Case: Gauri Shankar Vs. State of Uttar Pradesh

(XXXVII of 1923) by the expression "notification under Section 4". But the experience of working of the Act indicated that declarations under Section 6 were issued long after publication of notification under Section 4 even where urgency clause was Invoked resulting in grave injustice to the land owners. Consequently to mitigate such injustice the proviso was added to Section 6 reducing the gap between notification under Section 4 and declaration under Section 6 of the L.A. Act to three years. The object and reasons for adding the proviso to Section 6 was, "at the same time, care has been taken to ensure that land acquisition proceedings do not linger on for unduly long time. The aforesaid Ordinance, therefore, provides that no declaration under Section 6 of the Act should be issued in respect of any particular land covered by a notification under Section 4(1) published after the commencement of the Ordinance, after the expiry of three years from the date of such publication." * The Parliament in our federal structure has the supremacy in legislative matters subject to the exclusive power of State on matters enumerated in List 11 of the Seventh Schedule. It would be unjust to exclude operation of the beneficent provision added for general betterment in social interest, by resorting to rule of construction. The courts are obliged to adopt a constructive approach while construing such provisions. In absence of express exclusion it is more in consonance with justice to hold that the restriction of three years added by the proviso to Section 6 applied to the Act. Any effort to demonstrate impossibility of completing proceedings within three years cannot be countenanced. Legislative intention cannot be frustrated by executive inaction. The acquisition proceedings thus came to end after expiry of three years from the date of issuance of notification under the Act analogous to Section 4 of the L.A. Act.48. But this is not the end. Even though the law is in favour of the petitioners but equity stands in their way since in pursuance of these proceedings the Avas Evam Vikas Parish ad entered into possession and constructed housing colonies as there was no interim order in favour of land owners during pendency of the writ petitions in the High Court. Therefore the individual interest of the land owners is faced with public interest of those large number of middle class persons who must have invested their lifes savings in purchasing these houses and 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 requires this Court to mould the relief in such manner that justice may not suffer. No flaw has been found in the notifications issued for acquisition of land under Section 4 or publication of declaration under Section 6 of the Act. The infirmity has arisen due to procedural delay. It is well established that delay destroys the remedy but not the right. The Avas Evam Vikas Parishad could have acquired the land by issuing fresh notification. Therefore the equities can 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 the declaration was published.49. Before parting it is also necessary to mention whether the petitioners who approached this Court under Article 32 can be denied hearing on points other than limitation only because their petitions had been tagged with special leave petition in which following order was passed:"Leave granted limited to the question as to whether the limitation provided in the proviso to Section 6 of the Land Acquisition Act introduced by the amending Act of 1967 is also applicable in the facts of this case in view of U.P. Avas Evam Vikas Adhiniyam." * From the order granting leave extracted above it is clear that the order was confined to facts of that case. It may legitimately be argued that the Bench hearing the appeals is not bound by the order granting leave as even though other aspects shall be deemed to have been heard and decided yet in absence of any decision or adjudication on merits it has no binding effect. Whether it is so or not need not be gone into in these petitions except observing that the implied rejection of an order does not amount to deciding on merits but in propriety and comity it is just and proper that except in very rare cases where injustice is manifest the Bench hearing the matter finally is expected to respect the earlier order passed by the Bench granting leave. But that does not apply to the writ petitions which were merely tagged with special leave petitions. In absence of any specific order it would not be fair to shut out the petitioners who invoked extraordinary jurisdiction of this Court merely because one of the questions, may be the main one, being common the petitions were directed to be connected either at the instance of the Bar or the Bench. Once the petitions were admitted the court has an obligation to hear them or to settle the question of law and permit the petitioners to seek their remedy on other issues in appropriate forum.50. For these reasons even though publication of declarations under the Act were beyond the period of three years it is not in interest of justice to quash the proceedings but the appellants shall be paid compensation of the land acquired on market value prevalent in the year in which the declaration analogous to Section 6 of the L.A. Act was published/issued by fictionally assuming that fresh notification under the Act analogous to Section 4 was issued in that year.51. So far the writ petitions are concerned it shall be open to petitioners to seek their remedy in appropriate forum against any aspect other than the limitation. The special leave petitions and writ petitions are dismissed subject to observations made above. ORDER 52.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is not fully inconsistent and are not absolutely irreconcilable. Both doin relation to the procedure prescribed under the Acts. The Act doesindependently without in any way colliding with the L.A. Act. Therefore, Section 55 and the Schedule did not become void.It would thus be clear that in case of legislation by incorporation, incorporated provisions would become part and parcel of the later fresh statute as if it is written by pen in ink or printed bodily therein as part of the later statute and became an integral scheme of that Act. The Legislature while incorporating them did not intend to speculate that any subsequent amendment to the previous Act or its repeal would after the texture of the later Act, unless the previous Act is supplemental to the later Act or both are in parimateria in which case it would render the later Act wholly unworkable and ineffectual or by necessary intendment appliesCourt held that it was by way of reference and not by incorporation and the provis o to Section 6 would apply and if the declaration was not made within three years from the date of Section 36(4)(1) (sic) notification, the notification under Section 36(4)(1) (sic) of the Land Improvement Trust Act shall stand lapsed. We are in formed that the same bench directed these appeals to be heard later, though were posted together and obviously the bench was not inclined to apply the above ratio and intended to consider these appeals in the setting of the Act.Act.31. It would thus be clear that in case of legislation by incorporation the former Act becomes an integral part and parcel of the later Act, as if it was written with ink and printed in the later Act. Its validity including the provisions incorporated thereunder would be judged with reference to the power of the legislature enacting the later Act. It is not by reference. Logically when provisions in the former Act are repealed or amended, they do not, unless expressly made applicable to the subsequent Act, be deemed to be incorporated in it. The later Act is totally unaffected by any amendment or repeal. It would be subject to the except ions enumerated hereinbefore. The statute being distinct and different each is to be judged with reference to its own source that emerges from its scheme, language employed and purpose it seeks to achieve.32. If a later Act merely makes a reference to the earlier Act or existing law, it is only by way of reference and all amendments, repeal s, new law subsequently made will have effect unless its operation is saved by Section 8(1) of the General Clauses Act or is void under Article 254 of the Constitution.33. Section 55 of the Act read with the schedule made an express incorporation of the provisions of Section 4(i) 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) prescribed 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 maybe incompatible with provisos to Section 6(1) of L.A. Act. The U.P. Legislature did not visualise that later amendment to Central Act 1 of 1894 i.e. L.A. Act would be automatically extended. We have, therefore, no hes itation 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.34. It is next contended that Section 55 and the schedule must be so read as to apply Section 6 as amended from time to time and shall be applicable to the proceedings taken under Sections 28 and 32 of the Act. We find no force in the contention. In Yuri Maru v. The Woron33 the Colonial Courts of Admiralty Act, 1890 limited the jurisdiction of the High Court of England as colonial Admiralty court established under the Act "as if existed at the passing of the Act". When suit for damages against charter party was laid in the Exchequer Court of Canada, which was established under the Admiralty Act, 1906, it was contended that it had ceased having jurisdiction for the action for damages for breach of charter party; the defendant being domiciled in London and the cause of action not having arisen within the limits of Exchequer Court of Canada, and the ship having been within the limits of the High Court of England it had jurisdiction as if the Act has been amended from time to time excluding the colonial jurisdiction of Canada Court. Therefore, the Exchequer Court of Canada had no jurisdiction to try the case. The Privy Council negatived the contention and held that the High Court of England had jurisdiction only as available at the time when the Act was made. The appellants claim that these words can be understood as applying to conditions which are to come into being upon and after passing of the Act and they offer in effect to make the meaning clear by reading into the sentence before the words "existing", the words "from time to time". The judicial committee negatived the contention and held that, "the admiralty jurisdiction of the High Court of England as then existing would not apply in the following words: 33 1927 AC 906the whole, the true intent of the Act appears to their Lordships to have been to define as a maximum of jurisdictional authority for the courts to be set up thereunder, the Admiralty jurisdiction of the High Court in England as it existed at the time when the Act was passed. What shall from time to time be added or excluded is left for independent legislative determination."It is, therefore, clear that by statutory interpretation the court has no power to add words or interpret the words "as amended from time to time ". 36. Shri Satish Chandra then contended that Section 2 of U.P. Amendment Act 28 of 1972 amended Section 6 of the Land Acquisition Act retrospectively and validated the invalid declaration under first proviso to Section 6(1) of the L.A. Act. By necessary implication the U.P. Legislature extended the first proviso to Section 6(1) to the acquisition under the Act, otherwise the State Amendment Act would be rendered otiose. The first proviso to Section 6(1) and(2) as amended b y the U.P. Legislature should be harmoniously interpreted to apply the first proviso to all the acquisition under the Act. Prima facie the argument though attractive, by deeper probe, we find it to be fallacious. It is seen that different local Acts applied the provisions of the L.A. Act, with different language. In U.P. Urban Land Planning and Development Act, 1973, Section 17 thereof adopted by reference the Land Acquisition Act, 1894 for acquisition of the land under that Act. It adopted not by incorporation therein. The declaration under Section 6 was made beyond the period of 3 years. So to validate those acquisitions, Amendment Act came to be made.37. It is next contended that by operation of proviso to Article 254(2) of the Constitution, Section 55 and the schedule became inconsistent with the first proviso to Section 6(1) of the L.A. Act. The Act received the assent of the President. The Amendment Acts of 1967 and 1984 brought on statu te the first and second provisos into Section 6(1) of the L.A. Act. The Act being earlier Section 55 and the schedule became void, the first proviso to Section 6(1) of L.A. Act would be applied and the declarations made beyond three years became void and inoperative. We find no force in the contention. It is seen that the purpose of the Act is not acquisition simpliciter. It is only to constitute or incorporate a Housing Board or its branches to regulate planned development of the urban area. Power has been given to the Board to frame the schemes and if necessary to acquire the land by agreement with the persons having interests in the land or by exchange or otherwise. Therefore, compulsory acquisition is only incidental to the main purpose. It is seen that in Narayanaiah21 and Govindan cases22 this Court emphasised that the Improvement Act has provided a special procedure for improvement of the city of Bangalore and urban areas . There is no express incorporation in those Acts of the Land Acquisition Act. Therefore, by reference they were made applicable. In Ahmad case 17 this Court in similar circumstances held that it is only by incorporation and purpose of the ac quisition of land is incidental. In Bolani Ores Ltd. case14 we have already seen that this Court held that the purpose of the Motor Vehicles Taxation Act was to regulate the motor vehicles and that the incorporation of Motor Vehicles define d under the Motor Vehicles Act, 1939 was as the part of the Taxation Act. Its constitutional validity was accordingly upheld.There is no doubt or difficulty as to applicability of the law under Article 254 of the Constitution. As to what would happen in a case of conflict between a Central and State Law occupying the same field enumerated in the concurrent list, Article 254 was enacted to solve that conflict. Article 254(1) envisages the normal rule that in the event of a conflict between the law made by the Union and the State Legislature in the concurrent field, the former prevails over the latter; if the law relating to the concurrent subject made by the State Legislature is repealed by Union law, whether Union law is prior or later in point of time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. An exception has been engrafted to this rule by clause (2) thereof, namely, if the State law has been reserved for consideration and the President gives assent to a State law, it will prevail, notwithstanding its repugnancy to a earlier law made by the Union, though both laws are dealing with a concurrent subject occupying the same field but operate in a collision course. The assent obtained from the President to the State Act which is inconsistent with the Union law prevails in that State and overrides the provisions of the Union law in its application to that State only. However, if the Parliament, in exercising its power under the proviso to Article 254( 2) makes a law adding, amending or repealing the Union law, predominance secured by the State law by the assent of the President is taken away and the repugnant State law though it became valid by virtue of Presidents assent, would be void eit her directly or by its repugnance with respect to the same matter. Tile Parliament may not expressly repeal the State law and by necessary implication the State law stands repealed to the extent of the repugnancy, as soon as the subsequent law of the Parliament creating repugnancy is made. Such repugnancy may also arise where both the laws are operating in the same field and they cannot possibly stand together. This is the consistent law laid by this Court. In Zaverbhai Amaidas v. State of Bombay35 Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, was amended in 1948 and 1949 thereafter by Act LII of 1950. It was held that Act LII of 1950 is a legislation in respect of the same matter as Bombay Act (XXXVI of 19 47) within the meaning of Article 254(2) of the Constitution and therefore Section 2 of Bombay Act XXXVI of 1947 cannot prevail as against Section 7 of the Essential Supplies (Temporary Powers) Act as amended by Act LII of 1950. In M. Karunanidhi v. Union of India36 another Constitution Bench surveyed thewhen Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 was challenged as being repugnant to the Code of Criminal Procedure, 1898, Prevention of Corruption Act, 1947 and Criminal Law (Amendment) Act, 1952 and laid down the test thus: (1) where the provisions of a Central Act and a State Act in the Concurrent List are .fully inconsistent and are absolutely irreconcilable, the Central Act will (emphasis supplied) prevail and the State Act will become void in view of the repugnancy; (2) where, however, a law passed by the State comes into collision with a law passed by Parliament oil an Entry in the Concurrent List, the State Act shall prevail to t he extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254; (3) where, however, a law made by the State Legislature on a subject covered b y the Concurrent List is inconsistent with or repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254. In that case it was held that part of the provisions were not repugnant in their application to the public men in Tamil Nadu but are void to the extent of public servants. T. Barai v. Henry Ah Hoe37 is a case where Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 in the Concurrent List prescribes a punishment of six years and fine. The West Bengal State Legislature amended it by West Bengal Amendment Act, 1973 and prescribed a punishment of imprisonment for life for the self same offence under Section 16(1) of the Act, Prevention of Food Adulteration Act was amended by Parliament in 1976. Thequestion arose whether by operation of proviso to Article 254(2) the State law is void. Since the Central Amendment Act, 1976 occupies the same field imposing lesser punishment, the previous State law imposing punishment of imprisonment for life, though received the assent of the President was held to be void.It is seen that the Act was made under Entry 6, Entry 5 and Entry 66 of the State List and incidentally it took recourse to Entry 42 of the Concurrent List. Presumptive evidence furnishes that the State Legislature would be aware of the Central law and appreciated the local needs and the remedy is provided for and would make the law. Every endeavour should be made to allow both the laws to operate in their respective field. Unless State law is fully inconsistent and absolutely irreconcilable it would not be correct to conclude that repugnancy renders the State law void. Since the main purpose of the Act is not the acquisition of the property as the provisions do indicate in pith and substance that they do not occupy the sameis not fully inconsistent and are not absolutely irreconcilable. Both doin relation to the procedure prescribed under the Acts. The Act doesy without in any way colliding with the L.A. Act. Therefore, Section 55 and the Schedule did not become void.