REPORTABLE

IN THE SUPREME Court OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8819 OF 2022

(arising out of S.L.P (C) No.11447/2018)

Ramesh Chandra Sharma & Ors. … APPELLANT(S)

VERSUS

State of Uttar Pradesh & Ors. … RESPONDENT(S)

With

CIVIL APPEAL NO. 8820 OF 2022

(arising out of S.L.P (C) No. 21323/2018)

Anoop Singh (Dead) Thr. Lr(s). & Ors. … APPELLANT(S)

VERSUS

State of Uttar Pradesh & Ors. … RESPONDENT(S)

With

CIVIL APPEAL NO. 8821 OF 2022

(arising out of S.L.P (C) No. 2256/2019)

Jageshwar Singh @ Jage (Dead) Thr. Lr(s). & Anr.… APPELLANT(S)

VERSUS

State of Uttar Pradesh & Ors. … RESPONDENT(S)

1

JUDGMENT

KRISHNA MURARI, J.

1.These appeals are directed against the judgment and order dated

30.03.2018 passed by a Full Bench of the High Court of Judicature at Allahabad

(hereinafter referred to as ‘the High Court’), The reference to Full Bench

came to be made under the following circumstances: -

1.1Writ Petition No. 61449 of 2009, Smt. Madhuri Srivasatava Vs. State of

U.P. & Ors.

1

along with other connected petitions were filed by certain

landholders whose land was acquired by NOIDA challenging the decision of the

Board of Directors of NOIDA dated 07.01.1998 as also the approval granted to

the said resolution by the State Government dated 02.03.2009 whereby a

distinction was carved out in the matter of payment of compensation by creating

a classification between “Pushtaini” and “Gair-pushtaini” landholders. The

‘Pushtaini’ landholders whose lands were acquired, were given additional

compensation @ Rs.3 per sq. yard along with 15% as rehabilitation bonus on

the compensation already awarded, as also the 10% area of the acquired land,

whereas those who were declared as ‘Gair-pusht xcaini’ were denied this

additional benefit. A Division Bench of the High Court vide Judgment and

order dated 10.05.2016 dismissed the Writ Petition holding the classification to

be reasonable having direct nexus with the object sought to be achieved i.e.,

rehabilitation of the original residents who are likely to become landless due to

the acquisition of their land.

2.Another bunch of Writ Petitions were filed by the present appellants

challenging a similar classification made by the Greater Noida Authority

1 (2016) 6 SCC OnLine AII 2832

2

(hereinafter referred to as ‘G Noida’) in payment of compensation on the basis

of the landholder being ‘Pushtaini’ and ‘Gair-Pushtaini’.

3.While considering the Writ Petitions, another Division Bench disagreed

with the views expressed in the case of Smt. Madhuri (Supra) and vide order

dated 07.07.2017 referred the matter to be decided by a larger Bench.

4.The Full Bench constituted in pursuance to the reference framed the

following questions for adjudication :-

(i) Whether the law laid down by a Division Bench of this Court in the

case of Smt. Madhuri Srivastava reported in (2016) 6 ADJ 1 is in

conflict to the law laid down by the Supreme Court in the case of

Nagpur Improvement Trust and Another Vs. Vithal Rao and Ors.

2

and

also with the provisions of the Land Acquisition Act, 1894?

(ii) Whether the classification made under the U.P. Land Acquisition

(determination of compensation and declaration of award by agreement)

Rules, 1997, the distinction made among ‘Pushtaini’ and ‘Gair-Pushtaini’

farmers, is a classification having reasonable nexus with the object

sought to be achieved?

5.Vide impugned judgment and order dated 30.03.2018, the Full Bench

answered question No. 1 in negative and question No. 2 in affirmative and

upheld the view taken by the Division Bench in the case of Smt. Madhuri

Srivastava (Supra). As a consequence of the answers to the questions framed,

2 (1973) 1 SCC 500

3

the Full Bench held that nothing remains to be decided in the Writ Petitions

filed by the present appellants and the same were dismissed.

6. Before we enter into the factual matrix of the case, we find it expedient to

first trace out the etymology of the words “Pushtaini” and “Gair Pushtaini” used

in the impugned classification, for language, once adopted inside the realm of

law, materializes itself a much more powerful being, one which must be

understood in the right historical context.

7.The word ‘Pushtaini’ is a Persian word and finds its origin from the word

‘Pusht’, which means ‘back’. The said word has been historically used in the

context of ancestry. Any possession, tale or legend, that has roots to a particular

ancestry, to denote it’s significance to the said ancestry, the word ‘Pushtaini’ is

used. As is obvious, since the word ‘Gair’ which finds its origin in Urdu

language means ‘other than’, thus, ‘Gair-Pushtaini’ would mean one which is

not ‘Pushtaini’.

8.What we find most interesting however, is that ancestry as a concept,

especially before times of modern private property ownership, had remained to

be a tool for inclusivity and not exclusion. In such a context, the use of the word

“Pushtaini” by the Authority, to exclude compensation might be a historically

inaccurate interpretation. While this is not consequential to the merits of the

case, it is in our opinion a worthwhile observation, for law has to power to

legitimize the meaning of words and can change the context in which a word

used, and in turn can change the course of history itself.

4

Background Facts

9. Since the early 1970s, Liberalization took over India by storm, and it

brought with it the promise of massive economic growth. A huge amount of

money was infused in the Indian Economy with the purpose of developing

Indian cities into massive global hubs of capital and business. In line with this,

Delhi began its journey of becoming a global city. This influx of capital into the

city also brought with it massive employment opportunities, and people from all

over the country started migrating to Delhi. To contain such influx of migrants

and ensure dignified living for all who came to the city with the hopes of

improving their lives, the government of India planned to develop residential

and industrial areas around the capital. For this, Gurgaon was developed across

the border of Haryana, and New Okhla Industrial Development Authority

(NOIDA) was developed by the Uttar Pradesh Government in the adjoining

district of Gautam Budh Nagar. In this period, the city enjoyed massive growth,

both in terms of influx of capital and migration. This growth was so

unprecedented, that it even exceeded the planning estimates as envisaged by the

authorities. As a measure to accommodate such growth, the Uttar Pradesh

Government, exercising its powers under Section 3 of the U.P. Industrial Area

Development Act, 1976, by notification dated 28.01.1991 created the township

of Greater Noida, in an area of 38000 hectare, comprising of 124 villages of

Gautam Budh Nagar.

10.For its planned development, the Respondent- G. Noida started

acquisition of land within its territorial area of operation under the provisions of

Land Acquisition Act (hereinafter referred to as ‘1894 Act’). In the same

connection, notifications dated 03.10.2005 and 05.01.2006 were issued under

5

Sections 4(1) and Section 6(1) of 1894 Act for acquisition of total area of

580.1734 hectares of the land for plan development situate in different villages

falling within the jurisdiction of G. Noida. The said notifications, which also

included the land of the present appellants, were subject matter of challenge

before the High Court in a bunch of Writ Petitions challenging the acquisition

proceedings mainly on the ground of arbitrarily invoking urgency clause under

Sections 17(1) read with Section 17 (4) of the 1894 Act. The bunch of the said

Writ Petitions came to be decided by the another Full Bench of the High Court

titled as Gajraj Vs. State of U.P

3

. The High Court concluded that the urgency

clause was wrongly invoked, but saved the acquisition for the reason that much

development had already taken place over the said land and the nature of land

stands completely changed. The Full Bench further in order to compensate the

landholders directed an additional compensation to be paid to the landholders at

the rate of 64.70% of the already paid compensation and a further direction was

issued to allot developed Abadi land to the extent of 10% of their acquired land,

subject to a cap of Rs.2,500/- square meter. The Full Bench never made any

distinction between ‘Pushtaini’ and ‘Gair-Pushtaini’ farmers for payment of the

additional compensation or allotment of land. The Full Bench also relying upon

the decisions rendered in the case of Radheyshyam (Dead) through L.Rs &

Ors. Vs. State Of UP & Ors.

4

, Greater Noida Industrial Development

Authority Vs. Devendra Kumar & Ors.

5

, further held that merely because the

farmers had received compensation under an agreement, it cannot be said that

they have waived off the right to challenge the same. The Full Bench judgment

in Gajraj (Supra) came to be affirmed by this Court in Savitri Devi Vs. State of

U.P. & Ors.

6

3 (2011) SCC OnLine AII 1711

4 (2011) 5 SCC 553

5 (2011) 12 SCC 375

6 (2015) 7 SCC 21

6

11.The present appellants had also filed a Writ Petition being Writ Petition

No. 62056 of 2011 challenged the notification issued under Sections 4 and 6

read with Section 17 of the Act. The said Writ Petition came to be disposed of

in terms of the directions issued by the Full Bench in the case of Gajraj (Supra)

vide judgment and order dated 01.11.2011.

12.It is also pertinent to mention at this stage that even before the land

acquisition proceedings were initiated and notification under Sections 4 and 6 of

the 1894 Act, were issued, the Respondent-Greater Noida in its 26

th

Board

meeting dated 28.10.1997 decided to classify the landholders for the purposes

of payment of compensation for acquisition of their land as ‘Pushtaini’, namely,

those landholders who had purchased the land prior to the date of establishment

of authority i.e., 28.01.1991 or thereafter got the land by partition or family

settlement and ‘Gair-Pushtaini’ being those persons who purchased the land

after its establishment. Thus, two classes of landholders were carved out for

payment of compensation and those who were classified as ‘Pushtaini’

landholders, a higher amount of compensation was decided to be awarded to

them in the name of their rehabilitation.

13.Subsequently, on 15.07.2006, an agreement was entered into between

Greater Noida and the appellants and other landholders under Rule 4(2) of the

Land Acquisition Rules, 1997 (hereinafter referred to as ‘1997 Rules’) and in

accordance with the resolution passed by Greater Noida in its 26

th

Meeting, the

‘Pushtaini’ landholders were paid compensation @ Rs. 322 per sq. yard and the

‘Gair-Pushtaini’ landholders including the appellants herein were paid a lesser

amount of compensation @ Rs.280 per sq. yard.

7

14.The landholders continued with their agitation making demand of further

compensation at the enhanced rate which resulted in constituting a Committee

to consider the demand of enhanced rate of compensation in the form of

bonus/ex-gratia compensation. The Committee submitted its report after

making a recommendation for payment of the amount @ Rs.310 per square

metre on account of Ex-gratia to the Ancestral Agriculturists of the land situate

in 8 Villages.

15.The report of the Committee dated 25.10.2008 is being reproduced

hereunder for a ready reference :-

“ ANNEXURE P-4

25.10.2008

Recommendation of the Committee constituted in connection

with making consideration on the demands of bonus/ex-

gratia/compensation enhancement at the enhanced rate in

connection with the land of Village Ghodi Bachheda and

other Villages as per Order No.4/4/1/2008 -C.X. (1) Lucknow

dated 4.09.2008 of the Government of Uttar Pradesh

Following Committee has been constituted in connection with

making consideration on these types of demands and bonus /

ex-gratia /compensation enhancement at the enhanced rate in

connection with the land of Village Ghodi Bachheda and

other Villages vide Order No.4/4/1/2008 C.X. (1) Lucknow

dated 4.09.2008 of the Government of Uttar Pradesh:-

1. Shri Thakur Jaibir Singh, Hon'ble Minister, Rural

Engineering Service, Agricultural Foreign Trade and

Agriculture Export Chairman

2. Chief Executive Officer, Greater Noida - Member

3. District Magistrate, Gautam Buddh Nagar - Member

Coordinator Examined and perused the records made

available in evidence of the Memos submitted by the

representatives of agriculture is organizations / Agriculturists

8

and perused the background of the and its different aspects by

the Committee and while convening Committee Meeting of

the Committee of Villages / their representatives, even

consideration was made in respect of the above matter,

particulars of which is given below:-

1. Background- this decision was taken in the 26th meeting

dated 28.10.1997 of the Greater Noida Authority Board that

the rate of compensation be assessed on the basis of

agreement by the Authority for each financial year and those

Agriculturists, who are agreed for executing the consent at

the rates of the questioned Financial Years, they while

executing the agreement/consent, may receive compensation

under contract/consent regulation and those Agriculturists,

who are not agreed with the prescribed rate, the

compensation will be payable to them at the rate prescribed

by the learned District Magistrate under provisions of Section

23 of the Land Acquisition Act 1994. On the basis of above

sequence, for the year of 1997-98, the rate of compensation

was assessed @ Rs.110 per square and in future, it will be

enhanced in accordance with cost inflation index in each

financial year. Vide Order No.902/778 3-0 7-1 43 N/04. of the

Government of Uttar Pradesh, a High Level Committee under

Chairmanship of the Commissioner, Meerut Division, Meerut

was constituted. Committee has recommended its

compensation value @ Rs.800-850 per square metre, in

sequence thereto, in the meeting of Greater Noida Authority

Board held on 5.01.2008, while assessing the compensation

@ Rs.850 per square metre, decision was taken to enforce

this rate with effect from 1.04.2007.

Even the particulars of these types of Memos are also

mentioned in the recommendation dated 4.01.2008 of the

Committee constituted under chairmanship of the

Commissioner, Meerut Division, Meerut vide Order dated

31.12.2007 of the Government issued previously, whereby it is

clear that at that time also, The Villagers of the above

Villages were making demand for enhancement in

compensation. The certain Memos of the Villagers were

forwarded to the Government for appropriate

guidelines/directions while enclosing them as per Authority

9

letter No.931 / land-record / L.P./2008 dated 7.03.2008/ 903/

land-record /LP/2008 dated 10.03.2008, Land Record/1

a/2008 dated 13.03.20081038/land-record/L.A./2008 dated

29.04.2008, 1055/ land-record/ LA / 2008 dated 5.05.2008/

1069/land-record/ LA/2008 dated 9.05.2008, 1113, 1115/land-

record/L A/2008 dated 06.06.08. Thereafter, by Order dated

10.05.2008 of the Chairman and Chief Executive Officer,

Greater Noida, for examination of the demand of

compensation enhancement raised by the Agriculturists, a

Committee of District Magistrate, Gautam Buddha Nagar,

Chief Executive Officer, Deputy Chief Executive Officer,

Greater Noida was constituted and in its report dated

21.07.2008, recommendation was made to make

consideration for additional amount @ Rs. 175 -200 square

metre to the Agriculturists of the land acquired in the

Financial Years 2006-2007 of the Village Ghodi Bachheda

including other Villages. Such directions were given while

making perusal of the Recommendation of the Committee in

the 72nd Meeting dated 11.08.2008 of the Authority Board,

that while making calculation of the situation of its financial

source and its management, the case be referred to the

Government. Vide Order No.4/4/1/2008 -C.X. (1) Lucknow

dated 4.09.2008 of the Government of Uttar Pradesh, the

above Committee was constituted for giving recommendation

in connection with making consideration on the demands of

bonus / ex-gratia/enhancement of compensation and etc. at

the enhanced rate in connection with the Village Ghodi

Bachheda and other Villages.

2. Meetings of the Committee - That first meeting of the

Committee was convened on 15.09.2008 in the conference

room of Uttar Pradesh Sadan, New Delhi, in addition to the

Chairman of Committee, following officers have taken part-

1. Shri Pankaj Agarwal, Chief Executive Officer, Greater

Noida

2. Shri Shravan Kumar Sharma, District officer, Gautam

Buddha Nagar

In addition to above, following officers of the Greater Noida

Authority were appeared in the above meeting-

1. Shri Shailendra Chaudhary, Deputy Chief Executive

Officer, Greater Noida.

10

2. Shri Shishir, Special Executive Officer, Greater Noida

Consideration and consultation was made in connection with

the work area, operation and process of the constitution of

the Committee in the meeting land this decision was taken

that while convening a meeting with the Agriculturists and

their representatives affected with the acquisition, their

opinions and demands may be known by way of receiving

representations from them and discussion may be made from

them in this regard.

In sequence of above, the meeting of Committee was

convened on 22.09.2008 and 11.10.2008 respectively in the

Conference Room of the Greater Noida Authority, wherein,

while receiving the memo from the Agriculturists of Village

and their representatives, the matter was discussed and

consulted in detail, wherein, mainly, following people have

taken part-

1. Ramesh Singh Rawal,

2. Yogendra Singh Rawal,

3. Subedar Ramchandra,

4. Omprakash,

5. Mahi Singh Bhati,

6. Lokesh Bhati,

7. Maha Singh Bhati,

8. Pratap Singh Bhati,

9. Pratap Singh Sarpanch,

10. Prem Mukhiya,

11. Inder Singh (Advocate),

12. Ajit Singh Nagar,

13. Kamal Bhati,

14. Mange Ram Bharti

15. Bhule Singh,

16. Rakesh

17. Braham Singh,

18. Atmender,

19. Maharaj Singh,

20. Mehndi Hassan,

21. Umesh,

22. Vikram Singh,

23. Satbir Pradhan,

24. Naresh Upadhyay,

25. Ajith Mukhiya,

11

26. Rampal Havaldar,

27. Nemvir, Pradhan, Garba

and etc. etc.

3.Grounds of the demand and memo submitted by the

Agriculturist - There records were received in support of

detailed Memos and particulars in connection with the

demands from the Villages in their meeting by the Committee.

The agriculturist of the land acquired in the year of 2006-

2007 of Village Ghodi Bachheda and including other Villages

have collectively produced detailed and factual Memos

including necessary records before the Committee and even

grounds were also raised by the Agriculturists orally in

support of their demand, wherein, main grounds are included,

which are as under:-

1. The farmers of questioned Villages have given value

enhancement Memo on 2.04.2006, whereon, the Greater

Noida Development Authority gave Assurance letter in

written on 5.01.2007 after 10 days, that, after calling the

rates of Tronica City and etc. in the GDA, till the last week of

the February 2007, decision will be taken in connection with

enhancing the compensation. In support of their statements

copy of letter dated 5.01.2007 of the Deputy Chief Executive

Officer, Greater Noida addressed to Ashok Pradhan,

respected member, Lok Sabha and Sri Nawab Singh Nagar, is

enclosed.

2. They had also revealed their demand in connection with

compensation enhancement in the meeting of committee

constituted under chairmanship of the Commissioner, Meerut

Division, Meerut, but nothing benefit has been given to the

Agriculturists of the acquired land in the financial year 2006-

2007.

3.The Villagers have produced their demand, while

disclosing detailed grounds before the Committee constituted

under chairmanship of the learned District Magistrate vide

Order dated 10.06.2008 of the Chairman and Chief Executive

Officer, Greater Noida but, even then, the Committee, without

making intensive consideration thereon, has given

recommendation for enhancement @ Rs. 175- 200 per square

12

metre, which is not in practical and it is against the principle

of natural justice and that this enhancement is insufficient.

4. Analysis - The Notification was issued on 5.01.2006 under

Section 6/17 of the Land Acquisition Act, 1894 in the

proposal of acquisition of 580.1730 hectare land of Village

Gonda Bachheda and that the possession of the acquired land

was handed over to the Greater Noida Authority on

14.05.2006 by the Additional Collector (L A). After approving

the value of compensation @ Rs.385 per square metre on

28.06.2006 from the Divisional Commissioner, Meerut, the

compensation amount was distributed @ Rs.385 per square

metre to the Ancestral Agriculturists and @ Rs.334.78 per

square metre to the ancestral Agriculturists. That the land of

the following Villages were acquired for well-planned

development of the Greater Noida in the Financial Years

2006-2007 including Village Gonda, Bachada and other

Villages and that the possession of the above land was taken

after 01.04.2006 and the Agriculturists of the above land are

making demand for enhancement of compensation.

S.No. Name of Village acquired area date of transferring

(in heatare) possession of the

land to the Authority

1. Surajpur 69330 01.06.2006

2. Ajaybpur 37308 01.06.2006

3. Garbara 595830 01.06.2006

4. Gondi Basera 580.1730 14.06.2006

5. Shani 299.5660 30.10.2006

6. Dadha 215.6010 27.10.2006

7. Mathurapur 122.2699 27.10.2006

8. Daabra 111.8868 31.01.2007

Agriculturist organization, Agriculturists of these Villagers

have also given a number of Memos for demanding

enhancement of compensation at the time of constitution of

the Committee under chairmanship of the Divisional

Commissioner, Meerut vide Order dated 31.12.2007 of the

Government and even prior to it.

The copy of consent letter dated 5.01.2007 signed by the then

Deputy Chief Executive Officer, Greater Noida and

consideration and consultation made on the Memos

submitted on 5.01.2007 in the matter by the Villagers with

Member of Parliament Shri Ashok Pradhan and the then

13

MLA Shri Nawab Singh Nagar was also provided to the

agriculturists, wherein, it is mentioned that this decision has

been taken in connection with enhancing the compensation of

the acquired land that after calling the rates of compensation

of the land being acquired by the Ghaziabad Development

Authority and the land of Tronica City of Housing

Development Board, till the last week of February, decision

will be taken in connection with enhancing the compensation.

It is clear by it that the Agriculturists were raising demand of

enhancing the compensation even in the month of February

2007, whereon, the Assurance was given at the Competent

Level of Authority.

The Committee constituted under chairmanship of the

learned District Magistrate has revealed the facts in detail in

its report dated 31.07.2008 on the above overall points raised

by the Agriculturists. The Committee has perused the

recommendation dated 21.07.2008 of the Committee

constituted under the chairmanship of the learned District

Magistrate, Gautam Buddha Nagar. Such finding has been

concluded in its report dated 21.07.2008 that it is not possible

to make any change in the rate of compensation in

accordance with law, because of receiving the compensation

after fulfillment of the agreement under the Agreement

Regulation after acquisition of the land by the concerned

Agriculturists, but, the Committee has recommended in its

report dated 21.07.2008 to award certain amount in the

detailed circumstances on account of ex-gratia.

5. Recommendation - As per the information provided by the

Special Executive Officer (L A), Greater Noida, most of the

Agriculturist of the acquired land in the financial year 2006

2007 of Village Ghodi Bachheda, including other Villages, as

per the Government Order dated 29.09.2001, under the

provisions of Uttar Pradesh Land Acquisition (Determination

of Compensation and Declaration of Award by Agreement)

Rules, 1997, have received Compensation. Therefore, it

would not be possible under the rule to make any

enhancement/ change in the compensation rates of the award

to be declared. Accordingly, it would be appropriated only to

give additional amount on account of Ex gratia to be

awarded as relief to the Agriculturists of these Villages. In the

report dated 21.07.2008 of the Committee constituted under

14

the chairmanship of the learned District Magistrate,

recommendation has been given to award additional amount

@ Rs.175-200 per square metre. But, in opinion of the

Committee, there is justification to make partial enhancement

in above amount.

Therefore, in view of the above detailed factual analysis,

consultation, discussion, consideration made from the

Agriculturists and assurance given at the level of Authority,

this Committee is hereby made recommendation to make

payment of the amount @ Rs.310 per square metre on

account of Ex gratia to the ancestral Agriculturists of the

questioned land of 8 Villages detailed in Para No.4

possession of which has been received in the financial year

2006-2007 and the Committee is hereby further recommended

to submit the recommendation before the Greater Noida

Authority Board for necessary proceedings.

Sd/-,

Shravan Kumar Sharma,

District Magistrate,

Gautam Buddha Nagar

Sd/-

(Pankaj Agarwal),

Chief Executive Officer, Greater Noida

Sd/-

(Thakur Jaiveer Singh),

Hon'ble Minister Rural Engineering Service

Agriculture Foreign Trade and

Agriculture Export, Uttar Pradesh”

16.Based on the aforesaid report, a decision was taken in the 74

th

Board

Meeting of Greater Noida for payment of additional compensation/ex-gratia @

Rs.310 per square metre only to the ‘Pushtaini’ farmers of 8 villages.

17.The Minutes of the 74

th

Board Meeting of the Greater Noida Authority

dated 03.11.2008 are being reproduced hereunder :-

15

“ ANNEXURE P-5

S. No.1 - For approval of minutes of 74th Board Meeting of

the authority

74th Board meeting of Authority was held on 03.11.2008.

Minutes of this meeting (enclosure), has been sent to the

members of authority vide semi Government letter No.UMC/

74th Board Meeting/ 2008 / 265 dated 3.11.2008. Minutes of

the above meeting is being submitted herewith for approval of

the Authority Board.

S.No. 9- In connection with demand of bonus/ex-

gratia/compensation enhancement of the Agriculturists of the

land of Village Ghodi Bachheda and Other Villagers acquired

in the Financial Year 2006 2007 by Greater Noida The

Agriculturists of the land of following Villagers, whose land

was acquired in the financial year 2006 -2007 by the Greater

Noida, have submitted a lots of Memos, while making demand

of compensation enhancement-

S.No. Name of Village acquired area date of transferring

(in heatare) possession of the

land to the Authority

1. Surajpur 69330 01.06.2006

2. Ajaybpur 37308 01.06.2006

3. Garbara 595830 01.06.2006

4. Gondi Basera 580.1730 14.06.2006

5. Shani 299.5660 30.10.2006

6. Dadha 215.6010 27.10.2006

7. Mathurapur 122.2699 27.10.2006

8. Daabra 111.8868 31.01.2007

Which have been submitted to the Government from time to

time for appropriate directions and guidelines. For

examination of the demand of compensation and management

of Agriculturist, following a Committee of District Magistrate,

Gautam Buddha Nagar, Additional Chief Executive Officer,

Deputy Chief Executive Officer, Greater Noida was constituted

vide Order dated 10.06.2008 of the Chairman, Greater Noida,

and the above committee has recommended to make

consideration on awarding additional amount @ Rs.175- 200

per square metre to the cultivators, whose land was acquired in

16

the financial year 2006, 2007, in Village Ghodi Bachheda

including other Villages, in its report dated 21.07.2008. In the

72nd meeting of the Board held on 11.08.2008, while using the

Recommendation of the Committee, this direction was given

that, while making calculation of the situation of the financial

sources and its management, the matter may be referred to the

Government, as per Government Order No.4/4/1/2008 - C.X.

(1) Lucknow dated 4.09.2008 of the Government of Uttar

Pradesh, the committee was constituted in connection with

making consideration on the demands of the Agriculturists in

connection with bonus / Ex gratia / compensation enhancement

of the enhanced rates in connection with the land of Village

Ghodi Bachheda and other Villages.

1. Sri Thakur Jaiveer Singh Hon'ble Minister, Rural

Engineering Service, Agriculture Foreign Trade and

Agriculture export -Chairman

2. Chief Executive Officer, Greater Noida member

3. District Magistrate, Gautam Buddha Nagar -Member

Coordinator

The committee has submitted its recommendation on

25.10.2008, wherein, the recommendation has been made to

make payment on account of ex-gratia @ Rs.310 square metre

to the ancestral agricultural of the land whose possession has

been received in the Financial Year 2006-2007 of 1.04.2006 by

the Greater Noida in respect of the land of Village Ghodi

Bachheda and recommendation has been made to submit the

matter with recommendation of the Committee before the

Greater Noida Authority Board for necessary proceedings. The

report dated 25.10.2008 of the Committee is enclosed and that

it is a part of agenda.

Overall Compensation Amount of Rs.5522134695.00 (Rupees

Five Arab fifty two crores twenty one lakhs thirty four thousand

six hundred ninety five only), calculated @ Rs.385 per square

metre. applied at that time against the land measuring

1434.3207 of the above Villages acquired in the financial year

2006-2007, has already been sent to the learned Additional

District Magistrate (L.A.). And as per letter No.527/8 -VK BHL

a dated 23.06.2008 received from the land acquisition officer,

the amount of Rs.5,27,56,68,568 (Five Arab Twenty seven

crores, fifty six lakhs sixty eight thousand five hundred sixty

17

eight only), which is 95.54%, has already been distributed

among the concerned Agriculturists. As per the information

received vide letter No.833/Eight- A.D.O. (L A) /08 dated

21.10.2008 of the Additional Collector (L.A. ), out of the

questioned acquired land of the above Villages, the area

measuring 1392.9586 hectare, is ancestral area. So, in case of

making payment at the enhanced rates to the ancestral

Agriculturist, that is, on making payment @ Rs.310 per square

metre as recommended by the Committee, then, their shall

financial burden of Rs.4318171660 (Rupees four Arab twenty

one crores eighty one lakhs seventy one thousand six hundred

and sixty only).

The report of the Committee is submitted for consideration of

the Authority Board.”

18.Vide order dated 15.01.2009, the State Government granted its approval

for payment of enhanced compensation/ex-gratia/bonus to the ‘Pushtaini’

landholders.

19. For the sake of convenience, the break-up of compensation granted to both

the categories of landowners is being produced hereunder :-

Dates Rate Of

Compensation

for Pushtaini

Landowners

Rate Of

Compensation for

Gair-pushtaini

Landowners

Difference in

Compensation

28.10.1997

(GNOIDA)

making 2

categories for

compensation

&

July-Sept. 2006

Rs. 322/- per

sq. yard, as

agreed between

the parties.

Rs. 280 per sq.

yard, as agreed

between the parties

Rs. 42/- per sq.

yard

18

(Agreement

between

landowners and

GNOIDA)

15.01.2009

(Letter of

Secretary for

payment)

Further

Payment of Rs.

259.27 per sq.

yd. as ex gratia

payment for

Pushtaini

farmers.

No ex-gratia

payment for Gair-

pushtaini land

owners

Rs. 301.27 per

sq. yard.

21.10.2011

(GAJRAJ High

Court Judgment )

&

02.11.2011

(G NOIDA treated

ex gratia payment

made to the

Pushtaini Land

Owners as

Additional

Compensation,

Rs. 957.36 per

sq. yard

Rs. 461.16 per sq.

yard

Rs. 496.20 per

sq. yard

ARGUMENTS ADVANCED BY THE APPELLANTS

20.The learned Counsel for the Appellants Contended that:-

I.Section 23 of the Land Acquisition Act does not allow for a

discrimination between Pushtaini and Gair-pushtaini landowners in

determination of compensation under the Land Acquisition Act.

19

I.In light of the law laid down by this Court in the Nagpur Improvement

Trust Case (Supra), no distinction between the abovementioned two sets

of classes of landowners can be made on the basis of the date of purchase

of the land and the date of establishment of G NOIDA. The Ld. Counsel

argued that all the landowners whose land was acquired should stand on

the same pedestal.

II.The Land of both the classes of landowners have been acquired under the

same procedure, for the same public purpose and having the same market

value, and hence, any difference in the rate of compensation provided to

any party is highly discriminatory and is violative of Article 14.

III.Further, it has also been argued that merely by signing the agreement, the

Appellants herein cannot be said to have waived their right to Appeal the

compensation, especially since the fact that the ex-gratia payment

granted to the Pushtaini landowners was awarded after the agreement

was signed.

IV.It has also been contended that the ex-gratia payment as a form of

compensation does not exist in the Land Acquisition Act, and can only be

interpreted as one of the reasons for payment within Section 23 of the

Land Acquisition Act, and in such a scenario, the payment must be

universally made to all parties.

20

ARGUMENTS ADVANCED BY THE RESPONDENTS

21. The Ld. Counsel for the Respondents Contended that:

I.The UP Land Acquisition Rules have been formed under the Land

Acquisition Act,1894. These rules prescribe for method of compensation

between the acquirer and the acquiree through an agreement. The

Appellants, by way of an agreement, voluntarily accepted the

compensation being granted to them. Further, while accepting the

compensation, the Appellants herein also submitted an Affidavit stating

that the compensation is agreed upon and accepted by the parties. It was

only three years later that the Appellants decided to file a writ

challenging the compensation, after entering into the agreement and

explicitly agreeing to the compensation amount.

II.The Appellants had entered into an agreement as per the law of the land

and had accepted the compensation granted to them. In such a scenario,

there exists no legal remedy of the Appellants to re-open the agreement

on grounds of a subsequent increase in compensation to a different party.

There is no remedy to re-open the agreement by way of approaching the

Court in the statue.

III.The distinction created between the two classes of land owners has been

done on the basis of their residence. The base compensation given to

21

both the classes is the same, and only an additional 15% extra amount is

given to Pushtaini landowners as rehabilitation bonus, which is not a

necessity for the Gair-pushtaini landowners as they do not reside in the

concerned land and are not sons of the soil.

IV.As regards to the ex-gratia payment given to the Pushtaini landowners,

the same is merely an additional compensation based on the

classification between sons of the soils and mere investors in the land.

The payment is based on reasonable classification and is not violative of

Article 14.

Issues

22.In the aftermath of the aforesaid litigations in the High Court, the

following three questions arise for adjudication in these Appeals :-

I.Whether the Appellants, by signing the agreement,have waived their right

to seek for revised compensation?

II.Whether the classification made under the Land Acquisition Act, and the

UP Land Acquisition Rules,1997 between Pushtaini Landowners and

Gair-pushtaini Landowners for the payment of compensation at different

22

rates is liable to be struck down as violative of Article 14 of the

Constitution?

III. Whether the classification made by the Full-Bench of the High Court

between Pushtaini landowners and Gair-pushtaini landowners is in

contravention to the law laid down by this Hon’ble Court in the case of

Nagpur Improvement Trust and Another vs. Vithal Rao and Others (1973)

1 SCC 500?

23.We have heard, Shri Pradeep Kant, Learned Senior Counsel for the

appellants, Shri. Ravindra Kumar, learned Senior Counsel appearing for the

Greater Noida and Shri Ravindra Kumar Raizada, learned counsel for the State

of U.P./A.A.G., at great length.

24.At the outset, we would like to clarify that in the present appeals, we are

only concerned with the legality and validity of action of G. Noida paying an

enhanced compensation to the landholders by carving out an artificial class of

‘Pushtaini’ landholders from among the same class of landholders whose land

was acquired by the same notification for the same purpose. There is no

challenge to the validity of the acquisition itself as the same stands finally

settled by this Court.

23

Analysis

Whether the Appellants are bound by the compensation as per the

agreement under the Land Acquisition rules, and have waived off

their right to seek enhanced compensation?

25. It has been vehemently submitted on behalf of Greater Noida that the

appellants herein did not exhaust their remedy under Section 18 of the Land

Acquisition Act and approach the High Court, and has sidestepped a procedural

requirement. Section 18 of the 1894 Act reads as under :-

“Reference to Court.- (1) Any person interested who has not

accepted the award may, by written application to the

Collector, require that the matter be referred by the Collector

for the determination of the Court, whether his objection be

to the measurement of the land, the amount of the

compensation, the persons to whom it is payable, or the

apportionment of the compensation among the persons

interested.

(2) The application shall state the grounds on which

objection to the award is taken: Provided that every such

application shall be made,

(a) if the person making it was present or represented before

the Collector at the time when he made his award, within six

weeks from the date of the Collector's award;

(b) in other cases, within six weeks of the receipt of the

notice from the Collector under section 12, sub-section (2),

or within six months from the date of the Collector's award,

whichever period shall first expire.”

24

26.The first and foremost thing to be taken note of is that the nature of the

challenge in the Writ Petition filed by the appellants before the High Court was

based on violation of Article 14, which is a fundamental right enshrined in the

Constitution. Such a challenge, irrespective of the existence of any alternative

remedy under a statute cannot put a bar on the jurisdiction of the Constitutional

Courts.

27.The Respondent Authority argued that since the agreement was

consented to, no challenge could exist in the Court. This argument in the facts

of the case, has been raised only to be rejected. The issue involved in

adjudication is not in respect of an agreement entered into by the appellants.

Similar agreements were also entered into with the Authority by such identically

situated landholders who have been granted additional compensation

subsequent to the agreement by carving out a distinction on the basis of period

of residence/occupation of the land which was acquired by creating an artificial

classification of ‘Pushtaini’ and ‘Gair-Pushtaini’ landholders.

28.Furthermore, since the issue of additional compensation by making an

artificial classification of ‘pushtaini’ and ‘Gair-pushtani’ was not in existence at

the time of the agreement, there was no occasion to challenge the same.

25

29.Further, specifically in the context of the grant of ex-gratia payment, it is

to be noted that the said payment granted to Pushtaini landowners through a

separate notification, was assessed, and given, after the agreement was signed

by both, Pushtaini and Gair-pushtaini Landowners. The Appellants herein, under

those circumstances, could not have challenged the agreement vis a vis the ex-

gratia payment on grounds of violation of Article 14, when no such violation

existed at the time of the agreement. No man can be expected to predict a future

violation of their rights and file a pre-emptive appeal. This Court is reminded of

the words of Francis Bacon, who in the 17

th

century wrote about the link

between legal certainty and justice:

“For if the trumpet give an uncertain sound, who shall

prepare himself to the battle? So if the law give an uncertain

sound, who shall prepare to obey it? It ought therefore to

warn before it strikes... Let there be no authority to shed

blood; nor let sentence be pronounced in any Court upon

cases, except according to a known and certain law Nor

should a man be deprived of his life, who did not first know

that he was risking it.' (Quoted in Coquillette, Francis

Bacon pp 244 and 248, from Aphorism 8 and Aphorism 39?

A Treatise on Universal Justice).”

30.On the basis of the above-mentioned reasons, we are of the considered

opinion that the Appellants, because of their signing of the agreement, have not

forfeited their right to seek revised compensation, because ,the cause of action

26

accrued to them much after entering into the agreement. The issue no. 1 is

answered accordingly in the negative and in favour of the Appellants.

Whether the classification made by and executive fiat between Pushtaini

Landowners and Gair-pushtaini Landowners for payment of compensation

at different rates is liable to be struck down as violative of Article 14 of the

Constitution?

31.The High Court, while upholding the classification between ‘Pushtaini’

and ‘Gair-pushtaini’ landowners, stated that there is no discrimination being

caused to similarly situated parties, and the judgment rendered by the Division

Bench in the case of Smt. Madhuri Srivastava (Supra) lays down the correct

law. Thus, the Full Bench upheld the classification and negated the challenge

made to the said classification. The relevant paragraphs of the impugned

judgment are reproduced hereunder :-

“Before coming on merits of the case, it would be

appropriate to state that sovereign power of state to acquire

private property for public purpose is based upon maxim

"salus populi est suprema lax" means welfare of the public is

paramount law and maxim "necessita publica major est

quam privata" means public necessity is greater than

private. The maxim "eminent domain" (sabai bhumi Govind

Ki) means state is supreme owner of the land. Constitution

of India incorporates these maxims. Acquisition of private

property can be made by legislation, exercising powers

under Articles 245 and 246 of the Constitution. Subject

"acquisition and requisition of property for the purposes of

27

the Union" was mentioned as Entry No. 33 of List-I and

"acquisition and requisition of property except for the

purposes of the Union" was mentioned as Entry No. 36 of

List-II of the Seventh Schedule of Constitution. By Section 26

of Constitution (Seventh Amendment) Act, 1956, Entry No.

33 of List-I and Entry No. 36 of List-II were deleted and

Entry No. 42 of List-III of Seventh Schedule of the

Constitution was amended as "acquisition and requisition of

property". Acquisition of private parties can be made by

exercise of executive power under Article 298 of

Constitution. Union of India and State Governments can

acquire private property, exercising legislative or executive

powers.

While dealing with an issue pertaining to classification and

its reasonability, we must also keep in mind that the

governance is not a simple thing. It encounters and deals

with the problems which come from persons in an infinite

variety of relations. Classification is the recognition of those

relations, and, in making it a wide latitude of discretion and

judgment must be given.

Having considered all aspects of the matter by keeping in

mind the Constitutional provisions discussed above and also

the intent of the Act, 1894 especially the provisions of

Sections 23 and 24 of the Act, 1894, we are of considered

opinion that the classification introduced among the

Pushtaini and Gair-pushtaini farmers is reasonable with

intelligible differentia and that in no manner causes any

discrimination among the similarly situated person. The law

laid down in the case of Smt. Madhuri Srivastava (supra)

has taken adequate care of all these provisions while

concluding that the Pushtaini and Gairpushtaini farmers are

two different classes and the resolution to award additional

compensation on different rates is not at all discriminatory.”

32.To assess the validity of the impugned classification, we must put it

through the rigours of Article 14 and see whether it survives the baptism. It is a

28

well established principle of law, that the state, as per Article 14, cannot deny

equality before law and equal protection of the law.

REASONABLE CLASSIFICATION TEST

33.For any classification to survive the test of Article 14, the classification

must be based on intelligible differentia, and it must have a rational nexus to the

object sought to be achieved by the law. At this stage, it is important to note that

the object sought to be achieved must also be lawful, and if the object of the law

itself is found to be discriminatory, then such discrimination must be struck

down. This has been held in a catena of judgments.

34.The reasonable classification test was first introduced to Indian

Jurisprudence in the case of State Of West Bengal Vs. Anwar Ali Sarkar

7

. The

issue raised therein was against the Bengal Special Courts Act which was

enacted for the purpose of speedier trial of certain offences. This Act was

challenged on the touchstone of Article 14 on grounds of the Act giving

arbitrary powers to the state government. The Court, while dismissing the

appeal of the state held that:-

7 (1952) AIR 75

29

“It can be taken to be well settled that the principle

underlying the guarantee in Article 14 is not that the same

rules of law should be applicable to all persons within the

Indian territory or that the same remedies should be made

available to them irrespective of differences of

circumstances [Charanjit Lal Chowdhury v. Union of India,

1950 SCR 869 : 1950 SCC 833] . It only means that all

persons similarly circumstanced shall be treated alike both

in privileges conferred and liabilities imposed [Old

Dearborn Distributing Co. v. Seagram Distillers Corpn., 81

L Ed 109 : 299 US 183 (1936) : 1936 SCC OnLine US SC

145] . Equal laws would have to be applied to all in the

same situation, and there should be no discrimination

between one person and another if as regards the

subjectmatter of the legislation their position is

substantially the same. This brings in the question of

classification. As there is no infringement of the equal

protection rule, if the law deals alike with all of a certain

class, the legislature has the undoubted right of classifying

persons and placing those whose conditions are

substantially similar under the same rule of law, while

applying different rules to persons differently situated. It is

said that the entire problem under the equal protection

clause is one of classification or of drawing lines [ Dowling

: Cases on Constitutional Law, 4th Edn. 1139.]. In making

the classification the legislature cannot certainly be

expected to provide “abstract symmetry”. It can make and

set apart the classes according to the needs and exigencies

of the society and as suggested by experience. It can

recognise even “degrees of evil” [Skinner v. Oklahoma, 86

L Ed 1655 : 316 US 535 at p. 540 (1942) : 1942 SCC

OnLine US SC 125] , but the classification should never be

arbitrary, artificial or evasive. It must rest always upon real

and substantial distinction bearing a reasonable and just

relation to the thing in respect to which the classification is

made; and classification made without any reasonable basis

should be regarded as invalid [Southern Railway Co. v.

Greene, 54 L Ed 536 : 216 US 400 at p. 412 (1910) : 1910

SCC OnLine US SC 59] . These propositions have not been

controverted before us and it is not disputed also on behalf

of the respondents that the presumption is always in favour

30

of the constitutionality of an enactment and the burden is

upon him who attacks it, to show that there has been

transgression of constitutional principles.

I am not at all impressed by the argument of the learned

Attorney General that to enable the respondents to invoke

the protection of Article 14 of the Constitution it has got to

be shown that the legislation complained of is a piece of

“hostile” legislation. The expressions “discriminatory” and

“hostile” are found to be used by American Judges often

simultaneously and almost as synonymous expressions in

connection with discussions on the equal protection clause.

If a legislation is discriminatory and discriminates one

person or class of persons against others similarly situated

and denies to the former the privileges that are enjoyed by

the latter, it cannot but be regarded as “hostile” in the sense

that it affects injuriously the interests of that person or

class. Of course, if one's interests are not at all affected by a

particular piece of legislation, he may have no right to

complain. But if it is established that the person

complaining has been discriminated against as a result of

legislation and denied equal privileges with others

occupying the same position, I do not think that it is

incumbent upon him, before he can claim relief on the basis

of his fundamental rights, to assert and prove that in making

the law, the legislature was actuated by a hostile or inimical

intention against a particular person or class. For the same

reason I cannot agree with the learned Attorney General

that in cases like these, we should enquire as to what was

the dominant intention of the legislature in enacting the law

and that the operation of Article 14 would be excluded if it

is proved that the legislature had no intention to

discriminate, though discrimination was the necessary

consequence of the Act. When discrimination is alleged

against officials in carrying out the law, a question of

intention may be material in ascertaining whether the

officer acted mala fide or not [Sunday Lake Iron Co. v.

Wakefield, 62 L Ed 1154 : 247 US 350 (1918) : 1918 SCC

OnLine US SC 148] ; but no question of intention can arise

when discrimination follows or arises on the express terms

of the law itself .”

31

35.In the case of Rustom Cavasjee Cooper (Banks Nationalisation) v.

Union of India

8

, R.C.Cooper, who was the director of Central Bank of India

filed a petition against the Union of India challenging the provisions of The

Banking Companies (Acquisition and Transfer of Undertakings) Ordinance,

1969. The Court while deciding this case held that it cannot overlook the

violation of fundamental rights of the citizens on mere technicalities. It then

further went on to state that the Courts won’t look into the objects of the

impugned act and rather they will look into the effect of the impugned act. The

Court found the said Act in clear violation of Article 14 since only 14

banks were restrained from conducting banking business in the future

while other banks including foreign banks were allowed to continue Banking in

India. It has been observed in the said case as under :-

“By article 14 of the Constitution the State is enjoined not

to deny to any person equality before the law or the equal

protection of the laws within the territory of India. The

Article forbids class legislation, but not reasonable

classification in making laws. The test of permissible

classification under an Act lies in two cumulative

conditions: (1) classification under the Act must be founded

on an intelligible differentia distinguishing persons,

transactions or things grouped together from others left out

of the group; (ii) the differential has a rational relation to

the object sought to be achieved by the Act: there must be a

nexus between the basis of classification and the object of

the Act.

8 (1970) 1 SCC 248

32

The legislative policy as to the necessity is a matter of

legislative judgment and the Court will not examine the

propriety of it. The legislation need not be all embracing

and it is for the Legislature to determine what categories

will be embraced. In Dalmia case (Ram Krishna Dalmia v.

S.R. Tendolkar, 1959 SCR 279) it was said that the two tests

of classification were first that there should be an

intelligible differentia which distinguished persons or

things grouped from others left out and secondly the

differentia must have a rational relation to the object

sought to be achieved by the statute”

36.Most recently, a Constitution Bench of this Court in the case of Navtej

Singh Johar & Ors. Vs. Union of India Thr. Secretary, Ministry of Law and

Justice

9

, while considering the question of scrapping Section 377, IPC as

violative of Article 14 has detailed out the test of reasonable classification under

Article 14 as under :-

“We, first, must test the validity of Section 377 IPC on the

anvil of Article 14 of the Constitution. What Article 14

propounds is that “all like should be treated alike”. In other

words, it implies equal treatment for all equals. Though the

legislature is fully empowered to enact laws applicable to a

particular class, as in the case at hand in which Section 377

applies to citizens who indulge in carnal intercourse, yet the

classification, including the one made under Section 377

IPC, has to satisfy the twin conditions to the effect that the

classification must be founded on an intelligible differentia

and the said differentia must have a rational nexus with the

object sought to be achieved by the provision, that is,

Section 377 IPC.

Section 377 has consigned a group of citizens to the

margins. It has been destructive of their identities. By

imposing the sanctions of the law on consenting adults

involved in a sexual relationship, it has lent the authority of

9 (2018) 10 SCC 1

33

the State to perpetuate social stereotypes and encourage

discrimination. Gays, lesbians, bisexuals and transgenders

have been relegated to the anguish of closeted identities.

Sexual orientation has become a target for exploitation, if

not blackmail, in a networked and digital age. The impact of

Section 377 has travelled far beyond the punishment of an

offence. It has been destructive of an identity which is

crucial to a dignified existence”

37.In the case at hand, it has been held by the Full Bench of the High Court

that the classification between Pushtaini and Gair-pushtaini Landowners is

based on one class of landowners being sons of the soil, while the other class

being mere landowners, who are not directly attached to the land. Further, the

object of this classification, as stated by the full bench of the High Court, is to

rehabilitate the original residents, i.e the sons of the soil, who are likely to

become landless due to the acquisition of their land.

38.While prima facie, the classification and the object sought to be achieved

through the said classification seems reasonable, however, the devil lies in the

details. The justification given by the GNOIDA Authority, and the Full-bench of

the High Court assumes that only Pushtaini landowners permanently reside in

the subject land or that the subject land is the primary source of income only for

Pushtaini landowners, and this assumption has been backed by no empirical

data produced by the authority.

34

39.While the classification made by Greater Noida has been based on the object

of giving fair compensation, however, such a laudable object of the

classification would stand breached by the effects of such a classification,

creating a dissonance between the object and its effect. Many Gair-pushtaini

landholders, whose main area of residence or their main source of income is

also the subject land, would be subject to great discrimination and injustice, if

the same compensation that has been granted to the pushtaini landholders is not

extended to them.

40.Further, it is also to be noted that this Court at this stage cannot enter into

a fact finding mission to verify the claims of the respondent authority. To justify

such a classification, the respondent authority should have discharged their

burden of proof to back their claim. Mere statements without any evidence

cannot be accepted by us as justification for the said classification, which can

have a debilitating effect on those who are at the losing side of the

classification.

41.To survive the rigors of Article 14, the impugned classification must not

only make it through the abovementioned test, but also clear the Wednesbury

Principle, and by extension the Proportionality test.

35

WEDNESBURY PRINCIPLE

42.In the case of Associated Provincial Picture Houses Limited v.

Wednesbury Corporation

10

, the King’s Bench Division was tasked with the

question of under what circumstances can the Court interfere in cases of

administrative law making. While dealing with this, the Court held that

interference in administrative decisions was permissible, only if (i) the order

was contrary to law (ii) or relevant factors were not considered, or (iii)

irrelevant factors were considered or, (iv) or the decision was such that no other

authority under similar circumstances would have come to this conclusion. The

relevant paragraph of the judgment are reproduced herein:

“In the result, this appeal must be dismissed. I do not wish

to repeat myself but I will summarize once again the

principle applicable. The Court is entitled to investigate the

action of the local authority with a view to seeing whether

they have taken into account matters which they ought not to

take into account, or, conversely, have refused to take into

account or neglected to take into account matters which they

ought to take into account. Once that question is answered

in favour of the local authority, it may be still possible to say

that, although the local authority have kept within the four

corners of the matters which they ought to consider, they

have nevertheless come to a conclusion so unreasonable that

no reasonable authority could ever have come to it. In such

a case, again, I think the Court can interfere.

The power of the Court to interfere in each case is not as an

appellate authority to override a decision of the local

authority, but as a judicial authority which is concerned,

and concerned only, to see whether the local authority have

10 [1948] 1 KB 223

36

contravened the law by acting in excess of the powers which

Parliament has confided in them. The appeal must be

dismissed with costs.”

43.The Wednesbury principle was first introduced to Indian Jurisprudence in

the case of Om Kumar & Ors. Vs. Union Of India

11

. Here, again, a similar

question was posed before the Supreme Court, as to when can the Court

exercise its power of judicial review in cases of executive law making. This

Court, reiterated the same principles laid down in the Wednesbury case. The

relevant extracts from the said judgment is reproduced hereunder:-

“Lord Greene said in 1948 in the Wednesbury case [(1948)

1 KB 223 : (1947) 2 All ER 680 (CA)] that when a statute

gave discretion to an administrator to take a decision, the

scope of judicial review would remain limited. He said that

interference was not permissible unless one or the other of

the following conditions was satisfied, namely the order was

contrary to law, or relevant factors were not considered, or

irrelevant factors were considered; or the decision was one

which no reasonable person could have taken. These

principles were consistently followed in the UK and in India

to judge the validity of administrative action.”

44.The classification made by GNOIDA does not find its footing in the Land

Acquisition Act, or the UP-Land Acquisition Rules, and hence is contrary to

law. The said classification also suffers from not taking into account relevant

considerations. The Authority, without taking into account any empirical data,

11 (2001) 2 SCC 386

37

or calculating any possibility of Gair-pushtaini landowners being rendered

landless or without a primary source of income, made the impugned

classification. These relevant factors, by not being taken into account, can and

would cause great injustice to Gair-pushtaini landowners.

45.Further, GNOIDA, by arbitrarily classifying the landowners as Pushtaini

and Gair-pushtaini on the basis of a cut-off date, have taken into account an

irrelevant factor. The cut-off date by itself, without any context of the

landowners on ground, is not indicative of who the most adversely affected

landowners are. By not complying with these three factors while making the

classification, this Court must strike down such a classification.

46.While the Wednesbury principle has been used as a guiding principle of

interpretation, the Indian Court have now adopted a much more rigorous test,

i.e., is proportionality test, to see whether an administrative action can survive

the rigours of Article 14.

PROPORTIONALITY TEST

47.In the case of Om Kumar (Supra), this Court held that the administrative

measure must not be more drastic than is necessary for attaining the desired

38

result. This was the first formal introduction of the Proportionality test to Indian

Jurisprudence, however the Court pointed out that the proportionality test has

been used by the Indian Courts even before this judgment. The relevant

paragraphs from the said report reads as under :-

“27.The principle originated in Prussia in the nineteenth

century and has since been adopted in Germany, France and

other European countries. The European Court of Justice at

Luxembourg and the European Court of Human Rights at

Strasbourg have applied the principle while judging the

validity of administrative action. But even long before that,

the Indian Supreme Court has applied the principle of

“proportionality” to legislative action since 1950, as stated

in detail below.

28. By “proportionality”, we mean the question whether,

while regulating exercise of fundamental rights, the

appropriate or least-restrictive choice of measures has been

made by the legislature or the administrator so as to achieve

the object of the legislation or the purpose of the

administrative order, as the case may be. Under the

principle, the Court will see that the legislature and the

administrative authority “maintain a proper balance

between the adverse effects which the legislation or the

administrative order may have on the rights, liberties or

interests of persons keeping in mind the purpose which they

were intended to serve”. The legislature and the

administrative authority are, however, given an area of

discretion or a range of choices but as to whether the choice

made infringes the rights excessively or not is for the Court.

That is what is meant by proportionality.

29.The above principle of proportionality has been applied

by the European Court to protect the rights guaranteed

under the European Convention for the Protection of Human

Rights and Fundamental Freedoms, 1950 and in particular,

39

for considering whether restrictions imposed were

restrictions which were “necessary” — within Articles 8 to

11 of the said Convention [corresponding to our Article

19(1)] and to find out whether the restrictions imposed on

fundamental freedoms were more excessive than required.

(Handyside v. UK [(1976) 1 EHR 737] ). Articles 2 and 5 of

the Convention contain provisions similar to Article 21 of

our Constitution relating to life and liberty. The European

Court has applied the principle of proportionality also to

questions of discrimination under Article 14 of the

Convention (corresponding to Article 14 of our

Constitution). (See European Administrative Law by J.

Schwarze, 1992, pp. 677-866).

30. On account of a Chapter on Fundamental Rights in Part

III of our Constitution right from 1950, Indian Courts did

not suffer from the disability similar to the one experienced

by English Courts for declaring as unconstitutional

legislation on the principle of proportionality or reading

them in a manner consistent with the charter of rights. Ever

since 1950, the principle of “proportionality” has indeed

been applied vigorously to legislative (and administrative)

action in India. While dealing with the validity of legislation

infringing fundamental freedoms enumerated in Article

19(1) of the Constitution of India — such as freedom of

speech and expression, freedom to assemble peaceably,

freedom to form associations and unions, freedom to move

freely throughout the territory of India, freedom to reside

and settle in any part of India, — this Court has occasion to

consider whether the restrictions imposed by legislation

were disproportionate to the situation and were not the least

restrictive of the choices. The burden of proof to show that

the restriction was reasonable lay on the State. “Reasonable

restrictions” under Articles 19(2) to (6) could be imposed on

these freedoms only by legislation and Courts had occasion

throughout to consider the proportionality of the restrictions.

In numerous judgments of this Court, the extent to which

“reasonable restrictions” could be imposed was considered.

In Chintamanrao v. State of M.P. [1950 SCC 695 : AIR 1951

SC 118 : 1950 SCR 759] Mahajan, J. (as he then was)

observed that “reasonable restrictions” which the State

40

could impose on the fundamental rights “should not be

arbitrary or of an excessive nature, beyond what is required

in the interests of the public”.

31. “Reasonable” implied intelligent care and deliberations,

that is, the choice of a course which reason dictated.

Legislation which arbitrarily or excessively invaded the

right could not be said to contain the quality of

reasonableness unless it struck a proper balance between

the rights guaranteed and the control permissible under

Articles 19(2) to (6). Otherwise, it must be held to be

wanting in that quality. Patanjali Sastri, C.J. in State of

Madras v. V.G. Row [(1952) 1 SCC 410 : AIR 1952 SC 196 :

1952 SCR 597 : 1952 Cri LJ 966] , observed that the Court

must keep in mind the “nature of the right alleged to have

been infringed, the underlying purpose of the restrictions

imposed, the extent and urgency of the evil sought to be

remedied thereby, the disproportion of the imposition, the

prevailing conditions at the time”. This principle of

proportionality vis-àvis legislation was referred to by Jeevan

Reddy, J. in State of A.P. v. McDowell & Co. [(1996) 3 SCC

709] recently. This level of scrutiny has been a common

feature in the High Court and the Supreme Court in the last

fifty years. Decided cases run into thousands.

32. So far as Article 14 is concerned, the Courts in India

examined whether the classification was based on

intelligible differentia and whether the differentia had a

reasonable nexus with the object of the legislation.

Obviously, when the Courts considered the question whether

the classification was based on intelligible differentia, the

Courts were examining the validity of the differences and the

adequacy of the differences. This is again nothing but the

principle of proportionality. There are also cases where

legislation or rules have been struck down as being

arbitrary in the sense of being unreasonable [see Air India v.

Nergesh Meerza [(1981) 4 SCC 335 : 1981 SCC (L&S) 599]

(SCC at pp. 372-373)]. But this latter aspect of striking

down legislation only on the basis of “arbitrariness” has

been doubted in State of A.P. v. McDowell and Co. [(1996) 3

SCC 709] .

41

33. In Australia and Canada, the principle of proportionality

has been applied to test the validity of statutes [see Cunliffe

v. Commonwealth [(1994) 58 Aust LJ 791] Aust LJ (at 827,

839) (799, 810, 821)]. In R. v. Oakes [(1986) 26 DLR (4th)

200] Dickson, C.J. of the Canadian Supreme Court has

observed that there are three important components of the

proportionality test. First, the measures adopted must be

carefully designed to achieve the objective in question. They

must not be arbitrary, unfair or based on irrational

considerations. In short, they must be rationally connected

to the objective. Secondly, the means, must not only be

rationally connected to the objective in the first sense, but

should impair as little as possible the right to freedom in

question. Thirdly, there must be “proportionality” between

the effects of the measures and the objective. See also Ross v.

Brunswick School Dishut No. 15 [(1996) 1 SCR 825] (SCR

at p. 872) referring to proportionality. English Courts had

no occasion to apply this principle to legislation. The

aggrieved parties had to go to the European Court at

Strasbourg for a declaration.

34. In U.S.A., in City of Boerne v. Flores [(1997) 521 US

507] the principle of proportionality has been applied to

legislation by stating that “there must be congruence and

proportionality between the injury to be prevented or

remedied and the means adopted to that end”.

35. Thus, the principle that legislation relating to

restrictions on fundamental freedoms could be tested on the

anvil of “proportionality” has never been doubted in India.

This is called “primary” review by the Courts of the validity

of legislation which offended fundamental freedoms.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

45. Under Article 3(1) of the Human Rights Act, 1998 the

English Court can now declare the legislative action as

incompatible with the rights and freedoms referred to in the

schedule. The Minister is then to move Parliament for

necessary amendment to remove the incompatibility. While

doing so, the English Court, can now apply strict scrutiny or

proportionality to legislative and administrative action. The

42

principle is now treated as central to English law (See

Human Rights Law and Practice by Lord Lester of Herne

Hill, Q.C. & David Pannick QC, 1999, para 3.16). The more

the threshold of Wednesbury irrationality is lowered when

fundamental human rights are on play, the easier it will

become to establish judicial review as an effective remedy

with Article 13 of the 1998 Act (see, ibid, Supplement

August, 2000, para 4.13.12).

48.This test of proportionality has been developed by the Indian Courts

throughout the years and has now attained the form of a five-pronged test, as

stated in the K. S. Puttaswamy & Anr. Vs. Union of India & Ors.

12

judgment,

and more recently, in the Gujarat Mazdoor Sabha & Anr. Vs. State of

Gujarat

13

.

49.In K.S.Puttaswamy(Supra), a nine-Judge Bench of this Court while

deciding the question as to whether the Constitution of India guarantees to each

individual a fundamental right to privacy, expounded the ‘principle of

proportionality and legitimacy’ in relation to infringement of rights as a result of

State measures. It was held that proportionality is essential for protection from

arbitrary State action as it ensures that the nature and quality of the

encroachment on the right is in proportion to the purpose of law. While

12 (2017) 10 SCC 1

13 (2020) 10 SCC 459

43

summarizing the aforementioned principle into a four-pronged test, the Bench

held:

“…The action must be sanctioned by law;

The proposed action must be necessary in a democratic

society for a legitimate aim;

The extent of such interference must be proportionate to the

need for such interference;

There must be procedural guarantees against abuse of such

interference.”

50.In the case of Gujrat Mazdoor Sabha (Supra) during covid-19, the

Central Government had passed a notification severely affecting the pay of

unskilled workers, on the grounds of national emergency. This notification was

challenged on grounds of violation of Article 14, specifically in violation of the

principle of proportionality. The Court held that, in order to determine the

validity of state action that could infringe on fundamental rights, it must pass

the following conditions, namely, (i) The interfering with the fundamental rights

must have a state purpose, (ii) the said rights infringing measure must be based

on a rational nexus between the interference and the state aim,(iii) the measures

bust be necessary to achieve the state aim,(iv) the restrictions must be necessary

to protect the legitimate objective and (v) The state should provide sufficient

safeguards for the possibility of an abuse of such rights infringing interference.

44

On the basis of these conditions of proportionality, this Court struck down the

notification.

51.Although the fifth prong, as mentioned in the Gujarat Mazdoor Sabha

(Supra) has not been expressly mentioned in Puttaswamy, Chandrachud J (as

His Lordship then was), in our view, rightly has read that in in the Gujarat

Mazdoor Sabha case (supra) to complete the test. State action that leaves

sufficient room for abuse, thereby acting as a threat against free exercise of

fundamental rights, ought to necessarily be factored in in the delicate balancing

act that the judiciary is called upon to do in determining the constitutionality of

such state action - whether legislative, executive, administrative or otherwise.

The relevant paragraph of the judgment has been mentioned herein:

“The principle of proportionality has been recognized in a

slew of cases by this Court, most notably in the seven-judge

bench decision in K S Puttaswamy vs. Union of India. The

principle of proportionality envisages an analysis of the

following conditions in order to determine the validity of

state action that could impinge on fundamental rights:

(i) A law interfering with fundamental rights must be in

pursuance of a legitimate state aim;

(ii) The justification for rights-infringing measures that

interfere with or limit the exercise of fundamental rights and

liberties must be based on the existence of a rational

connection between those measures, the situation in fact

and the object sought to be achieved;

45

(iii) The measures must be necessary to achieve the object

and must not infringe rights to an extent greater than is

necessary to fulfil the aim;

(iv) Restrictions must not only serve legitimate purposes;

they must also be necessary to protect them; and

(v) The State should provide sufficient safeguards against

the abuse of such interference.

We are unable to find force in the arguments of the learned

counsel for the Respondent. The impugned notifications do

not serve any purpose, apart from reducing the overhead

costs of all factories in the State, without regard to the

nature of their manufactured products. It would be

fathomable, and within the PART G 30 realm of reasonable

possibility during a pandemic, if the factories producing

medical equipment such as life-saving drugs, personal

protective equipment or sanitisers, would be exempted by

way of Section 65(2), while justly compensating the workers

for supplying their valuable labour in a time of urgent need.

However, a blanket notification of exemption to all

factories, irrespective of the manufactured product, while

denying overtime to the workers, is indicative of the

intention to capitalize on the pandemic to force an already

worndown class of society, into the chains of servitude.”

52.We have already in the discussion for the reasonable classification test

held that the interfering law, i.e. the impugned notification that creates the

classification, does not have a rational nexus to the object sought to be

achieved, and thus, violates the first two prongs of the proportionality test.

53.We then come to the third and fourth prong of the proportionality test, i.e

whether the classification created by the Authority was a necessity to achieve

the state aim of compensating those landowners that are either direct residents

46

of the land or the land exists as their primary source of income and whether

such measure was proportional to the object sought to be achieved. For this, it is

pertinent to refer to Section 23 of the Act, which provides for matters to be

taken into account while determining the compensation. The said Section reads

as under : -

“23. Matters to be considered in determining compensation.

-

(1) In determining the amount of compensation to be

awarded for land acquired under this Act, the Court shall

take into consideration

first, the market value of the land at the date of the

publication of the [notification under section 4, sub-section

(1)];

secondly, the damage sustained by the person interested, by

reason of the taking of any standing crops trees which may

be on the land at the time of the Collector's taking

possession thereof;

thirdly, the damage (if any) sustained by the person

interested, at the time of the Collector's taking possession of

the land, by reason of serving such land from his other land;

fourthly, the damage (if any) sustained by the person

interested, at the time of the Collector's taking possession of

the land, by reason of the acquisition injuriously affecting

his other property, movable or immovable, in any other

manner, or his earnings;

fifthly, in consequence of the acquisition of the land by the

Collector, the person interested is compelled to change his

residence or place of business, the reasonable expenses (if

any) incidental to such change, and

47

sixthly, the damage (if any) bona fide resulting from

diminution of the profits of the land between the time of the

publication of the declaration under section 6 and the time

of the Collector's taking possession of the land.”

54.A bare perusal of Section 23 would show that, the grounds for

classification as purported by the GNOIDA authority, have already been

covered by Section 23 of the Act. The fifth point of the said Section squarely

covers the requirement of compensating for rehabilitation of the affected

landowners. In the presence of an already existing provision in the act, the

classification created by the GNOIDA authority, must exist in furtherance of the

said Section, and not in contrast of.

55.The classification, as discussed above, if allowed to exist, can lead to

several Gair-pushtaini landowners who may also need to be rehabilitated,

cannot rehabilitate themselves without compensation for the same. This

circumstance alone besides being discriminatroy pits the said classification

against Section 23 of the Act, causing an insubordination to the 1894 Act. Such

a mischief, if allowed to exist, would not only nullify the purpose of the Act, but

also violate the third and fourth principle of the proportionality test, and hence

is liable to be struck down.

48

56.Further, it is also important to note that the classification, even if allowed

to exist, does not come with any safeguards against its potential abuse. As

mentioned above, the said notification by way of its classification creates

disastrous mischief, and the notification does nothing to remedy such potential

abuse. No guidelines for the said classification exist, nor are there any bars

placed. If such classification is left unchecked, it may lead to bad precedence,

and disastrous ramifications in the future. This lack of substantive guidelines

also violates the fifth prong of the proportionality test.

57.On the basis of the abovementioned discussions emerging from the

settled principles, Issue no. 2 is answered in affirmative and in favour of the

Appellants herein, and the impugned classification is liable to be struck down as

violative of Article 14 of the Constitution of India.

Whether the classification made by the Full-Bench of the High Court

between Pushtaini landowners and Gair-pushtaini landowners is in

contravention to the law laid down by this Hon’ble Court in the case of

Nagpur Improvement Trust and another vs. Vithal Rao and others (1973) 1

SCC 500?

58. In the case of Nagpur Improvement Trust (Supra) this Hon’ble Court

was tasked to deal with the question of whether certain provisions the Nagpur

Improvement Trust Act, 1936 were in violation of Article 14. Here, the

49

impugned provisions of the said Act allowed the acquisition of lands at rates

lower than the rates as prescribed in the Land Acquisition Act. What is relevant

to our case, is that the Court, while deciding this matter, held that the authority,

while acquiring land, cannot distinguish between types of owners, as the object

of achieving land for public purposes is met with, irrespective of the type of

owner whose land is being acquired. The relevant paragraphs from the judgment

reads as under:-

“It is now well-settled that the State can make a reasonable

classification for the purpose of legislation. It is equally

well-settled that the classification in order to be reasonable

must satisfy two tests: (i) the classification must be founded

on intelligible differentia and (ii) the differentia must have a

rational relation with the object sought to be achieved by

the legislation in question.

In this connection it must be borne in mind that the object

itself should be lawful. The object itself cannot be

discriminatory, for otherwise, for instance, if the object is to

discriminate against one section of the minority the

discrimination cannot be justified on the ground that there

is a reasonable classification because it has rational

relation to the object sought to be achieved.

What can be reasonable classification for the purpose of

determining compensation if the object of the legislation is

to compulsorily acquire land for public purposes?

It would not be disputed that different principles of

compensation cannot be formulated for lands acquired on

the basis that the owner is old or young, healthy or ill, tall

or short, or whether the owner has inherited the property or

built it with his own efforts, or whether the owner is

50

politician or an advocate. Why is this sort of classification

not sustainable? Because the object being to compulsorily

acquire for a public purpose, the object is equally achieved

whether the land belongs to one type of owner or another

type.”

59.In our opinion, a bare reading of the abovementioned judgment makes it

amply clear that the classification made by the GNOIDA authority for the

purposes of awarding differential compensation is bad in law, and it is precisely

this kind of classification that has been barred. When the purpose of the

acquisition of the land is for the benefit of the public at large, then the nature of

the owner of the said land is inconsequential to the purpose. If such a

classification on the basis of the nature of owner is allowed, then on the same

grounds, there might be a possibility of future classifications where

powerholding members of the society may get away with a larger

compensation, and the marginalized may get lesser compensation. This is

precisely what this Court in the abovementioned judgment predicted, and to pre-

empt such arbitrary classification, clarified the position in law.

60.The Land Acquisition Act does not distinguish between classes of

owners, and uniformly provides compensation to all class of landowners. The

classification made between Pushtaini landowners and Gair-pushtaini

51

landowners, on the basis of the reasoning mentioned above, is violative of the

law laid down in the Nagpur Trust case (Supra) and Article 14 of the

Constitution.

Conclusion

61.In light of the above-mentioned reasoning, we are of the opinion that the

classification made by both the executive actions is bad in law, and is liable to

be set aside. The Land Acquisition Act does not envisage any differential

compensation on the basis of such classification, and hence, this Court must

infer the compensation to be provided by the executive actions within the

confines of Section 23 of the Act.

62.Section 23 of the Land Acquisition Act states out the grounds for granting

compensation in cases of acquisition of land under the Act. One such reason for

the grant of compensation is rehabilitation, and it is this need for granting

compensation for rehabilitation under the Act that is echoed by the impugned

notification. A bare reading of both the executive actions in consonance with

the Act would show that the need for giving compensation for rehabilitation is

valid in law and is backed by the parent statute. The mischief then, is only

52

limited to the arbitrary classification made by such actions. In such a case, we

are of the opinion that since the mischief lies only within the classification, it

can be severed, and the remaining part of the executive actions that sets out to

grant compensation for the purpose of rehabilitation remains valid in law.

63. Once the classification is removed, and the executive actions are read in

consonance with the parent act, we would see that since the Act, and now even

the executive actions do not discriminate in terms of compensation, the ex-

gratia payment and the increased base amount, as enunciated by the executive

actions, must be given to all landowners in the subject area.

64.At this stage, we would like to state that while the objective of the said

classification might have been noble, however, such classification only on the

basis of conjectures and surmises cannot be sustained. If a claim is being made

to differentiate between class of persons, such claim must be backed by

empirical data. While this Court is not a fact-finding Court and is a Court of

law, however, the law must also not be understood in isolation, but in the

context in which it exists, as the law does not exist like an object within the

statutes, but lives and evolves with the people it governs.

53

65.Further, in cases of administrative action, even if the classification has a

rational nexus to the objective of the notification, the classification must also be

legitimized by the parent statute. If the parent statute does not allow for a

classification, then, even if the classification vis-à-vis the notification is able to

pass the tests of Article 14, it would still be liable to struck down if the parent

statute does not allow for the same.

66. The establishment of Greater Noida, as discussed above, was done for a

noble purpose, i.e., to accommodate in the city all those who came travelling

from every corner of the country in search of a better life. While doing so

however, as can be seen in the present case, some residents whose land was

subject to acquisition in the pursuit of the said aim, were faced with

discrimination. In such circumstance, it becomes the duty of this Court to

dispense justice, and rectify the harm caused to those at the receiving end of the

discrimination.

67.In view of the above discussions, the impugned judgment passed by the

Full Bench of the High Court is not liable to be sustained and stands set aside.

As a consequence, the Writ Petition filed by the appellants before the High

54

Court stands allowed and the appellants are held entitled to the reliefs claimed

in the said Writ Petition.

68.Accordingly, the appeals stand allowed.

69.In the facts and circumstances, we do not make any order as to costs.

….……....….......................…,J.

(KRISHNA MURARI)

….…....….......................…,J.

(S. RAVINDRA BHAT)

NEW DELHI;

20

TH

FEBRUARY, 2023

55