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PETITIONER:

UNION OF INDIA & ANR.

Vs.

RESPONDENT:

RAGHUBIR SINGH (DEAD) BY LRS. ETC.

DATE OF JUDGMENT16/05/1989

BENCH:

PATHAK, R.S. (CJ)

BENCH:

PATHAK, R.S. (CJ)

VENKATARAMIAH, E.S. (J)

MUKHARJI, SABYASACHI (J)

MISRA RANGNATH

NATRAJAN, S. (J)

CITATION:

1989 AIR 1933 1989 SCR (3) 316

1989 SCC (2) 754 JT 1989 (2) 427

1989 SCALE (1)1337

CITATOR INFO :

RF 1990 SC 261 (20,21)

E 1990 SC 981 (9,24)

D 1991 SC 730 (7)

RF 1991 SC1893 (20,22)

F 1991 SC2027 (9)

RF 1992 SC1488 (8,14)

RF 1992 SC2219 (92)

ACT:

Land Acquisition (Amendment) Act, 1894: Sections 30(2)

and 15--Solatium payable under Section 23(2) increased to 30

per cent-Amending Section--Whether applicable to awards made

prior to April 30, 1982. Held applies to awards made by the

Collector or Court between April 30, 1982 and Sept. 1984 and

not before--Benefit extends to appeals taken from such

awards only.

Constitution of India--Articles 145, 137 and 141--Deci-

sion of a Division Bench rendered earlier in point of

time----Whether binding on a subsequent Division Bench

comprised of equal number of Judges or of more Judges.

HEADNOTE:

A common question of law having arisen in this group of

cases for determination by this Court, they were heard

together.

Lands of Respondents in Civil Appeal Nos. 2839-40 of

1989 were acquired under the Land Acquisition Act. The

Collector made the award for compensation on March 30, 1963

and on a reference, being made under Section 18 of the Act,

the Additional District Judge enhanced the compensation by

his order dated June 10, 1968. The Respondents appealed to

the High Court seeking further enhancement. During the

pendency of the appeal, Land Acquisition (Amendment) Bill

1982 was introduced on April 30, 1982 and became an Act on

Sept. 24, 1984. The High Court disposed of the appeal on

Dec. 4, 1984 and apart from raising the quantum of compensa-

tion, also awarded a solatium at 30 per cent in terms of the

Amendment Act 1984. The State appealed to this Court.

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The matter initially came up before a Division Bench on

September 23, 1985. The Bench had before it two decisions of

this Court wherein divergent views were expressed. The two

decisions were: In

K. Kamalajammanniavaru's (dead) by Lrs. v. Special Land

317

Acquisition Officer,, [1985] 1 SCC 582.

This Court (composed of.two Judges) took the view that

award of 30 per cent solatium under the amended Section

23(2) by the High Court or the Supreme Court were applicable

only where the award appealed against was made by the Col-

lector or the Court between April 30, 1982 and Sept. 24,

1984. In the second decision, Bhag Singh & Ors. v. Union

Territory of Chandigarh, [1985] 3 SCC 737, this Court

(comprised of three Judges) took a contrary view and ruled

that even if an award was made by the Collector or the Court

on or before April 1982 and an appeal against such award was

pending before the High Court or this Court on 30.4.1982 or

was filed subsequent to that date, the provisions of amended

Section 23(2) and 28 of the Land Acquisition Act would be

applicable as the appeal was a continuation of the reference

made under Section 18 and as such the appellate Court must

apply the amended provision on the date of the decision of

the appeal. In this way the decision in Kamalajammanniava-

ru's case was overruled by this Court in Bhag Singh's case

and the Court approved another decision of Division Bench

comprised of three Judges in Mohinder Singh's case (1986) 1,

SCC 365 which merely directed payment of enhanced solatium

and interest without giving any reasons.

In view of the conflicting decisions on the point of two

Judges Bench before, whom these cases come up for considera-

tion, referred to this Larger Bench the question: whether

under the Amended Section 23(2), the claimants were entitled

to solatium at 30 per cent of the market value irrespective

of the dates on which the land acquisition proceedings were

initiated or on the dates on which the award had been

passed.

Overruling the preliminary objection as to the maintain-

ability of the reference of matters to a larger Bench, this

Court disposing of the reference and directing that the

appeals be now listed for hearing on merits,

HELD: Solatium is awarded under sub-section (2) of

Section 23 of the Land Acquisition Act. Before the Amendment

Act was enacted, the Sub-section provided for solatium at 15

per cent of the market value. By the change introduced by

the Amendment Act the amount has been raised to 30 per cent

of the market value. Sub-section (2) of Section 30 of the

Amendment Act specifies the category of cases to which the

amended rate of solatium is attracted. [322D]

318

What Parliament intends to say is that the benefit of

Section 30(2) will be available to an award by the Collector

or the Court made between 30th April 1982 and 24th September

1984 or to an appellate order of the High Court or of the

Supreme Court which arises out of an award of the Collector

or the Court made between the two said dates. The word 'or',

is used with reference to the stage at which the proceeding

rests at the time when the benefit under Section 30(2) is

sought to be extended. If the proceeding has terminated with

the award of the Collector or of the Court made between the

aforesaid two dates, the benefit of Section 30(2) will be

applied to such award made between the aforesaid two dates.

If the proceeding has passed to the stage of appeal before

the High Court or the Supreme Court, it is at that stage

when the benefit of Section 30(2) will be applied. But in

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every case the award of the Collector or of the Court must

have been made between April 30, 1982 and September 24,

1984. [339D-G]

A pronouncement of law by a Division Bench of this Court

is binding on a Division Bench of the same or a smaller

number of Judges, and in order that such decision be bind-

ing, it is not necessary that it should be a decision ren-

dered by the full Court or a Constitution Bench of the

Court. For the purpose of imparting certainty and endowing

due authority, decisions of this Court in the future should

be rendered by Division Benches of at least three Judges

unless, for compelling reasons that is not conveniently

possible. [337C-D]

The Land Acquisition Bill 1982, was introduced in the

House of the People on 30th April, 1982 and upon enactment

the Land Acquisition Act, 1984, commenced operation with

effect from 24th Sept. 1984. Section 15 of the Amendment Act

amended Section 23(2) of the parent Act and substituted the

words "30 per cent" in place of the words "15 per cent".

Parliament intended that the benefit of the enhanced solati-

um should be made available albeit to a limited degree even

in respect of acquisition proceedings taken before the date.

It sought to effectuate that intention by enacting Section

30(2) in the Amendment Act. [337G-H; 338A]

There can be no doubt that the benefit of the enhanced

solatium is intended by Section 30(2) in respect of an award

made by the Collector between 30th April 1982 and 24th

September 1984. Likewise the benefit of the enhanced solati-

um is extended by Section 30(2) to the case of an award made

by the Court between April 30, 1982 and September 24, 1984,

even though it be upon reference from an award made before

April 30, 1982. [338E]

319

One of the functions of the Superior Judiciary in India

is to examine the competence and validity of legislation

both in point of legislative competence as well as its

consistency with the Fundamental Rights. In this regard the

Courts in India possess a power not known to the English

Courts. [323G-H]

Exp. Canon Selwyn, [1872] 36 JP 54 and Cheney v. Conn,

[1968] 1, All ER 779, referred to.

The range of judicial review recognised in the Superior

Judiciary of India is perhaps the widest and the most exten-

sive known to the world of law. The power extends to examin-

ing the validity of even an amendment to the Constitution

for now it has been repeatedly held that no Constitutional

amendment can be sustained which violates the basic struc-

ture of the Constitution. [324B]

His Holiness Kesavananda Bharti Sripadagalavaru v. State

of Kerala, [1973] Suppl. SCR 1; Smt. Indira Nehru Gandhi v.

Shri Raj Narain, [1976] 2 SCR 347; Minerva Mills Ltd. and

others v. Union of India and others, [1980] 2 SCC 591; S.P.

Sampath Kumar etc. v. Union of India and Ors., [1987] 1 SCR

435.

The Court overruled the statement of the law laid down

in the cases of State of Punjab v. Mohinder Singh & Anr. and

Bhag Singh and Others v. Union Territory of Chandigarh and

preferred the interpretation of Section 30(2) of the Amend-

ment Act rendered in K. Kamalajammanniavaru (dead) by Lrs.

v. Special Land Acquisition Officer.

Oliver Wendell Holmes, "The Common Law", p. 5; Oliver

Wendell Homes, "Common Carriers and the Common Law", [1943]

9 Curr. L.T. 387, 388; Julius Stone, "Legal Systems & Law-

yers Reasoning", p. 58-59; Roscoe Pound, "An Introduction to

the Philosophy of Law", p. 19; "The Judge as Law Maker", pp.

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25-6.

Myers v. Director of Public Prosecutions, L.R. 1965 A.C.

1001 & 1021; The Bengal Immunity Company Limited v. The

State of Bihar and Others, [1955] 2 SCR 603; Street Tramways

v. London County Council, 1898 A.C. 375; Radcliffe v. Ribble

Motor Services Ltd., 1939 A.C. 215; 245; Dr. Alan Paterson's

"Law Lords", [1982] pp. 156-157; Jones v. Secretary of State

for Social Services, [1972] A.C. at 966; Ross-Smith v.

Ross-Smith, [1963] A.C. 280, 303; Indyka v. Indyka, [1969] I

A.C. 33, 69; Construction by Jones, at 966; Steadman v.

Steadman, [1976] A.C. 536, 542; DPP v. Myers, [1965] A.C.

1001,

320

1022; Cassell v. Broome,/1972] A.C. 1027, 1086; Haughton v.

Smith, [1975] A.C. 476,500; Knullerv. DPP, [1973] A.C.

435,455; Conway v. Rimmer, [1968] A.C. 910, 938; Tramways

case, [1914] 18 C.L.R. 54; State of Washington v. Dawson &

Co., 264 U.S. 646, 68 L. Ed. 219; David Burnel v. Coronado

Oil & Gas Company, 285 U.S. 393, 76 L.Ed. 815; Compare

National Bank v. Whitney, 103 U.S. 99, 26 L.Ed. 443-444;

Compensation to Civil Servants, L.R. 1929 A.C. 242, A.I.R.

1929 P.C. 84, 87; Attorney-General of Ontario v. The Canada

Temperance Federation, L.R. 78 I.A. 10; Phanindra Chandra

Neogy v. The King, [1953] S.C.R. 1069; State of Bombay v.

The United Motors (India) Ltd., [1953] S.C.R. 1069; Maganlal

Chhagganlal (P) Ltd. v. Municipal Corporation of Greater

Bombay & Ors., [1975] 1 SCR 1; Lt. Col. Khajoor Singh v. The

Union of India & Anr., [1961] 2 SCR 828; Keshav Mills Compa-

ny v. Commissioner of Income Tax, [1965] 2 SCR 908, 921;

Sajjan Singh v. State of Rajasthan, [1965] 1 SCR 933,

947948; Girdhari Lal Gupta v.D.H. Mill, [1971] 3 SCR 748;

Pillani Investment Corporation Ltd. v.I.T.O. 'A' Ward,

Calcutta & Ant., [1972] 2 SCR 502; Ganga Sugar Company v.

State of Uttar Pradesh, [1980] 1 SCR 769, 782; Javed Ahmed

Abdul Hamid Pawala v. State of Maharashtra, AIR 1985 SC 231;

T.V. Vatheeswaran v. The State of Tamii Nadu, AIR 1983 SC

361; Sher Singh & Ors. v. State of Punjab, AIR 1983 SC 465;

Triveniben v. State of Gujarat, AIR 1989 SC 142; John Martin

v. The State of West Bengal, [1975] 3 SCR 211; Haradhan Saha

v. State of West Bengal, [1975] 1 SCR 778; Bhut Nath Mate v.

State of West Bengal, AIR 1974 SC 806; Mattulal v. Radhe

Lal, [1975] 1 SCR 127; Acharaya Maharajshri Narandraprasadji

Anandprasadji Maharaj etc. etc. v. The State of Gujarat &

Ors., [1975] 2 SCR 317; Union of India & Ors. v. Godfrey

Philips India Ltd., [1985] 4 SCC 369; Jit Ram v. State of

Haryana, [1980] 3 SCR 689; Motilal. Padampat Sugar Mills v.

State of U. P., [1979] 2 SCR 641.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2839-40

of 1989 etc.

From the Judgment and Order dated 6.12. 1984 of the

Delhi High Court in R.F.A. Nos. 113 and 114 of 1968.

K. Parasaran, Attorney General, T.S. Krishnamurthy Iyer,

B.R.L. Iyengar, M.S. Gujaral, F.S. Nariman, A.K. Ganguli, K.

Swamy, C.V. Subba Rao, R.D. Agrawala, P. Parmeshwaran, O.P.

Sharma, R.C. Gubrele, K.R. Gupta, R.K. Sharma, K.L. Rathee,

Chandulal Verma, Subhash Mittal, S. Balakrishnan, N.B.

Sinha, K.K. Gupta, Sanjiv B. Sinha, M.M. Kashyap, P.C.

Khunger, Swaraj

321

Kaushal, Pankaj Kalra, S.K. Bagga, Ravinder Narain, Sumeet

Kachwala, S. Sukumaran, K.R. Nagaraja, S.S. Javali, Ms. Lira

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Goswami, D.K. Das, B.P. Singh, Ranjit Kumar, Santosh Hegde,

M.N. Shroff, P.N. Misra, D.C. Taneja, P.K. Jena, A.K. Sanghi

and M. Veerappa for the appearing parties.

The Judgment of the Court was delivered by

PATHAK, CJ. The question of law referred to us for

decision in these cases is:

"Whether under the Land Acquisition Act, 1894

as amended by the Land Acquisition (Amendment)

Act, 1984 the claimants are entitled to sola-

tium at 30 per cent of the market value irre-

spective of the dates on which the acquisition

proceedings were initiated or the dates on

which the award had been passed"?

It would suffice if we briefly refer to the facts in the

Civil Appeals arising out of Special Leave Petitions Nos.

8194-8195 of 1985: Union of India & Another v. Raghubir

Singh.

The land belonging to the respondents in village Dhaka

was taken by compulsory acquisition initiated by a notifica-

tion under-s. 4 of the Land Acquisition Act, 1894 issued on

13 November, 1959. The award with regard to compensation was

made by the Collector on 30 March, 1963. A reference under-

s. 18 of the Act was disposed of by the Additional District

Judge on 10 June, 1968. He enhanced the compensation. The

respondents preferred an appeal to the High Court claiming

further compensation. During the pendency of the appeal the

Land Acquisition (Amendment) Bill 1982 was introduced in

Parliament on 30 April, 1982, and became law as the Land

Acquisition (Amendment) Act, 1984 when it received the

assent of the President on 24 September, 1984. The High

Court disposed of the appeal by its Judgment and Order dated

6 December, 1984. While it raised the rate of compensation,

it also raised the rate of interest payable on the compensa-

tion, and taking into account the change in the law effected

by the Land Acquisition (Amendment) Act, 1984 (referred to

hereinafter as "the Amendment Act") it awarded solatium at

30 per cent of the market value. The Judgment and Order of

the High Court is the subject of these appeals.

When these cases came up before a Bench of two learned

Judges

322

(E.S. Venkataramiah and R.B. Misra, JJ.) on 23 September,

1985, they referred to two earlier decisions of this Court

and expressed the view that the question set forth above

required re-examination by a larger Bench of five Judges. It

was further directed that the other questions involved in

the petitions would be considered after the aforesaid ques-

tion had been resolved by the larger Bench. The two deci-

sions referred to in the Order of the learned Judges are K.

Kamalajammanniavaru (dead) by Lrs. v. Special Land Acquisi-

tion Officer, [1985] 1 S.C.C. 582 decided by O. Chinnappa

Reddy and Sabyasachi Mukharji, JJ. on 14 February, 1985 and

Bhag Singh and Ors. v. Union Territory of Chandigarh, [1985]

3 S.C.C. 737 decided by P.N. Bhagwati, C.J., A.N. Sen and

D.P. Madon, JJ. on 14 August, 1985.

Solatium is awarded under sub-s. (2) of s. 23 of the

Land Acquisition Act. Before the Amendment Act was enacted

the sub-section provided for solatium at 15 per cent of the

market value. By the change introduced by the Amendment Act

the amount has been raised to 30 per cent of the market

value. Sub-s. (2) of s. 30 of the Amendment Act specifies

the category of cases to which the amended rate of solatium

is attracted. In K. Kamalajammanniavaru, (supra), the two

learned Judges held that sub-s. (2) of s. 30 referred to

orders made by the High Court or the Supreme Court in ap-

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peals against an award made between 30 April, 1982 and 22

September, 1984, and that therefore solatium at 30 per cent

alone pursuant to sub-s. (2) of s. 30 had to be awarded in

such cases only. In Bhag Singh (supra), however, the three

learned Judges held that sub-s. (2) of s. 30 referred to

proceedings relating to compensation pending on 30 April,

1982 or filed subsequent to that date, whether before the

Collector or before the Court or the High Court or the

Supreme Court, even if they had finally terminated before

the enactment of the Amending Act. In taking that view they

overruled K. Kamalajammanniavaru, (supra) and approved of

the opinion expressed in another case, State of Punjab v.

Mohinder Singh and another, [1986] 1 S.C.C. 365 decided by

S. Murtaza Fazal Ali, A. Varadarajan and Ranganath Misra,

JJ. on 1 May, 1985.

At the outset, a preliminary objection has been raised

by Shri B.R.L. Iyengar to the validity of the reference of

these cases to a larger Bench. He contends that the mere

circumstance that a Bench of two learned Judges finds itself

in doubt about the correctness of the view taken by a Bench

of three learned Judges should not provide reason for refer-

ring the matter to a larger Bench. The preliminary objection

raised by Shri Iyengar has been vigorously resisted by the

323

appellants. Having regard to the submissions made before us,

we think it necessary to lay down the law on the point.

India is governed by a judicial system identified by a

hierarchy of courts, where the doctrine of binding precedent

is a cardinal feature of its jurisprudence. It used to be

disputed that Judges make law. Today, it is no longer a

matter of doubt that a substantial volume of the law govern-

ing the lives of citizens and regulating the functions of

the State flows from the decisions of the superior courts.

"There was a time:' observed Lord Reid, "when it was thought

almost indecent to suggest that Judges make law--They only

declare it ........ But we do not believe in fairy tales

any more "The Judge as law Maker" p. 22." In countries such

as the United Kingdom, where Parliament as the legislative

organ is supreme and stands at the apex of the constitution-

al structure of the State, the role played by judicial law-

making is limited. In the first place the function of the

courts is restricted to the interpretation of laws made by

Parliament, and the courts have no power to question the

validity of Parliamentary statutes, the Diceyan dictum

holding true that the British Parliament is paramount and

all powerful. In the second place, the law enunciated in

every decision of the courts in England can be superseded by

an Act of Parliament. As Cockburn CJ. observed in Exp. Canon

Selwyn, [1872] 36 JP 54.

"There is no judicial body in the country by

which the validity of an Act of Parliament

could be questioned. An act of the Legislature

is superior in authority to any Court of Law".

And Ungoed Thomas J., in Cheney v. Conn, [1968] 1 All ER 779

referred to a Parliamentary statute as "the highest form of

law .....which prevails over every other form, of law." The

position is substantially different under a written Consti-

tution such as the one which governs us. The Constitution of

India, which represents the Supreme Law of the land, envis-

ages three distinct organs of the State, each with its own

distinctive functions, each a pillar of the State. Broadly,

while Parliament and the State Legislature in India enact

the law and the Executive government implements it, the

judiciary sits in judgment not only on the implementation of

the law by the Executive but also on the validity of the

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Legislation sought to be implemented. One of the functions

of the superior judiciary in India is to examine the compe-

tence and validity of legislation, both in point of legisla-

tive competence as well as its consistency with the Funda-

mental Rights. In this regard, the courts in India possess a

power not known to the English

324

Courts. Where a statute is declared invalid in India it

cannot be reinstated unless constitutional sanction is

obtained therefore by a constitutional amendment or an

appropriately modified version of the statute is enacted

which accords with constitutional prescription. The range of

judicial review recognised in the superior judiciary of

India is perhaps the widest and the most extensive known to

the world of law. The power extends to examining the validi-

ty of even an amendment to the Constitution, for now it has

been repeatedly held that no constitutional amendment can be

sustained which violates the basic structure of the Consti-

tution. (See His Holiness Kesavananda Bharati Sripadagalava-

ru v. State of Kerala, [1973] Suppl. SCR 1; Smt. Indira

Nehru Gandhi v. Shri Raj Narain, [1976] 2 SCR 347; Minerva

Mills Ltd. and others v. Union of India and others, [1980] 2

SCC 591 and recently in S.P. Sampath Kumar etc. v. Union of

India and Ors., [1987] 1 SCR 435. With this impressive

expanse of judicial power, it is only right that the superi-

or courts in India should be conscious of the enormous

responsibility which rests on them. This is specially true

of the Supreme Court, for as the highest Court in the entire

judicial system the law declared it is, by Article 141 of

the Constitution, binding on all courts within the territory

of India.

Taking note of the hierarchical character of the judi-

cial system in India, it is of paramount importance that the

law declared by this Court should be certain, clear and

consistent. It is commonly known that most decisions of the

courts are of significance not merely because they consti-

tute an adjudication on the rights of the parties and re-

solve the dispute between them, but also because in doing so

they embody a declaration of law operating as a binding

principle in future cases. In this latter aspect lies their

particular value in developing the jurisprudence of the law.

The doctrine of binding precedent has the merit of

promoting a certainty and consistency in judicial decisions,

and enables an organic development of the law, besides

providing assurance to the individual as to the consequence

of transaction forming part of his daily affairs. And,

therefore, the need for a clear and consistent enunciation

of legal principle in the decisions of a Court.

But like all principles evolved by man for the regula-

tion of the social order, the doctrine of binding precedent

is circumscribed in its governance by perceptible limita-

tions, limitations arising by reference to the need for re-

adjustment in a changing society, a re-adjustment of legal

norms demanded by a changed social context. This need for

325

adapting the law to new urges in society brings home the

truth of the Holmesian aphorism that "the life of the law

has not been logic it has been experience". Oliver Wendell

Holmes, "The Common Law" p. 5 and again when he declared in

another study that Oliver Wendell Holmes, "Common Carriers

and the Common Law", (1943) 9 Curr. L.T. 387, 388 "the law

is forever adopting new principles from life at one end,"

and "sloughing off" old ones at the other. Explaining the

conceptual import of what Holmes had said, Julius Stone

elaborated that it is by the introduction of new extra-legal

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propositions emerging from experience to serve as premises,

or by experience-guided choice between competing legal

propositions, rather than by the operation of logic upon

existing legal propositions, that the growth of law tends to

be determined. Julius Stone, "Legal Systems & Lawyers Rea-

soning", pp. 58-59.

Legal compulsions cannot be limited by existing legal

propositions, because there will always be, beyond the

frontiers of the existing law, new areas inviting judicial

scrutiny and judicial choice-making which could well affect

the validity of existing legal dogma. The search for solu-

tions responsive to a changed social era involves a search

not only among competing propositions of law, or competing

versions of a legal proposition, or the modalities of an

indeterminacy such as "fairness" or "reasonableness", but

also among propositions from outside the ruling law, corre-

sponding to the empirical knowledge or accepted values of

present time and place, relevant to the dispensing of jus-

tice within the new parameters.

The universe of problems presented for judicial choice-

making at the growing points of the law is an expanding

universe. The areas brought under control by accumulation of

past judicial choice may be large. Yet the areas newly

presented for still further choice, because of changing

social, economic and technological conditions are far from

inconsiderable. It has also to be remembered, that many

occasions for new options arise by the mere fact that no

generation looks out on the world from quite the same van-

tage-point as its predecessor, nor for the matter with the

same perception. A different vantage point or a different

quality of perception often reveals the need for choice-

making where formerly no alternatives, and no problems at

all, were Perceived. The extensiveness of the areas for

judicial choice at a particular time is a function not only

of the accumulation of past decisions, not only of changes

in the environment, but also of new insights and perspec-

tives both on old problems and on the new problems thrown up

by changes entering the cultural and social heritage.

326

Not infrequently, in the nature of things there is a

gravity-heavy inclination to follow the groove set by prece-

dential law. Yet a sensitive judicial conscience often

persuades the mind to search for a different set of norms

more responsive to the changed social context. The dilemma

before the Judge poses the task of finding a new equilibri-

um, prompted not seldom by the desire to reconcile opposing

mobilities. The competing goals, according to Dean Roscoe

Pound, invest the Judge with the responsibility "of proving

to mankind that the law was something fixed and settled,

whose authority was beyond question, while at the same time

enabling it to make constant readjustments and occasional

radical changes under the pressure of infinite and variable

human desires." Roscoe Pound, "an Introduction to the Phi-

losophy of Law" p. 19. The reconciliation suggested by Lord

Reid in "The Judges as Law Maker" pp. 25-6 lies in keeping

both objectives in view, "that the law shall be certain, and

that it shall be just move with the times." An elaboration

of his opinion is contained in Myers v. Director of Public

Prosecutions, L.R. 1965 A.C. 1001, where he expressed the

need for change in the law by the court and the limits

within which such change could be brought about. He said:

ibid at p. 1021.

"I have never taken a narrow view of the

functions of this House as an appellate tribu-

nal. The common law must be developed to meet

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changing economic conditions and habits of

thought, and I would not be deterred by ex-

pressions of opinion in this House in old

cases. But there are limits to what we can or

should do. If we are to extend the law it must

be by the development and application of

fundamental principles. We cannot introduce

arbitrary conditions or limitations: that must

be left to legislation. And if we do in effect

change the law, we ought in my opinion only to

do that in cases where our decision will

produce some finality or certainty."

Whatever the degree of success in resolving the dilemma, the

Court would do well to ensure that although the new legal

norm chosen in response to the changed social climate repre-

sents a departure from the previously ruling norm, it must,

nevertheless. carry within it the same principle of certain-

ty, clarity and stability.

The profound responsibility which is.borne by this

Court in its choice between earlier established standards

and the formulation of a new code of norms is all the more

sensitive and significant because the

327

response lies in relation to a rapidly changing social and

economic society. In a developing society such as India the

law does not assume its true function when it follows a

groove chased amidst a context which has long since crum-

bled. There will be found among some of the areas of the law

norms selected by a judicial choice educated in the experi-

ence and values of a world which passed away 40 years ago.

The social forces which demand attention in the cauldron of

change from which a new society is emerging appear to call

for new perceptions and new perspectives. The recognition

that the times are changing and that there is occasion for a

new jurisprudence to take birth is evidenced by what this

Court said in The Bengal Immunity Company Limited v. The

State of Bihar and Others, [1955] 2 SCR 603, when it ob-

served that it was not bound by its earlier judgments and

possessed the freedom to overrule its judgments when it

thought fit to do so to keep pace with the needs of changing

times. The acceptance of this principle ensured the preser-

vation and legitimation provided to the doctrine of binding

precedent, and therefore, certainty and finality in the law,

while permitting necessary scope for judicial creativity and

adaptability of the law to the changing demands of society.

The question then is not whether the Supreme Court is

bound by its own previous decisions. It is not. The question

is under what circumstances and within what limits and in

what manner should the highest Court over-turn its own

pronouncements.

In the examination of this question it would perhaps be

appropriate to refer to the response of other jurisdictions,

specially those with which the judicial system in India has

borne an historical relationship. The House of Lords in

England provides the extreme example of a judicial body

which until recently disclaimed the power to overrule it-

self. It used to be said that the House of Lords did never

overrule itself but only distinguished its earlier deci-

sions. An erroneous decision of the House of Lords could be

set right only by an Act of Parliament. (See Street Tramways

v. London County Council, [1898] A.C. 375 and Radcliffe v.

Ribble Motor Services Ltd., [1939] A.C. 215,245. ) Apparent-

ly bowing to the pressure of a reality forced upon it by

reason of a rapidly gathering change in the prevailing

socio-economic structure, on 26 July, 1966, Lord Gardiner,

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L.C., made the following statement on behalf of himself and

the Lords of Appeal in Ordinary:

"Their lordship regard the use of precedent as

an indispensable foundation upon which to

decide what is the law and its application to

individual cases. It provides at least

328

some degree of certainty upon which individu-

als can rely in the conduct of their affairs,

as well as a basis for orderly development of

legal rules.

Their lordships nevertheless recog-

nise that too rigid adherence to precedent may

lead to injustice in a particular case and

also unduly restrict the proper development of

the law. They propose therefore to modify

their present practice and, while treating

former decisions of this House as normally

binding, to depart from a previous decision

when it appears right to do so.

In this connection they will bear in

mind the danger of disturbing retrospectively

the basis on which contracts, settlements of

property and fiscal arrangements have been

entered into and also the especial need for

certainty as to the criminal Law."

Since then the House of Lords has framed guidelines in a

series of cases decided upto to 1975 and the guidelines have

been summarised in Dr. Alan Paterson's "Law Lords" 1982: pp.

156-157. He refers to several criteria articulated by Lord

Reid in those cases.

1. The freedom granted by the 1966 Practice Statement

ought to be exercised sparingly (the 'use sparingly' crite-

rion) (Jones v. Secretary of State for Social Services,

[1972] A.C. at 966.

2. A decision ought not to be overruled if to do so

would upset the legitimate expectations of people who have

entered into contracts or settlements or otherwise regulated

their affairs in reliance on the validity of that decision

(the 'legitimate expectations' criterion) (Ross Smith v.

Ross-Smith, [1963] A.C. 280, 303 and Indyka v. Indyka,

[1969] I A.C. 33, 69.)

3. A decision concerning questions of construction of

statute or other documents ought not to be overruled except

in rare and exceptional cases (the 'Construction' criterion)

Jones, at 966.

4(a) A decision ought not to be overruled if it would be

impracticable for the Lords to foresee the consequences of

departing from it (the 'unforseeable consequences' crite-

rion) (Steadman v. Steadman, [1976] A.C. 536,542. (b) A

decision ought not to be overruled if to do so would involve

a change that ought to be part of a

329

comprehensive reform of the law. Such changes are best done

'by legislation following on a wide survey of the whole

field' (the 'need for comprehensive reform' criterion) (DPP

v. Myers, [1965] A.C. 1001, 1022; Cassell v. Broome, [1972]

A.C. 1027, 11086 and Haughton v. Smith, [1975] A.C.

476,500).

5. In the interest of certainty, a decision ought not to

be overruled merely because the Law Lords consider that it

was wrongly decided. There must be some additional reasons

to justify such a step (the 'precedent merely wrong' crite-

rion) Knuller v. DPP, [1973] A .C. 435,455;

6. A decision ought to be overruled if it causes such

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great uncertainty in practice that the Parties' advisers are

unable to give any clear indication as to what the courts

will hold the law to be (the 'rectification of uncertainty'

criterion) Jones, at 966; Oldendroll & Co. v. Tradex Export,

S.A. 1974 479,533,535.

7. A decision ought to be overruled if .in relation to

some broad issue or principle it is not considered just or

in keeping with contemporary social conditions or modern

conceptions of public policy (the 'unjust or outmoded'

criterion) ibid Conway v. Rimmer, [1968] A.C. 910,938.

Dr. Paterson noted that between the years 1966 and 1988

there were twenty nine cases in which the House of Lords was

invited to overrule one of its own precedents, that the

House of Lords did so in eight of them, while in a further

ten cases at least one of the Law Lords was willing to

overrule the previous House of Lords precedent. In a consid-

erable number of other cases, however, the Law Lords seemed

to prefer to distinguish the earlier decisions rather than

overrule them.

The High Court of Australia, the highest Court in the

Commonwealth, has reserved to itself the power to reconsider

its own decision, but has laid down that the power should

not be exercised upon a mere suggestion that some or all the

member of the later Court would arrive at a different con-

clusion if the matter were res integra. In the Tramways

case, [1914] 18 C.L.R. 54, Griffith, C.J., while doing so

administered the following caution:

"In my opinion, it is impossible to maintain

as an abstract proposition that Court is

either legally or technically bound by previ-

ous decisions. Indeed, it may, in a proper

case, be

330

its duty to disregard them. But the rule

should be applied with great caution, and only

when the previous decision is manifestly

wrong, as, for instance, if it proceeded upon

the mistaken assumption of the continuance of

a repealed or expired Statute, or is contrary

to a decision of another Court which this

Court is bound to follow; not, I think, upon a

mere suggestion, that some or all of the

members of the later Court might arrive at a

different conclusion if the matter was res

integra. Otherwise there would be grate danger

of want of continuity in the interpretation of

law."

In the same case, Barton, J. observed at p. 69:

" ..... I would say that I never thought

that it was not open to this Court to review

its previous decisions upon good cause. The

question is not whether the Court can do so,

but whether it will, having due regard to the

need for continuity and consistency in the

judicial decision. Changes in the number of

appointed Justices can, I take it, never of

themselves furnish a reason for review .....

But the Court can always listen to argument as

to whether it ought to review a particular

decision, and the strongest reason for an

overruling is that a decision is manifestly

wrong and its continuance is injurious to the

public interest".

In the United States of America the Supreme Court has

explicitly overruled its prior decision in a number of cases

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and reference will be found to them in the judgment of

Brandeis, J. in State of Washington v. Dawson & Co., 264

U.S. 646; 68 L.Ed. 219 where he said:

"The doctrine of Stare decisis should not

deter us from overruling that case and those

which follow it. The decisions are recent

ones. They have not been acquiesced in. They

have not created a rule of property around

which vested interests have clustered. They

affect solely matters of a transitory nature.

On the other hand, they affect seriously the

lives of men, women and children, and the

general welfare. Stare decisis is ordinarily,

a wise rule of action. But it is not a univer-

sal, inexorable command. The instances in

which the Courts have disregarded its admonition a

re

many."

331

Elaborating his point in his dissenting judgment in David

Burnel v. Coronado Oil & Gas Company, 285 U.S. 393; 76 L.Ed.

815, Brandeis, J. observed:

"Stare decisis usually the wise policy, because in most

matters it is more important that the applicable rule of law

be settled right. Compare National Bank v. Whitney, 103 U.S.

99; 26 L.Ed. 443-444. This is commonly true even where the

error is a matter of serious concern, provided correction

can be had by legislation. But in cases involving the Feder-

al Constitution, where correction through legislative action

is practically impossible, this Court has often overruled

its earlier decisions. The Court bows to the lessons of

experience and the force of better reasoning recognising

that the process of trial and error, so fruitful in the

physical sciences, is appropriate also in the judicial

function."

The Judicial. Committee of the Privy Council also took

the view that it was not bound in law by its earlier deci-

sions, but in In re Compensation to Civil Servants, L.R.

1929 A.C. 242; A.I.R. 1929 P.C. 84, 87 it declared that it

"would hesitate long before disturbing a solemn decision by

a previous Board, which raised an identical or even a simi-

lar issue for determination" and reiterated that reservation

in the Attorney-General of Ontario v. The Canada Temperance

Federation, L.R. 76 Q.A. 10 and Phanindra Chandra Neogy v.

The King, [1953] SCR 1069.

These cases from England, Australia and the United

States were considered by this Court in The Bengal Immunity

Company Limited v. The State of Bihar and others, (supra),

perhaps the first recorded instance of the Supreme Court in

this country being called upon to consider whether it could

overrule an earlier decision rendered by it. A Bench of

seven Judges assembled to consider whether the majority

decision of a Constitution Bench of five Judges in State of

Bombay v. The United Motors (India) Ltd., [1953] S.C.R. 1069

should be reconsidered. Four Judges of the Bench of seven

said it should and voted to overrule the majority decision

in the United Motors, (supra). The remaining three voted to

the contrary. Das, Acting C.J., speaking for himself and on

behalf of Bose, Bhagwati and Jafar Imam, JJ, preferred the

approach adopted by the United States Supreme Court since,

in the view of that learned Judge, the position in India

approximated more closely to that obtaining in the United

states rather than to the position in England, where Parlia-

ment could rectify the situation by a simple majority, and

to that in Australia, where the mistake could be

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332

corrected in appeal to the Privy Council. The learned Judge

observed: "There is nothing in our Constitution which pre-

vents us from departing from a previous decision if we are

convinced of its error and its baneful effect on the general

interests of the public." And reference was made to the

circumstance that Article 141 of the Constitution made the

law declared by this Court binding on all Courts in India.

Speaking with reference to the specific case before the

Court, the learned Judge referred to the far-reaching effect

of the earlier decision in the United Motors (supra) on the

general body of the consuming public, and that the error

committed in the earlier decision would result in perpetuat-

ing a tax burden erroneously imposed on the people, giving

rise to a consequence "manifestly and wholly unauthorised."

The learned Judge observed:

"It is not an ordinary pronouncement declaring the

rights of two private individuals inter se. It involves an

adjudication on the taxing power of the States as against

the consuming public generally. If the decision is errone-

ous, as indeed we conceive it to be, we owe it to the public

to protect them against the illegal tax burdens which the

States are seeking to impose on the strength of that errone-

ous recentdecision". Cautioned that the Court should not

differ merely because a contrary view appeared preferable,

the learned Judge affirmed that "we should not lightly

dissent from a previous pronouncement of this Court." But if

the previous decision was plainly erroneous, he pointed out,

there was a duty on the Court to say so and not perpetuate

the mistake. The appeal to the principle of stare decisis

was rejected on the ground that (a) the decision intended to

be overruled was a very recent decision and it did not

involve overruling a series of decisions, and (b) the doc-

trine of stare decisis was not an inflexible rule, and must,

in any event, yield where following it would result in

perpetuating an error to the detriment of the general wel-

fare of the public or a considerable section thereof.

Since then the question as to when should the Supreme

Court overrule its own decision has been considered in

several cases. Relying on the Bengal Immunity case, Khanna,

J. remarked that certainly in the law, which was an essen-

tial ingredient of the Rule of Law, would be considerably

eroded if the highest court of the land lightly overruled

the view expressed by it in earlier cases. One instance

where such overruling could be permissible was a situation

where contextual values giving birth to the earlier view had

altered substantially since.

333

In Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of

Greater Bombay & Ors., [1975] 1 SCR 1 he explained:

"Some new aspects may come to light and it may become essen-

tial to cover fresh grounds to meet the new situations or to

overcome difficulties which did not manifest themselves or

were not taken into account when the earlier view was pro-

pounded. Precedents have a value and the ratio decidendi of

a case can no doubt be of assistance in the decision of

future cases. At the same time we have to, as observed by

Cardozo, guard against the notion that because a principle

has been formulated as the ratio decidendi of a given prob-

lem, it is therefore to be applied as a solvent of other

problems, regardless of consequences, regardless of deflect-

ing factors, inflexibly. and automatically, in all its

pristine generality (see Selected Writings, p. 31). As in

life so in law things are not static."

In Lt. Col. Khajoor Singh v. The Union of India & Anoth-

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er, [1961] 2 SCR 828 the majority of this court emphasised

that the court, should not depart from an interpretation

given in an earlier judgment of the court unless there was a

fair amount of unanimity that the earlier decision was

manifestly wrong. In Keshav Mills Company v. Commissioner of

Income Tax, [1965] 2 SCR 908,921 this court observed that a

revision of its earlier decision would be justified if there

were compelling and substantial reasons to do so. In Sajjan

Singh v. State of Rajasthan, [1965] 1 SCR 933,947-948 the

court laid down the test: 'Is it absolutely necessary and

essential that the question already decided should be reo-

pened?', and went on to observe: 'the answer to this ques-

tion would depend on the nature of the infirmity alleged in

the earlier decision, its impact on public good and the

validity and compelling character of the considerations

urged in support of the contrary view.' There can be no

doubt, as was observed in Girdhari Lal Gupta v. D.H. Mill,

[1971] 3 SCR 748 that where an earlier relevant statutory

provision has not been brought to the notice of the court,

the decision may be reviewed, or as in Pillani Investment

Corporation Ltd. v. I.T.O. 'A' Ward, Calcutta & Anr., [1972]

2 SCR 502, if a vital point was not considered. A more

compendious examination of the problem was undertaken in

Keshav Mills Company v. Commissioner of Income Tax, (supra)

where the Court pointed out:

"It is not possible or desirable, and in any case it would

be inexpedient to lay down any principles which should

334

govern the approach of the Court in dealing with the ques-

tion of reviewing and revising its earlier decisions. It

would always depend upon several relevant

considerations:--What is the nature of the infirmity or

error on which a plea for a review and revision of the

earlier view is based? On the earlier occasion, did some

patent aspects of the question remain unnoticed, or was the

attention of the Court not drawn to any relevant and materi-

al statutory provision, or was any previous decision of this

Court bearing on the point not noticed? Is the court hearing

such plea fairly unanimous that there is such an error in

the earlier view? What would be the impact of the error on

the general administration of law or on public good? Has the

earlier decision been followed on subsequent occasions

either by this Court or by the High Courts? And, would the

reversal of the earlier decision lead to public inconven-

ience, hardship or mischief? These and other relevant con-

siderations must be carefully borne in mind whenever this

Court is called upon to exercise its jurisdiction to review

and revise its earlier decisions. These considerations

become still more significant when the earlier decision

happens to be a unanimous decision of the Bench of five

learned Judges of this Court."

Much importance has been laid on observing the finality

of decisions rendered by the Constitution Bench of this

Court, and in Ganga Sugar Company v. State of Uttar Pradesh,

[1980] 1 SCR 769, 782 the Court held against the finality

only where the subject was 'of such fundamental importance

to national life or the reasoning is so plainly erroneous in

the light of later thought that it is wiser to be ultimately

right rather than to be consistently wrong'.

It is not necessary to refer to all the cases on the

point. The broad guidelines are easily deducible from what

has gone before. The possibility of further defining these

guiding principles can be envisaged with further juridical

experience, and when common jurisprudential values linking

different national systems of law may make a consensual

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pattern possible. But that lies in the future.

There was some debate on the question whether a Division

Bench of Judges is obliged to follow the law laid down by a

Division Bench of a larger number of Judges. Doubt has

arisen on the point because of certain observations made by

O. Chinnappa Reddy, J. in

335

Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, AIR

1985 SC 23 1. Earlier, a Division Bench of two Judges, of

whom he was one, had expressed the view in T.V. Vatheeswaran

v. The State of Tamil Nadu, AIR 1983 SC 361 that delay

exceeding two years in the execution of a sentence of death

should be considered sufficient to entitle a person under

sentence of death to invoke Article 21 of the Constitution

and demand the quashing of the sentence of death. This would

be so, he observed, even if the delay in the execution was

occasioned by the time necessary for filing an appeal or for

considering the reprieve of the accused or some other cause

for which the accused himself may be responsible. This view

was found unacceptable by a Bench of three Judges in Sher

Singh & Ors. v. State of Punjab, AIR 1983 SC 465 where the

learned Judges observed that no hard and fast rule could be

laid down in the matter. In direct disagreement with the

view in T.V. Vatheeswaran, (supra), the learned Judges said

that account had to be taken of the time occupied by pro-

ceedings in the High Court and in the Supreme Court and

before the executive authorities, and it was relevant to

consider whether the delay was attributable to the conduct

of the accused. As a member of another Bench of two Judges,

in Javed Ahmed Abdul Hamid Pawala, (supra) O. Chinnappa

Reddy, J. questioned the validity of the observations made

in Sher Singh, (supra) and went on to note, without express-

ing any concluded opinion on the point, that it was a seri-

ous question "whether a Division Bench of three Judges could

purport to overrule the judgment of a Division Bench of two

Judges merely because there is larger than two. The Court

sits in Divisions of two and three Judges for the sake of

convenience and it may be inappropriate for a Division Bench

of three Judges to purport to overrule the decision of a

Division Bench of two Judges. Vide Young v. Bristol Aero-

plane Co. Ltd., [1944] 2 All ER 293. It may be otherwise

where a Full Bench or a Constitution Bench does so." It is

pertinent to record here that because of the doubt cast on

the validity of the opinion in Sher Singh, (supra), the

question of the effect of delay on the execution of a death

sentence was referred to a Division Bench of five Judges,

and in Triveniben v. State of Gujarat, AIR 1989 SC 142 the

Constitution Bench overruled T.V. Vatheeswaran, (supra).

What then should be the position in regard to the effect

of the law pronounced by a Division Bench in relation to a

case raising the same point subsequently before a Division

Bench of a smaller number of Judges? There is no constitu-

tional or statutory prescription in the matter, and the

point is governed entirely by the practice in India of the

Courts sanctified by repeated affirmation over a century of

time. It cannot be doubted that in order to promote consist-

ency and certainty

336

in the law laid down by a superior Court, the ideal condi-

tion would be that the entire Court should sit in all cases

to decide questions of law, and for that reason the Supreme

Court of the United States does so. But having regard to the

volume of work demanding the attention of the Court, it has

been found necessary in India as a general rule of practice

and convenience that the Court should sit in Divisions, each

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Division being constituted of Judges whose number may be

determined by the exigencies of judicial need, by the nature

of the case including any statutory mandate relative there-

to, and by such other considerations which the Chief Jus-

tice, in whom such authority devolves by convention, may

find most appropriate. It is in order to guard against the

possibility of inconsistent decisions on points of law by

different Division Benches that the rule has been evolved,

in order to promote consistency and certainty in the devel-

opment of the law and its contemporary status, that the

statement of the law by a Division Bench is considered

binding on a Division Bench of the same or lesser number of

Judges. This principle has been followed in India by several

generations of Judges. We may refer to a few of the recent

cases on the point. In John Martin v. The State of West

Bengal, [1975] 3 SCR 211 a Division Bench of three Judges

found it right to follow the law declared in Haradhan Saha

v. State of West Bengal, [1975] 1 SCR 778 decided by a

Division Bench of five Judges, in preference to Bhut Nath

Mate v. State of West Bengal, AIR 1974 SC 806 decided by a

Division Bench of two Judges. Again in Smt. India Nehru

Gandhi v. Shri Raj Narain, [1976] 2 SCR 347 Beg, J. held

that the Constitution Bench of five Judges was bound by the

Constitution Bench 01' thirteen Judges in His Holiness

Kesavananda Bharati Sripadagalavaru v. State of Kerala,

[1973] Suppl. 1 SCR. In Ganapati Sitaram Balvalkar & Anr. v.

Waman Shripad Mage (Since Dead) Through Lrs., [1981] 4 SCC

143 this Court expressly stated that the view taken on a

point of law by a Division Bench of four Judges of this

Court was binding on a Division Bench of three Judges of the

Court. And in Mattulal v. Radhe Lal, [1975] 1 SCR 127 this

Court specifically observed that where the view expressed by

two different Division Benches of this Court could not be

reconciled, the pronouncement of a Division Bench of a

larger number of Judges had to be, preferred over the deci-

sion of a Division Bench of a smaller number of Judges. This

Court also laid down in Acharaya Maharajshri Narandrapra-

sadji AnandprasadjiMaharaj etc. etc. v. The State of Gujarat

& Ors., [1975] 2 SCR 317 that even where the strength of two

differing Division Benches consisted of the same number of

Judges, it was not open to one Division Bench to decide the

correctness or other-wise of the views of the other. The

principle was reaffirmed in Union of India & Ors. v. Godfrey

Philips India Ltd., [1985] 4

337

SCC 369 which noted that a Division Bench of two Judges of

this Court in Jit Ram v. State of Haryana, [1980] 3 SCR 689

had differed from the view taken by an earlier Division

Bench of two Judges in Motilal Padampat Sugar Mills v. State

of U.P., [1979] 2 SCR 641 on the point whether the doctrine

of promissory estoppel could be defeated by invoking the

defence of executive necessity, and holding that to do so

was wholly unacceptable reference was made to the well

accepted and desirable practice of the later Bench referring

the case to a larger Bench when the learned Judges found

that the situation called for such reference.

We are of opinion that a pronouncement of law by a

Division Bench of this Court is binding on a Division Bench

of the same or a smaller number of Judges, and in order that

such decision be binding, it is not necessary that it should

be a decision rendered by the Full Court or a Constitution

Bench of the Court. We would, however, like to think that

for the purpose of imparting certainty and endowing due

authority decisions of this Court in the future should be

rendered by Division Benches of at least three Judges un-

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less, for compelling reasons that is not conveniently possi-

ble.

Upon the aforesaid considerations, and in view of the

nature and potential of the questions raised in these cases

we are of the view that there was sufficient justification

for the order dated 23 September, 1985 made by the Bench of

two learned judges referring these cases to a larger Bench

for reconsideration of the question decided in K. Kamalajam-

mannivaru (dead) by Lrs., (supra) and Bhag Singh and Ors.,

(supra). The preliminary objection raised by learned counsel

for the respondents to the validity of the reference is

overrruled.

We now come to the merits of the reference. The refer-

ence is limited to the interpretation of s. 30(2) of the

Land Acquisition (Amendment) Act of 1984. Before the enact-

ment of the Amendment Act, solatium was provided under s.

23(2) of the Land Acquisition Act (shortly, "the parent

Act") at 15% on the market value of the Land computed in

accordance with s. 23(1) of the Act, the solatium being

provided in consideration of the compulsory nature of the

acquisition. The Land Acquisition Amendment Bill, 1982 was

introduced in the House of the People on 30 April, 1982 and

upon enactment the Land Acquisition Amendment Act 1984

commenced operation with effect from 24 September, 1984. S.

15 of the Amendment Act amended s. 23(2) of the parent Act

and substituted the words '30 per centum' in place of the

words '15 per centum'. Parliament intended that the be-

338

nefit of the enhanced solatium should be made available

albeit to a limited degree, even in respect of acquisition

proceedings taken before that date. It sought to effectuate

that intention by enacting s. 30(2) in the Amendment Act, S.

30(2) of the Amendment Act provides:

"(2) the provisions of sub-s. (2) of s. 23 ......of

the principal Act, as amended by clause (b) of s.

15 ........of this Act ....... shall apply and shall be

deemed to have applied, also to, and in relation to, any

award made by the Collector or Court or to any order passed

by the High Court or Supreme Court in appeal against any

such award under the provisions of the principal Act after

the 30th day of April, 1982 [the date of introduction of the

Land Acquisition (Amendment) Bill, 1982, in the House of the

People] and before the commencement of this Act."

In construing s. 30(2), it is just as well to be clear that

the award made by the Collector referred to here is the

award made by the Collector under s. 11 of the parent Act,

and the award made by the Court is the award made by the

Principal Civil Court of Original Jurisdiction under s. 23

of the parent Act on a reference made to it by the Collector

under s. 19 of the parent Act. There can be no doubt that

the benefit of the enhanced solatium is intended by s. 30(2)

in respect of an award made by the Collector between 30

April 1982 and 24 September, 1984. Likewise the benefit of

the enhanced solatium is extended by s. 30(2) to the case of

an award made by the Court between 30 April 1982 and .24

September 1984, even though it be upon reference from an

award made before 30 April, 1982.

The question is: what is the meaning of the words "or to

any order passed by the High Court or Supreme Court on

appeal against any such award?" Are they limited, as con-

tended by the appellants, to appeals against an award of the

Collector or the Court made between 30 April 1982 and 24

September 1984, or do they include also, as contended by the

respondents, appeals disposed of between 30 April, 1982 and

24 September 1984 even though arising out of awards of the

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Collector or the Court made before 30 April, 1982. We are of

opinion that the interpretation placed by the appellants

should be preferred over that suggested by the respondents.

Parliament has identified the appeal before the High Court

and the appeal before the Supreme Court by describing it as

an appeal against 'any such award'. The submission on behalf

of the respondents is that the words 'any such award' mean

the award made by the Collector or Court, and carry no

339

greater limiting sense; and that in this context, upon the

language of s. 30(2), the order in appeal is an appellate

order made between 30 April 1982 and 24-September 1984--in

which case the related award of the Collector or of the

Court may have been made before 30 April 1982. To our mind,

the words 'any such award' cannot bear the broad meaning

suggested by learned counsel for the respondents. No such

words of description by way of identifying the appellate

order of the High Court or of the Supreme Court were neces-

sary. Plainly, having regard to the existing hierarchical

structure of for a contemplated in the parent Act those

appellate orders could only be orders arising in appeal

against the award of the Collector or of the Court. The

words 'any such award' are intended to have deeper signifi-

cance, and in the context in which those words appear in s.

30(2) it is clear that they are intended to refer to awards

made by the Collector or Court between 30 April, 1982 and 24

September, 1984. In other words s. 30(2) of the Amendment

Act extends the benefit of the enhanced solatium to cases

where the award by the Collector or by the Court is made

between 30 April, 1982 and 24 September, 1984 or to appeals

against such awards decided by the High Court and the Su-

preme Court whether the decisions of the High Court or the

Supreme Court are rendered before 24 September, 1984 or

after that date. All that is material is that the award by

the Collector or by the Court should have been made between

30 April, 1982 and 24 September, 1984. We find ourselves in

agreement with the conclusion reached by this Court in K.

Kamalajammanniavaru (dead) by Lrs. v. Special Land Acquisi-

tion Officer, (supra), and find ourselves unable to agree

with the view taken in Bhag Singh and Others v. Union Terri-

tory of Chandigarh, (supra). The expanded meaning given to

s. 30(2) in the latter case does not, in our opinion, flow

reasonably from the language of that sub-section. It seems

to us that the learned judges in that case missed the sig-

nificance of the word 'such' in the collocation 'any such

award' in s. 30(2). Due significance must be attached to

that word, and to our mind it must necessarily intend that

the appeal to the High Court or the Supreme Court, in which

the benefit of the enhanced solatium is to be given, must be

confined to an appeal against an award of the Collector or

of the Court rendered between 30 April, 1982 and 24 Septem-

ber, 1984.

We find substance in the contention of the learned

Attorney General that if Parliament had intended that the

benefit of enhanced solatium should be extended to all

pending proceedings it would have said so in clear language.

On the contrary, as he says, the terms in which s. 30(2) is

couched indicate a limited extension of the benefit. The

Amendment Act has not been made generally retrospective with

340

effect from any particular date, and such retrospectivity as

appears is restricted to certain areas covered by the parent

Act and must be discovered from the specific terms of the

provision concerned. Since it is necessary to spell out the

degree of retrospectivity from the language of the relevant

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provision itself, close attention must be paid to the provi-

sions of s. 30(2) for determining the scope of retrospective

relief intended by Parliament in the matter of enhanced

solatium. The learned Attorney General is also right when he

points out that it was never intended to define the scope of

the enhanced solatium on the mere accident of the disposal

of a case in appeal on a certain date. Delays in the superi-

or Courts extend now to limits which were never anticipated

when the right to approach them for relief was granted by

statute. If it was intended that s. 30(2) should refer to

appeals pending before the High Court or the Supreme Court

between 30 April, 1982 and 24 September, 1984, they could

well refer to proceedings in which an award had been made by

the Collector from anything between 10 to 20 years before.

It could never have been intended that rates of compensation

and solatium applicable to acquisition proceedings initiated

so long ago should now enjoy the benefit of statutory en-

hancement. It must be remembered that the value of the land

is taken under s. 11(1) and s. 23(1) with reference to the

date of publication of the notification under-s.4(1), and it

is that date which is usually material for the purpose of

determining the quantum of compensation and solatium. Both

s. 11(1) and s. 23(1) speak of compensation being determined

on the basis, inter alia, of the market value of the land on

that date, and solatium by s. 23(2), is computed as a per-

centage on such market value.

Our attention was drawn to the order made in State of

Punjab v. Mohinder Singh, (supra), but in the absence of a

statement of the reasons which persuaded the learned Judges

to take the view they did we find it difficult to endorse

that decision. It received the approval of the learned

Judges who decided Bhag Singh (supra), but the judgment in

Bhag Singh, (supra) as we have said earlier, has omitted to

give due significance to all the material provisions of s.

30(2), and consequently we find ourselves at variance with

it. The learned Judges proceeded to apply the principle that

an appeal is a continuation of the proceeding initiated

before the Court by way of reference under-s. 18 but, in our

opinion, the application of a general principle must yield

to the limiting terms of the statutory provision itself.

Learned counsel for the respondents has strenuously relied

on the general principle that the appeal is a re-hearing of

the original matter, but we are not satisfied that he is on

good ground in invoking that principle. Learned counsel

341

for the respondents points out that the word 'or' has been

used in s. 30(2), as a disjunctive between the reference to

the award made by the Collector or the Court and an order

passed by the High Court or the Supreme Court in appeal and,

he says, properly understood it must mean that the period 30

April, 1982 to 24 September, 1984 is as much applicable to

the appellate order of the High Court or of the Supreme

Court as it is to the award made by the Collector or the

Court. We think that what Parliament intends to say is that

the benefit of s. 30(2) will be available to an award by the

Collector or the Court made between the aforesaid two dates

or to an appellate order of the High Court or of the Supreme

Court which arises out of an award of the Collector or the

Court made between the said two dates. The word 'or' is used

with reference to the stage at which the proceeding rests at

the time when the benefit under-s. 30(2) is sought to be

extended. If the proceeding has terminated with the award of

the Collector or of the Court made between the aforesaid two

dates, the benefit of s. 30(2) will be applied to such award

made between the aforesaid two dates. If the proceeding has

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passed to the stage of appeal before the High Court or the

Supreme Court, it is at that stage when the benefit of s.

30(2) will be applied. But in every case, the award of the

Collector or of the Court must have been made between 30

April, 1982 and 24 September, 1984.

In the result we overrule the statement of the law laid

down in Mohinder Singh, (supra) and in Bhag Singh and Anoth-

er, (supra) and prefer instead the interpretation of s.

30(2) of the Amendment Act rendered in K. Kamalajammanniava-

ru (dead) by Lrs. (supra).

The cases will now be listed before a Division Bench of

three learned Judges for hearing on the merits of the other

points raised in the cases.

Y.Lal

342