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PETITIONER: UDAI RAM SHARMA AND OTHERS ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT: 07/02/1968

BENCH: MITTER, G.K. BENCH: MITTER, G.K. WANCHOO, K.N. (CJ) BACHAWAT, R.S. SHELAT, J.M. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR 1138            1968 SCR  (3)  41  CITATOR INFO :  RF         1973 SC1150  (2)  RF         1974 SC2077  (25)  RF         1975 SC1699  (3)  RF         1975 SC2299  (46,60)

ACT: Land Acquisition (Amendment and Validation) Act, 13 of 1967, ss. 2, 3, 4, 5--Validity of Act--Validation of past  invalid reports  under  s.  5-A of Land  Acquisition  Act  1894  and declarations  under  s.  6  without  removal  of  lacuna  in substantive law whether an encroachment on judicial power by the  legislature--Amendment  whether violates Arts.  14  and 31(2) of Constitution of India 1950.

HEADNOTE: In  the  State of Madhya Pradesh v. V. P. Sharma,  [1966]  3 S.C.R. 557 this Court held that once a declaration under  s. 6 of the Land Acquisition Act 1894 was made the notification under s. 4(1) of the Act was exhausted and there could be no successive notifications under s. 6 with respect to land  in a  locality  specified in one notification  under  s.  4(1). Relying  on  the above judgment the present  writ  petitions were  filed in order to challenge  successive  notifications under s. 6 following a single notification under s. 4(1)  in respect  of land belonging to them.  Meanwhile in  order  to meet the situation created by the judgment in V. P. Sharma’s case the President of India promulgated the Land Acquisition (Amendment  and  Validation)  Ordinance (1  of  1967).   The Ordinance  was  later  followed  by  the  Land   Acquisition (Amendment and Validation) Act 1967.  Section 2 of this  Act purported  to amend s. 5-A of the principal Act by  allowing the making of more than one report in respect of land  which had  been  notified under s. 4(1).  Section 3  purported  to amend  s.  6 of the principal Act  by  empowering  different declarations  to  be made from time to time  in  respect  of different  parcels of land covered by the same  notification under  s.  4(1)  irrespective  of  whether  one  report   or different  reports  had been made under s. 5-A  sub-s.  (2). Section 4 of the Act purported to validate all  acquisitions

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of  land  made  or purporting to have been  made  under  the principal  Act  before  the commencement  of  the  ordinance namely January 10, 1967, notwithstanding that more than  one declaration  under  s. 6 had been made in pursuance  of  the same  notification  under s. 4(1), and  notwithstanding  any judgment, decree or order of any court to the contrary.  The Amending  Act  also laid down time limits  for  declarations under s. 6 of the principal Act after the notification under s  4(1),  had been issued in respect of  notifications  made after  January 20. 1967 the time limit was three  years;  in respect of notification made before that date the time limit was  to  be two years after that date.  Provision  was  also made for payment of interest on compensation due to  persons in  respect of whose land declarations under s. 6  had  been delayed beyond a specified period; no interest was  however, to  be paid to those to whom compensation had  already  been paid. The petitioners by leave of Court amended their petitions to attack the validity of the. aforesaid Validating Act on  the following  main  grounds : (1) By seeking to  validate  past transactions  of a kind which had been declared  invalid  by this Court without retrospectively changing the  substantive law under which the past transactions had been effected  the legislature was encroaching over the domain of the  judicial power   vested   by  the  Constitution  in   the   judiciary exclusively; (ii) The Validating Act did not L4Sup. C.I.1684 42 revive  the  notification  under  s.  4  which  had   become exhausted  after  the first declaration under s.  6  and  no acquisition  following  thereafter could be made  without  a fresh  notification  under s. 4; (iii)  The  Validating  Act violated  Art.  31(2)  of the Constitution  inasmuch  as  it purported   to   authorise   acquisitions   without    fresh notifications under s. 4 thereby allowing compensation to be paid  on  the basis of the said . notification  under  s.  4 without   allowing  for  increase  in  the  value  of   land thereafter; (iv) The Validating Act violated Art. 14 of  the Constitution in various ways. HELD:  Per  Wanchoo C.J., Bachawat & Mitter,  JJ.-  (i)  The American doctrine of well defined separation of  legislative and  judicial  powers  has no application to  India  and  it cannot  be  said  that  an Indian  Statute  which  seeks  to validate  invalid  actions’  is bad if  the  invalidity  has already been pronounced upon by a court of law. A.K.  Gopalan v. State, [1950] S.C.R. 88, referred to. (ii) The absence of a provision in the amending Act to  give retrospective  operation to s. 3 of the Act does not  affect the  validity  of s. 4. It was open to Parliament  to  adopt either  course  e.g.  (a)  to  provide  expressly  for   the retrospective operation of s. 3, or, (b) to lay down that no acquisition purporting to have been made and no action taken before  the  Land  Acquisition  (Amendment  and  Validation) Ordinance,  1967  shall be deemed to be invalid or  even  to have  become invalid because, inter alia, of the  making  of more than one declaration under s. 6 of the Land Acquisition Act,  notwithstanding  any judgment decree or order  to  the contrary.  Parliament was competent to validate such actions and  transactions,  its  power in  that  behalf  being  only circumscribed  by  appropriate entries in the Lists  of  the Seventh  Schedule  and the fundamental rights  set-forth  in Part III of the Constitution.  Section 4 of the Amending Act being  within the legislative competence of Parliament,  the provisions  thereof  are  binding  on  all  courts  of   law notwithstanding judgments, orders or decrees to the contrary

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rendered or made in the past. [67 C-F] Case-law referred to. (iii) The impugned Act does not violate Art. 31(2). The  Act  does  not in express terms  enact  any  law  which directly affects compensation payable in respect of property acquired nor does it lay down any principles different  from those  which  were already in the Land  Acquisition  Act  of 1894.   After the amendment of the Constitution in 1955  the question of compensation is not justiciable and it is enough if the law provides that a person expropriated must be given compensation  for his property or lays down  the  principles therefor. [67 G-H] The Legislature might well have provided in the Act of  1894 that  it would be open to the appropriate  Government  after issuing  a  notification under s. 4 to  consider  objections raised  under s. 5 with regard to the  different  localities from  time  to time enabling different reports to  fie  made under  s. 5-A with consequent adjustments in s. 6  providing for declarations to be made as and when each report under s. 5A was considered.  By the validation of action taken  under s.  6  more than once in respect of  a  single  notification under  s.  4,  the original scheme  of  acquisition  is  not altered.  The public purpose behind the notification remains the  same.  It is not as if a different public  purpose  and acquisition of land for such purpose were being interploated by means of the Validating Act.  Only the shortcoming in the Act  as to want to provision to enable more than one  decla- ration under s. 6 are being removed. [68 D-F] 43 The  date of valuation under the Validation Act is  that  of the  issue of notification under s. 4(1), a principle  which has  held  the field since 1923  Legislative  competence  to acquire  land under the provisions of the  Land  Acquisition Act cannot be challenged because of constant appreciation of land  values  all  over the country  due  to  the  prevalent abnormal inflation.  There must be some time lag between the commencement and conclusion of land acquisition  proceedings and  in  principle there is nothing wrong in  accepting  the said commencement as the date of valuation.  Sections 4  and 23  of the Land Acquisition Act are protected by Art.  31(5) (a) of the Constitution.  Only ss. 5-A and 6 of the Act have been amended.  The amendment does not alter the principle of compensation fixed by the Act nor contravene Art. 31 of  the Constitution in any way. [69 G-70 B] It  cannot be said of the Validating Act that it was  fixing an  arbitrary date for the valuation of the  property  which bore  no  relation  to  the  acquisition  proceedings.   The population  in  Indian cities especially in the  capital  is ever-increasing.   The State has to plan the development  of cities and it is not possible to take up all schemes in  all directions at the same time.  The resources of the State may not  be  sufficient to acquire all the area  required  by  a scheme  at the same time.  Of necessity the area  under  the proposed acquisition would have to be carved into blocks and the  development of one or more blocks at a time could  only be  taken  up in consonance with  the  resources  available. Even  contiguous  blocks could be  developed  gradually  and systematically.   In view of such factors it cannot be  said that  the principle of fixing compensation on the  basis  of the  price prevailing on the date of the notification  under s.  4(1)  of  the Land Acquisition Act was  not  a  relevant principle which satisfied the requirements of Art. 31(2).[70 C-71 H] The  State  of  West Bengal v. Mrs.  Bela  Banerjee,  [1954] S.C.R.  558,  State  of Madras v.  D.  Namasivaya  Mudaliar,

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[1964] 6 S.C.R. 936 and, P.V.  Mudaliar  v. Deputy Collector, [1965]  1  S.C.R.  614, considered. (iv) The validating Act was not violative of Art. 14. Whenever an Amending Act is passed there is bound to be some difference  in  treatment between  transactions  which  have already taken place and those which are to take place in the future.   That by itself will not attract the  operation  of Art. 14.  Again, even with respect to transactions which may be completed in the future, a reasonable classification will not be struck down. [72 C] Jalan  Trading  Co. v. Mazdoor Union, [1967]  1  S.C.R.  15, relied on. It  is  not  possible to say that  because  the  Legislature thought  of  improving upon the Act of 1894  by  prescribing certain  limits  of  time  as from  20th  January  1967  the difference in treatment in cases covered by the notification before  the said date and after the said date  denies  equal protection   of  laws  because  the  transactions  are   not similarly  circumstanced.  Some of the notifications  issued under s. 4 must have been made even more than 3 years before 20th  January,  1967 and such cases obviously could  not  be treated  in the same manner ’as notifications  issued  after that  date.   Art.  14 does not  strike  at  differentiation caused  by  the  enactment of  a  law  between  transactions governed  thereby and those which are not so governed.   [73 H-74 B] Hatisingh Manufacturing Co., Ltd. v. Union of India,  [1960] 3 S.C.R. 528. No  grievance  can  be made because interest  is  denied  to persons who have   already  taken  the  compensation.   Even  here   the classification is not unreasonable and cannot be said to  be unrelated to the object of the Act. [74 E-F] 44 Per Shelat and Vaidialingam, JJ. (dissenting)- By  validating the acquisition orders and declarations  made on  the  basis of an exhausted notification under s.  4  the impugned  Act saves government from having to issue a  fresh notification  and having to pay compensation  calculated  on the  market value as on the date of such fresh  notification and  depriving the expropriated owner of the benefit of  the appreciated value in the meantime.  The real object of s.  4 of the impugned Act is thus to save the State from having to compensate  for  such  appreciation  under  the  device   of validating  all  that  is  done  under  an  exhausted  s.  4 notification  and  thus in reality fixing an  anterior  date i.e.  the date of such a dead s. 4 notification  for  fixing the compensation.  The impugned Act thus suffers from a  two fold  vice : (i) that it purports to  validate  acquisitions orders   and   notifications   without   resuscicating   the notification under s. 4 by any legislative provision on  the basis of which alone the validated acquisitions, orders  and declarations  can  properly be sustained and (ii)  that  its provisions are in derogation of Art. 31(2) as interpreted by this  Court by fixing compensation on the basis of value  on the  date  of  notifications under s.  4  which  had  become exhausted   and  for  keeping  them  alive  no   legislative provision  is  to  be  found in the  impugned  Act.   It  is therefore  not  possible  to agree with the  view  that  the purpose  of  s.  4  is to fill the  lacuna  pointed  out  in Sharma’s case nor with the view that it raises a question of adequacy  of compensation.  The section under the  guise  of validating   the  acquisitions,  orders  and   notifications

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camouflages  the  real object of  enabling  acquisitions  by paying  compensation  on  the  basis  of  values  frozen  by notifications   under  s  4  which  by   part   acquisitions thereunder  had lost their efficacy and  therefore  required the  rest  of  the land to be  notified  afresh  and  paying compensation  on the date of such fresh notifications.   The fact  that neither s. 4 nor s. 23 of the principal  Act  are altered does not make any difference. [89 D-H, 85 H] Section 4 of the Amending Act must therefore be struck  down as invalid. [90 A]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petitions Nos. 114, 216, 223 and 252 of 1966 and 85 of 1967. Petitions under Article 32 of the Constitution of India  for the enforcement of fundamental rights. C.B. Agarwala and K. P. Gupta, for the petitioners (in W.P.s Nos. 114, 216 and 252 of 1966 and 85 of 1967.) R.V. S. Mani and K. P. Gupta for the petitioner (in  W.P. No. 223 of 1966). Niren  De,  Solicitor-General, B. R. L. lyengar  and  R.  N. Sachthey  for the respondents (in W.Ps. Nos. 114 and 216  of 1966). Niren  De, Solicitor-General, R. H. Dhebar and R.  N.  Sach- they,  for respondents Nos. 1 to 5 (in W.P. No. 223 of  1966 and the respondents (in W. P. No. 85 of 1967). R.  N. Sachthey, for respondent No. 9 (in W. P. No.  223  of 1966). M.  K.  Ramamurthi,  Vineet Kumar  and  Shyamala  Pappu  for respondents Nos. 12(a) to 12(d) (in W.P. No. 223 of 1-966). 45 V.  A . Seyid Muhammad and R. H. Dhebar and R. N.  Sachthey, for respondents Nos.  1 to 5 (in W. P. No. 252 of 1966). P.C. Bhartari, for the intervener (in W.P. No. 114 of 1966). The Judgment of WANCHOO, C.J., BACHAWAT and MITTER, JJ.  was delivered  by MITTER, J.  The dissenting opinion  of  SHELAT and VAIDIALINGAM, JJ. was delivered by SHELAT, J. Mitter,  J. Ms is a group of five Writ Petitions under  Art. 32  of  the  Constitution  challenging  in  four  cases  the validity  of  land  acquisition  proceedings  started  by  a notification dated November 13, 1959 under s. 4 of the  Land Acquisition   Act  and  declarations  contained   in   other notifications dated March 18, 1966 onwards under s. 6 of the said  Act  and for other incidental  reliefs  including  the issue  of  appropriate  writs  for  the  purpose.    Various persons.  have  joined  as  petitioners  in  three  of   the applications.   In  Writ  Petition  No.  114  of  1966   the petitioners  number  61.   They all  own  lands  in  village Mandawali  Fazilpur,  on Patparganj Road  within  the  union territory  of  Delhi, the notification  of  the  declaration under,  s.  6 having been made on March 18,  1966.  in  Writ Petition  No. 216 of 1966 there are 71 petitioners who  also own lands in the same village.  Their complaint is based  on the  same notification under s. 4 and a  notification  dated July  12, 1966 under s. 6 of the Act.  In Writ Petition  No. 223  of  1966 the single petitioner is Pandit Lila  Ram  who owned  lands  in  villages Masjid  Moth,  Raipur  Khurd  and Shahpur  Jat  respectively  within the  union  territory  of Delhi.  His complaint is based on a s. 4 notification  dated September 3, 1957, a notification dated April 15, 1961 under s. 6 of the Act and several awards of Land Acquisition  Col- lector,  Delhi  made in 1961.  In Writ Petition No.  252  of 1966, there are eight petitioners who owned lands in village

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Kotla  at  Patparganj  Road within the  union  territory  of Delhi.   Their grievance is against s. 4 notification  dated November  13,  1959 and a notification dated June  14,  1961 under s. 6 of the Act.  In Writ Petition No. 85 of 1967  the sole petitioner is one Rai Bahadur Sohan Lal who owned  land in  village  Kilokri on the Delhi-Mathura  Road  within  the union  territory  of Delhi.  His grievance is against  s.  4 notification  dated November 13, 1959, a notification  dated July  27,  1961  under s. 6 of the Act and  an  award  dated February 16, 1962. Although there are some distinctive features in some of  the petitions to be mentioned later, the common attack is  based on the judgment of this Court delivered on February 9,  1966 in  State .of Madhya Pradesh v. V. P. Sharma(1).  That  case arose  out of proceedings for acquisition of land in  eleven villages in Madhya Pradesh for the steel plant at  Rourkela. There  a notification had been issued under s. 4(1)  of  the Land- Acquisition Act on May 16, (1) [1966] 3 S.C.R. 557. 46 1949  declaring  that lands in eleven  named  villages  were likely to be needed for a, public purpose i.e., the erection of an iron and steel plant.  Thereafter, notifications  were issued  under  s.  6 from time to time  and  some  lands  in village Chhawani were acquired in the year 1956.  In  August 1960  a fresh notification under s. 6 of the Act was  issued proposing  to  acquire,  Ac.  486-17 of  land  in  the  said village.   Some owners of the land in the village  who  were affected   by  the  notification  filed  ’a  writ   petition challenging the validity of the notification under s. 6. The High Court accepted their contention whereupon the State  of Madhya Pradesh came up to this Court in appeal.  It was held by this Court that ss. 4, 5-A and 6 of the Land  Acquisition Act  were integrally connected and that  acquisition  always began  with  a  notification  under  s.  4(1)  followed   by consideration  of all objections thereto under s. 5-A and  a declaration  under  s. 6. According to this  Court,  once  a declaration  under s. 6 was made the notification  under  s. 4(1)  was  exhausted  and  the  latter  section  was  not  a reservoir from which the Government might from time to  time draw  out  land  and make declaration  with  respect  to  it successively.  The ultimate conclusion was that there  could be  no successive notifications under s. 6 with  respect  to land  in a locality specified in one notification  under  s. 4(1)  and  in  the  result, the  appeal  of  the  State  was dismissed.  The present Writ Petitions were all filed  after the said judgment of this Court. The  omnibus notification under s. 4 in four of these  cases dated  November  13, 1959 covered an area of  Ac.  34,070-00 marked  as blocks Nos.  A to T and X in a map enclosed  with the  notification  excepting therefrom  certain  classes  of lands,  namely,  (a) Government land and evacuee  land,  (b) land already notified either under s. 4 or under s. 6 of the Act  for  any Government scheme, (c) land  already  notified either  under  S.  4 or under s. 6 for  house  building  co- operative  societies  mentioned  in annexure  (iii)  to  the notification and the land under graveyards, tombs,  shrine-, and  those  attached  to  religious  institutions  and  wakf property, The notification stated that land was required  by the  Government at the public expense for a public  purpose, namely, the planned development of Delhi.  As already noted, there  were several notifications under s. 6 made from  time to time, the earliest one in this series of petitions  being dated  June 14, 1961.  It is clear that on the basis of  the judgment  of  this Court the validity of  the  notifications

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under  s. 6 of the Act after the first of the  series  could not be upheld in A court of law. On  January  20, 1967 an Ordinance was  promulgated  by  the President  of India styled The Land  Acquisition  (Amendment and  Validation) Ordinance (1 of 1967).  The scheme  of  the Ordinance  was that the Land Acquisition Act of 1894 was  to have  effect, subject to the amendments specified in  ss.  3 and 4 of the Ordin- 47 ance.   Section  3  purported to amend s. 5-A  of  the  Land Acquisition  Act (hereinafter referred to as  the  principal Act) by enabling different reports to be made in respect  of different  parcels  of  land  under  s.  5-A  of  the   Act. Similarly, s. 4 of the Ordinance purported to amend s. 6  of the  principal Act by enabling different declarations to  be made  from time to time in respect of different  parcels  of land covered by the same notification under s. 4. Section  5 of  the Ordinance purported to validate all acquisitions  of land  made  or  purporting  to  have  been  made  under  the principal  Act  before the commencement  of  the  Ordinance, notwithstanding  any judgment, decree or order of any  court to the contrary. On April 12, 1967 Parliament passed an Act (Act 13 of  1967) styled  The  Land  Acquisition (Amendment  and  Short  Title Validation)  Act, 1967.  Section 2 of this Act purported  to amend  S.  5-A of the principal Act to allow the  making  of more  than  one  report in respect of land  which  had  been notified  under s. 4(1).  Section 3 similarly  purported  to amend  s.  6 of the principal Act  by  empowering  different declarations  to  be made from time to time  in  respect  of different  parcels of land covered by the same  notification under  s.  4(1)  irrespective  of  whether  one  report   or different  reports  had been made under s. 5-A  sub-s.  (2). Clause  (ii)  of  s. 3 inserted a new  proviso  to  s.  6(1) reading.:               "Provided  that no declaration in  respect  of               any particular land covered by a  notification               under  section 4, sub-section  (1),  published               after the commencement of the Land Acquisition               (Amendment  and Validation)  Ordinance,  1967,               shall be made after the expiry of three  years               from the date of such publication." As  a. good deal of argument turns on the interpretation  of s.  4 of the Amending Act, it is necessary to set  the  same out in extenso : "4. (1) Notwithstanding any judgment, decree or order of any court 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 (Amendment and Validation) Ordinance, 1967, 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 one or more Collectors have performed the functions of Collector under the principal Act in respect of the  land covered  by the same notification under sub-section  (1)  of section 4 of the principal Act; (ii)that  one  or more reports have been  made  under  sub- section (2) of section 5-A of the principal Act, whe- 48 ther  in  respect of the entire land, or  different  parcels thereof, covered by the same notification under  sub-section (1) of section 4 of the principal Act; (iii)  that  one or more declarations have been  made  under

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section  6  of  the principal Act in  respect  of  different parcels of land covered by the same notification under  sub- section (1) of section 4 of the principal Act; (b)  any  acquisition  in  pursuance  of  any   notification published  under sub-section (1) of section 4 of  the  prin- cipal  Act before the commencement of the  Land  Acquisition (Amendment and Validation) Ordinance 1967, may be made after such  commencement  and no such acquisition  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. (2)  Notwithstanding  anything  contained in clause  (b)  of sub-section  (1),  no  declaration under section  6  of  the principal Act in respect of any land which has been notified before  the commencement of the Land Acquisition  (Amendment and  Validation) Ordinance, 1967, under sub-section  (1)  of section  4  of the principal Act, shall be  made  after  the expiry  of  two  years from the  commencement  of  the  said Ordinance. (3)Where  acquisition of any particular land covered by  a notification  under  sub-section  (1) of section  4  of  the principal Act, published before the commencement of the Land Acquisition  (Amendment and Validation) Ordinance, 1967,  is or  has  been  made in pursuance of  any  declaration  under section 6 of the principal Act, whether made before or after such commencement, and such declaration is or has been  made after the expiry of three years from the date of publication of  such notification, there shall be paid simple  interest, calculated  at  the rate of six per cent per  annum  on  the market value of such land, as determined under section 23 of the  principal  Act,  from the date of expiry  of  the  said period  of three years to the date of tender of  payment  of compensation awarded by the Collector for the acquisition of such land : Provided  that  no such interest shall be  payable  for  any period  during which the proceedings for the acquisition  of any  land were held up on account of stay or  injunction  by order of a court 49               Provided  further  that nothing in  this  sub-               section shall apply to the acquisition of  any               land where the amount of compensation has been               paid  to  the persons  interested  before  the               commencement of this Act." Section 5 of the Amending Act repealed the Land Acquisition, (Amendment and Validation) Ordinance, 1967 and further  pro- vided that notwithstanding such repeal, anything done or any action taken under the principal Act as amended by the  said Ordinance  shall be deemed to have been done or taken  under the principal Act as amended by,_this Act as it this Act had come into force on the 20th January, 1967. The  petitions before us were amended by leave of the  Court so  that  the Validation Act of 1967 could.  be  challenged. Mr. C. B. Agarwala who appeared for the petitioners in  Writ Petitions  Nos. 114, 216, 252 of 1966 and 85 of 1967  raised the  following points in support of the petitions : (1)  The Validation  Act does not revive the notification under s.  4 which  had  become exhausted. after  the  first  declaration under s. 6 and no acquisition could be made without a  fresh notification  under  s. 4. (2) The Validation  Act  violated Art. 31( 2) of the Constitution inasmuch as it purported  to authorise acquisitions without fresh notifications under  s. 4  thereby allowing compensation to be paid on the basis  of

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the dead notification under s. 4. It was argued that once  a notification under s. 4 was exhausted Government had to make a  fresh  one under the said section; as  a  result  thereof compensation  had  to  be  assessed  on  a  different  basis altogether.  (3) The Validation Act violated Art. 14 of  the Constitution in various ways - (a)  It-  made  discrimination inasmuch  as  a  notification under-s.  4  made before the commencement of  the  Ordinance had  to be followed by a declaration under s. 6  within  two years of the said’ date, whereas if a notification under  s. 4  was  made after 20th January 1967 i.e. the  date  of  the Ordinance, the declaration under s. 6 could be made within a period  of  three years from the date  of  the  notification under s. 4. The discrimination lay in the fact that  whereas a  declaration  under s. 6 had to be made in  respect  of  a notification  under  s. 4 bearing date  subsequent  to  20th January  1967  within three years, a much longer  period  of time  might elapse between a date of declaration under s.  6 and  a notification under s. 4 issued prior to the  date  of the Ordinance. (b) If a notification under s. 4 was made after the date  of the  Ordinance, compensation had to be paid on the basis  of such notification but if a notification had been made  under s.  4  of  the  Act  before  the  date  of  the   Ordinance, compensation would be awarded on the basis, of the exhausted notification under s. 4 however much time might have elapsed since the date of the dead notification. 50 (c)If compensation had not been paid before the Ordinance, interest  at 6% had to be paid to the owner of the  land  on the  ,amount  of compensation fixed, but if  the  owner  had received  compensation before the date of the Ordinance,  he had  no claim to interest although the acquisition  in  both cases flowed from the same notification under s. 4. (d)  It was open to Government to make a fresh  notification under  s. 4 after the lapse of three years from the date  of the  Ordinance and such notification might be  issued  after every period of three years in any case where acquistion was not  completed.   In  such cases, owners of  land  would  be substantially benefited by the new notification under s.  4. But  if a notification had been made before the date of  the Ordinance, the owner of the land would receive  compensation based on the old notification although a period much  longer than  three  years  might elapse between  the  date  of  the notification  under s. 4 and a declaration under s.  6,  his only solatium being interest at 6% p.a. on the amount of the compensation.  This would result in discrimination  inasmuch as  a  person affected by a s. 4 notification prior  to  the date  of  the Ordinance would be treated.  very  differently from  another person whose land was acquired in terms  of  a notification made after the commencement of the Ordinance. On the first point, it was argued by Mr. Agarwala that ss. 2 :and  3 of the Amending Act had no retrospective  operation, that   there  was  no  law  which  purported   to   validate retrospectively  any but the first report made under s.  5-A of the principal Act or any but the first declaration issued under  S. 6 of the Act and consequently there was  no  legal basis for the validation of such past acts by the  operation of  s.-4 of the Amending Act.  It was therefore argued  that the defect in the principal Act as pointed out by this Court in  V.  P. Sharma’s case(1) was not removed by s. 4  of  the Amending  Act.  It was urged that Acts seeking  to  validate past  transactions  can only be effective if  the  amendment introduced  had  retrospective operation so as to  cure  the lacuna ’in the enactment from a date anterior to that of the

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impugned   transactions.   If  the  Amending  Act   had   no retrospective   operation,   it  could  not   protect   past transactions  which would still have to be declared  invalid inasmuch as the notification under S. 4 made on November 13, 1959  having  exhausted itself after the  first  declaration under  S.  6 was not resusciated by any  provision  ,of  the Amending Act. On the second point, the broad contention urged was that the amendment was hit by Art. 31(2) of the Constitution inasmuch as  its  whole  purpose was to  avoid  payment  of  enhanced compensation   which  would  be  necessitated  if  a   fresh notification  had to be issued under s. 4. The  notification dated November 13, 1959 (1) [1966] 3 S.C.R. 557. 51 having spent itself, a fresh one in the normal course  would have to be issued and compensation be paid not on the  basis of valuation on November 13, 1959 but on that prevailing  at least  8 or 9 years afterwards which would be  substantially higher.  It was argued that acquisition on the basis of  any declaration under S. 6 of the Act after the first one  would in  effect be providing for compensation on the basis  of  a notification  under  s.  4  which had  no  relation  to  the acquisition.   In  other  words, the  date  of  the  earlier notification  under s. 4 must be treated to be an  arbitrary date divorced, from and completely alien to the  acquisition sought to be made by a subsequent declaration under S. 6. In such  circumstances, the ratio of a number of  decisions  of this Court starting from that of The State of West Bengal v. Mrs. Bela Banerjee(1) to a recent judgment in Union of India v.Kamalabai  Harjivandas Parekh and others(2)  would  apply. It  is  not  necessary to examine  all  these  decisions  in detail.   The notable decisions to which reference was  made at  some  length are P. V. Mudaliar v.  Dy.   Collector(3),, Jeejeebhoy v. Asstt.  Collector(4)and State of Madras v.  D. Namasivaya Mudaliar(5).  It was argued that though the  Land Acquisition  Act  was  saved  by  Art.  31(5)  (a)  of   the Constitution,   any  amendment  thereto  after  the   coming into force of the Constitution had to pass the test of  Art. 13  and  Art.  31(2)  would apply with  full  force  to  any amendment of the Land Acquisition Act if as a result thereof a  person expropriated was being deprived  of  compensation, i.e.,  the  just equivalent of the property  acquired.   The point  sought  to  be  made was  that  the  notification  of November 13, 1959, having exhausted itself, the value of the property  at  or  about that date  would  be  illusory  com- pensation  in  violation  of  Art. 31(2)  in  respect  of  a declaration  under  S.  6 made after the first  one  of  the series.   Reference was made to proceedings  for  compulsory acquisition of land in England under the Lands Clauses  Acts under   which  "once  the  undertakers  or   authority   are authorised  to purchase, the next step in the normal  course is  to  serve  a notice to  treat"-see  Halsbury’s  Laws  of England,   third  edition,  Vol.  10,  page  60,  Art.   97. It is pointed out in Art. 102 of the said book that               "The effect of serving a notice to treat is to               establish   a  relation  analogous   in   some               respects to that of a purchaser and vendor,  a               relation  which binds the undertakers to  take               the land and binds the, land-owner to give  up               the  land subject to his being paid  compensa-               tion,  but until the price is ascertained  the                             land  remains  the property of  the  l andowner.               Both parties have the

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(1) [1954] S.C.R. 558. (2)  C.A. 1564/1966 decided on 7-9-1967. (3)  [1965] 1 S.C.R. 614. (4)  [1965] 1 S.C.R. 636. (5)  [1964] 6 S.C.R. 936. 52               right  to have the price ascertained  and  the               purchase  completed in manner provided by  the               Lands Clauses Acts." It  was said that the English procedure ensured the  payment of  just  equivalent of the property to the person  who  was deprived  of it and that issue of a declaration under  s.  6 made  years  after the notification under s. 4 the  date  of which alone was to be considered for fixing the value of the property,  ignored  the rights of the person to  the  lawful compensation  aimed  at by Art. 31(2) of  the  Constitution. Reference was made to the judgment of the Judicial Committee of  the  Privy  Council in Ezra v. Secretary  of  State  for India(1)  where on a reference to the sections of  the  Land Acquisition Act as they then stood, it was observed :               "that  the  expert official charged  with  the               duty of fixing a value should-be possessed  of               all  the  information  in  the  hands  of  the               department, and should at the same time  avail               himself of all that is offered at the enquiry,               his  ultimate duty being not to  conclude  the               owner  by his so-called award, but to fix  the               sum,  which in Ms best judgment is  the  value               and should be offered." On the question of violation of Art. 14 of the Constitution, besides  the  general argument already referred to,  it  was urged  that  in  Writ Petition No. 85 of 1967  there  was  a further point as to discrimination.  The facts laid in  this petition  are as follows.  The petitioner was the  owner  of land  measuring Ac. 10-62 in village Kilokri.  He wanted  to develop  the land by establishing a residential  colony  and selling  the  same out in plots.  For this purpose,  he  had spent  a good deal of money and taken enormous  trouble  and divided  the  area  after development  into  78  residential plots.  In 1956 he had submitted a lay out plan of the  land in question for necessary, sanction to the Delhi Development Provisional Authority.  On June 18, 1956 he was informed  by the Delhi Development Provisional Authority that the,  final lay  out plan had been approved by the said  authority.   In September   1957  the  said  authority  demanded  from   the petitioner  a security for Rs. 12,850-25 as a guarantee  for carrying  out  the development of the colony  in  accordance with the approved standards and this sum was duly  deposited by  the  petitioner.  On September 15, 1958  the  petitioner submitted  service plans in respect of his colony and  these were  duly checked and found to be in order : the  case  was ordered  to be Placed before the Standing Committee  of  the Municipal  Corporation for approval.  By December  24,  1958 the Standing Committee’referred the case R. 32 Calcutta 605 at 629. 53 back  to  the Town Planner for a scrutiny of  the  ownership documents.  The question relating to the proof of  ownership was  settled  on  March  19, 1961.   In  the  meantime,  the notification  dated November 13, 1959 had been issued  under s.  4(1)  of  the  Act.   The  petitioner  duly  filed   his objections under s. 5-A of the Act.  By a notification dated July 1, 1960 published by the Delhi Administration the Chief Commissioner,  Delhi, withdrew the land of 16 colonies  from the acquisition out of the area covered by the  notification

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of  November 13, 1959 on the ground that their lay out  plan had  been sanctioned by the Delhi Municipal Corporation  and as  per  general decision of the Standing  Committee,  Delhi Municipal Corporation, the petitioner was asked by the  Town Planner  by  letter  dated April 16, 1960 to  submit  a  de- notification  certificate  to  the  effect  that  the   land comprising  the proposed lay out of his colony was  excluded from  the purview of the notification issued under s.  4  of the Act.  On June 14, 1961 the Deputy Housing  Commissioner, Delhi Administration, issued the first notification under s. 6 of the Act in respect of 97 bighas and 4 biswas of land in village  Kilokri as required by the Government for a  public purpose   at  the  public  expense,  namely,   the   planned development of Delhi.  The petitioners land was not  covered by  this  notification.  The  Deputy  Housing  Commissioner, Delhi  Administration,  purported  to  issue  another  noti- fication  dated  26/27th July, 1961 under s. 6  of  the  Act declaring that land specified therein in village Kilokri was required to be taken by the Government at public expense for a public purpose.  This notification covered the petitioners land in question in village Kilokri.  On January 9, 1962 the petitioner was informed by a letter issued by the office  of the  Town  Planner, Municipal Corporation, Delhi,  that  the Standing  Committee  of  the Municipal  Corporation  by  its resolution No. 1190 dated December 18, 1961 had rejected the lay  out plan of the petitioner’s colony.  According to  the petitioner,  this resolution went to show that his land  was sought  to be acquired because it had not  been  de-notified along with the land of the other colonies on the ground that the Standing Committee had rejected the lay out plan of  his colony.   Thereafter the Land Acquisition Collector,  Delhi, made an award No. 1276 dated February 16, 1962 with  respect to the petitioner’s said land.  In March 1965 the petitioner learnt   about   the  notification  issued  by   the   Delhi Administration  on  July 1, 1960 under s. 48(1) of  the  Act withdrawing  the land of the 16 colonies  mentioned  therein from  the  acquisition  out  of  the  area  covered  by  the notification  dated  November 13, 1959 on  the  ground  that their  lay  out  plan  had  been  sanctioned  by  the  Delhi Municipal  Corporation.  By letter dated March 10, 1965  the petitioner  asked  the Deputy  Housing  Commissioner,  Delhi Administration,  for  restoration of his land  on  the  same basis because his lay out plan 54 had  been  sanctioned before the s.  4  notification.   This request was however turned down by letter dated May 14, 1965 on  the ground that the petitioner’s land had  already  been acquired  and  could  not be  released.   According  to  the petitioner,  there was no basis for treating his land  in  a manner  different  from  that  of  the  16  colonies.   This differential treatment has resulted in violation of Art.  14 of  the  Constitution so far as the petitioner’s  colony  is concerned. Mr.  Agarwala also tried to make a subsidiary point in  this connection  and urged that acquisition of petitioner’s  land was  a  colourable  exercise  of the  power  under  the  Act inasmuch  as the petitioner was out to do the same thing  as was  sought  to  be  achieved  by  proceedings  under   Land Acquisition Act, the only difference being that whereas  the sales  effected  by  him were  at  reasonable  rates,  those fetched at auction of lands acquired under the Act were  for much higher figures and the State was really making  revenue out of such acquisitions. Mr.  R. V. S. Mani who appeared for the petitioner  in  Writ Petition  No.  223  of 1966 adopted  the  arguments  of  Mr.

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Agarwala  in general but sought to make a special  point  of his  own.  In substance the additional ground urged  by  him was that by the Validating Act the Legislature had sought to encroach  into  the  domain  of  the  Judiciary.   Mr.  Mani contended  that  although there was no clear  separation  of legislative   and  judicial  powers  in  our   Constitution, nevertheless  the  Constitution  did  not  confer  unlimited powers  on the legislature and it was for the  Judiciary  to declare  the limits of the legislative powers  enshrined  in the Constitution.  To quote Mr. Mani’s words :               "The  Legislature exercises judicial power  if               its  legislative  action  retroacts  on   past               controversies  and overrides or  reverses  the               decisions of the Judiciary." Such  an  act,  argued Mr. Mani, bad to be  struck  down  in courts of law. Mr. Mani’s main argument was that inasmuch as ss. 2 and 3 of the  Amending Act had not been given  retrospective  effect, the validation sought to be effected by s. 4 with respect to the  past  transactions  was of no  avail  as  the  impugned actions, i.e., the subsequent declarations under s. 6 of the Act, had no legal basis. In our opinion no useful purpose will be served by referring to  the  clear demarcation between the judicial  powers  and legislative  powers  in America and attempt to  engraft  the said  principle  in the working of our  Constitution.   This development of the 55 law, as pointed out in A. K. Gopalan v. State(") was due  to historical reasons.  In that case it was pointed out by Das, J. (see, at p. 286) that               "the Supreme Court of the United States, under               the  leadership  of  Chief  Justice  Marshall,                             assumed   the   power  to   declare any   law               unconstitutional  on  the ground  of  its  not               being in "due process of law," It is thus that               the   Supreme   Court  established   its   own               supremacy over the executive and the Congress.               In  India  the position of  the  Judiciary  is               somewhere in between the Courts in England and               the United States.  While in the main  leaving               our  Parliament  and  the  State  Legislatures               supreme   in  their   respective   legislative               fields,  our Constitution has, by some of  the               articles,  put  upon the  Legislature  certain               specified       limitations.........       Our               Constitution, unlike the English Constitution,               recognises  the  Court’s  supremacy  over  the               legislative authority, but such supremacy is a               very  limited one, for it is confined  to  the               field   where   the   legislative   power   is               circumscribed  by limitations put upon  it  by               the   Constitution   itself.    Within    this               restricted field the Court may, on a  scrutiny               of the law made by the Legislature, declare it               void  if it is found to have transgressed  the               constitutional limitations." It  will not serve any useful purpose to note the  decisions of  this  Court  where  reference  has  been  made  to   the distinction  between, the Indian Constitutional law and  the American  Constitutional  law  on this  subject.   Mr.  Mani sought  to rely on a statement of the law made by Cooley  in his  Constitutional Limitations, 7th ed., p. 137, as  quoted in  Willoughby’s Constitution of the United  States,  second

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edition, Vol. 3, at page 1651 that               "If   the   legislature  would   prescribe   a               different rule for the future from that  which               the  courts  enforce,  it  must  be  done   by               statute,  and cannot be done by a  mandate  to               the courts which leaves the law unchanged, but               seeks  to  compel the courts to  construe  and               apply  it not according to the  judicial,  but               according to the legislative judgment.........               If  the  legislature  cannot  thus  indirectly               control the action of the courts, by requiring               of them a construction of the law according to               its  own views, it is very plain it cannot  do               so directly, by setting aside their judgments’               compelling them to grant new trials,  ordering               the discharge of offenders, or directing  what               particular   steps  shall  be  taken  in   the               progress of a judicial. inquiry. (1)  [1950] S.C.R. 88 at 198. 56 According to Willoughby,               "Retroactive   legislation,  which  does   not               impair  vested  rights,  or  violate   express               constitutional  prohibitions,  is  valid,  and               therefore, particular legal remedies, and,  to               a  certain  extent, rules of evidence  may  be                             changed  and,  as changed, made  appli cable  to               past  transactions,......    But   substantial               rights may not thus be interfered with." Willoughby  seeks  to  fortify his  statement  quoting  from Cooley again :               "The  legislature does, or may, prescribe  the               rules  under  which  the  judicial  power   is               exercised  by the courts; and in doing  so  it               may  dispense, with any of  those  formalities               which are not essential to the jurisdiction of               the  court; and whatever it may dispense  with               by  statute  anterior to the  proceedings,  we               believe  it may also dispense with by  statute               after the proceedings have been taken, if  the               court  has  failed  to observe  any  of  those               formalities.   But it would not  be  competent               for  the legislature to authorize a  court  to               proceed  and  adjudicate upon  the  rights  of               parties, without giving them an opportunity to               be heard before it and, for the same reason it               would be incompetent for it, by  retrospective               legislation,  to  make valid  any  proceedings               which  had been had in the courts,  but  which               were  void for want of jurisdiction  over  the               parties." Relying  on the above Mr. Mani proceeded to argue  that  the wording  of s. 4 of the Amending Act was not a  question  of mere form and that it was a decree purporting to operate  as such.  According to him unless s. 3 was’ retrospective, s. 4 would  be meaningless and should be struck down.   Mr.  Mani relied particularly on the decision of the Federal Court  in Basanta  Chandra Ghose v. King Emperor(1) where it was  held by  this Court that Ordinance No. III of 1944 did  not  take away  the  power of the court to investigate  and  interfere with  orders of detention or deprive the court of its  power to  pass orders under s. 491 of the Criminal Procedure  Code and the court was still at liberty to investigate whether an order  purporting  to,  have been made under r.  26  of  the

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Defence  of  India Rules and deemed to be  made  under  .the Ordinance  or  a new order purporting to be made  under  the ,Ordinance was in fact validly made, in exactly the same way as immediately before the promulgation of the Ordinance; and if on a consideration the Court came to the conclusion  that it was not (1)  [1944] F.C.R. 295. 57 validly made on any ground other than the ground that r.  26 of  the Defence of India Rules was ultra vires s. 10 of  the Ordinance  would no more prevent it from so finding than  S. 16 of the Defence of India Act did.  We shall deal with  the argument based on this case later on. The learned Solicitor General first dealt with the  question as   to  whether  Parliament  was  competent  to  pass   the Validating Act and whether s. 4 of the Amending Act could be given  effect to unless the legislature  gave  retrospective operation to section 3. According to the Solicitor  General- and that is undoubtedly the position in law-the  legislative competence of Parliament is only circumscribed by the  scope of  the entries in the appropriate Lists under  the  Seventh Schedule and the fundamental rights enshrined in Part III of the Constitution.  The power of Parliament to make laws  for the  whole  or any part of the territory of India  is  dealt with  by the Constitution in Arts. 245 to 250, 252 and  253. Acquisition  and requisitioning of property is an  entry  in List III and Parliament is competent to make laws enumerated in  that  list under Art. 246(2) of  the  Constitution.   As early as in the year 1878 it was pointed out by the Judicial Committee of the Privy Council in The Queen v. Burah(1) that the  Indian  Legislature  when  acting  within  the   limits prescribed  (by  the Act of the  Imperial  Parliament  which created  it) had plenary powers of legislation as much,  and of the same nature as those of Parliament itself and               "If what has been done is legislation,  within               the  general  scope of the  affirmative  words               which  give the power, and if it  violates  no               express condition or restriction by which that               power is limited (in which category would,  of               course,  be included any Act of  the  Imperial               Parliament at variance with it), it is not for               any Court of Justice to inquire further, or to               enlarge  constructively those  conditions  and               restrictions." In that case the question before the Judicial Committee  was whether Act XXII of 1869 of the Indian Legislature which ex- cluded  the  jurisdiction of the High Court  within  certain specified  districts  was not inconsistent with  the  Indian High Courts Act or with the Charter of the High Court and so in  its  general scope within the legislative power  of  the Governor-General  in  Council.  Under s. 4 of that  Act  the territory   known  as  Garo  Hills  was  removed  from   the jurisdiction of the Courts of Civil and Criminal  Judicature and from the control of the officers of revenue, constituted by  the regulations. of the Bengal Code and the Acts  passed by any Legislature established in British India as well ,is (1) L.R. 5 I.A. 178 at 194. L4Sup.  C.I./68-5 58 from  the law prescribed for such courts or officers by  the Regulations  and  Acts  aforesaid.   This  section   further provided that no Act thereafter passed by the Council of the Governor-General  for making laws and regulations  shall  be deemed  to extend to any part of the said  territory  unless the same was specially named therein.  Under s. 9 of the Act

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the  Lieutenant-Governor was authorised by  notification  in the  Calcutta Gazette to extend mutatis mutandis all or  any of the provisions contained in the other sections of the Act to  the Jaintia Hills, the Naga Hills, and such  portion  of the  Khasi  Hills as might for the time being form  part  of British  India.  The Lieutenant-Governor of  Bengal,  acting under  powers conferred by s. 9, extended the provisions  of Act XXII of 1869 to the territory of Khasi and Jaintia Hills and  excluded  therefrom the jurisdiction of the  courts  of civil  and criminal judicature.  The High Court of  Calcutta held  that  the 9th section was not legislation  but  was  a delegation of ’legislative power.  This was not accepted  by the Judicial Committee and it was observed (at p. 195) :               "......it is a fallacy to speak of the  powers               thus  conferred upon  the  Lieutenant-Governor               (large  as they undoubtedly are) as  if,  when               they were exercised, the efficacy of the  acts               done  under  them would be due  to  any  other               legislative   authority  than  that   of   the               GovernorGeneral   in  Council.   Their   whole               operation is, directly and immediately,  under               and  by  virtue  of this Act  (XXII  of  1869)               itself." Reference  was made by counsel to the case of Abeyesekra  v. Jayatilake(1).   The question there arose as to  whether  an Order  in  Council of 1928 amending another of  1923  making provision  that the action of a common informer  brought  to recover  penalties  under the Order in Council  of  1923  be dismissed  and  further  amending the 1923 Order  so  as  to except the office held by the respondent from its  operation was  valid  and  constituted all effective  defence  to  the action  although  it  was retrospective  in  operation.   In upholding the validity of 1928 Order, it was observed by the Judicial  Committee  that legislators  "have  certainly  the right to prevent, alter or reverse the consequences of their own decrees." The effect and validity of retrospective legislation has had to  be  considered by the Federal Court of  India  and  this Court  on a number of occasions.  In the case of The  United Provinces, V. Atiqa Begum(2) a question arose as to whether, the  Regularisation  of Remissions Act, 1938 of  the  United Provinces Legislature (1) [1932] A.C. 261. (2) [1940] F.C.R. 110. 59 was  within  its  competence.  There was an  Act  in  force, namely,  the Agra Tenancy Act, 1926 the purpose whereof  was to  consolidate and amend the law relating  to  agricultural tenancy  and certain other matters.  Section 73 of that  Act provided  that "when for any cause the Local  Government  or any authority empowered by it, remitted or suspended for any period  the  whole  or any part of the  revenue  payable  in respect of any land, a Collector might order that the  rents of the tenants should be remitted or suspended to an  amount which  shall  bear the same proportion to the whole  of  the amount  payable  in respect of the land as  the  revenue  of which the payment has been so remitted or suspended bears to the  whole of the revenue payable in respect of such  land." In 1931 there was a catastrophic fall in agricultural prices followed by threats on the part of tenants to withhold  rent on  a large scale.  The Government of the  United  Provinces devised  a  scheme for the systematic  reduction  of  rents, varying  with the circumstances of the different  districts, followed later by consequential adjustments in land revenue. The  Allahabad High Court had held in Muhammad Abdul  Qaiyum

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v.  Secretary of State for India(1)that remissions  made  in pursuance  of the orders of Government had no legal  effect. In 1938 the Provincial Legislature passed the Regularisation of  Remissions  Act which precluded any question as  to  the validity  of  the orders of remission being  raised  in  the courts of law.  The Allahabad High Court took the view  that the Act was contrary to the provisions of s. 292 of the Gov- ernment of India Act, 1935 because it amounted to an attempt to legislate retrospectively.  Section 2 of the Act of  1938 provided that               "notwithstanding anything in the Agra  Tenancy               Act,  1926........... or in any other law  for               the  time being in force where rent  has  been               remitted  on account of any fall in the  price               of  agricultural  produce  which  took   place               before the commencement of this Act, under the               order  of  the Provincial  Government  or  any               authority empowered by it in that behalf, such               order,  whether  passed before  or  after  the               commencement of this Act, shall not be  called               in question in any civil or revenue court." Referring to the case of Queen v. Burah(2) Gwyer, C.J., said that  there  was  nothing  in s.  292  which  suggested  any intention  on  the  part of Parliament to  impose  a  fetter against retrospective legislation.  According to the learned Chief  Justice, the impugned Act was an Act with respect  to "remission  of rents" although it might also be an act  with respect to something else, that is to say, the validation of doubtful executive orders.  The learned Chief Justice said : (1) I.L.R. 1938 Allahabad , 114. (2) L.R.I.A. 178. 60               "It  is  true that  "Validation  of  executive               orders"  or any entry even remotely  analogous               to  it is not to be found in any of the  three               Lists;  but  I am clear that  legislation  for               that  purpose must necessarily be regarded  as               subsidiary  or  ancillary  to  the  power   of               legislating  on  the  particular  subjects  in               respect of which the executive orders may have               been issued." His  Lordship further opined that powers of the  court  were not  affected merely because certain executive  orders  were not allowed to be questioned in any court. In  Piare Dusadh & others v. The Kink Emperor(1) one of  the questions  raised  was  whether it  was  competent  for  the Legislature  by retrospective legislation to make valid  any proceedings which had been had in the courts but which  were void  for  want of jurisdiction over the parties.   In  this case  the  facts were as follows.  The appellants  had  been convicted  by courts functioning under the Special  Criminal Courts  Ordinance (Ordinance No. 11 of 1942).  On 4th  June, 1943,  the  Federal Court held that the  courts  constituted under  that  Ordinance  had  not  been  duty  invested  with jurisdiction,  in  view  of the  nature  of  the  provisions contained  in ss. 5, 10 and 16 of that Ordinance.  The  next day, the Governor-General made and promulgated another Ordi- nance  (Ordinance No- XIX of 1943) whereby Ordinance No.  11 of  1942  was repealed and certain provisions were  made  in respect  of sentences which had been passed by  the  special courts  and  in respect of cases which were  pending  before them  on  that  date.   By sub-s. (2) of s.  3  of  the  new Ordinance,  a  right of appeal against sentences  which  had already  been  passed by the special courts  was  given  and appeals were accordingly preferred to the High Court in some

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cases.   In certain other cases applications for a  writ  in the  nature  of habeas corpus were made.  In  both  sets  of cases,  it was contended on behalf of the accused  that  the new  Ordinance  did not, and in any event  could  not,  give validity  on  the  sentences which had been  passed  by  the special courts, and it was claimed that the sentences should be  treated  as  void or set aside.  Section 4  of  the  new Ordinance provided that               "Where the trial of any case pending before  a               court constituted under the said Ordinance has               not   concluded   before  the  date   of   the               commencement    of   this    Ordinance,    the               proceedings of such court in the case shall be               void  and  the  case shall  be  deemed  to  be               transferred" to  the  ordinary criminal courts for enquiry  or  trial  in accordance  with the Code of Criminal Procedure.  Section  3 of the Ordinance provided as follows (1)  [1944] F.C.R. 61. 61 .lm15 "(a)Any  sentence  passed  by a  Special  Judge,  a  Special Magistrate  or a Summary Court in exercise  of  jurisdiction conferred  or purporting to have been conferred by or  under the  said  Ordinance shall have effect, and subject  to  the succeeding provisions of this section shall continue to have effect, as if the trial at which it was passed had been held in accordance with the Code of Criminal Procedure, 1898 by a Sessions Judge, an Assistant Sessions Judge or a Magistrate, of  the  first  class  respectively,  exercising   competent jurisdiction under the said Code. (2)Notwithstanding anything contained in any other law,  any such  sentence as is referred to in sub-section  (1)  shall, whether  or  not the proceedings in which the  sentence  was passed  were  submitted  for review  under  section  8,  and whether  or  not the sentence was the subject of  an  appeal under  Section 13 or Section 19, of the said  Ordinance,  be subject to such rights of appeal as would have accrued,  and to  such powers of revision as would have  been  exercisable under  the said Code if the sentence had at a trial so  held been  passed  on  the  date  of  the  commencement  of  this Ordinance. (3)Where any such sentence as aforesaid has been altered  in the course of review or on appeal under the said  Ordinance, the  sentence  as so altered shall for the purpose  of  this section  be  deemed to have been passed by the  Court  which passed the original sentence." Learned counsel for the accused conceded that the  principle of validation by subsequent legislation was quite applicable to  judicial  as to ministerial proceedings but  relying  on Cooley’s  Constitutional  Limitations, 8th ed., p.  205  and also pp. 773-776, they contended-- (a)that while such legislation might seek to aid and support judicial  proceedings, the legislature could not  under  the guise  of  legislation  be permitted  to  exercise  judicial power, and (b)  that  it  was  not  competent  to  the  legislature  by retrospectivelegislation  to  make valid  any  proceedings which had been held inthe courts, but which were void for want of jurisdiction over the parties. Spens, C. J., observed (see at p. 100):  "As  a  general proposition, it may be true enough  to  say that the legislative function belongs to the legisla- 62               ture   and  the  judicial  function   to   the

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             judiciary. , Such differentiation of functions               and distribution of powers are in a sense part               of the Indian law as of the American law.  But               an  examination  of the  American  authorities               will show that the development of the  results               of  this  distribution  in  America  has  been               influenced  not merely by the simple  fact  of               distribution   of   functions,  but   by   the               assumption that the Constitution was  intended               to  reproduce the provision that  had  already               existed  in  many of the  State  Constitutions               positively  forbidding the  legislature  from,               exercising judicial powers . . . . One  result               of the application of this rule in the  United               States  has  been to  hold  that  "legislative               action  cannot be made to retroact  upon  past               controversies  and to reverse decisions  which               the courts in the exercise of their  undoubted               authority have made." The reason given is that               "this  would  not  only  be  the  exercise  of               judicial  power, but it would be its  exercise               in the most objectionable and offensive  form,               since the legislature would in effect sit as a               court of review to which parties might  appeal               when  dissatisfied  with  the  ruling  of  the               courts.........   In  India,   however’,   the               legislature  has more than once  enacted  laws               providing that suits which had been  dismissed               on  a  particular  view of  the  law  must  be               restored and retried." The  learned Chief Justice referred to the Australian  case, Federal  Commissioner of Taxation v. Munro(1) where a  Board of Appeal constituted under an Act of 1922 had given certain decisions in appeals in income-tax matters.  The law  courts declared  that  the Australian Parliament had  no  power  to invest  this Board of Appeal with judicial power.   A  later Act established what was described as a Board of Review  and assigned to it functions which were held to be different  in character from those assigned to the former Board of Appeal. This Act however went on to provide that decisions which had already  been pronounced by the Board of Appeal  "should  be deemed  to be and at all times to have been decisions  of  a Board of Review given in pursuance of the provisions of  the later  Act."  This  later  Act  was  challenged  as  vesting judicial  power in the Board of Review, but this  contention was  overruled.   Reference may be made to the  judgment  of Starke, J. quoted by Spens, C.J. that               "Parliament    simply   takes    up    certain               determinations  which  exist in  fact,  though               made  without  authority, and  prescribes  not               that they shall be acts done by a Board (1) 38 Com.  L. R. 153. 63               of  Review, but that they shall be treated  as               they would be treated if they were- such acts.               The sections, no doubt, apply  retrospectively               but they do not constitute an exercise of  the               judicial power on the part of the Parliament." The learned Chief Justice observed that this aptly described what  had happened in the case before the Federal Court  and answered  the  argument that it was an  impossible  feat  to convert  what  was not a trial under the  Code  of  Criminal Procedure into a trial under the Code: According  to the learned Chief Justice, the  real  question was, whether the Ordinance was covered by any of the entries

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in  the Seventh Schedule to the Constitution Act.   "It  was not contended said the Chief Justice "that the mere  absence of a specific provision about validating laws" was by itself of  much significance." As observed by this Court  in  Atiqa Begum’s  case(1), "the power of validation must be taken  to be  ancillary  or subsidiary to the power to deal  with  the particular subjects specified in the Lists." There is nothing in Basanta Chandra Ghose’s case ( 2 ) which detracts  from  the propositions of law laid down  in  Atiqa Begum’s  case(1)  or  Piare  Dusadh’s  case(3).   In  Basant Chandra Ghose’s case(2) Cl. (2) of s. 10 provided :               "If  at  the commencement  of  this  Ordinance               there  is pending in any Court any  proceeding               by  which  the  validity of  an  order  having               effect  by  virtue of section 6 as if  it  had               been  made under this Ordinance is  called  in               question,    that   proceeding    is    hereby               discharged.               Spens,  C.J. said with regard to  this  clause               that               "here  there  has  been  no  investigation  or               decision by any Tribunal which the legislating               authority  can be deemed to have given  effect               to.   It is a direct disposal of cases by  the               legislature itself." (see at p. 309). It  was  pointed  out  that  the  nature  of  the  provision considered   in  Piare  Dusadh’s  case(3)  was   essentially different from cl. (2) of s.  10 of the impugned Ordinance. The  question has engaged the attention of this Court  in  a number of cases and we may refer to the case of West  Ramnad Electric  Distribution Co. Ltd. v. State of Madras   (4)  by way of (1) [1940] F.C.R. 110.           (2) [1944] F.C.R. 295 (3) [1944] F.C.R. 61.            (4) [1963] 2 S.C.R.747 64 illustration.   In  that case, the  Madras  Legislature  had passed  an  Act  (43 of 1949) on January 24,  1950  for  the acquisition  of  undertakings supplying electricity  in  the Province of Madras.  In pursuance of S. 4(1) of the Act  the State  of Madras passed an order on May 17,  1951  declaring that the appellant undertaking shall vest in the  respondent from  September  21, 1951.  The Chief  Electrical  Inspector took  over possession of the appellant and all  its  records etc.   The State paid to the appellant Rs. 8,34,000 and  odd as  compensation.   According to the  appellant,  about  Rs. 1,00,000 still remained to be paid.  Some of the  electrical undertakings in Madras which had’ been taken over filed writ petitions in the High Court which upheld the validity of the impugned Act in so far as it related to the licencees  other than   municipalities.   In  Rajahmundry   Electric   Supply Corporation  Ltd. v. The State of Madras(1) this  Court  had held  that the impugned Act of 1949 was ultra vires  on  the ground that it went beyond the legislative competence of the Madras Legislature inasmuch as there was no entry in any  of the three Lists of the Seventh Schedule of the Government of India  Act, 1935 relating to compulsory acquisition  of  any commercial or industrial undertaking.  After the decision in this  case, the Madras Legislature passed Act XXIX  of  1954 which  received the assent of the President on 9th  October, 1954.   This  Act incorporated the main  provisions  of  the earlier Act and purported to validate action taken under the earlier  Act.   The  appellant then filed  a  writ  petition alleging  that to the extent to which the Act  purported  to validate  acts  done under the earlier Act of  1949  it  was ultra  vires.  It was further urged that the three bases  of

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compensation as laid down by the Act were inconsistent  with the requirement of Art. 31 of the Constitution.  Section  24 of the Act ran as follows               "Orders  made, decisions or directions  given,               notifications  issued, proceedings  taken  and               acts  or  things  done, in  relation  to  any-               undertaking  taken  over, if they  would  have               been  validly  made, given, issued,  taken  or               done,   had  the  Madras  Electricity   Supply               Undertakings  (Acquisition) Act, 1949  (Madras               Act  XLIII  of   1949),  and  the  rules  made               thereunder been in force on the date on  which               the  said  orders,  decisions  or  directions,               notifications,  proceedings, acts  or  things,               were  made, given, issued, taken or  done  are               hereby  declared  to have been  validly  made,               given, issued, taken or done, as the case  may               be,  except  to the extent to which  the  said               orders, decisions, directions,  notifications,               proceedings,  acts or things are repugnant  to               the provisions of this Act." (1) [1954] S.C.R. 779. 65               It was held by this Court that this was               "a  saving  and validating  provision  and  it               clearly  intends  to  validate  actions  taken               under  the relevant provisions of the  earlier               Act  which  was invalid from the  start.   The               fact  that  s.  24  does  not  use  the  usual               phraseology  that  the  notifications   issued               under the earlier Act shall be deemed to  have               been issued under the Act, does not alter  the               position  that the second part of the  section               has and is intended to have the same effect." The  contention that the impugned  notification  contravened Art. 31(1) because of want of existence of an-antecedent law depriving  the citizen of his property was turned down  with the observation               "In  our opinion, this argument is  not  well-               founded.   If  the  Act  is  retrospective  in               operation  and s. 24 has been enacted for  the               purpose of retrospectively validating  actions               taken under the provisions of the earlier Act,               it  must  follow  by  the  very  retrospective               operation  of the relevant provisions that  at               the  time when the impugned  notification  was               issued,  these provisions were  in  existence.               That  is the plain and obvious effect  of  the               retrospective operation of the statute." Reference  was made to the cast of the United  Provinces  v. Mst. Atiqa Begum(1), Piare Dusadh v. The King Emperor(2) and also  to  the  decision in Union of  India  v.  Madan  Gopal Kabra(3) and it was finally said (at p. 766)               "......there is no doubt about the  competence               of the Legislature to enact a law and make  it               retrospective in operation in regard to topics               included within the relevant Schedules of  the               Constitution." Reference  may  also be made to the case of  Rai  Ramkrishna v.The State of Bihar(4). All these decisions lay down that the power to legislate for validating  actions  taken  under  statute  which  were  not sufficiently comprehensive for the purpose is only ancillary or  subsidiary  to  legislate  on  any  subject  within  the competence  of  the  legislature and  such  Validating  Acts

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cannot  be  struck down merely because courts  of  law  have declared  actions  taken earlier to be invalid for  want  of jurisdiction. Nor is there any reason to hold that in  order to validate action without legislative support the  Validat- ing  Act  must enact provisions to cure the defect  for  the future (1) [1940] F.C.R. 110.          (2) [1944] F.C.R. 61. (3) [1954] S.C.R. 541 at 544.   (4) [1964] 1 S.C.R. 897. 66 and  also  provide that all actions taken  or  notifications issued must be deemed to have been taken or issued under the new provisions so as to give them full retrospective effect. No  doubt legislatures often resort to such practice but  it is not absolutely necessary that they should do so so as  to give  full scope and effect to the Validating Acts.  By  way of illustration reference may be made to the following Acts. (1)   The   Professions  Tax   Limitation   (Amendment   and Validation) ’Act, 1949 where s. 3(i) provided that                "Notwithstanding anything to the contrary  in               any other law for the time being in force,-               (i)  no  tax  on  circumstances  and  property               imposed  before the commencement of  this  Act               under  clause  (ix)  of  sub-section  (1)   of               section   128   of   the   United    Provinces               Municipalities  Act, 1916, or, clause  (b)  of               section  108 of the United Provinces  District               Boards  Act, 1922, shall be deemed to  be,  or               ever to have been invalid merely on the ground               that the tax imposed exceeded the limit of Rs.               50/- per annum prescribed by the said Act, and               the validity of the imposition of any such tax               shall not be called in question in any Court;" (2)The Hindu Marriages (Validation of Proceedings) Act, 1960 (Act 19 of 1960) was passed to obviate the short comings  in the Hindu Marriage Act pointed out by the Punjab High  Court in  Janak  Dulari  v. Narain Das (A.I.R.  1959  Punjab  50). There  the High Court held that the court of  an  additional Judge  cannot  be  regarded as a principal  court  of  civil jurisdiction  within the meaning of the Hindu  Marriage  Act and  that a District Judge to whom a petition under the  Act is  presented cannot transfer it to an additional Judge  for trial.  The object of the Validation Act was to validate all proceedings  taken and decrees and orders passed by  any  of the Courts specified in cl. (2) exercising or purporting  to exercise jurisdiction under the Hindu Marriage Act.  Section 2(1) ran as follows :-               "All proceedings taken and decrees and  orders               passed before the commencement of this Act  by               any  of the Courts referred to in  sub-section               (2)  exercising  or  purporting  to   exercise               jurisdiction  under  the Hindu  Marriage  Act,               1955  shall,  notwithstanding  any   judgment,               decree or order of any court, be deemed to  be               as  good  and  valid in law as  if  the  court               exercising  or  purporting to,  exercise  such               jurisdiction had been a district court  within               the meaning of the said Act." The courts referred to in sub-section (1) are : the court of an additional Judge, additional district Judge, etc. 67 In  our opinion the contentions raised about the  invalidity of the Amending Act on the ground that s. 3 thereof was  not made expressly retrospective or that it encroached upon  the domain  of  the  judiciary by seeking  to  nullify  judicial decisions  cannot  be sustained.  The American  doctrine  of

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well-defined  separation of legislative and judicial  powers has  no application to India and it cannot be said  that  an Indian  Statute which seeks to validate invalid  actions  is bad if the invalidity has already been pronounced upon by  a court of law. In  view  of the decisions of the  Judicial  Committee,  the Federal  Court and this Court referred to above, it must  be held that the absence of a provision in the Amending Act  to give  retrospective  operation to s. 3 of the Act  does  not affect  the validity of s. 4 as contended for.  It was  open to  Parliament to adopt either course, e.g. (a)  to  provide expressly  for the retrospective operation of s. 3, or,  (b) to lay down that no acquisition purporting to have been made and  no action taken before the Land Acquisition  (Amendment and  Validation)  Ordinance,  1967 shall  be  deemed  to  be invalid or ever to have become invalid because inter alia of the making of more than one report under s. 5-A or more than one declaration under s. 6 of the Land Acquisition Act, not- withstanding any judgment, decree or order to the  contrary. Parliament  was  competent  to  validate  such  actions  and transactions,   its  power  in.  that  behalf   being   only circumscribed by the appropriate entries in the Lists of the Seventh Schedule and the fundamental rights setforth in Part III  of the Constitution.  As shown above, there  have  been instances  where the latter course had been adopted  by  the Indian Parliament in the past. Section  4 of the Amending Act being within the  legislative competence of Parliament, the provisions thereof are binding on  all courts of law notwithstanding judgments,  orders  or decrees to the contrary rendered or made in the past. We find ourselves unable to accept the contention about  the violation  of  Art. 31(2) of the Amending Act.   It  is  not suggested  that the Validating Act in express words  enacts. any  law  which  directly affects  compensation  payable  in respect of the property acquired or lays down any principles different  from  those  which  were  already  in  the   Land Acquisition  Act  of  1894.   After  the  amendment  of  the Constitution   in   1955  the  question   of   adequacy   of compensation is not justiciable and it is enough if the  law provides   that   a  person  expropriated  must   be   given compensation  for his property or lays down  the  principles for  the determination thereof.  There is not a  word  about "compensation"  in s. 4 of the Validating  Act.   Indirectly however, it would affect a person’s right to  compensation,, inasmuch  as  but for the Validating  Act  the  notification under s. 4 issued on 13th November 1959 could 68 not  be resorted to for the purpose of making more than  one declaration under s. 6 of the Act.  Schemes of the magnitude of  the  plan  for  the development  of  Delhi  or  for  the establishment of an iron and steel plant did not have to  be considered  in pre-Constitution days.  The Land  Acquisition Act   of  1894  contained  sufficient  measures   to   allow acquisition  of small parcels of property for the  different schemes  of  the  extent  and  magnitude  which  had  to  be considered  in the past.  Even then, the law with regard  to compensation did not remain static from the days of the  Act of 1870 to 1923.  In the Act of 1894 the date of declaration under Is. 6 was made to take the place of the date in s.  24 of the Act of 1870.  Under the Act of 1870 the market  value of  the  land at the time of awarding compensation  was  the criterion.  The date for the assessment of compensation  was further  shifted to the date of the notification under S.  4 only in 1923. The  Legilature might well have provided in the Act of  1894

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that  it would be open to the appropriate  government  after issuing  a  notification under S. 4 to  consider  objections raised  under S. 5 with regard to different localities  from time to time enabling different reports to be made under  S. 5-A  with  consequent  adjustments in  S.  6  providing  for declarations to be made as and when each report under s. 5-A was considered.  By the validation of actions taken under S. 6  more than once in respect of a single notification  under s.  4,  the original scheme of acquisition is  not  altered. The  public  purpose  behind the  notification  under  s.  4 remains  the  same.   It is not as  if  a  different  public purpose and acquisition of land for such purpose were  being interpolated by means of the Validating Act.  The  principle of compensation remains the same under the Validating Act as it   did  under  the  principal  Act  of  1894.   Only   the shortcomings  in the Act as to want of provision  to  enable more than one declaration under S. 6 are being removed.   In our  opinion,  the Validating Act does not fall  within  the mischief  pointed  out by this Court  in  various  decisions starting  from the State of West Bengal v. Mrs. Bela  Baner- jee(1) : Entry  42  in List III of the Seventh  Schedule  before  its amendment read               "Principles on which compensation for property               acquired or requisitioned for the purposes  of               the  Union  or  of a State or  for  any  other               public  purpose is to be determined,  and  the               forms   and   the   manner   in   which   such               compensation is to be given." In  Mrs. Bela Banerjee’s case(1) s. 8 of the  impugned  West Bengal Land Development and Planning Act 1948 provided  that the com- (1)  [1954] S.C.R. 558. 69 pensation  to be awarded for acquisition of land was not  to exceed the market value thereof on December 31, 1946.   This provision was held to be arbitrary by this Court inasmuch as it  fixed  the ceiling on compensation by reference  to  the market  value  of the land on the  above-mentioned  date  no matter  when  and how long afterwards the  acquisition  took place.   Similarly in dismissing the appeal of the State  in State  of  Madras v. D. Namasivaya Mudaliar  (1)  where  the Madras Act XI of 1953 provided that compensation was payable on the basis of the valuation of the land on April 28,  1947 together with some improvements made thereon up to the  date of  notification under s. 4(1) of the Land  Acquisition  Act because  of  the  discovery of the presence  of  lignite  in certain taluks in 1947 and the announcement by Government by a  press note that it proposed to undertake  legislation  to compel  persons  purchasing such lands after a  date  to  be prescribed in 1947, it was held that "a law which authorises acquisition  of land not for its true, value, but for  value frozen  on  some date anterior to the  acquisition,  on  the assumption  that  all appreciation in its value  since  that date is attributable to purposes for which the State may use the  land  at  some  time in future,  must  be  regarded  as infringing  the  fundamental right" and "there was  no  true relation  between  the acquisition of the land....  and  the fixation of compensation based on their value on the  market rate  prevailing  on  April  28,  1947."  Referring  to  the provision  in  the Land Acquisition Act  for  assessment  of compensation  on the basis of the market value of  the  land not  on  the  date on which the interest of  the  owner  was extinguished  under  section  16  but to  the  date  of  the notification under s. 4(1) it was observed that "any princi-

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ple  for determination of compensation denying to the  owner all increments in value between a fixed date and the date of issue of the notifications under s. 4(1) must prima facie be regarded  as denying to him the true equivalent of the  land which is expropriated. In our opinion, the Amending Act cannot be said to lay  down any principle which suffers from the vice of the Act  struck down in the above decisions.  The date of valuation is  that of the issue of notification under s. 4(1)-a principle which has  held  the  field  since 1923.   It  is  true  that  the underlying  principle  of  the  Act of  1894  was  that  all increments  due  to the setting on foot of  the  acquisition proceedings  were  to  be ignored whereas due  to  the  ever spiralling  of  all prices all over India  land  values  are mounting up all the time in all the States, specially  round about  big cities-an occurrence quite unconnected  with  the issue of a notification under s. 4(1)-but it cannot be  said that  because owners of land are to be deprived of  all  the increments due to the latter phenomenon it must be held that there  is a Violation of Art. 31(2). Legislative  competence to acquire land under the provisions of (1)  [1964] 6 S.C.R. 936. 70 the  Land  Acquisition Act cannot be challenged  because  of constant  appreciation of land values all over  the  country due to the prevalent abnormal inflation.  There must be some time   lag  between  the  start  and  conclusion   of   land acquisition  proceedings and in principle there  is  nothing wrong in accepting the said start as the date for valuation. Sections 4 and 23 of the Land Acquisition Act are  protected by  Art. 31(5) (a) of the Constitution.. Only  sections  5-A and  6 of the Act have been amended.  The amendments do  not alter  the  principle of compensation fixed by the  Act  nor contravene Art. 31 of the Constitution in any way. The Amending Act does not really derogate from the principle that  the  valuation on the date of  issue  of  notification affords  the criterion for determining compensation  of  all lands  to  be  acquired.   It  only  keeps  alive  the  said notification for sustaining more than one declaration  under s.  6 to meet the exigencies of the situation where  it  was not possible to make one comprehensive declaration under  s. 6  and where the State has been obliged to validate  actions which  could not be supported under the principal  Act.   It cannot  be said of the Validating Act that it was fixing  an arbitrary date for the valuation of the property which  bore no  relation  to the acquisition proceedings.  At  the  same time  when  the notification under s. 4 was issued  on  13th November  1959, the State had considered that a  very  large area round about Delhi-would have to be acquired so that the development  of the city could proceed in an orderly  manner step  by step not only ’Lo meet the immediate needs  of  the then.  population of the city but with an eye to  the  ever- increasing demands of the exploding population in all cities in  India  and  specially in its capital.   It  was  before, November   1959  that  the  State  had  to   consider   the, acquisition  of  a large tract of land for the  purposes  of development  of  Delhi but it was not possible  to  take  up simultaneously all schemes for the future development of the city.   It was also not practically possible to take up  all schemes  in all directions at the same time.  The  resources of  the State were not adequate to take up the  schemes  for improvement  of the city by the acquisition of an area  like Ac.  34,000,00, at the same time keeping in, mind  not  only the  need of land for housing purposes but also  for,  other purposes  like  education, industry and manufacture  not  to

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speak  of amenities for recreation, entertainment  etc.   Of necessity,,  the area under the proposed  acquisition  would have to be carved into blocks and the development of one  or more  blocks at a time could only be taken up in  consonance with the resources available.  Even contiguous blocks  could be developed gradually and systematically.  If a  particular area, say block ’A’ was meant to provide lands for  building houses  for  residential purposes only  a  block  contiguous thereto,  say  block ’B’ might be set apart  for  industrial purposes.  There may be nothing common between 71 Block   A  and  Block  B  to  require   their   simultaneous development  .although both the Blocks would form part of  a composite whole--to serve the needs of a growing city.   Can it be said that acquisition of lands for Block A and Block B must be made simultaneously and is the law to be struck down because it enables a declaration under s. 6 with respect  to Block B to be made some time after a similar declaration  in respect of Block A ? In such a case, it would be incongruous to  award  compensation for lands acquired in Block B  on  a basis  different  from that in respect of lands in  Block  A covered  by an earlier declaration under s. 6. The scope  of Art. 31(2) as amended was considered by this Court in P.  V. Mudaliar v. Deputy Collector(1).  It was there, pointed  out that after the amendment "what is excluded from the  courts’ jurisdiction  is that the said law cannot be  questioned  on the  ground, that the compensation provided by that  law  is not adequate;" and "if a law lays down principles which  are not relevant to the property acquired or to the value of the property at or about the time it is acquired, it may be said that  they are not principles contemplated by Art. 31(2)  of the Constitution." In that case it was also observed by this Court that "in the context of continuous rise in land prices from  year to year depending upon abnormal circumstances  it cannot  be said that fixation of average price of over  five years  is not a principle for ascertaining the price of  the land  in or about the date of acquisition." The decision  is also  an authority for the proposition that the omission  of one  of  the  elements that should properly  be  taken  into account  in  fixing  the compensation might  result  in  the inadequacy  of compensation but such omission in itself  did not  constitute fraud on power. it is also to be noted  that in this case this Court upheld the Land Acquisition  (Madras Amendment) Act, 1961 although the said Act substituted a new clause  for  the  first clause in s. 23 ( 1 )  of  the  Land Acquisition  Act.  The substituted clause provided for  pay- ment of compensation on the basis of the market value of the land  at  the date of the publication  of  the  notification under s. 4(1) or an amount equal to the average market value of  the.  land during the five years  immediately  preceding such  date, whichever was less.  It is significant that  the Act  which was a postFourth Constitution Amendment Act,  was upheld  although by its own terms and independently  of  the Land Acquisition Act it provided for payment of compensation on the basis of the market value of the land at the date  of the  publication of the notification under s. 4(1).  It  may therefore be inferred that in upholding the Land Acquisition (Madras  Amendment)  Act, 1961, this Court was of  the  view that  the principle of fixing compensation on the  basis  of the  price prevailing on the date of the notification  under s.   4(1)  of  the  Land  Acquisition  Act  was  a  relevant principle.  In (1) [1965] 1 S.C.R. 614. 72 the  result the court turned down the contention  about  the

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violation. of Art. 31(2) because of the modification of some of the principles for assessing compensation laid down in s. 23 of the Act. In the present case, there has been no variation of the  law formulated  in s. 23 of the Act.  As such, in  our  opinion, there has been no violation of Art. 31(2) merely because the actions  already  taken have been sought to  be  ’validated. Nor  are we satisfied that there has been any colourable  or fraudulent exercise of legislative power. With  regard to the question as to discrimination  violative of Art. 14, it goes without saying that whenever an Amending Act  is  passed,  there is bound to be  some  difference  in treatment  between  transactions which  have  already  taken place and those which are to take place in the future.  That by itself will not attract the operation of Art. 14.  Again, even with respect to transactions which may be completed  in the  future, a reasonable classification will not be  struck down  as  was  held by this Court in Jalan  Trading  Co.  v. Mazdoor Union(1).               "If   the  classification  is   not   patently               arbitrary,   the  Court  will  not   rule   it               discriminatory  merely  because  it   involves               hardship or inequality of burden.  With a view               to secure a particular object a scheme may  be               selected by the Legislature wisdom whereof may               be open to debate; it may even be demonstrated               that  the  scheme  is  not  the  best  in  the               circumstances   and   the   choice   of    the               Legislature may be shown to be erroneous,  but               unless the enactment fails to satisfy the dual               test   of  intelligible   classification   and               rationality of the relation with the object of               the  law, it will not be subject  to  judicial               interference  under  Art. 14.   Invalidity  of               legislation  is  not  established  by   merely               finding faults with the scheme adopted by  the               Legislature  to achieve the purpose it has  in               view." Before  scrutinising the provisions of the Amending Act,  we must examine the objects of the Act., They may be summed  up as follows :- (a) To amend the Act for the future by empowering the making of more than one declaration under s. 6. (b) To validate completed acquisitions on the basis of  more than one declaration under that section. (c)  To authorise more than one declaration under  the  said section  in  cases  where there is already  in  existence  a notification under s. 4. (1)[1967] 1 S.C.R. 15 at 36. 73 (d)To prescribe a time limit for future acquisitions as also pending proceedings not yet completed; and (e) To provide additional compensation by way of interest in all  cases where acquisition has not yet been completed  and where  a  declaration under s. 6 is issued more  than  three years after the notification under s. 4. There  is  nothing arbitrary or irrational  about  the  said objects. It    is  well known that in some cases  there  has been unusual delay in    the issue of declaration under s. 6 after a notification under s. 4.  The Amending Act  puts  an end to this harsh treatment by providing that in respect  of notifications  under  s.  4  made before  the  date  of  the Ordinance  i.e. 20th January 1967, a declaration under s’  6 must  be made within two years after that date.  If  such  a declaration  is  not  made,  then it will  not  be  open  to

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Government to make use of the old s. 4 notification and  the State  would be obliged to issue a fresh notification  under s.  4.  The  Act  also  limits  the  time  within  which   a declaration under s. 6 may be made when a notification under s.  4  is issued after 20th January, 1967.  This  period  is limited  to three years there having been no time  limit  in the  past.   We  are not impressed by the  argument  that  a person whose land may be covered by a notification under  s. 4  issued more than one year before 20th January 1967  would seemingly  be treated differently from a person  whose  land comes  under  the notification under s. 4 after  that  date. The  Legislature  has sought to improve  upon  the  existing provisions  of  the  Land Acquisition Act and  there  is  no discriminatory  treatment  which should be  struck  down  as violative of Art. 14.  The Legislature in its wisdom thought that  some  time limit should be fixed in respect  of  s.  4 notifications  issued before 20th January, 1967 and  that  a time limit should also be fixed for acquisition where such a notification  is  issued after that date.  No fault  can  be found  with  the Legislature because it has provided  for  a period  of  two  years in one case and three  years  in  the other.  As was pointed out in Jalan Trading Co. v.  Mazdoors Union(1).               "Equal protection of the laws is denied if  in               achieving a certain object persons, objects or               transactions   similarly   circumstanced   are               differently   treated  by  law   no   rational               relation  to the object sought to be  achieved               by the law." It  is  not  possible to say that  because  the  legislature thought  of  improving upon the Act of 1894  by  prescribing certain  limits  of  time  as from  20th  January  1967  the difference  in  treatment in cases covered  by  notification before  the said date and after the said date  denies  equal protection   of  laws  because  the  transactions  are   not similarly circumstanced.  Some of the notifications (1) [1967] 1 S.C.R. 15. LA Sup.  C.I./68-6 74 issued under s. 4 must have been made even more than 3 years before 20th January 1967 and such cases obviously could  not be  treated  in  the same  manner  as  notifications  issued after,that   date.    Art.   14  does  not   strike   at   a differentiation  caused  by the enactment of a  law  between transactions  governed  thereby and those which are  not  so governed.   As  was pointed out by this Court  in  Hatisingh Manufacturing Co. Ltd. v. Union of India(1).               "When  Parliament  enacts  a  law  imposing  a               liability as flowing from certain transactions               prospectively,    it   evidently    makes    a               distinction  between those transactions  which               are covered by the Act and those which are not               covered   by  the  Act,  because   they   were               completed before the date on which the Act was               enacted." With  respect,  the dictum can also be  applied  as  between cases where the transaction was in the course of  completion and  those which had to be started after a particular  date. On  the  whole  the  Amending  Act  seeks  to  improve   the legislation which covered the field of acquisition of  land. The Legislature might have made more liberal provisions  for improvement  but it is not for this court to strike  down  a piece of legislation because the improvement falls short  of the expectation of the litigants. With  regard  to the provision for payment of  interest,  in

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addition   to   compensation  or  by   way   of   additional compensation  no grievance can be made in that  interest  is not  allowed  in  respect of transactions  which  have  been already  completed and compensation taken.  The  Legislature felt  that because there has been unreasonable delay in  the payment of compensation, interest should be, allowable where the period of three years has already expired or may  expire between  the  date  of s. 4 notification  and  the  date  of declaration  under  s. 6. No grievance can be  made  because interest  is  denied to persons who have already  taken  the compensation.    Even  here  the  classification   is   ’not unreasonable  and  cannot  be said to be  unrelated  to  the object of the Act. As regards violation of Art.14, in the case of Sohan Lal who filed  Writ  Petition No. 85 of 1967 the  learned  solicitor drew  our  attention to a few facts which  are  not  clearly brought  out  in  the affidavit in opposition  and  will  be referred  to presently.  Here the attack is on an  executive act,  namely,  the differential treatment meted  out  to  16 colonies whose lands were covered by the notification  dated 13th November, 1959 but in respect of which  de-notification orders were issued subsequently.  It would appear that  some of  the  letters which were received by Sohan  Lal  did  not bring  out the full facts and the policy underlying the  ap- parent  discrimination in this case.  It is pointed  out  in paragraph 36 of the affidavit in opposition: (1)  [1960] 3 S.C.R. 528 at 543. 75               "After   the   issue   of   the   notification               No.F.15(111)/59LSG  dated 13-11-1959,  it  was               decided by the Government that the colonies in               respect of which the layout and service  plans               had   been   sanction  before  the   date   of               notification viz., 13-11-1959, may be released               from the purview of  acquisition...........The               petitioner’s colony known as Kanwal Park could               not   be   released  from   the   purview   of               acquisition  because  in  its  case  only  the               layout  plans had been sanctioned and not  the               service plans." This  policy is corroborated by the records of the Land  and Housing  Department,  Delhi Administration which  were  made available to us at the hearing.  It appears from that record that  after the notification of 13th November  1959  private owners of land who wanted to lay out colonies and had  taken steps  in  respect thereof by making  some  arrangement  and spent  money--threon had approached the  Administration  for release of their lands from the notification and a  proposal for de-notification of the colonies was considered at a high level.   It  appears that a meeting ’was held on  29th  June 1960 at which were present a number of persons including the Chief Secretary, Vice Chairman, Delhi Development Authority, Engineer-Member,  Architect,  Town  Planning   Organisation, Deputy Commissioner, Delhi Municipal Corporation, Architects of  Delhi  Municipal  Corporation,  Secretary,  Local   Self Government and Under Secretary to the State Government.  The records  show  that  the case of each  notified  colony  was considered  separately and it was felt that cases  in  which the  layout and service plans had been finally  approved  in all   respects   before  13th  November,  1959   should   be recommended for de-notification.  On 1st of July, 1960,  the Commission, Delhi Municipal Corporation went into the matter and recommended that               "All  those colonies in respect of which  both                             lay-out  plans  and  service  plans  h

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ad   been               approved by the Delhi Development  Provisional               Authority the Delhi Development, Authority  or               the  Delhi  Municipal Corporation may  be  de-               notified irrespective of whether security  was               demanded or not and whether the time limit for               completion  of development was imposed or  not               and irrespective of whether security has  been               paid or not and’ whether development has  been               completed or not." According to this recommendation, 16 colonies named therein’ fell  in this category.  Sohan Lal’s colony was not  one  of those sixteen. It is unfortunate that the petitioner who submitted the  lay out plan of the colony as early as June 18, 1956 had not the service  plan  approved before 13th November, 1959.   It  is clear from 76 the  annexures to the petition that the details of the  lay- out of the colony were submitted on 30th August, 1956.   The petitioner submitted service plans on 15th September,  1959. There was nothing wrong with the plans intrinsically  except that  there were more than one small pocket of  land  within the  colony  to which the petitioner could  not  prove  his, ownership  statisfactorily.  Mr. Agarwala appearing for  the petitioner  submitted that the only difficulty was  that  in respect  of  the small pockets they were owned  not  by  the petitioner  alone  but in co-ownership with others  and  the petitioner subsequently excluded these pockets from the pur- view  of his lay-out plan: but this was done only  on  March 19,  1961, The petitioner’s subsequent efforts to  have  his colony  denotified  were  of no avail  even  though  he  had excluded  these  pockets on 20th January,  1960.   On  these facts,  we cannot hold that the petitioner was subjected  to any  discrimination.   There  was a policy  behind  the  de- notification  and it has not been suggested that the  policy was   vitiated  by  any  malafides  on  the  part   of   the authorities. All the points urged by the petitioners, therefore, fail and the petitions will stand dismissed.  There Will be no  order as to costs. Shelat  J.-The facts in these five writ petitions have  been sufficiently set out by our learned brother Mitter J.in  his judgment  and therefore need not be repeated  here.   Though they  differ in some particulars, the contentions raised  by Counsel for the petitioners are common except the additional contentions raised by Mr. Mani in Writ Petition 223 of  1966 and by Mr. Agarwala in Writ Petition 85 of 1967. These writ petition arise as a result of and challenge inter alia  the  validity  of  the  following  notifications.   No November  13, 1959 the Chief Commissioner, Delhi,  issued  a notification under sec. 4 of the Land Acquisition Act 1,  of 1894 (hereafter referred to as the Principal Act)  notifying that land measuring 34070 acres marked in blocks A to T  and X  in the map enclosed there with was required by the  Delhi Administration  for  the planned development of  Delhi.   In pursuance  of  that notification, the  Delhi  Administration issued sec. 6 notification dated June 14, 1961 in respect of the  land situate in village Kilkori measuring 97 bighas  14 biswas  only  from  out  of the  said  notified  area.   The notification  directed the Collector to take order  for  its acquisition under s. 7 of the Act.  The Collector thereafter made his award on August 31, 1961 in respect of the said  97 bighas  of  land  at  Rs. 2500 a  bigha,  the  total  amount including  the  solatium  awarded  being  Rs.   2,80,887.50.

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Nothing thereafter was done till March 18; 1966 when another notification under sec. 6 was issued in 77 respect  of  1752.2  bighas of land  situated  in  Mandawali Fazilpur, Khuraj Khas and Shakarpur Khas. On February 9, 1966 this Court delivered its judgment in  M. P. State v. V. P. Sharma (1) where facts were similar to the facts  in the present cases and where the land was  required for the erection of a steel plant in public sector.  In that case  the notification under sec. 4 covering land in  eleven villages  was  issued  in May 1949.  This  was  followed  by several  notifications under sec. 6, the last of them  being in. 1960.  After examining the provisions of secs. 4, 5A and 6 of the Act, this Court declared as follows :-               "At  the  stage  of sec. 4, the  land  is  not               particularised   but  only  the  locality   is               mentioned;  at the stage of s. 6 the  land  in               the locality is. particularised and thereafter               the  notification under s. 4(1) having  served               its purpose exhausts itself.  The sequence  of               events from a notification of the intention to               acquire  under s. 4 to the  declaration  under               sec.  6, leads to the conclusion that  once  a               declaration  under  s. 6  particularising  the               area    is   issued,   the   remaining    non-               particularised area in the notification  under               s.  4(1) stands automatically  released.   The               intention  of  the legislature  was  that  one               notification under s. 4(1) should be  followed               by survey under. s. 4(2), objections under s..               5A  heard,  and  thereafter,  one  declaration               under  sec.  6  issued.   If  the   Government               requires more land in that locality, there  is               nothing  to  prevent it from  issuing  another               notification  under s. 4(1) making  a  further               survey  if necessary, hearing  objections  and               then  making another declaration under  s.  6,               whereas there is likely to be prejudice to the               owner  of  the land if there  is  great  delay               between the notifications under s. 4(1) and s.               6." One of the contentions urged in that case was that where the land  is  required for a small project and the area  is  not large  the government may be able to make up its  mind  once for all what land it needs but where, land is required for a large project requiring a large area of land, government may not  be able to make up its mind at once.   This  contention was  rejected on the ground that even if it be so  there  is nothing  to  prevent  the government  from  issuing  another notification  under sec. 4 followed by a notification  under sec.  6,  that the government’s power to acquire land  in  a particular   locality  is  not  exhausted  by  issuing   one notification  under  sec. 4(1) followed  by  a  notification under  s.6  and  that it can proceed to do  so  by  a  fresh notification  under  Section 4(1) and  a  fresh  declaration under sec. 6 and that such a procedure would be fair to  all concerned. (1) [1966] 3 S.C.R. 557. 78 Sarkar  J. who delivered a separate judgment  also  repelled the contention by observing that he could not                "imagine   a   government  which   has   vast               resources  not being able to make  a  complete               plan  of  its project, at a time.   Indeed,  I               think,  when a plan is made it is  a  complete

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             plan.   I  should  suppose  that  before   the               government  starts acquisition proceedings  by               the  issue of a notification under sec.  4  it               has  made  its plan for  otherwise  it  cannot               state  in the notification, as it has  to  do,               that the land is likely to be needed.  Even if               it  had not then completed its plan  it  would               have  enough  time  before  the  making  of  a               declaration under section 6 to do so.  I think               therefore   that   the   difficulty   of   the               government,  even  if there is one,  does  not               lead   to   the  conclusion   that   the   Act               contemplates  the making of a number  of  dec-               larations under sec. 6." In the view taken Sharma’s case(1) sec. 6 notification dated March 18, 1966 was invalid as sec. 4 notification dated Nov- ember  13,  1959  on  which it  was  founded  ceased  to  be efficacious  and became exhausted after sec. 6  notification dated June 14, 1961 wag issued and the rest of the land  not covered by it became as a result released from  acquisition. Depending  on the declaration of law made in  this  decision the petitioners filed these writ petition in April 1966  and thereafter. Realising that if the view taken in Sharma’s case(1) were to stand  the  government would have to issue a  fresh  sec.  4 notification and would have to pay compensation on the basis of  the  market value of the land on the date  of  such  new notification instead of on November 13, 1959, the government promulgated  an Ordinance dated January 20, 1967 called  the Land  Acquisition (Amendment and Validation) Ordinance 1  of 1967.  It is not necessary to set out the provisions of  the Ordinance  as  it has been substituted by  Land  Acquisition (Amendment  and  Validation)  Act,  13  of  1967  (hereafter referred to as the Amendment Act) passed on April 12,  1967. There  can be no manner of doubt that the Ordinance and  the Amendment  Act  were enacted with the object of  setting  at naught the decision in Sharma’s case(1). Section  2  of the Amendment Act substituted  the  following words in sec. 5A (2), viz.,               "Submit  the  case  for  the  decision  of  an               appropriate   government  together  with   the               record  of the proceedings held by him  and  a               report  containing his recommendations on  the               objections." by the following words viz., (1) [1663] S.C.R. 557. 79               "either  make a report in respect of the  land               which has been notified under sec. 4  sub-sec.               (1)  or make different reports in  respect  of               different parcels of such land." Section  3 added the following words in sec. 6(1) after  the words ’certify its orders’, viz.,               "and  different declaration may be  made  from               time  to time in respect of different  parcels               of  any land covered by the same  notification               under  sec.  4 sub-sec.  (1)  irrespective  of               whether one report or different reports has or               have been made (wherever required) under  sec.               5A sub-section (2)." Section 3 also substituted the existing proviso to sec. 6(1) by the following :-               "  provided that no declaration in respect  of               any particular land covered by a  notification               under   sec.   4(1)   published   after    the               commencement  of  the  said  ordinance  (after

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             20-1-1967)  shall be made after the expiry  of               three   years   from   the   date   of    such               publication." Sec.  4(1) of the Amendment Act is a  validating  provision. By clause (a) it provides that no acquisition purporting  to have been made before the commencement of the said Ordinance (i.e.,  before  20-1-67) and no action taken or  thing  done including any notification published in connection with such acquisition  shall be deemed to be invalid or ever  to  have become invalid on the ground that               (i)one  or more collectors  have  performed               the  functions of collector in respect of  the               entire land covered by s. 4 notification.               (ii)  one or more reports have been made under               s.5A(2) whether in respect of the entire  land               or  different parcels thereof covered  by  the               same notification, and               (iii) that more than one declaration are  made               under sec . 6 in respect of different  parcels               of land covered by the same notification under               sec. 4(1). Clause  (b)  of sec. 4(1) provides that any  acquisition  in pursuance ,of a sec. 4 notification published before 20-1-67 may  be made after that date and no such acquisition and  no action taken or thing done including any order, agreement or notification made or published whether before or after 20-1- 67 in connection with such acquisition shall be deemed to be invalid merely on the said grounds mentioned in clause (a). Sub-sec. (2) of, sec. 4. provides that no declaration  under sec.  6 shall be made in respect of land covered by  sec.  4 notification  published before 20-1-67 after the  expiry  of two years from that 80 date,  that is, 20-1-69.  Sec. 4(3) provides for payment  of interest in the circumstances set out therein. The  result of the Amendment Act clearly is that an area  of land  notified under sec. 4(1) can be acquired piecemeal  at any time the only restriction being that under sec. 3 in the case  of  land covered by a sec.  4  notification  published after  20-1-67, sec. 6 notification can be issued  within  3 years  from the date of such notification and in respect  of land  notified  under sec. 4(.1) before 20-1-67  within  two years   after  20-1-67.   The  direct  consequence  of   the Amendment  Act is that the unitary character of  acquisition by a single inquiry, a single report,’ a single  declaration and  a  single award under the Principal Act  is  done  away with.  The government can freeze an area by issuing a sec. 4 notification  and can, subject to the limitations in sec.  3 and sec. 4 (2) of the Amendment Act, go on acquiring parcels of  such  area at its convenience irrespective of  the  time when  it makes up its mind to acquire and pay,  compensation on  the  basis  of  the  ’Value  at  the  date  of  sec.   4 notification.  In the case of land notified under sec.  4(1) after  20-1-67 the owner is deprived of appreciation-in  the value of his land during three years by reason of limitation prescribed in sec. 3 but in the case of land notified before 20-1-67  such  deprivation’ can be for an  uncertain  period from  the date of sec. 4 notification up to two  years  from 20-1-67  i.e.,  up  to  20-1-69  depending  upon  when   its acquisition  is made.  As has happened in the instant  cases the entire area of 34070 acres was frozen for the purpose of computation of compensation as from Nov. 13, 1959 portons of that  area were acquired as late as 1966 and  the  remaining area can still be acquired until 20-1 769, each owner  being thus  deprived  of  the appreciation in value  of  his  land

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depending  upon  when  during  all  this  long  period   the government  decides  to acquire it.  Thus, if  the  land  is notified  in  1959  and is acquired in  1960,  the  loss  of appreciation in value is only of one year.  But the owner of another  plot  even  if  it is  contiguous  to  it,  if  the government decides to acquire it in 1969, would be  deprived of  the  appreciation in value which has taken  place  right from  1959  to  1969.  The entire area is  in  the  meantime frozen  both for the purpose of compensation and as  pointed out in Sharma’s. Case(1) from its full beneficial enjoyment, the owner not knowing until government chooses to make  sec. 6 declaration Whether it will ultimately be acquired or not. Under  the  Principal Act as construed in  Sharma’s  Case(1) once  a sec. 6 notification is issued sec.,  4  notification would  become exhausted and the land not declared as  needed thereunder   would   be  relieved  from   acquisition.    If government then desires to acquire any land in addition  to. the one so declared it would have to be notified a fresh and the government would be obliged to pay compen- (1)[1966] 3 S.C.R. 557. 81 sation  at  the market rate prevailing on  such  date.   The practical  effect  of the Amendment Act is that  by  keeping alive sec. 4 notification and by declaring the  declarations made  after  the first declaration  valid,  the  legislature dated back the basis of compensation which would have  been, put for this validation, the rate prevailing at the date  of sec.  4  notification howsoever  belatedcessary.   The  real purpose  of enacting sec.4 is thus to enable  government  to freeze an unlimited area by first notifying it under sec.  4 and  then to acquire bit by bit and pay compensation at  the rate  prevailing  at  the  date  of  sec.  4   notification- howsoever  belatedly  it may choose to  acquire  such  bits, provided  it  does  so  before 20-1-69  where  the  land  is notified before 20-1-67 and before the expiry of three years where  s.  4 notification is issued after 20-1-67  and  thus avoid compensating the appreciation in value in the meantime to  which the owner would have been entitled to.  Though  in form the Amendment Act purports to validate acquisitions in- cluding  orders  and declarations made  therefor,  the  real purpose  of enacting the Amendment Act is to,  avoid  having otherwise  to  compensate for the appreciation in  the  land value  during the intervening period.  It is a  well-settled principle  that  in determining the constitutionality  of  a provision impugned, on the ground of its being. an  invasion on  a  fundamental right the court must weigh not  its  form which may apparently look innocuous but its real effect  and impact on such fundamental right. (cf.  Re Kerala  Education Bill(1); Gajapati Deo v. State of Orissa (2) It  will be seen that. secs. 2 and 3 which enable  piecemeal and  multiple  inquiries  and  reports  of  a  Collector  or Collectors under s, 5A. diverse declarations, and awards  in respect  of  different ’Parcels of land covered  by  sec.  4 notification  are prospective.  It is only sec. 4  which  is made  retrospective.   But it merely seeks  to  nullify  the decision in Sharma’s Case(3) and purports to keep alive sec. 4  notifications  which  would  have  otherwise  lost  their efficacy  and  validates acquisitions including  orders  and see. 6 declarations purported to have been made on the basis of such sec. 4 notifications.  Section 4, however, does  not contain  any  provision retrospectively amending sec.  4  or sec.  5A  or sec. 6 and merely seeks to  revitalise  sec.  4 notifications already exhausted.  The section does not  also provide that an acquisition or an order or declaration under sec. 6 made on the basis of such exhausted notification will

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be deemed to have been made or issued under secs. 2 and 3 of the  Amendment Act and as if the Amendment Act was in  force at that date as, is usually done in such validating Acts.  A notification  under sec. 4 having exhausted itself  after  a declaration  under sec. 6 in respect of a part of  the  land covered  by it and the rest of the land being relieved  from acquisition, (1) [1959] S.C.R. 995.      (2) [1953] S.C.R. 357. (3) [1966] 3 S.C.R. 557. 82 there would be prima facie no basis for a sec. 6 declaration or  acquisition unless such notification is  retrospectively validated  by  a  supporting  amendment of  sec.  4  of  the Principal  Act or by making secs. 2 and 3 of  the  Amendment Act retrospective. and by a fiction deeming it to have  been made under such amending provision. Counsel  for  the petitioners raised the  following  conten- tions:-- (1) that Act 13 of 1967 does not revive sec. 4  notification dated  November  13, 1959 which became exhausted  after  the first  sec. 6 declaration in 1961 was made and therefore  no acquisition in respect of the rest of the land could be made without  a  fresh sec. 4 notification.  The  contention  was that   secs.  2  and  3  being  prospective  they  did   not resuscitate  the  sec.  4  notification  though   subsequent acquisitions including orders and declarations under sec.  6 are  validated and that such validation has no  efficacy  as there would be no basis by way of a sec. 4 notification  for such acquisition or order or declaration. (2) that Act 13 of 1967 is in derogation of the requirements of  Art.  31(2)  as it  purports  to  authorise  acquisition without  a  fresh  sec.  4  notification  thereby   allowing compensation to be paid on the basis of an exhausted sec.  4 notification and on the value of the land prevailing on  the date of such exhausted notification. (3)  that  the Amendment Act is in violation of Art.  14  in that (a)  where a sec. 4 notification is made  before  20-1-1967, sec. 6 declaration can be made within 2 years from the  said date,  i.e.,  on or before 20-1-69.  But where the  land  is notified  after 20-1-67 sec. 6 declaration would have to  be made within 3 years from the date of such notification.   In the former case a much longer period is provided for a  sec. 6 declaration than in the latter case; (b)  where  a  sec. 4 notification  is  made  after  20-1-67 compensation  would  be fixed on the basis of the  value  on that date but where a sec. 4 notification is made before 20- 1-67 compensation would be on the basis of the value on  the date  of the exhausted notification howsoever long a  period has elapsed since such notification; (c)if compensation has not been paid before 20-1-67 interest has to be paid on the compensation amount, but if  compensa- tion  has  been paid before 20-1-67 no interest  is  payable though  acquisition in both the cases springs from the  same sec. 4 notification; 83 (d)in the case of sec. 4 notification issued after 20-1-67 if Sec. 6 declaration is not made within three years a fresh sec. 4notification is necessary and compensation would be on the   basis  of  the  value  on  the  date  of  such   fresh notification but where a s. 4 notification is issued  before 20-1-67  there is no defined period and sec.  6  declaration can  be  made  until  20-1-69.   Therefore  the  owner  gets compensation  on the value at the date of s. 4  notification howsoever  long  the  intervening period may  be.  A  person

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affected by see. 4 notification issued after 20-1-67 is thus differently  treated than the one who is affected by such  a notification issued’ before 20-1-67. In Writ Petition No. 85 of 1967 an additional point was raised, viz., that though 16 colonies in village Kilkori were denotified under s. 48, the land  of  the  petitioner though, situate  within  the  same notified area was not denotified thus.wrongly discriminating him.  In  Writ Petition No. 223 of 1966,Mr.  Mani  contended that the Amendment Act merely seeks to reverse the  decision of  this  Court,  that the Act is not a  legislative  but  a judicial  act  and  that though  the  Constitution  has  not brought  about separation of powers nonetheless it does  not confer unlimited powers on the legislature to encroach  upon the judicial power. In other words, the legislature seeks to control   the  courts’function  by  requiring  of   them   a construction of law according to its views. The  legislative action cannot be made to retroact upon past transactions and controversies  and  reverse decisions which  the  courts  in exercise  of their undoubted authority have made,.for,  that would  mean not only exercise of a judicial function but  in effect  to  sit  as  a court of review  to  which  the  past transactions and controversies are referred to. The question as  formulated  by  him is whether a  statute  which  simply validates  acts  and orders pronounced upon by  a  court  as invalid is sustainable without a retrospective law providing that such acts and orders are deemed to have been made under the  validating  Act and as, if such validating Act  was  in existence at the date of such acts and orders. On  the question whether the Amendment Act is in  derogation of  the  requirements of Art. 31(2), the contention  of  the Solicitor-General was that it is not the law contemplated by Art.31(2) as it merely amends ss. 5A and 6 of the  Principal Act and does not touch either s. 4 or s. 23 which deal  with compensation,.that it amends only the procedural  provisions and  that  sec.  4  thereof  merely  validates  acquisitions including  orders and notifications purported to  have  been made or passed to get over the difficulty create by Sharma’s Case(1).The   impugned  Act  does  not  frankly  deal   with compensation.But  as already stated it is not the form of  a statute under (1)  [19661 3 S.C.R. 557. 84 challenge  which matters but its substance, and  the  direct impact  it has on the constitutional  requirements.   Though sees.  2  and  3 amend ss. 5A and 6  of  the  Principal  Act enabling  multiple  inquiries, reports and  declarations  in respect  of different parcels of land notified under  S.  4, the  validating provisions of s. 4 have a direct, impact  on the question of compensation payable under the Act.  Where a sec. 4 notification has been issued at any time before 20-1- 67,  as has happened in the instant cases, a large area  can be  notified  under  sec. 4, say, in 1959, and  yet  sec.  6 declarations  can be made by reason of s. 4 of the  impugned Act  at  different  times and as late  as  1969.   Yet,  the compensation  would be on the value in 1959 irrespective  of the fact that such value has appreciated in the meantime due to the general spiralling of prices and not as a consequence of  its  having been notified under sec. 4. It  is  manifest that  but  for  the validating provisions of  S.  4  of  the Amendment  Act government would have had either  to  proceed with the acquisition of the whole of the notified land or to proceed  with  part  of  it and  thus  exhaust  the  sec.  4 notification   and  release  the  rest  of   the   land-from acquisition.  If further land-is subsequently needed a fresh notification  under  s.  4  would  have-been-necessary   and

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compensation would have to be paid on the basis of the value on  that  date.   The impugned  Act  enables  government  to acquire  the  land  once  it is notified  under  sec.  4  in different parcels and if the notification is of a date prior to 20-1-67 pay the same compensation depriving the owner  of the  appreciation  of value during the  intervening  period. Such  appreciation would have had to be compensated for  but for sec. 4 of the impugned Act-.  Each parcel of land in  an area  notified  under  sec.  4  would  thus  be  dealt  with differently  depending  on  at  what point  of  time  it  is acquired.   A  piece of land would fetch compensation  at  X amount even though its market value has doubled by the  time sec. 6 declaration in respect of it is made.  Another  piece of the very same land would be awarded the same compensation even  if  the appreciation "in its value is  four-fold  only because government can now acquire it at a subsequent  date. The deprivation of the appreciated value to different owners or  to the same owner if both the parcels of land belong  to the  same would vary depending upon when government  chooses to  acquire each of such parcels.  Therefore, from the  mere fact that the impugned Act does not amend sec. 4 or sec.  23 it is not possible to say that it is not an Act dealing with or  affecting compensation.  Besides, by amending  sees.  5A and  6 and validating acquisitions, orders and  declarations the  Amendment  Act brings about changes  of  a  fundamental character in the Act by converting the unitary character  of an  acquisition into a diversified one, in that  instead  of one  inquiry  and  one  report by  the  same  officer,.  one declaration  under sec. 6 and one award, it permits  several inquiries and several reports by different officers, several declarations and even 85 several  awards  thus  altering the very  structure  of  the Principal  Act.   It  is thus impossible  to  say  that  the impugned  Act is not the law of acquisition contemplated  by Art. 31(2)., It  was, however, contended that even so, (1)  the  impugned Act  does not alter the principle in s. 23 of the  Act  that compensation is to be fixed on the basis of market value  at the  date  of  s.  4 notification  and  that  such  mode  of compensation is based on a long standing principle that  the owner  is not entitled to any increase in value as a  result of the land having, been notified; and (2) that the basis of compensation  emerging from the Amendment Act has a  bearing on  the  adequacy  of compensation and hence  the  court  is barred  under  the  amended  Art.  31(2)  from  making   any scrutiny. The  principle  on which compensation is to  be  ascertained has.,  undergone changes from time to time.  In the  Act  of 1870, s. 24 provided that it should be fixed on the basis of the  value  at the time of paying  compensation.   That  was changed  in  the Act of 1894 under which the date  of  s.  6 notification  was  made,.the crucial date  for  ascertaining compensation.   This  was changed in 1923  when  the  market value on the date of s. 4 notification was made the  measure of compensation.  This was done as s. 5A was then introduced for  the  first  time  in the Act.  It  was  felt  that  the insertion  of  s. 5A would create, a time. gap  between  the notification  under  s. 4 and the actual  acquisition.   The date  of s. 4 notification was accepted as the crucial  date on  the  principle that in calculating compensation  it  was fair  to exclude appreciation due, to the land  having  been notified  for  a  scheme  for which ’it  was  sought  to  be acquired.   The,  principle on which appreciation  in  value after the issuance of s. 4 notification was. excluded is  no

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longer valid or in accord with the present day realities for it is a notorious fact that prices of properties have,  been continuously rising for reasons into which it is neither ne- cessary  nor  relevant to go into. The  principle  excluding appreciation as a result of s. 4 notification has been there for a long time.  But the argument that s. 23 is not altered by the Amendment Act does not lead us any further, for,  the inquiry  is  what is the impact of the impugned Act  on  the question of compensation payable to the expropriated owner.- If  the  impugned  Act had not  nullified  the  decision  in Sharma’s  Case(1) and had not ruled that s.  4  notification would  not become exhausted, fresh notification under  s.  4 Would  have become necessary and higher  compensation  would have  become payable than now.  The fact that neither  s.  4 nor s. 23 is altered therefore does not make any difference. (1)  [1966] 3 S.C.R. 557. 86 The  impugned Act being a legislation after the 4th  Consti- tution amendment of 1955 the question as to the adequacy  of compensation is no longer amenable to judicial scrutiny  but the  amendment  of Art. 31(2) in 1955 has not  affected  the constitutional   requirement   that  no  property   can   be compulsorily  acquired  except  under a  law  providing  for compensation  or  which  provides  principles  fixing   such compensation.  As to what the term "compensation" in Art. 31 means  has been the subject-matter of several  decisions  of this  Court  and the term has as a result  acquired  a  well settled   interpretation.    In  Bela   Banerjee’s   Case(1) Patanjali  Sastri  C.J.  in repelling  the  contention  that compensation  ’in Entry 42 of List III could not  mean  full cash  equivalent laid stress on the distinction between  the word  "compensation’ in Art. 31 and the said Entry  and  the words  "the acquisition of property on just terms" in s.  51 (XXXI)  of  the Australian Constitution Act  and  held  that compensation meant just equivalent and the principles  which should govern the determination of compensation amount to be given  to  the expropriated owner must ensure that  what  is determined must be such compensation, i.e., just equivalent. In striking down the proviso to s. 8 of the West Bengal Land Development  and Planning Act, XXI of 1948 he observed  that the fixing of an anterior date which has no relation to  the value  of  the land when it is acquired, may be  many  years later,  cannot but be regarded as arbitrary.   Similarly  in Namasivaya  Mudaliar’s Case (2) this Court  held,  following Bela   Banerjee’s   Case(1),   that   any   principle    for determination   of  compensation  denying  the   owner   all increments in’ value between a fixed date and the date of s. 4 notification must be regarded as denying to the owner  the true equivalent of the land which is ,expropriated and  that it is for the State to show that fixation of compensation on the  market  value on an anterior date does  not  constitute violation  of the constitutional guarantee.   This  decision was  in respect of a law before the 1955 amendment  and  the court  expressed no opinion on the question whether  it  was possible by enacting legislation after the 1955 amendment to provide that compensation may be fixed on the basis of value prevailing  on a certain anterior date. (cf.  Jeejeebhai  v. Assist.  Collector(3). It was thus well settled before the amendment of Art.  31(2) in  1955 that there could not be a valid acquisition  unless the  law authorising it provided. compensation,  i.e.,  just equivalent  or  principles fixing such  compensation,  i.e., just  equivalent  of  what the owner is  deprived  of.,  The question  as  to the impact of the 1955  amendment  of  Art. 31(2) on this principle arose in

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(1) [1954] S.C.R. 558. at p. 563-64. (3) [1965] 1 S.C.R. 636. (2) [1964] 6 S.C.R. 936. 87 P. Vajravelu Mudaliar v. Deputy Collector(1).  This decision laid down the following propositions :- (i) whether the principles laid down in an impugned Act take into  account all the elements to make up the true value  of the property and exclude matters which are to be included is a justiciable issue; (ii) that the law fixing compensation or laying down princi- ples  governing  its fixation cannot be  questioned  on  the ground of inadequacy; (iii)that the connotation of "compensation" and the question of  justiciability are distinct concepts and should be  kept apart  while  considering  the  validity  of  the   impugned provision; (iv)  that the fact that the amended Article uses  the  same words,  viz.,  "compensation" and "principles"  -shows  that Parliament  used  them  in  the sense  in  which  they  were construed by this Court, and (v) that the legislature must provide for a just  equivalent or  lay down principles fixing such just equivalent  and  if that is done, such a law cannot be questioned on the  ground of inadequacy of compensation. As to how and in what manner the question of adequacy  would arise  was illustrated by giving various examples.   Article 31(2)  as amended means therefore that if the  impugned  Act either  fixes just equivalent as compensation or  lays  down principles  for  fixing such just equivalent  it  cannot  be impeached on the ground that such compensation is inadequate or  that  when working out those  principles  the  resultant compensation is inadequate.  But this does not mean that the amendment  permitted  the  legislature,  to  fix  inadequate compensation  or to lay down principles fixing  compensation which  is not just equivalent.  Such a theory attributes  an intention  to  the legislature to enact a law in  terms  of. contradiction,   for,  compensation  which,  is   not   just equivalent  is no compensation as interpreted by this  Court and  understood when Art. 31(2) was amended and  giving  any such  meaning to that Article would be contrary to the  well settled principle of construction that where the legislature uses  in  an Act a legal term which  has  received  judicial interpretation  it  must be assumed that it is used  in  the sense in which it has been judicially interpreted unless  a’ contrary intention appears.  At p. 629 of the report it  has clearly been laid down that               "If  the legislature though ex facie  purports               to  provide for compensation or indicates  the               principles  for ascertaining the same  but  in               effect and substance takes (1)  [1965] 1 S.C.R. 614. 88               away  a property without  paying  compensation               for  it, it will be exercising power which  it               does not possess.  If the legislature makes  a               law for acquiring a property by ,providing for               an illusory compensation or by indicating  the               principles  for ascertaining the  compensation               which  do not relate to the property  acquired               or to the value of such property at or  within               a   reasonable  proximity  Of  the   date   of               acquisition or the principles are so  designed               and so arbitrary that they do not provide  for               compensation  at all one can easily hold  that

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             the  legislature made the law in fraud of  its               powers." Following  this  decision this Court held in  the  Union  of India  v. Metal Corporation of India(1) that the  principles laid  down in the impugned Act were not in accord with  Art. 31(2) and that an acquisition law "to justify itself has  to provide for the payment of a just equivalent to the property acquired or lay down principles which are not arbitrary  but which  are relevant to the fixation of compensation.  It  is only  when the principles stand this test that the  adequacy of  the  resultant compensation falls outside  the  judicial scrutiny under the second limb of Art. 31(2)." It  is true that in Vajravelu’s Case(2) it was held that  in the context of the continuous rise in land prices,  fixation of  an average price over 5 years amounted to  ascertaining- the  price of the land in or about the date  of  acquisition and  that  omission  of one of  the  elements  which  should properly  be  taken  into account  for  fixing  compensation though  resulting  in inadequacy of compensation  would  not constitute fraud on power.  But there is no analogy  between the  provisions  of the impugned Act in that case  and’  the instant  cases.   Though  that  Act  varied  the  method  of ascertainment  of  compensation  provided by s.  23  of  the Principal  Act it provided for taking the average of  prices prevailing  during  the  5 years in or  about  the  date  of acquisition.  By striking the average of prices during those 5 years the Act actually took into account the  appreciation in  value during the 5 years preceding the  acquisition  for fixing the compensation.  The position in the instant  cases is  quite different.  The impugned Act does not provide  for any  such average price as was done in Vajravelu’s  Case.(2) Though  s. 4 apparently validates’ acquisitions, orders  and notifications made on the basis of s. 4 notification  issued before  20-1-67, in effect and substance it seeks  to  treat such  a notification under s. 4 which had lost its  efficacy and  had  become exhausted where s. 6 declaration  has  been made (1) [1967] 1 S.C.R. 255, (2) [1965] 1 S.C.R. 614. 89 for a part of the land covered by such s. 4 notification  as still  outstanding.  This is sought to be done  without  any legislative  provision in the impugned Act revitalising  the notification which had become dead and inefficacious.   Such a thing could not be done by merely validating acquisitions, orders   and  declarations  without  revitalising  by   some provision  the  notifications under s. 4  which  had  become exhausted  and on which such acquisitions  including  orders and  declarations  are  founded.   Nor  could  it   validate inquiries and reports under s. 5A and declarations under  s. 6,  all  of which are made on the basis  of  a  notification which was no longer alive except by retrospectively amending s.  4  and declaring such s. 4 notification as  having  been made under such amended s. 4. Not having so done, the direct result of the validating provisions of s. 4 of the  impugned Act is to fix compensation on the basis of the market  value existing  on  the  date  of  s.  4  notification  which  had exhausted  itself.  By validating the  acquisitions,  orders and  declarations  made on the basis of  such  an  exhausted notification  the impugned Act saves government from  having to  issue  a  fresh  s. 4 notification  and  having  to  pay compensation  calculated on the market value as on the  date of  such fresh notification and depriving  the  expropriated owner the benefit of the appreciated value in the  meantime. The real object of s. 4 of the impugned Act is thus to  save

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the  State from having to compensate for  such  appreciation under  the  device of validating all that is done  under  an exhausted  s. 4 notification and thus in reality  fixing  an anterior   date,  i.e.,  the  date  of  such  a   dead   s.4 notification for fixing the compensation.  We apprehend that s.   4  of the impugned Act suffers from a two-told  vice  : (i)  that it purports to validate acquisitions,  orders  and notifications  without resuscitating the notification  under s.  4  by any legislative provision on the  basis  of  which alone  the validated acquisitions, orders  and  declarations can properly be sustained and (2) that its provisions are in derogation  of  Art. 31(2) as interpreted by this  Court  by fixing  compensation  on the basis of value on the  date  of notifications under s. 4 which had become exhausted and  for keeping  them alive no legislative provision is to be  found in the impugned Act.  It is therefore not possible to  agree with  the  view that the purpose of s. 4 is to fill  in  the lacuna  pointed  out in Sharma’s Case(1) nor with  the  view that it raises a question of adequacy of compensation.   The section  under  the guise of  validating  the  acquisitions, orders  and  notifications camouflages the  real  object  of enabling acquisitions by paying compensation on the basis of values  frozen  by notifications under s. 4  which  by  part acquisitions   thereunder  had  lost  their   efficacy   and therefore  required  the  Test of the land  to  be  notified afresh  and  paying compensation on the date of  such  fresh notifications. (1) [1966] 3 S.C.R. 557. L4Sup.C.I/68-7 90 In  this  view,  it is not necessary to go  into  the  other questions  raised  by the petitioners and  we  refrain  from expressing  any opinion on them.  We would declare s.  4  as invalid and allow the petitions with costs.                            ORDER In accordance with the opinion of the majority the petitions are dismissed.  No order as to costs. G.C. 91