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PETITIONER: NATIONAL COAL DEVELOPMENT CORPORATION

       Vs.

RESPONDENT: MANMOHAN MATHUR

DATE OF JUDGMENT: 15/01/1970

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) SHELAT, J.M. VAIDYIALINGAM, C.A. GROVER, A.N. RAY, A.N.

CITATION:  1970 AIR 1223            1970 SCR  (3) 409  1970 SCC  (1) 208

ACT: Retrospective  Legislation-Acquisition held invalid by  High Court as notification required under s. 7 Coal Bearing Areas (Acquisition  and Development) Act (20 of 1957) not  issued- Notification  deemed  to have been issued by  provisions  of Amending Act 23 of 1969-Effect.

HEADNOTE: A  notification  stating that the  respondent’s  lands  were needed for prospecting coal, was issued under s. 4(1) of the Land Acquisition Act, 1894.  No objection under s. 5A of the Act was made by the respondent.  Thereafter the Coal Bearing Areas  (Acquisition  and Development) Act, 1957,  came  into force.   Under s. 28 of the 1957-Act, all notifications  and objections  made under the Land Acquisition Act were  deemed to  be  notifications  and objections  under  the  1957-Act. Section  7 of 1957-Act requires the issue of a  notification before  acquisition  under  s. 9(1) of  that  Act.   In  the present case, the Central Government acquired a certain area on behalf of the appellant under s. 9 of the 1957-Act,  from the area notified under s. 4(1) of the Land Acquisition  Act without  issuing  the  s. 7  notification.   The  respondent challenged  the acquisition by a writ petition and the  High Court allowed it.  While the appeal against the judgment  of the  High Court was pending in this Court, the 1957-Act  was amended   by  the  Coal  Bearing  Areas   (Acquisition   and Development)  Amendment Act, 1969.  The consequences of  the amendments  introduced by the Amendment Act are that  if  no objection  had  been  preferred  under s.  5A  of  the  Land Acquisition  Act within the period specified, then it  shall be deemed that a notification under s. 7 of the Act 1957-Act has been issued; that no objection to the acquisition of the land under s. 8 of the 1957-Act has been preferred; and that the Government could therefore make the acquisition under s. 9 of the 1957Act.  Also, the effect of a decision of a court was  removed  as  if the amended Act was  in  force  at  all material time. HELD : Legislation making obligatory notifications fictional

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may  not  be proper, but since Parliament was  competent  to make such fictions, the acquisition could not be questioned. [414 A-B]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1639  of 1966. Appeal from the judgment and decree dated November 15,  1965 of  the Madhya Pradesh High Court in Misc.  Petition No.  66 of 1965. Jagadish Swarup, Solicitor-General, S. K. Dholakia and R. H. Dhebar, for the appellants. W.   S.  Barlingay, D. D. Verma, R. Mahalingier  and  Ganpat Rai, for the respondent. 410 The Judgment of the Court was delivered by Hidayatullah, C.J. The National Coal Development Corporation Ltd.  appeals  against the judgment and decree of  the  High Court   of  Madhya  Pradesh,  November  15,  1965,   in   an application  under  Art. 226 of the  Constitution.   By  the judgment  under  appeal the appellants are  restrained  from carrying  on depillaring operations underneath the  land  of the  respondent  Manmohan  Mathur in  village  Chirimiri  in District Surguja in Madhya Pradesh. The facts are as follows: Chirimiri is a coal-bearing  area. On February 1, 1957 the Government of Madhya Pradesh, acting in exercise of the functions of the Central Government under the  Land  Acquisition  Act, 1894 entrusted  to  it  by  the President  under  Art. 258(1) of  the  Constitution,  issued notification  under  s.  4(1) of the  Land  Acquisition  Act stating  that the lands specified in Chirimiri village  were needed for the prospecting of coal seams for development  of collieries, by the Central Government.  On June 8, 1957  the Coal Bearing Areas (Acquisition, and Development) Act (XX of 1957) was enacted and was brought into force.  On August  7, 1958 the Central Government purporting to act under s.  9(1) of  Act  XX  of 1957 issued a  notification  acquiring  land measuring  145-75 acres described in the  notification.   In that    notification  it was stated  that  no  objection was received  after  the  notification under s. 4  of  the  Land Acquisition         Act.         On        April         16, 1964  the  appellant gave notice to the respondent  that  he should vacate the said land within 30 days of the receipt of the notice and any super-structure and material that may  be on that land be removed.  It was also stated that the mining rights   in  village  Chirimiri  acquired  by  the   Central Government  had been vested in the appellant under an  order of the Government dated September 30, 1958.  The  respondent was also informed that there were coal mines underneath  his land and that the appellant would soon cornmence depillaring operations.   The petition under Art. 226 was then filed  in the Madhya Pradesh High Court to restrain the appellant from enforcing  the  provisions  of Act XX of  1957  against  the respondent. Many arguments were advanced against the action of the  Cen- tral Government and the appellant.  One of them succeeded on the  basis  of  which  the appellant  was  restrained  by  a mandamus  from  proceeding  under  Act  XX  of  1957.    The objection which succeeded was that no notification under  S. 7  of  Act  XX  of  1957 had  been  issued  by  the  Central Government  and that the subsequent, action was,  therefore, invalid. To understand the objection which was sustained by the  High

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Court  it  is necessary to refer briefly to a  part  of  the scheme  of  Act  XX of 1957.  It will be  noticed  that  the initial notification was under  411 s.   4(1)   of  the  Land  Acquisition  Act,   1894.    That notification  was issued at a time when Act XX of  1957  was not enacted.  Subsequently under s. 28 of Act XX of 1957  it was provided that every notification issued under’s. 4(1) of the  Land Acquisition Act before the commencement of Act  XX of  1957  whether by the Central Government or  by  a  State Government should be deemed to be a notification under s.  4 of  Act XX of 1957.  Similarly, it was provided  that  every notification issued under s. 6 of the Land Acquisition  Act, before  the commencement of Act XX of 1957, whether  by  the Central  Government  or  by a State  Government,  should  be deemed to be issued under s. 9 of Act XX of 1957 and  lastly it was provided that any objection preferred under s. 5A  of the  Land  Acquisition  Act, 1894 in  respect  of  any  land covered  by any notification under s. 4 should be deemed  to be, an objection preferred under s. 8 of Act XX of 1957.  In other  words,  all notifications and  objections  etc.  made -under  the  Land Acquisition Act, 1894 were  by  a  fiction brought  under Act XX of 1957.  It may be pointed  out  here that  no objection under s. 5A of the Land Acquisition  Act, 1894 was made by the present respondent. There  was, however, one other section, namely, s. 7 in  Act XX of 1957 to the following effect : "7. Power to acquire land or rights in or over land notified under section 4. (1)  If  the  Central Government is satisfied that  coal  is obtainable  in  the whole or any part of the  land  notified under sub-section (1) of section 4, it may, within a  period of  two  years  from the date of the  said  notification  or within  such  further period not exceeding one year  in  the aggregate  as  the Central Government may  specify  in  this behalf, by notification in the Official Gazette, give notice of  its  intention to acquire the whole or any part  of  the land or of any rights in or over such land, as the case  may be. (2)  If  no notice to acquire the land or any rights  in  or over  such  land is given under sub-section (1)  within  the period  allowed  thereunder, the notification  issued  under sub-section  (1) of section 4 shall cease to have effect  on the expiration of three years from the date thereof." It  is this notification which the High Court found  missing and therefore all subsequent action under Act XX of 1957 was held to be invalid. It is not necessary to discuss the correctness or  otherwise of  the  view of the High Court because on August  11,  1969 Coal 412 Bearing  Areas (Acquisition and Development)  Amendment  Act XXIII  of 1969 was enacted.  By this amending Act  s.  28(3) was  amended  by removal of certain words  and  substitution retrospectively of other words.  The amending Act also added a new subSection, numbered 3A and also enacted S. 3 by which the  validation  of acquisitions  found  ineffective  by-the Courts was made.  It is necessary to refer to the,  amending Act. Sub-section  3. of s. 28, as amended by Act 51 of  1957  (to which  Act  detailed reference is not necessary),  reads  as follows "Any  objection preferred under s. 5A of the said Act  (Land Acquisition  Act,, 1894) in respect of any land  covered  by any  notification  issued under section 4 of  the  said  Act

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(Land  Acquisition  Act,  1894) shall be  deemed  to  be  an objection  preferred  under  section 8 of this  Act  to  the relevant  competent authority and may be disposed of by  him as  if  the  objection  had  been  made  in  relation  to  a notification  issued under section 7 of this Act in  respect of  such  land; and the Central Government may at  any  time make  a declaration under s. 9 of this Act (Act XX of  1957) in respect of such land or any part thereof." By the amending Act XXIII of 1969 the portion beginning with "in  respect  of  such land" and ending with  "or  any  part thereof" were substituted retrospectively by the words- "in  respect of such land or of any rights in or  over  such land;  and  the Central Government may at any  time  make  a declaration  under section 9 of this Act in respect of  land or  any part thereof or any rights in or over such  land  or part." Simultaneously sub-section 3-A was introduced and that reads "3A.    Where  in  respect  of  any  land  covered  by   any notification  issued  under section 4 of the  said  Act,  no objection has been preferred under section 5A thereof within the  period  specified  in that section, then  it  shall  be deemed that a notification had, been issued under section  7 of  this Act in respect of such land or of any rights in  or over  such land and that no objection to the acquisition  of the  land or any rights in or over land had  been  preferred under  section  8 of this Act, and accordingly  the  Central Government may at any time make a declaration under  section 9 of this Act in respect of the land or any part thereof  or               any rights in or over such land or part."  413 Finally  by section 3 of the Amending Act acquisitions  were validated.  Section 3 reads :- "3. Validation of certain acquisitions. Notwithstanding any judgment, decree or order of any  court, every acquisition of land or the rights in or over land made by the Central Government in pursuance of the, notifications of  the Government of India in the late Ministry  of  Steel, Mines  and  Fuel (Department of Mines and Fuel)  Nos.   S.O. 1759  and S.O. 25, dated the 7th August, 1958, and the  22nd December,  1959  respectively, made under section 9  of  the principal Act, shall be, and shall be deemed always to  have been, as valid as if the provisions of section 28 thereof as amended by this Act were in force at all material times when such  acquisition  was  made  and shall  not  be  called  in question in -any court of law on the ground only that before issuing such notifications no notification was issued  under section  7 of the principal Act in relation to the  land  or rights   in  or  over  such  land  ’Covered  by   the   said notifications Nos.  S.O. 1759 and S.O. 25". In  view of this amendment it is obvious that now under  the scheme  of Act XX of 1957, as amended by Act 51 of 1957  and Act  XXIII of 1969 a notification under s. 4(1) of the  Land Acquisition Act, 1894 is by fiction a notification under  s. 4  of Act XX of 1957; an objection under s. 5A of  the  Land Acquisition Act, 1894 is deemed to be an objection under  s. 8  of  Act  XX  of 1957.  It is also  provided  that  if  no objection  had  been  preferred  under s.  5A  of  the  Land Acquisition  Act, 1894 within the period specified  in  that Act,  then it shall be deemed that a notification  has  been issued  under  s. 7 of this Act in respect of the  land  and further that no objection to the acquisition of the land  or any rights in or over that, land has been preferred under s. 8  of the Act and accordingly the Central Government may  at any time make a declaration under s. 9 of Act XX of 1957  in respect of that land.  By section 3 the effect of a decision

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of  a court is removed as if the provisions of s. 28 of  Act XX of 1957, as amended by Act XXIII of 1969 were in force at all material times. Learned  counsel  for  the respondent  could  not  point  to anything  by  which  the amending Act  could  be  called  in question.  It was conceded that it was within the competence of  Parliament to create the fictions it has created in  the original Act XX of 1957 and again by the amending Act  XXIII of 1969.  Learned counsel, however, said that we must take a humane view of the position of a person like the  respondent who  would  lose  his all by the acquisition  and  that  too through  legislation  which makes the  provisions  fictional rather than real.  As to the first part we can only say that if the 414 law allows it, the court must award it and as to the  second part  we  say  that  this  kind  of  legislation  by  making obligatory notifications fictional does not accord with  our sense  of  propriety but we cannot say anything  against  it since  Parliament  undoubtedly possesses the power  to  make such fictions. In  the  result the appeal must be allowed, but we  make  no order about costs. V. P. S.          Appeal allowed. 415