UNION OF INDIA & ANR. v. RAGHUBIR SINGH (DEAD) BY LRS. ETC

Citation: [1989] 3 S.C.R. 316

Court: Supreme Court of India

Bench: R.S. PATHAK, E.S. VENKATARAMIAH, SABYASACHI MUKHERJI, RANGANATH MISRA, S. NATARAJAN

Case summary

The question of law referred to us for decision in these cases is: The power extends to examining the validity of even an amendment to the Constitution, for now it has been repeatedly held that no constitutional amendment can be sustained which violates the basic structure of...

Judgment text

The Judgment of the Court was delivered by PATHAK, CJ. The question of law referred to us for decision in these cases is: "Whether under the Land Acquisition Act, 1894 as amended by the Land Acquisition (Amendment) Act, 1984 the claimants are entitled to solatium at 30 per cent of the market value irrespective of the dates on which the acquisition proceedings were initiated or the dates on which the award had been passed"? • • It would suffice if we briefly refer to the facts in the Civil Appeals arising out of Special Leave Petitions Nos. 8194-8195 of 1985: Union of India & Anotherv. RaghubirSingh. The land belonging to the respondents in village Dhaka was taken by compulsory acquisition initiated by a notification under-s. 4 ··. __) of the Land Acquisition Act, 1894 issued on 13 November, 1959. The award with regard to compensation was made by the Collector on 30 March, 1963. A reference under-s. 18 of the Act was disposed of by the Additional District Judge on 10 June, 1968.

He enhanced the compensation. The respondents preferred an appeal to the High Court Claiming further compensation. During the pendency of the appeal the Land Acquisition (Amendment) Bill 1982 was introduced in Parliament on 30 April, 1982, and became law as the Land Acquisition (Amendment) Act, 1984 when it received the assent of the President on 24 September, 1984. The High Court disposed of the appeal by its Judgment and Order dated 6 December, 1984. While it raised the rate of compensation, it also raised the rate of interest payable on the compensation, and taking into account the change in the law effected by the Land Acquisition (Amendment) Act, 1984 (referred to-hereinafter as "the Amendment Act") it awarded solatium at 30 per cent of the market value. The Judgment and Order of the High Court is . the subject of these appeals. When these cases came up before a Bench of two learned Judges (E. S. Venkataramiah and R. B. Misra, JJ.

) on 23 September, 1985, they referred to two earlier decisions of this Court and expressed the view that the question set forth above required re-examination by a larger Bench of five Judges. It was further directed that the other questions involved in the petitions would be considered after the aforesaid question had been resolved by the larger Bench. The two decisions referred to in the Order of the learned Judges are K. Kamalajammanniavaru (dead) by Lrs. Ve Special Land Acquisition ·Officer, [1985] 1 S. C. C. 582 decided by 0. Chinnappa Reddy and Sabyasachi Mukharji, JJ. on 14 February, 1985 and Bhag Singh and Ors. v. Union Territory ofChandigarh, [1985] 3 S. C. C. 737 decided by P. N, Bhagwati, C. J. , A. N. Sen and D. P. Madon, JJ. on 14 August, 11'- 1985. " Solatium is awarded under sub-s. (2) of s. 23 of the Land Acquisition Act. Before the Amendment Act was enacted the sub-section provided for solatium at 15 per cent of the market value.

By the • change introduced by the Amendment Act the amount has been raised to 30 per cent of the market value. Sub-s. (2) of s. 30 of the Amendment Act specifies the category of cases to which the amended rate of solatium is attracted. In K. Kamalajammanniavaru, (supra), the two learned Judges held that sub-s. (2) of s. 30 referred to orders made by the High Court or the Supreme Court in appeals against an award \ made between 30 April, 1982 and 22 September, 1984, and that -'\.. _ therefore solatium at 30 per cent alone pursuant to sub-s. (2) of s. 30 had to be awarded in such cases only. In Bhag Singh (supra), however, the three learned Judges held that sub-s. (2) of s. 30 referred to proceedings relating to compensation pending on 30 April, 1982 or filed subsequent to that date, whether before the Collector or before the Cou. rt or the High Court or the Supreme Court, even if they had finally terminated before the enactment of the Amending Act. In taking that view they overruled K.

Kamalajammanniavaru, (supra) and approved of the opinion expressed ·in another case, State of Punjab v. Mohinder Singh and•another, [1986] 1 S. C. C. 365 decided by S. Murtaza Fazal Ali, A. Varadarajan and Ranganath Misra, JJ. on 1 May, 1985. At the outset, a preliminary objection has been raised by Shri B. R. L. Iyengar to ·the validity of the reference of these cases to a larger Bench. He contends that the mere circumstance that a Bench of two learned Judges finds itself in doubt about the correctness of the view taken by a Bench of three learned Judges should not provide reason for referring the matter to a larger Bench. The preliminary objection raised by Shri Iyengar has been vigorously resisted by the U. 0. 1. v. RAGHUBIR SINGH [PATHAK, CJ. ] 323 apellants. Having regard to the submissions made before us, we think ~ it necessary to lay down the law on the point.

India is governed by a judicial system identified by a hierarchy of courts, where the doctrine of binding precedent is a cardinal feature of its jurisprudence. It used to be disputed that Judges make law. Today, it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulati11g the functions of the State -1 flows from the decisions of the superior courts. °'There was a time. " observed Lord Reid, "when it was thought almost indecent to suggest that Judges make law-They only declare it ........ But we do not .... _,,,, believe in fairy tales any more "The Judge as law Maker" p. 22. " In countries such as the United Kingdom, where Parliament as the legislative organ is supreme and stands at the apex of the constitutional structure of the State, the role played by judicial law-making is ~ limited.

In the first place the function of the courts is restricted to the interpretation of laws made by Parliament, and the courts have no power to question the validity of Parliamentary statutes, the Diceyan dictum holding true that the British Parliament is paramount and all powerful. In the second place, the law enunciated in every-decision of the courts in England can be superseded by an Act of Parliament. As Cockburn CJ. observed in Exp. Canon Selwyn, [1872] 36 JP 54. "There is no judicial body in the country by which the _) validity of an Act of Parliament could be questioned. An act of the Legislature is superior in authority to any Court of Law". "' And Ungoed Thomas J. , in Cheney v. Conn, [1968] 1 All ER 779 referred to a Parliamentary statute as "the highest form of law ..... ' which prevails over every other form, of law. " The position is substan- ~ tially different under a written Constitution such as the one which governs us.

The ·Constitution of India, which represents the Supreme Law of the land, envisages three distinct organs of the State, each with its own distinctive functions, each a pillar of the State. Broadly, while Parliament and the State Legislature in India enact the. law and the Executive government implements it, ·the judiciary sits in judgment . G not only on the implementation of the law by the Executive but also on the validity of the Legislation sought to be implemented. : One of --{ the functions of the superior judiciary in India is to examine the competence and validity of legislation, both in point of legislative competence as well as its consistency wit! ) the Fundamental Rights. In this regard, the courts in India possess a power not known to the English Courts.

Where a statute is declared invalid in India it cannot be reinstated unless constitutional sanction is obtained therefore by a constitutional amendment or an appropriately modified version of the statute is enacted which accords with constitutional prescription. The range of judicial review recognised in the superior judiciary of India is perhaps the widest and the most extensive known to the w'orld of law. The power extends to examining the validity of even an amendment to the Constitution, for now it has been repeatedly held that no constitutional amendment can be sustained which violates the basic structure of the Constitution. (See His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kera/a, [1973] Suppl. SCR 1; Smt. Indira Nehru Gandhi v. Shri Raj Narain, [1976] 2 SCR 347; Minerva Mills Ltd. and others v. Union of India and others, [1980] 2 SCC 591 and recently in S. P. Sampath Kumar etc. v. Union of India and Ors. , [1987] 1 SCR 435.

With this impressive expanse of judicial power, it is only right that the superior courts in India should be conscious of the enormous responsibility which rests on them. This is specially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared it is, by Article 141 of the Constitution, binding on all courts within the territory of India. ' I Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this ' Court should be certain, clear and consistent. It is commonly known ~- I that most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law.

The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court. But like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations, limitations arising by reference to the need for re-adjustment in a changing society, are-adjustment of legal norms demanded by a changed social context. This need for U. 0. J. v. RAGHUBIR SINGH [PAIBAK, CJ. ) 325 adapting the law to new urges-in society brings home the truth of the .. -. I . _,~ Holmesian aphorism that "the life of the la. w has not been logic it has been experience". Oliver Wendell Holmes, "The Common Law" p.

5 and again when he declared in another study that Oliver Wendell Holmes, "Common Carriers and the Common Law", (1943) 9 Curr. L. T. 387, 388 "the law is forever adopting new principles from life at one end," and "sloughing off" old ones at the o over that suggested by the respondents. Parliament has identified the appeal before· the High Court and the appeal before the Supreme Court by describing it as an appeal against 'any such award'. The submission on behalf of the respondents is that the words 'any such f:I award' mean the award made by the Collector or Court, and carry no r U. 0. 1. v. RAGHUBIR SINGH [PATHAK, CJ. I 339 greater limiting sense; and that in this context, upon t_he language of s. 30(2), the on:lt'r in appeal is an appellate order made between 30 April 1982 and 24'5eptember 1984-in which case the related award of the Collector or of the Court may have been made before 30 April 1982.

To our mind, the words 'any such award' cannot bear the broad meaning suggested by learned counsel for the respondents. No such ' words of description by way of identifying the appellate order of the -1 High Court or of the. Supreme Court were neces·sary. Plainly, having regard to the existing hierarchical structure of for a contemplated in·the parent Act those appellate orders could only be orders arising in appeal against the award of the Collector or of the Court. The words -7 'any such award' are intended to have deeper significance, and in the context in which those words appear ins. 30(2) it is clear that they are intended to refer to awards made by the Collector or Court between 30 April, 1982 and 24 September, 1984. In other words s.

30(2) of the Amendment Act extends the benefii of the enhanced solatium to cases where the award by the Collector or by the Court is made between 30 April, 1982 and 24 September, 1984 or to appeals against such awards decided by the High Court and the Supreme Court whether the decisions of the High Court or the Supreme Court are rendered before 24 September, 1984 or after that date. All that is material is th_at the award by the Collector or by the Court should have been made between 30 April, 1982 and 24 September, 1984. We find ourselves in agreement with the conclusion reached by this Court in K. Kamalajammanniavaru (dead) by Lrs. v. Special Land Acquisition Officer, (supra), and find ourselves unable to agree with the view taken in Bhag Singh and Others v. Union Territory ofChandigarh, (supra). The expanded meaning given to s. 30(2) in the latter case does not, in our opinion, flow reasonably from the language of that sub-section.

It seems to us that the learned judges in that case missed the significance of the word 'such' in the collocation 'any such award' ins. 30(2). Due ---significance must be attached to that word, and to our mind it must necessarily intend that the appeal to the High Court or the Supreme Court, in which the benefit of the enhanced solatium is to be given, must be confined to an appeal against an award of the Collector or of the Court rendered between 30 April, 1982 and 24 September, 1984. We find substance in the contention of the learned Attorney General that if Parliament had intended that the benefit of enhanced solatium should be extended to all pending proceedings it would have said so in clear language. On the contrary, as he says, the terms· in which s. 30(2) is couched indicate a limited extension of the benefit.

The Amendment Act has not been made generally retrospective with : effect from any particular date, and such retrospectivity as appears is y I restricted to certain areas covered by the parent Act and must be discovered from the specific terms of the provision concerned. Since it is necessary to spell out the degree of retrospectivity from the language of the relevant provision itself, close attention must be paid to the provisions of s. 30(2) for determining the scope of retrospective relief intended by Parliament in the matter of enhanced solatium. The ,.. , learned Attorney General is also right when he points out that it was never intended to define the scope of the enhanced solatium on the mere accident of the disposal of a case in appeal on a certain date. Delays in the superior Courts extend now to limits which were never yanticipated when the right to approach them for relief was granted by statute. If it was intended that s.

30(2) should refer to appeals pending before the High Court or the Supreme Court between 30 April, 1982 -1and 24 September, 1984, they could well refer to proceedings in which an award had been made by the Collector from anything between 10 to 20 years before. It could never·have been intended that rates of compensation and solatium applicable to acquisition proceedings initiated so long ago should now enjoy the benefit of statutory enhancement. It must be remembered that the value of the land is taken under s. 11(1) ands. 23(1) with reference to the date of publication of the notification under-s. 4( 1), and it is that date which is usually material for the purpose of determining the quantum of compensation and solatium. Both s. 11(1) ands. 23(1) speak of compensation being determined on \. the basis, inter alia, of the market value of the land on that date, and solatium by s. 23(2), is computed as a percentage on such market value. ..

Our attention was drawn to the order made in State of Punjab v. Mohinder Singh, (supra), but in the absence of a statement of the reasons which persuaded the learned Judges to take the view they did ir" we find it difficult to endorse that decision. It received the approval of the learned Judges who decided Bhag Singh (supra), but the judgment in Bhag Singh, (supra) as we have said earlier, has omitted to give due significance to all-the material provisions of s. 30(2), and consequently we find ourselves at variance with it. The learned Judges proceeded to apply the principle that an appeal is a continuation of the proceeding initiated before the Court by way of reference under-s. 18 but, in our opinion, the application of a general principle must yield to the limit- ~ ing terms of the statutory provision itself. Learned.

counsel for the respondents has strenuously relied on the general principle that the appeal is a re-hearing of the original matter, but we are not satisfied 14 that he is on good ground in invoking that principle. Learned counsel U. 0. 1. v. RAGHUBIR SINGH [PATHAK, Cl. ] 341 for the respondents points out tha1 the word 'or' has been used in s. 30(2), as a disjunctive between the reference to the award made by the Collector or the Court and an order passed by the High Court or the Supreme Court in appeal and, he says, properly understood it must mean that the period 30 April, 1982 to 24 September, 1984 is as much applicable to the appellate order of the High Court or of the Supreme Court as it is to the award made by the Collector or the Court. We think that what Parliament intends to say is that the benefit of s.

30(2) will be available tci an award by' the Collector or the Court made between the aforesaid two dates or to an appellate order of the High Court or of the Supreme Court which arises out of an award of the Collector or the Court made between the said two dates. The word 'or' is used with reference to the stage at which the proceeding rests at the time when the benefit under-s. 30(2) is sought to be extended. If the proceeding has terminated with the award of the Collector or of the Court made between the aforesaid two dates, the benefit of s. 30(2) will be applied to such award made between the aforesaid two dates. If the proceeding has passed to the stage of appeal before the High Court or the Supreme Court, it is at that stage when the benefit of s. 30(2) will be applied. But in every case, the award of the Collector or of the Court must have been made between 30 Aprfl, 1982 and 24 September, 1984.

In the result we overrule the statement of the law laid down in Mohinder Singh, (supra) and in Bhag Singh and Another, (supra) and prefer instead the interpretation of s. 30(2) of the Amendment Act rendered in K. Kamalajammanniavaru (dead) by Lrs. (supra). The cases will now be listed before a Division Bench of three learned Judges for hearing on the merits of the other points raised in the cases. Y. Lal