
approved. The Court also .relied on the decision in P.
Chirinanna vs. State of A.P. reported in 1994 (5) SCC 486
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 975
[V.S. SIRPURKAR, J.]
'
ft and Awadh Bihari Yadav vs. State of Bihar reported in 1995 A
(6)sec 31, 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 B
matter, as suggested by Shri Trivedi, Learned Senior Counsel
and Shri Qamar Ahmad, Learned Counsel for the appellants.
),-
Therefore, even on the sixth question, there is no necessity of
~
any reference.
Ill.Challenge under Article 14 of the Constitution of India
c
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 D
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) E
SCC 462], the Court had made observation in paragraph 8 that
the validity of Section 17 (4) was upheld in GDA's case (cited
A 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 F
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 with both the
situations ,namely, the notification published on or after
G
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
H
976 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.
A 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
B 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 --1',
.,,
concerned, it is true that in paragraph,.8 there has been an
observation that the validity of the proviso added by the State
c 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
D (cited supra), the validity was not questioned or doubted and ~c-
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
E Aluminium Co. (cited supra). The Court has taken a full review
of the then existing law by way of the decision of this Court in
State of Orissa vs. Gopal Chandrarath reported in 1995 (6)
~
SCC 243, Bhubaneswar Singh and Anr. vs. Union of India and \-{
Ors. reported in 1994 (6) SCC 77 and Comorin Match
F Industries P. Ltd, vs. State of Tamil Nadu reported in 1996 (4)
SCC 281. Thereafter, referring to Gouri Shankar Gauri and Ors.
vs. State of U.P. and Ors. reported in 1994 (1) SCC 92, the
Court also referred to the provisions of Article 254 (2) and (3)
and approved of the whole Amending Act as such. In our
G 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
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 977
, [V.S. SIRPURKAR, J.]
-__,,
...-.,.
MDA's case (cited supra) did not specifically address the Court A
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 B
to take such a course [see Delhi Cloth and General Mills Co.
> Ltd. vs. 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
c
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-a-vis Article 14 of the Constitution. We do not find D
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.
E
57. The Learned Senior Counsel appearing for the
,.__ appellants had heavily relied on paragraph 14 of the judgment
in Meerut Development Authority vs. Satvir Singh & Ors. (cited
supra). Basically we do not accept the contention raised that
the contents in paragraph 14 holding that the provisions of the F
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
G
relating only to the period between 24.9.1984 and 11.1.1989.
It is stated by the Learned Senior Counsel appearing for the
LOA that only two appeals pertain to Ujariyaon Housing Scheme
Part-Ill and even in that case, the notifications were published
in the year 1991 and the issue of simultaneous publication of
H
978 SUPREME COURT REPORTS [2009] 14 (ADDL.} S.C.R. '
\.,~
A notification does not arise, as Section 6 declaration was signed ....
and published in 1992. 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
B (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
c Scheme Part-Ill, 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-Ill, however, a fresh
notification was issued on 30.12.1991 and Section 6
D 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-Ill was allowed to lapse and a fresh notification
was published, meaning thereby that persons coming under
E Ujariyaon Housing Scheme Part-Ill, 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
F Validation Act did not confer any discretion on the State
Government to apply its provisions to a particular scheme and
then issue notifications. It was a one time 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
G Ujariyaon Housing Scheme Part-Ill did not lapse because of the
decision of the Government. Since the award was not made l
within the time prescribed by the Section 11 A 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
H
.....
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 979
[V.S. SIRPURKAR, J.]
~·~ notification. In Ujariyaon Housing Scheme Part-II, the award was A
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.
8
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).
c
It was, however, urged tflat the question of Constitutional validity
was never considered in these cases. Reliance was placed 9n
judgments reported as Amit 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
-Y Jeet Kaur v. State of Madhya Pradesh & Anr. reported in 2004 D
(7) SCC 558, /CIC/ Bank & Anr. v. Municipal Corporation of
... Greater Bombay & Ors. reported in 2005 (6) SCC 404, A.R.
Antulay v. R.S. Naik & Ors. reported in 1988 (2) Sec 602,
Zee Telefilms Ltd. & Anr. v. Union of India & Ors. reported in
2005 (4) sec 649, P. Ramachandra Rao v. State of E
Karnataka reported in 2002 (4) SCC 578, Nand Kishore v.
State of Punjab reported in 1995 (6) sec 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 F
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 G
---., 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 H
980 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A rejected the argument that there was any discrimination {.-
between Ujariyaon Part II and Ujariyaon Part Ill schemes. We
are convinced with the explanation given by the State
Government as to why Ujariyaon Part Ill scheme was left out of
the consideration of validation. Indeed the acquisition therein
B 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 Constitutional invalidity. We are not at all •
c impressed by the contention raised tnat 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
D validity of the statute. In so far as the Executive action is --f- -
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
E (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
A
violative and ultra vires to Section 3A, 38, 4, 5, 6, 7, 8 of Land .....
Acquisition Act No.1 of 1894 as amended from time to time.
F 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,
G 39, 48, 48A and 300A for invidious discrimination. Learned
Counsel also submits that there are no guidelines for the Y-
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
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 981
[V.S. SIRPURKAR, J.]
I
-~ A
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/ndia & 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 B
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. c I
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 D
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
E
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).
F
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 SA inquiry has to be exercised
in a proper manner. There are cases where this Court has not G
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 H
982 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
/
A (2) of Section 17 is separate and distinct from the criteria of {.- ·,,,.,.....--
urgency. In our opinion; these two criteria provide clear r-
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
B enough and the Government must further consider the matters
objectively as to the dispensation with Section SA 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
..
c 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 realit~ or the
dispensation of Section SA 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
D
made against the Constitutional validity. The validity of this "-
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
E 24. The second judgment of Allahabad High Court has been
approved by the court in lshwarlal 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
F Section 17(4) of the Act of dispensing with the enquiry under
Section S-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
G constitutional invalidity on account of being arbitrary in the
y·
nature.
62. In fact, the reliance was placed on the decision in Suraj
Mall Mohta and Company vs. A. V. Visvanatha Sastri and Anr.
H reported in AIR 19S4 SC S4S. That was a case under the tax
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 983
[V.S. SIRPURKAR, J.]
jurisprudence, dealing with certain Sections of the Taxation on A
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 B
has also dealt with this case. Though there can be no dispute
on the principles, we do not think that the principle are
applicable to the present controversy. We have already given
a reference of the case of lshwarlal Girdharlal Joshi etc. vs.
State of Gujarat (cited supra). The Learned Counsel appearing c
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 0
High Court has made a reference to the observation by this
Court in Matajog Dubey vs. H.C. Bhari reported in AIR 1956
SC 44, holding that a 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 E
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. lshwarlal'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) F
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 G
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 vs. Union of India reported in
AIR 1970 SC 150, Maneka Gandhi vs. Union of India reported
H
984 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
,
A in AIR 1978 SC 597 and Olga Tellis vs. Bombay Municipal
Corporation reported in Al R 1986 SC 180 as also in Union of
~-
--- .-
India vs. Tutsi Ram reported in AIR 1985 SC 1416 which were
relied upon by the High Court. The High Court was, undoubtedly,
correct in holding that there was no necessity of a notice since
I-
B the satisfaction required on the part of the Executive is a subject
of satisfaction, which can only be assailed on the ground that i:=
there was no sufficient material to dispense with the enquiry or
the order suffers from malice. We will deal with the question ~
~· I
as to whether there was an urgency and what is the nature of
c urgency required. We, therefore, do not think that Sub-Sections I
\.
(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 urgencl£ and a12plication of Section 17 of the
D Principal Act
"*-
63. At this juncture itself, we must also consider the
argument that there was no real urgency in this matter. It can
not be ignored that this land was urgently needed for housing. t--
I
E 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 also commented while disposing of the writ petitions
F 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 ma/a tides against the .j,....
authority. No evidence has been brought before the judgment
G
and the High Court has also commented on this. The housing Y"
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
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 985
[V.S. SIRPURKAR, J.]
... +
----!,-
has recorded categorical finding that there was sufficient A
_. 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 ma/a tides.
A notice can be taken of the fact that all the lands which were
acquired ultimately came to be utilized for the scheme. We, B
.....
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 c
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 and two decades D
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
E
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
... J... 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 F
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 Braha
--y Shah vs. State of U.P. reported in Al R 1967 SC 1081, in G
Narayan vs. State of Maharashtra reported in AIR 1977 SC
183, in Kailashwati vs. State of U.P. reported in AIR 1978 All.
181, in Deepak Pahwa vs. Lt. 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 H
986 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A 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.
--
,,,
Other contentions on merits
B
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
c 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
-...; -
D think that that question needs to be answered in the wake of
the High Coui:t'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
E is nothing wrong if such lands were acquired. What is to be
seen is the bona tides 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
-
F 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 taken. Therefore,
accepting that claim, as has been done by the High Court, we
G would not go into those questions of fact. y-
67. To put the record straight, there is enough evidence in
shape of the stand taken by the LOA in its counter affidavit
before the High Court, where it was asserted that the
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 987
[V.S. SIRPURKAR, J.]
. . . -+ possession was already taken. Even in the present Civil A
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 Nos. 2116-2118 (Tika Ram & Ors.
vs. The State of U.P. & Ors.) are concerned, it was urged by B
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 LOA pointed out that this was c
incorrect and the correct date of taking possession was only
21.5.1985, while the possession of some plots was handed
over to the LOA 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,
- \- D
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 LOA also found fault with the Sale Deed in favour
of Pratap Sahkari Grih Nirman Samiti Ltd., which is being E·
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 F
clearly a date beyond the date of Section 4 notification. It is
already held by this Court in U.P. Jal Nigam vs. Kalra
Properties Ltd. reported in 1996 (3) SCC 124 and Star Wire
(India) Ltd. vs. State of Haryana & Ors. reported in 1996 (11)
sec 698 that if any purchases of the land are made after the G
-~
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 H
988 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.
+~
A 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
B notification.
69. It was urged by Shri Trivedi, Learned Senior Counsel . ...(
for the appellants that there was a policy to give back 25% of If
the acquired land to the cooperative societies. This was.
suggested on the basis of various letters on record, suggesting
c that LOA was considering the revision. Shri Dwivedi, Learned
Senior Counsel for LOA 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 -;-
D 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
E 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 J.
was also entered into a day before the publication of the ~
notification in the Gazette and the registration of the Sale Deed
F 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
G not possible in view of the township having come up in Gomti y-
Nagar.
70. In view of what we have held above, we confirm the
judgment of the High Court and dismiss all the appeals being
H
TIKA RAM & ORS. v. STATE OF U.P. & ORS. 989
[V.S. SIRPURKAR, J.]
.. ~ + Civil Appeal Nos. 2650-2652 of 1998, 3162 of 1998, 3176 of A
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 and 4995-4996 of 1998.
B
SLP (CIVIL) No ....... (CC 1540/1999)
71. Delay condoned in SLP (Civil) No. 23551 of 2009 (CC
1540/1999). The Special Leave Petition is dismissed in view
" of the above order.
c
72. In the circumstances, there would be no orders as to
the costs.
K.K.T. Appeals dismissed.
( - .lr
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