IMPORTANT POINT
Proviso to sub-section (4) of Section 17 of the Land Acquisition Act, 1894, introduced by Section 2 of the U.P. Amendment Act 5 of 1991, applies not only to the notifications and declarations simultaneously published after the date of coming into force of the Amendment Act 68 of 1984 but also to the future declarations and it is not invalid.

Headnote:Land Acquisition Act, 1894-Sections 4(1), 6 and 17(4)-Exercise of power under Section 17(4)-Simultaneous publication of declaration under Section 6 alongwith notification under Section 4(1)--Held as not sustainable after Amendment Act 68 of 1984 had come into force-Appeals-Enactment of Land Acquisition (U.P. Amendment and Validation) Act, 1991 introducing proviso to Section 17(4)-Validity of-Whether amendment by proviso to Section 17(4) is valid?-(Yes)-Effect of amendment was to remove defects pointed out by Court and to validate notifications and declarations which otherwise would be invalid.
       Held that the proviso was not happily worded. But a reading of it would clearly give us an indication that the proviso to sub-section (4) introduced by Section 2 of the Amendment Act 5 of 1991 would deal with both the situations, namely, the notifications published on or after September 24, 1984 but before January 11, 1989 but also the declaration to be simultaneously published subsequent thereto. The literal interpretation sought to be put up by Shri Pradeep Misra would defeat the legislative object. Therefore, ironing out the creases we are of the view that the proviso applies not only to the notifications and declarations simultaneously published after the date of coming into force of the Amendment Act 68 of 1984 but also to the future declaration as well. Thus, it could be seen that the proviso would operate prospectively and retrospectively from April 24, 1984 applying to the previous notifications and declarations but also to the notification and declaration to be published subsequently. (Para 12)
       Amendment Act 5 of 1991 was given effect from the date when the Amendment Ordinance was published in the Gazette but the effect of the amendment was to remove the defects pointed out and to validate the notifications and declarations which otherwise would be invalid. Consequently, the retrospective effect was given from the date of the issuance of the Ordinance to the Act and operation retrospectively from the date of judgment. Under those circumstances, we do not find any inconsistency in operation of the Act or invalidity in giving two dates for the respective operation of the provisions of the Act. (Para 16)
       AMENDMENT OF STATUTE-Statutory exercise of constituent power to amend law-When this Court declared a statute invalid-Legislature has no power to over-rule judgment-It has power to amend law by removing defects pointed out by Court and amending law inconsistent with law declared by Court. (Para 9)
       Land Acquisition Act, 1894-Section 17(4)-Exercise of power under-Validity of-Large extent of land acquired-Mere existence of some houses even if they were constructed--Exercise of power u/s 17(4) dispensing with enquiry does not become invalid when there was urgency to take possession of acquired land-Acquisition for planned development of housing scheme is also urgent purpose. (Para 17)
       LAND ACQUISITION-Under U.P. Urban Development Act is not mandatory that entire scheme should be prepared prior to notification u/s 4(1) was published. (Para 18)

ORDER

Substitution allowed.

Leave granted in all the special leave petitions.

2. Notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, the "Act") was published on June 11, 1985. The Government also exercised the power under Section 17(4) of the Act and dispensed with the enquiry under Section 5-A and had the declaration under Section 6 published on June 13, 1985. The publication of substance of the notification in the local newspapers came to be made on July 25, 1985. In August 1985, the respondents filed a batch of writ petitions in the High Court impugning the validity of the notification under Section 4(1) and of the declaration under Section 6 on six grounds. Five of the grounds raised by the respondents were negatived by the High Court as not sustainable but declaration under Section 6 was quashed on the ground that after the Amendment Act 68 of 1984 had come into force w.e.f. September 24, 1984, the simultaneous publication of the declaration under Section 6 along with publication of notification under Section 4(1) was invalid in law. They relied upon the judgment of this Court in State of U.P. & Ors. v. Radhey Shyam Nigam & Ors. etc.1. The respondents filed cross appeals against the findings that were negatived by the High Court in respect of all the other five points. Thus these appeals by special leave.

3. Pending appeals, the Governor exercising the power under Article 213 of the Constitution issued the Ordinance No. 32 of 1990 and the State Legislature enacted the Land Acquisition (U.P. Amendment and Validation) Act, 1991 (UP Act 5 of 1991) which came into force from December 28, 1990, introducing proviso to Section 17(4) of the Act and also by Section 3 thereof validated all the notifications and declarations issued under the Act prior to the date of the judgment of this Court in Radhey Shyam Nigam case (supra). The Ordinance came to be challenged by way of Writ Petition No. 153/96. Thus all the matters tagged are disposed of togather. With a view to satisfactorily resolve the controversy, it is, at the first instance, necessary to dispose of the writ petition.

4. It is seen that this Court in Radhey Shyam Nigam s case had considered the provisions of U.P. Urban Planning and Development Act and the Act. In exercise of power under Section 17(4) of the Act, the appropriate State Government was empowered to issue and get published the notification under Section 4(1) and the declaration under Section 6 of the Act simultaneously. That was upheld by this Court in Smt. Somawanti & Ors. v. State of Punjab & Ors.2. After the Amendment Act 68 of 1984 was brought on statute, sub-section (4) of Section 17 envisages that the authority is empowered to have the declaration under Section 6 published after the publication of the notification under Section 4(1). In other words, the simultaneous exercise of power to get the notification under Section 4(1) and declaration under Section 6 was not valid in law. This Court had held thus :

"It is true that the expression "after the date of the publication of the notification" introduced in Section 17(4) can be explained....changes in Sections 4 and 6 of the Act".

5. It is to be seen that the State Legislature thereafter, has enacted proviso to sub-section (4) as under :

"Provided that where in the case of any land, notification under Section 4, sub-section (1) has been published in the Official Gazette on or after September 24, 1984 but before January 11, 1989, and the appropriate Government has under this sub-section directed that the provisions of Section 5-A shall not apply, 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, sub-section (1)."

6. This proviso was inserted by Section 2 of the State Amendment Act 5 of 1991. Sub-section (3) validated the acquisitions pending as on the date of the judgment of this Court which reads as u

Click Here to Read the rest of this document

1996 Supreme(SC) 1489

Cases Referred (11)