TMI Blog2016 (3) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... Court dated 20th January, 2009 would not have been forthcoming. It was therefore well within the domain of the legislature to bring about the Amendment Act with retrospective effect, the Legislative field also being in the Concurrent List, namely, Entry No. 42 of List III (Acquisition and Requisition of Property) of the Seventh Schedule to the Constitution. Section 41 of the Principal Act and the terms of the agreement executed thereunder (even if the latter is understood to be ‘Law’ enacted by the competent legislature for the purpose of Article 254) are silent with regard to modification/variation or deletion/subtraction of the terms of the agreement. The State Amendment Act by bringing in Sub-sections (6) to (9) of Section 41 invalidates a clause of the agreement [Clause 4(viii)] by effecting a deletion thereof with retrospective effect i.e. 15.10.1964 (the date of coming into operation of the Principal Act to the State of Goa). The State Amendment, by no means, sets the law in a collision course with the Central/Principal enactment. Rather, it may seem to be making certain additional provisions to provide for something that is not barred under the Principal Act. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act which was followed by an agreement dated 26.10.1983 as required under Section 41 of the Act. The opening paragraphs and Clauses 3, 4 and 6 of the agreement would require specific notice and therefore are being extracted herein below: WHEREAS the principal objects for which the Company is established are, inter alia, construction of a tourism development project, etc. etc. AND WHEREAS for the purpose of the construction of this tourism development project comprising of a hotel at Curla, Vainguinim, Dona-Paola, Goa, the Company has applied to the Government of Goa, Daman and Diu (hereinafter referred to as the Government ) for acquisition under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act ) of the pieces of land containing 19,114 sq m, situated in the district of Tiswadi and more particularly described in the Schedule appended hereto and delineated in the plan hereunder annexed (hereinafter called the said land ) for the following purpose, namely-Tourism Development Project-construction of hotel at Curla, Vainguinim, Taleigao. AND WHEREAS the Government being satisfied by an enquiry held under Section 40 of the said Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned before undertaking activities for its development, besides other statutory requirements under the existing laws. (ix) The public access/road to the beach shall not be affected or obstructed in any manner. 6. In case the said land is not used for the purposes for which it is acquired as hereinafter recited or is used for any other purpose or in case the Company commits breach of any of the conditions hereof, the said land together with the improvements, if any, affected thereon, shall be liable to resumption by the Government subject however, to the condition that the amount spent by the Company for the acquisition of the said land or its value as undeveloped land at the time of resumption, whichever is less, but excluding the cost or value of any improvements made by the Company to the said land or any structure standing on the said land, shall be paid as compensation to the Company: Provided that the said land and the amenities, if any, created thereon shall not be so resumed unless due notice of the breach complained of has been given to the Company and the Company has failed to make good the breach or to comply with any directions issued by the Government in this be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 246/2) and, thereafter report the matter to the Development Authority which shall, in turn, submit a report to that effect to the Goa Bench of the Bombay High Court. (ii) If the appellants fail to demolish the building and report the matter to the Development Authority within the time specified in direction (i) above, the authority concerned shall take action in accordance with paras (a) and (b) of the operative part of the High Court s order. (iii) The access shown in the plan, Ext. A attached to Writ Petition No. 141 of 1992 shall be kept open without any obstruction of any kind from point A to B in order to come from Machado s Cove and then go to the beach beyond Point B . If during pendency of the litigation, Appellant 1 has put up any obstruction or made construction to block or hinder access to the beach through Survey No. 803 (new No. 246/2), then the same shall be removed within one month from today. 9. Thereafter the Amendment Act of 2009 (Act 7 of 2009) was passed by the Legislative Assembly of Goa amending Section 41 by addition of Sub- sections 6 to 9 which was notified on 30.04.1999. The details of the amendment effect are as follows: Amendment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uildings which were constructed after obtaining the permissions from the Statutory Authorities and have been validated under this section, or for questioning the validity of any action taken or things done or permission granted in pursuance of the original agreement as modified and no Court shall enforce or recognize any decree, judgment or order declaring any such action taken or things done under the original agreement as modified, as invalid or unlawful. 10. The Statement of Objects and Reasons for the amendment which would facilitate the understanding of the some of the issues arising may also be noticed at this stage. Statement of Objects and Reasons Chapter VII of the Land Acquisition Act, 1894 deals with acquisition of land by the Government for companies under this chapter. The Government has acquired land for various companies and for Acquiring land, the requirement of execution of an agreement between Government and Company in terms of Section 41 of the Land Acquisition Act, 1894 had been executed by Government with various companies for whom land has been acquired under Chapter VII of the Land Acquisition Act. Recently, the Hon ble Supreme Court in the case of Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... organization, in the present writ petition. To complete the narration of facts, reference may be made to the Land Acquisition (Goa Amendment) Ordinance that was promulgated with effect from 28.02.2009 and thereafter replaced by the impugned Legislation requiring the challenge in the writ petition to be shifted from the Ordinance to the Amendment Act in question. 13. We have heard Shri Sanjay Parikh, learned counsel appearing for the petitioner, Shri A.N.S. Nadkarni, Advocate General (Goa) for the respondent- State and Shri Rafiq Dada and Shri Dhruv Mehta, learned senior counsels for the private respondents. 14. According to Shri Parikh, learned counsel for the petitioner the impugned legislation seeks to nullify the directions given in the judgment of this Court dated 20.1.2009. Learned counsel submits that while there can be no dispute that the legislature is empowered to alter the basis of the judgment of a Court but in the guise of altering the same, the judgment itself cannot be overruled. 15. It is further submitted that the agreement under Section 41 of the Principal Act executed by respondent no.3, after an enquiry held under Section 40 thereof, not only has a statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 41 (8) deletes the clause prohibiting the company from constructing structures in the acquired land in the statutory agreement executed under Section 41. Section 41(9), it is submitted, interferes with the exercise of the judicial power which is impermissible having regard to the principle of Rule of Law. 17. The timing of the ordinance i.e. immediately after the legislative session had concluded, has been urged on behalf of the petitioner as indicative of the extraneous reasons for introduction of the same. It is also urged that in the instant case it has been held by this Court in its earlier judgment that the instant acquisition was for purposes under Section 40 (1) (aa) of the Act. In view of the above and having regard to the provisions of Section 44 (b) of the Act, which limits the acquisition for a private company only for the purpose mentioned in Section 40 (1) (a), the acquisition for the benefit of the third respondent under Section 40 (1) (aa) could not have been made at all. 18. Opposing, Shri Nadkarni, learned Advocate General as well as Shri Rafiq Dada and Shri Dhruv Mehta learned senior counsels appearing for the private respondents, including the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the work by the public enforceable in law. In this regard the findings recorded in the earlier judgment of this Court (para 57) to the effect that the facility developed by the third respondent on the acquired land was not meant for the general public was specifically relied upon. It is further pointed out that the third respondent being a public limited company Section 44B of the Act which deals with private companies has no application. 21. Insofar as the objections with regard to the requirement of Presidential assent to the State Amendment under Article 254 (2) is concerned it is submitted that though the original agreement was signed between the Union of India and the third respondent, by virtue of Section 45 of the Goa State Reorganization Act, 1987, the State of Goa has been substituted in all such agreements. Consequently, the Goa State Legislature was fully competent to carry out the State Amendment. 22. The submission on behalf of the respondent, therefore, essentially is as follows : (a) The basis of the earlier judgment dated 20th January, 2009, namely, that there was a bar to construction was removed by the State Amendment by deleting Clause 4(viii) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld confer legitimacy on such an exercise as the same is a normal adjunct of the legislative power. The whole exercise is one of viewing the different spheres of jurisdiction exercised by the two bodies i.e. the judiciary and the legislature. The balancing act, delicate as it is, to the constitutional scheme is guided by well defined values which have found succinct manifestation in the views of this Court in Bhaktwar Trust Ors.(supra). The relevant part of the opinion expounded in Bhaktwar Trust Ors.(supra) may be noticed below. 14. The validity of any statute may be assailed on the ground that it is ultra vires the legislative competence of the legislature which enacted it or it is violative of Part III or any other provision of the Constitution. It is well settled that Parliament and State Legislatures have plenary powers of legislation within the fields assigned to them and subject to some constitutional limitations, can legislate prospectively as well as retrospectively. This power to make retrospective legislation enables the legislature to validate prior executive and legislative Acts retrospectively after curing the defects that led to their invalidation and thus make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Planning Act which provided a maximum height of a new building as 55 feet. Thus, the provision of the Zonal Regulations which provided maximum height of 55 feet in case of a new building was, therefore, the basis upon which the High Court proceeded to conclude that the construction of the building violated the prescribed norms. It is manifest that the impugned Act has retrospectively modified the Zonal Regulations of 1972 by raising the height of a building from 55 feet to 165 feet. The provision of law upon which the High Court has placed reliance has, therefore, undergone a material alteration. The High Court would now find it impossible to take the view that the said building was erected in violation of the law, and that the licence granted therefor, was accordingly legally invalid. 25. If the above principles are to be applied to the present case what follows is that Section 41(6) to (9) introduced in the Principal Act by the Goa State Amendment renders ineffective Clause 4(viii) of the Agreement executed by the parties under Section 41 of the Principal Act. With Clause 4(viii) being deleted the embargo on constructions on the acquired land is removed. It is the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M. Karunanidhi (supra) and Kanaka Gruha Nirmana Sahakara Sangha (supra) can be said to exist in the present case. Section 41 of the Principal Act and the terms of the agreement executed thereunder (even if the latter is understood to be Law enacted by the competent legislature for the purpose of Article 254) are silent with regard to modification/variation or deletion/subtraction of the terms of the agreement. The State Amendment Act by bringing in Sub-sections (6) to (9) of Section 41 invalidates a clause of the agreement [Clause 4(viii)] by effecting a deletion thereof with retrospective effect i.e. 15.10.1964 (the date of coming into operation of the Principal Act to the State of Goa). The State Amendment, by no means, sets the law in a collision course with the Central/Principal enactment. Rather, it may seem to be making certain additional provisions to provide for something that is not barred under the Principal Act. Moreover, if the provisions of the State Amendment are to be tested on the anvil of the finding of this Court that the acquisition in the present case is under Section 40(1)(aa) of the Land Acquisition Act, the deletion of the relevant clause of the agreement a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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