Reserved HIGH COURT OF UTTARAKHAND, AT NAINITAL Special Appeal No.02 of 2009 State of Uttarakhand & another … Appellants Versus M/s Ski and Snow Resorts Pvt. Ltd. … Respondent Dated:- 09th July, 2010 Coram: Hon. Tarun Agarwala, J. Hon. V. K. Bist, J. Per:- Hon’ble Tarun Agarwala, J. The present special appeal has been filed by the State of Uttarakhand against the judgment dated 30th September, 2008 passed by the learned Single Judge in Writ Petition No.180 of 2008 (M/S) by which the learned Single Judge has quashed the proceedings initiated by the Assistant Collector under Section 166 & 167 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the UPZA & LR Act). 2. The facts leading to the filing of the Special Appeal is that Dr. Vijay Singh Pal and Arun Singh, belonging to the Scheduled Tribes community, sold plot nos.15, 16 and 17 measuring 15 naali and 12 muthi (0.315 hectares) by means of a sale deed dated 24.04.1996 to the writ petitioner M/s Ski & Snow Resorts Pvt. Ltd., which is a company duly incorporated under the Companies Act and which is engaged in tourism and hospitality business. Subsequent to the sale deed, the land was declared non-agriculture under Section 143 of the UPZA & LR Act, upon which the writ petitioner (now ‘opposite party’ in this Special Appeal) constructed a resort at Auli in District Chamoli under the name and style of M/s Ski & Snow Resort, which is alleged to be registered under the Sarai Act. It is alleged that the tourism department of the State Government proposed acquisition of the land at Auli for promoting winter games, but, subsequent upon the representation of the 2 writ petitioner, the State Government excluded the land of the petitioner from acquisition. The State Government also constructed a winter resort at the same place, namely at Auli and, it is alleged that there was some dispute with regard to the demarcation of the land in which proceedings have been initiated and certain portion constructed by the petitioner was demolished. In this regard, the writ petitioner has filed a suit, which is pending consideration before the Civil Judge (Junior Division), Gopeshwar in District Chamoli. 3. In the meanwhile, the Revenue Inspector, Joshimath submitted a report dated 28.11.2007 and the Tehsildar also submitted a report dated 30th November, 2007 indicating therein that Dr. Vijay Singh Pal, being a member of the Scheduled Tribes community, was debarred from selling the land to a person outside his community under Section 157-B of the UPZA & LR Act. The report submitted by the Revenue Inspector and the Tehsildar indicated that Dr. Vijay Singh Pal had illegally transferred the land to the petitioner, who did not belong to the Scheduled Tribes community and that the sale deed executed was in violation of the provision of Section 157-B of the UPZA & LR Act. On the basis of the said reports, the Assistant Collector, Joshimath, District Chamoli registered a case under Section 166 and 167 of the UPZA & LR Act, being case No.6 of 2007-2008, and issued notices to Dr. Vijay Singh Pal and his nephew as well as to the writ petitioner to show cause as to why the land should not vest in the State Government for the contravention of the provision of Section 157-B of the UPZA & LR Act. It transpires that Dr. Vijay Singh Pal filed his reply before the authority admitting that he was not aware of the provision of Section 157-B of the UPZA & LR Act and that he was not aware that previous permission was required to be obtained from the Collector before transferring the property to the writ petitioner. The writ petitioner, instead of filing a reply, preferred Writ Petition No.180 of 2008 (M/S) praying for the quashing of the proceedings initiated by the Assistant 3 Collector under Section 166 & 167 of the UPZA & LR Act. The said writ petition was entertained and, eventually, the learned Single Judge, by the impugned judgment, quashed the proceedings. 4. The State Government, being aggrieved by the aforesaid judgment, preferred a Special Leave Petition before the Supreme Court of India and, upon an objection being raised by the writ petitioner with regard to the maintainability of the Special Leave Petition, withdrew the appeal seeking liberty to file a Special Appeal before the Division Bench of the High Court. Accordingly, the present Special Appeal has been filed by the State of Uttarakhand against the decision of the learned Single Judge under Chapter VIII Rule 5 of the Rules of the High Court. 5. The learned Single Judge, while quashing the proceedings held that Section 157-B of the UPZA & LR Act was not applicable to the land which was situated in Auli in District Chamoli, which was governed by the provisions of the Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960 (hereinafter referred to as KUZA Act). The learned Single Judge held that since Section 157-B was not applicable to the areas governed by the KUZA Act, the sale made in favour of the petitioner by Dr. Vijay Singh Pal was not a void sale deed and consequently, the proceedings initiated under Section 166 & 167 of the UPZA & LR Act was an abuse of the process of law. The learned Single Judge held that only certain provisions of UPZA & LR Act were applicable to the KUZA Act as per Section 47 and 52 of the KUZA Act, which existed at that time when KUZA Act was enacted. The learned Single Judge held that Section 157-B was inserted in the UPZA & LR Act by U.P. Act No.20 of 1982 w.e.f 03.06.1981 and that the amending Act did not indicate any provision by which the said insertion of Section 157-B was made applicable to the areas governed by the KUZA Act. The learned Single Judge held that since there was no express 4 provision in the Amending Act No.20 of 1982, the said provision, consequently, was not applicable to KUZA Act. The learned Single Judge was further of the opinion that since certain provisions of UPZA & LR Act was incorporated in the KUZA Act and, therefore, only those provisions which was incorporated at the initial stage were applicable and subsequent insertion of Section 157-B in the UPZA & LR Act would not apply to areas governed by the KUZA Act. The learned Single Judge further held that the KUZA Act was a complete and self- contained Act and was not pari materia with UPZA & LR Act. 6. We have heard Sri S. N. Babulkar, the learned Advocate General assisted by Sri Subhash Upadhyaya, the learned Brief Holder for the State of Uttarakhand and Sri Sharad Sharma, the learned senior counsel assisted by Sri Sudhir Kumar and Sri J. K. Khanna, the learned Advocates for the writ petitioner. 7. The learned Advocate General for the appellants submitted that the writ petition was not maintainable against a show cause notice and that all such objections, as raised in the writ petition, being disputed questions of fact, could have been raised by the petitioner before the Assistant Collector, who would have decided the matter by a reasoned and speaking order. The learned Advocate General further submitted that the provision of Section 157-B of the UPZA & LR Act was applicable to the areas governed by the KUZA Act and that the provisions of UPZA & LR Act has been adapted in the KUZA Act by reference and not by incorporation. The learned counsel submitted that since the provision of UPZA & LR Act has been adapted by reference, any amendment made in the UPZA & LR Act becomes automatically applicable to the KUZA Act and that there was no requirement that a specific provision was required to be made in the Amending Act making the said provision applicable to the KUZA Act. 5 8. On the other hand, the learned senior counsel for the writ petitioner submitted that the provisions of the UPZA & LR Act has been adapted in the KUZA Act by incorporation and, consequently, only those provisions which were initially incorporated by Section 47 and 52 of the KUZA Act are only made applicable to the KUZA Act and that any subsequent amendment or insertion of a new provision made in UPZA & LR Act would not automatically apply to the areas governed under the KUZA Act unless a special provision was made in the Amending Act indicating that the said provision would also apply to the areas governed by the KUZA Act. The learned senior counsel Sri Sharad Sharma submitted that under the Amending Act No.20 of 1982 there is no provision which would indicate that Section 157-B of the UPZA & LR Act would also apply to the areas governed by the KUZA Act. In the absence of such a provision, the learned counsel submitted that Section 157-B of the UPZA & LR Act was not applicable and that the learned Single Judge had rightly quashed the proceedings. 9. The learned counsel for the parties placed reliance on various judgments in support of their submissions, which would be dealt with at the appropriate place. While dealing with the rival submissions of the parties, it would be essential to consider certain provisions of the UPZA & LR Act and the KUZA Act. 10. Admittedly, the land in dispute is situate in Auli in District Chamoli and is covered by the provision of the KUZA Act. In the year 1950, the UPZA & LR Act was enacted by the State of Uttar Pradesh. Section 2 of the UPZA & LR Act stipulated that the State Government may by notification apply the whole or any provision of this Act to the areas specified in the first Schedule of U.P. Tenancy Act, 1939. Section 1 of the U.P. Tenancy Act, 1939 read with the first Schedule stipulated that the said Act was not applicable to the Garhwal region. The district of Chamoli is in the Garhwal region, and accordingly, when 6 UPZA & LR Act was enacted, it was not made applicable to the Garhwal region. The KUZA Act came into force in the year 1965. By virtue of Section 27, 41, 47 and 52 of the KUZA Act, certain provisions of UPZA & LR Act and its Rules were made applicable to the areas governed by the KUZA Act. For facility, Section 3(18), Section 27, Section 41, Section 47 and Section 52 of the KUZA Act, which has a relevance to the dispute in question is extracted hereunder:- “3 (18) [references to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and the U.P. Land Revenue Act, 1901 or to rules framed thereunder shall be construed respectively as references to the said Acts or rules as amended from time to time, and references to enactments relating to acquisition of land for a public purpose shall be construed as references to those enactments as amended from time to time in their application to Uttar Pradesh.] 27.(1) the provisions of Chapter VI of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951); and of the rules framed thereunder shall, mutatis mutandis apply to the area to which the notification under Section 4 relates; but the State Government may by order published in the Official Gazette make such adaptations, modifications and alterations or exceptions, not affecting the substance, as may in its opinion appear necessary and any such adaptation, modification, alteration or exception shall not be questioned in any court of law. (2) Every such order shall have the effect form the date of commencement of this Chapter. 7 41. Superintendence, management and control of land (U.P. Act 1 of 1951).- (1) the provisions of Chapter VII of the U.P. Zamindari Abolition and Land Reforms Act, 1950, and of the Rules made thereunder, shall mutatis mutandis apply to the areas to which the notification under Sections 4 relates and to such lands things (including forests and uncultivated land not belonging to any tenure- holder) as may be prescribed; but the State Government may, by order published in the official Gazette, make such adaptation, modification, alteration or exception, not affecting the substance, as may in its opinion appear necessary and any such adaptation, modification, alternation or exception shall not be questioned in any Court of Law. (2) Every such order shall have effect from the date commencement of this Chapter. [47. Application of the provisions of Chapter VIII and X of U.P. Act 1 of 1951.- (1) The provisions of Sections 134 to 139, 142 to 146, 152 to 195, 197 to 211-A, 212-B, 212-C, 213 to 230, 232 and Section 241 to 294 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, and of the rules framed under Sections 230 and 294 of the said Act, 1950, and of the rules framed under Section 230 and 294 of the said Act shall mutatis mutandis apply to the area to which the notification under Section 4 relates, but the State Government may, by order published in the official Gazette, make such adaptation, modification, alteration, or exception not affecting the substance as may in its opinion appear necessary and any such adaptation, 8 modification, alteration, or exception shall not be questioned in any court of law; [Provided that Section 245 of the said Act shall, in relation to such area, apply with the following modifications:- (i) one and a half acres of land in areas to which this Act applies shall count as one acre; (ii) in a district where there are no hereditary rates, the reference to ‘hereditary rates’ shall be construed as a reference to ‘village land revenue rates’; (iii) in relation to any district in which the maximum hereditary rates or village land revenue rates do not exceed rupee one per acre, the words ‘rupees five’ and ‘rupees ten’ in clause (i) of the proviso to sub- section (2) of the said Section 245 shall be substituted by the words ‘rupees three’ and ‘rupees five’ respectively and the words ‘rupees ten’ and rupees ‘twenty’ in clause (ii) thereof shall be substituted by the words ‘rupees six’ and ‘rupees ten’ respectively. ] (2) Every such Order shall have effect from the date of commencement of this Chapter. [(3) The State Government may, by a subsequent notified order, supersede or modify an order issued under sub-section (1) wholly or partly, and any such suppression or modification may by made retrospectively to a date not earlier than the date of the order issued under that sub-section.] 9 52. Application of provisions of certain sections of Chapter XII of U.P. Act 1 of 1951 to Kumaun and Uttarakhand.- (1) The provision of Section 321 of 331-A, 333 to 336, 338 and 341 to 344 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951), and of the rules framed under Section 344 of the said Act shall mutatis mutandis apply to Kumaun and Garhwal Division but the State Government may, by order published in the official Gazette, make such adaptation, modification, alteration or exception not affecting the substance as may in its opinion appear necessary and any such adaptation, modification, alteration or exception shall not be questioned in any court of law. (2) Every such order shall have effect from the date of commencement of this Chapter.” 11. A reading of the aforesaid provisions of the KUZA Act indicate that certain provisions of the UPZA & LR Act were made applicable. Amongst other provisions, Sections 152 to 195 of the UPZA & LR Act were made applicable to the areas governed by the KUZA Act. 12. Section 157-B was introduced vide amendment in UPZA & LR Act w.e.f. 03.06.1981 by U.P. Act No.21 of 1982. The said provision is extracted hereunder:- “157-B. Restrictions on transfer of land by members of Scheduled Tribes.- (1) Without prejudice to the restrictions contained in sections 153 to 157, no bhumidhar or asami belonging to a Scheduled Tribes shall have the right to transfer by way of sale, gift, mortgage or lease or otherwise any land to a person not belonging to a Scheduled Tribes.” 13. Under this provision, no bhumidhar or asami belonging to the Scheduled Tribes would have a right to transfer by way of sale, gift, mortgage or lease or otherwise any land to a person not belonging to a Scheduled Tribe. In the light of the aforesaid provisions, the court has 10 to see and decide as to whether by virtue of the provisions of Sections 3(18), 27, 41, 47 and 52 of the KUZA Act, certain provisions of UPZA & LR Act has been adapted in the KUZA Act by way of reference or by way of incorporation. 14. Adaptation of a provision by a reference or citation or by incorporation is an accepted device of legislation. If the adapting Act refers to certain provisions of an earlier existing Act, it is known as legislation by reference but if the provisions of another Act are bodily lifted and incorporated in the new Act, it is known as legislation by incorporation. The distinction between a legislation by reference or by incorporation is not easy to highlight and the distinction is one of difference in degree and is often blurred. There are no clear cut guidelines or distinguishing features which would ascertain as to whether the said adaptation belongs to one category or the other. The Supreme Court in the case of Bharat Cooperative Bank (Mumbai) Ltd. Vs. Cooperative Bank Employees Union 2007 (4) SCC 685 held:- “21. ……………..Ultimately, it is a matter of probe into legislative intention and/or taking an insight into the working of the enactment if one or the other view is adopted. Therefore, the kind of language used in the provision, the scheme and purpose of the Act assume significance in finding answer to the question. (See: Collector of Customs vs. Sampathu Chetty & Anr. ). The doctrinaire approach to ascertain whether the legislation is by incorporation or reference is, on ultimate analysis, directed towards that end.” 15. In Rakesh Vij Vs. Dr. Raminder Pal Singh Sethi & others 2005 (8) SCC 504, the Supreme Court held as under :- 11 “In Maxwell on The Interpretation of Statutes (Twelfth edition 1969) on page 28 it is said that the primary rule is to give literal construction and if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences. In Chapter 2, page 28, the principle has been stated thus: -"The rule of construction is "to intend the Legislature to have meant what they have actually expressed". The object of all interpretation is to discover the intention of Parliament, but the intention of Parliament must be deduced from the language used, for it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law.” 16. In the light of the aforesaid, we have to consider various decisions of the Supreme Court in this regard. As early as in 1931, the Privy Council in the case of Secretary of State Vs. Hindustan Cooperative Insurance Society Ltd. reported in A.I.R. 1931 Privy Council 149 held as under:- “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.” The Privy Council further held as under:- “It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.” 12 17. The Supreme Court in Shamrao Vs. Parulekar & others A.I.R. 1952 SC 324 held as follows:- 7. The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. ………..” 18. The doctrine of legislation by incorporation and its effect has been dealt with by this Court in a catena of decisions. In Ram Sarup vs. Munshi & Ors. AIR 1963 SC 553, a Constitution Bench held that repeal of Punjab Alienation of Land Act, 1900 had no effect on the continued operation of the Punjab Pre-emption Act, 1913 and that the expression "agricultural land" in the later Act had to be read as if the definition of the Alienation of Land Act had been bodily transposed into it. After referring to what Brett, L.J. said on the effect of incorporation in Clarke vs. Bradlaugh, namely, "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", it was observed as follows:- “Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. 13 In the circumstances, therefore, the repeal of the Punjab Alienation of Land Act of 1900 has no effect on the continued operation of the Pre-emption Act and the expression 'agricultural land' in the later Act has to be read as if the definition in the Alienation of Land Act had been bodily transposed into it.” 19. In Bolani Ores Ltd. vs. State of Orissa 1974 (2) SCC 777, the Supreme Court was considering the question regarding the interpretation of Section 2(c) of the Bihar and Orissa Motor Vehicles Taxation Act, 1930 (for short "the Taxation Act"). This Section when enacted adopted the definition of "motor vehicle" contained in Section 2(18) of the Motor Vehicles Act, 1939. Subsequently, Section 2(18) was amended by Act 100 of 1956 but no corresponding amendment was made in the definition contained in Section 2(c) of the Taxation Act. It was submitted that the definition in Section 2(c) of the Taxation Act was not a definition by incorporation but only a definition by reference and that the meaning of "motor vehicle" in Section 2(c) must, therefore, be taken to be the same as defined from time to time in Section 2(18) of the Motor Vehicles Act, 1939. The submission was rejected by the Supreme Court and it was held that it was a case of incorporation and not reference and that the definition in Section 2(18) of the Motor Vehicles Act, 1939, as then existing, was incorporated in Section 2(c) of the Taxation Act and neither repeal of the Motor Vehicles Act, 1939 nor any amendment in it would affect the definition of "motor vehicle" in Section 2(c) of the Taxation Act. 20. The legal position has been summed by the Supreme Court in the State of Madhya Pradesh Vs. M. V. Narasimhan AIR 1975 SC 1835, in which the Supreme Court held as under:- “where a subsequent Act incorporates provisions of a previous Act, then the borrowed provisions become an integral and independent part of the subsequent Act and 14 are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in