Udai Ram Sharma & Ors Vs. Union of India & Ors [1968] INSC 33 (7 February 1968)
07/02/1968 MITTER, G.K.
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 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 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 declaration 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, [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 twofold 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 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 there under 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]
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. Sachthey, 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 Collector, Delhi made in 1961. In Writ Petition No. 252 of 1966, there are eight petitioners who owned lands in village 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 cooperative 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 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 Ordinance. 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 extension :
"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 subsection (2) of section 5-A of the principal Act, whe48 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 section 6 of the principal Act in respect of different parcels of land covered by the same notification under subsection (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 principal 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 staid 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 subsection 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 provided 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 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 acquisition 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 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 resuscitated 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 compensation 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 them, land-owner to give up the land subject to his being paid compensation, but until the price is ascertained the land remains the property of the l and owner.
Both parties have the (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 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 denotification 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 notification 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. 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 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 applicable 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 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 excluded 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 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 there from 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 Governor General 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 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 Government 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 Ordinance (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 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 retrospective legislation 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 legislature and the judicial function to the 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 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
