TaxTMI 
TaxTMI 
2002 (9) TMI 798
X X X X Extracts X X X X
X X X X Extracts X X X X
.... effect upon the acquisitions made under the State Acts. We are concerned with three State Acts, namely, The Punjab Town Improvement Act, 1922 (hereinafter referred to as 'the Punjab Act') ; The Nagpur Improvement Trust Act, 1936 (hereinafter referred to as 'the Nagpur Act') and The Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as 'the U.P. Act'). C.A. Nos. 9206 to 9214 of 1995; C.A. Nos. 9260-9261 of 1995; C.A. No. 3789 of 1992; SLP (C) No. 12949/1992; SLP (C) No. 3331/1993 & SLP (C) No. 3210/1999 relate to acquisitions made under the Punjab Act. C.A. No. 839 of 1995 and C.A. Nos. 6590 to 6292 of 2001 relate to acquisitions under the U.P. Act while C.A. Nos. 1164-2000 of 1993 and SLP (C) Nos. 8256-8259 of 1993 relate to acquisitions made under the Nagpur Act. In the matters arising under the Punjab Act, the High Court of Punjab and Haryana held that the claimants, whose lands were acquired under the Punjab Act were entitled to additional compensation under Section 23(1-A) of the Land Acquisition (Amendment) Act, 1984 as also to the solatium under Section 23(2) and interest under Section 28 of the Land Acquisition Act as amended by Act 68 of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....laimants are entitled to interest on the sum payable under Section 23 of the Land Acquisition Act. The Punjab Act was enacted to make provision for the improvement and expansion of towns in Punjab. The Nagpur Act also makes provisions for the improvement and expansion of the town of Nagpur. The U.P. Act has the same objective but applies to whole of the State of Uttar Pradesh, excluding the Cantonment areas. All these State Acts incorporate a similar scheme and follow a common pattern. They provide for the constitution of Trust or Board, as the case may be, and also provide for various schemes for the improvement and expansion of the areas covered by the Act. All the three Acts provide for acquisition of land in accordance with the provisions of the Land Acquisition Act subject to the modifications made thereto by the Act and/or the Schedule to the Act. In a nutshell, the provisions of the Land Acquisition Act are made applicable to the acquisitions made under the State Acts subject to certain modifications as indicated in the Act and/or the Schedule thereto. Before we advert to the submissions urged at the Bar we may briefly notice the scheme under the said Acts. The Punj....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the Trust. A Tribunal is constituted under Section 58 for the purpose of performing the functions of the Court in reference to the acquisition of land for the Trust under the Land Acquisition Act, 1894. Section 59 is of considerable significance and is, therefore, reproduced below :- "59. Modification of the Land Acquisition Act, 1894 For the purpose of acquiring land under the Land Acquisition Act, 1984, for the trust (a) the tribunal shall (except for the purposes of section 54 of the said Act) be deemed to be the Court, and the president of the tribunal shall be deemed to be the Judge, under the said Act : (b) the said Act shall be subject to the further modifications indicated in the Schedule to this Act; (c) the president of the tribunal shall have power to summon and enforce the attendance of witnesses, and to compel the production of documents by the same means and (so far as may by) in the same manner as is provided in the case of a Civil Court under the Code of Civil Procedure, 1908 ; and (d) the award of a tribunal shall be deemed to be the award of the Court under the Land Acquisition Act, 1894, and shall....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ired under sub-section (3) of section 32 of this Act the words "issue of the notice under sub-section (3) of section 32 of the Punjab Town Improvement Act, 1922," and (b) in any other case, the words "first publication of the notification under section 36 of the Punjab Town Improvement Act, 1922". (2) The fullstop at the end of sub-section (2) of section 23 of the said Act shall be deemed to be changed to a colon and the following proviso shall be deemed to be added :- Provided that this sub-section shall not apply to any land acquired under the Punjab Town Improvement Act, 1922." Section 48A reads as under :- " 48-A. Compensation to be awarded when land not acquired within one year. - (1) If within a period of one year, from the date of the publication of the declaration under section 6 in respect of any land, the Collector has not made an award under section 11 with respect to such land, the owner of the land shall, unless he has been to a material extent responsible for the delay, be entitled to receive compensation for the damage suffered by him in consequence of the delay. (2) The provision of part III of this Act shall apply, so far as it may to the determin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....betterment contribution, to state his reason in writing within a period of sixty days from service of the notice. The objections are, thereafter, to be considered under Section 43 within the period prescribed. The objectors are entitled to be heard in the matter if they so desire, whereafter the Trust may either abandon the scheme or apply to the State Government for sanction of the scheme with such modification, if any, as the Trust may consider necessary. Thereafter the State Government may sanction either with or without modification, or may refuse to sanction, or may return for reconsideration, any improvement scheme submitted to it under Section 43. Section 45 provides that whenever the State Government sanctions an improvement scheme, it shall announce the fact by notification and the Trust shall forthwith proceed to execute the same. The publication of a notification under sub-section (1) of Section 45 in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned. Section 46 authorises the Trust to alter any improvement scheme after the same has been sanctioned subject to the previous sanction of the State Government, if required. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the case of land acquired under that sub- section, and in any other case the publication of a notification under section 45 of the Nagpur Improvement Trust Act, 1936, shall be substituted for, and have the same effect as a declaration by the State Government under section 6, unless a declaration under the last mentioned section has previously been made and is in force. (3) The full stop at the end of section 11 shall be deemed to be changed to a semi- colon, and the following shall be deemed to be added, namely:-- "and (iv) the costs which, in his opinion, should be allowed to any person who is found to be entitled to compensation, and who is not entitled to receive the additional sum of fifteen per centum mentioned in sub-section (2) of section 23 as having been actually and reasonably incurred by such person in preparing his claim and putting his case before the Collector. The Collector may disallow, wholly or in part, costs incurred by any person, if he considers that the claim made by such person for compensation is extravagant." The Schedule further amends Sections 15, 17, 18, 19, 20, 23, 24 & 31 of the Land Acquisition Act. The schedule inserts two new provi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ior Counsel appearing on behalf of Jalandhar Improvement Trust in Civil Appeal No.9206 of 1995 submitted that a careful analysis of the scheme of the Punjab Act would disclose that the scheme of the Punjab Act is quite different from the scheme of the Land Acquisition Act. Different equities arose under the two Acts and, therefore, the High Court was not justified in holding that even in respect of the acquisition under the Punjab Act, the claimants were entitled to the benefit of beneficial provisions under the Land Acquisition Act as brought in by amending the Land Acquisition Act by Act No. 68 of 1984. He sought to distinguish the judgments relied upon by the respondents and submitted that having regard to the principle laid down by this Court in Maneklal Chhotalal and others vs. M.G. Makwana and others : [1967] 3 SCR 65 and State of Gujarat vs. Shantilal Mangaldas and others : (1969) 1 SCC 509, it must be held that compensation was not justiciable and since the two legislations were under two different entries of the Constitution, Article 14 could not be invoked. Mr. Rakesh Dwivedi, Senior Advocate, appearing on behalf of the Nagpur Improvement Trust in C.A. Nos. 1164- 1200 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion under the Adhiniyam. He, however, submitted that while applying Article 14, the nature of the provision of the enactment under consideration becomes important. Mere absence of a limitation of time period for issuance of a declaration under Section 6 would not imply a breach of Article 14 and for this he relied upon the judgment of this Court in State of Kerala and others vs. T.M. Peter and others (supra). He further submitted that the provisions pertaining to compensation would be different from the provisions pertaining to the time limit for notifying sanction of the draft scheme. The latter would be a procedural provision which may, indirectly, impact compensation by increasing or decreasing it depending upon the market situation. Therefore, the cases of this court pertaining to compensation being equal to the compensation paid under the Land Acquisition Act in view of Article 14 of the Constitution of India, would have no applicability for invoking the proviso to Section 6 of the Land Acquisition Act in respect of the scheme under the Nagpur Act and consequently the principles laid down by this Court in Nagpur Imrovement Trust and another vs. Vithal Rao and others (supra) w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... it referentially. Hence all the amendments made to the Land Acquisition Act must apply automatically. In the alternative he submitted that even if it is assumed that the aforesaid provisions incorporate the Land Acquisition Act as it then existed in the year 1936, it falls in exceptional situations carved out by this Court, namely that it is supplemental to the Land Acquisition Act and, therefore, incidences of incorporation shall not follow. He supported the reasoning in Jainul Islam's case (supra) and submitted that not applying the amendment leads to unconstitutionality of the Act. He distinguished the decisions of this Court in Prakash Amichand Shah vs. State of Gujarat and others : (1986) 1 SCC 581 and State of Gujarat vs. Shantilal Mangaldas and others (supra) and submitted that those decisions relate to Bombay Town Planning Act and were distinguishable. So far as the instant controversy is concerned, according to him, it stands clearly covered by the decision of this Court in Nagpur Improvement Trust vs. Vithal Rao (supra). Mr. N.N. Goswami, learned Senior counsel appearing on behalf of the respondents in C.A. No.9212 of 1995 supported the impugned judgment of the High C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ger bench of this Court and the question now stands concluded by an authoritative pronouncement of this Court in Sunder vs. Union of India : 2001 (7) SCC 211 holding that the claimant is entitled to interest on the amount of compensation worked out in accordance with the provisions of Section 23 of the Land Acquisition Act including all the sub- sections thereof, meaning thereby sub-sections (1), (1-A) and (2) of Section 23. This Court held:- "No judicial exercise is required to quantify the sums mentioned in sub-section (1-A) or sub-section (2) because the section itself specifies the percentage to be worked out for the purpose of adding to the total amount arrived at under sub-section (1). Otherwise Section 26 is not intended to show that the compensation awarded would be bereft of the additional amount and the solatium envisaged under sub-section (1-A) or sub- section (2). This can be clearly discerned from the commencing words of Section 26 itself. They are: "Every award under this Part shall be in writing signed by the Judge". What is referred to therein is Part III of the Act which comprises of a fasciculus of twelve provisions starting with Section 18 and ending with Sect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted provisions of the earlier Act constitute an independent legislation which is not modified or repealed by a modification or repeal of the earlier Act. However, where in later Act there is a mere reference to an earlier Act, the modification, repeal or amendment of the statute that is referred, will also have an effect on the statute in which it is referred. It is equally well settled that the question whether a former statute is merely referred to or cited in a later statute, or whether it is wholly or partially incorporated therein, is a question of construction. In Secretary of State vs. Hindustan Cooperative Insurance Society Ltd. : AIR 1931 PC 149, the Privy Council observed :- "In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second: see the cases collected in "Craies on Statute law," Edn.3, pp. 349-50. This doctrine finds expression in a common-form section which regularly appears in the Amending and Repealing Acts which are passed from time to time in India. The section runs, The repeal by this Act of any enactment shall not affect any Act. in which such ena....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted. So also any amendment in the statute which has been so incorporated that is made after the date of incorporation of such statute does not affect the subsequent statute in which it is incorporated and the provisions of the statute which have been incorporated would remain the same as they were at the time of incorporation and the subsequent amendments are not to be read in the subsequent legislation." This is a reiteration of the principle as laid down by earlier judgments of this Court in a catena of decisions including Mary Roy vs. State of Kerala (1986) 2 SCC 209 ; Ramsarup vs. Munshi : AIR 1963 SC 553 ; Ram Kripal Bhagat vs. State of Bihar : AIR 1970 SC 951 ; Bolani Ores Ltd. vs. State of Orissa : AIR 1975 SC 17 ; Mahindra and Mahindra Ltd. vs. Union of India : AIR 1979 SC 798. It is also well settled that the question as to whether a particular legislation falls in the category of referential legislation or legislation by incorporation depends upon the language used in the statute in which reference is made to the earlier decision and other relevant circumstances. In Bhatinda Improvement Trust vs. Balwant Singh and others (supra) a question arose regarding the app....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Section 4 (1) and Section 6 as modified and incorporated in the schedule. The schedule effected necessary structural amendments to Sections 4, 6, 17 and 23 incorporating therein the procedure and principles with necessary modifications. Sections 28(2) and 32(1) prescribe procedure for publication of the notifications under Sections 28(1) and 32(1) of the Act without prescribing any limitation. It is a complete code in itself. The Act is not wholly unworkable or ineffectual though may be incompatible with provisos to Section 6(1) of the Land Acquisition Act. The U.P. Legislature did not visualize that later amendment to Central Act 1 of 1894 i.e. Land Acquisition Act would be automatically extended. We have, therefore, no hesitation to conclude that Section 55 and the schedule adapted only by incorporation Sections 4(1) and 6(1) and the subsequent amendments to Section 6 did not become part of the Act and they have no effect on the operation of the provisions of the Act." On the other hand Sahai, J. held that the language of Section 55 of the U.P. Act indicated that the legislature intended to take proceedings for acquisition of land under the Land Acquisition Act except to the e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....da Improvement Trust vs. Balwant Singh and others (supra). It would thus appear that for different reasons the learned Judges came to the same conclusion and accordingly dismissed the appeals and the writ petitions. The same question again arose for consideration in U.P. Avas Evam Vikas Parishad vs. Jainul Islam and another (supra). In view of the difference of opinion between the learned Judges in Gauri Shankar Gaur and others vs. State of U.P. and others (supra) regarding the applicability of the 1984 Act to acquisition for purposes of U.P. Act, the matter was directed to be heard by a Bench of three Judges. The appellant Parishad placed reliance on the judgment of Ramaswami, J. while the respondents strongly placed reliance on the judgment of Sahai, J. in Gauri Shankar Gaur and others vs. State of U.P. and others (supra). This Court in U.P. Avas Evam Vikas Parishad vs. Jainul Islam and another (supra) noticed the scheme of the U.P. Act and observed that Section 55 of the U.P. Act makes a reference to the provisions of the Land Acquisition Act, as amended, in its application to Uttar Pradesh, and has laid down that any land or any interest therein required by the Parishad f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 provisions might have been added to the Land Acquisition Act which would be wholly unsuitable to the local code. Nor, again, does Act 19 of 1921 contain any provision that the amendments enacted by it are to be treated as in any way retrospective, or are to be regarded as affecting any other enactment than the Land Acquisition Act itself." This Court observed that Section 55 read with the schedule to the U.P. Act are on the same lines as those contained in the Calcutta Improvement Act, 1911 and, therefore, the principles laid down by the Privy Council in that case were equally applicable to the case in hand. This Court, therefore, concluded that the provisions of the Land Acquisition Act, as amended, in its application to U.P. with the modifications specified in the schedule to the Adhiniyam, have, therefore, to be treated to have been incorporated by reference into the Adhiniyam and became an integral part of the Adhiniyam and the said provisions would remain unaffected by subsequent repeal or amendment of the Land Acquisition Act unles....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 determination and payment of compensation, are held to be incorporated in the U.P. Act, the provisions of the U.P. Act incorporating the provisions of the Land Acquisition Act would be rendered unconstitutional as being violative of Article 14 of the Constitution. On the other hand the Parishad contended that it was not open to the claimants to raise the question regarding constitutional validity of the provisions of the U.P. Act under which the reference had been made. Further it was contended that the Land Acquisition Act was enacted by Parliament while the U.P. was enacted by the State Legislature and, therefore, Article 14 cannot be invoked since the alleged discrimination arises on the basis of laws made by two different legislative bodies. In any event, it was contended, that merely because under the provisions of the Land Acquisition Act, as modified by the schedule to the U.P. Act, which are applicable in the matter of acquisition of land for the purposes of the U.P. Act, solatium is payable @ 15% and not @ 30% and interest is payabl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pur 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 for modification being made in the Land Acquisition Act. Section 17-A that has been inserted in the Land Acquisition Act by the modification made in the U.P. Act is in same terms as 17-A which has been inserted by paragraph 6 of the schedule to the Nagpur Act. Finding such similarity in the provisions of the two State Acts, this Court held that the reasons which weighed with this Court in striking down the provisions of the Nagpur Act would equally apply in the case of U.P. Act. In this connection this Court relied upon the following passage from the judgment in Nagpur Improvement Trust and another vs. Vithal Rao and others (supra) :- "Article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Article 14 for the purpose of determining compensation. The position is different when the owner of the land himself is the rec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....4 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 the Adhiniyam, would suffer from the vice of arbitrary and hostile discrimination. Such a consequence would be avoided if the provisions of the Adhiniyam are construed to mean that the provisions of the LA 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 Adhiniyam. There is nothing in the Adhiniyam which precludes adopting the latter construction. On the other hand, the provisions of the Adhiniyam show that the intention of the legislature, while enacting the Adhiniyam, was to confer the benefit of solatium @ 15% by modifying Section 23 (2) in the Schedule, which benefit was not available under the provisions of the LA Act as it was applicable in the State of Uttar Pradesh at the time of enactment of the Adhiniyam. It cannot, therefore, be said that the intention of the legislature, in enacting the Adhiniyam, was to deny to the landowners the benefits relating to determination and payment of compensation which would be available ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 legislative incorporation of the Land Acquisition Act in the State Acts. We are, therefore, of the view that what has been held by this Court in U.P. Avas Evam Vikas Parishad vs. Jainul Islam and another (supra) with regard to U.P. Act holds good for the Punjab Act as well as the Nagpur Act. Consequently we are unable to subscribe to the view taken in Bhatinda Improvement Trust vs. Balwant Singh and others (supra) that the provisions of the Land Acquisition Act have not been incorporated into the Punjab Act and that they have merely been cited or referred to in the Punjab Act. It may be noticed that in U.P. Avas Evam Vikas Parishad vs. Jainul Islam and another (supra) this Court highlighted the fact that though under the Land Acquisition Act as amended in its application to the State of U.P. there was no provision for grant of solatium, by the U.P. Act such solatium was provided for. The intention of the legislature was apparent that it wanted to confer the benefit of solatium by modifying Section 23(2), which benefit was not avai....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 challenge is to the grant of benefit to the claimants under the amended provisions of Sections 23 and 28 of the Land Acquisition Act. In all these cases acquisitions were made under the provisions of the Land Acquisition Act as modified by the State Act and the Collector had made his Awards which were challenged. Mr. Rajinder Sachar appearing on behalf of Jalandhar Improvement Trust submitted that the scheme of the Act discloses that the acquiring authority was the Trust and not the State. He sought to distinguish the case of Nagpur Improvement Trust contending that in that case it was the State which was the acquiring authority and the State could not discriminate between one land-holder and the other whose lands were sought to be acquired by choosing to acquire land under one or the other Act so as to discriminate between such land holders. The submission overlooks Section 17-A of the Land Acquisition Act which is inserted in all the thee State Acts by way of modification. In Om Prakash and another vs. State of U.P. and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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 brought in by way of amendment in the year 1984. We find considerable force in this submission. It may be noticed that at the time when the High Court decided the Letters Patent Appeals pending before it, the law as laid down by this Court in Union of India and another etc. etc. vs. Zora Singh and others etc. etc : (1992) 1 SCC 673 held the field. However, a larger bench of 5 judges reconsidered the matter in K.S. Paripoornan vs. State of Kerala and others : 1994(5) SCC 593 and overruled the decision in Zora Singh's case. This Court held :- "80. For the reasons aforementioned it must be concluded that in respect of acquisition proceedings initiated prior to date of commencement of the amending Act the payment of the additional amount payable under Section 23(1-A) of the Act will be restricted to matters referred to in clauses (a) and (b) of sub-section (1) of Section 30 of the amending Act. Zora Singh insofar as it holds that the said amount is payable in all cases where the reference was pending before the refere....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 judgment of the High Court of Bombay, Nagpur Bench, Nagpur, must be allowed. Since we have held that the Land Acquisition Act stands incorporated in the State Acts, with the consequence that subsequent amendments to the Land Acquisition Act have no effect upon the acquisitions made under the State Acts, it is not necessary to consider the submission of Mr. Rakesh Dwivedi, Senior Advocate, that in view of the judgment of this Court in T.M. Peter's case (supra), the absence of any time limit in the State Acts for issuance of Notification corresponding to the declaration under 6 of the Land Acquisition Act will not expose the State Acts to the charge of discrimination invoking the principles enshrined in Article 14 of the Constitution. In the result C.A. Nos. 9206 to 9214 of 1995 are partly allowed and the direction contained in the judgments and orders impugned to the effect that the claimants shall be entitled to the benefit of additional compensation under Section 23(1-A) of the Land Acquisition Act is set aside. How....