TMI Blog2002 (9) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Act and the judgments and orders of the High Court on this aspect of the matter must be set aside. In these cases as well the Collector had made his Award much before 30th April, 1982 and, therefore, the appellant's claim for additional amount under Section 23(1-A) must be rejected. - Appeal (crl.), 1164-1200 of 1993, CIVIL APPEAL NO.3789 OF 1992, 6590-6592 OF 2001, 9206 -9214 of 1995, 9260-9261 & 839 OF 1995, PETITION (CIVIL) NO.8256-8259 OF 1993,12949 of 1992,.3331 of 1993, 3210 OF 1999 - - - Dated:- 26-9-2002 - KIRPAL, B.N., PATIL, S.V. AND SINGH, BISHESHWAR P., JJ. JUDGMENT B.P. SINGH, J. In this batch of appeals and special leave petitions the common question which arises for consideration is whether the provisions of the Land Acquisition Act, 1894, particularly Sections 6, 23(2) and 28 thereof stand incorporated in the three State Acts with which we are concerned in these matters or whether the Land Acquisition Act has been merely referred to in the State Acts. If it is held that the provisions of the Land Acquisition Act stand legislatively incorporated in the State Acts, the subsequent amendments to the Land Acquisition Act will have no effect upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lapsed on expiry of three years from the date of its publication, and no action pursuant to the said notice could have been taken thereafter. In Civil Appeal No. 839 of 1995 which arises under the U.P. Act, the High Court of Judicature at Allahabad dismissed the writ petitions challenging the acquisitions before it holding that Section 6 of the Land Acquisition Act was legislatively incorporated in the U.P. Act which was of the year 1965, and that the subsequent amendment of Section 6 of the Land Acquisition Act in the year 1967 did not affect the provisions of the U.P. Act including Section 6 of the Land Acquisition Act as incorporated in the U.P. Act. It, therefore, rejected the contention urged on behalf of the petitioners that acquisition proceedings lapsed on expiry of the period of three years from the date of issuance of Notification under Section 28 of the U.P. Act which corresponds with Section 4 of the Land Acquisition Act. The High Court relied upon its Full Bench decision in Doctors Sahakari Gram Nirman Samiti Ltd. vs. Avas and Vikas Parishad etc. , AIR 1984 Allahabad 234. In Civil Appeal Nos. 6590-6592 of 2001, the sole question is whether the claimants are entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trust is required to serve a notice on every person, whom the Trust has reason to believe, to be the owner of any immovable property which it is proposed to acquire in executing the scheme and the occupier of such premises. Under Section 41 the State Government may sanction, either with our without modification, or may refuse to sanction, or may return for reconsideration, any scheme submitted to it under Section 40 of the Act. In case scheme is sanctioned by the State Government, Section 42 mandates the State Government to notify the sanction of the scheme under the Act whereafter the Trust shall proceed to execute the scheme in accordance with the provisions of the Act. A notification under sub-section (1) of Section 42 in respect of any scheme is conclusive evidence that the scheme has been duly framed and sanctioned. Chapter V deals with the powers and duties of the Trust where the scheme has been sanctioned. Chapter VI deals with the acquisition proceedings and the application of the Act to other authorities. Section 56 thereunder enables the State Government to abandon the acquisition of land in certain cases on payment being made of a sum to be fixed by the Trust. A Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of the schedule seek to amend sections 11, 15, 17, 18, 19, 20, 23, 24, 31 49 of the Land Acquisition Act. Two new provisions have been inserted, namely Sections 24A and 48A. The relevant part of paragraphs 6 and 10 of the schedule which seek to add Section 17-A and modify Section 23 of the Land Acquisition Act are as follows :- "6. Transfer of land to Trust - After section 17 of the said Act, the following shall be deemed to be inserted, namely :- 17-A. In every case referred to in section 16 or section 17, the Collector shall, upon payment of the cost of acquisition, make over charge of the land to the trust, and the land shall thereupon vest in the trust subject to the liability of the trust to pay any further costs which may be incurred on account of its acquisition". "10. Amendment of section 23. (1) In clause first and clause sixthly of sub-section (1) of section 23 of the said Act, for the words "publication of the declaration relating thereto under section 6" and the words "publication of the declaration under section 6", shall be deemed to be substituted. (a) if the land is being acquired under sub-section (3) of section 32 of this Act the words "issue of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a deferred street scheme; a house accommodation scheme etc. etc. Sections 36 to 47 prescribe the procedure to be followed in framing an improvement scheme. Section 39 provides that when any improvement scheme has been framed, the Trust shall prepare a notice stating the fact that the scheme has been framed; the boundaries of the area comprised in the scheme and such other particulars as are specified in that section. Under Section 41, during the thirty days next following the first day on which any notice is published under Section 39 in respect of any improvement scheme, the Trust shall serve a notice on every person whose name appears in the Municipal assessment list of land as owner of any building or land which it proposed to acquire in executing the scheme or in regard to which it proposed to recover a betterment contribution. The notice shall state that the Trust propose to acquire such land or to recover such betterment contribution for the purposes of carrying out an improvement scheme. The notice shall call upon such person, if he dissents from such acquisition or from the recovery of such betterment contribution, to state his reason in writing within a period of sixty day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents by the same means, and so far as may be, in the same manner, as is provided in case of a Civil Court under the Code of Civil Procedure, 1908 ; and (d) the award of the Tribunal shall be deemed to be the award of the Court under the Land Acquisition Act, 1894, and shall be final". It is not necessary to refer to other provisions of the Act. However, the Schedule to the Act provides for further modification of the Land Acquisition Act, 1894. Clauses 2 and 3 of the Schedule are significant and they are reproduced below:- "2. (1) The first publication of a notice of an improvement scheme under section 39 of the Nagpur Improvement Trust Act, 1936, shall be substituted for, and have the same effect as publication in the official Gazette and in the locality of, a notification under sub-section (1) of section 4, except where a declaration under section 4 or section 6 has previously been made and is still in force. (2) Subject to the provisions of clauses 10 and 11 of this Schedule, the issue of notice under sub-section (4) of section 32 of the Nagpur Improvement Trust Act 1936, in the case of land acquired under that sub- section, and in any other case the publication of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Evam Vikas Parishad vs. Jainul Islam and another : (1998) 2 SCC 467. It will thus be seen that the three State Acts follow the same pattern and incorporate a common scheme. The provisions of the Land Acquisition Act with certain modifications are made applicable to acquisitions made for purposes of execution of the schemes under those Acts. There is also a striking similarity between schedules to the Punjab and Nagpur Acts, and even though they may not be identical they are in pari materia. The schedule to the U.P. Act is not as detailed but that is due to the fact that many of the modifications in the Land Acquisition Act have been brought about by the provisions of the Act itself. The schedule modifies sections 17, 23 and 49 of the Land Acquisition Act, and adds a new section 17-A which is identical to Section 17-A inserted in Punjab and Nagpur Acts. It also gives to the notifications under Section 28(1) and 32(1) of the U.P. Act, the same effect as notifications published under Sections 4 and 6 respectively of the Land Acquisition Act. Mr. Rajinder Sachar, learned Senior Counsel appearing on behalf of Jalandhar Improvement Trust in Civil Appeal No.9206 of 1995 submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment while Sections 59 to 68 deal with compulsory acquisition under the provisions of the Land Acquisition Act as modified by the provisions of the Nagpur Act. The Nagpur Act has its own exhaustive mechanism and procedure for acquisition of land and further it adopts provisions of Land Acquisition Act, 1894 as it stood in 1936 with specific, numerous, and detailed modifications which make out a clear case of incorporation of Land Acquisition Act, 1894 as it then stood with modifications. He further contended that it cannot be that the legislature intended that subsequent amendments in the Land Acquisition Act, 1894 should automatically apply to the Nagpur Act. So far as the U.P. Act is concerned, Shri Dwivedi submitted that having regard to the scheme of the Act and the modifications to the Land Acquisition Act, 1894, it was also a case of incorporation of the provisions of the Land Acquisition Act, 1894 as amended in its application to the State of U.P. subject to the modifications contained in the Schedule to the Adhiniyam. A separate exhaustive code exists for acquisition under the Adhiniyam. He, however, submitted that while applying Article 14, the nature of the provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon the opinion of Sahai, J. in Gauri Shankar Gaur and others vs. State of U.P. and others : (1994) 1 SCC 92 but conceded that the said view has not been approved by this Court by a larger Bench in U.P. Avas Evam Vikas Parishad vs. Jainul Islam and another : (1998) 2 SCC 467. He pointed out that even though the Nagpur Improvement Trust vs. Vithal Rao (supra) dealt with a matter which was confined to the question of compensation, the same principle should apply to cases where the application of proviso to Section 6 of the Land Acquisition Act is involved. Lastly he contended that this Court must hold that the provisions of the State Acts were supplemental in nature and are, therefore, covered by the first exception enunciated in State of Madhya Pradesh vs. M.V. Narasimhan : (1975) 2 SCC 377. Shri K.C. Jain appearing on behalf of the respondents in C.A. No.1166 of 1993, an appeal preferred by the Nagpur Improvement Trust, submitted that Section 59 as well as Section 61(b) of the Nagpur Act simply cites/refers to the Land Acquisition Act and does not incorporate it referentially. Hence all the amendments made to the Land Acquisition Act must apply automatically. In the alterna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as appear relevant for decision of the appeals and special leave petitions before us. At the outset we may dispose of Civil Appeal Nos. 6590 to 6592 of 2001. This Court by its order dated September 19, 2001 has already upheld the contention of the appellants that they are entitled to interest on the amount envisaged in Section 23(2) of the Land Acquisition Act. In these three appeals, therefore, the sole question that survives for consideration is whether the appellants whose lands have been acquired under the Land Acquisition Act are also entitled to interest on the sum payable under sub-section (1-A) of Section 23 of the Land Acquisition Act, 1894. The High Court by its impugned judgment and order following the earlier decision of this Court in Prem Nath Kapur and another vs. National Fertilizers Corporation of India Limited and others : (1996) 2 SCC 71, dismissed the writ petitions preferred by the appellants holding them to be not entitled to interest on the sum payable under Section 23(1-A) of the Land Acquisition Act. The matter was reconsidered by a Larger bench of this Court and the question now stands concluded by an authoritative pronouncement of this Court in Sunder v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India (supra). We shall now proceed to consider whether the provisions of the Land Acquisition Act, 1894 as modified by the State Acts stand incorporated in the State Acts or whether there is a mere reference or citation of the land Acquisition Act in the State Acts. The law on the subject is well settled. When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act as if they had been bodily transposed into it. The incorporation of an earlier Act into a later Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the later. But this must be distinguished from a referential legislation which merely contains a reference or the citation of the provisions of an earlier statute. In a case where a statute is incorporated, by reference, into a second statute, the repeal of the first statute by a third does not affect the second. The later Act alongwith the incorporated provisions of the earlier Act constitute an independent legislation which is not modified or repealed by a modification or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of the earlier legislation applicable to matters covered by the later legislation. Such a legislation may either be (i) a referential legislation which merely contains a reference to or the citation of the provisions of the earlier statute; or (ii) a legislation by incorporation whereunder the provisions of the earlier legislation to which reference is made are incorporated into the later legislation by reference. If it is a referential legislation the provisions of the earlier legislation to which reference is made in the subsequent legislation would be applicable as it stands on the date of application of such earlier legislation to matters referred to in the subsequent legislation. In other words, any amendment made in the earlier legislation after the date of enactment of the subsequent legislation would also be applicable. But if it is a legislation by incorporation the rule of construction is that repeal of the earlier statute which is incorporated does not affect operation of the subsequent statute in which it has been incorporated. So also any amendment in the statute which has been so incorporated that is made after the date of incorporation of such statute d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Land Acquisition Act, as referred to in the relevant sections of the Punjab Act, are given effect to as amended by the relevant sections of the Punjab Act. In these circumstances, it cannot be held that any provisions of the Land Acquisition Act have been incorporated into the Punjab Act and, therefore, the provisions of the Land Acquisition Act, as they stood at the time of acquisition, would be applicable in the absence of any contrary intention. The judgment was rendered by a bench of two Judges of this Court. The same question again arose in Gauri Shankar Gaur and others vs. State of U.P. and others (supra) in the context of the provisions of the U.P. Act. A two Judge Bench of this Court upheld the validity of the acquisition but the learned judges recorded different reasons for coming to the same conclusion. After referring to a large number of decisions of this Court Ramaswami, J. recorded his conclusion in the following words:- "33. Section 55 of the Act read with the schedule made an express incorporation of the provisions of Section 4 (1) and Section 6 as modified and incorporated in the schedule. The schedule effected necessary structural amendments to Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave invested their life's savings in purchasing these houses and hence the demolition of houses which are standing over the land and rendering its occupants homeless shall result in incalculable loss and injury. Larger social interest, therefore, required this Court to mould the relief in such manner that justice may not suffer. Since the issuance of the notifications under Section 4 and Section 6 were not flawed, and the infirmity arose due to procedural delay, the principle that delay destroys the remedy but not the right, were applicable. The Parishad could have acquired the land by issuing fresh notification. In these circumstances the equity could be adjusted by directing that the compensation to the land owners shall be paid by assuming that fresh proceedings for acquisition were taken in the year in which declaration was issued. We may observe that in reaching the conclusion that this was not a case of incorporation of the provisions of the Land Acquisition Act into the U.P. Act, Sahai, J. relied upon the decision of this Court in Bhatinda Improvement Trust vs. Balwant Singh and others (supra). It would thus appear that for different reasons the learned Judges came to the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and the effect is, in their Lordship's opinion to enact for the purposes of the local Act a special law for the acquisition of land by the trustees within the limited area over which their powers extend. * * * * * Their Lordships regard the local Act as doing nothing more than incorporating certain provisions from an existing Act, and for convenience of drafting doing so by reference to that Act, instead of setting out for itself at length the provisions which it was desired to adopt." The Privy Council in the aforesaid judgment also made the following observations :- "But their Lordships think that there are other and perhaps more cogent objections to this contention of the Secretary of State, and their Lordships are not prepared to hold that the sub-section in question, which was not enacted till 1921, can be regarded as incorporated in the local Act of 1911. It was not part of the Land Acquisition Act when the local Act was passed, nor in adopting the provisions of the Land Acquisition Act is there anything to suggest that the Bengal Legislature intended to bind themselves to any future additions which might be made to that Act. It is at least conceivable that new pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to be in pari materia with the Land Acquisition Act because the U.P. Act also dealt with matters which did not fall within the ambit of the Land Acquisition Act. It could not also be said that the 1984 Act, expressly or by necessary intendment applied the said amendments to the U.P. Act. The Court then posed the question "Can it be said that if the amendments made in the Land Acquisition Act by the 1984 Act are not incorporated in the Adhiniyam, it would be rendered unworkable ? The Court observed that Sahai, J. had expressed the view that the exceptional situations referred to in The State of Madhya Pradesh vs. M.V. Narasimhan (supra) can be extended further in our constitutional set-up, and that the courts should lean against the construction which may result in discrimination. Relying upon the judgment of this Court in Nagpur Improvement Trust and another vs. Vithal Rao and others (supra) it was contended in U.P. Avas Evam Vikas Parishad vs. Jainul Islam and another (supra) by the land owners that if the provisions of the Land Acquisition Act as they stood on the date of enactment of the U.P. Act without the amendments introduced by the 1984 Act relating to determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd if the acquisition took place under the Land Acquisition Act, as amended. The compensation payable to the owner whose land is acquired for the purposes of the U.P. Act would be less than the compensation payable to the owner whose land is acquired under the Land Acquisition Act, as amended by the 1984 Act. After considering the decision in Nagpur Improvement Trust and another vs. Vithal Rao and others (supra) this Court held that the reasons which weighed with this Court in Nagpur Improvement Trust and another vs. Vithal Rao and others (supra) in striking down the provisions of the Nagpur Improvement Trust Act whereby Section 23 of the earlier Act had been modified in its application for the purposes of application to the said Act, would equally apply while construing the constitutional validity of the U.P. Act wherein the provisions of Section 23 of the Land Acquisition Act have been modified under the schedule to the U.P. Act. This Court found that the provisions of the U.P. Act are very similar to those contained in the Nagpur Improvement Trust Act. Section 55 of the U.P. Act is similar to Section 59 of the Nagpur Improvement Trust Act inasmuch as both the provisions provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able with the provisions contained in Sections 38 and 39 of the U.P. Act which provided for vesting of certain public lands vested in the local authority or private street or square and payment of compensation for such lands. The case of Prakash Amichand Shah vs. State of Gujarat and others (supra) was, therefore, distinguished. Having considered all aspects of the matter, this Court recorded its conclusion in the following words :- "31. Since the present case involves acquisition of land under the provisions of the LA Act as applicable under the Adhiniyam, it is fully covered by the law laid down by this court in Nagpur Improvement Trust. Keeping in view the principles laid down in the said decision of this Court, it has to be held that if the provisions of the Adhiniyam are so construed as to mean that the provisions of the LA Act, as they stood on the date of enactment of the Adhiniyam, would be applicable to acquisition of land for the purpose of the Adhiniyam and that the amendments introduced in the LA Act by the 1984 Act relating to determination and payment of compensation are not applicable, the consequence would be that the provisions of the LA Act, as applicable under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compensation, in the Land Acquisition Act, 1894. There was nothing in the U.P. Act which precluded the Court from adopting such a construction, and this was necessary to save the Act from the vice of arbitrary and hostile discrimination. This Court also found that the provisions of the Nagpur Act, with which we are concerned, were similar to the provisions of the U.P. Act. This aspect of the matter has been discussed in paragraph 27 of the report. We have also considered the provisions of the Nagpur Act as well as the provisions of the Punjab Act. We are satisfied that the aforesaid two Acts as well as the U.P. Act have a common scheme and pattern. All the three legislations relate to town planning and development, and each one of them specifies the various schemes that may be undertaken. For acquisition of land for the purposes of any of the schemes under the said Acts, the Land Acquisition Act 1894 has been made applicable with certain modifications as contained in the schedule to the said Acts which are numerous and substantial. The modifications made are also similar. We have found no distinction in the three Acts which may have a bearing on the question relating to legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand Shah vs. State of Gujarat and others (supra). In these circumstances with a view to save the law from the vice of arbitrary and hostile discrimination, the provisions must be construed to mean, in the absence of anything to the contrary, that the provisions of the Land Acquisition Act as amended by the 1984 Act relating to determination and payment of compensation would apply to acquisition of land for the purposes of the State Acts. It must, therefore, be held that while incorporating the provisions of the Land Acquisition Act in the State Acts, the intention of the legislature was that amendments in the Land Acquisition Act relating to determination and payment of compensation would be applicable to acquisition of lands for the purposes of the State Acts. Consequently the claimants are entitled to the benefits conferred by Section 23(1-A), if applicable, and Section 23(2) and 28 of the Land Acquisition Act as amended by the 1984 Act for acquisition of land for the purposes of the State Acts under Sections 59 of both the Nagpur and the Punjab Acts. We shall now proceed to consider the other submissions urged before us. In so far as the Punjab cases are concerned, the chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the land is acquired by one authority or the other. Thus, viewed from any angle, the submission must be rejected. Learned counsel then relied upon the two decisions of this Court in Maneklal Chhotalal and others vs. M.G. Makwana and others (supra) and State of Gujarat vs. Shantilal Mangaldas and others (supra), and submitted that the law as laid down in those decisions must apply to the cases in hand. Both these decisions were considered in a later decision of this Court in Prakash Amichand Shah vs. State of Gujarat and others (supra) and followed. In Jainul Islam's case (supra) this Court considered the decision in Prakash Amichand Shah vs. State of Gujarat and others (supra) and distinguished it. It must, therefore, be held that the aforesaid two decisions on which Mr. Sachar relies do not advance the case of the Trust. Those cases are clearly distinguishable. Mr. Sachar then contended that even if the claimants cannot be deprived of the enhanced solatium under Section 23(2) of the Land Acquisition Act, in the facts of this case the owners are not entitled to the benefit of additional compensation payable under Section 23(1-A) of the Land Acquisition Act which has been br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication corresponding to the declaration under Section 6 of the Land Acquisition Act was made more than 3 years after the expiry of the date of the publication of the Notification corresponding to the Notification under Section 4 of the Land Acquisition Act. This was on the assumption that the provisions of the Land Acquisition Act were not incorporated in the State Acts but were merely referred to and the amendment of Section 6 of the Land Acquisition by insertion of proviso thereto by Act 13 of 1967, would apply to the acquisitions. We have already held that the provisions of the Land Acquisition Act as modified by the State Acts and the Schedule thereto stand incorporated in the State Acts and, therefore, the subsequent amendments of Section 6 by the Land Acquisition (Amendment and Validation) Act, 1967 (Act No. 13 of 1967) or by Act 68 of 1984, will have no effect on the acquisition made under the State Acts. The High Court of Allahabad has taken this view while the High Court of Bombay, Nagpur Bench, Nagpur has taken the contrary view. The appeals, therefore, which are directed against the judgment of the High Court of Allahabad must be dismissed and those against the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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