RAMESH CHANDRA SHARMA & ORS. versus STATE OF UTTAR PRADESH & ORS.

[2023] 2 S.C.R.

RAMESH CHANDRA SHARMA & ORS.

STATE OF UTTAR PRADESH & ORS.

(Civil Appeal No. 8819 of 2022)

BFEBRUARY 20, 2023

[KRISHNA MURARI AND S. RAVINDRA BHAT, JJ.]

Land Acquisition Act, 1894– U.P. Land Acquisition(determination of compensation and declaration of award byagreement) Rules, 1997 – Payment of compensation – ClassificationCof landholders as Pushtaini or Gair-Pushtaini – Impermissibility of –Held: Classification made by the GNOIDA authority for the purposesof awarding differential compensation is bad in law – LandAcquisition Act does not distinguish between classes of owners, anduniformly provides compensation to all class of landowners –DClassification made between Pushtaini landowners and Gair-pushtainilandowners is violative of the law laid down in the Nagpur Trustcase and Article 14 – Said classification made by the executiveactions is bad in law, and is liable to be set aside – However, sincethe mischief lies only within the classification, it can be severed,and the remaining part of the executive actions that set out to grantEcompensation for the purpose of rehabilitation remains valid in law– Impugned judgment passed by the Full Bench of the High Courtset aside – Appellants entitled to the reliefs claimed in the Writ Petitionfiled before the High Court – Constitution of India – Art.14.

Constitution of India – Art.14 – Reasonable ClassificationFTest, Wednesbury Principle and Proportionality Test – Discussed –Administrative Law.

Allowing the appeals, the Court

HELD: 1. Whether the Appellants are bound by theGcompensation as per the agreement under the Land Acquisitionrules, and have waived off their right to seek enhancedcompensation?

The Respondent Authority argued that since the agreementwas consented to, no challenge could exist in the Court. ThisHargument in the facts of the case, has been raised only to be

rejected. The issue involved in adjudication is not in respect ofan agreement entered into by the appellants. Similar agreementswere also entered into with the Authority by such identicallysituated landholders who have been granted additionalcompensation subsequent to the agreement by carving out adistinction on the basis of period of residence/occupation of theland which was acquired by creating an artificial classification of‘Pushtaini’ and ‘Gair-Pushtaini’ landholders. Furthermore, sincethe issue of additional compensation by making an artificialclassification of ‘pushtaini’ and ‘Gair-pushtani’ was not in existenceat the time of the agreement, there was no occasion to challengethe same. Further, specifically in the context of the grant of ex-gratia payment, it is to be noted that the said payment granted toPushtaini landowners through separate notification, wasassessed, and given, after the agreement was signed by both,Pushtaini and Gair-pushtaini Landowners. The Appellants herein,under those circumstances, could not have challenged theagreement vis vis the exgratia payment on grounds of violationof Article 14, when no such violation existed at the time of theagreement. No man can be expected to predict future violationof their rights and file pre-emptive appeal.The Appellants,because of their signing of the agreement, have not forfeited theirright to seek revised compensation, because ,the cause of actionaccrued to them much after entering into the agreement. Theissue no. 1 is answered accordingly in the negative and in favourof the Appellants.[Paras 27-30][448-D-H; 449-A-B,D]

2.1 Whether the classification made by and executive fiatbetween Pushtaini Landowners and Gair-pushtaini Landownersfor payment of compensation at different rates is liable to be struckdown as violative of Article 14 of the Constitution?

REASONABLE CLASSIFICATION TEST

For any classification to survive the test of Article 14, theclassification must be based on intelligible differentia, and it musthave rational nexus to the object sought to be achieved by thelaw. The object sought to be achieved must also be lawful, and ifthe object of the law itself is found to be discriminatory, thensuch discrimination must be struck down. [Para 33][451-C-D]

ABC

A2.2 While prima facie, the classification and the objectsought to be achieved through the said classification seemsreasonable, however, the devil lies in the details. The justificationgiven by the GNOIDA Authority, and the Full-bench of the HighCourt assumes that only Pushtaini landowners permanently residein the subject land or that the subject land is the primary sourceBof income only for Pushtaini landowners, and this assumption hasbeen backed by no empirical data produced by the authority. Whilethe classification made by Greater Noida has been based on theobject of giving fair compensation, however, such laudable objectof the classification would stand breached by the effects of such aCclassification, creating dissonance between the object and itseffect. Many Gair-pushtaini landholders, whose main area ofresidence or their main source of income is also the subject land,would be subject to great discrimination and injustice, if the samecompensation that has been granted to the pushtaini landholdersis not extended to them. [Paras 38, 39][455-F-H; 456-A-B]D

2.3 WEDNESBURY PRINCIPLE

The classification made by GNOIDA does not find its footingin the Land Acquisition Act, or the UP-Land Acquisition Rules,and hence is contrary to law. The said classification also suffersEfrom not taking into account relevant considerations. TheAuthority, without taking into account any empirical data, orcalculating any possibility of Gair-pushtaini landowners beingrendered landless or without primary source of income, madethe impugned classification. These relevant factors, by not beingtaken into account, can and would cause great injustice to Gair-Fpushtaini landowners. Further, GNOIDA, by arbitrarily classifyingthe landowners as Pushtaini and Gair-pushtaini on the basis of acut-off date, have taken into account an irrelevant factor. Thecut-off date by itself, without any context of the landowners onground, is not indicative of who the most adversely affectedGlandowners are. By not complying with these three factors whilemaking the classification, this Court must strike down such aclassification. [Paras 44, 45][457-F-G; 458-A-B]

2.4 PROPORTIONALITY TEST

The interfering law, i.e. the impugned notification thatHcreates the classification, does not have rational nexus to the

object sought to be achieved, and thus, violates the first twoprongs of the proportionality test. Coming to the third and fourthprong of the proportionality test, i.e whether the classificationcreated by the Authority was necessity to achieve the state aimof compensating those landowners that are either direct residents46 of the land or the land exists as their primary source of incomeand whether such measure was proportional to the object soughtto be achieved. For this, it is pertinent to refer to Section 23 ofthe Act, which provides for matters to be taken into account whiledetermining the compensation. bare perusal of Section 23 wouldshow that, the grounds for classification as purported by theGNOIDA authority, have already been covered by Section 23 ofthe Act. The fifth point of the said Section squarely covers therequirement of compensating for rehabilitation of the affectedlandowners. In the presence of an already existing provision inthe act, the classification created by the GNOIDA authority, mustexist in furtherance of the said Section, and not in contrast of.[Paras 52-54][465-B-D; 466-C-D]

2.5 The classification if allowed to exist, can lead to severalGair-pushtaini landowners who may also need to be rehabilitated,cannot rehabilitate themselves without compensation for thesame. This circumstance alone besides being discriminatroy pitsthe said classification against Section 23 of the Act, causing aninsubordination to the 1894 Act. Such mischief, if allowed toexist, would not only nullify the purpose of the Act, but also violatethe third and fourth principle of the proportionality test, and henceis liable to be struck down. Further, it is also important to notethat the classification, even if allowed to exist, does not comewith any safeguards against its potential abuse. As mentionedabove, the said notification by way of its classification createsdisastrous mischief, and the notification does nothing to remedysuch potential abuse. No guidelines for the said classification exist,nor are there any bars placed. If such classification is leftunchecked, it may lead to bad precedence, and disastrousramifications in the future. This lack of substantive guidelinesalso violates the fifth prong of the proportionality test. Theimpugned classification is liable to be struck down as violative ofArticle 14 of the Constitution of India. [Paras 55-57][466-D-H]

AState Of West Bengal Vs. Anwar Ali Sarkar (1952) AIR75 : [1952] SCR 284; Rustom Cavasjee Cooper (BanksNationalisation) v. Union of India (1970) 1 SCC 248 :[1970] 3 SCR 530; Navtej Singh Johar & Ors. Vs.Union of India Thr. Secretary, Ministry of Law andJustice (2018) 10 SCC 1 : [2018] 7 SCR 379; K. S.BPuttaswamy & Anr. Vs. Union of India & Ors (2017) 10SCC 1 : [2017] 10 SCR 569 – followed.

Gujarat Mazdoor Sabha & Anr. Vs. State of Gujarat(2020) 10 SCC 459 – relied on.

CAssociated Provincial Picture Houses Limited v.Wednesbury Corporation [1948] 1 KB 223 – referredto.

3. Whether the classification made by the Full-Bench ofthe High Court between Pushtaini landowners and Gair-pushtainiDlandowners is in contravention to the law laid down by this Hon’bleCourt in the case of Nagpur Improvement Trust and another vs.Vithal Rao and others (1973) 1 SCC 500?

The classification made by the GNOIDA authority for thepurposes of awarding differential compensation is bad in law, andEit is precisely this kind of classification that has been barred.When the purpose of the acquisition of the land is for the benefitof the public at large, then the nature of the owner of the saidland is inconsequential to the purpose. If such classification onthe basis of the nature of owner is allowed, then on the samegrounds, there might be possibility of future classifications whereFpowerholding members of the society may get away with largercompensation, and the marginalized may get lesser compensation.This is precisely what this Court in the abovementioned judgmentpredicted, and to preempt such arbitrary classification, clarifiedthe position in law. The Land Acquisition Act does not distinguishGbetween classes of owners, and uniformly provides compensationto all class of landowners. The classification made betweenPushtaini landowners and Gair-pushtaini landowners, on the basisof the reasoning mentioned above, is violative of the law laiddown in the Nagpur Trust case and Article 14 of the Constitution.[Para 59, 60][468-B-F]H

Nagpur Improvement Trust and Another Vs. Vithal Raoand Ors. (1973) 1 SCC 500 : [1973] 3 SCR 39 – reliedon.

4.1 The classification made by both the executive actionsis bad in law, and is liable to be set aside. The Land AcquisitionAct does not envisage any differential compensation on the basisof such classification, and hence, this Court must infer thecompensation to be provided by the executive actions within theconfines of Section 23 of the Act. Section 23 of the LandAcquisition Act states out the grounds for granting compensationin cases of acquisition of land under the Act. One such reason forthe grant of compensation is rehabilitation, and it is this need forgranting compensation for rehabilitation under the Act that isechoed by the impugned notification. bare reading of both theexecutive actions in consonance with the Act would show thatthe need for giving compensation for rehabilitation is valid in lawand is backed by the parent statute. The mischief then, is onlylimited to the arbitrary classification made by such actions. Insuch case, since the mischief lies only within the classification,it can be severed, and the remaining part of the executive actionsthat sets out to grant compensation for the purpose ofrehabilitation remains valid in law. Once the classification isremoved, and the executive actions are read in consonance withthe parent act, it would be seen that since the Act, and now eventhe executive actions do not discriminate in terms ofcompensation, the ex gratia payment and the increased baseamount, as enunciated by the executive actions, must be givento all landowners in the subject area. [Paras 62, 63][468-H; 469-A-C]

4.2 Further, in cases of administrative action, even if theclassification has rational nexus to the objective of thenotification, the classification must also be legitimized by theparent statute. If the parent statute does not allow for aclassification, then, even if the classification vis-à-vis thenotification is able to pass the tests of Article 14, it would still beliable to struck down if the parent statute does not allow for thesame. The impugned judgment passed by the Full Bench of theHigh Court is not liable to be sustained and stands set aside. As

DEF

Aa consequence, the Writ Petition filed by the appellants beforethe High Court stands allowed and the appellants are held entitledto the reliefs claimed in the said Writ Petition. [Paras 65, 67][469-F-H; 470-A-B]

Om Kumar & Ors. Vs. Union Of India (2001) 2 SCCB386 : [2000] 4 Suppl. SCR 693; Smt. MadhuriSrivasatava Vs. State of U.P. & Ors. (2016) 6 SCCOnLine AII 2832; Gajraj Vs. State of U.P (2011) SCCOnLine AII 1711; Radheyshyam (Dead) through L.Rs& Ors. Vs. State Of UP & Ors. (2011) 5 SCC 553 :[2011] 8 SCR 359; Greater Noida IndustrialCDevelopment Authority Vs. Devendra Kumar & Ors.(2011) 12 SCC 375; Savitri Devi Vs. State of U.P. &Ors. (2015) 7 SCC 21 : [2015] 7 SCR 512 – referredto.

Case Law Reference

FCIVIL APPELLATE JURISDICTION : Civil Appeal No.8819of 2022.

From the Judgment and Order dated 30.03.2018 of the High Courtof Judicature at Allahabad in WC No.49326 of 2009.

WithG

Civil Appeal Nos. 8820 And 8821 of 2022.

Salman Khurshid, S.G. Hasnain, Pradeep Kant, Ravindra KumarRaizada, Ravindra Kumar, Sr. Advs., Prashant Kanha, Gaurav Srivastava,Aftab Ali Khan, Syed Mohd. Fazal, M.Z. Chaudhary, Ms. Azra Rehman,HMs. Aadya Mishra, Ms. Saba Baby Khan, Rohit Kumar Singh, Simranjeet

Singh Rekhi, Harsh Jain, Anuvrat Sharma, Arun Kumar Singh, Ms. AlkaSinha, Binay Kumar Das, Ms. Priyanka Das, Ms. Neha Das, Ajai Kumar,Ms. Kamini Jaiswal, Omanakuttan K. K., Advs. for the appearing parties.

The Judgment of the Court was delivered by

KRISHNA MURARI, J.

1. These appeals are directed against the judgment and orderdated 30.03.2018 passed by Full Bench of the High Court of Judicatureat Allahabad (hereinafter referred to as ‘the High Court’), Thereference to Full Bench came to be made under the followingcircumstances: -

1.1 Writ Petition No. 61449 of 2009, Smt. Madhuri SrivasatavaVs. State of U.P. & Ors.[1] along with other connected petitions werefiled by certain landholders whose land was acquired by NOIDAchallenging the decision of the Board of Directors of NOIDA dated07.01.1998 as also the approval granted to the said resolution by theState Government dated 02.03.2009 whereby distinction was carvedout in the matter of payment of compensation by creating classificationbetween “Pushtaini” and “Gair-pushtaini” landholders. The ‘Pushtaini’landholders whose lands were acquired, were given additionalcompensation @ Rs.3 per sq. yard along with 15% as rehabilitationbonus on the compensation already awarded, as also the 10% area ofthe acquired land, whereas those who were declared as ‘Gair-pushtxcaini’ were denied this additional benefit. Division Bench of the HighCourt vide Judgment and order dated 10.05.2016 dismissed the WritPetition holding the classification to be reasonable having direct nexuswith the object sought to be achieved i.e., rehabilitation of the originalresidents who are likely to become landless due to the acquisition oftheir land.

2. Another bunch of Writ Petitions were filed by the presentappellants challenging similar classification made by the Greater NoidaAuthority (hereinafter referred to as ‘G Noida’) in payment ofcompensation on the basis of the landholder being ‘Pushtaini’ and ‘Gair-Pushtaini’.

3. While considering the Writ Petitions, another Division Benchdisagreed 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 alarger Bench.1 (2016) 6 SCC OnLine AII 2832

A4. The Full Bench constituted in pursuance to the referenceframed the following questions for adjudication :-

(i)Whether the law laid down by Division Bench of thisCourt in the case of Smt. Madhuri Srivastava reported in(2016) 6 ADJ 1 is in conflict to the law laid down by theBSupreme Court in the case of Nagpur Improvement Trustand Another Vs. Vithal Rao and Ors.[2] and also with theprovisions of the Land Acquisition Act, 1894?

(ii)Whether the classification made under the U.P. LandAcquisition (determination of compensation and declarationof award by agreement) Rules, 1997, the distinction madeamong ‘Pushtaini’ and ‘Gair-Pushtaini’ farmers, is aclassification having reasonable nexus with the object soughtto be achieved?

5. Vide impugned judgment and order dated 30.03.2018, the FullDBench answered question No. 1 in negative and question No. 2 inaffirmative and upheld the view taken by the Division Bench in the caseof Smt. Madhuri Srivastava (Supra). As consequence of the answersto the questions framed, the Full Bench held that nothing remains to bedecided in the Writ Petitions filed by the present appellants and the samewere dismissed.

6. Before we enter into the factual matrix of the case, we find itexpedient to first trace out the etymology of the words “Pushtaini” and“Gair Pushtaini” used in the impugned classification, for language, onceadopted inside the realm of law, materializes itself much more powerfulbeing, one which must be understood in the right historical context.

7. The word ‘Pushtaini’ is Persian word and finds its origin fromthe word ‘Pusht’, which means ‘back’. The said word has been historicallyused in the context of ancestry. Any possession, tale or legend, that hasroots to particular ancestry, to denote it’s significance to the saidancestry, the word ‘Pushtaini’ is used. As is obvious, since the wordG‘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 aconcept, especially before times of modern private property ownership,

had remained to be tool for inclusivity and not exclusion. In such acontext, the use of the word “Pushtaini” by the Authority, to excludecompensation might be historically inaccurate interpretation. Whilethis is not consequential to the merits of the case, it is in our opinion aworthwhile observation, for law has to power to legitimize the meaningof words and can change the context in which word used, and in turncan change the course of history itself.

Background Facts

9. Since the early 1970s, Liberalization took over India by storm,and it brought with it the promise of massive economic growth. hugeamount of money was infused in the Indian Economy with the purposeof developing Indian cities into massive global hubs of capital andbusiness. In line with this, Delhi began its journey of becoming globalcity. This influx of capital into the city also brought with it massiveemployment opportunities, and people from all over the country startedmigrating to Delhi. To contain such influx of migrants and ensure dignifiedliving for all who came to the city with the hopes of improving their lives,the government of India planned to develop residential and industrialareas around the capital. For this, Gurgaon was developed across theborder of Haryana, and New Okhla Industrial Development Authority(NOIDA) was developed by the Uttar Pradesh Government in theadjoining district of Gautam Budh Nagar. In this period, the city enjoyedmassive growth, both in terms of influx of capital and migration. Thisgrowth was so unprecedented, that it even exceeded the planning estimatesas envisaged by the authorities. As measure to accommodate suchgrowth, the Uttar Pradesh Government, exercising its powers underSection 3 of the U.P. Industrial Area Development Act, 1976, bynotification dated 28.01.1991 created the township of Greater Noida, inan area of 38000 hectare, comprising of 124 villages of Gautam BudhNagar.

10. For its planned development, the Respondent- G. Noida startedacquisition of land within its territorial area of operation under theprovisions of Land Acquisition Act (hereinafter referred to as ‘1894Act’). In the same connection, notifications dated 03.10.2005 and05.01.2006 were issued under Sections 4(1) and Section 6(1) of 1894Act for acquisition of total area of 580.1734 hectares of the land for plandevelopment situate in different villages falling within the jurisdiction ofG. Noida. The said notifications, which also included the land of the

Apresent appellants, were subject matter of challenge before the HighCourt in bunch of Writ Petitions challenging the acquisition proceedingsmainly on the ground of arbitrarily invoking urgency clause under Sections17(1) read with Section 17 (4) of the 1894 Act. The bunch of the saidWrit Petitions came to be decided by the another Full Bench of the HighCourt titled as Gajraj Vs. State of U.P[3]. The High Court concluded thatBthe urgency clause was wrongly invoked, but saved the acquisition forthe reason that much development had already taken place over the saidland and the nature of land stands completely changed. The Full Benchfurther in order to compensate the landholders directed an additionalcompensation to be paid to the landholders at the rate of 64.70% of theCalready paid compensation and further direction was issued to allotdeveloped Abadi land to the extent of 10% of their acquired land, subjectto cap of Rs.2,500/- square meter. The Full Bench never made anydistinction between ‘Pushtaini’ and ‘Gair-Pushtaini’ farmers for paymentof the additional compensation or allotment of land. The Full Bench alsorelying upon the decisions rendered in the case of Radheyshyam (Dead)Dthrough L.Rs & Ors. Vs. State Of UP & Ors.[4], Greater NoidaIndustrial Development Authority Vs. Devendra Kumar & Ors.[5],further held that merely because the farmers had received compensationunder an agreement, it cannot be said that they have waived off the rightto challenge the same. The Full Bench judgment in Gajraj (Supra)Ecame to be affirmed by this Court in Savitri Devi Vs. State of U.P. &Ors.[6]

11. The present appellants had also filed Writ Petition beingWrit Petition No. 62056 of 2011 challenged the notification issued underSections 4 and 6 read with Section 17 of the Act. The said Writ PetitionFcame to be disposed of in terms of the directions issued by the FullBench in the case of Gajraj (Supra) vide judgment and order dated01.11.2011.

12. It is also pertinent to mention at this stage that even before theland acquisition proceedings were initiated and notification under SectionsG4 and 6 of the 1894 Act, were issued, the Respondent-Greater Noida inits 26[th] Board meeting dated 28.10.1997 decided to classify thelandholders for the purposes of payment of compensation for acquisition

3 (2011) SCC OnLine AII 17114 (2011) 5 SCC 5535 (2011) 12 SCC 375H6 (2015) 7 SCC 21

of their land as ‘Pushtaini’, namely, those landholders who had purchasedthe land prior to the date of establishment of authority i.e., 28.01.1991 orthereafter got the land by partition or family settlement and ‘Gair-Pushtaini’ being those persons who purchased the land after itsestablishment. Thus, two classes of landholders were carved out forpayment of compensation and those who were classified as ‘Pushtaini’landholders, higher amount of compensation was decided to be awardedto them in the name of their rehabilitation.

13. Subsequently, on 15.07.2006, an agreement was entered intobetween Greater Noida and the appellants and other landholders underRule 4(2) of the Land Acquisition Rules, 1997 (hereinafter referred toas ‘1997 Rules’) and in accordance with the resolution passed by GreaterNoida in its 26[th] Meeting, the ‘Pushtaini’ landholders were paidcompensation @ Rs. 322 per sq. yard and the ‘Gair-Pushtaini’ landholdersincluding the appellants herein were paid lesser amount of compensation@ Rs.280 per sq. yard.

14. The landholders continued with their agitation making demandof further compensation at the enhanced rate which resulted inconstituting Committee to consider the demand of enhanced rate ofcompensation in the form of bonus/ex-gratia compensation. TheCommittee submitted its report after making recommendation forpayment 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 beingreproduced hereunder for ready reference :-

“ANNEXURE P-4

Recommendation of the Committee constituted in connectionwith making consideration on the demands of bonus/ex- gratia/compensation enhancement at the enhanced rate inconnection with the land of Village Ghodi Bachheda and otherVillages as per Order No.4/4/1/2008 -C.X. (1) Lucknow dated4.09.2008 of the Government of Uttar Pradesh

Following Committee has been constituted in connection withmaking consideration on these types of demands and bonus /ex-gratia /compensation enhancement at the enhanced ratein connection with the land of Village Ghodi Bachheda and

other Villages vide Order No.4/4/1/2008 C.X. (1) Lucknowdated 4.09.2008 of the Government of Uttar Pradesh:-

1. Shri Thakur Jaibir Singh, Hon’ble Minister, RuralEngineering Service, Agricultural Foreign Trade andAgriculture Export Chairman

2. Chief Executive Officer, Greater Noida - Member

3. District Magistrate, Gautam Buddh Nagar - MemberCoordinator Examined and perused the records madeavailable in evidence of the Memos submitted by therepresentatives of agriculture is organizations / Agriculturistsand perused the background of the and its different aspectsby the Committee and while convening Committee Meeting ofthe Committee of Villages / their representatives, evenconsideration was made in respect of the above matter,particulars of which is given below:-

1. Background- this decision was taken in the 26th meetingdated 28.10.1997 of the Greater Noida Authority Board thatthe rate of compensation be assessed on the basis of agreementby the Authority for each financial year and thoseAgriculturists, who are agreed for executing the consent atthe rates of the questioned Financial Years, they whileexecuting the agreement/consent, may receive compensationunder contract/consent regulation and those Agriculturists,who are not agreed with the prescribed rate, the compensationwill be payable to them at the rate prescribed by the learnedDistrict Magistrate under provisions of Section 23 of the LandAcquisition Act 1994. On the basis of above sequence, forthe year of 1997-98, the rate of compensation was assessed@ Rs.110 per square and in future, it will be enhanced inaccordance with cost inflation index in each financial year.Vide Order No.902/778 3-0 7-1 43 N/04. of the Governmentof Uttar Pradesh, High Level Committee underChairmanship of the Commissioner, Meerut Division, Meerutwas constituted. Committee has recommended its compensationvalue @ Rs.800-850 per square metre, in sequence thereto,in the meeting of Greater Noida Authority Board held on5.01.2008, while assessing the compensation @ Rs.850 per

square metre, decision was taken to enforce this rate witheffect from 1.04.2007.

Even the particulars of these types of Memos are alsomentioned in the recommendation dated 4.01.2008 of theCommittee constituted under chairmanship of theCommissioner, Meerut Division, Meerut vide Order dated31.12.2007 of the Government issued previously, whereby itis clear that at that time also, The Villagers of the aboveVillages were making demand for enhancement incompensation. The certain Memos of the Villagers wereforwarded to the Government for appropriate guidelines/directions while enclosing them as per Authority 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 dated13.03.20081038/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/LA/2008 dated 06.06.08. Thereafter, by Order dated10.05.2008 of the Chairman and Chief Executive Officer,Greater Noida, for examination of the demand ofcompensation enhancement raised by the Agriculturists, aCommittee of District Magistrate, Gautam Buddha Nagar,Chief Executive Officer, Deputy Chief Executive Officer,Greater Noida was constituted and in its report dated21.07.2008, recommendation was made to make considerationfor additional amount @ Rs. 175 -200 square metre to theAgriculturists of the land acquired in the Financial Years2006-2007 of the Village Ghodi Bachheda including otherVillages. Such directions were given while making perusal ofthe Recommendation of the Committee in the 72nd Meetingdated 11.08.2008 of the Authority Board, that while makingcalculation of the situation of its financial source and itsmanagement, the case be referred to the Government. VideOrder No.4/4/1/2008 -C.X. (1) Lucknow dated 4.09.2008 ofthe Government of Uttar Pradesh, the above Committee wasconstituted for giving recommendation in connection withmaking consideration on the demands of bonus / ex-gratia/enhancement of compensation and etc. at the enhanced ratein connection with the Village Ghodi Bachheda and other

ABC

AVillages.

2. Meetings of the Committee - That first meeting of theCommittee was convened on 15.09.2008 in the conferenceroom of Uttar Pradesh Sadan, New Delhi, in addition to theChairman of Committee, following officers have taken part-

1. Shri Pankaj Agarwal, Chief Executive Officer, GreaterNoida

2. Shri Shravan Kumar Sharma, District officer, GautamBuddha Nagar

In addition to above, following officers of the Greater NoidaAuthority were appeared in the above meeting-

1. Shri Shailendra Chaudhary, Deputy Chief ExecutiveOfficer, Greater Noida.

2. Shri Shishir, Special Executive Officer, Greater Noida

Consideration and consultation was made in connection withthe work area, operation and process of the constitution ofthe Committee in the meeting land this decision was takenthat while convening meeting with the Agriculturists andtheir representatives affected with the acquisition, theiropinions and demands may be known by way of receivingrepresentations from them and discussion may be made fromthem in this regard.

In sequence of above, the meeting of Committee was convenedon 22.09.2008 and 11.10.2008 respectively in the ConferenceFRoom of the Greater Noida Authority, wherein, while receivingthe memo from the Agriculturists of Village and theirrepresentatives, the matter was discussed and consulted indetail, 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,

26. Rampal Havaldar,

27. Nemvir, Pradhan, Garba

and etc. etc.

3. Grounds of the demand and memo submitted by theAgriculturist - There records were received in support ofdetailed Memos and particulars in connection with thedemands 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 Memosincluding necessary records before the Committee and evengrounds were also raised by the Agriculturists orally insupport of their demand, wherein, main grounds are included,which are as under:-

1. The farmers of questioned Villages have given valueenhancement Memo on 2.04.2006, whereon, the GreaterNoida Development Authority gave Assurance letter in writtenon 5.01.2007 after 10 days, that, after calling the rates ofTronica City and etc. in the GDA, till the last week of theFebruary 2007, decision will be taken in connection withenhancing the compensation. In support of their statementscopy of letter dated 5.01.2007 of the Deputy Chief ExecutiveOfficer, Greater Noida addressed to Ashok Pradhan,respected member, Lok Sabha and Sri Nawab Singh Nagar, isenclosed.

2. They had also revealed their demand in connection withcompensation enhancement in the meeting of committeeconstituted under chairmanship of the Commissioner, MeerutDivision, Meerut, but nothing benefit has been given to theAgriculturists of the acquired land in the financial year 2006-2007.

3. The Villagers have produced their demand, while disclosingdetailed grounds before the Committee constituted underchairmanship of the learned District Magistrate vide Orderdated 10.06.2008 of the Chairman and Chief ExecutiveOfficer, Greater Noida but, even then, the Committee, withoutmaking intensive consideration thereon, has givenrecommendation for enhancement @ Rs. 175- 200 per squaremetre, which is not in practical and it is against the principleof natural justice and that this enhancement is insufficient.

4. Analysis - The Notification was issued on 5.01.2006 underSection 6/17 of the Land Acquisition Act, 1894 in the proposalof acquisition of 580.1730 hectare land of Village GondaBachheda and that the possession of the acquired land washanded over to the Greater Noida Authority on 14.05.2006by the Additional Collector (L A). After approving the value

of compensation @ Rs.385 per square metre on 28.06.2006from the Divisional Commissioner, Meerut, the compensationamount was distributed @ Rs.385 per square metre to theAncestral Agriculturists and @ Rs.334.78 per square metreto the ancestral Agriculturists. That the land of the followingVillages were acquired for well-planned development of theGreater Noida in the Financial Years 2006-2007 includingVillage Gonda, Bachada and other Villages and that thepossession of the above land was taken after 01.04.2006 andthe Agriculturists of the above land are making demand forenhancement of compensation.

Agriculturist organization, Agriculturists of these Villagershave also given number of Memos for demandingenhancement of compensation at the time of constitution ofthe Committee under chairmanship of the DivisionalCommissioner, Meerut vide Order dated 31.12.2007 of theGovernment and even prior to it.

The copy of consent letter dated 5.01.2007 signed by the thenDeputy Chief Executive Officer, Greater Noida andconsideration and consultation made on the Memos submittedon 5.01.2007 in the matter by the Villagers with Member ofParliament Shri Ashok Pradhan and the then MLA ShriNawab Singh Nagar was also provided to the agriculturists,wherein, it is mentioned that this decision has been taken inconnection with enhancing the compensation of the acquiredland that after calling the rates of compensation of the landbeing acquired by the Ghaziabad Development Authority andthe land of Tronica City of Housing Development Board, tillthe last week of February, decision will be taken in connection

with enhancing the compensation. It is clear by it that theAgriculturists were raising demand of enhancing thecompensation 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 learnedBDistrict Magistrate has revealed the facts in detail in its reportdated 31.07.2008 on the above overall points raised by theAgriculturists. The Committee has perused the recommendationdated 21.07.2008 of the Committee constituted under thechairmanship of the learned District Magistrate, GautamBuddha Nagar. Such finding has been concluded in its reportCdated 21.07.2008 that it is not possible to make any changein the rate of compensation in accordance with law, becauseof receiving the compensation after fulfillment of theagreement under the Agreement Regulation after acquisitionof the land by the concerned Agriculturists, but, the CommitteeDhas recommended in its report dated 21.07.2008 to awardcertain amount in the detailed circumstances on account ofex-gratia.

5. Recommendation - As per the information provided by theSpecial Executive Officer (L A), Greater Noida, most of theAgriculturist of the acquired land in the financial year 20062007 of Village Ghodi Bachheda, including other Villages,as per the Government Order dated 29.09.2001, under theprovisions of Uttar Pradesh Land Acquisition (Determinationof Compensation and Declaration of Award by Agreement)Rules, 1997, have received Compensation. Therefore, it wouldnot 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 additionalamount on account of Ex gratia to be awarded as relief to theAgriculturists of these Villages. In the report dated 21.07.2008of the Committee constituted under the chairmanship of thelearned District Magistrate, recommendation has been givento award additional amount @ Rs.175-200 per square metre.But, in opinion of the Committee, there is justification to makepartial enhancement in above amount.

Therefore, in view of the above detailed factual analysis,Hconsultation, discussion, consideration made from the

Agriculturists and assurance given at the level of Authority,Athis Committee is hereby made recommendation to makepayment of the amount @ Rs.310 per square metre on accountof Ex gratia to the ancestral Agriculturists of the questionedland of 8 Villages detailed in Para No.4 possession of whichhas been received in the financial year 2006-2007 and theBCommittee is hereby further recommended to submit therecommendation before the Greater Noida Authority Boardfor necessary proceedings.

Shravan Kumar Sharma,

District Magistrate,Gautam Buddha Nagar

(Pankaj Agarwal),

Chief Executive Officer, Greater Noida

(Thakur Jaiveer Singh),

Hon’ble Minister Rural Engineering Service

Agriculture Foreign Trade and

Agriculture Export, Uttar Pradesh”

16. Based on the aforesaid report, decision was taken in the74[th] Board Meeting of Greater Noida for payment of additionalcompensation/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 NoidaAuthority dated 03.11.2008 are being reproduced hereunder :-

“ANNEXURE P-5

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

74th Board meeting of Authority was held on 03.11.2008.

Minutes of this meeting (enclosure), has been sent to themembers of authority vide semi Government letter No.UMC/74th Board Meeting/ 2008 / 265 dated 3.11.2008. Minutes ofthe above meeting is being submitted herewith for approvalof the Authority Board.

BS.No. 9- In connection with demand of bonus/ex-gratia/compensation enhancement of the Agriculturists of the landof Village Ghodi Bachheda and Other Villagers acquired inthe Financial Year 2006 2007 by Greater Noida TheAgriculturists of the land of following Villagers, whose landwas acquired in the financial year 2006 -2007 by the GreaterCNoida, have submitted lots of Memos, while making demandof compensation enhancement-

Which have been submitted to the Government from time totime for appropriate directions and guidelines. Forexamination of the demand of compensation and managementof Agriculturist, following Committee of District Magistrate,Gautam Buddha Nagar, Additional Chief Executive Officer,Deputy Chief Executive Officer, Greater Noida wasconstituted vide Order dated 10.06.2008 of the Chairman,Greater Noida, and the above committee has recommendedto make consideration on awarding additional amount @Rs.175- 200 per square metre to the cultivators, whose landwas acquired in the financial year 2006, 2007, in VillageGhodi Bachheda including other Villages, in its report dated21.07.2008. In the 72nd meeting of the Board held on11.08.2008, while using the Recommendation of theCommittee, this direction was given that, while makingcalculation 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) Lucknowdated 4.09.2008 of the Government of Uttar Pradesh, thecommittee was constituted in connection with makingconsideration on the demands of the Agriculturists inconnection with bonus / Ex gratia / compensation enhancementof the enhanced rates in connection with the land of VillageGhodi Bachheda and other Villages.

1. Sri Thakur Jaiveer Singh Hon’ble Minister, RuralEngineering Service, Agriculture Foreign Trade andAgriculture export -Chairman

2. Chief Executive Officer, Greater Noida member

3. District Magistrate, Gautam Buddha Nagar -MemberCoordinator

The committee has submitted its recommendation on25.10.2008, wherein, the recommendation has been made tomake payment on account of ex-gratia @ Rs.310 square metreto the ancestral agricultural of the land whose possessionhas been received in the Financial Year 2006-2007 of1.04.2006 by the Greater Noida in respect of the land of VillageGhodi Bachheda and recommendation has been made tosubmit the matter with recommendation of the Committeebefore the Greater Noida Authority Board for necessaryproceedings. The report dated 25.10.2008 of the Committeeis enclosed and that it is part of agenda.Overall Compensation Amount of Rs.5522134695.00 (RupeesFive Arab fifty two crores twenty one lakhs thirty four thousandsix hundred ninety five only), calculated @ Rs.385 per squaremetre. applied at that time against the land measuring1434.3207 of the above Villages acquired in the financialyear 2006-2007, has already been sent to the learnedAdditional District Magistrate (L.A.). And as per letter No.527/8 -VK BHL dated 23.06.2008 received from the landacquisition officer, the amount of Rs.5,27,56,68,568 (FiveArab Twenty seven crores, fifty six lakhs sixty eight thousandfive hundred sixty eight only), which is 95.54%, has alreadybeen distributed among the concerned Agriculturists. As per

Athe information received vide letter No.833/Eight- A.D.O. (LA) /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 theancestral Agriculturist, that is, on making payment @ Rs.310Bper square metre as recommended by the Committee, then,their shall financial burden of Rs.4318171660 (Rupees fourArab twenty one crores eighty one lakhs seventy one thousandsix hundred and sixty only).

The report of the Committee is submitted for consideration ofCthe Authority Board.”

18. Vide order dated 15.01.2009, the State Government grantedits approval for payment of enhanced compensation/ex-gratia/bonus tothe ‘Pushtaini’ landholders.

D19. For the sake of convenience, the break-up of compensationgranted to both the categories of landowners is being producedhereunder:-

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 adiscrimination between Pushtaini and Gair-pushtainilandowners in determination of compensation under the LandAcquisition Act.

I.In light of the law laid down by this Court in the NagpurImprovement Trust Case (Supra), no distinction betweenthe abovementioned two sets of classes of landowners canbe made on the basis of the date of purchase of the landand the date of establishment of NOIDA. The Ld.Counsel argued that all the landowners whose land wasacquired should stand on the same pedestal.

II.The Land of both the classes of landowners have beenacquired under the same procedure, for the same publicpurpose and having the same market value, and hence, anydifference in the rate of compensation provided to any partyis highly discriminatory and is violative of Article 14.

III.Further, it has also been argued that merely by signing theagreement, the Appellants herein cannot be said to havewaived their right to Appeal the compensation, especiallysince the fact that the ex-gratia payment granted to thePushtaini landowners was awarded after the agreementwas signed.

IV.It has also been contended that the ex-gratia payment as aform of compensation does not exist in the Land AcquisitionAct, and can only be interpreted as one of the reasons forpayment within Section 23 of the Land Acquisition Act, andin such scenario, the payment must be universally madeto all parties.

ARGUMENTS ADVANCED BY THE RESPONDENTS

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

I.The UP Land Acquisition Rules have been formed underthe Land Acquisition Act,1894. These rules prescribe formethod of compensation between the acquirer and the

Aacquiree through an agreement. The Appellants, by way ofan agreement, voluntarily accepted the compensation beinggranted to them. Further, while accepting the compensation,the Appellants herein also submitted an Affidavit statingthat the compensation is agreed upon and accepted by theparties. It was only three years later that the AppellantsBdecided to file writ challenging the compensation, afterentering into the agreement and explicitly agreeing to thecompensation amount.

II.The Appellants had entered into an agreement as per thelaw of the land and had accepted the compensation grantedCto them. In such scenario, there exists no legal remedy ofthe Appellants to re-open the agreement on grounds of asubsequent increase in compensation to different party.There is no remedy to re-open the agreement by way ofapproaching the Court in the statue.

DIII.The distinction created between the two classes of landowners has been done on the basis of their residence. Thebase compensation given to both the classes is the same,and only an additional 15% extra amount is given toPushtaini landowners as rehabilitation bonus, which is notEa necessity for the Gair-pushtaini landowners as they donot reside in the concerned land and are not sons of thesoil.

IV.As regards to the ex-gratia payment given to the Pushtainilandowners, the same is merely an additional compensationbased on the classification between sons of the soils andFmere investors in the land. The payment is based onreasonable classification and is not violative of Article 14.

Issues

22. In the aftermath of the aforesaid litigations in the High Court,Gthe following three questions arise for adjudication in these Appeals :-

I.Whether the Appellants, by signing the agreement,havewaived their right to seek for revised compensation?

II.Whether the classification made under the Land AcquisitionAct, and the UP Land Acquisition Rules,1997 betweenH

Pushtaini Landowners and Gair-pushtaini Landowners forthe payment of compensation at different rates is liable tobe struck down as violative of Article 14 of the Constitution?

III.Whether the classification made by the Full-Bench of theHigh Court between Pushtaini landowners and Gair-pushtainilandowners is in contravention to the law laid down by thisBHon’ble Court in the case of Nagpur Improvement Trustand Another vs. Vithal Rao and Others (1973) 1 SCC 500?

23. We have heard, Shri Pradeep Kant, Learned Senior Counselfor the appellants, Shri. Ravindra Kumar, learned Senior Counselappearing 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. Noidapaying an enhanced compensation to the landholders by carving out anartificial class of ‘Pushtaini’ landholders from among the same class oflandholders whose land was acquired by the same notification for thesame purpose. There is no challenge to the validity of the acquisitionitself as the same stands finally settled by this Court.

Analysis

Whether the Appellants are bound by the compensation asper the agreement under the Land Acquisition rules, andhave waived off their right to seek enhanced compensation?

25. It has been vehemently submitted on behalf of Greater Noidathat the appellants herein did not exhaust their remedy under Section 18of the Land Acquisition Act and approach the High Court, and hassidestepped procedural requirement. Section 18 of the 1894 Act readsas under :-

“Reference to Court.- (1) Any person interested who has notaccepted the award may, by written application to the Collector,require that the matter be referred by the Collector for thedetermination of the Court, whether his objection be to themeasurement of the land, the amount of the compensation,the persons to whom it is payable, or the apportionment ofthe compensation among the persons interested.

(2) The application shall state the grounds on which objectionto the award is taken: Provided that every such applicationshall be made,

(a) if the person making it was present or represented beforethe Collector at the time when he made his award, within sixBweeks from the date of the Collector’s award;

(b) in other cases, within six weeks of the receipt of the noticefrom the Collector under section 12, sub-section (2), or withinsix months from the date of the Collector’s award, whicheverperiod shall first expire.”

26. The first and foremost thing to be taken note of is that thenature of the challenge in the Writ Petition filed by the appellants beforethe High Court was based on violation of Article 14, which is fundamentalright enshrined in the Constitution. Such challenge, irrespective of theexistence of any alternative remedy under statute cannot put bar onDthe jurisdiction of the Constitutional Courts.

27. The Respondent Authority argued that since the agreementwas consented to, no challenge could exist in the Court. This argumentin the facts of the case, has been raised only to be rejected. The issueinvolved in adjudication is not in respect of an agreement entered into byEthe appellants. Similar agreements were also entered into with theAuthority by such identically situated landholders who have been grantedadditional compensation subsequent to the agreement by carving out adistinction on the basis of period of residence/occupation of the landwhich was acquired by creating an artificial classification of ‘Pushtaini’and ‘Gair-Pushtaini’ landholders.F

28. Furthermore, since the issue of additional compensation bymaking an artificial classification of ‘pushtaini’ and ‘Gair-pushtani’ wasnot in existence at the time of the agreement, there was no occasion tochallenge the same.

29. Further, specifically in the context of the grant of ex-gratiapayment, it is to be noted that the said payment granted to Pushtainilandowners through separate notification, was assessed, and given,after the agreement was signed by both, Pushtaini and Gair-pushtainiLandowners. The Appellants herein, under those circumstances, couldnot have challenged the agreement vis vis the ex-gratia payment on

grounds of violation of Article 14, when no such violation existed at thetime of the agreement. No man can be expected to predict futureviolation of their rights and file pre-emptive appeal. This Court isreminded of the words of Francis Bacon, who in the 17[th] century wroteabout the link between legal certainty and justice:

“For if the trumpet give an uncertain sound, who shall preparehimself to the battle? So if the law give an uncertain sound,who shall prepare to obey it? It ought therefore to warn beforeit strikes... Let there be no authority to shed blood; nor letsentence be pronounced in any Court upon cases, exceptaccording to known and certain law Nor should man bedeprived of his life, who did not first know that he was riskingit.’ (Quoted in Coquillette, Francis Bacon pp 244 and 248,from Aphorism 8 and Aphorism 39? Treatise on UniversalJustice).”

30. On the basis of the above-mentioned reasons, we are of theconsidered opinion that the Appellants, because of their signing of theagreement, have not forfeited their right to seek revised compensation,because ,the cause of action accrued to them much after entering intothe agreement. The issue no. 1 is answered accordingly in the negativeand in favour of the Appellants.

Whether the classification made by and executive fiatbetween Pushtaini Landowners and Gair-pushtainiLandowners for payment of compensation at different ratesis liable to be struck down as violative of Article 14 of theConstitution?

31. The High Court, while upholding the classification between‘Pushtaini’ and ‘Gair-pushtaini’ landowners, stated that there is nodiscrimination being caused to similarly situated parties, and the judgmentrendered by the Division Bench in the case of Smt. Madhuri Srivastava(Supra) lays down the correct law. Thus, the Full Bench upheld theclassification and negated the challenge made to the said classification.The relevant paragraphs of the impugned judgment are reproducedhereunder :-

“Before coming on merits of the case, it would be appropriateto state that sovereign power of state to acquire privateproperty for public purpose is based upon maxim “salus

populi est suprema lax” means welfare of the public isparamount law and maxim “necessita publica major est quamprivata” means public necessity is greater than private. Themaxim “eminent domain” (sabai bhumi Govind Ki) means stateis supreme owner of the land. Constitution of Indiaincorporates these maxims. Acquisition of private propertycan be made by legislation, exercising powers under Articles245 and 246 of the Constitution. Subject “acquisition andrequisition of property for the purposes of the Union” wasmentioned as Entry No. 33 of List-I and “acquisition andrequisition of property except for the purposes of the Union”was mentioned as Entry No. 36 of List-II of the SeventhSchedule of Constitution. By Section 26 of Constitution(Seventh Amendment) Act, 1956, Entry No. 33 of List-I andEntry 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 ofprivate parties can be made by exercise of executive powerunder Article 298 of Constitution. Union of India and StateGovernments can acquire private property, exercisinglegislative or executive powers.

While dealing with an issue pertaining to classification andits reasonability, we must also keep in mind that the governanceis not simple thing. It encounters and deals with the problemswhich come from persons in an infinite variety of relations.Classification is the recognition of those relations, and, inmaking it wide latitude of discretion and judgment must begiven.

Having considered all aspects of the matter by keeping inmind the Constitutional provisions discussed above and alsothe intent of the Act, 1894 especially the provisions of Sections23 and 24 of the Act, 1894, we are of considered opinion thatthe classification introduced among the Pushtaini and Gair-pushtaini farmers is reasonable with intelligible differentiaand that in no manner causes any discrimination among thesimilarly situated person. The law laid down in the case ofSmt. Madhuri Srivastava (supra) has taken adequate care ofall these provisions while concluding that the Pushtaini and

Gairpushtaini farmers are two different classes and theresolution to award additional compensation on different ratesis not at all discriminatory.”

32. To assess the validity of the impugned classification, we mustput it through the rigours of Article 14 and see whether it survives thebaptism. It is well established principle of law, that the state, as perArticle 14, cannot deny equality before law and equal protection of thelaw.

REASONABLE CLASSIFICATION TEST

33. For any classification to survive the test of Article 14, theclassification must be based on intelligible differentia, and it must have arational nexus to the object sought to be achieved by the law. At thisstage, it is important to note that the object sought to be achieved mustalso be lawful, and if the object of the law itself is found to bediscriminatory, then such discrimination must be struck down. This hasbeen held in catena of judgments.

34. The reasonable classification test was first introduced to IndianJurisprudence in the case of State Of West Bengal Vs. Anwar AliSarkar[7] . The issue raised therein was against the Bengal Special CourtsAct which was enacted for the purpose of speedier trial of certainoffences. This Act was challenged on the touchstone of Article 14 ongrounds of the Act giving arbitrary powers to the state government. TheCourt, while dismissing the appeal of the state held that:-

“It can be taken to be well settled that the principle underlyingthe guarantee in Article 14 is not that the same rules of lawshould be applicable to all persons within the Indian territoryor that the same remedies should be made available to themirrespective of differences of circumstances [Charanjit LalChowdhury v. Union of India, 1950 SCR 869 : 1950 SCC833] . It only means that all persons similarly circumstancedshall be treated alike both in privileges conferred andliabilities imposed [Old Dearborn Distributing Co. v. SeagramDistillers Corpn., 81 L Ed 109 : 299 US 183 (1936) : 1936SCC OnLine US SC 145] . Equal laws would have to be appliedto all in the same situation, and there should be nodiscrimination between one person and another if as regards

7 (1952) AIR 75

Athe subjectmatter of the legislation their position issubstantially the same. This brings in the question ofclassification. As there is no infringement of the equalprotection rule, if the law deals alike with all of certainclass, the legislature has the undoubted right of classifyingpersons and placing those whose conditions are substantiallyBsimilar under the same rule of law, while applying differentrules to persons differently situated. It is said that the entireproblem under the equal protection clause is one ofclassification or of drawing lines [ Dowling : Cases onConstitutional Law, 4th Edn. 1139.]. In making theCclassification the legislature cannot certainly be expected toprovide “abstract symmetry”. It can make and set apart theclasses according to the needs and exigencies of the societyand as suggested by experience. It can recognise even“degrees of evil” [Skinner v. Oklahoma, 86 L Ed 1655 : 316US 535 at p. 540 (1942) : 1942 SCC OnLine US SC 125] ,Dbut the classification should never be arbitrary, artificial orevasive. It must rest always upon real and substantialdistinction bearing reasonable and just relation to the thingin respect to which the classification is made; andclassification made without any reasonable basis should beEregarded as invalid [Southern Railway Co. v. Greene, 54 LEd 536 : 216 US 400 at p. 412 (1910) : 1910 SCC OnLineUS SC 59] . These propositions have not been controvertedbefore us and it is not disputed also on behalf of therespondents that the presumption is always in favour of theconstitutionality of an enactment and the burden is upon himFwho attacks it, to show that there has been transgression ofconstitutional principles.

I am not at all impressed by the argument of the learnedAttorney General that to enable the respondents to invokethe protection of Article 14 of the Constitution it has got to beGshown that the legislation complained of is piece of “hostile”legislation. The expressions “discriminatory” and “hostile”are found to be used by American Judges often simultaneouslyand almost as synonymous expressions in connection withdiscussions on the equal protection clause. If legislation isHdiscriminatory and discriminates one person or class of

persons against others similarly situated and denies to theformer the privileges that are enjoyed by the latter, it cannotbut be regarded as “hostile” in the sense that it affectsinjuriously the interests of that person or class. Of course, ifone’s interests are not at all affected by particular piece oflegislation, he may have no right to complain. But if it isestablished that the person complaining has beendiscriminated against as result of legislation and deniedequal privileges with others occupying the same position, Ido not think that it is incumbent upon him, before he canclaim relief on the basis of his fundamental rights, to assertand prove that in making the law, the legislature was actuatedby hostile or inimical intention against particular personor class. For the same reason I cannot agree with the learnedAttorney General that in cases like these, we should enquireas to what was the dominant intention of the legislature inenacting the law and that the operation of Article 14 wouldbe excluded if it is proved that the legislature had no intentionto discriminate, though discrimination was the necessaryconsequence of the Act. When discrimination is alleged againstofficials in carrying out the law, question of intention maybe material in ascertaining whether the officer acted malafide or not [Sunday Lake Iron Co. v. Wakefield, 62 L Ed 1154: 247 US 350 (1918) : 1918 SCC OnLine US SC 148] ; butno question of intention can arise when discrimination follows

or arises on the express terms of the law itself .”

35. In the case of Rustom Cavasjee Cooper (BanksNationalisation) v. Union of India[8], R.C.Cooper, who was the directorof Central Bank of India filed petition against the Union of Indiachallenging the provisions of The Banking Companies (Acquisition andTransfer of Undertakings) Ordinance, 1969. The Court while decidingthis case held that it cannot overlook the violation of fundamental rightsof the citizens on mere technicalities. It then further went on to statethat the Courts won’t look into the objects of the impugned act andrather they will look into the effect of the impugned act. The Courtfound the said Act in clear violation of Article 14 since only 14 bankswere restrained from conducting banking business in the future while

8 (1970) 1 SCC 248

ABC

Aother banks including foreign banks were allowed to continue Bankingin India. It has been observed in the said case as under :-

“By article 14 of the Constitution the State is enjoined not todeny to any person equality before the law or the equalprotection of the laws within the territory of India. The ArticleBforbids class legislation, but not reasonable classification inmaking laws. The test of permissible classification under anAct lies in two cumulative conditions: (1) classification underthe Act must be founded on an intelligible differentiadistinguishing persons, transactions or things groupedtogether from others left out of the group; (ii) the differentialChas rational relation to the object sought to be achieved bythe Act: there must be nexus between the basis ofclassification and the object of the Act.

The legislative policy as to the necessity is matter oflegislative judgment and the Court will not examine theDpropriety of it. The legislation need not be all embracing andit is for the Legislature to determine what categories will beembraced. In Dalmia case (Ram Krishna Dalmia v. S.R.Tendolkar, 1959 SCR 279) it was said that the two tests ofclassification were first that there should be an intelligibleEdifferentia which distinguished persons or things groupedfrom others left out and secondly the differentia must have arational relation to the object sought to be achieved by thestatute”

36. Most recently, Constitution Bench of this Court in the caseFof Navtej Singh Johar & Ors. Vs. Union of India Thr. Secretary,Ministry of Law and Justice[9], while considering the question ofscrapping Section 377, IPC as violative of Article 14 has detailed out thetest of reasonable classification under Article 14 as under :-

“We, first, must test the validity of Section 377 IPC on theGanvil of Article 14 of the Constitution. What Article 14propounds is that “all like should be treated alike”. In otherwords, it implies equal treatment for all equals. Though thelegislature is fully empowered to enact laws applicable to aparticular class, as in the case at hand in which Section 377

applies to citizens who indulge in carnal intercourse, yet theclassification, including the one made under Section 377 IPC,has to satisfy the twin conditions to the effect that theclassification must be founded on an intelligible differentiaand the said differentia must have rational nexus with theobject sought to be achieved by the provision, that is, Section377 IPC.

Section 377 has consigned group of citizens to the margins. Ithas been destructive of their identities. By imposing the sanctionsof the law on consenting adults involved in sexual relationship, ithas lent the authority of the State to perpetuate social stereotypesand encourage discrimination. Gays, lesbians, bisexuals andtransgenders have been relegated to the anguish of closetedidentities. Sexual orientation has become target forexploitation, if not blackmail, in networked and digital age.The impact of Section 377 has travelled far beyond thepunishment of an offence. It has been destructive of an identitywhich is crucial to dignified existence”37. In the case at hand, it has been held by the Full Bench of theHigh Court that the classification between Pushtaini and Gair-pushtainiLandowners is based on one class of landowners being sons of the soil,while the other class being mere landowners, who are not directlyattached to the land. Further, the object of this classification, as statedby 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 theacquisition of their land.

38. While prima facie, the classification and the object sought tobe achieved through the said classification seems reasonable, however,the devil lies in the details. The justification given by the GNOIDAAuthority, and the Full-bench of the High Court assumes that onlyPushtaini landowners permanently reside in the subject land or that thesubject land is the primary source of income only for Pushtainilandowners, and this assumption has been backed by no empirical dataproduced by the authority.

39.While the classification made by Greater Noida has been basedon the object of giving fair compensation, however, such laudable objectof the classification would stand breached by the effects of such aclassification, creating dissonance between the object and its effect.

ABC

AMany Gair-pushtaini landholders, whose main area of residence or theirmain source of income is also the subject land, would be subject to greatdiscrimination and injustice, if the same compensation that has beengranted to the pushtaini landholders is not extended to them.

40. Further, it is also to be noted that this Court at this stage cannotBenter into fact finding mission to verify the claims of the respondentauthority. To justify such classification, the respondent authority shouldhave discharged their burden of proof to back their claim. Mere statementswithout any evidence cannot be accepted by us as justification for thesaid classification, which can have debilitating effect on those who areat the losing side of the classification.C

41. To survive the rigors of Article 14, the impugned classificationmust not only make it through the abovementioned test, but also clearthe Wednesbury Principle, and by extension the Proportionality test.

WEDNESBURY PRINCIPLE

42. In the case of Associated Provincial Picture Houses LimitedDv. Wednesbury Corporation[10], the King’s Bench Division was taskedwith the question of under what circumstances can the Court interferein cases of administrative law making. While dealing with this, the Courtheld that interference in administrative decisions was permissible, only if(i) the order was contrary to law (ii) or relevant factors were notEconsidered, or (iii) irrelevant factors were considered or, (iv) or thedecision was such that no other authority under similar circumstanceswould have come to this conclusion. The relevant paragraph of thejudgment are reproduced herein:

“In the result, this appeal must be dismissed. I do not wish torepeat myself but I will summarize once again the principleFapplicable. The Court is entitled to investigate the action ofthe local authority with view to seeing whether they havetaken into account matters which they ought not to take intoaccount, or, conversely, have refused to take into account orneglected to take into account matters which they ought toGtake into account. Once that question is answered in favourof the local authority, it may be still possible to say that,although the local authority have kept within the four cornersof the matters which they ought to consider, they havenevertheless come to conclusion so unreasonable that no

reasonable authority could ever have come to it. In such acase, again, I think the Court can interfere.

The power of the Court to interfere in each case is not as anappellate authority to override decision of the localauthority, but as judicial authority which is concerned, andconcerned only, to see whether the local authority havecontravened the law by acting in excess of the powers whichParliament has confided in them. The appeal must be dismissedwith costs.”

43. The Wednesbury principle was first introduced to IndianJurisprudence in the case of Om Kumar & Ors. Vs. Union Of India[11].Here, again, similar question was posed before the Supreme Court, asto when can the Court exercise its power of judicial review in cases ofexecutive law making. This Court, reiterated the same principles laiddown in the Wednesbury case. The relevant extracts from the saidjudgment is reproduced hereunder:-

“Lord Greene said in 1948 in the Wednesbury case [(1948) 1KB 223 : (1947) 2 All ER 680 (CA)] that when statute gavediscretion to an administrator to take decision, the scope ofjudicial review would remain limited. He said that interferencewas not permissible unless one or the other of the followingconditions was satisfied, namely the order was contrary tolaw, or relevant factors were not considered, or irrelevantfactors were considered; or the decision was one which noreasonable person could have taken. These principles wereconsistently followed in the UK and in India to judge thevalidity of administrative action.”

44. The classification made by GNOIDA does not find its footingin the Land Acquisition Act, or the UP-Land Acquisition Rules, and henceis contrary to law. The said classification also suffers from not takinginto account relevant considerations. The Authority, without taking intoaccount any empirical data, or calculating any possibility of Gair-pushtaini landowners being rendered landless or without primarysource of income, made the impugned classification. These relevantfactors, by not being taken into account, can and would cause greatinjustice to Gair-pushtaini landowners.

11 (2001) 2 SCC 386

A45. Further, GNOIDA, by arbitrarily classifying the landownersas Pushtaini and Gair-pushtaini on the basis of cut-off date, havetaken into account an irrelevant factor. The cut-off date by itself, withoutany context of the landowners on ground, is not indicative of who themost adversely affected landowners are. By not complying with thesethree factors while making the classification, this Court must strike downBsuch classification.

46. While the Wednesbury principle has been used as guidingprinciple of interpretation, the Indian Court have now adopted muchmore rigorous test, i.e., is proportionality test, to see whether anCadministrative action can survive the rigours of Article 14.

PROPORTIONALITY TEST

47. In the case of Om Kumar (Supra), this Court held that theadministrative measure must not be more drastic than is necessary forattaining the desired result. This was the first formal introduction of theDProportionality test to Indian Jurisprudence, however the Court pointedout that the proportionality test has been used by the Indian Courts evenbefore this judgment. The relevant paragraphs from the said report readsas under :-

E“27.The principle originated in Prussia in the nineteenthcentury and has since been adopted in Germany, France andother European countries. The European Court of Justice atLuxembourg and the European Court of Human Rights atStrasbourg have applied the principle while judging thevalidity of administrative action. But even long before that,Fthe Indian Supreme Court has applied the principle of“proportionality” to legislative action since 1950, as statedin detail below.

28. By “proportionality”, we mean the question whether, whileregulating exercise of fundamental rights, the appropriate orGleast-restrictive choice of measures has been made by thelegislature or the administrator so as to achieve the object ofthe legislation or the purpose of the administrative order, asthe case may be. Under the principle, the Court will see thatthe legislature and the administrative authority “maintain aHproper 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 purposewhich they were intended to serve”. The legislature and theadministrative authority are, however, given an area ofdiscretion or range of choices but as to whether the choicemade 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 appliedby the European Court to protect the rights guaranteed underthe European Convention for the Protection of Human Rightsand Fundamental Freedoms, 1950 and in particular, forconsidering whether restrictions imposed were restrictionswhich were “necessary” — within Articles 8 to 11 of the saidConvention [corresponding to our Article 19(1)] and to findout whether the restrictions imposed on fundamental freedomswere more excessive than required. (Handyside v. UK [(1976)1 EHR 737] ). Articles 2 and 5 of the Convention containprovisions similar to Article 21 of our Constitution relating tolife and liberty. The European Court has applied the principleof proportionality also to questions of discrimination underArticle 14 of the Convention (corresponding to Article 14 ofour Constitution). (See European Administrative Law by J.Schwarze, 1992, pp. 677-866).

30. On account of Chapter on Fundamental Rights in PartIII of our Constitution right from 1950, Indian Courts did notsuffer from the disability similar to the one experienced byEnglish Courts for declaring as unconstitutional legislationon the principle of proportionality or reading them in mannerconsistent with the charter of rights. Ever since 1950, theprinciple of “proportionality” has indeed been appliedvigorously to legislative (and administrative) action in India.While dealing with the validity of legislation infringingfundamental freedoms enumerated in Article 19(1) of theConstitution of India — such as freedom of speech andexpression, freedom to assemble peaceably, freedom to formassociations and unions, freedom to move freely throughoutthe territory of India, freedom to reside and settle in any part

of India, — this Court has occasion to consider whether therestrictions imposed by legislation were disproportionate tothe situation and were not the least restrictive of the choices.The burden of proof to show that the restriction wasreasonable lay on the State. “Reasonable restrictions” underArticles 19(2) to (6) could be imposed on these freedoms onlyby legislation and Courts had occasion throughout to considerthe proportionality of the restrictions. In numerous judgmentsof this Court, the extent to which “reasonable restrictions”could be imposed was considered. In Chintamanrao v. Stateof M.P. [1950 SCC 695 : AIR 1951 SC 118 : 1950 SCR 759]Mahajan, J. (as he then was) observed that “reasonablerestrictions” which the State could impose on the fundamentalrights “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 course which reason dictated.Legislation which arbitrarily or excessively invaded the rightcould not be said to contain the quality of reasonablenessunless it struck proper balance between the rightsguaranteed 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 LJ966] , observed that the Court must keep in mind the “natureof the right alleged to have been infringed, the underlyingpurpose of the restrictions imposed, the extent and urgencyof the evil sought to be remedied thereby, the disproportionof the imposition, the prevailing conditions at the time”. Thisprinciple of proportionality vis-àvis legislation was referredto by Jeevan Reddy, J. in State of A.P. v. McDowell & Co.[(1996) 3 SCC 709] recently. This level of scrutiny has beena common feature in the High Court and the Supreme Courtin the last fifty years. Decided cases run into thousands.

32. So far as Article 14 is concerned, the Courts in Indiaexamined whether the classification was based on intelligibledifferentia and whether the differentia had reasonable nexus

with the object of the legislation. Obviously, when the Courtsconsidered the question whether the classification was basedon intelligible differentia, the Courts were examining thevalidity 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 beenstruck down as being arbitrary in the sense of beingunreasonable [see Air India v. Nergesh Meerza [(1981) 4 SCC335 : 1981 SCC (L&S) 599] (SCC at pp. 372-373)]. But thislatter aspect of striking down legislation only on the basis of“arbitrariness” has been doubted in State of A.P. v. McDowelland Co. [(1996) 3 SCC 709] .33. In Australia and Canada, the principle of proportionalityhas been applied to test the validity of statutes [see Cunliffev. 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 hasobserved that there are three important components of theproportionality test. First, the measures adopted must becarefully designed to achieve the objective in question. Theymust not be arbitrary, unfair or based on irrationalconsiderations. In short, they must be rationally connectedto the objective. Secondly, the means, must not only berationally connected to the objective in the first sense, butshould impair as little as possible the right to freedom inquestion. Thirdly, there must be “proportionality” betweenthe effects of the measures and the objective. See also Ross v.Brunswick School Dishut No. 15 [(1996) 1 SCR 825] (SCRat p. 872) referring to proportionality. English Courts had nooccasion to apply this principle to legislation. The aggrievedparties had to go to the European Court at Strasbourg for adeclaration.

34. In U.S.A., in City of Boerne v. Flores [(1997) 521 US507] the principle of proportionality has been applied tolegislation by stating that “there must be congruence andproportionality between the injury to be prevented or remediedand the means adopted to that end”.

35. Thus, the principle that legislation relating to restrictionson fundamental freedoms could be tested on the anvil of“proportionality” has never been doubted in India. This iscalled “primary” review by the Courts of the validity oflegislation which offended fundamental freedoms.

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45. Under Article 3(1) of the Human Rights Act, 1998 theEnglish Court can now declare the legislative action asincompatible with the rights and freedoms referred to in theschedule. The Minister is then to move Parliament forCnecessary amendment to remove the incompatibility. Whiledoing so, the English Court, can now apply strict scrutiny orproportionality to legislative and administrative action. Theprinciple is now treated as central to English law (See HumanRights Law and Practice by Lord Lester of Herne Hill, Q.C.D& David Pannick QC, 1999, para 3.16). The more thethreshold of Wednesbury irrationality is lowered whenfundamental human rights are on play, the easier it will becometo establish judicial review as an effective remedy with Article13 of the 1998 Act (see, ibid, Supplement August, 2000, para4.13.12).E

48. This test of proportionality has been developed by the IndianCourts throughout the years and has now attained the form of five-pronged test, as stated in the K. S. Puttaswamy & Anr. Vs. Union ofIndia & Ors.[12] judgment, and more recently, in the Gujarat MazdoorFSabha & Anr. Vs. State of Gujarat[13].

49. In K.S.Puttaswamy (Supra), nine-Judge Bench of this Courtwhile deciding the question as to whether the Constitution of Indiaguarantees to each individual fundamental right to privacy, expoundedthe ‘principle of proportionality and legitimacy’ in relation to infringementGof rights as result of State measures. It was held that proportionality isessential for protection from arbitrary State action as it ensures that thenature and quality of the encroachment on the right is in proportion to

12 (2017) 10 SCC 113 (2020) 10 SCC 459

the purpose of law. While summarizing the aforementioned principleinto four-pronged test, the Bench held:

“…The action must be sanctioned by law;

The proposed action must be necessary in democratic societyfor legitimate aim;

The extent of such interference must be proportionate to theneed for such interference;

There must be procedural guarantees against abuse of suchinterference.”

50. In the case of Gujrat Mazdoor Sabha (Supra) during covid-19, the Central Government had passed notification severely affectingthe 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 heldthat, in order to determine the validity of state action that could infringeon fundamental rights, it must pass the following conditions, namely, (i)The interfering with the fundamental rights must have state purpose,(ii) the said rights infringing measure must be based on rational nexusbetween the interference and the state aim,(iii) the measures bust benecessary to achieve the state aim,(iv) the restrictions must be necessaryto protect the legitimate objective and (v) The state should providesufficient safeguards for the possibility of an abuse of such rights infringinginterference. On the basis of these conditions of proportionality, this Courtstruck down the notification.

51. Although the fifth prong, as mentioned in the Gujarat MazdoorSabha (Supra) has not been expressly mentioned in Puttaswamy,Chandrachud J (as His Lordship then was), in our view, rightly has readthat in in the Gujarat Mazdoor Sabha case (supra) to complete thetest. State action that leaves sufficient room for abuse, thereby acting asa threat against free exercise of fundamental rights, ought to necessarilybe factored in in the delicate balancing act that the judiciary is calledupon to do in determining the constitutionality of such state action -whether legislative, executive, administrative or otherwise. The relevantparagraph of the judgment has been mentioned herein:

“The principle of proportionality has been recognized in aslew of cases by this Court, most notably in the seven-judgebench decision in K S Puttaswamy vs. Union of India. Theprinciple of proportionality envisages an analysis of thefollowing conditions in order to determine the validity of stateaction that could impinge on fundamental rights:

(i) law interfering with fundamental rights must be inpursuance of legitimate state aim;

(ii) The justification for rights-infringing measures thatinterfere with or limit the exercise of fundamental rights andliberties must be based on the existence of rationalconnection between those measures, the situation in fact andthe object sought to be achieved;

(iii) The measures must be necessary to achieve the objectand must not infringe rights to an extent greater than isnecessary to fulfil the aim;

(iv) Restrictions must not only serve legitimate purposes; theymust also be necessary to protect them; and

(v) The State should provide sufficient safeguards against theabuse of such interference.

We are unable to find force in the arguments of the learnedcounsel for the Respondent. The impugned notifications donot serve any purpose, apart from reducing the overhead costsFof all factories in the State, without regard to the nature oftheir manufactured products. It would be fathomable, andwithin the PART 30 realm of reasonable possibility duringa pandemic, if the factories producing medical equipment suchas life-saving drugs, personal protective equipment orGsanitisers, would be exempted by way of Section 65(2), whilejustly compensating the workers for supplying their valuablelabour in time of urgent need. However, blanketnotification of exemption to all factories, irrespective of themanufactured 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 chainsof servitude.”

52. We have already in the discussion for the reasonableclassification test held that the interfering law, i.e. the impugned notificationthat creates the classification, does not have rational nexus to theobject sought to be achieved, and thus, violates the first two prongs ofthe proportionality test.

53. We then come to the third and fourth prong of the proportionalitytest, i.e whether the classification created by the Authority was anecessity to achieve the state aim of compensating those landownersthat are either direct residents of the land or the land exists as theirprimary source of income and whether such measure was proportionalto the object sought to be achieved. For this, it is pertinent to refer toSection 23 of the Act, which provides for matters to be taken into accountwhile 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 awardedfor land acquired under this Act, the Court shall take intoconsideration

first, the market value of the land at the date of the publicationof the [notification under section 4, sub-section (1)];

secondly, the damage sustained by the person interested, byreason of the taking of any standing crops trees which maybe on the land at the time of the Collector’s taking possessionthereof;

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 personinterested, at the time of the Collector’s taking possession ofthe land, by reason of the acquisition injuriously affectinghis other property, movable or immovable, in any other manner,or his earnings;

Afifthly, in consequence of the acquisition of the land by theCollector, the person interested is compelled to change hisresidence or place of business, the reasonable expenses (ifany) incidental to such change, and

sixthly, the damage (if any) bona fide resulting from diminutionBof the profits of the land between the time of the publicationof the declaration under section 6 and the time of theCollector’s taking possession of the land.”

54. bare perusal of Section 23 would show that, the grounds forclassification as purported by the GNOIDA authority, have already beenCcovered by Section 23 of the Act. The fifth point of the said Sectionsquarely covers the requirement of compensating for rehabilitation ofthe affected landowners. In the presence of an already existing provisionin the act, the classification created by the GNOIDA authority, mustexist in furtherance of the said Section, and not in contrast of.D

55. The classification, as discussed above, if allowed to exist, canlead to several Gair-pushtaini landowners who may also need to berehabilitated, cannot rehabilitate themselves without compensation forthe same. This circumstance alone besides being discriminatroy pits thesaid classification against Section 23 of the Act, causing an insubordinationEto the 1894 Act. Such mischief, if allowed to exist, would not onlynullify the purpose of the Act, but also violate the third and fourth principleof the proportionality test, and hence is liable to be struck down.

56. Further, it is also important to note that the classification, evenif allowed to exist, does not come with any safeguards against its potentialFabuse. As mentioned above, the said notification by way of itsclassification creates disastrous mischief, and the notification does nothingto remedy such potential abuse. No guidelines for the said classificationexist, nor are there any bars placed. If such classification is left unchecked,it may lead to bad precedence, and disastrous ramifications in theGfuture.This lack of substantive guidelines also violates the fifth prong ofthe proportionality test.57. On the basis of the abovementioned discussions emergingfrom the settled principles, Issue no. 2 is answered in affirmative and infavour of the Appellants herein, and the impugned classification is liableHto be struck down as violative of Article 14 of the Constitution of India.

-Whether the classification made by the FullBench of the HighCourt betweenPushtaini landowners and Gair-pushtaini landownersis in contravention to thelaw laid down by this Hon’ble Court in thecase of Nagpur Improvement Trustand another vs. Vithal Rao andothers (1973) 1 SCC 500?

58. In the case of Nagpur Improvement Trust (Supra) thisHon’ble Court was tasked to deal with the question of whether certainprovisions the Nagpur Improvement Trust Act, 1936 were in violation ofArticle 14. Here, the impugned provisions of the said Act allowed theacquisition of lands at rates lower than the rates as prescribed in theLand 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 achievingland for public purposes is met with, irrespective of the type of ownerwhose land is being acquired. The relevant paragraphs from the judgmentreads as under:-

“It is now well-settled that the State can make reasonableclassification for the purpose of legislation. It is equally well-settled that the classification in order to be reasonable mustsatisfy two tests: (i) the classification must be founded onintelligible differentia and (ii) the differentia must have arational relation with the object sought to be achieved by thelegislation in question.

In this connection it must be borne in mind that the objectitself should be lawful. The object itself cannot bediscriminatory, for otherwise, for instance, if the object is todiscriminate against one section of the minority thediscrimination cannot be justified on the ground that there isa reasonable classification because it has rational relationto the object sought to be achieved.

What can be reasonable classification for the purpose ofdetermining compensation if the object of the legislation is tocompulsorily acquire land for public purposes?

It would not be disputed that different principles ofcompensation cannot be formulated for lands acquired onthe basis that the owner is old or young, healthy or ill, tall or

468SUPREME COURT REPORTS

Ashort, or whether the owner has inherited the property orbuilt it with his own efforts, or whether the owner is politicianor an advocate. Why is this sort of classification notsustainable? Because the object being to compulsorily acquirefor public purpose, the object is equally achieved whetherthe land belongs to one type of owner or another type.”B

59. In our opinion, bare reading of the abovementioned judgmentmakes it amply clear that the classification made by the GNOIDAauthority for the purposes of awarding differential compensation is badin law, and it is precisely this kind of classification that has been barred.CWhen the purpose of the acquisition of the land is for the benefit of thepublic at large, then the nature of the owner of the said land isinconsequential to the purpose. If such classification on the basis ofthe nature of owner is allowed, then on the same grounds, there mightbe possibility of future classifications where powerholding membersof the society may get away with larger compensation, and theDmarginalized may get lesser compensation. This is precisely what thisCourt in the abovementioned judgment predicted,and to pre-empt sucharbitrary classification, clarified the position in law.

60. The Land Acquisition Act does not distinguish between classesof owners, and uniformly provides compensation to all class ofElandowners. The classification made between Pushtaini landowners andGair-pushtaini landowners, on the basis of the reasoning mentioned above,is violative of the law laid down in the Nagpur Trust case (Supra) andArticle 14 of the Constitution.

FConclusion

61. In light of the above-mentioned reasoning, we are of the opinionthat 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 envisageany differential compensation on the basis of such classification, andGhence, this Court must infer the compensation to be provided by theexecutive actions within the confines of Section 23 of the Act.

62. Section 23 of the Land Acquisition Act states out the groundsfor granting compensation in cases of acquisition of land under the Act.One such reason for the grant of compensation is rehabilitation, and it isHthis need for granting compensation for rehabilitation under the Act that

is echoed by the impugned notification. bare reading of both theexecutive actions in consonance with the Act would show that the needfor giving compensation for rehabilitation is valid in law and is backed bythe parent statute. The mischief then, is only limited to the arbitraryclassification made by such actions. In such case, we are of the opinionthat since the mischief lies only within the classification, it can be severed,and the remaining part of the executive actions that sets out to grantcompensation for the purpose of rehabilitation remains valid in law.

63. Once the classification is removed, and the executive actionsare read in consonance with the parent act, we would see that since theAct, and now even the executive actions do not discriminate in terms ofcompensation, the ex-gratia payment and the increased base amount, asenunciated by the executive actions, must be given to all landowners inthe subject area.

64. At this stage, we would like to state that while the objective ofthe said classification might have been noble, however, such classificationonly on the basis of conjectures and surmises cannot be sustained. If aclaim is being made to differentiate between class of persons, such claimmust be backed by empirical data. While this Court is not fact-findingCourt and is Court of law, however, the law must also not be understoodin isolation, but in the context in which it exists, as the law does not existlike an object within the statutes, but lives and evolves with the people itgoverns.

65. Further, in cases of administrative action, even if theclassification has rational nexus to the objective of the notification, theclassification must also be legitimized by the parent statute. If the parentstatute does not allow for classification, then, even if the classificationvis-à-vis the notification is able to pass the tests of Article 14, it wouldstill be liable to struck down if the parent statute does not allow for thesame.

66. The establishment of Greater Noida, as discussed above,was done for noble purpose, i.e., to accommodate in the city all thosewho came travelling from every corner of the country in search of abetter life. While doing so however, as can be seen in the present case,some residents whose land was subject to acquisition in the pursuit ofthe said aim, were faced with discrimination. In such circumstance, it

Abecomes the duty of this Court to dispense justice, and rectify the harmcaused to those at the receiving end of the discrimination.

67. In view of the above discussions, the impugned judgment passedby the Full Bench of the High Court is not liable to be sustained andstands set aside. As consequence, the Writ Petition filed by theBappellants before the High Court stands allowed and the appellants areheld 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 asCto costs.

Divya Pandey(Assisted by : Rakhi, LCRA)

Appeals allowed.