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PETITIONER: STATE OF MYSORE & ANR.

       Vs.

RESPONDENT: D.   ACHIAH CHETTY ETC.

DATE OF JUDGMENT: 11/12/1968

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) SHAH, J.C. RAMASWAMI, V. MITTER, G.K. GROVER, A.N.

CITATION:  1969 AIR  477            1969 SCR  (3)  55  1969 SCC  (1) 248  CITATOR INFO :  RF         1970 SC 564  (143,146)  R          1972 SC2205  (19,20)

ACT: The Bangalore Acquisition of Lands (Validation) Act (Mys. 19 of  1962),  s. 2-Scope of-Legislative competence  to  remove discrimination       retrospectively-Validating        Acts- Classification      produced      thereby-If      reasonable classification.

HEADNOTE: In  Mysore  there were two Acts bearing  on  acquisition  of private  land for public purposes, namely, the  Mysore  Land Acquisition  Act,  1894, and City of  Bangalore  Improvement Act,  1945.   A notification under s. 4 of the  Mysore  Land Acquisition  Act,  1894, was issued for acquisition  of  the respondents’  plots  in  Bangalore.  The  procedure  in  the Acquisition   Act   is  a  shortened  procedure   which   is prejudicial   to  the  owner  of  property  acquired.    The respondents challenged the acquisition in the High Court  on various  grounds and the High Court allowed  the  petitions. The  State appealed to this Court and while the  appeal  was pending the Bangalore Acquisition of Lands (Validation) Act, 1962,  was passed and received the assent of the  President, as  required  by  the  Constitution  on  May  4,  1963.   It validates  all  acquisitions made, proceedings  held,  noti- fications issued or orders made in connection therewith,  by the State Government purporting to act under the Mysore Land Acquisition Act, before the Validating Act came into  force, for the purpose of improvement, expansion or development  of the  City  of  Bangalore.  It  also  provides  that  pending proceedings   may  be  continued  under  the   Mysore   Land Acquisition  Act.   The  provisions  are  to  be   effective notwithstanding  the City of Bangalore Improvement  Act,  or any  other  law,  judgment, decree or order  of  any  court. Section 2(1) of the Validation Act, provides, that no  order made  under the Mysore Land Acquisition Act is to be  called in question on the ground that the State Government was  not

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competent to make acquisition for the Purpose of improvement or  on  any ground whatsoever, and s. 2(2) provides  that  a notification  or order may be questioned in accordance  with the  provisions of the Mysore Land Acquisition Act -and  the Land Acquisition Act, 1894, and the rules made thereunder. In this Court in spite of the Validating Act the respondents sought  to  support the judgment of the High  Court  on  the grounds  that : (1) there were still two Acts which  covered the same field but prescribed two different procedures,  and that the notifications issued following the more prejudicial procedure   in   the  Mysore  Land  Acquisition   Act   were unconstitutional  as  that Act was  discriminatory;  (2)  an acquisition  or  anything done, previously hit  by  Art.  14 cannot   be  validated  unless  the  vice  of   unreasonable classification  is removed, and so, the Validating  Act  was ineffective;  (3)  the Mysore Land Acquisition Act  and  the Land Acquisition Act. 1894, are general laws which must give way to the special law in the Improvement Act; and (4) There is  still discrimination, because. there are two classes  of cases  one, in whose case the Validating Act dispenses  with the  procedure of the Improvement Act and’ those,  in  whose case that procedure will be followed 56 HELD  :  (1)  The supremacy of the  Legislatures  in  India, within  the constitutional limits of their  jurisdiction  is complete.   By the non-obstante clause ’ in  the  Validating Act, the Improvement Act is put out of the way as if it were repealed or as if it had not been passed.  The  Legislature, has made retrospectively a single law for the acquisition of property  and  rendered all acquisitions,  made  before  the Validating Act was passed, to be governed by the Mysore Land Acquisition  Act  alone.   Objections  based  on  breach  of Constitution or fundamental rights could be raised in  spite of the words ’or on any ground whatsoever’ in the Validating Act,  but,  objections  on the ground that  there  has  been nonobservance of the provisions of the Improvement Act  must fail. [62 A-C; 63 A-B] (2)  It  is  wrong to assume that a  discrimination  arising from  selection of one law for action rather  than  another, where two procedures are available, can never be righted  by removing retrospectively one of the competing laws from  the field.  If there is legislative competence, the  Legislature can always put out of action retrospectively one of the pro- cedures  leaving one procedure only available,  namely,  the one that was followed and thus get over the  discrimination. In  the  present case, the only curb  on  the  Legislature’s powers  was  the requirement of the President’s  assent  and that was obtained. [63 B] Piara Dusadh v. King Emperor, [1944] F.C.R. 61, applied. (3)  There  is no question of general Acts giving way  to  a special  Act  because, after the Validating Act  was  passed there was no Improvement Act to consider. [63 E-F] (4)  All Validating Acts lead to two distinct classes  those in  which validation is necessary and those in which  it  is not.    Such  class  legislation  is  permissible  and   the Legislature is competent to validate procedural defects. [63 H]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 111 to 113, 115 to 117 of 1966. Appeals  by special leave from the judgment and order  dated March  3,  1961 of the Mysore High Court in  Writ  Petitions

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Nos.  1076,  1083 and 1087 of 1959 and 270, 359 and  360  of 1960. C.   K. Daphtary, B. R. L. Iyengar, R. H. Dhebar and S. P. Nayar,    for the appellants (in all the appeals). S.   T.  Desai,  J.  Mahajan, J. B.  Dadachanji  and  P.  R. Srinivasan, for the respondent (in C.A. No. 111 of 1966). Sarjoo  Prasad, B. Datta, J. B. Dadachanji and P. R.  Srini- vasan, for respondent No. 1(in C.A. No. 113 of 1966). R.   Thiagarajan,  for respondent No. 2 (in C.A. No. 113  of 1966). A.   N.  Singh and D. N. Gupta, for the respondent (in  C.A. No. 115 of 1966). J.   B. Dadachanji and P. R. Srinivasan, for the  respondent (in C.A. No. 116 of 1966).                              57 Shyamala  Pappu, M.R. Ramamurthy and Vineet Kumar,  for  the respondent (in C.A.-No. 117 of 1966). The Judgment of the Court was Hidayatullah,  C.J,  These  appeals  by  special  leave  are against  a  common  judgment  of the  High  Court  of  1961, allowing  a  batch  of writ petitions.   By  the  order  now impugned the High Court had quashed two notifications issued under  ss. 4 and 6 of the Mysore Land Acquisition  Act  1894 and  published  in the Mysore Gazette dated May  7,1959  and October  15,  1959, respectively, and restrained  the  State Government  from  acquiring the land affected  by  the  said notifications The State now appeal .  The petitions were directed against the State of Mysore and the Special Land Acquisition Officer, City Improvement Trust Board, Bangalore.  In some of the Petitions there were other respondents  either  with  or  without  the  Special,   Land Acquisition Officer.  Nothing, however, turns upon the array of the respondents. In Mysore there are two Acts bearing on acquisition of  pri- vate land for public purposes.  The first is the Mysore Land Acquisition Act which following the same scheme as the  Land Acquisition Act in force in India.  The other is the City of Bangalore Improvement Act, 1945.  The latter Act constitutes a  Board of Trustees charged with the execution of  the  Act and in its Third Chapter lays down the duties and powers  of the Board and the manner in which improvement schemes are to be  effectuated.   Sections 14 to 18 and s. 27  outline  the procedure  by  which  acquisition of land  is  to  be  made. Section  52 of the Act lays down that any provision  of  law contained  in  any  other  enactment  in  force  in   Mysore repugnant to any provision contained in the Improvement  Act is  to  stand down to the extent of-  the  repugnancy.   The Mysore,  Land Acquisition Act has also sections 4, 5A and  6 analogous to the corresponding sections in the Central  Land Acquisition Act in force in the whole of India. The land in respect of which the present dispute has. arisen is  Survey  No.  2  of  Raja  Mahal  village,  Kasba  Hobli, Bangalore North Taluk.  This land belonged originally to the Maharaja  who  divided it into plots.  The  petitioners  who came before the High Court, are owners of some of the  plots which  were transferred to them by different modes  such  as sale,  gift,  etc.  These, petitioners  acquired  plots  for purposes of their own.  Some, had made lay-outs already with the  prior sanction of the Board and spent money  in  laying out the plots including amount paid out to the Board in this connection.    The  notification  under  s.  4  issued   for acquisition of these plots stated that they were being 7Sup.C.I.169-5 58 acquired for public purpose to wit Raja Mahal Vilas  Layout.

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Many petitions were, filed in the High Court to question the validity  of the action.  It was said that the  Notification under  s.  4  of the Mysore Land  Acquisition  Act  gave  no particulars and was followed by tile Notification under s. 6 with  the  result  that  the  opportunity  under  s.  5A  of objecting  to the acquisition was lost to  the  petitioners. It was also contended that the scheme of layout was feasible only under the Improvement Act through the Board of Trustees for  the  Improvement  of  the City  of  Bangalore  and  the procedure  in  Chapter III of that Act had to  be  followed. The acquisition, however, was being made entirely under  the Land   Acquisition  Act  without  any  advertence   to   the provisions  of  the  Improvement Act.   It  was,  therefore, contended that the action of the Government was ultra-vires, section 52 of the Improvement Act and the provisions of  the Third  Chapter of that Act.  It was also submitted that  the action   in  using  the  provisions  of  the   Mysore   Land Acquisition  Act was discriminatory because in -other  cases the provisions of the Improvement Act were applied. The petitions were filed between the last week- of December, 1959 and the last week of March, 1960.  Before the petitions came  up for hearing the Governor of Mysore  promulgated  on June  9, 1960 an Ordinance called the City of Bangalore  Im- provement (Amendment) Ordinance (No.  1 of 1960) introducing retrospectively s. 27-A.  This was followed by an Act  which reenacted  the  provisions of the Ordinance.  The  Act  was, however,  not reserved for the assent of the President,  nor was his assent taken to its introduction.  By this;  section compliance with the Third Chapter of the Improvement Act was dispensed   with.   The  petitioners  then  challenged   the Amending  Ordinance  and the Amending Act as  not  complying with Arts. 213(1) and 254(1) of the Constitution.  The State of  Mysore relied upon the Mysore Land Acquisition  Act  for the validity of the proceedings.  The petitioners  submitted that  the public purpose was linked up with the  improvement of the city of Bangalore and thus fell to be governed by the Improvement  Act.,  They contended that  the  discrimination still continued if the attempted inclusion of s. 27-A in the City  Improvement Act was held to be  unconstitutional.   It may  be mentioned that in one petition a ground of  estoppel had been raised, as expenditure had been incurred in  laying out  the  plot and the Board had received  payment  for  its sanction. The petitions in the High Court, therefore, proceeded on the following  three broad points : (1) validity of Ordinance  1 of 1960 and the Mysore Act XIll of 1960; (2)  non-compliance with the City of Bangalore Improvement Act, 1945; and (3) 59 discrimination  between two classes of cases, i.e. those  in which  the provisions of Chapter III of the Improvement  Act were followed and those like the case of the petitioners  in which  they  were  not followed.   An  additional  point  of estoppel was special to one petition only. The High Court rightly declared unconstitutional Ordinance 1 of  1960  and the Amending Act XIII of 1960  on  the’  short ground  that the former offended cl. (1) of Art.  213  being promulgated  without the instructions of the  President  and the  latter  offended cl. (2) of Art. 254, and  it  was  not reserved for the consideration of the President and was  not assented  to  by him.  These grounds are so patent  that  no attempt was made before us to urge anything to the contrary. The  High Court next considered the validity of the  notifi- cations  on the ground of discrimination and found that  the provisions  of the Third Chapter of the Improvement Act  had to be, followed in law.  Since they were by-passed, the High

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Court found discrimination between these cases and the cases of  others in which the provisions were followed.  The  High Court  held that this shortened procedure  offended  against the  equality  clause in the Constitution.   The  State  was aggrieved by the decision and this appeal is the result. Before this appeal came up for hearing a Validating Act  was passed by the Legislature of the State.  This Validating Act was reserved for the assent of the President.  The State  in arguing  these appeals seeks support from the provisions  of the  Validating  Act and contends that  the  judgment  under appeal cannot now be supported because of the validation  of the  acquisition  not, withstanding the  provisions  of  the Improvement  Act.   The  case  before  us,  therefore,   was considered under the new Validating Act.  Before we  discuss the  arguments,  which  are  advanced  in  support  of   the decisions of the High Court and those against it we may  set out here the provisions of the Validating Act since they are the  main  subject of controversy in the appeal  before  us. The  Act in question is the Bangalore Acquisition  of  Lands (Validation)  Act, 1962 (Act 19 of 1963).  It  received  the assent of the President on the Fourth day of May, 1963.   As its  long  title  shows  it  is  an  Act  to  validate   the acquisition  under the Mysore Land Acquisition Act, 1894  of lands   by   the  State  Government  for  the   purpose   of improvement,  expansion  or  development  of  the  City   of Bangalore, and the orders passed and the proceedings held in connection  therewith.  The Act is intended to apply to  any area  to which the City of Bangalore Improvement  Act,  1945 extends and validates orders passed and proceedings held  in connection   therewith.   The  Act  consists  of  only   two sections.   The first section gives the short title and  the second section deals with validation of certain  acquisition of lands and                              60 proceedings  and  orders connected  therewith.   The  second section reads as follows :               "2. Validation of certain acquisition of lands               and    proceedings   and   orders    connected               therewith.-               (1)   Notwithstanding  anything  contained  in               the  City of Bangalore Improvement  Act,  1945               (Mysore  Act V of 1945), or in any other  law,               or  in  any judgment, decree or order  of  any               Court,-               (a)   every   acquisition  of  land  for   the               purpose    of   improvement;   expansion    or               development  of the City of Bangalore  or  any               area   to   which  the   City   of   Bangalore               Improvement  Act, 1945, extends, made  by  the               State  Government acting or purporting to  act               under  the Mysore Land Acquisition  Act,  1894               (Mysore, Act VII of 1894), at any time  before               the  commencement  of  this  Act,  and   every               proceeding held, notification issued and order               made  in  connection with the  acquisition  of               land for the said purpose shall be deemed  for               all  purposes to have been validly made,  hold               or  issued,  as  the  case  may  be,  and  any               acquisition  proceeding  commenced  under  the               Mysore  Land  Acquisition Act, 1894,  for  the               said  purpose before the commencement of  this               Act    but   not   concluded    before    such               commencement, may be continued under the  Land               Acquisition Act, 1894 (Central Act 1 of 1894),               as extended to the State of Mysore by the Land

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             Acquisition  (Mysore Extension and  Amendment)               Act  1961  and accordingly no  acquisition  so               made, no proceeding held, no notification  is-               sued and no order made by the State Government               or  by  any authority under  the  Mysore  Land               Acquisition Act, 1894, or the Land Acquisition               Act,   1894,  in  connection  with  any   such               acquisition shall be called in question on the               ground  that  the  State  Government  was  not               competent to make acquisition of land for  the               said  purpose  under the said Act  or  on  any               other ground whatsoever;               (b)   any land to the acquisition of which the               provisions of clause (a) are applicable shall,               after  it has vested in the State  Government,               be  deemed to have been transferred, or  stand               transferred, as the case may be, to the  Board               of Trustees for the improvement of the City of               Bangalore.               (2)   For  the removal of doubts it is  hereby               declared that nothing in sub-section (1) shall               be  construed  as preventing any  person  from               questioning in accordance                                     61               with   the  provisions  of  the  Mysore   Land               Acquisition Act, 1894, of the Land Acquisition               Act,  1894, and the rules made under the  said               Acts,   any   notification   or   order   made               thereunder." Now  the effect of this section is in many  directions.   It applies  first to every acquisition of land for the  purpose of  improvement,  expansion or development of  the  city  of Bangalore  by the State Government, purporting to act  under the  Mysore  Land Acquisition Act but only  to  acquisitions made  before that Act came into force.  Next it  applies  to every proceeding held, notification issued or order made  in connection therewith.  Then it provides that all these shall be  deemed  to  be validly made, held or  issued.   Then  it provides that pending proceedings may be continued under the Mysore  Land  Acquisition  Act and no order made  is  to  be called  in question on the ground that the State  Government was  not competent to make acquisition for the said  purpose under  that  Act  or on any ground  whatsoever.   All  these provisions  are to be effective notwithstanding the City  of Bangalore Improvement Act, 1945 or any other law,  judgment, decree  or  order  of any Court.  The land  to  which  these provisions  apply  is  further to be  deemed  to  have  been transferred  or stand transferred to the Board  of  Trustees for the improvement of the city of Bangalore.  The only room left  for  questioning  any  order  or  notification  is  in accordance   with   the  provisions  of  the   Mysore   Land Acquisition  Act, 1894. the Land Acquisition Act,  1894  and the rules made under those Acts. The  State Government claims that this Validating  Act  cuts short  all controversy.  It has validated all  past  actions notwithstanding  any breach of the, Improvement Act or  -any other  law  or the decree and order of the High  Court.   It further submits that the action cannot be called in question on  the  ground that State Government Was not  competent  to make  the  acquisition  of  land  or  on  any  other  ground whatsoever.   It  further submits that  proceedings  already afoot can continue. This  contention  is met by the respondents  on  three  main grounds.   The first is that there are still two Acts  which cover   the   same  field  but   prescribe   two   different

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procedures . In one procedure there is an inquiry assessment of  the  public purpose preparation of scheme,  and  in  the other,  there  is none.  The,,  more  prejudicial  procedure which is that of the Acquisition Act. must be disallowed  as it  is  discriminatory and therefore the  two  notifications still continue to’ be unconstitutional. The above argument denies to the legislatures the  supremacy which   it  possesses  to  make  laws  on  the  subject   of acquisition.   What  the  Legislature has done  is  to  make retrospectively  a single law for the acquisition  of  these properties.  The Legislature 62 could always have repealed - retrospectively the Improvement Act rendering all acquisitions to be governed by the  Mysore Land  Acquisition Act alone.  This power of the  Legislature is not denied.  The resulting position after the  validating Act   is   not  different.   By  non-obstante   clause   the Improvement  Act is put out of the way and by the  operative part  the  proceedings for acquisition  are  wholly  brought under the Mysore Land Acquisition Act to be continued  only- under that Act.  The Validating Act removes altogether  from consideration  any implication arising from Chapter  III  or Section 52 of the Improvement Act in much the same way as if that Act had not been passed. The Validating Act goes further and says that all the acqui- sitions  shall not be called in question on the ground  that the   State  Government  was  not  competent  to  make   the acquisition.  No claim based upon the failure to observe the Improvement Act can, therefore, be heard.  The State  relies upon  the last six words of the first clause of s.  2(1)  of the Validation Act to contend further, that the  acquisition cannot be called in question on any ground whatsoever except in so far as door for objections is kept open by the  second sub-section.   This  is perhaps a larger  claim  than  these words  warrant.  What those words mean is no more than  that in addition to the ground that the State Government was  not competent,  no  other  ground  based  upon  breach  of   the Improvement  Act  or  any other law is  to  be  entertained. Those  words must be read down.  They do not mean what  they appear to say  Objections for example of breach of the  Con- stitution  or of fundamental rights will of  course  remain. It  is  for  this reason that the  Legislature  enacts  sub- section (2) to remove doubts and expressly allows objections under  the  Mysore Land Acquisition Act, 1894  or  the  Land Acquisition Act, 1894 to be raised, notwithstanding the wide language  of  the last six words of  the  previous  section. Therefore   all  objections  on  the  ground  that  in   the acquisition there has been non-observance of the  provisions of the Improvement Act must fail. Mr.  S. T. Desai, however, contends that an acquisition  hit by  Article  14 or anything done previously cannot  ever  be validated, unless the vice of unreasonable classification is removed  and  the  validating Act is  ineffective  for  that reason.  This argument leads to the logical conclusion  that a  discrimination  arising  from selection of  one  law  for action  rather  than  the other,  when  two  procedures  are available, can never be righted by removing  retrospectively one  of the competing laws from the field.  This is a  wrong assumption.   In Piara Dusadh and others v.  K.E.(1)  trials before special judges (not sessions Judges under the Code of Criminal Procedure) were deemed to be trial before Sessions. (1)  [1944] F.C.R. 61. 63 Judges in accordance with the Code and the Federal Court up- held  the constitutionality of the ordinance by  which  this

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fiction  was created.  The supremacy of the Legislatures  in India,   within   the   constitutional   limits   of   their jurisdiction   is  as  complete  as  that  of  the   British Parliament.  If two procedures exist and one is followed and the  other  ’discarded, there may in a given case  be  found discrimination.   But  the Legislature has  still  the  com- petence  to  put out of action retrospectively  one  of  the procedures leaving one procedure only available, namely, the one followed and thus to make disappear the  discrimination. In  this way a Validating Act can get  over  discrimination. Where, however, the legislative competence is not available, the   discrimination  must  remain  for  ever,  since   that discrimination  can only be removed by a legislature  having power  to create a single procedure out of two and not by  a legislature which has not that power. Here   the  Legislature  was  supreme  in  the,   field   of acquisition.    The  only  curb  on  its  powers   was   the requirement  of President’s assent and that  admittedly  was obtained unlike the previous occasion when the Amending  Act failed  for want of such assent.  Therefore  the  Validating Act  enacted  in 1963 does not suffer from the  defect  from which the Amending Act of 1960 suffered. The  same argument is next put in another way.  It  is  said that  the  Mysore Land Acquisition Act, 1894  and  the  Land Acquisition  Act, 1894 are general laws and they  must  give way  to the special law in the Improvement Act, more  so  in view  of  section 52 of the Act last  mentioned.   But  this again  ignores, the position that after the  Validating  Act there is no Improvement Act to consider. It is contended that acquisition by the Improvement Trust is not  a  public purpose.  We declined to hear  this  argument which  does not arise in the appeal before us since  it  was not raised in the High Court. Mr.  Sarjoo  Prasad also argues that there will be  now  two classes of cases, one in which the Validating Act  dispenses with the procedure of the Improvement Act and those in which the  procedure will be followed.  This is the same  argument in another form and is equally futile.  Class legislation is always permissible.  There is a special class in whose  case the  acquisition  was  under ’the  Acquisition  Act  without following  the procedure of the Improvement Act.  There  are two  distinct classes of cases and the differential  is  the striking down of action in the second class and the need for validation.   All  Validating  Acts  lead  to  two  distinct classes-those in which validation is necessary and 64 those  in  which  it  is  not   The  legislature  is  always competent to Validate procedural defects without  in any way losing  its jurisdiction, by reason of the existence of  the other class. The  arguments that no opportunity was given to  oppose  the acquisition  on  the  ground  that  no  public  purpose  was subserved, must fail because a notification has already been issued  under section 6 of the Land Acquisition Act.  It  is too  late  for  this Court, to enter into  the  question  of public purpose. It remains to consider the argument based on estoppel  which is, claimed in C.A. No. III of 1966.  There is no doubt that the,  High  Court,  has not decided that  issue.   The  writ petition  must therefore be remanded to the High  Court  for the consideration of that ground. The  result therefore is that all appeals are allowed.   All writ petitions: (except 114 which  is to be compromised  and C.A.  No. 111,of 1966 ’in which there is a remand)  will  be dismissed.   There shall, however, be no order as to  costs.

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Writ petition No. 1076 of 1959 (C.A. No. 111 of 1966)  shall stand remanded to the High Court but there shall be no order about costs. Y.P.                      Appeals allowed. 65