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TMI Blog2009 (9) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... eported 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 - Civil Appeal Nos. 2650-2652 of 1998,Civil Appeal No. 3162 of 1998 - - - Dated:- 9-9-2009 - V. Sirpurkar, Harjit Singh Bedi And J. M. Panchal,JJ. JUDGMENT Background of Appeals 1. This judgment will dispose of Civil Appeal Nos. 2650-2652 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, 2121 of 1999, 2113 of 1999, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nafter referred to as `LDA' 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 (L/A) 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 LDA. 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the Development Authorities for the implementation of various housing schemes, the declaration under Section 6 were made 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 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 on after September 24, 1984 (the date of amendment) but before January 11, 1989 (the date of judgment of the Supreme Court) and the declaration under Section 6 had been issued either simultaneously or at any time after the application in the Gazette of the said notification under Section 4(1). Sections 2, 3 and 4 of the said Validating Act were as under:- 2. Amendment of Section 17 of Act No. 1 of 1894:- In Section 17 of the Land Acquisition Act, 1894 as amended in its application to Uttar Pradesh, here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the invalidity of the land acquisition in issuance of the Section 4 and Section 6 notification simultaneously, was cured by this Act, which was made applicable with retrospective effect. It was not with an intention to wipe out the judgment of this Court in the case of Radhey Shyam (cited supra). Validity of the Validating Act also came before this Court in Meerut Development Authority Vs. Satvir Singh Ors. reported in 1996(11) SCC 462. There, 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 specifically observed in that case:- It is not in dispute that the State Amendment Act 5 of 1991 was enacted or reserved for consideration of the President and received the assent of the President on 26.2.1991 and the Act was published in the Gazette on 27.2.1991. It is to be seen that as regards simultaneous publication of the 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment 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 Validation Act particularly after the decisions of Hon'ble 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 12. Before this Court also, prolonged arguments were 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 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 LDA, Shri Dinesh Dwivedi, Learned Senior Counsel appearing on behalf of State of Uttar Pradesh, as also other Learned Counsel like Shri Manoj Swarup, Shri Anil Kumar Sangal, Shri C.D. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 judgment, on which the said action was invalidated, and since the Validating Act of 1991 did not remove the basis or foundation of the aforementioned 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 reported in 1995 (6) SCC 16. 2. ITW Signode India Ltd. Vs. Collector of Central Excise reported in 2004(3) SCC 48. 3. Bakhtawar Trust Vs. M.D. Narayan Ors. reported in 2003 (5) SCC 298 4. Madan Mohan Pathak Vs. Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to highlight the basic difference in Section 4 and Section 6 by contending that while in the former, there is no declaration required, in the latter, first the declaration would come and thereafter, the notification thereof would come under Section 6(2) of the Act. It was, therefore, pointed out that what was sought to be seen is the date of declaration under Section 6 of the Act and not its publication and thereby, the Learned Senior Counsel pointed out that since the declaration under Section 6 of the Act was made on 4.12.1984, i.e., before the date of publication of the notification, therefore, the same is invalid. The judgment in Khadim Hussain vs. State of U.P. Ors. reported in 1976(1) SCC 843 was relied upon. Number of other cases were relied upon to suggest that the law required in case of Khadim Hussain vs. State of U.P. Ors. (cited supra) was still good law and held the field. 15A. The Learned Senior Counsel also contended that even otherwise, the language of the Validating Act and more particularly, of the proviso added to Section 17(4) of the principal Act could not remove or cure the defect. It was also contended that casus omissus cannot be supplied by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he explanation that power given to issue Section 4 notification is without any guidelines. Learned Counsel further relied on the case of Anwar Ali Sarkar v. State of U.P. reported in AIR 1952 SC 75 and contended that the said decision which was given by a Larger Bench of this Court has remained undisturbed. The stress of Learned Counsel is on Article 14 of the Constitution and he contended that the Validation Act allowed the State to discriminate and as a result, the State Government allowed the notification pertaining to Ujariyaon Part-III Scheme to lapse while the notifications pertaining to Ujariayon Part-II Scheme were allowed to get protection of the Validation Act and, therefore, the Validation Act itself is hit by Article 14. The Learned Counsel, as regards the Constitutional validity of Section 17 (1) to 17 (4), contends that the guidelines on urgency or emergency in Section 17 did not furnish a clear and definite guideline and consequently the State Government discriminated by arbitrarily invoking these provisions in some cases while doing so in other cases of similar nature. It is for this purpose that Anwar Ali Sarkar's case and State of Punjab v. Gurdial Singh repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f by this Court on number of occasions in number of reported decisions. The Learned Senior Counsel for the State, therefore, submitted that the Amending Act, as passed, was perfectly valid, even apart from the argument that it was found to be valid by the two earlier decisions of this Court. As regards the argument of Shri Trivedi that by the newly added proviso the defect was not cured. The Learned Senior Counsel for the State argued that the challenge was based on the phrase, a declaration may be made. Learned Counsel further contended that the plain reading or the literal construction of those words was not correct for the reason that the Legislature which is the author of Section 6(1) is the Central Legislature while the proviso which was introduced was by the Legislature of the State of Uttar Pradesh. Learned Counsel argued that both the Legislatures being different, their choice of words are guided by their own objectives and, therefore, the word made in Section 6(1) of the principal Act and Section 2 of the U.P. Amendment Act can have different meanings depending upon the objectives which either Legislature had in mind while legislating. The argument went further and suggest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing words to make the provisions effective tools to achieve legislative objective and the Courts could not sit with folded hands blaming the draftsmen. As regards the concerned words appearing in the UP Amendment Act, the Learned Counsel suggested that while interpreting, the phrase may be made should be read as may be published in the Gazette. 21. As regards the further arguments on merits, Learned Senior Counsel and, more particularly, the Learned Senior Counsel appearing on behalf of the LDA pointed out that the challenge to the land acquisitions on merits could not survive, particularly, in view of the fact that in all the land acquisitions, possessions were already taken and the awards were already passed. Both the Learned Counsel pointed out that in case of Ujariyaon Housing Scheme Part-III, the Government had shown its bona fides by allowing the notifications therein to lapse and thereby, the interests of the land holders covered in Ujariyaon Housing Scheme Part-III were safeguarded, particularly, because that scheme had not been completed. However, Ujariyaon Housing Scheme Part-II was long back completed and could not be rejuvenated now, finding fault with the process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rulings relied on by the appellants covering this aspect, namely, Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai Ors. reported in 2005 (7) SCC 627 and Union of India Ors. v. Mukesh Hans reported in 2004 (8) SCC 14 were not applicable and were distinct. 22. The appeals were also opposed by respondent No. 9 Avadh School who supported the arguments on behalf of the State of Uttar Pradesh and LDA. The respondent No.9 Avadh School pointed out that the land was granted to it by LDA for 99 years dated 01.12.1995 whereas the Writ Petition challenging the same bearing No. 2220 (L/A)/1996 from which the Civil Appeal No. 2650/1998 arose was filed only later on, in the year 1996. It was pointed out that the respondent-Avadh School had already paid the entire amount due to the LDA. It was also pointed out that the total constructed area on the land is 26,000 square feet. It was urged that considering the laudable objects of the scheme, the school was developed and further considering its progress in the matter of infrastructure and the standard of education, it would be too late to cancel the acquisition of land a portion of which was allegedly allotted by the LDA. 23. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ujariyaon Part-III Scheme were concerned, with that question. 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-III 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-III 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 Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 thousands of people. 27. Relying on Keshav Das v. State of U.P. reported in 1995 (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 construction had been made and completed, the question of urgency and exercise of duty under Section 17 (4) of the Act 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 501 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was made on 04.12.1984 and the said declaration was published in the Gazette on 08.12.1984. It was found that simultaneous notification under Sections 4 and 6 of the Act could not be made and, therefore, the acquisitions were bad, as held in Kashmira Singh Vs. State of U.P. reported in AIR 1987 Allahabad 113 (II/1). Kashmira Singh's judgment was upheld by this Court. It was, therefore, that an Ordinance came to be passed on 27.12.1989 by U.P. Act No. 32 of 1990 which ultimately became an Act on 27.02.1991 being UP Act No.5 of 1991. The Statement of Objects and Reasons made reference to the aforementioned judgment in the Kashmira Singh's case (cited supra) and provided that in large number of cases, declarations under Sections 6 were made simultaneously with publication of notification under Section 4 and the said proceedings were likely to be held void and, therefore, in order to save the scheme, it was decided to amend the Act for validating the proceedings in respect of the notification under Section 4 publication on or after 24.09.1984 but before 11.01.1989. The amendment of Section 17 was brought on the legal anvil by way of a proviso to sub- section (4) thereof which r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation referred to in this case, where principle Nos. 8 and 9 ran thus: [8] In exercising legislative power the Legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the Court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The Legislature can change the character of the tax or duty form impermissible to permissible tax but the tax or levy should answer such character and the Legislature is competent to recover the invalid tax validating such a tax or removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the legislature to enact the law with retrospective effect and authorize its agencies to levy and collect the tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso would operate prospectively and retrospectively from 24.04.1984 (sic 24.9.1984) applying to the previous notifications and declarations but also to the notification and declaration to be published subsequently. Further in paragraph 16, the Court held: 16. It is seen that Section 3 of the Amending Act No.5 of 1991 seeks to validate the illegal declarations made simultaneously with the publication of Section 4 notification and in some cases even prior to the publication of Section 4 notification; it also seeks to validate certain acquisitions envisaged therein. This validation is not illegal. 32. In the same paragraph the Court found that the amendment was not illegal merely because it was brought during the pendency of matter before this Court. The Court also did not find anything wrong with the retrospective operation of the Amendment Act. The Court further in paragraph 19 observed: It is seen that where large extent of land was acquired mere existence of some houses even if they were constructed may be according to the rules or may not be according to the rules; the exercise of power under Section 17 (4) by the Government dispensing with the enquiry does not become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of notification under Section 4 of the Act. We have already pointed out that this Section was also considered specifically in paragraph 7 where it is quoted. Further in paragraph 16 which we have quoted, this question is specifically answered. We, therefore, need not dilate on that issue here. 35. At this juncture, we must note the argument raised in the present case that the declaration under Section 6 of the Act was made on 04.12.1984 but was published on 08.12.1984. Therefore, in reality, the proviso did not actually cure the defect. It is because of the wording used to the effect a declaration under Section 6 in respect of the land may be made either simultaneously with or at any time after the publication in the official Gazette of the notification under Section 4. 36. Learned Counsel pointed out that in the present case, Section 6 declarations were made earlier to the publication of notification under Section 4 of the Act. They further pointed out in proviso again the wording used is declaration may be made. Learned Counsel, therefore, argued that even reading Sections 2 and 3 of the Amending Act, the defect is not cured as the proviso empowers to make a declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt domain and in exercise of the power under Section 17 (4) dispensing with the enquiry under Section 5A to acquire the land under Section 4 (1), the State is entitled to have the notification under Section 4(1) and the declaration under Section 6 simultaneously published so as to take further steps as required under Section 9 of the Act 38. In that case, the notification under Section 4(1) of the Act was published on 12.10.1974 whereas the declaration under Section 6 of the Act was dated 28.09.1974. However, it was published along with Section 4 notification simultaneously. This being the factual situation the argument regarding the prior declaration under Section 6 of the Act must fall to the ground. 39. We are also of the opinion that 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 publication thereof in official Gazette. As such we do not find anything wrong even if the declaration is prior in time and its notification is simultaneous with the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es on this subject have been considered in this judgment. Again in ITW Signode v. Collector of Central Excise reported in 2004 (3) SCC 48 (cited supra), our attention was invited by Shri Trivedi to paragraphs 44 to 46 of this decision which dealt with the question of validity of validating Act and reference is made to Shri Prithvi Cotton Mills Ltd. Vs. Broach Borough Municipality reported in 1969 (2) SCC 283 and M/s. Ujagar Prints and Others (II) Vs. Union of India and Others reported in 1989 (3) SCC 488. There is nothing in these paragraphs which would go counter to the expressions made in MDA's case (cited supra) or the finding that the present Amending Act has removed the defects pointed out in Radhey Shyam's case (cited supra). Of course, this case pertains to the taxing statutes. We do not find anything contrary in the other decisions, namely, S.R. Bhagwat's and Indira Gandhi's case (both cited supra) to which we have already made reference. The other cases, namely, Virender Singh Hooda's case, I.M. Saxena's case, and Janpad Sabha's case (all cited supra) need not be considered in view of what we have held above and further there is nothing in those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Senior Counsel appearing on behalf of the appellants herein was about 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 contentions made in this behalf have already been considered by us in the earlier part of the judgment, where we held that 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. We have already held with reference to the earlier decisions in this behalf that this is not res integra and is partly covered in Mohd. Ali's case (cited supra). In Mohd. Ali's case (cited supra), a reference was made to Khadim Hussain's case (cited supra), where it has been held that a notification under Section 6(2) amounts to the evidence of declaration, which is in the form of an order. The notification is the publication of such dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rport Authority of India Ors. (cited supra), the Learned Senior Counsel relied on the observations made in paragraphs 13 and 16. In paragraph 13, it is stated there that:- What is needed is that there should be a gap of time of at least a day between the publication of the notification under Section 4(1) and of the declaration under Section 6(1). Further in paragraph 16, it is observed that:- What is material is that the declaration under Section 6 should be published in the Gazette after the notification under Section 4(1) was published, i.e., after a gap of at least one day. It will be seen that a reference is made to the decision in the case of Radhey Shyam Nigam (cited supra) in this paragraph, as also to the simultaneous publication of notification under Section 4 and the declaration under Section 6 of the Act. A reference was also made to Section 17(4), as also Section 17(1) A. It is significant to note that later on when the question of validity of the Validating Act came before this Court [which validating provision and proviso to Section 17 (4) were not available in Mohan Singh's case (cited supra), this Court upheld the validity of the Validating Act, refuting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in S.H. Rangappa's case (cited supra) also does not help the appellants herein in view of the different factual scenario, as also because the question of validity of the Validating Act is entirely different from the question of limitation. 46. The Learned Senior Counsel further argued that we should make a reference to the larger Bench and has formulated the questions as under:- 1. Whether the proviso to Section 17(4) inserted by the Amending Act cures the defect pointed out in Radhey Shyam only for the period between 24.9.1984 and 11.1.1989? 2. Whether declaration mentioned in the aforesaid proviso refers to it as understood by Section 6(1) or Section 6(2)? 3. Whether the validation provision in Section 3 of the Amending Act goes beyond the newly inserted proviso inasmuch as:- (h) it cures the defect of publication of the declaration and not making of the declaration. (i) it validates publication of the declaration under Section 6 prior and subsequent to the date of the publication under Section 4(1) of the principal Act. 4. Whether the distinction between declaration simpliciter in Section 6(1) and a published declaration under Section 6(2), pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy been taken, as claimed by the LDA, way back in the year 1985 for which there are documents like Panchanama and the whole township has now come up, persons have built their houses. As far as the sixth point of reference is concerned, we would deal with the same separately in this judgment as we do not agree with the proposition made in that point. Lastly, as held in the cases of Mishri Lal (Dead) by L.Rs. Vs. Dhirendra Nath (Dead) by L.Rs. reported in 1999 (4) SCC 11 and Central Board of Dawoodi Bohra Community Vs. State of Maharashtra reported in 2005(2) SCC 673, the principle of Stare Decisis would apply. In this case, their Lordships referred to observations by Lord Reid and quoted seven principles regarding the binding precedent. They are: (1) The freedom granted by the 1966 Practice Statement ought to be exercised sparingly (the 'use sparingly' criterion) (Jones Vs. Secretary of State for Social Services, 1972 AC 944, 966). (2) A decision ought not to be overruled if to do so would upset the legitimate expectations of people who have entered into contracts or settlements or otherwise regulated their affairs in reliance on the validity of that decision (the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en observed in Para 47, we would not take up the above topic. It was urged by the Learned Counsel that the State Government, though it acquired the possession under Section 17 of the Act, did not pay the 80% of compensation, as required under Section 17 of the Act and on that account, the whole exercise was bad. We do not think that the proposition is correct. It was tried to be established that the sufficient funds were not available with the Government. We would prefer not to go into the factual questions as the High Court has commented upon the same in great details. The tenor of the argument is that Sections 17(3) and 17(3A) of the Act are mandatory and the compensation ought to have been offered, tendered and paid to the land owners before taking the possession. Some documents were referred to in I.A. Nos. 4 and 5 of 2006 to show that LDA did not have the funds and it failed to provide sufficient funds even as late as upto 2004. The further argument was that even if it was assumed that the possession was taken on 21.5.1985, yet the compensation was paid to the concerned persons much later and in some cases, it was never paid. 50. Heavy reliance was placed on the documents w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Learned Senior Counsel 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. A third category cannot be created so as to avoid the payment of compensation. The contention is, therefore, clearly wrong. 51. However, the question is as to what happens when such payment is not made and the possession is taken. Can the whole acquisition be set at naught? In our opinion, this contention on the part of the appellants is also incorrect. If we find fault with the whole acquisition process on account of the non-payment of the 80% of the 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 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who, as the letter of the Special Land Acquisition Officer dated June 27, 1990 shows, failed to make the necessary monies available and who has been in occupation of the said land ever since its possession was taken, to urge that the possession was taken illegally and that, therefore, the said land has not vested in the first respondent and the first respondent is under no obligation to make an award 53. Further, in a judgment of this Court in Pratap Anr. Vs. State of Rajasthan Ors. etc. etc. reported in 1996 (3) SCC 1, similar view was reported. That was a case under the Rajasthan Urban Improvement Act, 1987, under which the acquisition was made using Section 17 of the Act. The Court took the view that once the possession was taken under Section 17 of the Act, the Government could not withdrew from that position under Section 18 and even the provisions of Section 11-A were not attracted. That was of course a case where the award was not passed under Section 11-A after taking of the possession. A clear cut observation came to be made in that behalf in Para 12, to the effect that the non-compliance with Section 17 of the Act, insofar as, payment of compensation is concerned, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso in the manner that we have already done then it would be a case of casus omissus being supplied by the Court. We have already taken all these arguments into consideration. In view of the interpretation given by us to Section 3 and the proviso and the necessity of reading the two provisions in the light of each other, there would be no occasion of supplying casus omissus and the argument in that behalf must fail. 55. Insofar as the validity on the backdrop of Article 14 is concerned, it is true that in paragraph 8 there has been an observation that the validity of the proviso added by the State Legislature by way of an amendment to Section 17 (4) of the Act has been upheld by the two Judge Bench decision in GDA's case (cited supra). However, when we see the rest of the judgment it can be said that no such question was considered. However, the fact remains that in GDA's case (cited supra), the validity was not questioned or doubted and the challenged Section was interpreted and treated to be valid by the Court. When we see the further judgment in MDA's case (cited supra) in the further paragraphs, this Court has approved of the whole amending Act reiterating on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 LDA that only two appeals pertain to Ujariyaon Housing Scheme Part-III 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of UP Anr. v. Synthetics Chemicals Ltd. Anr. reported in 1991 (4) SCC 139, Nirmal Jeet Kaur v. State of Madhya Pradesh Anr. reported in 2004 (7) SCC 558, ICICI 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) SCC 602, Zee Telefilms Ltd. Anr. v. Union of India Ors. reported in 2005 (4) SCC 649, P. Ramachandra Rao v. State of Karnataka reported in 2002 (4) SCC 578, Nand Kishore v. State of Punjab reported in 1995 (6) SCC 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aranjit Lal Chowdhury v. Union of India 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 17(4) of the Act of dispensing with the enquiry under Section 5-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 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 1954 SC 545. 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 Ishwarlal Girdharlal Joshi etc. Vs. State of Gujarat (c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V. Issue of urgency and application 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. 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 mala fides against the authority. No evidence has been brought before the judgment and the High Court has also commented on this. The housing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. 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 non-publication 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 Court'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 fides 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 the society had purchased the land after the issuance of notification. 69. It was urged by Shri Trivedi, Learned Senior Counsel for the appellants that there was a policy to give back 25% of the acquired land to the cooperative societies. This was suggested on the basis of various letters on record, suggesting that LDA was considering the revision. Shri Dwivedi, Learned Senior Counsel for LDA pointed out that once the land was acquired and the possession had been taken, Section 48 did not apply. Besides, according to the Learned Senior Counsel, the policy applied to the cooperative societies, who had land before the acquisition process begins. This was obv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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