1. The eight petitioners are seeking to quash the notification issued by the first respondent under Sec. 4(1) of the Land Acquisition Act (1 of 1894), for short, “the Act” published in the Guntur District Gazette dated February 17, 1984 acquiring their lands bearing S. Nos. 69-3 to 11, 74-6 to 9 and 75-7 of Appikatla village, on diverse grounds. Eschewing the irrelevant and confining the facts to the points argued at hearing are stated thus: Their lands are situated under an ayacut, viz., Lambadi channel and are fertile having market value at Rs. 40,000/- per acre. They are sought to be acquired for providing house sites to scheduled castes, scheduled tribes and other economically backward classes. The lands of the petitioners, if acquired, would render the rest of the land of an extent of Ac. 50-00 waste, since the drainage pipe would cut off the flow of water into those lands. Some of the petitioners are small farmers and the acquisition is contrary to the policy of the Government that the lands of the small farmers should not be acquired. No local publication of Section 4(1) notification was made. The declaration made under Section 6 is thereby illegal. There is no real urgency in the matter to dispense with the enquiry under Sec. 5-A. The District Collector did not apply his mind and he mechanically acted in dispensing with Sec. 5-A, enquiry.
2. The Government have filed counter-affidavit denying all the allegations made by the petitioners. The notification under Section 4(1) and the substance thereof was published in the locality on 22-2-1984; declaration under Sec. 6 was published on 8-3-1984 and possession was proposed to be taken on 23-3-1984. With a view to delay in taking possession of the land, the writ petition was filed and obtained stay of taking possession. It is stated that the value would be Rs. 20,000/- per acre and not Rs. 40,000/- as contended. It is also stated that the above land was nofified to provide house sites to Harijans, Vadderas, Gowdas, Rajakas, Beyas and Nayibrahmins who are all backward classes. With a view to provide house-sites to all the sections at one convenient place and fresh water availability, the lands in S. Nos. 69, 74 and 75 were selected. This was done with a view to achieve the Government's objective to amalgamate all sections of people to abolish untouchability and to bring them in the main stream of the society. The allegation that the petitioners are small farmers was denied amplisying the individual total holding held by each petitioner and the learned counsel for the petitioners rightly did not pursue this point further. The allegation that the remaining land would become waste also was denied. For the need to exercise the power under Sec. 17(4) it is stated that the beneficieries are living in congested houses in unhygenic conditions and with a view to relieve them of such conditions, the District Collector was of the opinion that the acquisition was of the urgent nature and therefore he dispensed with the enquiry under Section 5-A of the Act. The allegation that the District Collector mechanically dispensed with the enquiry under Section 5-A is denied. Sri Harinath, learned counsel for the petitioners raised the following contentions, viz., (1) The value of the land is more than Rs. 25,000/- and below Rs. 40,000/- per acre. The Collector has no power to notify the lands for acquisition without obtaining prior approval of the Government: (2) The Harijans and other weaker sections have been living in congested areas for a long time. The urgency is not such which does not brook the delay of 30 days. Therefore the enquiry under Section 5-A ought to have been done. The Full Bench in Yadaiah v. Government of AP (1) 1983-1 ALT 233 held that the enquiry under Section 5-A is mandatory. The Government has to form an opinion under Section 17(4) that the urgency is of such nature that it does not brook the delay of 30 days: (3) The Collector has no power to dispense with the enquiry. It is the Government that has got power. In this case the Collector has exercised that power. Therefore it is without authority of law. Even assuming that the District Collector has power, he has to consider the urgency: the case on hand is not of such an urgent one. Therefore it is a clear case that the District collector has not applied his mind but merely followed the instructions issued by the Government to dispense with the enquiry under Sec. 5-A: The dispensing with enquiry under Sec. 5-A is bad in law. (4) He further contended that the enquiry under Sec. 5-A cannot be dispensed with simultaneously with the issue of notification under Section 4(1). It should be done after the publication of the substance and before the publication of Sec. 6 declaration. In support thereof, he relied upon a decision of this Court in Smt. Komala Devi v. State of AP (2) 1984-1 APLJ 80:
3. Sri Ramakrishna, learned Govt. Pleader contended that the majority of the Full Bench in Yadaiah's case (1) has not considered the scope of section 17 in the proper perspective. Reliance by the Full Bench on Narayan v. State of Maharashtra (3) (1977) 1 SCC 133 : AIR 1977 SC 183 and State of Punjab v. Gur Dayal Singh (4) (1980) 2 SCC 471 : AIR 1980 SC 319 is inapplicable to situations arising in our State and the ratio in those two cases laid down altogether under different circumstances does not furnish sound base. The Full Bench decision in Yadaiah's case thereby requires reconsideration. The Andhra Pradesh Amendment Act 9 of 1983 validated all the orders retrospectively with effect from September 12, 1975 declared by the Full Bench to be invalid: thereby the effect of the majority of the Full Bench decision in the construction of Section 17(4) read with Sec. 17(2) was nullified. The amended Act has authorised the District Collector to dispense with the enquiry under Sec. 5-A and take possession of the land within three months from the date of publication under Sec. 4(1) of the Act. Thereby it manifested its intention that the acquisition for providing house sites to poor is treated to be of inherently urgent nature and immediate possession has to be taken within the period of three months as provided for: and if possession is not taken on their own volition within three months, in such cases only the order dispensing with the enquiry under Sec. 5-A shall lapse. In this case possession was proposed to be taken on 23-3-1984 but was stayed. Alternatively it is contended that the District Collector has material regarding the urgency to take immediate possession and the need to dispence with the enquiry under Sec. 5-A and it is stated so in the counter affidavit. There is an order to that effect passed by the District Collector. Therefore the District Collector had considered the relevant facts, applied his mind and ordered dispensing with the enquiry under Sec. 5-A. He also stated that the value of the land is Rs. 20,000/- per acre and therefore there is no need to obtain prior sanction of the Government before issue of notification. Though he cited number of authorities, they are not directly on any of the points. So I am not referring them to shorten undue burden on the judgment. Sri M Ramaiah, learned counsel for beneficieries adopted the above contentions.
4. Sri Harinath, in reply, contended that over-ruling the Full Bench decision being a judicial act, the Legislature in incompetent to nullify the effect thereof by amendment. The Legislature obeyed the law and the amendment was only directed to cure the defect in simultaneous publication and delay in taking possession. There is no express over-ruling with regard to the need to dispense with the enquiry under Sec. 5-A; the nullification by implication cannot be accepted when the Legislature had not expressly done so. In support thereof, he relied on the statement of objects and reasons to introduce Act 9 of 1983 and the decision reported in K.C Dora v. G. Annamanaidu (5) (1974) 1 SCC 567 : AIR 1974 SC 1069, He further put pointed finger on the majority view in Yadaiah's case (1) (supra) that mere existence of urgency is not sufficient: some thing more than the poor residing in unhygenic conditions that exist from times immemorial is necessary to deprive the landholders of their statutory right to object to the acquisition in Sec. 5-A enquiry. The condition of the poor is the bane inflicted by the society and the landholders are not to pay its price. When there is a conflict of interest between the individual landholders and of public, unless public interest so requires that particular land alone is required for acquisition, the resort to acquisition of their land cannot be had. In that light the petitioners have a valuable right to object to and bring to the notice of the authorities that other lands are equally suitable and either of their lands need not be acquired or not suitable. By dispensing with the enquiry under Sec. 5-A, the petitioners have been denied to bring all the material before the land acquisition authority. If the Legislature by amendment intended to deprive the right of the landholders to submit their objections, the Legislature would have expressly stated so in the Amendment Act 9 of 1983 and the omission thereof would manifest the legislative intendment to effectuate the majority view in Yadaiah's case (1) (supra). The majority in Yadaiah's case has held that Section 17(1) and Sec. 17(2) have to be read together and it is only for rarest of rare cases like destruction of houses in fire or natural calamities, the resort to the invocation of urgency clause could be had. Therefore the inpugned action is Vitiated as without authority of law or jurisdiction. In support of the interpretation, he relied on Chatterjee's “Interpretation of Statutes”, 1977 Edition, page 58.
5. Upon the respective contentions, the following questions arise for consideration:
(1) Whether the Collector has jurisdiction to issue notification without obtaining prior concurrence of the Government to acquire the lands?
(2) Whether the District Collector is having power or justified in law to dispense with the enquiry under Section 5-A of the Act?
6. Before embarking on an enquiry into the main question, the points of meniature character could first be disposed of. In G.O.Ms No. 91 Social Welfare (C) Department dated September 16, 1983, the Government have ordered, modifying the earlier Government Memo No. 5092.GI/75 dated December 17, 1975 that the District Collector should obtain the prior approval of the Government before initiating land acquisition proceedings ‘only’ (emphasissupplied) in cases where the cost of the proposed land exceeds Rs. 50,000/- per acre. In view of this G.O the need to go into the question of prior approval became redundant. Therefore the first contention lacks force.
7. The Legislature of Andhra Pradesh, in Amendment Act 22 of 1976, introduced Section 3-A to the Act conferring power on the State Government “to delegate any power or duty” imposed upon them under the Act, to be exercised or discharged by the District Collector as specified in the notification. In exercise thereof, the Government have issued G.O.Ms No. 1378 dated October 15, 1975 delegating the power under Section 5-A and Sec. 17(4) of the Act to the District Collectors. The constitutional validity of Section 3-A was upheld by a Full Bench in Saleema's case (WP No. 3353/76 dated September 26, 1978). The delegation of the power under the above GO was upheld in Ramanna v. The Collector, west Godavari (6) 1977-11 APLJ 289. and Chenchamma v. District Collector, Neliore (7) 1982-2 ALT 14. Accordingly, I hold that the District Collector is competent to exercise the power under Sec. 17(4) to dispense with the enquiry under Sec. 5-A of the Act.
8. Yet another contention raised is that the District Collector has no power to order dispensing with the enquiry under Sec. 5 A Simultaneously with the issue of the notification under Section 4(1) of the Act and it should be done only after the publication under Section 4(1) and before publication of the declaration under Sec. 6. This contention also equally devoid of any substance. There is no inhibition for the District Collector to issue the notification under Sec. 4(1) simultaneously dispensing with the enquiry under Sec. 5-A in exercise of the power under Sec. 17(4). Sec. 4(1) does not prescribe that the direction to dispense with enquiry under Sec. 5-A should be given only after the publication of notice under Sec. 4(1) or its substance thereof in the locality. The District Collector on his finding that there is urgency in the acquisition of the land, before issue of the notification under Sec. 4(1) he has to consider the need thereof and on his satisfying the same, he could pass an order under Sec. 17(4) dispensing with the enquiry under Section 5-A simultaneously and then issue the notification under Section 4(1) and get it published in the District Gazette. This is also the view of the Division Bench of this Court speaking through Subba Rao, C.J (as he then was) in Ramabrahmam v. State of Andhra (8) AIR 1957 AP 450.
9. The main question to be considered is whether the effect of the majority view in Yadaiah's case (1) (supra) has been nullified by Amendment Act, 1983?
Constitutional Goals-Duty of State:
10. In Smt. Indira Nehru Gandhi v. Raj Narain (9) 1975 Supp SCC 1 : AIR 1975 SC 2299 the Supreme Court held that the rule of law, equality of status and opportunity; justice-social, economic and political etc...secured by various provisions of the Constitution are the basic features of the Constitution (Vide para 245, per Mathew, J.). Economic Justice, equality of status and dignity of the individual are assured by the preamble, an integral part of the Constitution (Vide Kesavananda Bharathi v. State of Kerala (10) (1973) 4 SCC 225 : AIR 1973 SC 1461. Article 19(1)(e) of the Constitution provides fundamental rights to every citizen to reside and settle in any part of the territory of India. It encompasses, thereby, in its ambit a right to permanent abode. This right to permanent settlement would be a mirage and a teasing illusion to proletariats hankering below poverty line with scarce economic viability. Article 14 assures equality before law.
11. Rashdall in his “Property: Its Duties and Rights” pages 52-64 approved by Mathew, J. in Kesavananda Bharathi's case (10) in para 1739, has stated that the most that we can claim, as a general principle applicable to all stages of social development, is that without some property or capacity for acquiring property there can be no individual liberty, and that without some liberty there can be no proper development of character. To the same effect, Holland in his “Property: Its duties and rights, pages 183-192, as extracted by Mathew, J. in the same judgment at paragraph 1740, emphasised that persons without property enjoy no sense of background such as would endow their individual lives with a certain dignity. They exist on the surface; they cannot strike roots and establish permanency; Laurence H. Tribe in his “American Constitutional Law” at page 574, as extracted by P.A Choudary, J. in Yadaiah's case (1) (supra) in paragraph 15, “that people who cannot buy bread cannot follow the suggestion that they eat cake people bowed under the weight of poverty are unlikely to stand up for their constitutional right”.
12. Art. 38(1) of the Constitution, in Part IV, enjoins the State to strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political shall be meted out to all sections of the society, and to eliminate inequalities in status by providing facilities and opportunities (Art. 38(2). Article 46 ordains the State to promote the educational and economic interests of the weaker sections of the people with special emphasis of Scheduled Castes and Scheduled Tribes and to protect them from social injustice. Thereby rendering social justice is the constitutional mandate and the State is to provide conditions and fecilities to the weaker sections of the people particularly Scheduled Castes and Scheduled Tribes to have permanent houses to subserve the fundamental right to residence and a permanent settlement thereat, to be meaningful to them.
13. In Superintendent of Post Offices, Khammam v. Kalluri Vasayya (11) 1984-1 An WR 345 this Court had an occasion to consider the scope of the constitutional goals and the duty of the State. Therein, quoting a passage from “Democracy, Equality and Freedom” by Justice K.K Mathew, that welfare state exists not only to enable the people to eke out their levelihood but also to make it possible for them to lead a good life, held that the State is an organisation to transcend all sections of the society to enable them to lead good life assuring “dignity of person under a legal order.” Its true dignity comes not from its power and prestige but from doing justice to its subjects.
14. Prof. R.H Towney in his “Equality (1929 Edition) at page 268 states that “a society is free in so far as…………its institutions and policies are such as to enable all its members to grow to their full stature……………”.
15. “Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities.” Justice Chinnappa Reddy of the Supreme Court, in his first Mohan Kumaramangalam Memorial Lecture, propounded that “Liberty is freedom and justice is equality” and the twin principle visions are bed rocks to modern democracy. The solution to the problem of liberty is to create equality. He emphasised that “Let not the vision of equality fade into illusion; let it crystalise into reality.” In an Article “Economic Equality under the Constitution Introspection published in 84-2 ALT Journal Section at page 1, I stated that the fundamental rights are legal ends to be served by the State and the Directive Principles are social imperatives to be observed by the State. The challenge of social justice is the challenge for equal opportunity not in form but in substance and the challenge of social justice a constitutional mandate has to be accepted and answered on the basis of day to day experience of the performance of law articulating diverse provisions of the Constitution while meeting the challenging situation in the Society. The existence in the society of “political equality amidst inequality” is a stark reality. This contradiction is to be removed at the earliest. The directive principles are beacon light leading to reach the ultimate goal of economic equality to all.
16. The necessary conclusion to be deduced from the above discussion is that: In a democratic society without some property or capacity to acquire “the property in the wide sense,” there is no scope for dignity of person or to develop character, personality, etc. They cannot stand up to their constitutional rights. The thrust of the Constitution is the establishment of an egalitarian socialist state. Majority people are below poverty line. State is to provide facilities and opportunities to them so as to eliminate inequality of status. Social justice is a fundamental right to them. The State being a welfare State, adhered to render social justice; it exists and its only title to exist is to advance their public good in tune with Articles 46 and 38 of the Constitution to secure justice, social, economic and political for example fundamental right to permanent residence so as to transcend all sections of the society to lead good life fostering “dignity of individual under a legal, order” leading to unity and integrity of the nation.
17. The State of Andhra Pradesh has undertaken in a massive scale to acquire private lands to provide house-sites to Dalits and other weaker sections. From among them only those who are not possessed of any property of moveable and immoveable worth Rs. 3,500/- and monthly income of not exceeding Rs. 500/- (Vide latest GO Ms. No. 137 dated September 20, 1981) alone are made eligible. Each family unit is entitled to three cents in wet area and five cents in dry area. Thus, the State has selected the lowest among the under privileged, for entitlement to house-site.
Housing Conditions of the Dalits:
18. Even the majority of the Full Bench, speaking through PA Choudary, J. for himseif and on behalf of Ramachandra Raju, J. in Yadaiah's case (1) (supra) accepted the need to provide house sites holding that “Harijans have been degraded for ages by denying the ordinary rights and privilages of association by a socially retrogade Hindu social order while subjecting them all the while to inequalities, indignities and torments. Harijans are truly the hewers of wood and drawers of water of the Hindu Society…………” “They are destitute unfortunates and deserving poor and their continued living in unhygenic conditions is a slur on the society.
19. In this regard, the historical housing conditions, piognantly portrayed by Chinnappa Reddy, J. (as he then was) in Kasireddy Papaiah v. Government of AP (12) 1975-1 APLJ 70. needs to be reiterated:
“That the housing conditions of Harijans all over the country continue to be miserable even today is a fact of which courts are bound to take judicial notice. History has made it urgent that, among other problems, the problem of housing Harijans should be solved expeditiously. The greater the delay the more urgent becomes the problem”.
20. In Writ Appeal No. 370/76, dated September 29, 1976, a Division Bench consisting of Sambasiva Rao, J. (as he then was) and Punnayya, J. accepted that poor Harijans are living in villages in congested huts in most unhygenicand insanitary conditions, injurious to their health and welfare. There is every urgency to provide house sites to avoid the danger of epidemics and other diseases spreading over in the Harijan-wadas, that it certainly constitutes a grave urgency.
21. In the light of these historical facts the deplorable conditions in which the Dalits and other poor are living unhygenic slums, the history made imperative to take expeditious action not only to believe the poor from the unhygenic and insanitary health hazards but also to provide necessary infrastructure with accelerated built in housing programme to make their fundamental to settle down in permanent residence a reality, the State is under constitutional obligation in a time bound scheme to solve their housing problem on war footing.
Massive Housing Programme:
22. Prior to September 12, 1975, the Government of Andhra Pradesh was exercising the power of issuing sporadic notifications under Section 4(1) of the Act for acquiring lands to provide house sites to poor, yet times invoking the urgency power under Section 17(4) dispensing the enquiry under Section 5-A.
23. The Government of Andhra Pradesh under the Twentypoint programme (vide Statement of objects and reasons of 1976 Amendment Act) has come forward with a massive scheme to provide house sites to the poor from the year 1974-1975 allocating large sums of money in crores in the annual budgets with Legislative sanction for this purpose. This is a fact of which the Courts could take judicial notice of, under Sec. 114 of the Evidence Act. Thereby the need to expedite the process of acquisition became urgent. The Legislature stepped in and the Governor issued Ordinance 12 of 1975 which was replaced by the Andhra Pradesh Land Acquisition (Amendment) Act 1976 (22 of 1976), for short, “Amendment Act 1976” and it received the assent of the President and came to be effective from September 12, 1975. Under Section 2 thereof, Section 3-A was introduced in the Act empowering the State Government by a notification published in the Andhra Pradesh Gazette, delegating the powers and duties of the State Government to be exercised or discharged by the District Collectors. The Amendment Act also directed to treat in the appropriate provisions for “State Government” and the “Andhra Pradesh Gazette”, to be read as “District Collector” and the “District Gazette” respectively. The main object of the Amendment Act, 1976 confined is to expedite acquisition of land for providing house sites to poor. In the Madras Amendment Act 21 of 1948, Section 17(2) was amended and one of the purposes i.e, “any dwelling house to the poor” in respect of which urgency clause could be invoked was brought on statute,
Urgency to Improve Housing Conditions of the poor Judicial Recognition:
24. Subsequently when writ petitions have been filed challenging the exercise of the power by the District Collectors Under Sec. 17(4) dispensing with the enquiry under Sec. 5-A in connection with the acquisition of the land for providing house sites to poor, Chinnappa Reddy, J. (as he then was) in Kasireddi Papaiah v. Government of AP (12) (supra) for the first time held that:
“…..one can never venture to say that the invocation of the emergency provisions of the Land Acquisition Act for providing house sites for Harijans is bad merely because the officials entrusted with the task of taking further action in the matter are negligent or tardy in the discharge of their duties, unless, of course, it can be established that the acquisition itself is made with an oblique motive. The urgent pressure of history are not to be undone by the inaction of the bureaucracy.”
25. In WA No. 370/76 dated September, 20, 1976, the Division Bench upheld the need for the invocation of urgency clause holding that the housing conditions of the poor constitutes “grave urgency” and renders “full justification” for dispensing with the enquiry under Sec. 5-A.
26. In Ramanna v. The Collector, West Godavari (6) (supra) another Division Bench consisting of A.V Krishna Rao and Punnayya, JJ. has held at page 308:
“After thirty years of independence, the plight of many who were poor and homeless at the time when India attained Independence continue to be practically the same. The need for urgent acquisition of lands for this public purpose, namely, providing house sites for the poor was and is urgent. The necessity to dispense with Section 5-A enquiry must be decided by the authority applying its mind to each case of urgency in the matter of acquisition. The situation at present is that already there has been a great delay in the waiter of providing housing accommodation to the poor and it is a matter of national shame that after a lapse of thirty years the conditions of the poor such as the Harijans and other weaker sections of the. Society continue to be deplorable in the matter of providing housing accommodation, though the Constitution itself recognised the need.”
(Emphasis supplied)
27. The order dispensing with Section 5-A enquiry was upheld in that decision, in a batch of writ petitions.
Legislative Awareness of Urgency:
28. As seen earlier that the Madras Amendment Act 21 of 1948 by Section 2 thereof, introduced sub-section (2) to Section 17 amending clauses (2)(b) with further (i) and (a) to (e) in sub-clause (ii). Thereby the Legislature stated that whenever in the opinion of the Collector it becomes necessary to acquire immediate possession of “any land” for any of purposes mentioned therein, the Collector may immediately, after publication of the notice mentioned in sub-section (1) of Section 9 and with the previous sanction of the appropriate Government, enter upon and take possession of such land. For exercise of such power, the Collector is entitled to invoke the power under Section 17(4) to dispense with the enquiry under Section 5-A. Clause 2(b)(ii)(c) provides for “any dwelling house for the poor”. It includes house site for the, poor. (Vide Yadaiah's case (1) (supra).
29. When the challenge to dispense with Sec. 5-A enquiry to acquire land for providing house sites to the poor was persisted, a Division Bench consisting of Madhava Reddy, J. (as he then was) and Jeevan Reddy, J. in P. Yerra Reddy v. District Collector (13) 1979-1 APLJ 55 (SN) have considered sub-section (2) of Section 17 of the Act and held that in cases of acquisition of land for providing house sites to the poor under Section 17(4), “to dispense with the enquiry under Section 5-A would be ordinarily unquestionable.” In S. Parthasarathy v. Government of AP (14) 1981-11 AP L.J 106, Jeevan Reddy J. further considered the scope of the Amendment Act 21 of 1948 in the context of establishing a college and held:
“……It should be obvious that where the purpose of acquisition is one of those mentioned in sub-section (2), the Court while scrutinizing the validity of the exercise of power under sub-section (4), should keep in mind the fact that the Legislature has recognised those purposes as inherently and specially urgent. To put it differently, not only has the Court to keep in mind that the satisfaction is subjective on the part of the Government, but it must also have regard to the additional circumstance that the purpose of acquisition is one recognised by the Legislature itself as inherently urgent.”
(Emphasis supplied)
30. This view was further followed in P. Punnaiah v. State of AP (15) AIR 1982 AP 33 by Gangadhara Rao, J. and in Chenchamma v. District Collector Nellore (17) 1982-2 ALT 14 by a Division Bench consisting of Gangadhara Rao and Jeevan Reddy, JJ. and plethora of unreported decisions held the same view.
31. Construction by Full Bench in Yadaiah's case (1) (Supra) of Urgency:
32. While the law thus holding the field, two Division Benches made references to a Full Bench on the questions viz., whether publication of the notification under Section 4(1) and publication of its substance in the locality are to be simultaneously made; whether the delay in taking possession of the land after dispensing with the enquiry under Section 5-A would vitiate the exercise of the power under Sec. 17(4) of the Act for an authoritative pronouncement in view of the conflict of the views thereon. The matter has come up before the Full Bench consisting of our learned brothern, PA Choudary, Ramachandra Raju and Kodandaramaiah JJ. The majority speaking through PA Choudary, J. while considering those points, consider the legality of the exercise of the power by the District Collector to dispense with the enquiry under Sec. 5-A vis-a-vis the acquisition of land for providing house sites to poor and held that the exercise of power of eminent domain causes legal injury to the owner since the exercise of that power is inherently arbitrary against the wishes of the landholders; to mitigate that hardship, a right to hearing of the objections though limited, was provided for under Sec. 5-A and this right has to be adhered to, to subserve the principles of natural justice and fair play in action. Therefore dispensing with enquiry under Sec. 5-A is an exception and it should be done in rarest of the rare cases. In that view, Choudary, J. considered the entire case law and held in paragraph 69 thus:
“A careful reading of the Land Acquisition Act and more particularly, the Madras amendment would show that the acquisition of land for providing house sites for Harijans or to the poor perse was not treated as providing sufficient justification for dispensing with Section 5-A enquiry.”
33. In that context, the scope and ambit of Section 17(1) and Sec. 17(2) were considered in paragraphs 70 to 81. It was held in paragraph 74 thus:
“But it appears to us to be inconceivably impossible to make a distinction between the cases coming under Sec. 17(1) and Sec. 17(2) for the purpose of dispensing with Sec. 5-A enquiry. Both are cases which are recognised by law as equal for the purpose of Sec. 5-A of the Act. The only distinction which the law recognised between these two classes of urgencies is that in case of those cases coming under Sec. 17(1), possession can be taken fifteen days.after Sec. 9(1) public notice while possession can be taken immediately after 9(1) public notice in the case of those cases falling under Sec. 17(2) of the Act. Beyond that, it is impossible in our opinion, to find any difference. Above all, the test laid down by the Supreme Court in Gurdial singh's case applies universally to all, cases and to all situations without any exception forbidding dispensing with Sec. 5-A enquiry except in the rarest of the rare cases where public interest in acquisition would not brook any delay. It is an individual and an objective test that Gurdial Singh's case lays down”
34. In that view, the majority of the Full Bench has overruled all the decisions referred to earlier and declared that dispensing with enquiry in cases of providing housesites to poor in exercise of power under Sec. 17(4) read with Section 17(2), to be illegal. Kodandaramaiah, J. dissented from the above view and he agreed with the construction put upon by all the earlier decisions, in para 119 held thus:
“I think that such construction is not warranted in view of the problem of this class of people where the State must meet the challenge on war footing. Whenever it is found or discovered that in a village or at any place there are poor persons without dwelling houses, that itself constitutes a specific urgency as declared by the legislature warranting an immediate action for providing dwelling houses.”
35. Thus majority in Yadaiah's case became the sole dissenter emphasising the individualistic approach as against the class character” by the rest.
Legislative Intervention Afresh:
36. As a result the even tempo to acquire lands was impeded. The Legislature of the State of Andhra Pradesh therefore moved afresh immediately in the matter and passed the Andhra Pradesh Land Acquisition (Andhra Pradesh Amendment and Validation) Act 9 of 1983, for short, “The Amendment Act, 1983’ It was reserved for the consideration and assent by the President, which was received on June 23, 1983. It was published in the Ahdhra Pradesh Gazette dated June 29, 1983. It was given retrospective effect, from September 12, 1975 viz, the date on which the Amendment Act, 1976 has come into force. The purpose of this Amendment Act, 1983 was (1) to validate all the notifications invalidated by the majority of the Full Bench by operation of Section 5 of the Amendment Act, 1983; (2) to provide time lag of 40 days in causing publication of the substance of notification under Sec. 4(1) in the locality; (3) to take possession (through Sec. 3 introducing Section 5(a) or (b) to the principal Act) within a period of three months from the date of publication of the notification. At this juncture it is necessary to clarify that the majority in Yadaiah's case (1) (supra) have held that the simultaneous publication of the notification under Sec. 4(1) and the substance thereof in the locality are mandatory and it should be done during the course of the same day. The failure to take possession of the land immediately after the enquiry under Sec. 5-A was dispensed with and declaration published under Sec. 6 vitiates the issuance of the notification under Sec. 4(1). To remedy the lacunae of the law pointed out by the majority of the Full Bench, the amendment was necessitated.
37. As stated in the beginning, the main thrust of Sri Harinath is that the declaration of the majority decision of the Full Bench that the acquisition even for providing house sites to the poor shall be made only after holding an enquiry and hearing the objections under Sec. 5-A and in “rarest of rare cases” only the enquiry under Sec. 5-A has to be dispensed with. The case on hand is not one such a rare case. Therefore, enquiry under Sec. 5-A ought to have been held and the action of the District Collector is bad in law.
38. Though Sri Ramakrishna, learned Government Pleader contended that view of the majority of the Full Bench in Yadaiah's case requires re-consideration and a reference has to be made to a larger Bench, I am under the constraint to refuse to make such a reference as it is a futility in exercise once over since when on earlier occasions some learned single Judges made such references and directed to place the matter before the Hon'ble the Chief Justice for constitution of a larger bench, the learned Chief Justice, instead-constituted a Bench of two Judges including himself and set aside the reference orders like a judicial adjudication (which course I have not come across as a precedent at any time). A Division Bench or Full Bench, if it so considers, may make a reference and to consider the question in future.
Whether Majority View was Nullified:
39. The main question thus claims adjudication is whether the Legislature nullified the effect of the majority of the Full Bench decision in Yadaiah's case by making the Amendment Act 1983 and thereby accepted the interpretation given by this Court anterior to the Full Bench decision and the minority.
40. At the outset let us look at the statement of objects and reasons to introduce Amendment Act, 1983, which reads thus:
“The full bench of the Andhra Pradesh High Court has allowed a batch of writ petition Nos. 5722 of 1981 etc filed in the Andhra Pradesh High Court challenging the land acquisition proceedings issued in various notifications under the Land Acquisition Act, 1894 on the ground that there was no simultaneous causing of the public notice in the local area by the Collector with the publication under sub-section (1) of Section 4 and that there was long delay between the date of dispensing with the provisions of Section 5-A and taking possession of the land and the publication of the declaration under Section 6 wherever urgency clause of the Act was invoked. In order “to rectify the lacunae in the existing Law”, it is proposed to suitably amend the Land Acquisition Act, 1894, in its application to the State of Andhra Pradesh providing for the following, namely, to enable the Collector to cause public notice in local area within 40 days of the publication of the notification under sub-section (1) of Section 4; and necessary consequential amendments to Sections 5 and 17 and to give retrospective effect to the above amendments and also to validate the actions taken or things done by the Government under the impugned notifications. It is also provided that in case where the possession of land could not be taken by the Collector within a period of 3 months after dispensing with the provisions of Sec, 5-A, the provisions of Section 5-A shall apply….”
(Emphasis supplied)
41. A reading thereof would disclose that the amendment was brought to rectify the “lacunae in the existing law i.e; pointed out; to make necessary consequential amendments to Sections 5 and 17; to give retrospective effect to the amendment and to validate the actions taken under the notifications declared to be illegal by Yadaiah's case (1), (supra)
Whether Legislature is Competent to Amend Law:
42. In this regard, the first question to be considered is whether the Legislature of the State of Andhra Pradesh is competent to make the Amendment Act, 1983.
43. Schedule VII of the Constitution enumerates the subjects over which the Parliament and the Legislature of the State have exclusive and concurrent power to make laws. Part XI of the Constitution, in Chapter I, Article 246(1) gives exclusive power to the Parliament to make laws with respect to the matters enumerated in List I of Schedule VII of the Constitution (Union List); Article 246(3) empowers exclusive power to the Legislature of any State to make laws for such State or any part thereof in respect of the matters enumerated in List II of Schedule VII (State List). Article 246(2) provides concurrent power to the Parliament and the Legislature of any State to make laws with respect to any matters specified in List III of Schedule VII (concurrent List). Item 42 of List III (concurrent list) empowers to make law on “acquisition and requisition of property”. By operation of Article 254(2), when the matter enumerated in the concurrent list contains any provision repugnant of any earlier law made by the Parliament or existing law with respect to that matter, then the law so made by the Legislature of the State shall, if it has been reserved for consideration and assent of the President and has received his assent, prevail in that State. Thus, item 42 of the concurrent list read with Article 246(3) gives exclusive power to the Legislature of the State of Andhra Pradesh to enact law relating to “acquisition of property”. Under Art. 372(1) it is competent to amend or alter the existing law. Therefore the Amendment Act, 1983 is within the Legislative competence and a valid law prevailing in the State of Andhra Pradesh, though inconsistent with the Central Act. Article 13(2) of the Constitution provides that any law made by the State in contravention of Part III of the Constitution shall, to that extent, be void. The right to property is now deleted from Article 19(1)(f) by the Constitution (44th Amendment) Act, 1978, through Section 2 thereof, but however it has been made part of the Constitution, in Chapter IV of part XII under Article 300-A, by operation of Section 34 of the Constitution (44th Amendment) Act, 1978 declaring that “no person shall be deprived of property save by authority of law.” Therefore the deprivation of the right to property shall be only by an authority of law.
44. It is well settled that power to make law prospectively includes power to make retrospectively. It is well known pattern of validation of Acts by which basis of judgments or orders of competent courts or tribunals is changed and the judgments and orders are made ineffective. The rendering of a judgment ineffective by changing the basis by legislative enactment is not an encroachment on judicial power because the legislation is within the competence of the legislature (See Smt. Indira Nehru Gandhi v. Raj Narain (16) 1975 Supp SCC 1 : AIR 1975 SC 2299 at 2332, per Ray, C.J).
45. Sections 4 and 5 of the Amendment Act, 1983 being relevant read thus:
“4. In section 17 of the principal Act,—
(i) in sub-section (4), for the words “after the publication of the notification”, the word “after causing public notice” shall be substituted.
(ii) after sub-section (4), the following sub-section shall be added, namely;
(5)(a) In any case where the State Government have directed under sub-section (4) that the provisions of section 5-A shall not apply, the Collector shall take possession of the land within three months thereof.
(b) If however the Collector fails to take possession of the land within the aforesaid period of three months, the provisions of Section 5-A shall apply as if there is no such direction that section 5-A shall not apply, and in all such cases the period of thirty days referred to in section 5-A shall be reckoned from the date of expiration of three months specified in clause (a)”.
5. Notwithstanding any judgment decree or order of any court, tribunal or other authority to the contrary,—
(a) no acquisition of land made or purporting to have been made under the principal Act before the commencement of the Land Acquisition (Andhra Pradesh Amendment and Validation) Act, 1983 and no action taken or thing done (including any order made, agreement entered into, or notification published) in connection with such acquisition shall be deemed to be invalid or ever to have become invalid merely on the ground—
(i) that the Collector has not caused public notice to be given as required under sub-section (1) of Section 4 of the principal Act, simultaneously with the publication of the notification in the Andhra Pradesh Gazette or the District Gazette as the case may be:
(ii) that a declaration has been made under section 6 of the principal Act after a considerable delay in respect of any land in the case of which the State Government have directed under sub-section (4) of Section 17 of the principal Act, that the provisions of Section 5-A of the principal Act shall not apply:
(b) any acquisition of land in pursuance of any notification published under sub-section (1) of Section 4 of the principal Act before the commencement of the Land Acquisition (Andhra Pradesh Amendment and Validation) Act 1983, may be made after such commencement, and no such acquisition made and no action taken or thing done (including any order made, agreement entered into, or notification published) whether before or after such commencement, in connection with such acquisition shall be deemed to be invalid merely on the grounds referred to in clause (a) or any of them.”
46. A reading thereof vis-a-vis Section 17 of the Act would lead to the following result:
I. Where in case of any land to which the appropriate Government is of opinion that the provisions of sub-section (1) or sub-section (2) of Section 17 are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply:
II. If it so directs that a declaration shall be made under Section 6 in respect of the land at any time after causing public notice under sub-section (1) of Section 4 published:
III. Under Section 17(5)(a) in any case where the State Government have directed under sub-section (4) thereof that the provisions of Section 5-A shall not apply, the Collector shall take possession of the land within three months thereof:
IV. Section 17(5)(b) declares that if, however, the Collector fails to take possession of the land within the aforesaid period of three months, the provision of Section 5 shall apply as if there is no such direction that Sec. 5-A shall not apply and in such cases the period of thirty days referred to in Sec. 5-A shall be reckoned from the date of expiration of three months specified in clause (a)
V. Section 5 of the Amendment Act, 1983 validated all the notifications published, the actions taken or things done, under the Act, notwithstanding any judgment, decree or order of any Court, tribunal or authority to the contrary with retrospective effect.
47. As seen that under Article 300-A of the Constitution, no person shall be deprived of his property save by authority of law. Section 5-A of the Act undoubtedly, gives a valuable right to the owner to object though on limited grounds to the notification of the proposed acquisition under Section 4(1) and the right is to subserve the owner of the land, save for reasons of urgency as engrafted in Sec. 17 When the vires of Section 17(4) has been assailed on the touchstone of Article 14, a Division Bench of the Gujarat High Court speaking through Bhagwathi, J. (as he then was) in Ishwarlal v. State (17) ILR (1967) Gujarat 620 : 1967 Guj. LR 729 held thus:
“While considering this question it is necessary to bear in mind that Section 17, sub-section (4) was introduced in the Act at the same time as Section 5-A. Section 5-A no doubt conferred a valuable right on the owner to object to the acquisition of land on limited grounds, but at the same time of conferring this right, this, Legislature made it clear that this right, should not be available if the Government on being satisfied that there was urgency and that the land was waste or arable land directed that the provisions of Section 5-A shall not apply in respect of the land and the reason for enabling Sec. 17 sub-section (4) was obvious. The object of the Act being to provide for acquisition of land for a public purpose……the acquisition of the land was urgent, the procedure set out in Section 5-A might operate to cause delay and the implementation of the purpose might be retarded if not defeated.
48. As is evident from Section 5-A the enquiry under Section 5-A would be likely to take a fair amount of time and the Legislature therefore, thought it necessary to give power to the Government to eliminate this inquiry in case of urgent acquisition of land. New urgency may arise in innumerable ways and many different and diverse factors may enter into the determination of the question of urgency and quite often it may be a matter of policy decision and, therefore, the Government would be the authority best fitted for the purpose of deciding whether acquisition of land in any particular case is urgent. In the tempo of prevailing conditions in modern society events occur which were never foreseen that it is impossible for the Legislature to anticipate all events or to provide for all eventualities and it cannot possibly lay down conditions determining urgency and it must therefore, leave the question of urgency to the determination of the Government. Moreover it must be remembered that the power of acquisition for a public purpose is the power of eminent domain as the American jurists call it and is a power which is the necessary concomitant of sovereignity and the decision that the acquisition of land in a particular case is urgent so as to dispense with the enquiry under Section 5-A may reasonably be left to the determination of the Government. If the question of urgency was not left to the determination of the Government but the existence of objective fact of urgency was made a condition precedent to the exercise of the power under Section 17 sub-section (4) the action of the Government under Sec. 17, sub-section (4) would be liable to be subjected to the scrutiny of the Court in legal proceedings and such a procedure would in many cases hold up the acquisition proceedings and the Government would by means of protracted litigation be prevented from effectuating urgent acquisition of land and the purpose for which the power is conferred under Section 17 sub-section (4) would be defeated.”
(Emphasis supplied)
49. This view was approved by the Supreme Court in Ishwarlal v. State of Gujarat (18) AIR 1968 SC 870. The same was followed by a Division Bench of this Court, consisting of Kumaraiah, C.J and Sambasiva Rao, J. (as he then was) in V. Lakshminarayana v. State (19) AIR 1972 AP 19. It is thus well settled that the exercise of power under Section 17(4) is not only intravires but also under the authority of law within Article 300-A of the Constitution. The exercise of power under Section 17(4) dispensing with enquiry under Section 5-A is under authority of law.
50. The Amendment Act 1982 made no express reference to the nullification of the construction put up by the majority in Yadaiah's case (1) (supra). Therefore, the question is whether it is nullified by “necessary implication.” Before embarking upon this question, it is necessary to state that the scheme of the Act was dealt with by Kodandaramaiah, J. in the Full Bench and it is a needless effort to survey once over and I accept the same to be correct.
Subjective Satisfaction—Scope of Judicial Review:
51. The subjective satisfaction of the District Collector or the appropriate Government under Section 17(4) is subject to judicial review, is no longer res integra. In Raja Anand v. State of UP (20) AIR 1967 SC 1081 their Lordships of the Supreme Court, speaking through Ramaswami, J. held that the opinion of the Government which is a condition for the exercise of the power under Section 17(4) of the Act is “subjective” and a Court “cannot normally enquire “whether there were sufficient grounds or justification of the opinion formed by the State Government under Section 17(4); yet, when it is challenged it could be declared ultra vires if the Government never applied its mind to the matter or that the action of the State Government is mala-fide.
52. In Jage Ram v. State of Haryana (21) AIR 1957 SC 1081. Hegde J. speaking for the Court held that the satisfaction of the Government, in a given case that there was urgency, is not conclusive but is entitled to weight. In Narayan v. State of Maharashtra (3) (supra) Their Lordships of the Supreme Court considered the question once over and Beg, J. speaking for the Court held that:
“……the formation of the opinion is a subjective matter. The administrative authorities are empowered to take such an opinion. They are expected to know better between the right or wrong opinion than Courts could ordinarily on such matters. Yet the opinion has to be based upon “some relevant material’ in order to pass the test which the Courts do impose. The teat basically is was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play? Once the Court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some material, however, meagre, on which it could reasonably base its opinion, the Courts should not and will not interfere.
(Emphasis supplied)
53. The Court however indicated that where the exercise of the power is obviously arbitrary or perverse fashion, without regard to the actual and undeniable facts, or, in other words, so unreasonable as to leave no doubt whatsoever in the mind of a Court that there has been an excess of power or where the authority has not applied its mind at all due to misunderstanding of the law or some other reason, to what was legally imperative for it to consider is the area in which, the Supreme Court held, that the Court could interfere. In that case, the question was whether the Commissioner had applied his mind to dispense with the enquiry under Sec. 5-A in respect of acquisition to develop housing programme or industrial development and the need to discharge the burden thereof. In that context, their Lordships held that Sec. 17(4) cannot be read in isolation from Sec. 4(1) and Sec. 5-A of the Act. It is not the just existence of urgency but the need to dispense with the enquiry under section 5-A that has to be considered. From the facts on record it was held in that case that there is no indication whatsoever either in the notification or in the affidavit filed on behalf of the State that the Commissioner had applied his mind at all to the question whether there is necessity to eliminate the enquiry under Sec. 5-A. In that perspective it held that the dispensing with the enquiry under Sec. 5-A was bad in law and the Government did not discharge its burden.
54. In T. Narasaiah v. P. Bhadraiah (22) 1973-1 APLJ 146 a Full Bench of this Court also considered the scope of interference with regard to the subjective satisfaction recorded by the Government under Section 17(4).
55. A resume of the entire law thus laid down, leads to the following conclusions: (1) The formation of the opinion with regard to urgency under Sec. 17(4) is subjective satisfaction; (2) It is normally entitled to weight and it is not conclusive; (3) Yet, when the opinion is challenged, the Government have to establish by recital in the notification or by record or through a counter-affidavit that it had formed the opinion. This subjective satisfaction could be assailed on limited grounds, viz., it is a malafide exercise of power (Vide State of Punjab v. Gurudial Singh (23) (1980) 2 SCC 471 : AIR 1980 SC 319; or colourable exercise of power (Vide Raja Anand v. State of UP (21) (supra) or not applied its mind to the relevant material (Vide Narayan v. State of Maharashtra (3) (supra) or arbitrary on the face of the facts or was not made by a competent authority or the existence of the facts and circumstance on which the opinion was formed has not been established. The Full Bench in T. Narasaiah v. P Bhadraiah (22) (supra) also has further held that the facts and circumstances have reasonable nexus with the purpose, or whether the exercise of the power was for improper purposes or whether irrelevant grounds have been considered.
56. No doubt, in Swadesh Cotton Mills v. Union of India (24) (1981) 1 SCC 664 : AIR 1981 SC 818; Their Lordships of the Supreme Court considered the question of subjective satisfaction. The question there was whether under Section 18-AA of the Industries (Development and Regulation) Act, possession was to be taken immediately would exclude the application of the principles of natural justice. Their Lordships considered the scope of the power on satisfaction under Section 17(4) of the Act, in paragraphs 59 to 63 and held that the opinion of the Government or the authority in regard to urgency of taking action thereunder is not “altogether immune from judicial scrutiny” and on the facts in that case it was held that the existence of immediacy though subjective, is open to judicial review and the principles of natural justice ??? not excluded from their applicability to the facts in that case. Chinnappa Reddi, J. (per minority) did not accept that view and held that by necessary implication it is excluded.
57. In Union of India v. J.N Sinha (25) (1970) 2 SCC 458 : AIR 1971 SC 40 Hegde, J. speaking for the Court has held in paragraph 7, that the principles of natural justice will have sway in the area unoccupied by statutory provision. If a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. It depends upon the express words of the provision conferring the power, the nature of the power concerned, the purpose for which it is conferred and the effect of the exercise of that power. Since Sec. 17(4) itself gives express power to dispense with the enquiry under Sec. 5-A, thereby excluded fair play, in an appropriate case. But however, as stated earlier, it will be subject to assailment on any of the grounds stated supra. Therefore the judicial review is not altogether excluded, but circumscribed to limited grounds giving large leeway to the District Collector to exercise the power under Sec. 17(4). In Narayan's case (3) (supra) the Supreme Court itself noticed in paragraph 37, that:
“It is true that, although, only thirty days from the notification under Section 4(1) are given for filing those objections under Sec. 5-A of the Act, yet sometimes the proceedings under Section 5-A are unduly prolonged”.
58. As stated earlier, in the case of acquisition for providing house sites to the poor and the exercise of the power under Section 17(4) read with Sec. 17(2), all the learned Judges in the above referred decisions including the minority view of Kodandaramaiah, J. (in Yadaiah's case) have held that the problem is of historical nature; there is urgent need to take immediate possession of the lands to provide house sites to the poor to relieve them of congestion and unhygenic conditions in which they are living and the Legislature has and by its Amendment Act 21, 1948, recognised as inherently urgent and in the language of Kodandaramaiah, J. in Yadaiah's case “enhanced the degree of subjectivity and to be met on war-footing” and the Court normally cannot enquire into the exercise of the power, of cource subject to the stated reasons supra. The question at issue is whether the above or the sole dissenting view of majority in Yadaiah's case was accepted by the Legislature and whether by necessary implication the effect of the view of the majority in Yadaiah's case that “in rarest of rare cases only the enquiry under Section 5-A could be dispensed with even for acquisition of land to provide house sites for poor”, was nullified.
Scope of the Legislative Power:
59. In Shri P.C Mills v. Broach Municipality (26) (1969) 2 SCC 283 : AIR 1970 SC 192 a Constitution Bench of the Supreme Court considered the effect of retrospective validation of an Act and its effect on the judicial adjudication. In that case the Supreme Court declared that the Legislature has no power to impose house tax on the basis of capital value of the property. Subsequently the Legislature has amended the Act giving retrospective effect and validated the invalidity pointed out by the Court. When the power of the Legislature was challenged, Hidayatullah, C.J speaking for the Court has held:
“When a legislature sets 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 ??? 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 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 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 Court had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax.”
(Emphasis supplied)
60. In Sundararamier & Co v. State of Andhra Pradesh (27) AIR 1957 SC 468 Venkatarama Aiyar J. speaking for the majority held that it is necessary to ascertain the evils which the Act intended to remedy when the validation Act was passed; the true nature of the law has to be determined not on the label given to it but its substance.
Duty of the Courts in the Construction of the Validation Act Pragmatic Approach:
61. In Krishna Chandra v. Union of India (28) (1975) 2 SCC 302 : AIR 1975 SC 1389 Krishna lyer J. speaking for the Court has held that:
“The law laid down by this Court (earlier, the Supreme Court declared that the State Legislature has no power to pass law in respect of minerals. Subsequently, Parliament made the legislation with retrospect effect) was obeyed and the resultant referential legislation must therefore be interpreted to further and fulfil not to frustrate or foil—the intendment of retroactive validation of earlier inoperative legislation and executive action taken by the Bihar State”
62. At page 1399, in paragraph 24, it was further held:
“The Legislature can retrospectively validate what otherwise was inoperative law or action. Unhappy wording, infelictious expression or imperfect or inartistic drafting may not necessarily defeat, for that reason alone, the obvious object of the validating law sand its retrospective content.”
63. In Pathumma v. State of Kerala (29) (1978) 2 SCC 1 : AIR 1978 SC 771. Fazal Ali, J. speaking for the larger Bench of seven Judges, held that:
“In the interpretation of the statutory provisions vis-a-vis the constitutional provisions, the Courts should interpret the constitutional provisions against the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of the society, the increasing needs of the nation, the burning problems of the day and the complex issues facing the people which the legislature in its wisdom through beneficial legislation, seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic, rather than rigid.”
64. In Prentis v. Atlantic Coastline Co. (30) (1908) 211 US 210 at 226. Holmas, J. stated thus:
“A judicial enquiring investigates, declares and confers liabilities as they stand on present or past facts and under law supposed already to exist. This is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.”
65. St. Thomas Acquinas in his “The Treatise on Law” 1970 Gateway Edition at page 87 said that “since the end of law is common good, the law should be framed not for benefit few but for common good of all citizens.”
66. Prof. Archibald Cox. in his “Role of the Supreme Court in the American Society” has stated that:
“Judicial review calls upon the Court to go over the very social, political and economic questions committed to the Congress and State Legislatures, yet it can scarcely do so without usurping in some degree, the Legislative function of weighing and balancing competing interests.”
67. This passage was extracted by William B Lockhart in his “American Constitution Cases and Materials”, 5th Edn. pp 25-26.
68. It is thus an accepted canon of construction that the Courts would interpret a statute in the light of the constitutional goals-social, political and economic against the social settings of the country keeping their complete consciousness; deep awareness of the prevailing as well as growing needs of the society; the complex burning problems facing the people; the wisdom of the Legislature which seeks solve to them in making amendments changing the existing conditions therein; for the common good of the people; weighing and balancing the competing claims by adopting dynamic and pragmatic approach with enough elasticity. If the language used in the statute can be construed widely so as to solvage the remedial intendment the Court must favour that interpretation to suppress the mischief or evil interpolating into the text of the statute “to the permissible extent to unravel the obscurity crept in, by infeliciteous language “supplying force and life” to effectuate the object of the Act. We have, therefore, to tread on this path to enquire into the need to make amended validation law with retrospectivity.
Scope of Legislative Power Over Judicial Decision:
69. Court's decision must always bind unless the conditions in which it is passed are so fundamentally altered that the decision could not have been given in the altered circumstances. It is to be remembered that the Legislature has no power to directly over-rule the decision of the Court. The Legislature has to remove the basis of the decision by retrospectively changing the Law. It can validate proceedings rendered invalid by judgment of court by substitution of new law with retrospective effect. This process is not an encroachment on the judicial power but has the affect of nullification of the decision. There is a distinction between encroachmeht on judicial power and the nullification of the effect of a judicial decision by changing the law retrospectively. The former is outside the province of the Legislature but the latter is within its plenary power. Therefore we have to see whether this necessary change has been brought about.
70. Courts would be astute to accept readily the contention that a judicial decision was “nullified by implication” by a legislation since it would lend credibility to legislative entrenchment or intrusion into its alien adjudicative process and decision making peculiar to judiciary. Even abrogation of a valid legislation by the doctrine of implied repeal is “not favoured” (Vide Maxwell on “Interpretation of Statutes”, 12th Edition, at page 191). While so, it is much more so with judicial decision. Yet it is now well settled legislative device to nullify the effect of a judicial decision by resorting to retrospective validation law. Therefore it is to be seen whether it was done by Amendment Act, 1983. No doubt, Sri Harinath, learned counsel for the petitioners has relied upon the statement of objects and reasons to introduce the Amendment Act, 1983. It is well settled that the objects and reasons could be taken aid of when the language is obscure. The primary duty of the Court is to consider the language couched in the Act and to find out the meaning of the language of the Act. In that regard, the historical facts, the surrounding circumstances, the prevailing law, the mischief ??? the Legislature seeks to remedy, are to be considered.
Doctrine of Implication Scope of:
71. In Victoria v. Common Wealth. (31) 1971 (45) ALJ 251. Gibbs J. has held thus:
“The ordinary principle of statutory interpretation did not preclude the making of implications when they were necessary to give effect to the intention of the legislature as revealed in the statute is a whole”.
72. It is worthy of nonce however that there are cases in which judgments requiring acts to be done in the future may validly be affected by subsequent legislation making illegal that which the judgment found to be legal or making legal that which the judgment found to be illegal. (Vide American Jurisprudence 2nd Edition. Vol. 42, p. 318).
73. In Corpus Juris Secundum, Volume 42, at page 406, the, word ‘Implied’ is stated thus:
“The word ??? is used in law where the intention with regard to the subject matter is not manifest by explicit and ??? words but is gathered by implication or necessary deduction from the circumstances or the general language or…..”
74. In Melborne Corpn. v. Common Wealth (32) 1947 (74) CLR 34. Windayar J. has considered the meaning of the word ‘implication’ in the context of the constitutional power to make amendment vis-a-vis the power of the Common-wealth and the State and held in that context thus:
“In each case an ‘Implication’ means that something not express is to be understood, but in the one case, it involves an addition to what is expressed. It is in the latter sense that in my view of the matter, implications have a place in the interpretation of the constitution.”
75. In Corpus Juris Secundum Volume 3, at page 1042, in the foot-note, Amendment by implication is stated thus:
“It is a phrase in common use because convenient to indicate the rule of construction by which a later repugnant provision modifies or abrogates an earlier one; although strictly it is not an amendment in any proper sense of the word”.
76. In South Australia v. Common Wealth (33) 65 CLR 447. Starke, J. held that implications can only be defined by a gradual process of judicial decision. Mixon, J. in Australian National Airwars Pvt. Ltd. v. The Common Wealth (34) (1945) 71 CLR 29 at 85 held that “We should not be fearful about making implication.”
77. The doctrine of inherent, residuary, ancillary or implied powers of the Legislature has been well accepted by a plethora of decision of our highest Courts like Abeyesekara v. Jayatilake (35) 1932 AC 260 United Province v. Atiqa begum (36) AIR 1944 FC 16 Udai Ram v. Union of India (37) AIR 1968 SC 1138. In R.S Joshi v. Ajit Mills (38) AIR 1977 SC 2297 a larger Bench of Seven Judges per Krishna Iyer and Kailasam JJ. held that the doctrine of ancillary or incidental powers is also embraced within the clause of interpretation (paras 14 & 46). In Jawaharimal v. State of Rajasthan (39) AIR 1966 SC 764 at 771 Their Lordships of the Supreme Court held that the Court has to look at the substance of the matter and not merely of form and try to read as favourably as possible. Smt. Indira Nehru Gandhi v. Raj Narain (9) (Supra) is an authority for the doctrine of implied nullification of a judicial decision by an Amendment of the statute though the court per majority, did not accept the amendment on other grounds.
78. The result of the above discussion leads to the following conclusions: The Legislature has ancillary, residuary or implied or inherent power to make law. Statutory interpretation does not preclude the making of implication when necessary to give effect to the intention of the Legislature. A judicial decision is normally binding on the other organs of the State unless validly nullified by well known legislative process “Implication” means that something not manifested by explicit and direct words in the statute. The doctrine of implied nullification of a judicial decision is not to be readily accepted as it has the effect of abrogating modifying or declaring illegal which was found to be legal ??? which was found to be legal ??? Legislature cannot say that it does not accept the judicial decision. It is to be gathered by necessary deductions by a process of judicial adjudication on a consideration of the totality of circumstances leading to the amendment, the language used in the statute and if the intention is shrouded in obscurity, the statement of objects and reasons and lastly fair and reasonable construction. The Court would not be afraid to make implications flowing from the consideration of the subject.
79. The majority in Yadaiah's case (1) (supra) while construing Section 17(1) and Sec. 17(2) in the context of the exercise of power under Sec. 17(4) held that it is inconceivably impossible to make a distinction between those two provisions for the purpose of dispensing with enquiry under Sec. 5-A. Both the cases are recognised as equal for the said purpose. Subsequent to Amendment Act 21 of 1948, several amendments were made by the State Legislature, as well as Parliament incorporating in Section 17(2) of the Act for example, the Nagarjunasagar Project (Acquisition of Land) Act 1956; and for any purpose incidental to ??? with Visakhapatnam Steel project in the area to which the Visakhopatnarr Steel Project (Acquisition of Land) Act 1972 extends by the Central Amendment Act. These two projects are ??? projects When acquisition is made they ??? treated to be of urgent ones. The ratio of majority in Yadaiah's case would entity apply to them the logical ??? is that even in respect of the national projects, the exercise of power under S. 17(4) would be in the rarest of rare cases. The question at issue is whether the Legislature made the amendment with no purpose. The presumptive evidence furnishes that the Legislature is aware of the acute need and amendment was brought to meet that situation. Thereby the Legislature manifested that each item is sought to serve its own distinctive purpose and the authority while exercising the power under Section 17(4) has to consider in that context the necessity to invoke the urgency clause. When it is held by the majority that even in respect of the matters covered by Section 17(1) and Sec. 17(2) it will serve the same purpose, with great respect to the profound learning of our learned brother PA Choudary, J. the learned Judge appears to tread on the doctrine of “ejusdem generis” though no express reference was made, treating Section 17(1) as genus and several items in Section 17(2) as species. In the context of exercise of power under Sec. 17(4) in similar circumstances, where the punjab Legislature made local amendment introducing several items impari materia Act 21 of 1948 the question arose was whether they served the same purpose. A Full Bench of the Punjab High Court in Printers House v. Misri Lal (40) AIR 1970 Punjab (1) held that the doctrine of ejusdem generis does not apply: each item serves different purpose and the exercise of power under Sec. 17(4) was upheld. The question of different purposes when arose, the Supreme Court in Jage Ram v. State of Haryana (22) (supra) speaking through Hegde, J. considered in the context of the purposes (though it does not appear that it was in relation to the exercise of power under Sec. 17(4) held that the doctrine of ejusdem generis does not apply. Yadaiah's (1) (supra), thereby hedged on the periphery of per curium and became his own victim and robbed of his efficacy to be a binding precedent. I make it clear that the above test is pressed into service only to cull out the legislative intendment.
80. It is already held that the Legislature of the State of Andhra Pradesh is competent to enact the Amendment Act, 1983. It was made with retrospective effect. Undoubtedly Section 5 thereof employed non-abstendi clause and given validation to all notifications published, action taken and things done with retrospectivity. As pointed out in PC Mills case (25) (supra) that “sometimes, this (retrospective legislation) is done re-enacting retrospectively a valid law.” Challenge of social justice for equal opportunity of right to residence and to settle down by Dalits and other poor fed by congestion and unhygenic historical housing conditions made imperative for the State to undertake massive housing scheme to provide house-sites to lowest among Dalits and proleterariat. Therefore the need to provide house sites on war footing is subsisting. Cognizentthereof, the Legislature gave budgetary sanctions in crores of rupees to be spent annually before end of financial year; the urgency was already taken judicial notice of and was accepted in countless decisions of this Court. The tardy officialdum would unduly protract Sec. 5-A enquiry retarding, if not defeating, the constitutional objectives to ensure right to residence. Yadaiah's case (1) (supra) itself furnishes evidence as classic instance as proof. Amendment Acts, 1976 and 1983 deal with acquisition mainly to provide house sites to Dalits and proleterariats. Section 17(5)(a) empowers the District Collector to take possession of the land within three months from the date of publication of the notification under Sec. 4(1) and the failure thereof, entails with an enquiry under Sec. 5-A to be held as if the power under Sec. 17(4) has not been exercised. As pointed by Craies in his “Statute Law”, 7th Edition, page 366, that “the latest expression of the will of the Parliament must always prevail.” The contention of Sri Harinath if given credence to, would put the clock back tending to render the amendment surplusage.
81. Sri Harinath, learned connsel has relied on Chatterjee's “Interpretation of Statutes” at pages 58-59 and contended that the doctrine of casus omissus not to be created or supplied. That doctrine has no application to the facts in this case. It is not a case of supplying ommission but is one of construction. In K.C Dora v. G. Annamnaidu (5) (1974) 1 SCC 567 : AIR 1974 SC 1069 relied on by the learned counsel, the question was whether the Amendment Act 20 of 1960 operates retrospectively to nullify the final decree of the civil Court which declared the decision of the Settlement Officer as totally void and non-exist. In considering that question, while following the law laid down in Sri P.C Mill's case (25) (supra) it was held in paragraph 65 that no back date for its commencement was mentioned and no restrospectivity was expressly given and the relevant sections had not taken with usual non-absendi clause. On those facts it was held that the Act was prospective, and not retrospective by implication. That decision has no application to the facts in this case. Thus, on a consideration of the facts and circumstances in the light of the principles above laid down, it must be held that the Legislature, by enacting Act 9 of 1983 transplanted the pre-existing law declared in Kasireddy Papaiah's case (12) (supra) W.A No. 370/76; in Ramanna's case (6) (supra) Yerra Reddy's case (13) (supra) Parthasarathy's case (14); Punnaiah's case (15) Chenchamma's case (16) (supra) and the minority view in Yadaiah's case (1) (supra) and other cases taking similar view, to be valid law, to rehabilitate efficaciously to feed the statutory animation and nullified by necessary implication of the interpretation by majority in Yadaiah's case hereby given power to the District Collector to exercise the power under Sec. 17(4) to dispense with the enquiry under Sec. 5-A in respect of acquisition to provide house sites to the Dalits and other poor as couched in Sec. 17(2)(b)(ii)(c) of the Act. It is at once reiterated that even in respect of these cases the judicial review of the power exercised under Sec. 17(4) is not completely immuned but would be confined to the limited circumstances pointed out herein before.
82. Indisputably the impugned notification was issued to acquire the lands of the petitioners to provide house sites to Dalits other poor and it is so stated in the counter affidavit that the beneficiaries are living in congested and unhygenic locality and the District Collector has formed his opinion to take immediate possession. The record discloses that he passed specific order to that effect. The exercise of power under Sec. 17(4) dispensing with the enquiry under Sec. 5-A cannot, therefore, be held to be bad in law. It is accordingly held that the action taken by the District Collector is perfectly legal and cannot be interfered with.
83. The writ petition is dismissed, but in the circumstances, without costs. Advocate's fee Rs 250.-/