TIKA RAM & ORS. v. STATE OF U.P. & ORS

Citation: [2009] 14 S.C.R. 905

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, V.S. SIRPURKAR

Case summary

TIKA RAM & ORS. v. STATE OF U.P. & ORS.pdf

Judgment text

[2009] 14 S. C. R. 905 ... .. ~ TIKA RAM & ORS. ... 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, 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 - "' 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 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 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 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 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 Shyam Nigam 1989 (1) SCC 591. The Court 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 > ) 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 January H, 1989 (the date of judgment of the Supreme 0 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 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, 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 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 _.

-Inote 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 passed by giving the retrospective effect from the date of the Amendment Act, _____.. _' 1984. The effect of judgment in case of Radhey Shyam, 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 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 ~ ' that there had been no proper publication in the ~ newspapers or at the convenient places ofthe 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 to any tenure holder as provided under Section 3(8) of the Act, either before or after passing of the Validating -4. > 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 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 + 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. ,,_ t+ 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; 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/ 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 defects pointed out by the court and by amending the -J. • law inconsistent with the law ·declared by the court so that .. the defects which were pointed out were never on statute for enforcement of law.

Such an exercise of power to "" amend a statute is not an incursion on the judicial power of the court but as a statutory exercise on the constituent power to suitably amend the law and to validate the actions which have been declared to be inv_alid. [Para 30) [953-0-E] . J.. ..... Meerut Development Authority v. Satbir Singh 1996 (11) 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) 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) TIKA RAM & ORS. v. STATE OF U. P. & ORS. ,.. -t SCC 298; Madan Mohan Pathak v. Union of India 1978 (2) 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. 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 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. [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 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 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 + "publication" of notification. [Para 36] (958-G-H; 959-A-C] Somwanti and Ors. v. State ofPunjab 1963 (2) SCR 775; Mohd. Ali and Ors. v. State of U. P. and Ors. 1998 (9) SCC 480, relied on · 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; 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. 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 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 Meerut Development Authority case. [Para 40] (960-D-E; 961-e-D] Meerut Development Authority 1996 (11) SCC 462, relied on 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 50; Bakhtawar Trust v. M. O. Narayan and Ors. 2003 (5) SCC 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 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] (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. 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 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 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) -~- 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 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 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 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 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 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 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, inconsequential. The agreements in favour of that Society 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 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, 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 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 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 where Section 5-A enquiry is dispensed with, would be doing violence to the language, firstly, of Section 3A and secondly, of Sub-Section (4) itself. The clear legal position is that the dispensation of Section 5-A enquiry is only and only to enable the State Government to take possession under Sub-Section (1) and (2) of Section 17. 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 A. compensation, then the further question would be as to whether the estimation of 80% of compensation is correct or not. A further controversy can then be raised by the landlords that what was paid was not 80% and \ was short of 80% and, therefore, the acquisition should be set at naught.

Such extreme interpretation cannot be afforded because indeed 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. [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 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) 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 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 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 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 -.. ,,. - Development Authority case. or Meerut Development 8 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 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] 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. 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 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 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 are relating only to the period between 24. 9. 1984 and 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 ( \ 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 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] 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; 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. 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. ,. __ 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; 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 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 .. -""- 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 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] 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 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 .. : ,. ,,, Anr. AIR 1968 SC 870, referred to. - 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 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 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 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 urgently needed for housing. Large-scale development and utilization of acquired land after the acquisition is apparent on the face of the record.

A number of houses have been constructed, third party interests were created in whose favour the plots were allotted and the High Court has also commented while disposing of the writ petitions that the quashing of the notification at this stage will prejudice the interests of the people for whom the schemes were evolved. While considering as to whether the Government was justified in doing away with the ""inquiry under Section 5A, it must be noted that there are no allegations of 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 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 .. , 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; 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 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 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 notifications u/ss. 4 and 6. [Para 65) (986-B-E] .. __ • "': . _,,, 6. As regards the question of possession, the Court does not propose to go into the question of facts and " - notification. If any purchases of the land are made after the publication of Section 4(1) notification, landlords in this case would not get any right or entitlement to question the validity of the title of the State based on the acquisition. Obviously, the claim of this Society is on the { basis of the Agreement of Sale dated 7. 4. 1983. The High 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 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] 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 \ 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, 17,19, 25,30, 34,36,39 and 54 _. l. 1996 (1) sec 562 Relied on. Paras 11,17, ... 19,30 and 39 1996(2) sec 365 Relied on. Paras 11, 17, 19, 30 and 39 1976 (1) sec 843 Relied on. Para 15 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 2005 (2) sec 409 Referred to Para 20 .

2003 (4) sec 112 Referred to Para 20 -; 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 AIR 1963 All 24 Referred to. Para 61 ~ .. I AIR 1968 SC 870 Relied on. Para 62 AIR 1954 SC 545 Distinguished Para 62 AIR 1956 SC 44 Relied on. Para 62 AIR 1970 SC 150 Relied on. Para 62 AIR 1978 SC 597 Relied on. Para 62 AIR 1986 SC 180 Relied on. Para 62 AIR 1985 SC 1416 Relied on. Para 62 AIR 1967 SC 1081 Referred to. Para 64 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 " 1996 (11) sec 698 Relied on. Para 68 ~ CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. .. 2650-2652 of 1998. ·· 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. --4.. _ WITH .

, C. A. Nos. 3162, 3176, 3415, 3561, 3597, 3923, 3939, 3645, 3691, 5346, 4995-4996 of 1998 & 2116-2118, 2139, 2121, 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, 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. 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. _y The Judgment of the Court was delivered by 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 appeals and the Special Leave Petition challenge a common judgment passed by Allahabad High Court, disposing of several Writ Petitions. The High Court has granted certificate granting leave to file appeal. These Writ Petitions were filed covering _... various subjects. Basically, in some of the Writ Petitions, constitutionality of provisions of Sections 17(1 ), 17(1 )(A), 17(3)(A), 17(4) and proviso to Section 17(4) of the Land .. Acquisition Act (hereinafter referred to as 'the Act' for short) alongwith Section 2 of the U. P. Act No.

VIII of 1994 (hereinafter called 'the Validating Act' for short) was challenged, so also constitutionality of Sections 3(A), 3(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 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 y_ 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. 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 validated in pursuance of Section 2 of the Validating Act, was in challenge. 6. In still another set of Writ Petitions, Pratap Housing Cooperative Society and some industries prayed for exempting their land from the land acquisition proceedings.

In these Writ Petitions, the Writ Petitioners had contended that they had purchased their land from tenure holders for Cooperative Societies for providing land to their members and construction of the houses. The Writ Petitioners contended that some being industries were manufacturing certain articles and their running business had come to the standstill because of the land acquisition activities. _, 7. In one set of Writ Petitions, it was found that notifications ... were issued under Section 4 and sub Section (4) of Section · 17 of the Act, simultaneously with the declaration under Section 6 of the Act. In these cases, the possession was taken by Lucknow Development Authority (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 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 Act. Even in these Writ Petitions, the awards were passed and the concerned persons were asked to receive payment of 80% compensation by a general notice. In short, the challenge generally was to the land acquired at the instance of LOA. Besides this challenge to the provisions of the Act, as also to the provisions of the Validating Act, the Writ Petitioners have claimed the non-compliance with the essential provisions of Section 4 and 6 of the Act. They have also challenged the urgency clause made applicable to the various land .. acquisitions. On merits, it has been suggested that there has been no proper publication in the newspapers or at the convenient places of the locality as required under Section 4(1) and Section 6 of the Act.

There has been no preliminary survey as envisaged under Section 3(A) of the Act and no damages were paid to any tenure holder as provided under Section 3(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 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 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 Ujariyaon Housing Scheme Part-Ill were the subject matter of the dispute. While 'r .... disposing of the case of State of Uttar Pradesh vs. Radhey 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 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, 1991, which was published in the Gazette on 27. 2. 1991.

There was a prefatory note to the following effect:- ' "The Supreme Court in case of its judgment dated January 11, 1989 held that after the commencement of the land Acquisition (Amendment) Act, 1984 (Act No. 68 of 1984), .... the declaration under Section 6 of the Land Acquisition Act, 1894 cannot be made simultaneously with the publication in the Gazette Notification under Section 4(1) even though ~ the application of Section 5-A has been dispensed with under Section 17(4) of the said Act. In a large number of proceedings of acquisition of land for the Development Authorities for the implementation of various housing schemes, the declaration under Section 6 were made . f. simultaneously with publication in the Gazette of notification under Section 4(1). The said proceedings were likely to ... ,. be held void in view of the aforesaid judgment of the Supreme Court.

In order to save the said scheme from being adversely affected, it was decided to amend the Land Acquisition Act, 1894 in its application to Uttar « -. notification and the declaration in respect of acquisition of • the land for public purpose exercising the power of eminent domain in certain situation where possession was needed urgently, depending upon the local needs and the urgency, Government requires such power. Consequently, the State Legislature thought it appropriate that despite the enactment of the Amendment Act, 68 of 1984 amending Section 17(4), the State needed further amendment. ,. '). _ Resultantly, the U. P. Amendment Act 5 of 1991 came to be made and it was given 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 '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 '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 law would be but in view of the peculiarity namely the special needs of the State Article 254(2) itself gives such -A a power to the State Legislature to amend the law, to make .. applicable in relation to that State through Central Law may be inconsistent with the law operation in the other States. In other words, when the topic is occupied in the Concurrent List, uniformity of the operation of the law is not the rule but simultaneous existence of the inconsistency would also operate in the same field. But when the assent of the President to the extent of inconsistency is saved in . il. relation to that State. Therefore, the amendment by proviso to Section 17(4) is not invalid. Any other construction would dry out the power of the State Legislature to enact the law on the subject of acquisition.

" · The effect of judgment in case of Radhey Shyam (cited supra), thus, was nullified. This Court also took note of the fact that despite enactment of the Amendment Act 68 of 1984, amending Section 17(4), the State needed further amendments ~ \,,,. and for that reason, the U. P. Amendment Act V of 1991 was passed by giving the retrospective effect from the date of the Amendment Act, 1984, which came into force on 24. 9. 1984. 11. Relying on these two judgments, _the High Court, by the impugned judgment, affirmed the validity again and the High Court further repealed the argument that these judgments were per incurium and hence required reconsideration. The High _,.. Court came to the finding:- "We have no reason to differ from the decisions of the Division Benches of this Court, which upheld the vires of Validati'on Act particularly after the decisions of Hon'ble ~ ~'f Supreme Court which binding upon this court under Article 141 of the Constitution.

As we have indicated in the foregoing paragraph, this Court in exercise of power under Article 226 of the Constitution of India cannot open a chapter which had been closed by Hon'ble Supreme Court by upholding the vires of the Validating Act. This Court cannot declare the pronouncement of the Hon'ble Supreme Court, as per incurium, even if the Hon'ble ,>- Supreme Court has not dwelled into the" • The High Court held that the Legislature, by amending Act, "' has merely removed the defect pointed out by this Court in case of Radhey Shyam (cited supra) and removed the basis of the decision rendered by the Court. The High Court also rejected the argument regarding the Section 17(4) and the proviso added to it by Validating Act. Ultimately, the High Court, wholly I ~ 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 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 -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 ' 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 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 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 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 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) 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. Ordinance No. 32 of 1990, being the Land Acquisition (Uttar . ) _l .... '1. 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.

A (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) 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. 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 ~ 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 938 ' )' ..... 24. 9. 1984 but before 11. 1. 1989. Our attention was invited to sub-Section (4) of Section 17, which was introduced by the ~ amendment, thereby amending Section 17 of the Act in its application to State of Uttar Pradesh. The Learned Senior ~ ' Counsel contended that while it was permissible for the State Legislature to pass any legislation, it was not permissible to rpass such a legislation only to nullify the judgment of this Court, without providing for the displacement of the basis or foundation ~~ of that judgment. Number of reported decisions of this Court were relied upon for this purpose.

In short, the contention was that the State Legislature, by passing the Validating Act, could not knock down the judgment passed by this Court unless and until the said Act took care to remove the defects or mischiefs pointed out by this Court in its 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... , ' 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 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 Excise 2004(3) SCC 48. 3. Bakhtawar Trust vs. M. D. Narayan & Ors. 2003 (5) sec 298. 4.

Madan Mohan Pathak vs. Union of India 1978 (2) -'tsec 50. 5. Indira Gandhi vs. Raj Narayan 1975 Supp. SCC 6. Virender Singh Hooda vs. State of Haryana - -T 2004(12) sec 588. 7. /. N. Saxena vs. State of Madhya Pradesh 1976(4) sec 750. ... I 8. Janpad Sabha vs. C. P. Syndicate 1970 (1) SCC 509. ... ---- staire decisis insofar as the validity of the UP Amendment Act . -.. _ is concerned. 25. Learned Counsel further argued that there was no question of future operation of the proviso as it was not concerned in this case. It was pointed out that only two appeals of Ujariyaon Part-Ill Scheme were concerned, with that question. ·'r· However, in that case the notification was published in the year 1991 and the Section 6 declaration was signed and published in the year 1992. Therefore, there was no question of simultaneous publication and, therefore, the issue of reference --- ... ,. to the Larger Bench was a non-issue and could not be gone into.

It is pointed out that the case of Meerut Development Authority (cited supra) was the complete answer to the validation aspect as that issue had arisen directly. It was further argued that there was no question of discriminating between the Ujariyaon Part-II Scheme and Part-Ill Scheme, and, therefore, there was no question of breach of Article 14 of the ). , Constitution of India. It was argued that in Ujariyaon Part-II .. , Scheme, the award was made by the Collector within the time prescribed, so there was no question of discrimination between Ujariyaon Part-II and Part-Ill Schemes where the award was not made within time. Therefore, it was lapsed and hence, there was necessity of a fresh notification. As regards the question of validity of Section 17 of the Act, it was mainly in Tika Ram's appeal, it was pointed out by Shri Qamar Ahmad, Learned .. ,,. _ Counsel that the reference to the decision in Anwar Ali Sarkar v. State of U. P. reported in AIR 1952 SC 75 and State of Punjab v.

Gurdial Singh (cited supra) was not called for. In -· support of his argument Shri Dwivedi pointed out that Anwar 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 ... r... _ any delay and requires quick implementation, then alone the power under Section 17 (1) read with Section 17 (4) can be exercised. The Learned·Counsel firmly admits that the criterion of "emergency" is still narrower category and there is sufficient guideline in sub-Section (2) of Section 17. Therefore, the Counsel argues that the true criteria being clear guidelines, they are not arbitrary. It was further argued that there is no discretion in the matter of applied urgency 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 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 ... -.. finding that the land was acquired for planning and development of housing accommodations. It was pointed out that the High Court had also looked into the records and it found that there was sufficient material for forming opinion that the land was needed urgently for developing a new township known as Gomti Nagar. Learned Counsel also pointed out to the finding of the High Court to the effect that the township had already come into the existence and the houses were allotted to J. .. thousands of people. 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 -:rr could not be raised at a belated stage. Therefore, Learned Counsel insisted that the situation is no different in the present case. Further relying on Aditya 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 _,,'"""'! ' as compared to the total acquisition, the appellants' land holding is limited to only 150 bighas of land and in· such circumstances the Court should not block the acquisition.

As regards the question of non-payment of compensation under Section 17 (3) and (3A) of the Act, Learned Counsel pointed out that the documents filed in support of their plea were never filed before the High Court whereas this Writ Petition was pending for as long as 13 years and even after filing the special leave petition, " ... it was pending for about 10 years. The documents came to be filed only after 8 years. Since the document involved question of fact, applications made in this behalf, namely, I. A Nos. 4-5 of 2006, were 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 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 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 compensation where compensation is not paid or deposited on or before taking possession. In support of this argument the Counsel relied on S. P. Jain v. State of U. P. reported in 1993 (4) SCC 369 and State of Maharashtra v. Manubhai Pragaji ~ Vashi & Ors. reported in 1996 (3) SCC 1. 28. On the basis of these rival claims we shall now proceed to decide the issues raised in this appeal, which are as follows. ) . , SC 8].

We need not go in that question since MDA's case (cited • supra) is a Larger Bench decision. 56. However, this is apart from the fact that in our opinion there can be no question of Section 17 (4) proviso or the provisions of the Amending Act being invalid in any way. We, therefore, do not feel necessary to refer this case on this issue to a Larger Bench, particularly, in respect of the validity of the provisions vis-a-vis Article 14 of the Constitution. We do not find -· the provisions in any manner arbitrary or making impermissible classifications or suggesting invidious discrimination nor can the provisions in the amending Act can be termed as "arbitrary" providing no guiding principles. 57. The Learned Senior Counsel appearing for the ,. __ appellants had heavily relied on paragraph 14 of the judgment in Meerut Development 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 amending Act are not limited to the two dates mentioned and can be applicable even subsequently, results in creation of two classes and the possible discrimination. In our opinion, it will not be necessary to go into that question as the present appeals pertaining to Ujariyaon Housing Scheme Part-II are relating only to the period between 24. 9. 1984 and 11. 1. 1989. It is stated by the Learned Senior Counsel appearing for the 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 \. ,~ .... 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 (cited supra), it applied to the subsequent period, it does not infringe Article 14 for the reasons given by us earlier. 58. Shri Trivedi, Learned Senior Counsel for the appellants further argued that there was invidious discrimination between the Ujariyaon Housing Scheme Part-II and Ujariyaon Housing Scheme Part-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 ~ 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 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 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 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-Ill did not lapse because of the l decision of the Government.

Since the award was not made within the time prescribed by the Section 11A of the Act, it had the effect of lapsing the notifications. Therefore, the State Government was left with no other way and had to issue a fresh .. ~·~ notification. In Ujariyaon Housing Scheme Part-II, the award was made by the Collector within the time and, therefore, those notifications were not affected. Therefore, the argument that there was invidious discrimination in between the two schemes has to fail. 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). 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 (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 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 held that a Supreme Court decision does not become a precedent unless a question is directly raised and considered therein, so also it does not become a law declared unless the question is actually decided upon. We need not take stock of all these cases and we indeed have no quarrel with the ---. , propositions settled therein. However, we may point out that, firstly, the question of validity is settled in MDA's case (cited supra). This is apart from the fact that we are of the opinion that there is nothing wrong with the Amending Act insofar as its Constitutional validity is concerned. We have already {. rejected the argument that there was any discrimination between Ujariyaon Part II and Ujariyaon Part 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 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 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 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 (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. In support of his argument, Learned Counsel has relied on the law laid down in Anwar Ali Sarkar's case (cited supra). According to him, Sections 17(1), 17(1A), 17(3A) and 17(4) of the Act and Section 2 of the UP Act No. VIII of 1974, as also ..... the UP Act No. 5 of 1991 are violative of Articles 14, 19, 21, 39, 48, 48A and 300A for invidious discrimination.

Learned Counsel also submits that there are no guidelines for the Yexercise 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 I -~ 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 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.

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 -~ general principles from Anwar Ali Sarkar's case (cited supra) as also from State of Punjab v. Gurdial Singh reported in AIR 1980 SC 319, we must point out that ultimately this Court culled out the principle that if the Legislature indicates a policy which inspires it and the object which it seeks to attain, then the selective application of the law can be left to the discretion of the Executive authority [see Kedar Nath Bajoria's case reported in 1953 SCR 30]. Such law has been approved in R. K. Dalmia's case (cited supra) as also in In Re: Special Courts Bill (cited supra). 61.

There can be no dispute that the law must indicate the policy and the object clearly while acquiring. Discretion upon the application of law and the power under Section 17 of the Act of doing away with Section SA 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 rguidelines 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 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 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 " 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 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 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 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. reported in AIR 19S4 SC S4S.

That was a case under the tax jurisprudence, dealing with certain Sections of the Taxation on Income (Investigation Commission) Act, 1947. It was found to be invalid as it had provided different procedure for the tax abettors. This Court had found that the procedure was more drastic for a certain group. The provisions of Sub-Section (4) of Section 5 were found to be discriminatory. The High Court has also dealt with this case. Though there can be no dispute on the principles, we do not think that the 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 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 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) and (4) of Section 17 of the Act do not suffer from any unconstitutionality on account of the alleged breach of Article 14 of the Constitution of India. Shri Qamar Ahmad, Learned Counsel for the appellants also argued that before deciding to take the possession under the various provisions of Section 17 of the Act, a person is entitled to a notice. The High Court has correctly dealt with this question. It firstly considered the law laid down in the cases of Kraipak vs. Union of India reported in AIR 1970 SC 150, Maneka Gandhi vs. Union of India reported , in AIR 1978 SC 597 and Olga Tellis vs. Bombay Municipal ~- ---. - Corporation reported in AlR 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 Ithe 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 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 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 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 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 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 ... + -! ,has recorded categorical finding that there was sufficient material before the State Government and the State . Government has objectively considered the issue of urgency. Even before this Court, there were no allegations of 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, ... 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 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 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 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 + .. ,, 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 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 nonpublication of Sections 4 and 6 notifications. Insofar as that is concerned, we have mentioned it only for rejecting the contention.

After the judgment of the High Court we will not go into that question again being a pure question of fact. Similar is the question raised about the land belonging to the cooperative society and the release of the same. We do not -... ; think that that question needs to be answered in the wake of ~ the High 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 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 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 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 ..... -+ 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 LOA 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 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, - \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 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 -~ publication of Section 4(1) notification, landlords in this case would not get any right or entitlement to question the validity of the title of the State based on the acquisition. Obviously, the claim of this society is on the basis of the Agreement of Sale·. dated 7. 4. 1983. It was reported by the Learned Senior Counsel +~ that Shri Hukum Chand Gupta also expired on 27. 7. 1983 and ultimately, the Sale Deed was executed on 7. 12. 1984. We do not want to go into this question of fact, but we will certainly go ··~. with and endorse the finding of the High Court in this behalf that