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TMI Blog2016 (3) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... It is the owner of a hotel doing business in the name and style of Cidade de Goa. The said hotel has been constructed on land owned and possessed by the respondent. Sometime in November 1978, the third respondent addressed a letter to the Government to initiate acquisition proceedings under the Land Acquisition Act, 1894 (hereinafter referred to as 'the Central/Principal Act') so as to acquire land covered by Survey Nos. 803 and 804 (new nos.246/2 and 245/2) located within the area of Gram Panchayat Taleigao. The said land is contiguous to the plot(s) owned by it on which the hotel was located. A notification under Section 4 of the Central/Principal Act was issued on 29.10.1980 declaring that the land covered by Survey Nos.803 and 804 was needed for the public purpose of tourism development. 4. As the acquisition of the land was to be made under Part VII of the Principal Act, there was an enquiry held as contemplated under Section 40 of the Act which was followed by an agreement dated 26.10.1983 as required under Section 41 of the Act. The opening paragraphs and Clauses 3, 4 and 6 of the agreement would require specific notice and therefore are being extracted herein below: "WHE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t exceed six years. (iv) The Company shall keep at all times and maintain the said land and the amenities created thereon, in good order and condition to the satisfaction of the Government or any officer or officers authorised by the Government. (v) The Company shall maintain all records of the Company properly and supply to the Government punctually any information as may from time to time be required by the Government. (vi) The Company shall not use the said land or any amenities created thereon for any purpose which in the opinion of the Government is objectionable. (vii) The Company shall conform to all the laws and the rules and guidelines made by the Government from time to time regarding preservation of ecology and environment. (viii) The Company shall never construct any building or structures in the acquired land. Prior approval of Eco-Development Council of the Government of Goa, Daman and Diu will be obtained before undertaking activities for its development, besides other statutory requirements under the existing laws. (ix) The public access/road to the beach shall not be affected or obstructed in any manner. 6. In case the said land is not used for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urvey No.803. Thereafter, construction was raised by the third respondent inter alia on about 1,000 square mtrs. of land covered by Survey no.803 (246/2). 7. The aforesaid construction raised and completed on the land covered by Survey No.803 (246/2) came to be challenged before the Goa Bench of the Bombay High Court, inter alia by the present writ petitioner. By judgment and order dated 25.04.2000, the challenge raised was upheld and the construction made by the third respondent was ordered to be demolished and the land resumed. 8. Aggrieved, the third respondent challenged the said order of the High Court by instituting Civil Appeal Nos.4154-4156 of 2000 before this Court which was dismissed on 20.1.2009 with the following operative directions. "(i) The appellants are allowed three months' time to demolish the extended portion of the hotel building which was constructed on 1000 sq m of Survey No. 803 (new No. 246/2) and, thereafter report the matter to the Development Authority which shall, in turn, submit a report to that effect to the Goa Bench of the Bombay High Court. (ii) If the appellants fail to demolish the building and report the matter to the Development Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modifications made in the agreement, shall come into force from the date on which the original agreement with the Company was executed under this section and any action taken or things done under the modified agreement, shall, for all purposes, be deemed and to have always been done or taken in accordance with the original agreement. (8) Notwithstanding anything contained in any judgment, decree or order of any Court, Tribunal or any other authority, if, in any agreement entered into between the Government and the Company, there be any clause prohibiting the Company to construct any building or structure in the acquired land, such clause shall deemed to have been deleted with retrospective effect from 15-10-1964. (9) No suit or other proceeding shall be instituted, maintained or continued in any Court or before any Tribunal or other authority for cancellation of such permission or for demolition of buildings which were constructed after obtaining the permissions from the Statutory Authorities and have been validated under this section, or for questioning the validity of any action taken or things done or permission granted in pursuance of the original agreement as modified and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry agreement which deleted clause 4 (viii) of the original/principal agreement in the following manner: "1)That in the Principal Agreement, in Condition 4, clause (viii) shall be deemed to have been deleted with retrospective effect from 26/10/83 and the Principal Agreement shall be so read and construed as if in condition 4, clause (viii) never existed in the Principal Deed w.e.f. 26/10/1983. In condition 6 of the Principal Agreement, for the expression "as hereinafter recited", the expression "namely tourism development project including construction of hotel" shall be substituted. That save as varied as hereinbefore provided in the Principal Agreement, all terms and conditions thereof shall continue to be binding on the parties and shall be in full force and effect." 12. It is the validity of the aforesaid Amendment Act that has been questioned by the petitioner, a non-governmental organization, in the present writ petition. To complete the narration of facts, reference may be made to the Land Acquisition (Goa Amendment) Ordinance that was promulgated with effect from 28.02.2009 and thereafter replaced by the impugned Legislation requiring the challenge in the writ petition t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the acquisition which may not have been envisaged at the stage of compliance with Sections 39, 40 and 41 of the Act stands altered by the State amendment. Under the Principal Act it was not permissible to modify/alter any terms of the statutory agreement under Section 41. The amended provisions which permit such modification/alteration are therefore clearly repugnant to the Principal Act. In the process not only a scheme which is in direct conflict with the existing scheme under Part VII is introduced, but the coercive machinery of land acquisition is permitted to be brought into force beyond what was contemplated under the Principal/Central Act. In this regard it is specifically pointed out that Section 41 (6) permits construction contrary to the conditions of the statutory agreement; similarly Section 41 (7) permits modification of the agreement that too retrospectively whereas Section 41 (8) deletes the clause prohibiting the company from constructing structures in the acquired land in the statutory agreement executed under Section 41. Section 41(9), it is submitted, interferes with the exercise of the judicial power which is impermissible having regard to the principle of Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amendment only removes the embargo on construction by deleting Clause 4 (viii); in fact it really facilitates construction for purpose of the hotel. 20. Alternatively, it is urged that for the purpose of Article 254 of the Constitution the repugnancy between State and the Central Law must be in respect of "Law" enacted by the State Legislature and the Parliament. A subordinate legislation or an agreement, which by a legal fiction is given the effect of law (e.g. under Section 42 of the Act), does not come within the scope of Article 254. It is further urged that the language of Section 42 makes it clear that it is only the terms of an agreement under Section 41 which deals with the rights of the public to use the work, which is deemed to be a part of the Act. The object behind Section 42, it is contended, is to make such part of the agreement which pertains to the user of the work by the public enforceable in law. In this regard the findings recorded in the earlier judgment of this Court (para 57) to the effect that the facility developed by the third respondent on the acquired land was not meant for the general public was specifically relied upon. It is further pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative act for that would amount to an encroachment on the judicial powers. However, the legislature would be competent to pass an amending or a validating act, if deemed fit, with retrospective effect removing the basis of the decision of the Court. Even in such a situation the courts may not approve a retrospective deprivation of accrued rights arising from a judgment by means of a subsequent legislation [Madan Mohan Pathak and Another vs. Union of India and Others[(1978) 2 SCC 50]]. However, where the Court's judgment is purely declaratory, the courts will lean in support of the legislative power to remove the basis of a Court judgment even retrospectively, paving the way for a restoration of the status quo ante. Though the consequence may appear to be an exercise to overcome the judicial pronouncement it is so only at first blush; a closer scrutiny would confer legitimacy on such an exercise as the same is a normal adjunct of the legislative power. The whole exercise is one of viewing the different spheres of jurisdiction exercised by the two bodies i.e. the judiciary and the legislature. The balancing act, delicate as it is, to the constitutional scheme is guided by well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronouncement given by a court of law would not be binding, as the legislature does not possess that power. A decision of a court of law has a binding effect unless the very basis upon which it is given is so altered that the said decision would not have been given in the changed circumstances. 27. Here, the question before us is, whether the impugned Act has passed the test of constitutionality by serving to remove the very basis upon which the decision of the High Court in the writ petition was based. This question gives rise to further two questions - first, what was the basis of the earlier decision; and second, what, if any, may be said to be the removal of that basis? 28. In the earlier decision of the High Court, it was found that licence to construct the building up to 80 feet was repugnant to the Zonal Regulations framed under Section 13 of the Planning Act which provided a maximum height of a new building as 55 feet. Thus, the provision of the Zonal Regulations which provided maximum height of 55 feet in case of a new building was, therefore, the basis upon which the High Court proceeded to conclude that the construction of the building violated the prescribed norms. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicated therein, is repugnant to the provisions of Section 41 and the terms of the agreement which are deemed to be a part of the Act under Section 42. 27. In M. Karunanidhi vs. Union of India[(1979) 3 SCC431] and Kanaka Gruha Nirmana Sahakara Sangha vs. Narayanamma (Smt) (since deceased) by Lrs. and Others[(2003) 1 SCC 228] it was held that for repugnancy to arise the following conditions must be satisfied: (a) There is clear and direct inconsistency between Central and State Act. (b) Such inconsistency is absolutely irreconcilable. (c) Inconsistency is of the nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other. 28. We do not see how repugnancy between the two legislative exercises on the principles laid down in M. Karunanidhi (supra) and Kanaka Gruha Nirmana Sahakara Sangha (supra) can be said to exist in the present case. Section 41 of the Principal Act and the terms of the agreement executed thereunder (even if the latter is understood to be 'Law' enacted by the competent legislature for the purpose of Article 254) are silent with regard to modification/va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise undertaken was more broad based than what the petitioners would like us to hold. In fact, there is a detailed reference, by names, in the said Cabinet decision to several other groups and corporations who are similarly situated as the third respondent.
31. Similarly, the plea of violation of the principles of Rule of Law and judicial review, urged on behalf of the petitioners, would not merit any serious consideration as the provisions of Sections 41(6) to (9), introduced by the State Amendment insofar as Court decrees/orders is concerned, are incidental and consequential provisions to an Amendment Act validating actions that had earlier received judicial disapproval.
32. For all the aforesaid reasons we find no merit in the writ petition. We, accordingly, dismiss the same though without any cost and uphold the validity of the Land Acquisition (Goa Amendment) Act, 2009 [Act 7 of 2009].
O R D E R
In view of the judgment rendered in Writ Petition (C) No.131 of 2009 titled as Goa Foundation & Anr. vs. State of Goa & Anr., decided on 29.03.2016 nothing survives in the contempt petition and the same is accordingly disposed of. Rule of notice is discharged. X X X X Extracts X X X X X X X X Extracts X X X X
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