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Judgment
Srinivasan, J.
I Preface
In these writ petitions excepting one, the only prayer is for a declaration that Tamil Nadu State Housing Board (Amendment and Validation) Act, 1992 (T.N. Act No. 5 of 1992, hereinafter referred to as "Amendment Act" is illegal, void, ultra vires, unconstitutional and unenforceable in so far as the Petitioners are concerned. The Amendment Act amends Sections 39, 49, 53, 56 and 70 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act 17 of 1961,) hereinafter referred to as "the Principal Act". The amendment Act received the assent of the Governor on 19.2.1992 and published in Part IV Section 2 of the Tamil Nadu Government Gazette Extraordinary dated February 20, 1992. Sections 2, 3, 4, 5 and 6 of the Amendment Act shall be deemed to have come into force on 22.4.1961. That is, all the amended provisions are given retrospective effect practically from the inception of the Principal Act which was published in the Gazette on 12.4.1961. Section 7 of the Amendment Act is the
validation provision.
II. PRINCIPAL ACT:
The present amendment enables the Housing Board to acquire land under the provisions of the Land Acquisition Act even before framing a scheme. The Principal Act before amendment made acquisition of land a part of the scheme. The Act was passed to provide for the execution of housing and improvement schemes, for the establishment of a State Housing Board and other matters. The constitution of the Board is dealt with in Chapter II. Chapter VI details the powers of the Board to incur expenditure on schemes and enter into contracts. Chapter VII provides for Housing or Improvement Schemes. Chapter VIII deals with Acquisition and Disposal of land. Section 37 enables the Board to frame a housing or improvement scheme on its own motion or at the instance of the Government or the local authority, Section 39 sets out the matters to be provided by such schemes. Clause (a) before the present amendment mentioned "the acquisition by purchase, exchange, or otherwise of any property necessary for or affected by the execution of the scheme". Section 40 details eight types of schemes. Sections 41 to 48 deal with each type of scheme. Section 49 provides for preparation, publication and transmission of notice as to the details of the land, etc. and supply of document to applicants. Section 50 enjoins the local authority to forward its representation regarding the scheme to the Board within the specified time. Section 53 relates to abandonment, modification or sanction of a scheme after considering the objections and representations. Section 56 provides for alteration of a scheme after sanction and before execution. Section 66 details the other duties of the Board. Section 68 empowers the Government to call for the records of the Board and to modify, annual or remit for reconsideration of the scheme. Section 69 gives power to the Government to exempt any scheme from any provisions of the Chapter. Section 70 before the present amendment read that any land or any interest therein required by the Board or for any of the purpose of the Act may be acquired under the provisions of the Land Acquisition Act, 1894.
III. HISTORY
The State Government issued a Notification u/s 4(1) of the Land Acquisition Act in G.O. Ms. No. 847 published in the Tamil Nadu Gazette dated 22.6.1983 for acquisition of R.S.543/3, Nungambakkam, Madras for the public purpose of "the development of area by building houses by the development of area by building houses by the Tamil Nadu Housing Board". The owners of the land challenged the validity of the acquisition by a writ petition in this Court. By judgment dated 2.9.1988, a learned Judge of this Court allowed the writ petition (W.P. No. 8548 of 1983) and quashed the Notification on the ground that the purpose was not a real public purpose and it did not fall within any of the Schemes contemplated by the Principal Act. See A. Mohammed Yousuf and Others Vs. The State of Tamil Nadu, On Appeal by the State, a Division Bench affirmed the judgment. See The State of Tamil Nadu and Another Vs. A. Mohammed Yousuf and Others, The reasoning of the Bench was that the Notification failed to set out the public purpose with sufficient particulars and clarity. The Bench said that the mere mention in the Notification that the land was being acquired for development of the area by construction of houses by the Housing Board was wholly insufficient and conveyed no ideas as to the specific purpose for which the site was to be utilised. The Bench pointed out the absence of any material before it to show the exact purpose as well as the failure of the Government to mention in the counter affidavit regarding the requirements of Sections 40 and 41 of the Principal Act.
The State Government took the matter to the Supreme Court. A Division Bench of that Court confirmed the decision of the High Court on a slightly different reasoning. After referring to the relevant provisions of the Principal Act, the Court held that acquisition of land was part of the Scheme and only after the framing of a scheme, a proceeding for acquisition can be initiated. See State of Tamil Nadu and another Vs. A.
Mohammed Yousef and others, . The following passages in the judgment can be referred to with advantage:
The Act has laid down separate procedures for the different types of schemes, according to necessity and suitability. Some of the schemes do not require acquisition of land, which is, however, essential for constructing residential buildings under the housing scheme. Section 39 of the Act, therefore, while enumerating the matters to be included in the scheme, specifically mentions acquisition of land in Clause (a). If the acquisition is contemplated as a subject matter of the scheme itself, it follows that it must await the preparation of the scheme wherein it will be included.
The Act requires the proposed scheme to be published permitting objections to be made, and if they arc found to be valid, u/s 53, the scheme to be modified or abandoned. Sub-section (1) of Section 49 directs the notice of the draft housing scheme to include and specify the following information as contained in Clause (b) for the purpose of publication and information to the general public:
b) the place or places at which particulars of the scheme, a map of the area, and details of The land which it is proposed to acquire and of the land in regard to which it is proposed to recover a betterment fee, may be seen at reasonable hours.
(emphasis added).
The underlined words above reaffirm the position that the acquisition of the land has to be a part of the scheme, which can be executed only after its finalisation. Apart from the provisions of Section 53 mentioned above, Section 56 further clothes the Board with the power to alter or cancel the scheme even after it is finally sanctioned. The language of Clause (b) of the Proviso to the Section, which is quoted below, once more leads to the same conclusion that acquisition of the land has to await the framing of the scheme:
b) If any alteration involves the acquisition otherwise then by agreement of any land not previously proposed to be acquired in the original scheme, the procedure prescribed in the forgoing sections of the Chapter shall, so far as it may be applicable, be followed as if the alteration were a separate scheme.
(emphasis added).
(8). Mr. Attorney General repeatedly said that unless the Board gets actual possession of the land in question its officers cannot go over the same for collecting the information essential for drawing up of the scheme. It has, therefore, been suggested that it is wholly impractical to expect the scheme to be framed before obtaining the possession of the land. Mr. Parasaran, the Learned Counsel for the Respondents, rightly pointed out that the provisions of Section 147 furnish a complete answer to this argument. The Section empowers the Chairman (now the Managing Director) of the Board or any person either generally or specially authorised by him in this behalf to enter into or upon any land with or without assistants or workmen for the purpose of making any inspection, Survey, measurement valuation or enquiry or to take levels or to dig or bore into subsoil or to set out boundaries and intended lines of work et cetera. The last Clause in the Section gives wide power to do any other thing which may appear necessary for achieving the purpose of the Act subject to certain reasonable restrictions.
The learned Attorney-General also relied on Sections 55 and 72 in support of the Petitioners'' stand. Section 55 directs the Board to proceed to execute the scheme as soon as it becomes enforceable. It is contended that if the acquisition proceeding is not over by the time the scheme is ready, undue delay is bound to take place. The fallacy in the argument is that it assumes that the acquisition of the land is not a part of the execution of the scheme itself. As has been indicated earlier the position is otherwise. Since the acquisition is included in the scheme the process of execution of the scheme starts immediately when steps for acquisition are taken. Thus there is no question of any disregard of the command in Section 55.
Section 72 empowers the Board to lease, sell, exchange or otherwise dispose of any land vested in or acquired by it. This power has been granted to the Board, according to the Petitioners, so that if the scheme is abandoned u/s 53 the land already acquired can be disposed of. We do not see any warrant for linking Section 72 with Section 53. The Board has been given the power to dispose of any land whenever it is considered in the interest of the Board to do so, and the circumstances where it may be expedient to use this power may be many, as for example, when the scheme is altered or cancelled u/s 56 due to a new development.
(9). On the other hand, the order, in which the different steps for the preparation of the scheme and the acquisition of the land is suggested on behalf of the Petitioners to be taken appears to be impractical and defeating the purpose of Section 5A of the Land Acquisition Act. If the Notification u/s 4 under the Land Acquisition Act is published without waiting for the scheme, as has been done in the present case, it will not be possible for the land owners to object to the proposed acquisition on the ground that the land is not suitable for the scheme at all, and therefore, does not serve any public purpose, or that another piece of land in the area concerned, is far more suitable, leading to the possible conclusion that the proposed acquisition is mala fide. As discussed above, the provisions of the Housing Board Act also suggest the same. The Board has not been vested with the unrestricted power to frame any scheme, as suggested by its planners. It has to take into account the representation by the local authority as mentioned u/s 50 and the objection of any other person u/s 53 and decide the same on merits before according sanction. The matter is not concluded even at that stage; the aggrieved person may appeal to the State Government and it is only subject to the final result therein that the scheme becomes enforceable. In this set up it will be practical and consistent with common sense to have the scheme finalised before starting an acquisition proceeding. We, accordingly, hold that a proceeding under the Land Acquisition Act read with Section 70 of the Madras Housing Board Act, can be commenced only after framing the scheme for which the land is required. The Notification issued under, Section 4 in the present case must, therefore, be held to be premature, and it was rightly quashed by the High Court.
IV. CONSEQUENCES OF SUPREME COURT RULING.
The Supreme Court has also said in the last paragraph of its judgment that the ruling will be applicable to all such land acquisition proceedings which are under challenge and still pending decision. It is stated in the counter affidavit filed in these writ petitions that there are nearly 1800 writ petitions pending in this Court involving an extent of about 4000 acres of land notified for acquisition for the Housing Board. Apart from that the land acquisition proceedings pending in various stages after Notification u/s 4(1) of the Land Acquisition Act concerning about 8000 acres of land are also pending. In none of the cases, the Housing Board has framed a scheme and as a result of the judgment of the Supreme Court all the proceedings will have to be struck down. A few writ petitions have already been allowed and appeals are being filed by the State. Hence, the Government decided to get the Principal Act suitable amended with retrospective effect. That resulted in the passing of the Amendment Act.
V. REASONS FOR AMENDMENT.
The Statement of Objects and Reasons reads as follows:
The Supreme Court, in SLP No. 3790/1991, has held that the acquisition of land u/s 70 of the Tamil Nadu State Housing Board Act, 1961 (TamilNadu Act 17/1961) read with the Land Acquisition Act, 1894 (Central Act 1 of 1894) can be commenced only after framing the scheme for which the land is required.
Framing a housing or improvement scheme and getting it sanctioned by the Government under the provisions of the Tamil Nadu State Housing Board Act, 1961, before the land comes into the possession of the Tamil Nadu State Housing Board is not practically possible and hence, the provisions of the said Act cannot be implemented effectively, for the following reasons:
(i) It involves detailed investigation of soil, taking contours and levels, assessing the water potential of the site, etc., which require unhindered access to the land.
(ii) A layout for the scheme cannot be sanctioned by the Madras Metropolitan Development Authority or Director of Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972) before the possession of the land is taken, as the plans should be signed by the owner of the land or to be accompanied by a letter of authority of consent from the owner of the land, if the applicant is not the owner.
(iii) Even if a scheme is framed and got sanctioned before acquisition, due to the delay in acquiring the land which takes normally about three to four years the cost of the scheme will be increased substantially and the scheme will require revised sanction under the Tamil Nadu State Housing Board Act, 1961.
(iv) Such modification of scheme which becomes necessary would necessitate following the procedure prescribed under the Tamil Nadu State Housing Board Act, 1961 for notifying and processing a scheme again which will consume more time.
(v) Getting the scheme approved and sanctioned prior to acquisition of land under the Land Acquisition Act, 1894, would make the implementation of the scheme to drag on for many years.
(vi) Complying with such requirements will result in the increase of the cost of the land proposed to be acquired.
The Government, therefore, decided to amend the Tamil Nadu State Housing Board Act, 1961 suitably with retrospective effect from the 22nd April 1961 to the effect that the land acquisition proceedings may be taken even before the scheme is framed under the said Act, with necessary validation provisions.
Accordingly, the Tamil Nadu State Housing Board (Amendment and Validation) Ordinance, 1992 (Tamil Nadu Ordinance 3 of 1992) was promulgated by the Governor.
The Bill seeks to replace the said Ordinance.
VI. AMENDMENTS
Sections 2 to 5 of the Amendment Act are as follows:
Amendment of Section 39: In Section 39 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act 17 of 1961) (hereinafter referred to as the Principal Act), for Clause (a), the following clause shall be substituted, namely:
(a) the area relating to the scheme.
Amendment of Section 49: In Section 49 of the Principal Act, in Sub-section (1), in Clause (b), the expression of "the land which it is proposed to acquired" shall be omitted.
Amendment of Section 53: In Section 53 of the principal Act, in Sub-section (3) in Clause (a), the words "or involves the acquisition of any land not previously proposed to be acquired" shall be omitted.
Amendment of Section 56: In Section 56 of the Principal Act, in the first Proviso, Clause (b) shall be omitted.
It can be seen that the net result of the amendment is to exclude acquisition of land from the provisions of the scheme framed under the Act.
Thus acquisition of land ceases to be part of any scheme under the Act. As a necessary corollary, Section 70 has been substituted with a fresh provision expressly enabling the acquisition of land before the framing of any housing or improvement scheme. The new Section reads as follows:
Power to acquire land under the Land Acquisition Act: (1) Any land or any interest therein required by the Board for the purpose of framing or executing any housing or improvement scheme or for any other purposes of this Act, may be acquired under the provisions of the Land Acquisition Act, 1894. (Central Act 1 of 1894).
(2) Notwithstanding anything contained in this Act, proceedings under the Land Acquisition Act, 1894 (Central Act 1 of 1894) may be taken for acquiring any land or any interest therein under Sub-section (1), even before framing any housing or improvement scheme.
The consequence is that the Housing Board can move the machinery under the Land Acquisition Act with a requisition to acquire a land for its purpose without framing any housing scheme. The Board is in the same position as any other public body and it has to make a requisition to the Government under the provisions of the Land Acquisition Act.
VII. LEGISLATIVE POWERS
The main contention of the Petitioners is that the Amendment Act is ultra vires the powers of the Legislature inasmuch as it seeks to override and overrule the judgment of the Supreme Court in State of Tamil Nadu and another Vs. A. Mohammed Yousef and others, .
The principles of law on this aspect of the matter are well settled. In Udairam v. Union of India AIR 1968 S.C. 1138, the Court said that the American doctrine or well-defined separation of legislative and judicial powers has no application in India and it cannot be said that an Indian Statute which seeks to validate invalid actions is bad if the invalidity has already been pronounced upon by a Court of law.
In The State of Mysore and Another Vs. D. Achiah Chetty, etc., , there were two Acts bearing on acquisition of private land for public purposes, one being the Mysore Land Acquisition Act which followed the same scheme as the Land Acquisition Act in force in India and the other being the city of Bangalore Improvement Act, 1945. Under the latter Act, a Board of Trustees was constituted and entrusted with duties and powers to frame and execute improvement schemes under the Act. The said Act was somewhat similar to the Principal Act in the present case.
The land in respect of which dispute arose belonged originally to the Maharaja who divided it into plots. The transferees of some such plots had made layouts with the prior sanction of the Board and spend money therefor. A Notification was issued u/s 4 of the Mysore Land Acquisition Act for acquisition of the plots stating that they were being acquired for public purpose to wit "Raja Mahal Vilas Layout". The validity of the same was questioned in a number of petitions on the footing that the Notification gave no particulars and it was followed by a Notification u/s 6 with the result that the opportunity u/s 5A of objecting to the acquisition was lost to the Petitioner. It was also contended that the scheme of layout was feasible only under the Bangalore Improvement Act through the Board of Trustees and the procedure prescribed in that Act had to be followed. As the acquisition was entirely under the Land Acquisition Act without reference to the Bangalore Improvement Act, it was said to be bad. When the petitions were pending an Ordinance was promulgated by the Governor of Mysore introducing retrospectively a Section dispensing with the compliance with the provisions of the Improvement Act. The Ordinance was later replaced by an Act. The High Court declared the Ordinance as well as the Act to be unconstitutional on the short ground that the former offended Article 213(1) and the latter offended Article 254(2) of the Constitution of India. The judgment of the High Court was challenged in appeal before the Supreme Court. Before the appeal could be heard, a Validating Act was passed by the Legislature of the State, which was reserved for the assent of the President on the basis of which the State Government contended that the judgment of the High Court could not be supported. The Validating Act validated the acquisition proceedings notwithstanding the provisions of the Improvement Act. The Supreme Court upheld that contention and allowed the appeal. Referring to the powers of the Legislature, the Court said:
(13). The above argument denies to the Legislature the Supremacy which it possesses to make laws on the subject of acquisition. What the Legislature has done is to make retrospectively a single law for the acquisition of these properties. The Legislature could always have repealed retrospectively the Improvement Act rendering all acquisitions to be governed by the Mysore Land Acquisition Act alone. This power of the Legislature is not denied. The resulting position after the Validating Act is not different. By the non obstante Clause the Improvement Act is put out of the way and by the operative part the proceedings for acquisition are wholly brought under the Mysore Land Acquisition Act to be continued only under that Act. The Validating Act removes altogether from consideration any implication arising from Chapter III or Section 52 of the Improvement Act in much the same way as if that Act had not been passed.
The supremacy of the Legislatures in India within the constitutional limits of their jurisdiction is as complete as that of the British Parliament. If two procedures exist and one is followed and the other discarded, there may, in a given case, be found discrimination. But the Legislature has still the competence to put out of action retrospectively one of the procedures leaving one procedure only available, namely, the one followed and thus to make disappear the discrimination. In this way a Validating Act can get over discrimination. Where, however, the legislative competence is not available the discrimination can only be removed by a Legislature having power to create a single procedure out of two and not by a Legislature which has not that power.
As rightly contended by learned Advocate-General for the State, the situation in the present case is almost similar. Before the Amendment Act, the Board had to frame a scheme under the Principal Act and as part of the scheme, initiate proceedings for acquisition. After the amendment, there is no necessity to frame a scheme before initiating acquisition. The Board had to resort only to the provisions of the Land Acquisition Act. As in the aforesaid case, what the Legislature has done in the present case is only to make retrospectively a single law for the acquisition of the properties.
In Shri Prithvi Cotton Mills Ltd. and Another Vs. Broach Borough Municipality and Others, , the prerequisites for retrospectively validating an invalid Act are set out. A Validation Act was passed to validate the imposition of tax levied under Rule 350A of the Rules framed u/s 73 of the Bombay Municipal Boroughs Act. The Rule was declared ultra vires the Act by the Supreme Court in Patel Gordhandas Hargovindas Vs.
Municipal Commissioner, Ahmedabad, on the basis of an interpretation of the word "rate" used in Section 73. By the Validation Act, the word rate"" was defined in such a way as to avoid the interpretation being made by the Court, Repalling the challenge to the Validation of the said Act, the Court said:
When a Legislature set out to validate a tax declared by a Court to be illegally collected under ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the Legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A Court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a Court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction.
Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before.
Sometimes this is done by re-enacting retrospectively a valid and legal taxing ""provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon Courts. The Legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the Court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the Legislature and legal and adequate to attain the object of validation. If the Legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a validating law, therefore, 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 found in the existing law and makes adequate provisions in the validating law for a vaiid imposition of the tax.
In Hari Singh and Others Vs. The Military Estate Officer and Another, , the Court reiterated the proposition laid down in The State of Mysore and Another Vs. D. Achiah Chetty, etc., .
In Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, , the Court said that the rendering of a judgment ineffective by changing the basis by legislative enactment is no encroachment on judicial power because the legislation is within the competence of the Legislature.
In I.N. Saksena v. State of Madhya Pradesh AIR 1976 S.C. 2250, three tests were prescribed the judge the validity of a validating law. The Court referred to the earlier cases and said thus:
(21). The distinction between a "legislative" act and a "Judicial" act is well known, though in some specific instances the line which separates one category from the other may not be easily discernible. Adjudication of the rights of the parties according to law enacted by the Legislature is a judicial function. In the performance of this function, the Court interprets and gives effect to the intent and mandate of the Legislature as embodied in the statute. On the other hand, it is for the Legislature lay down, the law, prescribing norms of conduct which will govern parties and transactions and to require the Court to give effect to that law.
(22). While, in view of this distinction between legislative and judicial functions, the Legislature cannot, by a bare declaration, without more, directly overrule, reverse or override a judicial decision, it may, at any time, in exercise of the plenary powers conferred on it by Article 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based. As pointed out by Ray C.J. in Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, the rendering ineffective of judgments or orders of competent Courts and tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts. Such a validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power.
(23) In Hari Singh and Others Vs. The Military Estate Officer and Another, Bench of seven learned Judges of this Court laid down that the validity of a validating law is to be judged by two tests. Firstly, whether the Legislature possesses competence over the subject matter, and, secondly, whether by validation the Legislature has removed the defect which the Courts had found in the previous law. To these we may add a third; whether it is consistent with the provisions of part III of the Constitution.
In In the matter of : CAUVERY WATER DISPUTES TRIBUNAL, the Court after referring to some earlier decisions reiterated the rule thus:
The principle which emerges from these authorities is that the Legislature can change the basis on which a decision is given by the Court and thus change the law is general, which will affect a class of persos and events at large. It cannot, however, set aside an individual decision inter parts and affect their rights and liabilities alone. Such an act on the part of the Legislature amounts to exercising the judicial power of the State and to functioning as an appellate Court or Tribunal.
In State of Haryana and others Vs. The Karnal Co-op. Farmers'' Society Limited, etc. etc. and others, , the Haryana State Legislature, by an Amendment Act directed the Assistant Collector of First Class in effect to disregard or disobey the earlier Civil Court's decrees and judicial orders which it has been held that certain lands and the immovable properties fell outside the purview of the Principal Act. The Court held the Act to be unconstitutional.
One of the Senior Counsel appearing for the Petitioners attempts to formulate a fourth test to decide the validity of the amendment. According to him, it should be considered whether the Court would have invalidated the provisions of the Principal Act if the present amendment had been: effected before the decision in State of Tamil Nadu and another Vs. A. Mohammed Yousef and others, . II is argued that the Court would have without doubt held that such provisions were unconstitutional. This is only an ingenuous way of begging the question. If the amended provisions had been there at the time of Mohammed Yousuf State of Tamil Nadu and another Vs. A. Mohammed Yousef and others, , the only question before the Court would have been whether they offended the provisions of the Constitution of India and the other two tests would not have arisen for consideration.
If the tests prescribed in Saksena's case AIR 1976 S.C. 2250 are applied to the present case, there is no difficulty in holding that the Amendment Act has only changed the basis of the Principal Act and does not constitute an encroachment on judicial power. The contention that the Amendment Act directly overrules or overrides the judgment of the Supreme Court in Mohammed Yousuf State of Tamil Nadu and another
Vs. A. Mohammed Yousef and others, is unsustainable. The ruling in Mohammed Yousuf State of Tamil Nadu and another Vs. A. Mohammed Yousef and others, was on the footing that the Principal Act contemplated acquisition only as part of a Scheme and before the framing of a scheme no land could be acquired by the Board. The Legislature is competent to remove that requirement. It is for the Legislature to prescribe what should be the contents of a scheme. By the Amendment Act, the Legislature has only changed the matters which should be provided by Housing or Improvement Schemes. Hence, the first contention fails.
VIII. PRESIDENT'S ASSENT
None of the Petitioners has expressly challenged the competence of the Legislature to pass the Amendment Act; but an argument was advanced that it is not clear whether the Amendment Act would fall under one Entry or the other. Even that argument was only as a limb of a contention that the Principal Act as amended is in conflict with the provisions of the Land Acquisition Act, which has already occupied the field of acquisition of land and inasmuch as the Amendment Act has not been reserved for the assent of the President and it has received only the assent of the Governor, it cannot prevail over the Central Act. Reliance is placed on the judgment of Mysore High Court in Achiah Chetty v. State of Mysore AIR 1962 Mys 218. On a construction of the City of Bangalore Improvement Act (5 of 1945) and the Mysore Land Acquisition Act, 1994, as well as Mysore Act 13 of 1960 amending the provisions, of Act 5 of 1945, the Division Bench of that Court held that the Amendment Act 13 of 1960 was void as it had, not been reserved for the consideration of the President and received his assent. The position in this case is entirely different. It cannot be said that the Principal Act is one relating to acquisition of property as such. It is only providing for framing and execution of Housing and Improvement Schemes by the Housing Board. Before the Amendment, one of the matters to be done in the Scheme was acquisition of property. But the Act never provided by itself a procedure to acquire any land or empowered the Board to do so directly. Even before the amendment, the Board had to resort only to the provisions of the Land Acquisition Act for the purpose of acquisition of a land. Even assuming that the Principal Act could be said in a way to relate to acquisition of property, the Amendment Act is only removing all the provisions for acquisition as part of the schemes. As pointed out already, the effect of the Amendment Act is only to make the Land Acquisition Act the only law for acquisition of land. For that purpose, there is no necessity to reserve the Amendment Act for the assent of the President. Thus the ruling of the Mysore High Court will have no bearing in the present case.
It should also be noted that the decision of the Mysore High Court was challenged on appeal in the Supreme Court of India by the State Government. During the pendency of the appeal, a Validating Act was passed by the State Legislatures, which received the assent of the President. In view of the said validation Act, the Supreme Court allowed the appeals filed by the State. We have referred to the decision of the Supreme Court earlier in paragraph No. 11.
Reliance is placed by the learned Sri Durga Rice and Baba Oil Mills Co. Nidubrole Vs. State of Andhra Pradesh and Others, wherein a Divison Bench has held that it is not necessary to submit every amendment for the assent of the President merely because his assent was obtained on the Principal Act irrespective of whether the amendment involves anything which calls for the assent of the President. It is not every amendment that should be submitted for the assent of the President irrespective of whether the amendment involves anything which calls for his assent merely because the main Act was referred to his assent. A similar view is expressed in Hanuman Dall and General Mills, Hissar Vs. The State of Haryana and Others, , wherein the proposition is reiterated. We agree with the view expressed in those two cases and hold that in the present case, there is no necessity for getting the assent of the President for the Amendment Act.
IX. OCCUPIED FIELD.
There is also no difficulty in upholding the competency of the State Legislature. The Act falls under Entries 5 and 18 of List II. Inasmuch as the effect of the amendment is only to have one law for acquisition of land, viz., the Land Acquisition Act, there is no question of conflict or repugnancy between the State Act and the Central Act. The theory of ""occupied field!'' and the rulings referred to by Learned Counsel for the Petitioners in Hoechst Pharmaceuticals Ltd. and Others Vs. State of Bihar and Others, and Adhiyaman Educational and Research Institutions v. State of Tamil Nadu AIR 1991 Madras 246 will have no relevance. We do not think it necessary to make a detailed reference to the following decisions cited by the learned Advocate General excepting to give the citations:
A.S. Krishna Vs. State of Madras, ;
Western Coalfields Limited Vs. Special Area Development Authority, Korba and Another, and
Gram Panchayat of Village Jamalpur Vs. Malwinder Singh and Others, ).
X. ARTICLE 14, CONSTITUTION OF INDIA.
The next contention is that the Amendment Act brings about a discrimination and is thus violative of Article 14 of the Constitution of India. We do not find any substance in this argument. At the risk of repetition it has to be pointed out that the result of the amendment is only to bring into existence with retrospective effect a single law for acquisition of land. The provisions relating to acquisition of lands in the Principal Act have been removed and after the amendment, there is only one law to which resort can be had by the Board to acquire land. Whatever are the rules for a valid acquisition under the Land Acquisition Act, they are uniformly applicable whether the requisitioning body is the Housing Board or some other public body. Hence, there is no question of discrimination or violation of Article 14 of the Constitution of India.
XI. BASIC STRUCTURE.
It is next argued that the amendment changes the basic structure of the Principal Act and is a colourable legislations The argument is developed as follows: The Principal Act is to provide for the execution of Housing and Improvement schemes for the establishment of State Housing Board and for certain other matters. The execution of a scheme can arise only after the framing of the scheme. The Board which is a creature of the statute, has no power to seek acquisition independent of a scheme. All the relevant Sections in the Act indicate that the scheme has to be framed with public participation and thereafter it shall be executed. Land can be acquired only as part of such execution of the scheme. Section 70 of the Act, before the amendment, provided for acquisition of Land for any of the purposes of the Act by the Board. But, after amendment, the Board is enabled to acquire for the purpose of framing or executing a scheme or for any other purposes of the Act. The widening of the power of the Board by the amendment is arbitrary and runs counter to the basic structure of the Act. Sub-section (2) of Section 70 after amendment really invalidates the Act. Some rulings were cited by Learned Counsel in support of his contention that the Board has only limited powers which cannot be exceeded by it and that all Notifications of acquisition are violative of Article 31(1) of the Constitution and void. Our attention has also been drawn to a passage in "Principles of Administrative Law" by Wade, v. Ith Edition at page 243. We do no find any necessity to refer either to the rulings cited or the passage in the aforesaid text book, as there is no relevance whatever in the present case. There is absolutely no merit in the contention that the basic structure of the Act is changed by the amendment and, therefore, it is invalid. The basic structure theory is not applicable to ordinary legislations.
A similar argument was repelled in Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, . Dealing with this aspect of the matter at some length, the Court said:
To accept the basic features or basic structures theory with regard to ordinary legislation would mean that there would be two kinds of limitations for legislative measures. One will pertain to legislative power under Articles 245 and 246 and the legislative entries and the provision in Article 13. The other would be that no legislation can be made as to damage or destroy basic features or basic structures. This will mean rewriting the Constitution and robbing the Legislature of acting within the framework of the Constitution. No legislation can be free from challenge on this ground even though the legislative measure is within the plenary powers of the Legislature.
The theory of implied limitations on the power of amendment of the Constitution has been rejected by seven Judges in His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, ., Our Constitution has not adopted the due process clause of the American Constitution. Reasonableness of legislative measures is unknown to our Constitution. The crucial point is that unlike the American Constitution where rights are couched in Wide general terms leaving it to the Courts to evolve necessary limitations our Constitution has denied due process as a test of invalidity of law. In A.K. Gopalan Vs. The State of Madras, due process was rejected by clearly limiting the rights acquired and eliminating the indefinite due process. Our Constitution contemplates that considerations of justice or general welfare might require restriction oh enjoyment of fundamental rights.
The theory of basic structure or basic features in an exercise in imponderables Basic structures or basic features are indefinable. The legislative entries are the fields of legislation. The pith and substance doctrine has been applied in order to find out legislative competency, and eliminate encroachement on legislative entries. If the theory of basic structures or basic features will be applied to legislative measures it will denude Parliament and State Legislatures of the power of legislation and deprive them of laying down legislative policies. This will be encroachment on the separation of power.
We have no hesitation to reject the contentions under this head.
XII. BOARD'S FUNDS.
It is next argued that the power of the Board to expend its funds is circumscribed by the provisions of Sections 28 and 29 of the Act. It is submitted that the Board can utilise its funds only for any work or scheme for carrying out any of the purposes of the Act. It is contended that if any acquisition is sought to be made without a scheme, the Board cannot spend its funds for payment of the value of the land acquired. Reference is also made to the provisions of Sections 37 and 38 as well as Sections 110 and 112 in this regard. It is submitted that the amendment will lead to an unworkable situation and, therefore, invalid. There is no merit in this contentions. As the learned Advocate General points out that the question of payment by the Board for the acquisition will arise only after the passing of the award in the acquisition proceedings and by that time, a scheme could be framed by the Board and funds could be drawn.
XIII. AMENDMENT WHETHER UNREA-SONABLE.
It is then contended that the amendment is wholly unreasonable in as much as it puts the cart before the horse. According to Learned Counsel, the provisions of the Act show that there should be a scheme when only the Board can seek acquisition of land, in the Statement of Objects and Reasons for the Amendment Act, it is stated that it is not practically possible to frame a scheme and get it sanctioned by the Government before the land comes into possession of the Board and that the provisions of the Act cannot be implemented effectively. Learned Counsel submits that Section 147 of the Principal Act enables the Board to enter any land to make inspection, survey, measurement, valuation or inquiry, to take levels, to dig or bore into the sub-soil, to set out boundaries and intended lines of work, to mark such levels, boundaries and lines by placing marks and cutting trenches or to do any other thing, whenever it is necessary to so for any of the purposes of the Act. We do not find any merit in this contention. The enabling provision u/s 147 of the Principal Act does not invalidate the amendment. If before the amendment the provisions of Section 147 could be invoked and the Board could enter the land for necessary purposes, a fortiori it can do so after the amendment as the necessity for framing a scheme is dispensed with. In fact, the Supreme Court referred to the said section in State of Tamil Nadu and another Vs.
A. Mohammed Yousef and others, while repelling the contention of the Attorney-General based on the necessity to enter upon a land before the framing of a scheme. The Section does not, in any way, conflict with the other provisions of the Act. The argument that the amendment is wholly unreasonable and arbitary is built up as follows: Unless a scheme is framed by the Housing Board the owners of the lands sought to be acquired will not be able to put forward their objections effectively. The Supreme Court emphasised in State of Tamil Nadu and another Vs. A. Mohammed Yousef and others, the need for framing a scheme so that the land owners can object to the acquisition either on the ground that the land is not suitable for the scheme at all or that another piece of land in the area is more suitable leading to the inference that the proposed acquisition is mala
fide. By virtue of the amendment, the land owners will be deprived of an effective opportunity to raise their objections. There is no basis for this apprehension. The opportunity provided by Section 5A of the Land Acquisition Act remains intact and the Amendment Act does not disturb the
same. For the purpose of issuing a Notification u/s 4(1) of the Land Acquisition on Act, the framing of a scheme is not a condition precedent. In Arnold Rodricks and Another Vs. State of Maharashtra and Others, , a Constitution Bench of the Court ruled that there is no law that requires a scheme to be prepared before issuing a Notification u/s 4 or Section 6 of the Land Acquisition Act. The Supreme Court has in several cases indicated what should be the contents of Notification u/s 4(1) of the Land Acquisition Act in order to afford an effective opportunity the land owners to make their representations u/s 5A of the Act. Learned Counsel for the Petitioners relied on the ruling in Munshi Singh and Others Vs.
Union of India (UOI), . It was held in that case that the words in the Notification u/s 4(1) that the land is needed for "planned development of the area" are not sufficient to satisfy their requirements of law and particulars of the public purpose for which the land is required must be given.
The learned Advocate General has drawn our attention to the decision of a Constitution Bench of the Supreme Court in Aflatoon and Others
Vs. Lt. Governor of Delhi and Others, wherein the question is discussed at length and the rule in Munshi Singh and Others Vs. Union of India (UOI), distinguished. The Court said:
(5) Section 4 of the Act says that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a Notification to that effect shall be published in the official Gazette and the Collector shall cause public notice of the substance of such Notification to be given at convenient places in the said locality. According to the Section, therefore, it is only necessary to state in the Notification that the land is needed for a public purpose. The wording of Section 5A would make it further clear that all that is necessary to be specified in a Notification u/s 4 is what the land is needed for a public purpose One reason for specification of the particular public purpose in the Notification is to enable the person whose land is sought to be acquired to file objection u/s 5A. Unless a person is told about the specific purpose of the acquisition, it may not be possible for him to file a meaningful objection against the acquisition u/s 5A this Court has as laid down that it is necessary to specify the particular public purpose in the Notification for which the land is needed or likely to be needed as, otherwise, the matters specified in Sub-section (2) of Section 4 cannot be carried out. In Munshi Singh and Others Vs. Union of India (UOI), the Court said:
It is apparent from Sub-section (2) of Section 4 that the public purpose which has to be stated in Sub-section (1) of Section 4 has to be particularised because, unless that is done, the varies matters which were mentioned in Sub-section (2) cannot be carried out and if the public purpose started in Section 4(1) is planned development without anything more, it is extremely difficult to comprehend how all the matters set out in Sub-section (2) can be carried out by the officer concerned.
We think that the question whether the purpose specified in a Notification u/s 4 is sufficient to enable an objection to be filed u/s 5A would depend upon the facts and circumstances of each case.
In Arnold Rodricks and Another Vs. State of Maharashtra and Others, this Court held that a Notification u/s 4 of the Act which stated that the land was needed for "Development and utilisation of the said lands as an industrial and residential area" was sufficient specification of public purpose.
In the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. Unlike in the case of an acquisition of a small area, it might be practically difficult to specify the particular public purpose for which each and every item of land comprised in the area is needed.
Another Constitution Bench said in Pt. Lila Ram Vs. The Union of India and Others, thus:
4, Mr. Iyangar on behalf of the Appellant has at the outset contended before us that the so-called public purpose, namely, "for the execution of the Interim General Plan for the Greater Delhi" is vague and as such the Notification is liable to be quashed. Reliance in this context has been placed by the Learned Counsel upon the case of Rajpal Bhiraram Vs. The State of Maharashtra, Apart from that, we are of the view that the public purpose mentioned in the Notification, namely, for the execution of the Interim General plan for the Greater Delhi is Specific and does hot suffer from any vagueness. It is significant that the land covered by the Notification is not a small plot but a huge area covering thousands of acres. In such cases it is difficult to insist upon greater precision for specifying the public purpose because it is quite possible that various plots covered by the Notification may have to be utilised for different purposes set out in the Interim General Plan.
The case of Munshi Singh, it may also be pointed out was considered by the Constitution Bench of this Court in the Case of Aflatoon and Others
Vs. Lt. Governor of Delhi and Others, and it was observed that in the case of acquisition of a large area of land comprising several plots belonging to different persons the specification of the purpose can only be with reference to the acquisition of the whole area. Unlike in the case of acquisition of a small area, it might practically be difficult to specify the particular public purpose for which each and every item of land comprised in the area is needed. this Court in that case upheld the validity of the Notification for the acquisition of land for "the planned development of Delhi".
In a subsequent unreported case Ratni Devi v. Chief Commr. M.P. Nos. 332 and 333 of 1971 decided on 13-4-1975 (SC) this Court reiterated after referring to Alatoon's case that acquisition of land for the planned development of Delhi was for a public purpose.
In the circumstances, we find no merit in the contention and reject the same,
XIV. RETROSPECTIVE OPERATION.
The next ground of attack is directed against Section 7 of the Amendment Act. That Section is the validation provision. It reads:
(7). Validation:- Notwithstanding anything contained in the Principal Act or in any other law for the time being in force or in any judgment, decree or order of any Court or tribunal or other authority, any proceeding which has been taken by the Tamil Nadu State Housing Board or by the State Government or by any authority under the Principal Act read with the provisions of the Land Acquisition Act, 1894, (Central Act I of 1894) before the 10th January, 1992, for acquiring any land, before framing any housing or improvement scheme under the Principal Act, including any such proceeding pending before any Court or tribunal or other authority on the 10th January, 1992, shall be deemed to be, and shall be deemed always to have been, validly taken in accordance with law, as if the Principal Act, as amended by this Act, had been in force at all material times when such proceeding was taken and no suit or other legal proceeding shall be maintained or continued against the Tamil Nadu State Housing Board or the State Government or any other authority whatsoever on the ground that such proceeding was not taken in accordance with law.
The argument is that the Section directly overrides the judgment of the Supreme Court in State of Tamil Nadu and another Vs. A. Mohammed Yousef and others, and is ultra vires the powers of the Legislature. It is also submitted that the Amendment Act should not have been made retrospective as the Court had already pronounced the invalidity of a Notification for acquisition before the framing of a scheme by Hosing Board and struck down the same.
There is no merit in the contention. The power of the Legislature to pass enactments retrospectively is beyond challenge. In 1963, the Madras Legislature enacted the Madras Urban Land Tax Act, 1963 which came into force on 1.6.1963. this Court struck down the Act on the ground that it violated the provisions of Article 14, Constitution of India, because the charging Section of the Act levied the tax on urban land hot on the market value but on the average value of the lands in the locality known as a sub-zone. The Legislature passed a new Act omitting the provisions for fixation of average market-value with retrospective effect from 1.7.1963. The validity of the new Act was challenged. A Full Bench of this Court struck down Section 6 of the Act as violative of Articles 14 and 19(1)(f) of the Constitution. The matter was taken on appeal to the Supreme Court. One of the Contentions was that the retrospective operation of the law would make it unreasonable. The Court repelled it in the following words:
We are unable to accept the argument of the Petitioners as correct. It is not right to say as a general proposition that the imposition of tax with retrospective effect per se renders the law unconstitutional. In applying the test of reasonableness to a taxing statute it is of course, a relevant consideration that the tax is being enforced with retrospective effect but that is not conclusive in itself. Taking into account the legislative history of the present Act we are of opinion that there is no unreasonableness in respect of the retrospective operation of the new Act. It should be noticed that the Madras Act of 1963, came into force on 1st July, 1963 and provided for the levy or urban land tax at the same rate as that provided under the new Act. The enactment was struck down as invalid by the judgment of the Madras High Court which was pronounced on the 25th March, 1966. The Legislature, by giving retrospective effect to Madras Act 12 of 1966, that the urban land must be taxed on the date on which the 1963 Act came into force the new Act cured the defect from which the earlier Act was suffering.
(13). In this context a reference may be made to a recent review of retrospective legislation in the United States of America; ''It is necessary that the Legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called "small repairs" Moreover, the individual who claims that a vested right has arisen from the defect is seeking a windfall since had the Legislature's or administrator's action had the effect it was intended to and could have had, no such right would have arisen. Thus, the interest in the retrospetive during of such a defect in the administration of Government outweight the individual's interest in benefiting from the defect.... The Court has been extremely reluctant to override the legislative judgment as to the necessity for retrospective taxation, not only because of the paramount Governmental interest in obtaining adequate revenues, but also because taxes are notin the nature of a penalty or a contractural obligation but rather a means of apportioning the costs of Government among those who benefit from it. Indeed, as early as 1935, one commentator observed that "arbitrary retroactivity" may continue... to rear its head in tax briefs, but for practical purposes, in this field, it is as dead as wager of law.
(Charless B. Hochman in 73 HLR 692 at p.705.)
(14). In view of the legislative background of the present case we are of opinion that the imposition of the tax retrospectively from 1st July, 1963, cannot be said to be an unreasonable restriction. We, therefore, reject the argument of the Petitioners on this aspect of the case.
(Vide The Assistant Commissioner of Urban Land Tax and Others Vs. The Buckingham and Carnatic Co. Ltd., etc., .
In Shri Prithvi Cotton Mills Ltd. and Another Vs. Broach Borough Municipality and Others, already referred to, the Court said that if the Legislature had power over the subject matter and competence to make a valid law, it can, at any time, make such a valid law and make it retrospectively so as to bind even past transactions. In Srimati Kanta Kathuria Vs. Manak Chand Surana, the Court ruled thus:
It seems that there is a settled legislative practice to make validation laws. It is also well recognised that Parliament and the Legislatures of the States can make their laws operate retrospectively. Any law that can be made prospectively may be made with retrospective operation except that certain kinds of laws cannot operate retrospectively.
The apprehension that it may not be a healthy practice and this power might be abused in a particular case are again no grounds for limiting the powers of the State Legislature.
Once it is found by us that the Legislature has acted within its powers and changed the basis of the Principal Act, it is entitled to make it restrospectively. The necessary consequence is to validate the proceedings for acquisition taken earlier as the amended provisions are deemed to have been in the statute from 22.4.1961. (Vide Sunder Dass Vs. Ram Prakash, . The Court is bound to give effect to the plain meaning of the words of the State unmindful of the consequences. The learned Advocate General has drawn our attention to the following passages in Principles of Statutory Interpretation by Justice G.P. Singh (5th Edition): when the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of consequences. The rule stated by TINDAL, C.J. in Sussex Pesrags case 1844) IIC1&F 85, P.143 is in the following form: ""If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone insuch cases best declare the intent of the law giver; The rule is also stated in another form: ""When a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself The results of the construction are then not a matter for the Court, even though they may be strange or surprising unreasonable or unjust or copressives"". "Again and again said Viscount Simonds, L.C." this Board has "insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used".
And said Gajendragadkar, J. ""If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act....
It is no doubt true that after a statute is amended, the statutes thereafter is to be read and construed with reference to the new provisions and not with reference to provisions that originally existed.
The only limitation on the power of the Legislature is that by such a retrospective legislation, as individual decision inter partes cannot be affected. In other words, the Respondents cannot by virtue of the Amendment Act contend that the Notification in G.O. Ms. No. 847, Housing and Urban Development, dated 31-5-1983 by which the lands of Mohammed Yousuf in R.S. No. 543/3, Village Road, Nungambakkam, Madras were sought to be acquired has become valid. If there is any other case in which a similar Notification has been quashed and the judgment of the Court had become final before the Amendment Act, the same principle will apply. But none of the Petitioners before us has claimed the benefit of the aforesaid exception and contended that the validation provision is not applicable to them, Hence, we reject this contention of the Petitioners.
XV INDIVIDUAL CASES:
Having come to the conclusion that the Amendment Act is valid, we proceed to consider the individual contentions urged in some of these cases.
W.P. 10674 of 1992: The only prayer in the writ petitions is to declare the Amendment Act as illegal, void, unconstitutional and unenforceable.
Though there is no other prayer, Learned Counsel contends that the Court can, on the facts, consider the validity of the Notification pertaining to the Petitioner's lands and grant relief to it. According to him the Court can always mould the relief to be given to the party though it is not expressly prayed for by him.
The Petitioner owns several units for manufacturing cycles and accessories. At the request of the Petitioner, the State Government initiated proposals to acquire an extent of 66.91 acres of land in Ambattur as required by it but could only acquire 21.42 acres and place at its disposal.
The Petitioner purchased at huge cost an extent of 19 grounds 825 sq.ft. in R.S. No. 67-1 (Part), Egmore. The Petitioner got a layout sanctioned in L.A. 18/62. The land was intended for providing housing accommodation to the staff of the Petitioner company. The Government by Order in G.O. Ms. No. 554, dated 25-4-1986 exempted the said lands from the provisions of the Tamilnadu Urban Land (Ceiling and Regulation) Act.
The Petitioner constructed two residential buildings at a huge cost and got sanction for constructing other buildings. The State Government issued G.O. Ms. No. 1018, dated 20-7-1988 u/s 4(1) of the Land Acquisition Act that the land is needed for the public purpose to wit for development of the area for taking up a Housing Scheme by Tamil Nadu Housing Board. After an enquiry u/s 5A, the Government issued a declaration u/s 6 of the Act in G.O. Ms. No. 911 dated 9-9-1989.
The Petitioner filed W.P. No. 13577 of 1989 for quashing the two G. Os. Pending the disposal of the same, the Government, by its letter No. 56420/G1/89-5 dated 4-10-1990 informed the Petitioner that it has ordered the exclusion of an extent of 8 grounds 1895 sq.ft. with the buildings thereon from the acquisition proceedings leaving a balance of 9 grounds 1556 sq.ft. of vacant land. By order dated 23-10-1991, this Court allowed the writ petition following the ruling in The State of Tamil Nadu and Another Vs. A. Mohammed Yousuf and Others, and quashed the Notifications. The Government claims to have filed an appeal challenging the said judgment. The Petitioner represents that it has not received any notice so far in the appeal. This writ petition has been filed by the Petitioner on the apprehension that the Government Would take steps to have the order in W.P. 13577 of 1989 set aside on the basis of the Amendment Act. In view of the aforesaid facts, the only prayer which the Petitioner could make in this petition is to declare the Amendment Act invalid. That prayer will have to be rejected by us in view of our conclusion.
The alternative prayer now made before us orally is more or less based on a rule of estoppel. The only argument advanced in support of the same is that the Government having granted exemption from the provisions of the Urban Land Ceiling Act and sanctioned the lay-out and building plans cannot acquire the land under the Land Acquisition Act. Reliance is placed on the judgment of the Supreme Court in Ghaziabad Sheromani Sahkari Avas Samiti Ltd. and another etc. Vs. State of U.P. and others etc., . On the facts of the case the Supreme Court held that the grievances of the members advanced through their co-operative so-cieties were genuine and they should not be denied residential accommodation for which they have taken effective steps before the acquisition was notified and directed the deletion of their lands from the Notification. The decision rested entirely on the peculiar facts of the case and it will not help the Petitioner herein.
In any event, we do not want to conclude that issue here. If there is an appeal against W.P. No. 13577 of 1989, the Bench which hears the same may consider the said question, if raised by the Petitioner. If there is no appeal against the judgment in that writ petition, and it has become final, the Petitioner will have the benefit of it notwithstanding the Amendment Act as already pointed out by us in paragraph 38 Supra.
Hence, we leave open the question as to the validity of the Notification in G.O. Ms. No. 1018 dated 20.7.1988 and the declaration in G.O.
Ms. No. 911 dated 9.9.1989. We dismiss this Writ Petition No. 10674 of 1992 upholding the va-lidity of the Amendment Act.
W.P. Nos. 2059, 5765, 5904 and 19154 of 1992 and 8806, 10812, 12192, 12271, 17515 and 19185 of 1993: In all these cases, the only contentions that the Amendment Act is invalid, though in W.P. No. 19185 of 1993 the prayer is to quash the Notification u/s 4(1) and the declaration u/s 6 of the Land Acquisition Act. No. other argument was advanced in that case to invalidate the Notification and the Declaration. In view of our conclusion, these petitions are dismissed.
W.P. Nos. 5374 and 5376 of 1990: In those two petitions, the Notification u/s 4(l) and Declaration u/s 6 are challenged. The two Petitioners in W.P. No. 5375 and the sole Petitioner in W.P. 5376 are brothers. They are the owners of lands in T.S. Nos. 3/1, 3/3 and 3/5, Block 31, Mambalam, Madras. Before the introduction of the Urban Land Ceiling Act, one of them applied for sanction of a building plan to the Corporation of Madras. A plan for sub-division of the land was also submitted. In 1983, one of the Petitioners was favoured with an order of exemption from the provisions of the Urban Land Ceiling Act with respect to T.S. No. 3/3. A building plan was sanctioned. The impugned Notification u/s 4(1) was published on 26.8.1987 in G.O. Ms. No. 1129, Hosing and Urban Development, dated 30th July, 1987 for the public purpose to wit for Housing Board. After enquiry u/s 5A, the Declaration was published on 14.9.1988 in G.O. Ms. No. 1237 dated 14.9.1988 followed by notices under Sections 9(3) and 10 dated 19.3.1990. The writ petitions are filed on 24.4.1990 after receipt of such notices. There is no explanation in the affidavits for the inordinate delay in approaching the Court to challenge either the Notification or the Declaration under the Act. Obviously, the Petitioners were inspired by The State of Tamil Nadu and Another Vs. A. Mohammed Yousuf and Others,
Anyway, apart from the contentions against the validity of the Amendment Act, the Senior Counsel appearing for the Petitioners urged only two points for consideration. According to him, the lands of the Petitioners are small well developed extends and acquisition thereof is not contemplated under the Housing Board Act. There is no substance in the contention. Now that we have upheld the validity of the Amendment Act, the provisions of the Land Acquisition Act should alone be considered. Under that Act, the extent of the land sought to be acquired is irrelevant.
The only question is whether the purpose of acquisition is a public purpose If the requirements of the Act and the Rules are fulfilled, the Petitioners cannot object to the acquisition that their lands are well developed small extents.
The second contention is that an adjacent property belonging to a school forming nearly one third of the total extent proposed to be acquired was excluded. Thus, the scheme is mutilated and, therefore, the proceedings have lost -their validity. There is no substance in this contention also.
The validity of the acquisition does not depend on any scheme. In fact no scheme has yet been framed by the Housing Board. It is not the contention of the Petitioners that there cannot be a housing scheme of any kind with the remaining lands. We have no hesitation in rejecting both the contentions. The Writ Petitions deserve to be dismissed.
XVI. CONCLUSION.
In the result, Writ Petition Nos. 5375 and 5376 of 1990, 2059, 5765, 5904, 10674 and 19154 of 1992 and 8806, 10812, 12192, 12271, 17515 and 19185 of 1993 are dismissed. There will be no order as to costs.