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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 131 OF 2009

GOA FOUNDATION & ANR.     ...PETITIONER (S)

VERSUS

STATE OF GOA & ANR.  ...RESPONDENT (S)

WITH

CONTEMPT PETITION (C) NO. 292 of 2009  

IN  

CIVIL APPEAL NO.4154 of 2000

J U D G M E N T

RANJAN GOGOI, J.

1. The challenge in this writ petition under Article 32 of the

Constitution of India is to Constitutional validity of the Land

Acquisition (Goa Amendment) Act, 2009  (Goa Act 7 of 2009)

which was promulgated by the Governor of Goa on 11.04.2009

and notified in the Official Gazette on 30.04.2009.   

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2.  The  facts  leading  to  the  enactment  of  the  aforesaid

Amendment  Act  and  its  publication  in  the  Gazette  dated

30.04.2009  would  require  a  specific  enumeration  and,

therefore, are being recited herein below.

3. The  third  respondent  in  the  writ  petition  i.e.  M/s

Fomento  Resorts  &  Hotels  Ltd.  is  a  Company  incorporated

under  the  Companies  Act,  1956.   It  is  engaged  in  the

hospitality industry. It is the owner of a hotel doing business

in the name and style of  Cidade de Goa. The said hotel has

been  constructed  on  land  owned  and  possessed  by  the

respondent.   Sometime  in  November  1978,  the  third

respondent addressed a letter  to the Government to initiate

acquisition proceedings under the Land Acquisition Act, 1894

(hereinafter referred to as ‘the Central/Principal Act’) so as to

acquire  land  covered  by  Survey  Nos.  803  and  804  (new

nos.246/2  and  245/2)  located  within  the  area  of  Gram

Panchayat Taleigao.  The said land is contiguous to the plot(s)

owned by it  on which the hotel  was located.  A notification

under Section 4 of  the Central/Principal  Act was issued on

29.10.1980 declaring that the land covered by Survey Nos.803

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and  804  was  needed  for  the  public  purpose  of  tourism

development.   

4. As the acquisition of the land was to be made under Part

VII  of  the  Principal  Act,   there  was  an  enquiry  held  as

contemplated under Section 40 of the Act which was followed

by an agreement dated 26.10.1983 as required under Section

41 of the Act.  The opening paragraphs and Clauses 3, 4 and 6

of the agreement would require specific notice and therefore

are being extracted herein below:

“WHEREAS the  principal  objects  for  which  the Company  is  established  are,  inter  alia, construction  of  a  tourism  development  project, etc. etc.

AND  WHEREAS  for  the  purpose  of  the construction  of  this  tourism  development  project comprising  of  a  hotel  at  Curla,  Vainguinim, Dona-Paola, Goa, the Company has applied to the Government of Goa, Daman and Diu (hereinafter referred  to  as  ‘the  Government’)  for  acquisition under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the said Act’) of the  pieces  of  land  containing  19,114  sq  m, situated  in  the  district  of  Tiswadi  and  more particularly described in the Schedule appended hereto  and  delineated  in  the  plan  hereunder annexed (hereinafter called ‘the said land’) for the following  purpose,  namely—Tourism Development  Project—construction  of  hotel  at Curla, Vainguinim, Taleigao.

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AND WHEREAS  the  Government  being  satisfied by an enquiry held under Section 40 of the said Act that the proposed acquisition is needed for the aforesaid purpose and the said work is likely to prove  useful  to  the  public,  has  consented  to acquire on behalf of the Company the said land, hereinbefore described.

3. The  said  land,  when  so  transferred  to  and vested  in  the  Company  shall  be  held  by  the Company  as  its  property  to  be  used  only  in furtherance of and for the purpose for which it is required subject nevertheless to the payment of the  agricultural,  non-agricultural  or  other assessments and cesses, if any, and so far as the said land is or may from time to time be liable to such  assessments  and  cesses  under  the provisions of the law for the time being in force.

4. (i) The Company shall not use the said land for any  purpose  other  than  that  for  which  it  is acquired.

(ii)  The  Company  shall  undertake  the  work  of creation  of  sports  and  other  recreational facilities/amenities within one year from the date on  which  the  possession  of  the  said  land  is handed  over  to  the Company and  complete  the same within three years from the aforesaid date.

(iii) Where the Government is satisfied after such enquiry  as  it  may  deem  necessary  that  the Company was prevented by  reasons beyond its control  from  creating  the  sports  and  other recreational amenities within the time specified in the agreement, the Government may extend the time for that purpose by a period not exceeding one  year  at  a  time  so  however  that  the  total period shall not exceed six years.

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(iv)  The  Company  shall  keep  at  all  times  and maintain the said land and the amenities created thereon,  in  good  order  and  condition  to  the satisfaction of the Government or any officer or officers authorised by the Government.

(v) The Company shall maintain all records of the Company properly and supply to the Government punctually any information as may from time to time be required by the Government.

(vi) The Company shall not use the said land or any  amenities  created  thereon  for  any  purpose which  in  the  opinion  of  the  Government  is objectionable.

(vii)  The Company shall conform to all the laws and  the  rules  and  guidelines  made  by  the Government  from  time  to  time  regarding preservation of ecology and environment.

(viii)  The  Company  shall  never  construct  any building or structures in the acquired land. Prior approval  of  Eco-Development  Council  of  the Government  of  Goa,  Daman  and  Diu  will  be obtained  before  undertaking  activities  for  its development, besides other statutory requirements under the existing laws.

(ix)  The public access/road to the beach shall not be affected or obstructed in any manner.

6. In  case  the  said  land  is  not  used  for  the purposes for which it is acquired as hereinafter recited or is used for any other purpose or in case the  Company  commits  breach  of  any  of  the conditions hereof, the said land together with the improvements, if  any, affected thereon, shall  be liable to resumption by the Government subject however, to the condition that the amount spent by the Company for the acquisition of  the said

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land or its value as undeveloped land at the time of  resumption,  whichever is  less,  but excluding the cost or value of any improvements made by the Company to the said land or any structure standing  on  the  said  land,  shall  be  paid  as compensation to the Company:

Provided  that  the  said  land  and  the amenities, if any, created thereon shall not be so resumed unless due notice of the  breach  complained  of  has  been given  to  the  Company  and  the Company has failed to make good the breach  or  to  comply  with  any directions issued by the Government in this behalf, within the time specified in the  said  notice  for  compliance therewith.”

5. On execution  of  the  aforesaid  agreement  a  declaration

under Section 6 was made declaring that the acquired land

was required for the purpose of tourism development.  There is

no  dispute  with  regard  to  the  fact  that  with  effect  from

26.3.1985 the third respondent was put in possession of the

land in question and that the said respondent had provided

sports  and  recreational  facilities/amenities  on  the  acquired

land.   

6. It  appears  that  sometime  thereafter,  on  behalf  of  the

third  respondent,  an  application  was  made  to  the  Panjim

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Planning and Development Authority under Section 44 (1) read

with  Section  49(1)  of  the  Goa,  Daman  &  Diu  Town  and

Country  Planning  Act,  1974  for  grant  of  permission  for

extension of the existing hotel  building on survey nos. 787,

788 and 789. The aforesaid application was duly considered

and recommended for acceptance by the EDC. This was on

15.04.1988.  It  appears  that  renewal/extension  of  the

permission granted was sought on 1.2.1991 with a deviation

to include Survey/Plot No.803 (New 246/2) i.e. the acquired

land.  The proposal for extension/renewal with the deviation

was not put up before the EEC or the EDC and was granted

straight away by the Goa Town and Country Planning Board in

the meeting held on 20.6.1991. Permission was granted by the

Development Authority on 20.4.1992 to carry out development

on  land  covered,  amongst  others,  by  Survey  No.803.

Thereafter,  construction was raised by the third respondent

inter  alia  on  about  1,000  square  mtrs.  of  land  covered  by

Survey no.803 (246/2).

7. The aforesaid construction raised and completed on the

land covered by Survey No.803 (246/2) came to be challenged

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before the Goa Bench of the Bombay High Court, inter alia by

the  present  writ  petitioner.   By  judgment  and  order  dated

25.04.2000,  the  challenge  raised  was  upheld  and  the

construction made by the third respondent was ordered to be

demolished and the land resumed.  

8. Aggrieved, the third respondent challenged the said order

of the High Court by instituting Civil Appeal Nos.4154-4156 of

2000  before  this  Court  which  was  dismissed  on  20.1.2009

with the following operative directions.  

“(i) The appellants are allowed three months’ time to  demolish  the  extended  portion  of  the  hotel building which was constructed on 1000 sq m of Survey No. 803 (new No. 246/2) and, thereafter report the matter to the Development Authority which shall, in turn, submit a report to that effect to the Goa Bench of the Bombay High Court.

(ii) If the appellants fail to demolish the building and  report  the  matter  to  the  Development Authority within the time specified in direction (i) above, the authority concerned shall take action in  accordance  with  paras  (a)  and  (b)  of  the operative part of the High Court’s order.

(iii) The access shown in the plan, Ext. A attached to  Writ  Petition  No.  141 of  1992 shall  be  kept open without any obstruction of any kind from point ‘A’ to ‘B’ in order to come from Machado’s Cove and then go to the beach beyond Point ‘B’. If during pendency of the litigation, Appellant 1 has

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put up any obstruction or made construction to block  or  hinder  access  to  the  beach  through Survey No. 803 (new No. 246/2), then the same shall be removed within one month from today.”

9. Thereafter the Amendment Act of 2009  (Act 7 of 2009)

was  passed  by  the  Legislative  Assembly  of  Goa  amending

Section  41  by  addition  of  Sub-sections  6  to  9  which  was

notified on 30.04.1999. The details of the amendment effect

are as follows:

“Amendment of Section 41.— In Section 41 of the Land Acquisition Act, 1894 (Central Act 1 of 1894), as in force in the State of Goa, after clause (5), the following shall be inserted, namely:—  

(6)  Notwithstanding  anything  contained  in  any judgment,  decree  or  an  order  of  any  Court, Tribunal or any other authority, any development done or construction undertaken in pursuance of the  agreement  entered  under  this  section between  the  Government  and  the  Company  on the  basis  of  the  statutory  approvals  like permissions  granted  by  the  Planning  and Development  Authority,  Eco-Development Council,  Goa  Coastal  Zone  'Management Authority,  Municipal  Council,  Panchayat, including  renewals  and  deviations  thereof approved  and  regularized,  and  all  permissions obtained by the company and all  the buildings constructed  by  the  Company  and  all  the proceedings taken by the competent authorities to issue the license or permission for undertaking construction,  shall  be  deemed  to  have  been

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validly done and have always been undertaken in accordance with the said agreement.  

(7)  Notwithstanding  anything  contained  in  any judgment, decree, or order of any Court, Tribunal or  any  other  Authority  the  appropriate Government  shall  be  at  liberty  to  modify  the agreement executed under this section between the Government and the Company on mutually agreed terms in furtherance  of  the  purpose  for which the land was acquired, by publication of the  modified  agreement  in  the  Official  Gazette, and  any  such  modifications  made  in  the agreement, shall come into force from the date on which the original agreement with the Company was executed under this section and any action taken  or  things  done  under  the  modified agreement, shall, for all purposes, be deemed and to have always been done or taken in accordance with the original agreement.  

(8)  Notwithstanding  anything  contained  in  any judgment, decree or order of any Court, Tribunal or  any  other  authority,  if,  in  any  agreement entered  into  between  the  Government  and  the Company,  there  be  any  clause  prohibiting  the Company to construct any building or structure in the acquired land, such clause shall deemed to have been deleted with retrospective effect from 15-10-1964.  

(9) No suit or other proceeding shall be instituted, maintained or continued in any Court or before any Tribunal or other authority for cancellation of such  permission  or  for  demolition  of  buildings which  were  constructed  after  obtaining  the permissions from the  Statutory  Authorities  and have  been  validated  under  this  section,  or  for

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questioning  the  validity  of  any  action  taken  or things done or permission granted in pursuance of  the  original  agreement  as  modified  and  no Court  shall  enforce  or  recognize  any  decree, judgment  or  order  declaring  any  such  action taken  or  things  done  under  the  original agreement as modified, as invalid or unlawful."

10. The  Statement  of  Objects  and  Reasons  for  the

amendment which would facilitate the understanding of  the

some of the issues arising may also be noticed at this stage.  

Statement of Objects and Reasons

“Chapter VII of the Land Acquisition Act, 1894 deals with acquisition of land by the Government for  companies  under  this  chapter.  The Government  has  acquired  land  for  various companies  and  for  Acquiring  land,  the requirement  of  execution  of  an  agreement between Government and Company in terms of Section 41 of the Land Acquisition Act, 1894 had been  executed  by  Government  with  various companies  for  whom  land  has  been  acquired under Chapter VII of the Land Acquisition Act. Recently, the Hon’ble Supreme Court in the case of  Fomento  Resort  and  Hotels  Limited  and another  Appellant(s)  Versus  Minguel  Martins and  others  Respondent(s)  in  Civil  Appeal  No. 4154,4155 and 4156 of 2000 has held that the clauses of the agreements have the force of law. The  Hon’ble  Supreme  Court  has  thereafter interpreted the clause of  agreement which was not  as  per  the  intention  of  the  parties  to  the agreement. The Apex Court have also specifically held that  there is  no power to amend, modify,

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alter or change of agreement entered into as per requirement of Section 41 of the Act, 1894. It is therefore  felt  necessary  to  amend  the  Act  by conferring power on the Government to modify or amend the agreement. This power is otherwise also necessary with changing time. Amendment to agreement may be the need of the days.  

Therefore  it  is  proposed to amend provision of section 41 of the Land Acquisition Act, 1894 (1 of 1894), after clause (5), by incorporating new clause namely Clauses (6),(7),(8) and (9) in order to meet the requirement thereof so as to enable the Government to exercise power to modify any agreement to meet the exigencies arising at any time, wherein acquisitions made for Companies in which agreements under Section 41 have been executed  and  with  changing  times,  it  may  be required to modify such agreements to bring in conformity with the purpose of acquisition or in public interest.  

This Bill seeks to achieve the above objects”  

11. Thereafter  on  6.3.2009  the  original  agreement  was

amended by a supplementary agreement which deleted clause

4  (viii)  of  the  original/principal  agreement  in  the  following

manner:

“1)That in the Principal Agreement, in Condition 4, clause (viii) shall be deemed to have been deleted with retrospective effect from 26/10/83 and the Principal  Agreement  shall  be  so  read  and construed as if in condition 4, clause (viii) never existed in the Principal Deed w.e.f. 26/10/1983.

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2) In condition 6 of the Principal Agreement, for the expression  “as  hereinafter  recited”,  the expression “namely tourism development project including  construction  of  hotel”  shall  be substituted.

3) That save as varied as hereinbefore provided in the Principal Agreement, all terms and conditions thereof  shall  continue  to  be  binding  on  the parties and shall be in full force and effect.”

12. It is the validity of the aforesaid Amendment Act that has

been  questioned  by  the  petitioner,  a  non-governmental

organization,  in  the  present  writ  petition.   To  complete  the

narration  of  facts,  reference  may  be  made  to  the  Land

Acquisition  (Goa  Amendment)  Ordinance  that  was

promulgated  with  effect  from  28.02.2009  and  thereafter

replaced by the impugned Legislation requiring the challenge

in the writ  petition to be shifted from the Ordinance to the

Amendment Act in question.

13. We  have  heard  Shri  Sanjay  Parikh,  learned  counsel

appearing for the petitioner,  Shri A.N.S. Nadkarni,  Advocate

General (Goa) for the respondent-State and Shri Rafiq Dada

and Shri Dhruv Mehta, learned senior counsels for the private

respondents.

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14. According  to Shri  Parikh,  learned  counsel  for  the

petitioner  the  impugned  legislation  seeks  to  nullify  the

directions  given  in  the  judgment  of  this  Court  dated

20.1.2009.  Learned counsel submits that while there can be

no dispute that the legislature is empowered to alter the basis

of  the judgment of  a Court but in the guise of  altering the

same, the judgment itself cannot be overruled.   

15.      It is further submitted that the agreement under Section

41 of the Principal Act executed by respondent no.3, after an

enquiry held under Section 40 thereof, not only has a statutory

character but in view of Section 42 of the Act the same becomes

a part of the Act upon publication in the Official Gazette.  The

basis of the judgment of this Court therefore could be changed

only  if  a  Central  enactment  amending  the  Principal  Act  had

been brought about. The State Amendment, in the absence of

Presidential assent, would be without any legal effect in view of

the provisions of Article 254 (2) of the Constitution.  It is also

submitted by Shri Parikh that each of the sub-sections 6 to 9

brought in by the Amendment Act of 2009 seeks to nullify the

directions given by the Court/Tribunal, as may be and that too

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retrospectively  with  effect  from  15.10.1964.  It  is,  therefore,

submitted  that  the  amendment  is  a  direct  affront  to  the

principle of Rule of law.

16.     On behalf of the petitioners it is further urged that the

State Amendment Act is repugnant to the Principal Act and not

being saved by Article 254(2) is void under Article 254(1) of the

Constitution.  Specifically it is contended that the object of the

acquisition made under Part VII of the Act; the satisfaction of

the Government under Section 40 of the Act with regard to the

purpose of the acquisition and the contours of the acquisition

spelt  out  in  the  agreement  under  Section  41  which  has  the

effect of being a part of the Act itself under Section 42 stands

obliterated  by  the  State  amendment.   Not  only  the  scheme

under  the  Principal/Central  Act  for  acquisition  of  land  for

companies  is  violated,  even  the  purpose  of  the  acquisition

which may not have been envisaged at the stage of compliance

with Sections 39, 40 and 41 of the Act stands altered by the

State  amendment.   Under  the  Principal  Act  it  was  not

permissible  to  modify/alter  any  terms  of  the  statutory

agreement  under  Section  41.  The  amended provisions  which

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permit  such  modification/alteration  are  therefore  clearly

repugnant  to  the  Principal  Act.   In  the  process  not  only  a

scheme  which  is  in  direct  conflict  with  the  existing  scheme

under Part VII is introduced, but the coercive machinery of land

acquisition is permitted to be brought into force beyond what

was  contemplated  under  the  Principal/Central  Act.   In  this

regard it is specifically pointed out that Section 41 (6) permits

construction  contrary  to  the  conditions  of  the  statutory

agreement; similarly Section 41 (7) permits modification of the

agreement  that  too  retrospectively  whereas  Section  41  (8)

deletes the clause prohibiting the company from constructing

structures  in  the  acquired  land  in  the  statutory  agreement

executed  under  Section  41.   Section  41(9),  it  is  submitted,

interferes  with  the  exercise  of  the  judicial  power  which  is

impermissible having regard to the principle of Rule of Law.

17.  The  timing  of  the  ordinance  i.e.  immediately  after  the

legislative session had concluded, has been urged on behalf of

the  petitioner  as  indicative  of  the  extraneous  reasons  for

introduction of the same.  It is also urged that in the instant

case it has been held by this Court in its earlier judgment that

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the instant acquisition was for purposes under Section 40 (1)

(aa) of the Act.  In view of the above and having regard to the

provisions  of  Section  44  (b)  of  the  Act,  which  limits  the

acquisition  for  a  private  company  only  for  the  purpose

mentioned in Section 40 (1) (a), the acquisition for the benefit of

the third respondent under  Section 40 (1) (aa) could not have

been made at all.  

18.  Opposing, Shri Nadkarni, learned Advocate General as well

as  Shri  Rafiq  Dada  and  Shri  Dhruv  Mehta  learned  senior

counsels appearing for the private respondents, including the

respondent  no.3,  have  urged  that  the  basis  of  the  judgment

dated 20.1.2009 is the embargo imposed by clause 4 (viii) of the

agreement  which  did  not  permit  the  respondent  no.3  to

construct the hotel on the acquired land.  The second basis of

the judgment was with regard to the public access to the beach.

It is urged that insofar as the public access is concerned the

same is in no way effected by the amendment.  In fact clause 4

(ix)  of  the  agreement  is  left  untouched.  So  far  as  the

construction is concerned it is urged that the impugned State

Legislation has cured the defects by deleting clause 4 (viii). The

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basis of the earlier judgment has consequently been removed.

Support in this regard, is drawn from the decision of this Court

in Bhaktwar Trust & Ors. v. MD Narayan & Ors.1.   

19.    Insofar as the issue of  repugnancy is  concerned it  is

submitted on behalf of respondents that as held by this Court

in Karunanidhi V. Union of India  2 repugnancy can arise only

if the two sections are completely irreconcilable and in direct

conflict.   It  is  urged  that  in  the  present  case  the  State

amendment  seeks  to  bring  the  agreement  executed  under

Section 41 in harmony with Section 40 (1) (aa) of the principal

Act.  The use of the acquired land for construction of the hotel

is consistent with what has been recorded by this Court in the

earlier  judgment,  namely,  that  the  acquisition  is  for  the

purposes contemplated by Section 40 (1) (aa) of the principal

Act.   In  such  a  situation  the  amendment  only  removes  the

embargo on construction by deleting Clause 4 (viii); in fact it

really facilitates construction for purpose of the hotel.

20. Alternatively, it is urged that for the purpose of Article 254

of  the  Constitution  the  repugnancy  between  State  and  the

1 (2003) 5 SCC 298 2 (1979) 3 SCC 431

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Central Law must be in respect of “Law” enacted by the State

Legislature and the Parliament. A subordinate legislation or an

agreement, which by a legal fiction is given the effect of law (e.g.

under Section 42 of the Act), does not come within the scope of

Article 254.  It is further urged that the language of Section 42

makes it clear that it is only the terms of an agreement under

Section 41 which deals with the rights of the public to use the

work,  which is  deemed to  be  a  part  of  the  Act.   The object

behind Section 42, it is contended, is to make such part of the

agreement which pertains to the user of the work by the public

enforceable in law.  In this regard the findings recorded in the

earlier judgment of this Court (para 57) to the effect that the

facility developed by the third respondent on the acquired land

was  not  meant  for  the  general  public  was  specifically  relied

upon.  It is further pointed out that the third respondent being

a public limited company Section 44B of the Act which deals

with private companies has no application.

21.  Insofar as the objections with regard to the requirement of

Presidential assent to the State Amendment under Article 254

(2)  is  concerned  it  is  submitted  that  though  the  original

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agreement was signed between the Union of India and the third

respondent,  by  virtue  of  Section  45  of  the  Goa  State

Reorganization Act, 1987, the State of Goa has been substituted

in  all  such  agreements.   Consequently,  the  Goa  State

Legislature  was  fully  competent  to  carry  out  the  State

Amendment.  

22. The  submission  on  behalf  of  the  respondent,  therefore,

essentially is as follows :

(a) The  basis  of  the  earlier  judgment  dated  20th January,

2009, namely, that there was a bar to construction was

removed by the State Amendment by deleting Clause 4(viii)

of the Agreement.

(b) There  is  no  repugnancy  between  the  State  Amendment

and the Principal Act.  In fact the State Amendment by

permitting construction on the acquired land brings about

consistency  and  harmonises  the  agreement  executed

under Section 41 with the satisfaction that the acquisition

was for purpose contemplated by Section 40(i) (aa) of the

Principal Act.   

(c) The agreement does not lose its character as an Agreement

and physically becomes a part of the Act to be treated as if

it is a law made by the Parliament;  

(d) In any event for the purposes of Article 254, the agreement

is  not  a law made by the  Parliament  and therefore  not

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covered  under  Article  254.  The  Agreement  for  a  limited

purpose is given a deeming fiction to have the effect of law

“as if forming part of this Act.”    

23. The  rival  arguments  give  rise  to  two  major  issues  for

determination of the Court.  The first is the competence of the

State Legislature to enact the State Amendment Act in view of

the earlier decision of this Court dated 20th January, 2009.  The

second is whether the provisions of the State Amendment Act

are repugnant to those of the Principal Act thereby invalidating

the State law by virtue of Article 254(2) of the Constitution.

24. The principles on which first question would require to be

answered are not in doubt.  The power to invalidate a legislative

or executive act lies with the Court.  A judicial pronouncement,

either declaratory or conferring rights on the citizens cannot be

set  at  naught  by a subsequent  legislative  act  for  that  would

amount to an encroachment on the judicial powers.  However,

the legislature would be competent to pass an amending or a

validating act, if deemed fit, with retrospective effect removing

the basis of the decision of the Court.  Even in such a situation

the  courts  may  not  approve  a  retrospective  deprivation  of

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accrued  rights  arising  from  a  judgment  by  means  of  a

subsequent legislation [Madan Mohan Pathak and Another

vs.  Union of India and Others3].  However, where the Court’s

judgment is purely declaratory, the courts will lean in support

of the legislative power to remove the basis of a Court judgment

even  retrospectively,  paving  the  way  for  a  restoration  of  the

status quo ante.  Though the consequence may appear to be an

exercise to overcome the judicial pronouncement it is so only at

first blush; a closer scrutiny would confer legitimacy on such an

exercise  as  the  same  is  a  normal  adjunct  of  the  legislative

power.   The  whole  exercise  is  one  of  viewing  the  different

spheres  of  jurisdiction  exercised  by  the  two  bodies  i.e.  the

judiciary and the legislature.  The balancing act, delicate as it

is, to the constitutional scheme is guided by well defined values

which have found succinct manifestation in the views of this

Court in Bhaktwar Trust & Ors.(supra).    The relevant part of

the opinion expounded in Bhaktwar Trust & Ors.(supra) may

be noticed below.   

14. The validity of any statute may be assailed on the ground that it is ultra vires the legislative competence of the legislature which enacted it or it is violative of Part III or any other provision

3 (1978) 2 SCC 50

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of  the  Constitution.  It  is  well  settled  that Parliament and State Legislatures have plenary powers of legislation within the fields assigned to  them  and  subject  to  some  constitutional limitations,  can legislate prospectively as well as  retrospectively.  This  power  to  make retrospective legislation enables the legislature to validate prior executive and legislative Acts retrospectively after curing the defects that led to their invalidation and thus makes ineffective judgments  of  competent  courts  declaring  the invalidity.  It  is  also  well  settled  that  a validating  Act  may  even  make  ineffective judgments  and  orders  of  competent  courts provided it, by retrospective legislation, removes the cause of invalidity or the basis that had led to those decisions.

15. The  test  of  judging  the  validity  of  the amending  and  validating  Act  is,  whether  the legislature  enacting  the  validating  Act  has competence over the subject-matter; whether by validation, the said legislature has removed the defect  which  the  court  had  found  in  the previous laws; and whether the validating law is consistent with the provisions of Part III of the Constitution.

xxxx xxxx xxxx xxxx xxxx xxxx xxxx

25. The decisions referred to above, manifestly show that it  is open to the legislature to alter the law retrospectively, provided the alteration is made in such a manner that it would no more be possible for the Court to arrive at the same verdict. In other words, the very premise of the earlier  judgment  should  be  uprooted,  thereby resulting  in  a  fundamental  change  of  the circumstances upon which it was founded.

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26. Where a legislature validates an executive action  repugnant  to  the  statutory  provisions declared by a court of law, what the legislature is  required  to  do  is  first  to  remove  the  very basis  of  invalidity  and  then  validate  the executive  action.  In  order  to  validate  an executive action or any provision of a statute, it is  not  sufficient  for  the  legislature  to  declare that a judicial pronouncement given by a court of law would not be binding, as the legislature does not possess that power.  A decision of  a court of law has a binding effect unless the very basis upon which it is given is so altered that the said decision would not have been given in the changed circumstances.

27. Here, the question before us is, whether the impugned  Act  has  passed  the  test  of constitutionality by serving to remove the very basis upon which the decision of the High Court in  the  writ  petition was based.  This  question gives rise to further two questions — first, what was  the  basis  of  the  earlier  decision;  and second,  what,  if  any,  may be  said  to  be  the removal of that basis?

28. In the earlier decision of the High Court, it was found that licence to construct the building up  to  80  feet  was  repugnant  to  the  Zonal Regulations  framed  under  Section  13  of  the Planning Act which provided a maximum height of  a  new  building  as  55  feet.  Thus,  the provision  of  the  Zonal  Regulations  which provided maximum height of 55 feet in case of a new  building  was,  therefore,  the  basis  upon which  the  High  Court  proceeded  to  conclude that the construction of the building violated the prescribed  norms.  It  is  manifest  that  the impugned Act has retrospectively modified the Zonal Regulations of 1972 by raising the height

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of  a  building  from  55  feet  to  165  feet.  The provision of law upon which the High Court has placed  reliance  has,  therefore,  undergone  a material alteration. The High Court would now find it impossible to take the view that the said building  was  erected  in  violation  of  the  law, and  that  the  licence  granted  therefor,  was accordingly legally invalid.”

25. If the above principles are to be applied to the present case

what  follows  is  that  Section  41(6)  to  (9)  introduced  in  the

Principal Act by the Goa State Amendment renders ineffective

Clause 4(viii) of the Agreement executed by the parties under

Section 41 of the Principal Act.  With Clause 4(viii) being deleted

the embargo on constructions on the acquired land is removed.

It is the aforesaid Clause 4(viii) and its legal effect, in view of

Section 42, that was the basis of the Court’s decision dated 20th

January,  2009  holding  the  construction  raised  by  the  third

respondent on the acquired land to be illegal and contrary to

the Principal Act.  Once Clause 4(viii) is removed the basis of

the earlier judgment stands extinguished.  In fact,  it  may be

possible to say that if Clause 4(viii) had not existed at all, the

judgment of the Court dated 20th January, 2009 would not have

been forthcoming.  It was therefore well within the domain of

the  legislature  to  bring  about  the  Amendment  Act  with

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retrospective  effect,  the  Legislative  field  also  being  in  the

Concurrent List,  namely, Entry No. 42 of List III  (Acquisition

and  Requisition  of  Property)  of  the  Seventh  Schedule  to  the

Constitution.

26. The  argument  in  support  of  the  plea  of  repugnancy

between the principal legislation (Land Acquisition Act) and the

State  Amendment  though  already  noticed  in  detail  may  be

summarized as follows:-

The agreement under Section 41 is a part of the Principal

Act by virtue of Section 42 thereof.  There is a legal bar therein

with regard to raising of construction by the third respondent.

There is no provision either in the Act or in the agreement to

vary/amend  the  terms  and  conditions  thereof.  In  such  a

situation  the  State  Amendment  bringing  into  operation

Sub-sections (6) to (9) of Section 41, whereby the bar to raising

of construction or illegal constructions raised (on account of the

bar) has been invalidated in the manner indicated therein, is

repugnant to the provisions of Section 41 and the terms of the

agreement  which  are  deemed to  be  a  part  of  the  Act  under

Section 42.

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27. In  M.  Karunanidhi  vs. Union  of  India4 and  Kanaka

Gruha Nirmana Sahakara Sangha vs. Narayanamma (Smt)

(since  deceased)  by  Lrs.  and  Others5 it  was  held  that  for

repugnancy to arise the following conditions must be satisfied:

(a) There  is  clear  and  direct  inconsistency  between

Central and State Act.

(b) Such inconsistency is absolutely irreconcilable.

(c) Inconsistency  is  of  the  nature  as  to  bring  the  two

Acts  into  direct  collision  with  each  other  and  a

situation is reached where it is impossible to obey the

one without disobeying the other.  

28. We do not see how repugnancy between the two legislative

exercises  on  the  principles  laid  down  in  M.  Karunanidhi

(supra)  and  Kanaka  Gruha  Nirmana  Sahakara  Sangha

(supra) can be said to exist in the present case.  Section 41 of

the  Principal  Act  and  the  terms  of  the  agreement  executed

thereunder (even if the latter is understood to be ‘Law’ enacted

by the competent legislature for the purpose of Article 254) are

silent  with  regard  to  modification/variation  or

4 (1979) 3 SCC431 5 (2003) 1 SCC 228

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deletion/subtraction of the terms of the agreement.  The State

Amendment Act by bringing in Sub-sections (6) to (9) of Section

41  invalidates  a  clause  of  the  agreement  [Clause  4(viii)]  by

effecting  a  deletion  thereof  with  retrospective  effect  i.e.

15.10.1964 (the date of coming into operation of the Principal

Act to the State of Goa).  The State Amendment, by no means,

sets  the  law in a  collision  course  with  the  Central/Principal

enactment.   Rather,  it  may  seem  to  be  making  certain

additional provisions to provide for something that is not barred

under the Principal Act.  Moreover, if the provisions of the State

Amendment are to be tested on the anvil of the finding of this

Court that the acquisition in the present case is under Section

40(1)(aa)  of  the  Land  Acquisition  Act,   the  deletion  of  the

relevant  clause  of  the  agreement  as  made  by  the  said

amendment  may  appear  to  be  really  in  furtherance  of  the

purpose of the acquisition under the Central Act.  We, therefore,

do not find any repugnancy between the Principal Act and the

State Amendment, as urged on behalf of the petitioners in this

case.

29. The  above  conclusion  of  ours  would  make  it  wholly

unnecessary for us to enter into the other two specific pleas

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urged on behalf of the respondent to counter the challenge of

repugnancy.  Whether ‘Law’ in Article 254 must be laws enacted

by the State Legislature and the Union Parliament and not a

subordinate  legislation  or  a  statutory  flavoured  act  of  the

parties e.g. the agreement in the present case; whether it is only

the specific part of the agreement under Section 41 published

in  the  Gazette  dealing  with  the  rights  of  the  public  which

becomes a part of the Act under Section 42 of the Principal Act,

interesting and tempting questions as they may be, need not be

gone into on the strength of well developed cannons of judicial

disciplines and restraint.

30. Before parting, we deem it appropriate to put on record

that  on  the  materials  available  i.e.  Minutes  of  the  Cabinet

Meeting dated 24th February, 2009 preceding the promulgation

of the Land Acquisition (Goa Amendment) Ordinance, 2009 on

28th February, 2009, we find that the argument made on behalf

of the petitioners that the Goa State Amendment was intended

to benefit a singular entity i.e. the third respondent is without

any basis whatsoever.  The aforesaid Cabinet decision clearly

indicates that the exercise undertaken was more broad based

than what the petitioners would like us to hold.  In fact, there is

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a detailed reference, by names, in the said Cabinet decision to

several  other  groups  and  corporations  who  are  similarly

situated as the third respondent.

31. Similarly, the plea of violation of the principles of Rule of

Law  and  judicial  review,  urged  on  behalf  of  the  petitioners,

would not merit any serious consideration as the provisions of

Sections  41(6)  to  (9),  introduced  by  the  State  Amendment

insofar  as  Court  decrees/orders  is  concerned,  are  incidental

and consequential provisions to an Amendment Act validating

actions that had earlier received judicial disapproval.

32. For all the aforesaid reasons we find no merit in the writ

petition.  We, accordingly, dismiss the same though without any

cost  and  uphold  the  validity  of  the  Land  Acquisition  (Goa

Amendment) Act, 2009 [Act 7 of 2009].

.......………………………J.                   [RANJAN GOGOI]

…………..…………………J.                  [PRAFULLA C. PANT]

NEW DELHI, MARCH 29, 2016.

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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

CONTEMPT PETITION (C) NO. 292 of 2009  

IN  

CIVIL APPEAL NO.4154 of 2000

CLAUDE ALVARES      ...PETITIONER (S)

VERSUS

SANJAY KUMAR SRIVASTAVA & ORS. ...RESPONDENT (S)

O R D E R

In  view  of  the  judgment  rendered  in  Writ  Petition  (C)

No.131 of 2009 titled  as Goa Foundation & Anr. vs. State of

Goa & Anr.,   decided on 29.03.2016 nothing survives in the

contempt  petition  and  the  same  is  accordingly  disposed  of.

Rule of notice is discharged.

.......………………………J.                   [RANJAN GOGOI]

…………..…………………J.                  [PRAFULLA C. PANT]

NEW DELHI, MARCH 29, 2016.

31