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TMI Blog2009 (9) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... VIII of 1994 (hereinafter called `the Validating Act' for short) was challenged, so also constitutionality of Sections 3(A), 3(B), 4, 5, 6, 7 and 8 of the Act was also challenged. In that set of Writ Petitions, basically, the notification issued under Section 4(1) of the Act and the award dated 25.2.1987 were in challenge. 2. In some other Writ Petitions, besides the challenge to the above mentioned provisions, some other notifications dated 30.12.1995, 25.1.1992, 4.1.1992 and 15.12.1992 under Section 4(1) of the Act, as well as, the declaration under Section 6 of the Act were in challenge. 3. In some Writ Petitions, the petitioners prayed for a Writ of mandamus, commanding the State of U.P. to frame necessary rules and regulations in respect of Sections 11, 11-A and 17(3)(A) of the Act pertaining to the functioning of the Land Acquisition Officer and also sought for an injunction restraining the authorities from interfering with the possession of the Writ Petitioners' land and to comply with the provisions under Sections 3(1A), 3(B), 4(2), 5 and 9(1) of the Act. They have also prayed for a disciplinary action against the Station Officer, Police Station Gomti Nagar, Luck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preliminary survey as envisaged under Section 3(A) of the Act and no damages were paid to any tenure holder as provided under Section 3(B) of the Act, either before or after passing of the Validating Act. There are various such challenges on merit to the process of acquisition. Short History of Validating Act 9. Earlier, the acquisitions were made by formulating a scheme known as Ujariyaon Housing Scheme (Part-II and Part III). In these, the notifications under Section 4(1) and declaration under Section 6(2) of the Act were issued simultaneously. That was challenged before the High Court at the instance of one Kashmira Singh. All the Writ Petitions came to be allowed on the ground that simultaneous notifications under Sections 4(1) and 6(2) could not be issued, particularly, after the amendment of Section 17(4) of the Act, which provision was amended by Amending Act No. 68 of 1984. State of Uttar Pradesh filed Special Leave Petition before this Court, where the order passed by the High Court was upheld in a reported 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 Ujar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Act, in sub-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 notification under Section 4, sub-Section (1) has been published in the official Gazette on or after September 24, 1984 but before January 11, 1989 and the appropriate Government has under this sub-Section directed that the provisions of Section 5-A shall not apply, a declaration under Section 6 in respect of the land may be made either simultaneously with or at any time after the publication in the official Gazette of the notification under section 4, sub-Section (1). 3. Validation of certain acquisitions:- Notwithstanding and judgment, decree or order of any Court, Tribunal or other authority, no acquisition of land made, or purporting to have been made under the Principal Act, before the commencement of this Act and no action taken or thing done (including any order or alteration made, agreement entered into or notification published in connection with such acquisition which is in conformity with the provisions of the Principal Act as amended by this Act shall be deemed to be inval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure thought it appropriate that despite the enactment of the Amendment Act, 68 of 1984 amending Section 17(4), the State needed further amendment. Resultantly, the U.P. Amendment Act 5 of 1991 came to be made and it was given retrospective effect from the date of the Amendment Act 68 of 1984 has come into force, i.e., September 24, 1984. It is true that the proviso was not happily worded but a reading of it would clearly give us an indication that the proviso to sub Section (4) introduced by Section 2 of the Amendment Act 5 of 1991 would deal with both the situations, namely, the notifications published on or after September 24, 1984 but before January 11, 1989 but also the declaration to be simultaneously published subsequent thereto. The literal interpretation sought to be put up by Shri Pradeep Misra would defeat the legislative object. Therefore, ironing out the creases we are of the view that the proviso applies not only to the notifications and declarations simultaneously published after the date of coming into force of the Amendment Act 68 of 1984, but also to the future declarations as well. Thus, it could be seen that the proviso would operate prospectively and retrospecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per incurium, even if the Hon'ble Supreme Court has not dwelled into the" The High Court held that the Legislature, by amending Act, has merely removed the defect pointed out by this Court in case of Radhey Shyam (cited supra) and removed the basis of the decision rendered by the Court. The High Court also rejected the argument regarding the Section 17(4) and the proviso added to it by Validating Act. Ultimately, the High Court, wholly relying on the judgments in Ghaziabad Development Authority 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 cases as per incurium and since in these three cases the Validating Act was upheld, there was no question of finding fault with the Validating Act. Similarly, the High Court also rejected the argument regarding the invalidity of Sections 17(1)(3A) and (4) of the Act. The High Court also independently considered the principle of eminent domain. The High Court also considered the Ujariyaon Housing Scheme Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Land Acquisition (Uttar Pradesh Amendment and Validation) Ordinance, 1990 and enforced the same on 27.12.1990. This Ordinance later on got the status of an Act, being Land Acquisition (Uttar Pradesh Amendment and Validation) Act, 1991 (U.P. Act No. V of 1991). Amending Act was identical as the Ordinance. The thrust of the argument of Shri Trivedi, Learned Senior Counsel, as also other Learned Counsel was against the constitutional validity of this Act. The Act consisted of 4 Sections. Section 1 is reproduced hereunder:- 1. Short Title, extent and commencement:- (1) This Act may be called the Land Acquisition (Uttar Pradesh Amendment and Validation) Act, 1991. (2) It extends to the whole of Uttar Pradesh. (3) It shall be deemed to have come into force on December 28, 1990. Sections 2, 3 &4 have already been quoted hereinabove. The basic argument against this Act was that the only purpose of this Act was to set at naught or nullify the judgment of this Court in State of Uttar Pradesh Vs. Radhey Shyam reported in 1989(1) SCC 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 not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pp. SCC 1 6. Virender Singh Hooda Vs. State of Haryana reported in 2004(12) SCC 588 7. I.N. Saxena Vs. State of Madhya Pradesh reported in 1976(4) SCC 750 8. Janpad Sabha Vs. C.P. Syndicate reported in 1970 (1) SCC 509. II. Act is ultra vires and constitutionally invalid 14. The second submission was that the said Act is ultra vires the Article 300A of the Constitution of India, as its effect was to deprive the appellants of higher compensation which may be admissible, pursuant to the fresh acquisition proceedings after 1987. Three decisions of this Court were relied upon for this purpose, they being:- 1. State of Gujarat Vs. Ramanlal reported in 1983 (2) SCC 33 2. T.R. Kapur &Ors. Vs. State of Haryana reported in 1986 Supp. SCC 584 3. Union of India Vs. Tushar Ranjan Mohanty reported in 1994 (5) SCC 450 Apart from the challenge to the validity of the Act itself, or, as the case may be, to the legislative exercise, the amendment brought about by that Act vide sub-Section (4) of Section 17 of the Act was challenged as ultra vires, as it sought to validate the simultaneous notifications only between 24.9.1984 and 11.9.1989 and no others. Thereby, the Learned Counsel contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Part-II and Ujariyaon Housing Scheme Part-III and, therefore, there was invidious discrimination meted out to the Writ Petitioners (appellants herein). 17. Finding that the challenge to the notification was held to be valid by this Court in Ghaziabad Development Authority Vs. Jan Kalyan Samiti (cited supra) and in Meerut 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 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 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, Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case (cited supra). Defence. 19. As against this, Shri Rakesh Kumar Dwivedi, Learned Senior Counsel appearing on behalf of the LDA and Shri Dinesh Dwivedi, Learned Senior Counsel appearing on behalf of State of Uttar Pradesh vehemently contended that the argument regarding the invalidity of the Amending Act could not be reconsidered. The Learned Senior Counsel relied on Doctrine of stare decisis in support of their contentions. They pointed out that this very Act was tested by this Court in the aforementioned two decisions in Ghaziabad Development 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 on the spacious ground that this Court had not considered some particular arguments. The Learned Senior Counsel were at pains to point out that such course is not permissible in law. 20. Even otherwise, according to the Learned Senior Counsel for the respondents, there was not dearth of power in the State Legislature in introducing Section 17(4) proviso to the Act for the State. It was then c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered nugatory or redundant, it would raise the issue of ambiguity necessitating 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 Reasons appended to the U.P. Amendment Act were clear so as to save the scheme which were affected by the declaration in Radhey Shyam's case (cited supra) such context had to be kept in mind while interpreting the terms. In Radhey Shyam's case (cited supra) admittedly the notifications under Sections 4(1) and 6(2) were published simultaneously in the Gazette clearly implying that the declaration under Section 6(1) was made before Gazette publication of the notification under Section 4(1). If the object of Amendment Act was to save the schemes affected by Radhey Shyam's case (cited supra), which is clear also from the language of Section 3 of the Amendment Act, then by accepting the plain meaning, the UP Amendment Act would be rendered redundant and, therefore, such interpretation has to be avoided. Learned Counsel, relying on various reported decisions like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the writ petitions is also liable to be taken into account since it is likely to cause prejudice to those for whom the schemes were framed. As regards the urgency clause, Learned Counsel urged that the land was very urgently required for urban housing and after the acquisition there has been large scale development and utilization on the acquired land and thousands of constructions have been made and the schemes have been evolved leading to allotments to third parties. Now at this stage, if the notifications were to be quashed it would seriously prejudice the interest of the large number of people and the High Court was right in dismissing the Writ Petitions on this ground. The Learned Counsel further argued that in this case it must be noted that there are no allegations of mala fides or any evidence in support of it. Relying on a judgment in State of U.P. V. Pista Devi reported in 1986 (4) SCC 251 the Senior Counsel pointed out that judicial notice has been taken by the High Court of the fact that the housing development and planned developments are matters of great urgency and obviate Section 5A enquiry. In short, the argument was that the housing development was itself i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Learned Counsel also reiterated that the declaration under Section 6 (1) was different from a published declaration. The contention, therefore, was that considering the scheme of the Act, the declaration referred to in Section 6 is public or notified declaration. Taking that clue, it is argued that there will be no difficulty if Sections 2 and 3 of the Validating Act are properly understood. It was argued that the Validating Act removes the defect pointed out in the case of Radhey Shyam (cited supra) and also the validating provisions and, therefore, it is not a case of simplicitor overruling of the judgment of the Supreme Court. 24. Learned Counsel for LDA also opposed reference to Larger Bench. It was further pointed that since the schemes of Ghaziabad Development Authority(GDA) and Meerut Development Authority(MDA) were already upheld, the dispute in Ujariyaon Part-II scheme of LDA involved only 150 bighas whereas the notification pursuant to Ujariyaon Part-II Scheme involved 1776 acres of land and barring the appellants, everybody had accepted this scheme. Learned Counsel seriously disputed the claim in Tika Ram's case and contended that the landowners had already acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and State of 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 of West Bengal reported in 1953 SCR. 30. It was pointed out that it was now crystallized law that if the Legislature indicates the policy which inspired it and the object which it seeks to attain then it can leave selective application of the law to be made by the Executive Authority. Learned Counsel relied on R.K. Dalmia v. S.R. Tendolkar reported in 1959 SCR 279 and In re: Special Courts Bills, 1978 reported in 1979 (1) SCC 380. It was pointed out that the criteria of urgency and emergency in the instant case have been prescribed in the context of the exercise of power of eminent domain and this power under the Constitution of India can be exercised only for public purpose. 26. Learned Counsel argued that the process of acquisition begins only when there is a public purpose and in such situation the effectuation of public purpose does not brook any delay and requires q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Counsel pointed out that the documents filed in support of their plea were never filed before the High Court whereas this Writ Petition was pending for as long as 13 years and even after filing the special leave petition, it was pending for about 10 years. The documents came to be filed only after 8 years. Since the document involved question of fact, applications made in this behalf, namely, I.A. Nos. 4-5 of 2006, were liable to be rejected. It was pointed out that the documents filed along with the said I.As. were not authenticated and verified by the appellant. The sources from which the documents emanated were also not indicated. It was further pointed out that sub-Section (3) of Section 3(3A) of Section 17 are not attracted to a case where the power under Section 17 (4) has been exercised and Section 5A has been dispensed with. It is again pointed out that Section 17 (3) and (3A) do not provide consequences of non-tendering and non- payment of estimated compensation in terms of the said provision and the Act does not say that the if possession and development have been taken and the development work has been done without compliance of the provisions then the taking of po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.09.1984 but before 11.01.1989 and the appropriate Government has under this sub- Section direction that proviso of Section 5A was not applied, a declaration under Section 6 in respect of the land may be made either simultaneously at a time after the publication in the official Gazette of the notification under Section 4(1). 30. The first objection which was raised by Shri Trivedi, Learned Senior Counsel for the appellants, as well as, the other Learned Counsel was that it was merely to overrule the decision of this Court in the aforementioned case of Kashmira Singh (cited supra) or, as the case may be, State of 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. Satbir Singh reported in 1996 (11) SCC 462. This Court was considering this very proviso of Section 17 (4) inserted by Land Acquisition [U.P. Amendment and Validation Act, 1991 [UP Act No. 5 of 1991] and relying upon the judgment reported as GDA Vs. Jan Kalyan Samiti, Sheopuri reported in 1996 (2) SCC 365, the Court took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n given for recovery thereof. [9] The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same. 31. As regards the proviso in question, the Court firstly observed in paragraph 13 and 14 as under: 13. It is not in dispute that the State Amendment Act 5 of 1991 was enacted and reserved for consideration of the President and received the assent of the President on 26.02.1991 and the Act was published in the Gazette n 27.02.1991. It is to be seen that as regards simultaneous publication of the notification and the declaration in respect of acquisition of the land for public purpose exercising the power of eminent domain in certain situations where possession was needed urgently, depending upon the local needs and the urgency, Government requires such power. Consequently, the State Legislature thought it appropriate that despite the enactment of the Amendment Act 68 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme is also an urgent purpose as laid down by this Court in Aflatoon v. Lieutenant Governor of Delhi, State of UP v. Pista Devi and in recent judgment of this Court .in State of Tamil Nadu v. L. Krishnan. In the light of settled legal position the acquisition for housing development is an urgent purpose and exercise of the power under Section 17(4) dispensing with the enquiry under Section 5A is not invalid. 33. In fact, this judgment is a complete answer to the questions raised by Shri Trivedi, Learned Senior Counsel for the appellants. It holds Section 3 to be valid and also holds that it had cured the defect. The judgment also takes care of the contention that there was no necessity to raise the urgency clause in these acquisitions and the exercise of raising the urgency clause was not bona fide. Various other judgments were referred by Shri Trivedi which we have included in the earlier part of the judgment like S.R. Bhagwat v. State of Mysore (cited supra), ITW Signode India Ltd. v. Collector of Central Excise (cited supra), Bakhtawar Trust v. M.D. Narayan &Ors. (cited supra), Madan Mohan Pathak v. Union of India (cited supra), Indira Gandhi v. Raj Narayan (cited supra), V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the proviso and, therefore, if the proviso is read as it is, then it conflicts with the language of Section 3 which speaks not of declaration, but publication of Section 6 notification. We do not think that the contention is correct. In paragraph 16 of Meerut Development Authority's case (cited supra), this Court considered Section 3 and observed that:- "it is seen that Section 3 of the Amending Act No.5 of 1991 seeks to validate the illegal declarations made simultaneously with the publication of Section 4 notification and in some cases even prior to the publication of Section 4 notification." Thus, even a situation where Section 6 declaration was made prior to the publication of notification under Section 4, was held to be covered and cured under Section 3, the validity of which was confirmed by this Court. It would, therefore, be futile to argue that the Act did not cure the defect and on that account, the provision is bad. In our opinion, added proviso would have to be read along with and in the light of Section 3 of the amending Act which clearly envisages a situation of the declaration under Section 6 being published in the official Gazette on the same date on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have taken the same view and we are in respectful agreement with the same. 40. It was then argued that Section 17 (4) of the Act as amended by the Amending Act is ultra vires of the Articles 245 and 246 of the Constitution as it nearly overrules the decision of this Court in State of UP v. Radhey Shyam Nigam (cited supra). We have already dealt with this issue and pointed out that this question was specifically dealt with in the two judgments of Lucknow Development Authority and Meerut Development Authority (cited supra). A very strong reliance was placed on Madan Mohan Pathak v. Union of India reported in 1978 (2) SCC 50 by Shri Trivedi, Learned Senior Counsel for the appellants. In Meerut Development Authority's case (cited supra), the aforementioned decision in Madan Mohan Pathak's case (cited supra) has already been considered in paragraph 11 of that judgment. Reliance was also placed on the judgment in Bakhtawar Trust v. M.D. Narayan &Ors. reported in 2003 (5) SCC 298. Learned Counsel for the appellant relied on paragraphs 14 to 16. In our opinion, paragraph 14 was completely against the appellants wherein the State Legislature's power to make retrospective legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remove the defects That question is closed by MDA's case (cited supra). We also do not agree that it merely nullifies the judgment in Radhey Shyam's case (cited supra). 41. It was further argued by Shri Trivedi that the Amending Act is ultra vires the Article 300 A of the Constitution inasmuch as it deprives the petitioner of higher compensation as may be admissible pursuant to the fresh acquisition proceedings after 1987. Three cases have been relied upon, namely, State of Gujarat &Anr. v. Raman Lal Keshav Lal Soni &Ors. reported in 1983 (2) SCC 33, T.R. Kapoor &Ors. v. State of Haryana &Ors. reported in 1986 Suppl. SCC 584 and Union of India v. Tushar Rajan Mohanty reported in 1994 (5) SCC 450, wherein it is held that the Legislature cannot create prospective or retrospective law so as to contravene the fundamental rights and that the law must satisfy the requirements of the Constitution. We have absolutely no quarrel with that, however, we fail to understand as to how it applies here. For establishing their rights, the appellants would have to establish that the State Government was required, in law, to make a fresh acquisition and could not continue with the old one. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 MDA's case (cited supra). In view of the subsequent decisions, we are not in a position to accept the argument that Section 3 itself, providing for the eventuality contained therein, is in any way invalid. We, therefore, reject the argument. The Learned Senior Counsel also referred to the decision in the case of Eugenio Misquita &Ors. Vs. State of Goa &Ors. reported in 1997(8) SCC 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 also referred before us by the Learned Senior Counsel. The question, which fell for consideration in that decision was whether the notification under Section 6(2) of the Act should be published within the period prescribed by the proviso to Section 6(1) of the Act. The Court ultimately upheld the decision in Khadim Hussain's case (cited supra) and observed that in the decisions in 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 also observed that even otherwise in both these cases, declaration under Section 6 of the Act had been pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and what it validates is not cured. 6. Whether in view of the admitted incapacity to offer, tender and pay the compensation under sub-Section (3) and (3A) of Section 17, the notification under Section 17(4) becomes void? 47. We do not think that there is any need to refer any of the questions raised above in view of our observations in the earlier paragraphs, as the schemes of Ghaziabad Development Authority and Meerut Development Authority have already been upheld by this Court in the earlier decisions. Secondly, the basic objective of the Validating Act was to protect the scheme during the period 1984-89 only and subsequently, there has been no such case of simultaneous notification in the State of Uttar Pradesh for the last two decades, as stated by the Learned Senior Counsel appearing on behalf of the LDA. Even in respect of Ujariyaon Housing Scheme Part- III, the declaration under Section 6 of the Act is published much after the publication of notification under Section 4 of the Act. Thirdly, as has been done in MDA's case (cited supra) we have held that Section 17 (4) proviso has to be read together with and in the light of Section 3 of the amending Act and not de hor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overruled except in rare and exceptional cases (the 'construction' criterion) (Jones case (supra)) (4) (a) A decision ought not to be overruled if it would be impracticable for the Lords to foresee the consequence of departing from it (the 'unforeseeable consequences' 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 are best done 'by legislation following on a wide survey of the whole field' (the 'need for comprehensive reform' criterion) (Myers Vs. DPP, 1965 AC 1001, 1022; Cassell &Co. Ltd. Vs. Broome, 1972 AC 1027, 1086; Haughton Vs. Smith, 1975 AC 476, 500). (5) In the interest of certainty, a decision ought not to be overruled merely because the Law Lords consider that it was wrongly decided. There must be some additional reasons to justify such a step (the 'precedent merely wrong' criterion) (Knuller Vs. DPP, 1973 AC 435, 455). (6) A decision ought to be overruled if it causes such great uncertainty in practice that the parties' advisers are unable to give any clear indication a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese documents could not be accepted at this late stage and that the LDA did not have any opportunity to meet those documents, since on I.A. Nos. 4 and 5, no notice has been issued by this Court. Since the source, authentication and verification of those documents was not clear, these documents were not liable to be considered. The Learned Senior Counsel, however, submitted that the land acquisition proceedings on that account cannot be faulted with and cannot be set at naught. 50A. The Learned Senior Counsel argued that in case where the accelerated possession is required to be taken, Section 17(1) of the Act, as also Section 17(2) of the Act would be attracted and such possession can be taken immediately after the publication of Section 9(1). Section 17(3) of the Act provides that in every case under Section 17(1) and Section 17(2) of the Act, the Collector shall offer compensation for standing crops and trees or other damage at the time of taking possession. The Learned Senior Counsel pointed out that the expression - under either of the Sub-Sections shows that Sub-Section (3) is attracted only when the possession is taken under Sub-Section (1) or (2) of Section 17 of the Act. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Sub-Section (1) or Sub-Section (2) of Section 17 of the Act. 52. The only question that would remain is that of the estimation of the compensation. In our considered view, even if the compensation is not paid or is short of 80%, the acquisition would not suffer. One could imagine the unreasonableness of the situation. Now suppose, there is state of emergency as contemplated in Section 17(2) of the Act and the compensation is not given, could the whole acquisition come to a naught? It would entail serious consequences. This situation was considered, firstly, in Satendra Prasad Jain &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 held that that Section could not be so construed as to leave the Government holding title of the land without an obligation to determine the compensation, make an award and pay to the owner the difference between the amount of the award and the amount of the 80% of the estimated compensation. The th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in 1994 (5) SCC 486 and Awadh Bihari Yadav Vs. State of Bihar reported in 1995 (6) SCC 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 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. III. Challenge under Article 14 of the Constitution of India. 54. Learned Senior Counsel then urged that the provisions of the amending Act and also the provisions of Land Acquisition Act like Section 17 (4) are invalid on the test of Article 14 of the Constitution. It is pointed out by Shri Trivedi, Learned Senior Counsel that in GDA's case (cited supra) the impugned notification was held to be valid in view of the amendment made to Section 17 (4) of the Act. However, there was no challenge to the validity of Section 17 (4) of the Act in the said case. Similarly, it was argued that in MDA v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India and Ors. reported in 1994 (6) SCC 77 and Comorin Match 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 opinion, reading paragraph 14 of this judgment in its correct perspective would repel the argument of the appellants that the provision is arbitrary in any manner or has the effect of creating impermissible classification. In our opinion, the language of paragraph 14 does not help the petitioners. If the petitioners in MDA's case (cited supra) did not specifically address the Court on the question of Constitutional validity of the Amending Act (as is being claimed by the appellants), we do not think it will be permissible for the petitioners to raise this point which was admittedly not raised either in GDA's case (cited supra) or MDA's case (cited supra). Petitioners would not be permitted to take such a course [see Delhi Cloth and General Mills Co. Ltd. Vs. Shambhu Nath Mukherji &Ors. reported in AIR 1978 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Validating Act, in case of Ujariyaon Housing Scheme Part-III, however, a fresh notification was issued on 30.12.1991 and Section 6 declaration came to be issued on 30.12.1992. Thus, while the notification in respect of Ujariyaon Housing Scheme Part-II was validated, the notification in respect of the Ujariyaon Housing Scheme Part-III was allowed to lapse and a fresh notification was published, meaning thereby that persons coming under Ujariyaon Housing Scheme Part-III, got the better deal (if they really did) and higher compensation. This argument of Shri Trivedi was adopted by Shri Qamar Ahmad. Though we have considered this argument in the earlier part of the judgment we again reiterate that the argument is clearly incorrect. The Validation Act did not confer any discretion on the State Government to apply its provisions to a particular scheme and then issue 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 Ujariyaon Housing Scheme Part-III did not lapse because of the decision of the Government. Since the award was not made within the time prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with the explanation given by the State Government as to why Ujariyaon Part III scheme was left out of the consideration of validation. Indeed the acquisition therein could not have been validated on account of the time having lapsed for doing so. Once Sections 2 and 3 and the proviso are read in the manner indicated in MDA's case (cited supra) as also in the light of observations made by us, no question remains of any Constitutional invalidity. We are not at all impressed by the contention raised that the Amending Act cannot pass the test of Article 14. We hold accordingly. 60. Our attention was invited to R.K. Dalmia v. S.R. Tendolkar (cited supra). In fact, according to us this judgment does not help the appellants for assailing the Constitutional validity of the statute. In so far as the Executive action is concerned, we do not think that there is any scope to interfere in this matter. Shri Qamar Ahmed in his written arguments has adopted the arguments of Shri Trivedi. In his written submissions he has challenged the provisions of Sections 17 (1), 17 (1A), 17 (3A) and 17 (4A) and proviso to Section 17 (4) as ultra vires to the Constitution. He has also challenged the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policy and the object clearly while acquiring. Discretion upon the application of law and the power under Section 17 of the Act of doing away with Section 5A inquiry has to be exercised in a proper manner. There are cases where this Court has not brooked any breach of provision under Section 17 of the Act. However, we must say that there are clear guidelines provided under Section 17(1) read with Section 4 for understanding the concepts of urgency and emergency. In this behalf, we must hold that the criteria of emergency as provided under Sub-Section (2) of Section 17 is separate and distinct from the criteria of urgency. In our opinion, these two criteria provide clear guidelines and cannot be held as arbitrary. In Krishi Utpadan Mandi Samiti's case and Pista Devi's case (cited supra), this Court has laid down that mere existence of urgency is not enough and the Government must further consider the matters objectively as to the dispensation with Section 5A permissible under that particular situation. Section 17 of the Act has existed on the statute book for a long time and on a number of occasions the applicable criteria of urgency and emergency have been tested by the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble, it does not mean that Section 17(4) of the Act is discriminatory. The High Court has made a reference to the observation by this Court in Matajog 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 mention the case of R.K. Dalmia v. S.R. Tendolkar (cited supra) as a complete answer to the argument of Shri Qamar Ahmad, Learned Counsel for the appellants. Ishwarlal's case (cited supra) is also a total answer to the argument that Sub-Section (1) and (4) of Section 17 of the Act are unconstitutional. The High Court has correctly held that Sub-Sections (1), (3A) and (4) of Section 17 of the Act do not suffer from any unconstitutionality on account of the alleged breach of Article 14 of the Constitution of India. Shri Qamar Ahmad, Learned Counsel for the appellants also argued that before deciding to take the possession under the various provisions of Section 17 of the Act, a person is entitled to a notice. The High Court has correctly dealt with this question. It firstly considered the law laid down in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. A notice can be taken of the fact that all the lands which were acquired ultimately came to be utilized for the scheme. We, therefore, reject the argument that there was no urgency to justify dispensation of Section 5A inquiry by applying the urgency clause. In a reported decision Kishan Das &Ors. v. State of UP &Ors. reported in 1995 (6) SCC 240, this Court has taken a view that where the acquisition has been completed by taking the possession of the land under acquisition and the constructions have been made and completed, the question of urgency and the exercise of power under Section 17(4) would not arise. We must notice that acquisitions in this case are of 1984-1985 and two decades have passed thereafter. The whole township has come up, the houses and the lands have been allotted, sold and re-sold, awards have been passed and overwhelming majority of land owners have also accepted the compensation, this includes even some of the appellants. In such circumstances we do not think that the High Court was in any way wrong in not interfering with the exercise of power under Section 17 (4) of the Act. At any rate, after the considered findings on the factual questions recorded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, we would not go into those questions of fact. 67. To put the record straight, there is enough evidence in shape of the stand taken by the LDA in its counter affidavit before the High Court, where it was asserted that the possession was already taken. Even in the present Civil Appeal, the same stand is reported with reference to a particular date, i.e., 21.5.1985 that the possession was taken and there is also a true copy of the Panchanama on record. Insofar as the Civil Appeal Nos. 2116-2118 (Tika Ram &Ors. Vs. The State of U.P. &Ors.) are concerned, it was urged by the appellants that in the affidavit of State of U.P. before the High Court, the date of taking possession was mentioned as 30.3.1986 and, therefore, it was urged that the possession could not have been taken on 21.5.1985 as per record. The Learned Senior Counsel for the LDA pointed out that this was incorrect and the correct date of taking possession was only 21.5.1985, while the possession of some plots was handed over to the LDA on 30.3.1986. This is apart from the fact that in today's context, when the whole township is standing, this question goes to the backdrop. In the face of Panchanama, which is on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piece set up for obtaining 25% of the land. Therefore, the rent of the 25% of the land was not acceptable. It was also pointed out that the Sale Agreement was also entered into a day before the publication of the notification in the Gazette and the registration of the Sale Deed was also done much after the notification was published and, therefore, this policy, even if there is one, would not be applicable to the society in question. We would not, therefore, accept that claim that Pratap Sahkari Grih Nirman Samiti Ltd. should be given back 25% of the land acquired, which is again not possible in view of the township having come up in Gomti Nagar. 70. In view of what we have held above, we confirm the judgment of the High Court and dismiss all the appeals being Civil Appeal Nos. 2650-2652 of 1998, 3162 of 1998, 3176 of 1998, 3415 of 1998, 3561 of 1998, 3597 of 1998, 3923 of 1998, 3939 of 1998, 3645 of 1998, 3691 of 1998, 5346 of 1998, 2116-2118 of 1999, 2139 of 1999, 2121 of 1999, 2113 of 1999 and 4995-4996 of 1998. SLP (CIVIL) No. 23551/2009 (CC 1540/1999) 71. Delay condoned in SLP (Civil) No. 23551/2009 (CC 1540/1999). The Special Leave Petition is dismissed in view of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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