CWP No. 13117 of 2006 and other connected matters 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 06.10.2010 CWP No. 13117 of 2006 Satpal Dhiman son of Shri Jyoti Ram Dhiman ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CWP No. 18340 of 2006 Abhinav Singla son of Virender Singla ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CWP No. 18546 of 2006 Darshan Kumar and another ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CWP No. 17232 of 2006 Sardool Kumar Kalra ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CWP No. 18524 of 2006 Vikas Dhiman and another ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CWP No. 17682 of 2006 Prem Sagar ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CWP No. 13117 of 2006 and other connected matters 2 CWP No. 18110 of 2006 Suman Lata ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CWP No. 18262 of 2006 Jai Bhagwan Rana ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CWP No. 18275 of 2006 Leela Wati ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. M.L.Sharma, Advocate, for the petitioner(s). Mr. Kamal Sehgal, Addl. A.G. Haryana, for respondents No. 1 and 2. Mr. Mahavir Sandhu, Advocate, for respondents No. 3 to 5. *** AUGUSTINE GEORGE MASIH, J. This order will dispose of CWP No. 13117 of 2006 titled as Satpal Dhiman son of Shri Jyoti Ram Dhiman vs. State of Haryana and others, CWP No. 18340 of 2006 titled as Abhinav Singla son of Virender Singla vs. State of Haryana and others, CWP No. 18546 of 2006 titled as Darshan Kumar and another vs. State of Haryana and CWP No. 13117 of 2006 and other connected matters 3 others, CWP No. 17232 of 2006 titled as Sardool Kumar Kalra vs. State of Haryana and others, CWP No.18524 of 2006 titled as Vikas Dhiman and another vs. State of Haryana and others, CWP No. 17682 of 2006 titled as Prem Sagar vs. State of Haryana and others, CWP No. 18110 of 2006 titled as Suman Lata vs. State of Haryana and others, CWP No.18262 of 2006 titled as Jai Bhagwan Rana vs. State of Haryana and others and CWP No. 18275 of 2006 titled as Leela Wati vs. State of Haryana and others. For facility of reference, facts are taken from CWP No. 13117 of 2006 titled as Satpal Dhiman son of Shri Jyoti Ram Dhiman vs. State of Haryana and others. Improvement Trust, Ambala-respondent No. 3, vide Resolution No. 12 dated 16.10.2001 passed Scheme No. 22 framed under Sections 24 and 28 (2) of the Punjab Town Improvement Act, 1922, as applicable to Haryana (hereinafter referred to as 'the Improvement Act, 1922'). Notification under Section 36 of the Improvement Act, 1922 was issued on 05.02.2002 (Annexure P-8), wherein the boundaries of the Scheme were specified apart from the area, which was 3.95 acres. The land owner was given notice on 04.03.2002. His objections were heard but were rejected. Declaration under Section 42 of the Improvement Act, 1922 was issued on 27.08.2004 (Annexure P-10). Notice under Section 9 of the Land Acquisition Act,1894 (hereinafter referred to as 'the Acquisition Act, 1894') was issued to the petitioner. He approached this Court by filing the present writ petition challenging the declaration issued under Section 42 of the Improvement Act, 1922 on the ground that the said notification was beyond the period of one year as prescribed under Section 6 of the Acquisition Act, 1894, which is applicable to the Improvement Act, 1922 by virtue of Section CWP No. 13117 of 2006 and other connected matters 4 59 and the schedule therein, according to which, Sections 4 and 6 of the Acquisition Act, 1894 correspond to Sections 36 and 42 of the Improvement Act, 1922 respectively. Besides this, various other grounds were also taken by the petitioner for challenging the declaration issued under Section 42 of the Improvement Act, 1922 but they were not referred to or argued by the counsel for the petitioner and thus are not being stated here. Upon notice issued to the respondents, the respondents have taken a stand that the provisions of Land Acquisition (Amendment) Act, 1984 (hereinafter referred to as 'the Amendment Act, 1984') is not applicable to the Improvement Act, 1922. Section 59 of the Improvement Act, 1922 contemplates the modification of the Acquisition Act, 1894 for the purpose of acquiring the land under the Acquisition Act, 1894 for the Trust, which has been provided in the schedule attached to the Improvement Act, 1922. The provisions of the statute, which have been incorporated as per the provisions of Section 59, would remain the same, as they are, at the time of incorporation and the subsequent amendment, is not to be read in the subsequent legislation. It has thus been contented that the declaration under Section 42 of the Improvement Act, 1922 is in accordance with law and deserves to be upheld. The other pleas with regard to the non- compliance of the other provisions of the Improvement Act, 1922 as raised in the pleadings have also been specifically controverted. At the time of hearing, as already stated, only the above- mentioned ground was pressed into service by the counsel for the petitioner. He submits that the provisions of the Land Acquisition Act have been made applicable to the acquisition proceedings as provided under Section 59 of the Improvement Act, 1922. Referring to Section 59 of the CWP No. 13117 of 2006 and other connected matters 5 Improvement Act, 1922, he contends that for acquiring land for the Trust, the Acquisition Act, 1894 is applicable. The applicability of the Acquisition Act, 1894 has been subjected to further modification as indicated in the schedule of the Improvement Act, 1922. Clause 2 of the Schedule clearly spells out that the notification under Section 4 and declaration under Section 6 of the Acquisition Act, 1894 would replace notification under Sections 36 and 42 of the Improvement Act, 1922. He submits that as and when the amendment is brought about in the Acquisition Act, 1894, the same would ipso facto be applicable to the Improvement Act, 1922. Accordingly, the Acquisition Act, 1894 would apply to the present proceedings and according to Amendment Act, 1984, under Section 6 declaration has to be issued within a period of one year from the date of publication of the notification under Section 4 of the Acquisition Act, 1894 ; meaning thereby that after issuance of notification under Section 36 of the Improvement Act, 1922, notification under Section 42 of the Improvement Act, 1922 should have been issued within a period of one year. Since in the present case, notification under Section 42 of the Improvement Act, 1922 is beyond the period of one year, the same could not have been issued by respondent No. 3. He contends that the Full Bench of this Court in the case of Harbans Kaur and others vs. Ludhiana Improvement Trust and others, 1973 P.L.J. 250 has held that in the light of Section 59 and the Schedule to the Improvement Act, 1922, the procedure to be followed for the acquisition is the one laid down in the Land Acquisition Act, which means the Land Acquisition Act which is in force at the time of the acquisition and not at the time when the Improvement Act, 1922 was brought into force, would be applicable. Reliance has also been placed on the judgment of the Hon'ble CWP No. 13117 of 2006 and other connected matters 6 Supreme Court in the case of Bhatinda Improvement Trust vs. Balwant Singh and others, (1991) 4 Supreme Court Cases 368, wherein it has been held that the Acquisition Act, 1894, as substituted by the Amendment Act, 1984, would be applicable to the acquisition under the Improvement Act, 1922. On this basis, he prays that the writ petitions be allowed and the notification under Section 42 of the Improvement Act, 1922 issued by the Improvement Trust, Ambala-respondent No. 3 be quashed. Per contra, counsel for the respondents submits that the Improvement Act, 1922 is a complete Act in itself. Only limited applicability of the Acquisition Act, 1894 has been permitted under the Improvement Act, 1922 as is apparent from the language of Section 59 of the Improvement Act, 1922, which contemplates modification of the Acquisition Act, 1894 for the purpose of acquiring the land under the State Act for the Trust as per the Schedule attached thereto. The provision of the statute, as it originally was incorporated, would remain the same and the subsequent enactment or amendments in the Acquisition Act, 1894 would not be applicable to the Improvement Act, 1922. The amendments brought about in the Acquisition Act, 1894 by the Amendment Act, 1984, does not have any bearing on the parent provisions of the Improvement Act, 1922. In support of this contention, he places reliance upon a judgment of the Hon'ble Supreme Court in the case of U.P.Avas Evam Vikas Parishad vs. Jainul Islam and another, (1998) 2 Supreme Court Cases 467 as also Nagpur Improvement Trust and another vs. Vasant Rao and others, AIR 2002 SC 3499. He, on this basis, prays for dismissal of the writ petition as notification issued under Section 42 of the Improvement Act, 1922 is in accordance with law. We have heard the counsel for the parties and have gone through the records of the case. CWP No. 13117 of 2006 and other connected matters 7 The Improvement Act, 1922 provides for constitution of the Trust. The appointment of the trustees, terms of the office bearers and other trustees and further details also have been provided. The manners, in which the proceedings of the Trust and the Committees are to be conducted, are provided in Chapter III. Chapter IV deals with the framing of the schemes under the Act, wherein matters for general improvement scheme, rebuilding scheme, street scheme and deferred street scheme, development and expansion schemes, housing accommodation schemes, rehousing scheme, rehousing of displaced resident house owners, combination of schemes and matters which may be provided for in scheme etc. have been provided. Section 36 of the Improvement Act, 1922 relates to preparation, publication and transmission of notice as to the improvement schemes and supply of documents to the applicants. Complete procedure for the said purpose has been provided therein. The objections are received as they are called for under Section 36 itself. Section 38 of the Improvement Act, 1922 provides for service of notice on every person whom the Trust has reason to believe after due enquiry to be the owner of any immovable property which is proposed to be acquired in executing the scheme as also the occupier of the premises, during the period of 30 days following the first date on which any notice is published under Section 36 of the Improvement Act, 1922. The objection under this Section has to be filed within a period of 30 days from the service of the notice in writing by the objector. The State Government has the powers under Section 41 of the Improvement Act,1922 to sanction, reject or return the scheme. After the completion of the process under Section 41, in case the sanction of the scheme is granted by the State Government, it shall notify the sanction of CWP No. 13117 of 2006 and other connected matters 8 every scheme under Section 42 of the Improvement Act, 1922. Notification issued under this Section in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned. Thereafter, the Trust shall proceed to execute the scheme in accordance with the provisions of the Act. Chapter V deals with the powers and duties of the Trust where a scheme has been sanctioned and Chapter VI deals with the acquisition proceedings and the application of the Improvement Act, 1922 to other authorities. Section 58 of the Improvement Act, 1922 provides for a Tribunal to be constituted as provided in Section 60 for the purpose of performing the functions of the Court in reference to the acquisition of land for the Trust, under the Acquisition Act, 1894. Section 59 of the Improvement Act, 1922 provides for modification of the Acquisition Act, 1894 for the purpose of acquiring land for the Trust. This Section is relevant for the decision of the case and, therefore, Section 59 of the Improvement Act, 1922 is being reproduced herein below:- “59. Modification of the Land Acquisition Act, 1894.- For the purpose of acquiring land under the Land Acquisition Act, 1894, 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 be) in the same manner as CWP No. 13117 of 2006 and other connected matters 9 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 be final.” Sub-Section (b) of Section 59 provides that the Acquisition Act, 1894 shall be subject to further modifications as indicated in the Schedule to the Improvement Act, 1922. A perusal of the Schedule would show that there are 15 clauses in the Schedule which deal with various modifications in the Acquisition Act, 1894. The relevant clause with regard to this case would be clause 2 of the Schedule, which reads as follows:- “Schedule (Referred to in Section59) Further modifications in the Land Acquisition Act, 1894, hereinafter called “the said Act.” 1. xxx xxx xxx xxx 2. Notification under Section 4 and declaration under Section 6 to be replaced by notification under Sections 36 and 42 of this Act.- (1) The first publication of a notice of any improvement scheme under Section 36 of the Act 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 of the said Act, except where a declaration under Section 4 or Section 6 of the said Act has previously been made and is still in force. CWP No. 13117 of 2006 and other connected matters 10 (2) Subject to the provisions of Clauses 10 and 11 of this Schedule, the issue of a notice under sub-section (1) of Section 32 in the case of land acquired under that sub-section, and in any other case the publication of a notification under Section 42 shall be substituted for and have the same effect as a declaration by the State Government under Section 6 of the said Act, unless a declaration under the last mentioned Section have previously been made and is still in force.” Accordingly, it can be said that the Acquisition Act, 1894 with certain modifications is made applicable to the provisions made for the purpose of the execution of the scheme under the Improvement Act, 1922. The question, which requires to be answered in the present case, is whether there is mere reference or citation of the Acquisition Act, 1894 in the Improvement Act, 1922 and whether the amendment brought about in the Acquisition Act, 1894 by the Amendment Act, 1984 would ipso facto be applicable to the Improvement Act, 1922? This question was dealt with by the Hon'ble Supreme Court while considering the Improvement Trust Acts of Punjab, Nagpur and Uttar Pradesh, in the case of Nagpur Improvement Trust and another vs. Vasant Rao and others (supra) in paras 31 to 34, which read as follows:- “31. 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 CWP No. 13117 of 2006 and other connected matters 11 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 along with the incorporated 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, wherein in later Act there is a mere reference to an earlier Act, the modification, repeal or amendment of the statute that 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. 32. In Secretary of State vs. Hindustan Co-operative 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 CWP No. 13117 of 2006 and other connected matters 12 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 enactment has been applied, incorporated or referred to.” The independent existence of the two Acts is therefore recognized; despite the death of the parent Act, its offspring survives in the incorporating Act. Though no such saving clause appears in the General Clauses Act, their Lordships think that the principle involved is as applicable in India as it is in this country. 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.” 33. In Re: Wood's Estate, Ex parte, Works and Buildings Commrs. (1886) 31 Ch D 607 at page 615 Lord Esher, M.R. Observed:- “If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act as if they had been actually written in it with the pen, or printed in it.” CWP No. 13117 of 2006 and other connected matters 13 34. In U.P. Avas Evam Vikas Parishad vs. Jainul Islam and another (supra), this Court observed “17. A subsequent legislation often makes a reference to the earlier legislation so as to make the 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 the repeal of the earlier statute which is incorporated does not affect operation of the subsequent statute in which it has been 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.” CWP No. 13117 of 2006 and other connected matters 14 In the case of U.P.Avas Evam Vikas Parishad vs. Jainul Islam and another (supra), the Hon'ble Supreme Court concluded that the provisions of the Acquisition Act, 1894 as amended with the modifications specified in the Schedule to the U.P. Avas Evam Vikas Parishad Adhiniyam, 1966 (hereinafter referred to as ' the Adhiniyam') in its application be treated to have been incorporated by reference into the Adhiniyam and thus became an integral part of it, which would remain unaffected by subsequent repeal or amendment of the Acquisition Act, 1894. It was further held that the Adhiniyam and the Acquisition Act, 1894 could not be regarded as supplemental to each other as the Adhiniyam contains provisions regarding acquisition of land which are complete and self-contained and the provisions of the Adhiniyam cannot be said to be in pari materia with the Acquisition Act, 1894 as the Adhiniyam also deals with matters which did not fall within the ambit of the Land Acquisition Act and thus it could also not be said that the Amendment Act, 1984, expressly or by necessary intendment, applies the said amendments to the Adhiniyam. In the case of Nagpur Improvement Trust and another vs. Vasant Rao and others (supra), the Hon'ble Supreme Court was dealing with the Punjab Town Improvement Act, 1922, Nagpur Improvement Trust Act, 1936 and the U.P. Awas Evam Vikas Parishad Adhiniyam, 1966. After dealing with the provisions of these acts in detail, the Hon'ble Supreme Court concluded as follows in para 49 thereof, which reads as follows:- “49. 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 CWP No. 13117 of 2006 and other connected matters 15 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 and the U.P. Act have a common scheme and pattern. All the three legislation 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