STATE OF MYSORE & ANR. v. D. ACHIAH CHETTY ETC.
Citation: [1969] 3 S.C.R. 55; 1968 INSC 336
Court: Supreme Court of India
Bench: M. HIDAYATULLAH , J.C. SHAH, V. RAMASWAMI, G.K. MITTER, A.N. GROVER
Judgment date:
Case summary
1968 INSC 336. Supreme Court of India judgment dated 1968-12-11. STATE OF MYSORE & ANR. v. D. ACHIAH CHETTY ETC. Read the judgment and case details on...
Judgment text
I c . D E F G H [M. STATE OF MYSORE &: ANR. v. D. ACHIAH CHETTY ETC. December 11, 1968 HIDAYATULLAH, C. J. , J. C. SHAH, V. RAM. \SWAMI, G. K. MITTER AND A. N. GROVER, JJ. ] SS The Bangalore Acquisition of Lands (Validation) Act (Mys. 19 of 1962). s. 2-Scope oj-Lef(islative competence to remove discrimina- tion retrospectively-Validating Acts-Classification produced thereby- ! / reasonable classification. In Mysore there were two Acts bearing on acquisition of private land for public pll! "pOS! 's. namely, the Mysore Land Acquisition Act, 1894, and City of Bangalore Improvement Act, 1945. A notification under s. 4 of tho Mysore Land Acquisition Act, 1894, was issued for acquisition of tho respondents" plots in Bangalore. The procedure in tho Acquisition Act is a shortened procedure which is prejudicial to the owner of property acquired. The respondents challenged the acquisition 10 the High ,Court on variou$ grounds and the High Court allowed the petitions.
The Stale appealed to this Court and while tho appeal was pending the Banp! ore Acquisition of Lands (Validation) Act, 1962, was passed and received the assent of the President, as required by the Constitution on May 4, 1963, It validates all a~uisitions made, proceedinl" held, noti- fications issued or orders made m connection therewith, by the Stat• Oovmum:nl purporting 10 act under the Mysore Land Acquisition Act, before the Validating Act came into force, for the purpose of improve- ment, expansion or development of the City of Ban2alore. It also pro- vides tlmt pending proceedings may. be continued under the Mysore Land ACQuisition Act. The provisions are to be effective notwithstanding the City of Bangalore Improvement Act, or any other law, judgment, decree or order of anv court.
Section 2(1) of the Validation Act, pro- vides, that no order made under the Mysore Land Acquisition Act is to be called in question on the ground that the State Government was not competent to make acquisition for the purpose of improvement or on any ground whatsoever, and s. 2(2) Provides that a n. otification or order may be questioned in accordance with the provisions of the Mysore Land Acquisition Act 'and the Land Acquisition Act, 1894, and the rules made thereunder. In this Court in spite of the Validating Act the respondents sought to support the judgment of the High Court on the grounds that : ( 1) there were still two Acts which covered the same field but prescribed two different procedures, and that the notifications issued following the more prejudicial procedure in the Mysore Land Acquisition Act were unconstitutional as that Act was discriminatory; (2) an acquisition or anything done, previously hit by Art.
14 cannot be validated unless the vice of unreasonable classification is removed, and so, the Validating Act was ineffective; (3) the Mysore Land Acquisition Act and the Land Acquisition Act. 1894, are general laws which must give wav to the special· law in the Improvement Act; and (4) There is still discrimina- tion, because •. there are two classe' of cases, one, in whose case the Vali- dating Act dispenaeo with the procedure. of the Improvement Act and th\ise, in whose case that procedure wi1t be followed 56 SUPREME COURT REPORTS (1969) 3 S. C. R. HELD : ( I ) The supremacy of the Legislatur.. in India, within the constitutional limits of their jurisdiction is complete. By the non- . obstante clause in the Validating Act, the Improvement Act. is put out of the way as if it were repealed or as if it had not been passed.. The Legisla- ture has made ;retrospectively a single law for the acquisition of property and .
rendered all acquisitions, made before the Validating Act was passed, to be 'governed by the Mysore Land Acquisition Act alone. Objections based on breach of Constitution or fundamental rights could be raised in spite of the words 'or on anv ground whatsoever' in the Validating Act, but, objections on the ground that there has been non.. observancc of the provisions of the Improvement Act must fail. [6Z A-C; 63 A-BJ (2) It is wrong to assume that a 'discrimination arising from selection -0f one law for action rather than aoother, where two procedures are available, can never be righ_ted by removing retrospectively one of the A B competing laws from the field. If there is legislative competence, the C Legislature tan always put out of action retrospectively one of the pro- cedures leaving one procedure only available, namely, the one that was followed and thus get over the discrimination. In the present case.
the only curb on the Legislature's powers was the requirement of the PrC6i- -dent's assent and that was obtained. [63 BJ Piara Dusadh v. KinR Emperor, [1944J F. C. R. 61, applied. ,, (3) There is no question of genelial Acts giving way to a special Act because, after the Validating Act was passed there was no Improvement Act to consider. [63 B-F) D (4) All Validating Acts lead to two distinct classes those in which validation is necessary and those in which it is not. Such class legisla- tion is permissible and the Legislature is competent to validate procedural - crimination still continued if the attempted inclusion of s. 27 ·A in · the City Improvement Act was held to be unconstitutional. It may be mentioned that in one petition a ground of estoppel had been raised, as expenditure had been incurred in layiilg out the plot and the Board had received payment for its sanc- tion.
The petitions in the High Court, therefore, proceeded on the following three broad points : ( 1) validity of Ordinance I of 1960 . and the Mysore Act XIII of 1960; (2) non-compliance with the City of Bangalore Improvement Act, 1945, and (3) A B c D F. F G H A B c D E MYSORE v. AClilAH CliETTY (Hidayatullah, C. J. ) 59 discrimination between two classes of cases, i. e. those in which the provisions of Chapter Ill of the Improvement Act were fol- lowed and those like the case of the petitioners in which they were not followed. An additional ·point of estoppel was special to one petition only. The High Court rightly declared unconstitutional Ordinance I of 1960 and the Amending Act XIII of 1960 on _the short ground that the former offeinded cl. ( 1) of Art. 213 being pro- mulgated without the instructions of the President and the latter offended ci. (2) of Art. 254, and it was not reserved for the consideration of the President and was not assented to by him.
These grounds are so patent that no attempt was made betore us to urge anything to the contrary. The High Court next considered the validity of the notifi- cations on the ground of discrimination and found that the pro- visions of the Third Chapter of the Improvement Act had to be followed in law. Since they were by-passed, the High Court found discrimination between these cases and the cases of others in which the provisions were followed. The High Court held that this shortened procedure offended against the equality clause in the Constitution. The State was aggrieved by the decision and this appeal is the result. Before this appeal came up for hearing a Validating Act was passed by the Legislature of the State. This Validating Act was reserved for the assent of the President.
The State in arguing these appeals seeks support from the provisions of the Validating Act and contends that the judgment under appeal cannot now be supported because of the validation of the acquisition not- withstanding the provisions of the Improvement Act. The case before us, therefore, was considered under the new Validating Act. Before we discuss the arguments, which are advanced in ll support of the decisions of the High Court and those against it we may set out here the provisions of the Validating Act since they are the main subject of controversy in the appeal before us. Th~ Act in question is the Bangalore Acquisition of Lands (Vali- dation) Act, 1962 (Act 19 of 1963). It received the assent of G H the President on the Fourth day of May, 1963.
As its lonn title shows it is an Act to validate the acquisition under th~ Mysore Land Acquisition Act, 1894 of lands by the State Gov- ernment for the purpose of improvement, expansion or deve- lopment of the City of Bangalore, and ihe orders passed and the proceedings held in connection therewith. The Act is intended to apply to any area _to which the City of Bangalore Improve- ment Act, 1945 extends and validates orders passed and pro- ceedings held in connection therewith. The Act consists of only two sections. The first section gives the short title and the second section deals with validation of certain acquisition of lands and_ SUPREME COURT lj. EPORl'S i 1969J :1 s. c. R. proceedings and orders connected therewith. The second section reads as follows : "2. Validation of certain acquisition of lands and proceedings and orders connected therewith.
- ( 1) Notwithstanding anything contained in the City of Bangalore lrnprovement Act, 1945 (Mysore Act V of 1945), or in any other law, or in any judg- ment, decree or order of any Court,- ( a) every acquisition of land for the purpose of im- provement; expansion or , development of the City of Hangalore or any area to which the City of Bangalore Improvement Act, 1945, extends, made by the State Government acting or purporting to act under the Mysore Land Acquisition Act, 1894 (Mysore Act VII of 1894), at any time before the commencement of this Act, and every proceeding held, notification issued and order made in connection with the acquisition of land for the said purpose shall be deemed for all pur- poses to have been validly made, held or issued, as the case may be, and any acquisition proceeding com- menced under the Mysore Land Acquisition Act, 1894, for the said purpose before the commencement of this Act but not concluded before such commencement, may be continued under the Land Acquisition Act, 1894 (Central Act I of 1894).
as extended to the State of Mysore by the Land Acquisition (Mysore Extension and Amendment) Act 1961 and accordingly no acqui- sition so made, no proceeding held, no notification is- sued and no order made by the State Government or by any authority under the Mysore Land Acquisition Act, 1894, or the Land Acquisition Act, - 1894, in connection with any such acquisition shall be called in question on the ground that the State Government was not competent to make acquisition of land for the said purpose under the said Act or on any other ground whatsoever: (b) any land to the acquisition of which the provi- sions of clause (a) are applicable shall, after it has vested in the State Government, be deemed to have been transferred, or stand transferred, as the case may be, to the Board of Trustees for the improvement of the Gity of Bangalore.
(2) For the removal of doubts it is hereby declared that nothing in sub-section (1 ) shall be construed as preventing any person from questioning in accordance A B c D E F G H MYSORE v. ACHIAH CHETTY (Hidayatullah, C. J. ) 61 A with the provisions of the Mysore Land Acquisition Act, 1894 or the Land Acquisition Act, 1894, aind the rules made under the said Acts, any notification or order made thereunder. " Now the effect of this section is in many directions. It ap- plies first to every acquisition of land for the purpose of improve- B ment, expansion or development of the city of Bangalore by the State Government, purporting to act under the Mysore Land Acquisition Act but only to acquisitions made before that Act came into force. Next it applies to every proceeding held, noti- fication issued or order made in connection therewith. Then it provides that all these shall be deemed to be validly made, held C or issued.
Then it provides that pending proceedings may be continued under the Mysore Land Acquisition Act and no order made is to be called in question on the ground that the State Government was not competent to make acquisition for the said purpose under that Act or on any ground whatsoever. All these provisions are to be effective notwithstanding the City of Ban- D galore Improvement Act, 1945 or any other law, judgment, decree or order of any Court. The land to which these provi- sions apply is further to be deemed to have been transferred or stand transferred to. the Board of Trustees for the improvement of the city of Bangalore. The only room left for questioning any order or notification is in accordance with the provisions of E the Mysore Land Acquisition Act, 1894. the Land Acquisition Act, 1894 and the rules made under those Acts. F G H The State Government claims that this Validating Act cuts short all controversy.
It has validated all past actions notwith- standing any breach of the Improvement Act or anv other law or the decree and order of the High Court. It further submit~ that the action cannot be called in question on the !! round th~t State Government was not competent to make the acquisition of land or on anv other l! rQund whatsoever. It further submits that proceedings already afoot can continue. This contention is met bv the resnnndents on thre"' main j! rounds. The first is that there are still two Acts which cover the same field but prescribe two different procedures. In one procedure there is an inquiry, assessment of the public puroose preparation of scheme. and in the other, there is no11e. The more prejudicial procedure which is that of the AcQuisition Act must be disallowed as it is discriminatory and therefore the two notifications still continue to be unconstitutional.
The above argument denies to the legislatures the supremacy which it possesses to make laws on the subiect of acQufaition. What the Legislature has done is to make retrospectively a sino. '1e law for the acquisition. of these properties. The Legislature 62 SUPREME COURT RBPORTS [1969] 3 S. C. R. could always have repealed retrospectively the Improvement Act rendering all acquisitions to be governed by the Mysore Land Acquisition Act alone. This power of the Legislature is not ~e nied. The resulting position after the validating Act is not d! ff· erent. By non·obstante clause the Improvement Act is put out of the way and by the operative part the proceedings . f~~ acqui- sition are wholly brought under the Mysore Land Acqms1tion Act to be continued only under that Act. The Validating Act re· moves altogether from consideration any implication arising from Chapter III or Section 52 of the Improvement Act in much the same way as if that Act had not been passed.
The Validating Act goes further and says that all the acqui- sitions shall not be called in question QI! the ground that the State Government was not competent to make the acquisition. No claim based upon the failure to observe the Improvement Act can, therefore, be heard. The State relies upon the last six words of the first clause of s. 2(1) of the Validation Act to contend further, that the acquisition cannot be called in question on any ground whatsoever except in so far as door for objections is kept open by the second sub-section. This is perhaps a larger claim than these words warrant. What those words mean is no more than that in addition to the ground that the State Gov- ernment was not competent, no other ground based upon breach of the Improvement Act or any other law is to be entertained. Those words must be read do}Vll. They do not mean what they appear to say. Objections for example of breach of the Con- stitution or of fundamental rights· will of course remain.
It is for this reason' that the Legislature enacts sub-section. (2) to remove doubts and expressly allows objections under the Mysore Land Acquisition Act, 1894 or the Land Acquisition Act, 1894 to be raised, notwithstanding the wide lan)! Uage of the last six words of the previous section. Therefore all objections on the ~und that ~n the acauisition there has been non-observance of the provisions of the Improvement Act must fail. Mr. S. T. Desai, however, contends that an acquisition hit by Article 14 or anything done previously cannot ever be vali- dated. unless the vice of unreasonable classification is removed and the validating Act is ineffective for that rea~on. This argu- ment leads to the logical conclusion that a discrimination arising from selection of one law for action rather than the other, when two procedures are available, can never be righted bv removing retrospectively one of the competing laws from the field. This is a wrong assumotion. Jn Piara Dmadh and others v.
K. E. (') trials before soecial judges (not sessions Jud11es under the COde of. Criminal Procedure) were deemed . to be trial before Sessions (I) ! 1944JP. C. R, 61, A B c D E F G ff A B c D E F G H MYSORE v. ACH! AH CHETTY (Hidayatul/ah, C. J. ) 63 Judges in accordance with the Code ·and the Federal Court up- held the constitutionality of the ordinance by which this fiction was created. The supremacy of the Legislatures in India, within the constitutional limits of their jurisdiction is as complete as that of the British Parliament. If two procedure' exist and one is followed and the other discarded, there may in a given case be found discrimination. But the Legislature has still the com- petence to put out of action retrospectively one of the procedu- res leaving one procedure only available, namely, the one fol- lowed and thus to make disappear the discrimination. In this way a Validating Act can get over discrimination.
Where, how· ever, the · legislative competence is not available, the discrimi- nation must remain for ever, since that discrimination can only be removed by a legislature having power to create a single procedure out of two and not by a legislature which has not that power. Here the Legislature was supreme in the field of acquisition. The only curb on its powers was the requirement of President's assent and that admittedly was obtained unlike the previous occa- sion when the Amending Act failed for want of such assent. Therefore the Validating Act enacted in 1963 does not suffer from the defect from which the Amending Act of 1960 suffer- ed . . The same argument is next put in another way. It is said that the Mysore Land Acquisition Act, 1894 and the Land Acqui- sition Act, 1894 are general laws and they must give way to the special law in the Improvement Act, more so in view of section 52 of the Act last mentioned.
But this again i~ores, the posi- tion that after the Validating Act there is no Inwrovement Act ta consider. · It is contended that acquisition by the Improvement Trust is not a public purpo~e. We declined to hear this argument which does not arise in the appeal before us since it was not raised in the High Court. · Mr. Sarjoo Prasad also arj! Ues that there will be now two classes of cases, one in which the Validating Act dispense' with the procedure of the Improvement Act and those in which the procedure will be followed. This is the same arJ! Ument in an- ot~e~ farm and is. equally ! utile. Class legislation is always per- m1ss1ble. There ts a soectal class in whose case the acquisition· was under the Acquisition Act without following the procedure of the Imorovement Act. There are two distinct classes of cases and the differential is the striking down 0-f •ction in the •econd class ~~ the need for validation. All Validating Acts lead to twO d1stmct c!
asses-tbose in which validation is necessary and 64 SUPRllME COURT REPORTS [1969] 3 S. C. R. those in which it is not. The legislature iS always competent to A validate procedural defects without in any way losing its juris- diction by reason of the existence of the other class. The arguments that no opportunity was given to oppose the acquisition on the ground that no public purpose was subserved, must fail because a notification has already been issued under section 6 of the Land Acquisition Act. It is too late for this ·B Court to enter into the question of public purpose. It remains to consider the argument based on estoppel which is claimed in C. A. No. 111 of 1966. There is no doubt that the High Court has not decided that issue. The writ petition must therefore be remanded to the High Court for the considera- tion of that ground. The result therefore is that all appeals are allowed. All writ petitions ( ex. cept 114 which is to be compromised and C. A. No.
111 of I 966 in which there is a remand) wiJ. l be dismissed. There shall, however, be no order as to costs. Writ petition No. 1076 of 1959 (C. A. No. 111 of 1966) shall stand remand- ed to the High Court but there shall be no order about costs. Y. P. Appeals allowed. c D
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