Supreme Court of India
GOA FOUNDATION & ANR.versusSTATE OF GOA & ANR.
- Citation
- 2016 INSC 281
- Decided
- 29 March 2016
- Disposal
- Dismissed
- Bench
- RANJAN GOGOI
Holding
The Goa Amendment Act, 2009 is constitutionally valid; it does not repugnate the central Land Acquisition Act and the legislature may enact retrospective provisions that remove the basis of a prior declaratory judgment.
Summary
The State of Goa acquired land for a tourism project and entered into an agreement under Section 41 of the Land Acquisition Act, 1894, which contained a clause prohibiting any construction on the acquired land. The hotel company later constructed a building, leading the Bombay High Court to order demolition, an order affirmed by the Supreme Court in 2009. Subsequently, Goa enacted the Land Acquisition (Goa Amendment) Act, 2009, inserting subsections 6‑9 to Section 41 that retrospectively deleted the prohibitory clause and validated the construction. The petitioners challenged the amendment’s constitutional validity, alleging repugnancy with the central Act, violation of Article 254, and infringement of the rule of law. The Court held that the amendment was within the State’s legislative competence, did not conflict with the central Act, and could validly remove the basis of the earlier judicial decision, especially as that decision was declaratory. Consequently, the writ petition was dismissed and the amendment upheld.
Issues considered
- The constitutional validity of the Land Acquisition (Goa Amendment) Act, 2009 and whether it repugns the Land Acquisition Act, 1894.
- Whether the State Legislature had authority to amend Section 41 after a Supreme Court judgment under Article 254 of the Constitution.
- Whether retrospective legislation that nullifies a prior judicial order violates the rule of law and separation of powers.
Legislation cited
- Goa Reorganisation Act, 1987s. 45
- Land Acquisition Act, 1894s. 40, s. 41, s. 42
- Land Acquisition (Goa Amendment) Act, 2009s. 41(6), s. 41(7), s. 41(8), s. 41(9)
Subjects
Land acquisitionConstitutional validityRetrospective legislationRepugnancyArticle 254Section 41 agreementRule of lawJudicial review
Judgment
[2016] 1 S.C.R. 1025
GOA FOUNDATION & ANR. A
v.
STATE OF GOA & ANR.
(Writ Petition (Civil) No.131 of2009)
MARCH 29, 2016 B
[RANJAN GOGOi AND PRAFULLA C. PANT, JJ.]
Land Acquisition Act, 1894 - s. 41 - Land Acquisition (Goa
Amendment) Act, 2009 - Constitutional validity - Agreement
executed between the Government and respondent no. ](engaged
in hotel industry) u/s. 41 of the Principal Act - Clause 4(viii) of the
c
Agreement imposed bar with regard to raising of construction on
the acquired land by respondent no. 3 - Construction raised by
respondent no. 3 challenged and this Court by order dated
20.01.2009 passed demolition order - Thereafter, Goa Amendment
Act of 2009 passed amending s. 41 by addition of sub-sections 6 to D
9 and clause 4(viii) of the Agreement stood deleted - Validity of the
Goa Amendment Act of 2009 - Held: Goa Amendment Act, 2009 1~·
valid - There is no repugnancy between the Principal Act and the
State Amendment - Section 41 of the Principal Act and the terms of
the agreement executed thereunder are silent with regard to
E
modification/variation or deletion/subtraction of the terms of the
agreement - State Amendment Act by bringing in sub-sections (6) to
(9) of s. 41 invalidates clause ./(viii) of the agreement by effecting a
deletion thereof with retrospective effect (the date of coming into
operation of the Principal Act to the State ofGoa)-State Amendment,
by no means, sets the law in a collision course with the Central/ F
Principal enactment - As regards, States competency to enact the
State Amendment Act in view of the earlier decision of this Court,
iudicial pronouncement, either declaratory or conferring rights on
the citizens cannot be set at naught by a subsequent legislative act
- However, the legislature would be competent to pass an amending
G
or a validating act, if deemed fit, with retro~pective effect removing
the basis of the decision of the Court- Once clause 4(viii) is removed
the basis of the earlier judgment stands extinguished - Thus, it was
within the domain of the legislature to bring about the Amendment
Act with retrospective effect.
H
1025
1026 SUPREME COURT REPORTS [2016] 1 S.C.R.
A Dismissing the writ petition, the Court.
HELD: 1.1 The validity of the Land Acquisition (Goa
Amendment) Act, 2009 is upheld. [Para 32)[1044-C-DJ
1.2 The power to invalidate a legislative or executive act
lies with the Court. A judicial pronouncement, either declaratory
B 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
c decision of the Court. Even in such a situation the courts may
not approve a retrospective deprivation of accrued rights arising
from a judgment by means of a subsequent legislation. 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
D 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
E 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.
[P;ira 241[1039-C-G]
1.3 Applying the principles in B/wktwar Trust & Ors, it
follows that Section 41(6) to (9) introduced in the Principal Act
F
by the Goa State Amendment renders ineffective Clause 4(viii)
4 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 said
Clause 4(viii) and its legal effect, in view of Section 42, that was
G 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
H
GOA FOUNDATION v. STATE OF GOA 1027
January, 2009 would not have been forthcoming. It was therefore A
well within the domain of the legislature to bring about the
Amendment Act with 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. [Para 25][1041-G-H;1042-A-B]
B
1.4 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
deletion/subtraction of the terms of the agreement. The State
Amendment Act by bringing in Sub-sections (6) to (9) of Section c
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
D
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 clanse of the E
agreement as made by the said amendment may appear to be
really in furtherance of the purpose of the acquisition under the
Central Act. Therefore, no repugnancy is found between the
Principal Act and the State Amendment. [Para 28] [1043-A-D]
1.5 On the materials avai1able i.e. Minutes of the Cabinet
F
Meeting preceding the promulgation of the Land Acquisition (Goa
Amendment) Ordinance, 2009, the submission that the Goa State
Amendment was intended to benefit a singular entity i.e. the third
respondent is without any basis whatsoever. [Para 30][1043-G;
1044-A]
Bhaktwar Trust & Ors. v. MD Narayan & Ors. 2003 G
(1) Suppl. SCR 1:(2003) 5 SC:C 298 - relied on.
Karunanidhi V. Union of India 1979 (3) SCR
254:(1979) 3 SCC 431; Madan Mohan Pathak and
AJ,tother vs. Union of India and 01hers 1978 (3) SCR
H
1028 SUPREME COURT REPORTS [2016] I S.C.R.
A 334:(1978) 2 SCC 50; M Karunanidhi vs. Union of
India 1979 (3) SCR 254:(1979) 3 SCC 431; Kanaka
Gruha Nirmana Sahakara Sangha vs. Narayanamma
(Smt) (since deceased) by Lrs. and Others 2002 (3)
Suppl. SCR 97 : (2003) 1 SCC 228 - referred to.
B Case Law Reference
2003 (1) Suppl. SCR 1 referred to. Para 24, 25
1979 (~) SCR 254 referred to. Para 19
1978 (~) SCR 334 referred to. Para 24
c 1979 (~) SCR 254 referred to. Para 27
2002 (3) Suppl. SCR 97 referred to. Para 28
CIVIL ORIGINAL Jl.JRISDICTION: Writ Petition (Civil) No.
131OF2009
D [UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA]
WITH
CONTEMPT PETITION (C) NO. 292 OF 2009 IN C. A. NO.
4154 OF 2000
E Sanjay Parikh, Mamta Saxena, Ninni Susan, A. N. Singh, (for
Anitha Shenoy) for the Petitioners.
A.N.S. Nadkarni, Adv. Gen., Datta Prasad Lawande, Asst. S. G.,
Rafiq Dada, M. S. Usgaonkar, Dhruv Mehta, Swati S. Kamat, Mallika
Joshi, Ruchika, Rajan Narain, Pratap Venugopal, Niharika, S.S. Rebello,
F Anshuman Shrivastav, Nikita Nadkarni, Puma Bhandari, Siddharth
Bhatnagar, Rauf Rahim, T. Mahi pal for the Respondents.
The Judgment of the Court was delivered by
RANJAN GOGOi, J. I. The challenge in this writ petition under
Article 32 of the Constitution oflndia is to Constitutional validity of the
G 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.
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
H specific enumeration and, therefore, are being recited herein below.
GOA FOUNDATION v. STATE OF GOA 1029
[RANJAN GOGOi, J.]
3. The third respondent in the writ petition i.e. Mis Fomento Resorts A
& 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
B
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 c
was issued on 29. I 0. I 980 declaring that the land covered by Survey
Nos.803 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 D
Section 40 of the Act which was followed by an agreement dated
26. l 0.1983 as required under Section 41 of the Act. The opening
paragraphs and Clauses 3, 4 and 6 ofthe agreement would require specific
notice and therefore are being extracted herein below:
"WHEREAS the principal objects for which the Company is E
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 al Curia,
Vainguinim, Dona-Paola, Goa, the Company has applied to the F
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 ofland containing 19, 114 ·sq m, siiuated in the district
of Tiswadi and more particularly described· in the Schedule
appended hereto and delineated in the plan hereunder annexed G
(hereinafter called 'tlie said· land') for the following purpose,
namely-Tourism Development Project~onstruction of hotel at
Curia, Vainguinim, Taleigao.
AND WHEREAS the Government being satisfied by an
exceeding one year at a time so however that the total period H
1030 SUPREME COURT REPORTS [2016] 1 S.C.R.
A shall not exceed six years.
(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.
B
(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
c 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.
D (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.
E
(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
F
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 land or its value as undeveloped land at the time ofresumption,
whichever is less, but excluding the cost or value of any improvements
G 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
H
GOA FOUNDATION v. STATE OF GOA 1031
[RANJAN GOGOi, J.]
Company has failed to make go.ad the breach or to comply A
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 B
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 c
respondent, an application was made to the Panjim Planning and
Development Authority under Section 44 ( l) read with Section 49( I) 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 D
appears that renewal/extension of the pennission 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 Countl)' Planning Board in the meeting E
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).
F
7. The aforesaid construction raised and completed on the land
covered by Survey No.803 (246/2) came to be challenged 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. · G
8. Aggrieved, the third respondent challenged the said order of
the High Court by instituting Civil Appeal Nos.4154-4156 of2000 before
this Court which was dismissed on 20.1.2009 with the following operative
directions.
H
1032 SUPREME COURT REPORTS [2016] I S.C.R.
A "(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
tum, submit a report to that effect to the Goa Bench of the Bombay
High Court.
B
(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.
c
(iii) The access shown in the plan, Ext. A attached to Writ Petition
No. 141 of 1992 shall be kept open without any obstruction ofany
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 l has put up any obstruction or made
D 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
E 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 l of 1894), as in force in the
State of Goa, after clause (5 ), the following shall be inserted,
F 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
G 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
H
GOA FOUNDATION v. STATE OF GOA 1033
[RANJAN GOGOi, J.]
Company and all the proceedings taken by the competent A
authorities to issue the license or permission for undertaking
construction, shall be deemed to have been 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 B
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 c
which the original agreement with the Company was executed
under this section and any act.ion 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. D
(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 E
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 F
which were constructed after obtaining the permissions from the
Statutory Authorities and have been validated under this section,
or for 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 G
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.
H
1034 SUPREME COURT REPORTS (2016] I S.C.R.
A 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
B 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
c 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 oflaw. The Hon 'hie 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
D held that there is no power to amend, modify, 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.
E
Therefore it is proposed to amend provision of section 41 of the
Land Acquisition Act, 1894 (I 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
F 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.
G 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:
"l)That in the Principal Agreement, in Condition 4, clause (viii)
H
GOA FOUNDATION v. STATE OF GOA 1035
[RANJAN GOGOI, J.]
shaJI be deemed to have been deleted with retrospective effect A
from 26/J 0/83 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/J 0/1983.
2) In condition 6 of the Principal Agreement, for the expression.
"as hereinafter recited", the expression "namely tourism B
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 fuJI force and effect." c
12. It is the validity of the aforesaid Amendment Act that has
been q11estioned 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 D
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 E
senior counsels for the private respondents.
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 F
the basis of the judgment ofa Court but in the guise ofaltering the same,
the judgment itself cannot be overruled.
IS. 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 G
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
H
1036 SUPREME COURT REPORTS [2016] I S.C.R.
A 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 AmendmentAct of2009 seeks to nullify the directions given by
the Court/Tribunal, as may be and that too 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.
B.
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 Vil of the Act; the satisfaction of the Government under Section
c 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,
D 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 permit such modification/
alteration are therefore clearly repugnant to the Principal Act. In the
E 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
F 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
G 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
H
GOA FOUNDATION v. STATE ~F GOA 1037
[RANJAN GOGOi, J.]
earlier judgment thatthe instant acquisition was for purposes under Section A
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.
B
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 c
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 D
4 (viii). The basis of the earlier judgment has consequently been removed.
Support in this regard, is drawn from the decision of this Court in
Blraktwor Trust & Ors. v. MD Narovon & Ors.'.
19. Insofar as the issue ofrepugnancy is concerned it is submitted
on behalf of respondents that as held by this Court in Karunanidhi V. E
Union oflnditil 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, F
that the acquisition is for the purposes contemplated by Section 40 (I)
(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 ofArticle 254 of G
the Constitution the repugnancy between State and the Central Law
must be in respect of "Law" enacted by the State Legislature and the
1 (2003) s sec 298
2 (1979) 3 sec 431 H
1038 SUPREME COURT REPORTS [2016] l S.C.R.
A Parliament. A subordinate legislation or an agreement, which by a legal
fiction is given the effect oflaw (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
B
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 forthe general public was specifically
C relied upon. It is further pointed out that the third respondent being a
public limited company Section 448 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
D concerned it is submitted that though the original agreement was signed
between the Union oflndia 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.
E 22. The submission on behalf of the respondent, therefore,
essentially is as follows :
(a) The basis of the earlier judgment dated 2om January, 2009, namely,
that there was a bar to construction was removed by the State
Amendment by deleting Clause 4(viii) of the Agreement.
F (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
G 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) Jn any event for the purposes of Article 254, the agreement is
H not a law made by the Parliament and therefore not covered
GOA FOUNDATION v. STATE OF GOA 1039
[RANJAN GOGOi, J.]
under Article 254. The Agreement for a limited purpose is given A
a deeming fiction to have the effect oflaw "as ifforming 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 B
decision of this Court dated 20'h 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 c
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 D
effect removing the basis of the decision of the Court. Even in such a
situation the courts may not approve a retrospective deprivation of accrued
rights arising from a judgment by means of a subsequent legislation
[Madan Malian Patllak andAnot/1ervs. Union oflndia and Others'].
However, where the Court's judgment is purely declaratory, the courts E
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 F
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
B/1aktwar Trust & Ors.(supra). The relevant part of the opinion G
expounded in Bllaktwar 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
' (1978) 2 sec 50 H
1040 SUPREME COURT REPORTS [2016] 1 S.C.R.
A provision 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
B
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
;udgments and orders of competent courts provided it, by
c retrospective legislation, removes the cause of invalidity or
the basis that had led to those decisions.
'
I 5. 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;
D 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
Qf Part III Qf the Constitution.
xxxx xxxx xxxx xxxx xxxx xxxx xxxx
E
25. The decisions referred lo 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
F 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.
26. Where a legislature validates an executive action repugnalll
to the statutory provisions declared by a court of law, what
G the legislature is required to do is first to remove the very
basis of invalidity and then validate the executive action. In
order lo validate an executive action or any provision of a
statute, it is not sufficient for the legislature to declare that a
;udicial pronouncement given by a court of law would not be
binding, as the legislature does not possess that power. A
H
GOA FOUNDATION v. STATE OF GOA 1041
[RANJAN GOGOi, J.]
decision of a court of law has a binding effect unless the A
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 B
the very basis upon which the decision of the High Court in
the wrii 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?
c
28. In the earlier decision ef 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 I 3
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 D
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 of a building from E
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. " F
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 G
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 20"' 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
H
1042 SUPREME COURT REPORTS [2016] I S.C.R.
A 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 20"'
January, 2009 would not have been forthcoming. It was therefore well
within the domain of the legislature to bring about the Amendment Act
with retrospective effect, the Legislative field also being in the Concurrent
List, namely, Entry No. 42 of List III (Acquisition and Requisition of
B
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:-
C 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
D raising of construction or illegal constructions raised (on account of the
bar) has been invalidated in the manner indicated therein, is repugnantto
the provisions of Section 41 and the terms of the agreement which are
deemed to be a part of the Act under Section 42.
27. In M. Karunanidl1i vs. Unio11 of /11di«' and Kanaka Grulia
E Nirmana Sf!hakara Sangha vs. Naray1mamma (Smt) (since
deceased) by Lrs. and Otl1ers-' 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.
F (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.
G 28. We do not see how repugnancy between the two legislative
exercises on the principles laid down in M. Karunanidl1i (supra) and
Kanaka Grulia Nirmana Saliakara Sangha (supra) can be said to
'(1979)3 SCC431
H '(2003) 1 sec 22s
GOA FOUNDATION v. STATE OF GOA 1043
[RANJAN GOGOi, J.]
exist in the present case. Section 41 of the Principal Act and the terms A
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 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
B
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. c
Moreover, ifthe 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
D
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 urged on
behalf of the r.~spondentto counter the challenge ofrepugnancy. Whether E
'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 F
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 G
on the materials available i.e. Minutes of the Cabinet Meeting dated 24"'
February, 2009 preceding the promulgation of the Land Acquisition (Goa
Amendment) Ordinance, 2009 on 2S•h 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
H
1044 SUPREME COURT REPORTS [2016) I S.C.R.
A 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 a detailed reference, by
names, in the said Cabinet decision to several other groups and
corporations who are similarly situated as the third respondent.
B 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.
c ..
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 200'?1 ·
D NidhiJain \Vrit petition dismissed.
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