PETITIONER: <NAME> AND OTHERS Vs. RESPONDENT: THE STATE OF BOMBAY AND OTHERS. DATE OF JUDGMENT: 06/04/1955 BENCH: <NAME>, <NAME>: <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, SYED JAFFER CITATION: 1955 AIR 540 1955 SCR (2) 164 ACT: Bombay Merged Territories and Areas (jagirs Abolition) Act, 1953 (Bombay Act XXXIX of 1954)-Whether ultra vires- Agreement of Merger with, and letters of guarantee to, Bulers of <ORG>s by the Government of India-Clause 5 of the letters of guarantee-Scope-Legislative powers of <ORG>s under Article 246 of the Constitution-Limitations thereon- Article 363 of the Constitution-Bar to <ORG>' jurisdiction- Fundamental rights-Articles 14, 19(1)(f), 31(2) of Con- stitution-Applicability in view of Article 31-A(2)(a). HEADNOTE: Under Article 246(2) and (3) of the Constitution, the Legis- lature of a <ORG> has plenary powers to legislate with respect to matters enumerated in Lists II and III of the Seventh Schedule to the Constitution. The legislative competence of the <ORG> Legisla 165 ture can only be circumscribed by express prohibition contained in the Constitution itself and unless there is any provision in the Constitution expressly prohibiting legislation on a subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which <ORG> enjoys to legislate on the topics enumerated in Lists II and III of the Seventh Schedule to the Constitution. In view of Article 246 of the Constitution, no curtailment of legislative competence can be spelt out of the terms of Clause 5 of the Letters of Guarantee given by <ORG> to the Rulers of "<ORG>s" subsequent to the agreements of Merger, which guaranteed, inter alia, the continuance of Jagirs in the merged "<ORG>s". Indeed, Clause 5 of the Letters of Guarantee itself saved the legislative right of the <ORG> of Bombay subject to the limitation that enactments of the <ORG> shall not be discriminatory in nature. Attacks on the validity of the said Act on the basis of the rights guaranteed by Articles 14, 19(1)(f), and 32(2) of the Constitution cannot be countenanced in view of Article 31- A(2)(a) of the Constitution, Article 363 (1) of the Constitution barred the jurisdiction of <ORG> in disputes arising out of any provision of the agreements of merger and the Letters of Guarantee. Held, that Bombay Act XXXIX of 1954, the impugned Act, was intra vires <ORG>. Petitions Nos. 337 to 349, 365, 366, 481 and 690 of 1954 Dis. missed. Petition No. 364 of 1954 Adjourned. <CITATION> (51 I.A. 357), Secretary of <ORG> v. <NAME> (68 I.A. 109), <CITATION> (1951 S.C.R. 474), <CITATION> ( F.C.R. 72), <CITATION> (  F.C.R. 111), referred to. JUDGMENT:

ORIGINAL JURISDICTION: Petitions under Article 32 of the Constitution for the enforcement of fundamental rights. <NAME>, (<NAME>, with him), for the Petitioners in Petitions Nos. 337 to 343 and 481 of 1954.

<NAME>, (<NAME>, with him), for the Petitioners in Petitions Nos. 344, 446 and 349 of 1954.

<NAME>, (<NAME> and <NAME>, with him), for the Petitioner in Petition No, 345 of 1954, <NAME>, (<NAME> and <NAME>, with him) for the Petitioner in Petition No. 347 of 1954. <NAME>, (<NAME> and <NAME>, with him), for the Petitioner in Petition No. 348 of 1954. <NAME> and <NAME>, for the Petitioner in Petition No. 364 of 1954.

<NAME> and <NAME>, for the Petitioners in Petitions Nos. 365 and 366 of 1954.

<NAME> and <NAME>, for the Petitioner in Petition No. 690 of 1954.

<NAME>, Attorney-General for India, <NAME>, Solicitor-General for India (<NAME>, <NAME> for <NAME>, with them), for the Respondents in all Petitions.

1955. April 6. The Judgment of the Court was delivered by BHAGWATI J.-These petitions under article 32 of the Constitution are directed against the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953, Bombay Act XXXIX of 1954 which was passed by the <ORG> of the State of Bombay to abolish jagirs in the merged territories and merged areas in the State of Bombay. The Bill was passed by the <ORG> on the 22nd September 1953 and received the sanction of <ORG> on the 26th September 1953. The President gave his assent to it on the 13th June 1954 and by a notification dated the 15th July 1954 it was brought into effect from the 1st August 1954. In view of the notification the Petitioners filed these petitions on the 30th July 1954 challenging the vires of the Act (hereinafter called the impugned Act) and asking for the issue of appropriate writs restraining inter alia the State of Bombay from giving effect to its provisions. On applications made to this Court on the 31st July 1954 the operation of the impugned Act was stayed pending the bearing and final disposal of the petitions, The Petitioners in Petitions Nos. 337, 344, 345, 346, 347 and 349 of 1954 are relations of the Ruler of the erstwhile State of Idar. The Petitioners in Petitions Nos. 338 and 342 of 1954 are relations of the Ruler of the erstwhile State of Chhota Udaipur. The Petitioners in Petitions Nos. 339 and 341 are relations of the Ruler of the erstwhile State of Devgad Baria. The Petitioner in Petition No. 343 of 1954 is a relation of the Ruler of the erstwhile State of Rajpipla. The Petitioners in Petition No. 340 of 1954 are jagirdars of the erstwhile State of Rajpipla. The Petitioner in Petition No. 348 of 1954 is a relation of the Ruler of the erstwhile State of Bansda. The Petitioners in Petitions Nos. 365 and 366 of 1954 are jagirdars of the erstwhile States of Idar and Lunawada respectively. The Petitioner in Petition No. 481 of 1954 is a relation of the Ruler of the erstwhile State of Mohanpur. The Petitioners in Petition No. 690 of 1954 are the holders of personal Inams from the erstwhile State of Rajpipla. All the petitioners except the last claim to be hereditary jagirdars under grants made by the respective States for the maintenance of themselves, their families and dependents and hold the jagirs as Jiwai Jagirs. The holders of the personal Inams in Petition No. 690 of 1954 used to pay salami to the erstwhile State of Rajpila and are included within the definition of "jagirdar" being holders of agir villages within the meaning of the definition thereof contained in the impugned Act.

The Petitioner in Petition No. 364 of 1954 claims to be the owner of 60 villages in the patta or territory of Moti Moree comprised in the erstwhile State of Idar as the Bhumia or under-lord and contends that his holding does not fall within the definition of jagir as given in the impugned Act and that therefore in any event the State of Bombay is not entitled to enforce -the impugned Act against him. All these Petitioners have challenged the vires of the imapugned Act mainly relying upon the agreements of merger entered into by the Rulers of the respective States with the Dominion of India on or about the 19th March 1948 and the collateral letters of guarantee passed by <ORG> in their favour on subsequent dates, the contents of which were regarded as part of the merger agreements entered into by them with the Dominion of India.

The merger agreements were in the form given in Appendix XIII to the White Paper at page 183:

"FORM OF MERGER AGREEMENT SIGNED BY RULERS OF GUJARAT AND DECCAN STATES AGREEMENT MADE THIS day of between the Governor-General of India and the of Whereas in the immediate interests of is desirous that the administration of the State should be integrated as early as possible with that of the Province of in such manner as the Government of the Dominion of India may think fit; It is hereby agreed as follows:-

ARTICLE 1.

The of hereby cedes to <ORG> full and exclusive authority, jurisdiction and powers for and in relation to the Governance of the State and agrees to transfer the administration of the State to <ORG> on the day of 1948 (hereinafter referred to as "the said day").

As from the said day <ORG> will be competent to exercise the said powers, authority and jurisdiction in such manner and through such agency as it may think fit.

ARTICLE 2.

The shall with effect from the said day be entitled to receive from the revenues of the <ORG> annually for his privy purse the sum of rupees free of taxes. This amount is intended to cover all the expenses of the Ruler and his family, including expenses on account of his personal staff, maintenance--of his residences, marriages and other ceremonies, etc. and will neither be increased nor reduced for any reason whatsoever. The said sum may be drawn by the in four equal instalments in advance at the beginning of each quarter by presenting bills at the <ORG> <ORG> or at such other <ORG> as may be specified by <ORG>.

ARTICLE 3.

The shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from <ORG> properties) belonging to him on the date of this agreement.

The will furnish to the Dominion Government before the day of

1948 an inventory of all the immovable property, securities and cash balance held by him as such private property. If any dispute arises as to whether any item of property is the private property of the or <ORG> property, it shall be referred to such officer with judicial experience as <ORG> may nominate and the decision of that officer shall be final and binding on both parties.

ARTICLE 4.

The shall be entitled to all personalprivileges enjoyed by them whether within or outside the territories of the State, immediately before the 15th day of August 1947.

ARTICLE 5.

<ORG> guarantees the succession, according to law and custom, to the gadi of the <ORG> and to the personal rights, privileges, dignities and titles. In confirmation whereof Mr. <NAME>, Secretary to <ORG> in the Ministry of <ORG>s, has appended his signature on behalf and with the authority of the Governor-General of Indiab and has appended his  signature on behalf of himself, his heirs and successors, of Dated Secretary to <ORG>, Ministry of <ORG>s".

The letters of guarantee subsequently executed by <ORG> in favour of the respective Rulers contained the following guarantees:-

"(1) Your privy purse will be fixed in accordance with the formula applied in relation to the fixation of the privy purse of the Deccan States Rulers whose States have merged into the Bombay Province. The amount will be fixed in perpetuity to you, your heirs and successors, and will neither be increased nor reduced for any reason whatsoever. It will be free of all taxes, whether imposed by the Government of Bombay or by <ORG> and it will not be taken into account in the assessment of your world income to income-tax or super-tax.

(2) The cash balances and other assets of your State on the day you transfer the administration of your State to <ORG> will, as far as possible, be spent for the benefit of the people of your State.

(3) You will be entitled to the full ownership, use and enjoyment of all Darbari or private properties (as distinct from State Properties) belonging to you on the date of your making over the administration of your State to <ORG>. Darbari properties will include palaces, houses, residences, guest houses, stables, garages, quarters, outhouses, etc. which are at the date of transfer of administration in bonafide personal use or occupation of the Ruler or members of his family or personal staff, irrespective of whether the property is situated in the Capital, or at any other place in the State, or in Bombay, or anywhere else outside.

(4) The continuation in service of the permanent members of the public services of your <ORG> is hereby guaranteed on conditions which will be no less advantageous than those on which they were serving on 1st April 1948. In the event of continuation of service not being possible in any case, reasonable compensation will be paid.

(5) Pensions, gratuities, annuities, and allowances, granted by the <ORG> to the members of its public services who have retired or have proceeded on leave preparatory to retirement before 1st April 1948 as also the enjoyment of the ownership of Khangi villages, lands, jagir, grants, etc. existing on 1st April 1948 are hereby Guaranteed. This guarantee is without prejudice -Co -the right of <ORG> to issue any legislation which does, not discriminate against the states and their subjects. (6) All emblems, insignia, articles and other Paraphernalia of the Ruler will be considered as belonging to, and be regarded as his private property.

(7) No order passed or action taken by you before the date of making over the administration to <ORG> will be questioned unless the order was passed or action taken after the 1st of April 1948 and is considered by <ORG> to be palpably unjust or unreasonable. The decision of <ORG> in this respect will be final.

(8) No enquiry shall be made nor shall proceedings lie in any Court in India against you, whether in a personal capacity or otherwise, in respect of anything done or omitted to be done by you or under your authority during the period of your administration of the State. (9) Every question of disputed succession in regard to a Gujarat State which has signed an agreement integrating the administration of the State with that of the Province of Bombay shall be decided by <ORG> after referring it to <ORG> and in accordance with the opinion given by that High Court. All questions relating to the rights, dignities and privileges of the Ruler will also be considered by <ORG> who shall make suitable recommendations to <ORG> and <ORG>. The <ORG> shall consist of the Rulers of all full jurisdictional Gujarat States, whether salute or non- salute. No ruler who is less than 21 years of age shall however be a member of the <ORG>. The <ORG> will elect one of its members to be the President of the <ORG>. The President and the members of the <ORG> will hold office for a term of five years from the date on which they enter upon the duties of their respective offices.

2.The contents of this letter will be regarded as part of the merger agreement entered into by you with the Governor- General of India".

The contention which has been urged before us by the Petitioners relying upon clause 5 of the Letters of Guarantee aforesaid is that the enjoyment of the ownership of the jagirs existing on the 1st April, 1948 was guaranteed, that this guarantee was binding on the State of Bombay, that the State of Bombay and therefore <ORG> had waived the right, if any, or in any event had no legislative competence to enact any legislation depriving the holders of the jagirs of their right of ownership over the same, and that even though the Government of Bombay has reserved to itself the right to issue any legislation which did not discriminate against the states and their subjects, the impugned Act was ultra vires inas- much as no legislation could be undertaken which would have the effect of depriving the holders of the jagirs of their ownership over the same and the provisions of the impugned Act were in any event discriminatory against the States and their subjects or in other words the impugned Act was confiscatory and also discriminatory.

It was contended on the other hand on behalf of the State of Bombay that the agreements of merger and the letters of guarantee were executed by the Dominion of India and were not binding on the State of Bombay, that the Petitioners were not parties to the agreements of merger and letters of guarantee and that they were not entitled to enforce the same, that even if they be treated as parties thereto the dispute between the parties arose out of the provisions of the agreements and covenants which were entered into or executed before the commencement of the Constitution by the Rulers of the respective states and to which <ORG> was a party and that therefore this Court had no jurisdiction to interfere in the said disputes by virtue of the provisions of article 363 of the Constitution, that <ORG> had plenary powers of legislation within the ambit of its sphere unless the Constitution itself expressly prohibited legislation on the subject either absolutely or conditionally, that no such prohibition could be spelt out of the terms of clause 5 of the letters of guarantee and that the impugned Act was intra vires the powers of <ORG> and could not be challenged. Once that position was established it was further urged that the jagirs in question were estates within the definition of the expression in article 31-A(2)

(a) of the Constitution and the impugned legislation being a legislation providing for the acquisition by the State of the estates and the rights therein or for the extinguishment or modification of the same could not be challenged as void on the ground that it was inconsistent with or abridged any of the rights conferred by any provisions of Part III of the Constitution, and that therefore the impugned Act could not be challenged as violative of any of the fundamental rights of the Petitioners. It was also urged that none of the provisions of the impugned Act were confiscatory or in any manner whatever discriminatory, fair and adequate compensation having been provided for the abolition of the jagirs and the States and their subjects not having been dealt within any discriminatory manner as compared with the subjects of the original State of Bombay.

As regards the contention that the agreements of merger and the letters of guarantee were executed by the Dominion of India and were not binding on the State of Bombay it was urged on behalf of the Petitioners that the Government of the Dominion of India was certainly bound by those guarantees and this obligation of <ORG> devolved upon the Province of Bombay when the erstwhile States which were parties to the agreements of merger and the letters of guarantee became merged in the Province of Bombay, under clause 8 of the States' Merger (Governors' Provinces) Order, 1949 (Appendix XLIV, White Paper, Page

297), that these obligations were thus deemed to have been undertaken by <ORG> on behalf of the absorbing Province, viz., the Province of Bombay and were binding upon the Province of Bombay, and that when the Constitution came into force from the 26th January 1950 all rights, liabilities and obligations of the Government of each Governors' Province whether arising out of any contract or otherwise were under article 294 of the Constitution to be the rights, liabilities and obligations respectively of the Government of each corresponding State and these obligations of the Province of Bombay accordingly became the obligations of the State of Bombay. It was further urged that the State of Bombay was thus bound by all the obli- gations which bad been undertaken by <ORG> under the agreements of merger and letters of guarantee above referred to, and it could not lie in the mouth of the State of Bombay to repudiate the same.

This argument is not without force, but we do not consider it necessary to decide this question because even assuming that the State of Bombay was bound by these obligations, the question still remains how far the Petitioners before us are entitled to enforce these obligations against the State of Bombay. The Petitioners were certainly not parties to these agreements of merger and letters of guarantee eo nominee. They could only claim to be parties to the same by reason of the fact that the Rulers of the erstwhile States did not negotiate these agreements of merger or obtain the letters of guarantee only in respect of their personal rights and properties but also represented the States and their subjects in the matter of obtaining the same and the subject of these States were therefore represented by the Rulers and were entitled to the benefit of whatever obligations were undertaken by the Dominion of India qua the States and their subjects. It is therefore arguable that the Rulers of the erstwhile States as also their subjects would be in a position to enforce these obligations. This position was however sought to be negatived by relying upon the following observation of their Lordships of <ORG> in <CITATION> for India in Council(1) at page 360:-

"But a summary of the matter is this: when a territory is acquired by a sovereign state for the first time that is an act of state. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties".

These observations were quoted with approval in <CITATION> (2) at page 124. It was therefore urged that it will be the high contracting parties, viz., the Rulers of the respective States who would be in a position to enforce these obligations and not the Petitioners for whose benefit these obligations were undertaken by <ORG>.

We do not feel called upon to pronounce upon the validity or otherwise of these contentions also for the simple reason that the Petitioners would be out of Court either way. If they were deemed to be parties to the agreements of merger and letters of guarantee they would be faced with the bar to the maintainability of the petitions under article 363 of the Constitution which lays down that neither the <ORG> (1) 51 <ORG> 357.

(2) 68 Indian Appeals 109.

<ORG> nor any other <ORG> shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of the Constitution by any 'Ruler of an Indian State and to which <ORG>.................... was a party. If on the other hand they were deemed not to have been parties to the same they would not be the contracting parties and would certainly not be able to enforce these obligations.

It was therefore urged on behalf of the Petitioners that the dispute between the parties did not arise out of the provisions of the agreements of merger and the letters of guarantee which were entered into or executed by the Rulers of the respective States and to which the Government of the Dominion of India was a party. According to the Petitioners they merely challenged the vires of the impugned Act and relied upon clause 5 of the letters of guarantee in order to establish the position that <ORG> had no legislative competence to legislate on the subject of the abolition of jagirs. That was, it was submitted, not a dispute arising out of the agreements of merger and letters of guarantee but arose out of the act of <ORG> in enacting the impugned Act in direct contravention of the guarantee incorporated in clause 5 of the letters of guarantee. This argument however would not avail the Petitioners, because if one looked into the averments contained in their petitions it was clear that the whole ambit of the petitions was to enforce clause 5 of the letters of guarantee. The Petitioners relied upon clause 5 of the letters of guarantee which had been obtained by the Rulers of the erstwhile State from the Dominion Government and complained that <ORG> had enacted the impugned Act which it had no power to enact having regard to clause 5 of the said letters of guarantee and were wrongfully depriving the Petitioners of the jagirs, the ownership of which had been guaranteed thereunder. The whole of the petitions were nothing else except the claim to enforce the Petitioners' rights under the letters of guarantee, and the disputes therefore were clearly in respect of the agreements of merger and the letters of guarantee and were covered by article 363 (1) of the Constitution. A similar contention had been raised on behalf of the plaintiffs in <CITATION> (1) and was repelled by <ORG> at page 490 as under:---

"The plaintiff contends firstly that it had signed the Instrument of Accession through its Ruler. The State next complains that, acting beyond the powers given over under the Instrument of Accession,.the Dominion of India and the State of Bihar are trespassing wrongfully on its legislative and executive functions, that the Dominion of India and the State of Bihar are making laws which they have no power to make, having regard to the Instrument of Accession, and are wrongfully interfering with the administration of the State beyond the rights given to them under the Instrument of Accession. The whole plaint is nothing else except the claim to enforce the plaintiff's right under the Instrument of Accession. The dispute therefore in my opinion clearly is in respect of this Instrument of Accession and is covered by Article 363(1) of the Constitution of India. The question of the validity of the different enactments and orders is also based on the rights claimed under the Instru- ment of Accession so far as the plaintiff is concerned". It could not therefore be urged that what the Petitioners were doing was not to enforce the obligations undertaken by <ORG> under the agreements of merger and the letters of guarantee, or that the disputes between the parties did not arise out of the provisions of the agreements of merger and the letters of guarantee which were entered into or executed by the Rulers of the respective States and to which <ORG> was a party within the meaning of Article 363 of the Constitution.

(1) 1951 S.C.R. 474.

If that was the position the jurisdiction of this <ORG> was ousted and this <ORG> could not interfere in those disputes. Assuming however that the Petitioners were entitled to enforce the obligation and guarantee incorporated in clause 5 of the letters of s guarantee the further difficulty in the way of the Petitioners is that <ORG> was fully competent to enact the impugned Act notwithstanding the terms of the guarantee. The legislative competence of <ORG> can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which <ORG> enjoys to legislate on the topics enumerated in the Lists II & III of the Seventh Schedule to the Constitution. It was conceded on behalf of the Petitioners that the topic of legislation which was covered by the impugned Act was well within List II of the said Schedule and the vires of the impugned Act could not be challenged on that ground. The ground of attack was that <ORG> and therefore <ORG> bad waived its right to legislate on the topic of the abolition of jagirs or had in any event put a fetter or limitation on their power to issue any legislation in that behalf by the terms of the guarantee contained in clause 5 of the letters of guarantee. It was contended that under the terms of clause 5 an absolute guarantee had been given by <ORG> in regard to the enjoyment of the ownership of jagirs and that <ORG> and therefore the State of Bombay were precluded from enacting any legislation which had the effect of destroying that ownership. This contention however could not be supported by the terms of clause 5 which embodied in the first part thereof the terms of the guarantee, and went on to provide in the second part that this guarantee was without prejudice to the right of <ORG> to issue any legislation which did not discriminate against the States and their subjects. It was therefore not an absolute guarantee but was circumscribed or cut down by the reservation of the power to make law with respect to jagirs provided such law did not discriminate against the States and their subjects. The right of <ORG> which was thus reserved covered the whole of the guarantee embodied in the first part of the clause and there was nothing in these terms which would go to show that the ownership of the jagirs could not be touched and the legislation, if any, was to be enacted in regard to certain incidents of enjoyment of such ownership. The right of <ORG> to issue any legislation with regard to the enjoyment of the ownership of jagir lands was expressly reserved and this right covered also legislation in regard to the abolition of the jagirs and <ORG> was therefore entitled under the terms of this clause 5 to issue any legislation in regard to the same provided however that such legislation did not discriminate against the States and their subjects. That was the only fetter or limitation, imposed upon the right of <ORG> to issue any legislation in regard to the enjoyment of the ownership of jagir lands and if that fetter or limitation could also be imposed on <ORG> the Petitioners would have had a right to challenge the impugned Act on the ground that it discriminated against the States and their subjects. The fetter or limitation upon the legislative power of <ORG> which had plenary powers of legislation within the ambit of the legislative heads specified in the Lists II & III of the Seventh Schedule to the Constitution could only be imposed by the Constitution itself and not by any obligation which bad been undertaken by either <ORG> or the Province of Bombay or even the State of Bombay. Under Article 246 <ORG> was invested with the power to legislate on the topics enumerated in Lists II & III of the Seventh Schedule to the Constitution and this power was by virtue of article 245(1) subject to the provisions of the Constitution. The Constitution itself laid down the fetters or limitations on this power, e.g., in article 303 or article 286(2). But unless and until the <ORG> came to the conclusion that the Constitution itself had expressly prohibited legislation on the subject either absolutely or conditionally the power of <ORG> to enact legislation within its legislative competence was plenary. Once the topic of legislation was comprised within any of the entries in the Lists II & III of the Seventh Schedule to the Constitution the fetter or limitation on such legislative power had to be found within the Constitution itself and if there was no such fetter or limitation to be found there <ORG> had full competence to enact the impugned Act no matter whether such enactment was contrary to the guarantee given, or the obligation undertaken by <ORG> or the Province of Bombay or even the State of Bombay. The Petitioners would have a legitimate grievance in the matter of the deprivation of their rights of ownership of the jagir lands in so far as the States and their subjects were discriminated against, but they would not be able to have their grievance redressed by this <ORG> for the simple reason that the State Legisla- ture was at all events competent to enact the impugned Act not being fettered at all by the terms of clause 5 of the letters of guarantee. The provisions of article 294(b) of the Constitution which is said to have transferred the obligations of <ORG> to the State of Bombay would not by involving the transference of the obligation undertaken by <ORG> in clause 5 of the letters of guarantee to <ORG> impose a fetter or limitation on the legislative competence of <ORG> to enact legislation on any of the topics enumerated in Lists II & III of the Seventh Schedule to the Constitution. The remedy of the Petitioners would be else- where and not in this forum. The learned Judges of the Federal <ORG> gave an answer to a similar complaint of the Taluqdars of Oudh made by them against the United Provinces Tenancy Act XVII of 1939 in <NAME> v. <ORG> at page 87:-

"We desire, however, to point out that what they are now claiming is that no <ORG> in India has any right to alter the arrangements embodied in their sanads nearly a century ago; and, for all we know, they would deny the right of <ORG> itself to do so. We hope that no responsible <ORG> or <ORG> would ever treat as of no account solemn pledges given by their predecessors; but the readjustment of rights and duties is an inevitable process, and one of the functions of the <ORG> in a modern State is to effect that readjustment, where circumstances have made it necessary, with justice to all concerned. It is however, not for this '<ORG> to pronounce upon the wisdom or the justice, in the broader sense, of legislative acts;

it can only say whether they were validly enacted........................................" These observations were quoted with approval by Their Lordships of <ORG> in <NAME> v. <ORG>) at page 122 and we also would observe in the same strain that we are not concerned with the policy of <ORG> in enacting the impugned Act for abolition of jagirs but we are only concerned with the question whether the impugned Act was validly enacted.

No argument has been advanced before us which would enable us to hold that the impugned Act was ultra vires <ORG>, the only ground of attack being that it was in contravention of the guarantee given in clause 5 of the letters of guarantee. But that position is of no avail to the Petitioners.

Considerable argument was addressed before us based on the comparison of the provisions of the various Acts of <ORG> enacted during the years 1949 to 1953 in regard to the abolition of the various tenures obtaining within the State of Bombay with the provisions of the impugned Act, with a view to show that the provisions of the impugned Act were discriminatory against the States (1) 1943 F.C.R. 72.

(2) 1946 F.C.R. III.

and their subjects within the meaning of clause 5 of the letters of guarantee. We have not thought it necessary to refer to the same in view of the conclusion which we have reached above that the impugned Act was intra vires the powers of <ORG> and <ORG> was quite competent to enact the same.

Even if it could be demonstrated that the provisions of the impugned Act were confiscatory as well as discriminatory in the manner suggested, the jagirs of the Petitioners (except in the case of the Petitioner in Petition No. 364 of 1954) were all estates within the meaning of the term as defined in Article 31-A(2)(a) of the Constitution and even if the impugned Act provided for the acquisition of the estates or of any rights therein or for the extinguishment or modifica- tion of any such rights the impugned Act could not be challenged as void on the ground that it was inconsistent with or took away or abridged any of the fundamental rights conferred by Part 11I of the Constitution. Any challenge therefore on the ground of the impugned Act violating the fundamental rights of the Petitioners under article 14 or article 19(1)(f) or article 31(2) of the Constitution was not available to the Petitioners. On the other hand if the grievance was that the impugned Act had brought about dis- crimination in breach of clause 5 of the letters of gua- rantee then the dispute clearly arose out of the letters of guarantee and would by article 363 be placed beyond the jurisdiction of this Court. The Petitions of the Petitioners except Petition No. 364 of 1954 which would be dealt with immediately hereafter therefore fail and are liable to be dismissed.

Petition No. 364 of 1954 In addition to the grounds common to all the Petitions which we have already dealt with above the Petitioner in Petition No. 364 of 1954 claims that he is the owner of the 60 villages in the Putta or territory of <NAME> comprised in the erstwhile State of Idar as the Bhumia or underlord and contends that his holding does not fall within the definition of jagir as given in the impugned Act. In support of his contention he has traced the history of <NAME> since 1250 A.D. and in any event since 1800 A.D when the then Chieftain of <NAME> entered into a treaty with the Maharaja <NAME> of Modasa whereby in consideration of payment of Rs. 361 annually the said <NAME> agreed to protect <NAME> against the attacks of the neighboring State of Doongarpur. He has pointed out that thereafter Modasa was absorbed into the Taluka of Amnagar in 1821 and subsequently in about 1849 it reverted to Idar State and continued with the Idar State until the latter merged into the Province of Bombay in 1948. He contends that he and his predecessors were enjoying and exercising full sovereign rights over <NAME> ever since the said treaty of 1800 and their position had remained unchanged, their only liability being to pay Rs. 361 annually for protection. He further contends that they were enjoying the rights of excise and customs and revenue, that they did not pay any revenue to the State of Idar and enjoyed and continued to enjoy rights over all lands, forests, minerals, river beds, village sites, etc. and that when the Ruler of Idar wanted that there should be uniform customs levy throughout the State, the said Ruler had to give compensation to the Petitioner and had also similarly negotiated with them and had to pay compensation to them in respect of salt, opium, excise etc. He has pointed out that Rs. 457 for customs' Rs. 40 for opium and Rs. 7 for salt were being paid annually by the erstwhile State of Idar and thereafter by <ORG> to him by way of compensation for these sovereign rights of his, which amounts were set off against Rs. 361 being the annual payment of protection which he paid as aforesaid to them. These rights of his recognised by the erstwhile State of Idar and also by the State of Bombay constituted him a Thakur or underlord of <NAME> and he contends that his estate of <NAME> is not a jagir within the definition of the term given in the impugned Act.

Our attention has also been drawn in this behalf to Bombay Gazetteer, Vol. 5 (1880), page 398, where <NAME> (Meghraj) is described as the estate of the original landlords Bhumias otherwise described as petty chiefs and underlords and to page 409 where the underlords (Bhumias) are stated to be the early chiefs who settled in Idar at least not later than the Rathod conquest (about 1250). The State of Bombay on the other hand has denied the several allegations contained in the petition and contends that in the year 1891 the erstwhile State of Idar had conferred upon the <NAME> of <NAME> the powers of a Third Class Magistrate as an act of "grace", that in 1902 the management of the estate was taken over by the erstwhile State of Idar and one <NAME> was appointed as Japtidar, that in 1910 the management was lifted as a special case and the arrears of Nazrana were ordered to be recovered in installments by the erstwhile State of Idar that in several documents <NAME> was described as <NAME> within the definition of the term <NAME> as given in the impugned Act and that the sum of Rs. 361 was still being regularly paid even after merger as "Kichari hak". It therefore contends that the <NAME> of <NAME>, the Petitioner is a jagirdar and <NAME> is a jagir within the meaning of the definition thereof given in the impugned Act. These allegations and counter-allegations do not however carry the matter any further. In order to exclude <NAME> and the Petitioner from the operation of the impugned Act it will be necessary for the Petitioner to establish satisfactorily that <NAME> is, not a jagir within the definition thereof given in the impugned Act. Even though the allegations of the Petitioner go far enough to make it probable that <NAME> was neither held by the Petitioner and his ancestors under a grant or was not recognised as a grant by the Ruler of the erstwhile State of Idar, that would not be enough to enable us to grant him the relief prayed for by him. The question requires to be completely thrashed out and adjudicated upon by a Court of law after going into the evidence adduced before it by both the parties. The learned Attorney-General appearing for the State of Bombay has therefore submitted that this question should be enquired into by a proper tribunal and the Petitioner should be referred to a civil suit in order to establish his rights. We accordingly feel that the Petition No. 364 of 1954 should be adjourned till after the disposal of a civil suit to be filed by the Petitioner in the proper Court for a declaration that <NAME> is not a jagir within the definition of the term as given in the impugned Act and for consequential reliefs. The learned Counsel for the Petitioner has given us to understand that a formal notice under Section 80 of the Civil Procedure Code in this behalf has already been served by the Petitioner on the State of Bombay. We therefore order that the Petitioner do file the necessary suit within 3 months from this date and this petition do stand adjourned till after the hearing and final disposal of that suit. The stay granted by this Court in this petition will continue in the meanwhile. We may record here that the learned Attorney-General on behalf of the State of Bombay has also given his undertaking not to take any steps against the Petitioner in the meanwhile. Petitions Nos. 337 to 349, 365, 366, 481 and 690 of 1954 will therefore stand dismissed. Petition No. 364 of 1954 will stand adjourned sine die till after the disposal of the civil suit to be filed by the Petitioner as above indicated. If no such suit is filed within the aforesaid period this petition will also stand dismissed. Each party will bear and pay the respective costs of the petitions.


CASE NO.: Appeal (civil) 7088 of 1999 PETITIONER: MUNICIPAL COUNCIL, AHMEDNAGAR AND ANR. RESPONDENT: <NAME> AND ORS. DATE OF JUDGMENT: 08/12/1999 BENCH: S.B. MAJMUDAR & <NAME> JUDGMENT:

JUDGMENT 1999 Supp(5) SCR 197 The Judgment of the Court was delivered by <NAME>, <NAME> <NAME> granted.

<ORG>, Ahmednagar and another are in appeal against an order of <ORG> (Aurangabad Bench) in Writ Petition No. 1156 of 1993, wherein the Writ Petition filed by the respondent Nos. 1 to 3 herein, <NAME> and two others was allowed and <ORG> was directed to make over vacant possession of the land bearing CTS No. 5761-A situated at Ahmednagar to the petitioners within a period of three months from the date of the Judgment <ORG> further directed the writ petitioners to refund the amount of compensation received by them for the acquired land within a period of four weeks from the date of handing over the possession of the land to them by the respondent <ORG> along with certain consequential orders. The facts for the matter being singularly singular ought to be adverted to at this juncture.

The facts depict that the Writ Petition before <ORG> was filed on 21st October, 1992, for setting aside the Award dated 26th April, 1976 in regard to CTS No, 5761' of Ahmednagar Town. Subsequent thereto, however, the Writ Petition was amended for issuance of a Writ of Certiorari for quashing and setting aside the notification dated 15th May, 1971 issued under Section I26(4)of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the Act) read with Section 6 of the Land Acquisition Act, 1994. It is on this petition that <ORG> made the rule absolute and directed making over of the vacant possession of the land under acquisition within a period of three months from the date of the Judgement as noticed above. The appellants on grant of special leave to appeal are before this Court, While issuing notice on 17th December, 1998, this Court was pleased to grant an interim stay of operation of the impugned judgemient of <ORG> and also directed filing of counter and rejoinder affidavits. It is in terms of this direction of the Court that the matter was taken up for hearing on 7.12.1999 and also today.

Upon however, hearing the submissions on behalf of the parties herein, we do feel it expedient to record that the matter can be dealt with finally on a short ground to wit, the time element. While addressing on behalf of the petitioners herein Mr. <NAME> learned Solicitor General severely criticised the judgment of <ORG> and contended that <ORG> should have taken note of the element of delay in moving the Court. Mr. <NAME> pointed out that whereas the notice for acquisition was issued in 1971 and the Award was passed and possession was taken in the year 1976, the Writ Petition was filed in the year 1992 i.e. to say after expiry of 21 years from the date of notification and 16 years from the date of making over possession and the Award.

Incidentally this point of delay and laches was also raised before <ORG> and on this score <ORG> relying upon the decision in <NAME>'s case <CITATION> ,  1 MHLJ 503, observed that it is not an inflexible rule that whenever there is delay, the <ORG> must and necessarily refuse to entertain the petition filed after a period of three years or more which is the normal period of limitation for filing a suit. The Bombay High <ORG> in <NAME> `s case (supra) stated that the question is one of discretion to be followed in the fact arid circumstances of each case and further stated :-

"The real test for sound exercise of discretion by <ORG> in this regard is not the physical running of time such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved <ORG>, the rights of the third parties have come into being which should not be allowed to disturb unless there is reasonable explanation for the delay".

In the Judgment Impugned in this appeal <ORG> stated :-

"It may be stated that in the instant case the respondent No. 2 not only failed to take steps even after passing of the Award in 1976 but attempted to change the public purpose even thereafter in 1980 and 1993. It can be seen from the discussion of the material placed before the <ORG> by the petitioners that the respondent No. 2 in fact issued a public notice inviting objections to the modification in the development plan in 1993. The petitioners have in fact when realised the possibility of respondent No. 2 taking steps for changing or modifying the development plan to the extent of their land protested and has in fact lodged their objections on similar grounds which re urged in the Writ Petition. Therefore, there is a continuity in process without any break on the part of the respondent No. 2 in changing the public purpose in not giving effect to the purpose for which notification under Section 4(1) of the Act was published by the State government in exercise of its powers and in consequence passing of the Award based on such notification. In the given set of circumstances, we feel that there petitioners have had cause of action even passing of the award in challenging the very initial action on the part of the respondents in acquiring the land. It may be stated that the respondent No. 2 has not raised the contention of delay and laches in the first affidavit in reply filed on 29.6.1966. It is only in the additional affidavit in reply on 28.4 98 and that too in reply to amendment made to the Writ Petition by the petitioners that for the first time a contention is raised as to the delay and laches in filing the petition. We are afraid if the respondent No. 2 is entitled to raise this contention during the course of arguments............................................"

The observations as above, with due respect <ORG> are based on certain misconception of facts. While it is true that the plea of limitation ought to be raised at the first available opportunity but that does not mean and imply that the patty raising it even during the course of hearing would be barred therefrom. Limitation is a mixed question of law and fact. Time barred claim would not even be entertained by a civil court without there being nay opportunity of filing a pleading by the respondents or the defendants in a civil suit. The fact remains that the respondents herein did in fact agitate the point of limitation during the course of hearing and also had taken the peal in their affidavit in reply and prior to the commencement of the hearing of the matter. <ORG> was thus clearly in error in holding without any further factual detail that the cause of action for the challenge to the Notification under the Maharashtra Act of 1966 continues even on the date of filing of the writ petition. Mr. <NAME>, the learned senior counsel appearing for the respondents contended that Since his is a continuing wrong, the question of the claim being time barred or the conduct being barred under the laws of limitation does not and cannot arise. Mr. <NAME> further contended that there are mala fide involved and mala fides ought not to be restricted to be challenged under the garb of limitation.

<ORG> has in fact proceeded on the basis of the equitable principle as it appeared from the observations of <ORG> as set out hereinbelow :-

"In the present case, the respondent No, 2 has in fact did nothing except by passing resolution for modification of the public purpose for which the land was acquired rather than actually making use of the land for which it was acquired or possession of which was taken after passing of the award. On equitable principle me petitioners are entitled to reliefs even if there is delay in filing the Writ Petition. As a matter of fact, the petitioners have explained the circumstances in which they have invoked the extra ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. Since the petitioners have been successful in establishing the please of legal malice as against the respondent no. 2, we think that the perpetual illegal action of which has causing substantial injustice to the petitioners is required to be remedied by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India in favour of the petitioners. It cannot be overlooked that while exercising the extra-ordinary jurisdiction under Article 226 of the Constitution of India <ORG> may be justified in exercising its powers where justice must appear to have been done and must be done."

Incidentally, the contextual facts depict that the respondents did in fact apply for the execution of the Award in the year 1995. This aspect of the matter, unfortunately, does not find place even in the amended Writ Petition. Significantly, as found from records one I.A. was filed in the present SLP being LA. No. 1 of 1999 for dismissal of the Special Leave Petition on the ground of suppression of fact by <ORG>. But what about the failure to mention the factum of the award in the writ petition? The factum of initiation of the execution proceedings was suppressed even in the amended writ petition. We are at a loss to find as to who ought to be charged with guilt of suppression of facts.

The records depict that by reason of the failure to obtain necessary orders from the trail court, a civil revisional application was filed before <ORG> wherein <ORG> has directed deposit of Rs. 3,20,116 by <ORG> which sum in fact stands deposited till date. While it is trite that <ORG> in the said Civil Revision has directed that further orders as regards the withdrawal of the amount of money can be had only after the disposal of the Writ Petition, but the factum of presentation of the execution application goes however to suggest that the respondents have in fact accepted the Award and wanted its execution.

The factual analysis in short therefore, depicts that the notification for acquisition in terms of the Act was issued in 1971, the Award was published in regard thereto in 1976 and the Writ Petition was filed in 1992. During the pendency of the Writ Petition, the respondent-writ petitioners moved an execution application so far as the Award is concerned and thereafter moved a further civil revision application before <ORG> in 1995 - these factual details in our view go to negate the observations of <ORG> It is significant to note that since the year 1952 this particular property which is under acquisition was reserved for school and playground. In the year 1963 the reservation was further continued and as such, there had not been any development of the plot by any concern since 1952 onwards. Another redeeming feature ought also to be noticed at this juncture, namely, the original Writ Petitioner being the father of the present respondents sent a notice in 1964 to <ORG> to purchase the reserved property or to release the same in favour of the writ petitioner. But there was no assertion of right thereafter and till the issuance of the notification in 1971 and possession being delivered in terms of the award in 1976.

<ORG> has thus misplaced the factual details and misread the same. It is now a well-settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period, the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction, has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle, Hence, the equitable doctrine, namely, `delay defects equity' has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. <ORG> as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of school playground and roads in the development plan and may reason therefore, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above.

Apart from the time element as noticed above another redeeming feature on the factual aspect of the matter has not been considered by <ORG> at all. There are three owners of the land, namely, <NAME>, <NAME> and <NAME>. The first of the two owners amongst the three named above of the land did in fact put forward a claim in regard to the land value and structure before the concerned authority and two owners claimed as below :-

(i) Market Value of Rs. 20 per Sq. ft (ii) Value of Tin shed : Rs. 15,000 (iii) Build up structure : Rs. 30,000

(iv) Damages and severance of the property :, Rs. 35,000

(v) Salatium : 15% of the amount of compensation

(vi) Compensation for loss of; Rs. 13,000 compensation of the strip of land along towards in North side of the land under acquisition

(vii) For losing frontage and benefits : Rs. 50,000 acquiring therein

(viii) Cost of the house acquired : Rs. 40,000 for the right The other owner <NAME>, however, did not put forth any claim for any specific amount but claimed only the market value of the land together with 15 per cent solatium and the cost of the building now standing on the land. Incidentally, the other owner is a resident of England and executed a power of attorney in favour of <NAME> to act on his behalf in the proceeding before the authorities and to receive the amount of compensation. The power of attorney stands recorded in England in February, 1973. While it is true that the evidence rendered by the respondents during the course of hearing was without prejudice qua the reservation of rights to challenge the same but the factual backdrop in its entirety however in our view does not indicate any challenge to the notice of acquisition.

In any event; after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of recent cases ( <CITATION> , reported in  2 SCC 627. This court observed as below :-

"The admitted position is that pursuant to the notification published under Section 4(1) of the Land Acquisition Act, 1894 (for short "the Act") in GOR No. 1392 Industries dated 17.10.1962, total extent of 6 areas 41 cents of land in Madhavaram Village, Saidapet Taluk, Chengalpattu District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Rasiua by <ORG>, Madras. The acquisition proceedings had become final and possession of the land was taken on 10.4.1964. Pursuant to the agreement executed by the company, it was handed over to <ORG> which is a subsidiary of <ORG>, It would appear that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in GOMs No. 816. Industries dated 24.3.1971 in favour of another subsidiary company, <ORG>, the 5th respondent Which is also another subsidiary of the company had requested for two acres 75 cents of land; the same came to be assigned on leasehold basis by the <ORG> after resumption in terms of the agreement in <ORG> dated 10.5.1985. In <ORG> dated 30.3.86, the same came to be approved of. Then the appellants challenged the original <ORG> dated 17.10.62 contending that since the Original purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The learned Single Judge and <ORG> have held that the acquired land having already vested in the <ORG>, after receipt of compensation by the predecessor-in-title of the appellants, they have no right to challenge the notification. Thus the writ petition and the writ appeal came to be dismissed."

Similar is the view in an earlier decision of this Court in the case of <CITATION> , reported in  11 SCC 501. Incidentally, the decision last noted was also on the land acquisition and requisition under the Maharashtra Regional and Town Planning Act, 1966 and in paragraph 29 of the report, this Court observed :-

It is well settled law mat when there is inordinate delay in filing me writ petition and when all steps token in the acquisition proceedings have become final, the <ORG> should be loath to quash the notifications. <ORG> has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4 (1} and declaration under Section 6 . But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the <ORG> should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly ground for interference. <ORG> of the High <ORG> was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the grounds of laches."

Mr. <NAME>, learned senior counsel appearing for one of the respondents, placed strong reliance upon a recent decision of this Court in the case of <ORG> arid <CITATION> , reported in  4 SCC 450. This Court in paragrpah 8 of the report observed as below :-

"Sofar as the contention regarding laches of the respondent in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of the appellant had been so altered which cannot be retracted on account of lapse of time or inaction of the other party. This aspect being dependent upon the examination of the facts of the case and such a contention not having been raised before `<ORG>, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. (Emphasis supplied) Besides, we may notice that the period for which the option of renewal has been exercised has not come to an end. During the subsistence of such a period certainly the respondent could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of <ORG> could be invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by reason of this delay in approaching <ORG> for a relief."

The observations however pertain to the Transfer of Property Act and in particular reference to Section 105 and the facts therein are clearly distinguishable and the sentence emphasised as above depicts the disgust feature. <ORG> case (supra) is not a case for acquisition at all and reliance thereon thus is totally misplaced.

On the wake of the aforesaid, we do feel it expedient to record that <ORG> has dealt with the matter on a totally different perspective and as such clearly fell into an error in passing the order as impugned in this appeal. Not only the length of time but the concept of approbation and reprobation has totally been ignored at <ORG> stage. The appeal therefore, succeeds. The Writ Petition filed by the respondents in <ORG> is dismissed and as such the I.A. No. 1/99 filed in SLP No. 19507 of 1998 also stands dismissed. In view of he dismissal of the writ petition by the present judgment, direction contained in the civil revision permitting the respondents to withdraw the compensation amount will obviously now be complied with. Each party however should pay and hear its own costs.


PETITIONER: UNION OF INDIA AND ORS Vs. RESPONDENT: FILIP TIAGO DE GAMA OF VEDEM VASCO DE GAMA DATE OF JUDGMENT30/11/1989 BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) AHMADI, A.M. (J) CITATION: 1990 AIR 981 1989 SCR Supl. (2) 336 1990 SCC (1) 277 JT 1989 (4) 529 1989 SCALE (2)1226 CITATOR INFO : D 1991 SC2027 (9) ACT: Land Acquisition Act , 1894 Sections 4 , 6 , 23 , 23(1A) and 30-A waras made between April 30, 1982 and September 24, 1984-Entitlement to higher Solatium and additional amount under Section 23 ( IA)--Consideration of. HEADNOTE: By a notification issued under Section 4 of the Land Acquisition Act and published in <ORG> on 26.10.1967, the <ORG> Government declared its intention to acquire the land of the Respondent on 23.2.1968. A notifica- tion under section 6 of the Act was published in the <ORG> and on 5.3.1969. The Land Acquisition Officer declared award, determining compensation at the rate of 4 paise per square meter with solatium at 15 per cent. At the instance of the respondent--claimant, a reference under section 18 of the Act was made to the Distt. judge on May 28, 1985. <ORG> awarded compensation at Rs.3 per square meter and also awarded solatium at 15 per cent and interest at 6 per cent from the date of taking possession of the land by the <ORG> till payment of compensation. Being dissatisfied, the Respondent preferred an appeal to <ORG> seeking enhancement both of compensation and solatium at the rate of 30 per cent. <ORG> allowed the appeal, and granted three reliefs viz; (1) Additional amount at the rate of 12 per cent of the market value from the date of the notification under section 4 till the date of taking over possession; (2) interest at the rate of 9 percent for the first year from the date of taking possession and 15 per cent for the subse- quent. years and (3) Solatium at 30 per cent on the market value. The appellant has thus filed the instant appeal after obtaining Special Leave. There is no grievance as regards the interest awarded. The challenge relates to the grant of enhanced solatium and the additional amount of compensation. Appellants' conten- tion is that sections 30(2) and 23(2) are not at all at- tracted and the claim of the Respondent on the said two counts is not sustainable. 337 Partly allowing the appeal, this <ORG>, HELD: Section 30(2) provides that the amended provisions of section 23(2) shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or <ORG> between 30th April 1982 and 24th Septem- ber 1984, or to an appellate order therefrom passed by <ORG> or Supreme <ORG>. The purpose of these provisions seems to be that the awards made in that interregnum must get higher solatium in as much as to awards made subsequent thereto. [343G-H] If there is obvious anamoly in the application of law, the <ORG> could shape the law to remove the anamoly. The Legislatures do not always deal with specific controversies which the <ORG> decide. They incorporate general purpose behind the statutory words and it is for the <ORG>s to decide specific cases. If a given case is well within the general purpose of the legislature but not within the liter- al meaning of the statute, then the <ORG> must strike the balance. So construing the <ORG> held that benefit of higher solatium under section 23(2) should be available also to the present case. [344A-C] In the instant case, on October 26, 1967, the notifica- tion under section 4 was issued. On March 5, 1969, the Collector made the award. The result is that on April 30, 1982 there was no proceeding pending before the Collector. Therefore Section 30 , sub-section (1)(a) is not attracted to the case. Since the proceedings for acquisition commenced before 30th April 1982 Section 30 , sub-section (1)(b) is also not applicable to the case. The case is therefore really gone by both ways. The claimant is therefore not entitled to additional amount provided under Section 23(IA) . [346E-F] The purpose of incorporating Transitional Provisions in any Act or amendment is to clarify as to when and how the operative parts of the enactments are to take effect. The transitional provisions generally are intended to take care of the events during the period of transition. [343A] Kamalajammaniavaru v. Special Land Acquisition Offi- cer,  1 SCC 582; <CITATION> ,  3 SCC 737; <CITATION> ,  1 SCC 365; <CITATION> ,  2 SCC 754; Towne v. <NAME>, 245, U.S. 418,425, 1918; Lenigh Valley Coal Co. v. <NAME>, 218 F.R. 547 at 553; <CITATION> ,  3 SCR 578, referred to. 338 <CITATION> , AIR 1986 Karnataka 179 at 183 (FB); <NAME> etc. etc. v. <ORG>, AIR 1987 Bom. 214 at 217 (FB), overruled. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4802 of 1989.

From the Judgment and Order dated 7.9.1987 of <ORG> in First Appeal No. 24 of 1986.

<NAME>, <NAME>, <NAME> and <NAME> ran for the Appellants.

<NAME>, <NAME>, <NAME>, <NAME> and <NAME> for the Respondent.

The Judgment of the Court was delivered by <NAME>, J. Special Leave granted. This case raises yet another variant of a vexed ques- tion. Does Section 23(2) of the Land Acquisition Act, 1984 (as amended by Act 68 of 1984) providing for higher solatium proprio rigore apply to award made subsequent to 24 Septem- ber 1984 even though the acquisition commenced prior to the said date. The appeal also raises another important question as to the applicability of section 23(IA) providing addi- tional amount of compensation to award made in such acquisi- tion proceedings.

The facts are not in dispute and may be stated as follows:

By notification under section 4 of the Land Acquisition Act, 1894 (the 'Act') published in <ORG> on 26 October 1967, <ORG> declared its intention to acquire the land belonging to the respondent for estab- lishing Naval Air Station Dabolim. On 23 February 1968, notification under section 6 was published in the <ORG>. On 5 March 1969 the Land Acquisition Officer declared award determining compensation at the rate of 40 paise per square meter with solatium at 15 per cent.

The claimant had sought reference under section 18 of the Act and reference was duly made to <ORG> (District Judge). On 28th May 1985, the <ORG> after investigation of the claim awarded compensation at Rs.3 per square meter. The <ORG> also awarded solatium at 15 per cent and interest at 6 per cent from the date of taking possession till payment of compensation. Not being satisfied, the claimant preferred an appeal to the High <ORG> seeking further enhancement of compensation and also solatium at 30 per cent. This claim was apparently based on the new provisions introduced by the Amending Act 68 of 1984. The High <ORG> accepted the appeal and granted the reliefs in the following terms:

"The impugned award dated 28th May, 1986, is modified. The appellant is entitled to the added benefits. In that he shall be entitled to have the compensation at the rate of 12% of the market value from the date of section 4 notification till the date of possession or the date of award, whichever is earlier. The appellant is further entitled to interest at the rate of 9% for the first year from the date of taking over possession and thereafter at the rate of 15% per annum till the date of deposit or payment as the case may be. The appellant shall be entitled to further 15 per cent solatium in addition to the 15 per cent already granted to him. To the extent indicat- ed above, the award shall stand modified."

<ORG> has thus granted three more reliefs to the claimant: (i) Additional amount at the rate of 12 per cent of the market value from the date of notification under section 4 till the date of taking over possession; (ii) interest at the rare of 9% for the first year from the date of taking possession and 15 per cent for the subsequent years; and (iii) solatium at 30 per cent on the market value.

There is no grievance made in this appeal as to the second of the reliefs granted to the claimant. The claimant is entitled to the interest under section 28 of the Act. The challenge is only against the first and the third of the said reliefs. They were evidently given under the amended sections 23(IA) and 23(2) of the Act.

We will first take up the question of solatium. On 30 April 1982, the corresponding Bill of the Amending Act 68 of 1984, namely, Land Acquisition (Amendment) Bill 1982, was introduced in <ORG>. On 24th September 1984 it became law as the Land Acquisition (Amendment) Act , 68 of 1984, when it received assent of the President. Before the amend- ment, Section 23(2) provided solatium at 15 per cent on the market value. After amendment by Act 68 of 1984 solatium was raised to 30 per cent on the market val- ued. Section 23(2) now reads:

"23(2) In addition to the market value of the land, as above provided, the <ORG> shall in every case award a sum of (thirty per centum) on such market value, in consideration of the compulsory nature of the acquisition."

The question herein is whether the higher solatium is attracted to the present case. Section 23(2) has been given limited retrospectivity by supplying transitional provisions under section 30(2) . Section 30(2) reads:

"30. Transitional provisions:

(1) xxxxxx xxxxxxx xxxxxxxx

(2) The provisions of sub-section (2) of Section 23 of the principal Act, as amended by clause (b) of Section 15 and Section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or <ORG> or to any order passed by the High <ORG> or Supreme <ORG> in appeal against any such award under the provisions of the princi- pal Act after the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1984, in <ORG>) and before the commence- ment of this Act."

The scope of retrospective operation of Section 23(2) was first explained in <NAME> v. Special Land Acquisition Officer,  1 SCC 582. A two Judge Bench held that the award of 30 per cent solatium will apply only where the award appealed against was made by the Collector of <ORG> during the period between 30 April 1982 and 24 September 1984. This decision was rendered on 14 February 1985. Shortly thereafter there was another decision by a three-Judge Bench in <CITATION> - igarh,  3 SCC 737. There a contrary view was ex- pressed. It was held that even if an award is made by the Collector or <ORG> on or before 30 April, 1982, and an appeal against such award is pending before <ORG> or <ORG> on 30 April 1982 or is filed subsequent to that date, 30 per cent solatium under section 23(2) should be allowed. In taking that view, <NAME> overruled <NAME> and approved of the opinion expressed in anoth- er three-Judge Bench in <CITATION> ,  1 SCC 365. But the recent <ORG> in <CITATION> ,  2 SCC 754 has overruled <NAME> and <NAME> and reiterated the view ex- pressed in Kamalajammanaivaru. <NAME>, CJ., speaking for the <ORG> in <NAME> case rounded off his discussion thus (at 782):

"We think that what <ORG> intends to say is that the benefit of section 30(2) will be available to an award by the Collector or the <ORG> made between the aforesaid two dates or to an appellate order of the High <ORG> or of the Supreme <ORG> which arises out of an award of the Collector or the <ORG> made between the said two dates. The word 'or' is used with reference to the stage at which the proceeding rests at the time when the benefit under section 30(2) is sought to be extended. If the proceeding has terminated with the award of the Collector or of the <ORG> made between the aforesaid two dates, the benefit of section 30(2) will be applied to such award made between the aforesaid two dates. If the pro- ceeding has passed to the stage of appeal before the High <ORG> or Supreme <ORG>, it is at that stage when the benefit of section 30(2) will be applied. But in every case, the award of the Collector or of the <ORG> must have been made between April 30, 1982 and September 24, 1984."

In stating thus, the decision has set at rest the con-

troversy as to entitlement of higher solatium to cases pending as on the date of commencement of the Amending Act . Section 23(2) was held to apply to awards made in between 30 April 1982 and 24 September 1984. Obviously they must be awards in acquisition commenced prior to the said dates. The award may be of the Collector or <ORG>. One or the other must receive thirty per cent solatium on the market value of the land. More important, that the higher solatium could also be given by the High <ORG> or the Supreme <ORG> in appeals against such award.

But these decisions do not solve the problem presented here. The award with which we are concerned does not fall within the interregnum i.e. between 30 April 1982 and 24 September 1984. To repeat the facts: The acquisition com- menced on 26 October 1967 when the notification under sec- tion 4(1) of the Act was published. On 5 March 1969 the Collector made the award and on 28 May 1985 the reference court made the award. Both the awards, thus appar- ently fall outside the period prescribed under section 30(2) .

Counsel for the appellant on the aforesaid facts rules out the applicability of section 30(2) in the first place. Secondly, he also ruled out the applicability of section 23(2) . The first contention was based on the plain terms of Section 30(2) and the second on the ground that section 23(2) with its isolated splendour is not retrospective in operation. He thus submitted that the claimant's case could not be saved for higher solatium either under Transitional Provisions or by amended Section 23(2) of the Act and it was gone both ways.

This submission reminds us of the words of <NAME> in the Merchant of Venice, where <NAME> tells <NAME>:

"Truely then I fear you are damned both by father and mother. When I shun scylla your father, I fail into charybdis your mother. Well, you are gone both ways." (The Merchant of Venice 3.5).

The submission that Section 23(2) by itself has no retrospective operation seems to be justified. It is signif- icant to note that section 23(2) forms part of a scheme of determining compensation for land acquired under the Act. It provides 30 per cent solatium on the market value of the land in consideration of the compulsory nature of the acqui- sition. It thus operates on the market value of the land acquired. The market value of the land is required to be determined at the date of publication of the notification under section 4(1) . It cannot be determined with reference to any other date. That has been expressly provided for under section 23(1) of the Act. In the instant case, section 4(1) notification was published on 20 October 1967. The Amending Act 68 of 1984 came into force on 24 September 1984. The amended section 23(2) by itself is not retrospec- tive in operation. It can not proprio vigore apply to awards in respect of acquisition proceedings commenced prior to 24 September 1984. If, therefore, section 30(2) does not cover the present case, then amended Section 23(2) has no part to play.

This in effect is the result of the plain meaning rule of interpreting Section 30(2) of the Amending Act 68 of 1984. But then, it would seem very odd indeed and anomalous too to exclude the present case from the operation of sec- tion 30(2). Section 30(2) is the Transitional Provisions. The purpose of incorporating Transitional Provi- sions in any Act or amendment is to clarify as to when and how the operative parts of the enactments are to take ef- fect. The Transitional Provisions generally are intended to take care of the events during the period of transition. Mr. <NAME> in his book on Statutory Interpretation (14 Edition, p. 442) outlines the purpose of such provisions:

"189. Transitional Provisions Where an Act contains substantive, amending or repealing enactments, it commonly also in- cludes transitional provisions which regulates the coming into operation of those enactments and modify their effect during the period of transition. Where an Act fails to include such provisions expressly, the <ORG> is required to draw such inferences as to the intended tran- sitional arrangements as, in the light of the interpretative criteria, it considers Parlia- ment to have intended."

The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a devine revelation "Words are certainly not crystals, trans- parent and unchanged" as Mr. Justice <NAME> has wisely and properly warned. (Town v. <NAME>, 245, U.S. 418, 425, 1918). <NAME>, J., was equally emphatic when he said. "Stat- utes should be construed, not as theorems of <NAME>, but with some imagination of the purposes which lie behind them." (<ORG> v. <NAME>, 2 18 F.R. 547 at 553.) Section 30(2) provides that amended provisions of Sec- tion 23(2) shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the collector or <ORG> between 30 April 1982 and 24 September 1984, or to an appellate order therefrom passed by the High <ORG> or Supreme <ORG>. The purpose of these provisions seems to be that the awards made in that interregnum must get higher solatium in as much as to awards made subsequent to 24 September 1984. Perhaps it was thought that awards made after the commencement of the Amending Act 68 of 1984 would be taken care of by the amended Section 23(2) . The case like the present one seems -to have escaped attention by innocent lack of due care in the drafting.

The result would be an obvious anomaly as will be indicated presently. If there is obvious anomaly in the application of law the <ORG> could shape the law to remove the anomaly. If the strict grammatical interpretation gives rise to absurd- ity or inconsistency, the <ORG> could discard such interpre- tation and adopt an interpretation which will give effect to the purpose of the legislature. That could be done, if necessary even by modification of the language used. [See: <CITATION> ,  3 SCR 5/8]. The legislators do not always deal with specific controversies which the <ORG> decide. They incorporate general purpose behind the statutory words and it is for the courts to decide specific cases. If a given case is well within the general purpose of the legis- lature but not within the literal meaning of the statute, then the court must strike the balance.

The criticism that the literal interpretation of Section 30(2) , if adhered to would lead to unjust result seems to be justified. Take for example; two acquisition proceedings of two adjacent pieces of land, required for the same public purpose. Let us say that they were initiated on the same day--a day sometime prior to 30 April 1982. In one of them the award of the Collector is made on 23 September 1984 and in the other on 25 September 1984. Under the terms of Sec- tion 30(2) the benefit of higher solatium is available to the first award and not to the second. Take another example; the proceedings of acquisition initiated, say, in the year 1960 in which award was made on 1 May 1982. Then the amended Section 23(2) shall apply and higher solatium is entitled. But in an acquisition initiated on 23 September 1984, and award made in the year 1989 the higher solatium is ruled out. This is the intrinsic illogicality if the award made after 24 September 1984, is not given higher solatium. Such a construction of Section 30(2) would be vulnerable to attack under Article 14 of the Constitution and it should be avoided. We, therefore, hold that benefit of higher solatium under section 23(2) should be available also to the present case. This would be the only reasonable view to be taken in the circumstances of the case and in the light of the pur- pose of Section 30(2) . In this view of the matter, the higher solutium allowed by <ORG> is kept undis- turbed.

This takes us to the second question which we have formulated at the beginning of the judgment: Whether the claimant is entitled to additional amount of compensation provided under Section 23(IA) of the Act? This is equally a fundamental question and seemingly not covered by any of the previous decisions of this <ORG>.

Section 23(IA) reads as follows:

"In addition to the market value of the land, as above provided, the court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notifica- tion under Section 4 , sub-section (!), in respect of such land to the date of award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation: In computing the period referred to in this sub-section any period or periods during which the proceedings for the aquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded."

The objective words used in this sub-section are similar to those that are used in Section 23(2) . It enjoins a duty on the <ORG> to award the additional amount at twelve per cent on the market value of the land for the period prescribed thereunder. But this again is a part of the scheme for determining compensation under Section 23(1) of the Act. It also operates on the market value of the land acquired. It is plainly and distinctly prospective in its operation since market value has to be determined as on the date of publica- tion of notification under section 4(1) . But the legislature has given new starting point for operation of section 23(IA) for certain cases. That will be found from Section 30 sub- section l(a) and (b) of the Transitional Provisions. They read as follows:

Section 30 : Transitional Provisions: (1) The provision of sub-section (IA) of Section 23 of the principal Act, as inserted clause (a) of section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to:

(a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April 1982 the date of intro- duction of the Land Acquisition (Amendment) Bill 1982 [in <ORG>] in which no award has been made by the Collector before that date.

(b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the date of commencement of this Act."

Entitlement of additional amount provided under Section 23(1A) depends upon pendency of acquisition proceedings as on 30 April 1982 or commencement of acquisition proceedings after that date. Section 30 sub-section (1)(a) provides that additional amount provided under Section 23(IA) shall be applicable to acquisition proceedings pending before the Collector as on 30 April 1982 in which he has not made the award before that date. If the Collector has made the award before that date then, that additional amount cannot be awarded. Section 30 sub-section (1)(b) provides that section 23 (l-A) shall be applicable to every acquisition proceedings commenced after 30 April 1982 irrespective of the fact whether the Collector has made an award or not before 24 September 1984. The final point to note is that Section 30 sub-section (1) does not refer to <ORG> award and the <ORG> award is used only in section 30 sub-section (2). In the case before us, on 26 October 1967, the notifica- tion under section 4 was issued. On 5 March 1969 the Collec- tor made the award. The result is that on 30 April 1982 there was no proceedings pending before the Collector. Therefore, section 30 sub-section (1)(a) is not attracted to the case. Since the proceedings for acquisition commenced before 30 April 1982, section 30 sub-section (1)(b) is also not applicable to the case. Here, the case is really gone by both ways. It cannot be saved from Scylla or Charybdis. The claimant is, therefore, not entitled to additional amount provided under Section 23 ( I-A).

Before we part with the case, it is important that we should refer to two authorities of <ORG> which have taken contrary view.

As to the applicability of Section 23(IA) to pending cases, <ORG> in <CITATION> , AIR 1986 Karnataka 179 at 183 (FB) has expressed the view that for giving an addi- tional amount calculated at the rate of 12 per cent per annum on the market value of the land, no distinction could be made respecting lands acquired before or after the coming into force of the Amending Act . In all pending cases whether on reference or on appeal, the Court is required to apply the provisions of Section '23(1A) in determining compensa- tion payable to claimants. For this conclusion the Court relied upon the judgment of this Court in <NAME> case. <ORG> in <NAME> etc. etc. v. <ORG>, Daman and Diu and Ant., AIR 1987 Bom 214 at 217 (FB) has also accepted a similar line of reasoning. In fact the reasons are so much similar, the cases look like twins.

Both <ORG> have focussed attention on the terms and phraseology used in Section 30 sub-section (1) namely," ..... shall apply, and shall be deemed to have applied, also to, and in relation has also been proceedings for acquisition ..... ". The conclusion has also been rested on the mandatory words of Section 23(lA) . It was said that it enjoins a duty on the court to award the amount in every case and that mandate of the legislature could not be ignored. The decision of this Court in <NAME> appears to be the single motive force guiding the approach and reaching the conclusion. But it may be noted that the aforesaid phraseology used in Section 30 sub-section (1) is quite similar to that used in Section 30 sub-section (2). The scope of those words has already been examined and no more need to be stated in that regard since <NAME> has been overruled in <NAME>. The view taken by <ORG> of Karnataka and Bombay therefore, could no longer be cosidered as good law and the said decisions are accordingly overruled.

In the result, the appeal is allowed in part. The judg- ment of <ORG> is modified and the compensation award under Section 23(IA) is deleted. The judgment and decree in other respects are kept undisturbed. ' In the circumstances of the case, we make no order as to costs.

Y. Lal Appeal allowed.