Issue
Facts
Arguments Of Petitioner
Reasoning
Decision
U.p. Avas Evam Vikas Parishad
v.
Jainul Islam
(Supreme Court Of India)
Civil Appeal No. 6343 Of 1995 With No. 6383 Of 1995 | 21-01-1998
S. C. AGRAWAL, J.
(A) Civil Appeals Nos. 6343, 6383, 6358, 6368, 6353, 6370, 6369, 6371, 6363, 6357, 6361, 6356, 6376, 6359, 7646, 7361, 7362, 7363, 6373, 6374, 6375, 6352, 6382, 6347, 6354, 6344, 6345, 6355, 6350, 6362, 6364, 7357, 7358, 7360, 7359, 7356, 7644, 7364, 7365, 6351, 6349, 6377, 6372, 6365, 6360 of 1995 and Civil Appeals Nos. ... [arising out of Special Leave Petitions (Civil) Nos. 11170, 10512-10538, 10147 and 9549 of 1995]
1. Leave granted in Special Leave Petitions (Civil) Nos. 11170, 10512-10538, 10147 and 9549 of 1995
2. These appeals are directed against the judgment of the Allahabad High Court dated 7-12-1994 in appeals arising out of proceedings for acquisition of land in connection with housing scheme framed by the U.P. Avas Evam Vikas Parishad (hereinafter referred to as "the Parishad") under the provisions of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as "the Adhiniyam"). They raise common questions relating to the applicability of the provisions contained in the Land Acquisition (Amendment) Act, 1984 (hereinafter referred to as "the 1984 Act") to acquisition of land for executing the said scheme. The amendments introduced by the 1984 Act include insertion of sub-section (1-A) in Section 23 and amendment of Sections 23(2) and 28 of the Land Acquisition Act, 1894 (hereinafter referred to as "the LA Act"). As a result of the amendments in Sections 23(2) and 28 the solatium payable under Section 23(2) has been enhanced from 15% to 30% and the interest payable under Section 28 has been enhanced from 6% to 9% and 15%
3. The Parishad is a housing and development board established under Section 3 of the Adhiniyam. Under Section 15 of the Adhiniyam one of the functions of the Board is "to frame and execute housing and improvement schemes and other projects". In accordance with the provisions of the Adhiniyam the Parishad framed the "Bhoomi Vikas Evam Grihasthan Yojana No. 10 between Meerut-Hapur and Meerut-Delhi Road in Meerut". By notification dated 23-7-1983 (published in the U.P. Government Gazette dated 27-8-1983) issued under Section 28 of the Adhiniyam the Parishad notified the said scheme. The scheme was prepared with a view to solving the acute housing problem in Meerut city and it covered lands lying on the outskirts of Meerut city. The said notification was followed by notification dated 15-7-1985 (published in the U.P Government Gazette dated 3-8-1985) issued under Section 32(1) of the Adhiniyam. The said notification dated 15-7-1985 was in respect of land covering 202.48 acres equivalent to 9, 07, 954 sq. yards which was to be acquired under Section 55 of the Adhiniyam whereby the provisions of the LA Act, as modified by the Schedule to the Adhiniyam, have been made applicable to acquisition of land for the purposes of the Adhiniyam. After the issuance of the said notifications, the Land Acquisition Officer initiated proceedings to determine the compensation to be paid to the landowners whose lands were acquired in accordance with provisions of the LA Act as modified under the Schedule to the Adhiniyam. The Land Acquisition Officer determined the market value of the land so acquired at Rs. 30 per sq. yard and the compensation was offered to the landowners on that basis. The landowners claimed compensation at a higher rate of Rs. 150 per sq. yard and sought reference under Section 18 of the LA Act and thereupon references were made to the civil court for determination of such claims of the landowners. By judgment dated 12-12-1991, the civil court, namely, the Additional District Judge, Meerut, determined the market value of the land at Rs. 150 per sq. yard but he made a deduction of 10% out of it since the land acquired constituted a large area. Feeling aggrieved by the said determination made by the civil court the Parishad and the State of Uttar Pradesh jointly filed appeals before the Allahabad High Court. Some of the landowners filed cross-objections wherein they confined their challenge to the deduction of 10% that was made by the civil court. By the impugned judgment dated 7-12-1994 the High Court has partly allowed the appeals filed by the Parishad and has assessed the market value of the land at Rs. 110 per sq. yard and, instead of a deduction of 10% made by the civil court on account of the large area of the land, the High Court has directed that such deduction should be one-third of the sum of Rs. 110. The High Court has, therefore, fixed the market value of the land at Rs. 73 per sq. yard. The cross-objections filed by the landowners have been dismissed. The High Court has, however, held that the amendments introduced in the LA Act by the 1984 are applicable to acquisition of land for the purposes of the Adhiniyam and the landowners are entitled to all the statutory benefits under the LA Act as amended by the 1984 Act so far as applicable to them. Feeling aggrieved by the said decision of the High Court, the Parishad had filed Civil Appeals Nos. 6343, 6383, 6358, 6368, 6353, 6370, 6369, 6371, 6363, 6357, 6361, 6356, 6376, 6359, 7646, 7361, 7362, 7363, 6373, 6374, 6375, 6352, 6382, 6347, 6354, 6344, 6345, 6355, 6350, 6362, 6364, 7357, 7358, 7360, 7359, 7356, 7644, 7364, 7365, 6351, 6349, 6377, 6372, 6365, and 6360 of 1995 before this Court. Feeling aggrieved by the reduction in the market value by the High Court some of the claimants have filed civil appeals arising out of Special Leave Petitions (Civil) Nos. 11170, 10512-10538, 10147 and 9549 of 1995. The claimants, who are respondents in Civil Appeals Nos. 6353 and 6363 of 1995 filed by the Parishad, have filed Writ Petitions Nos. 224 and 339 of 1997 under Article 32 of the Constitutions wherein they have challenged the validity of the provisions contained in the LA Act as applicable in the matter of acquisition of land for the purposes of the Adhiniyam by virtue of Section 55 read with the Schedule to the Adhiniyam.
4. It would be convenient, at this stage, to briefly refer to the relevant provisions of the Adhiniyam.
5. The Adhiniyam has been enacted by the U.P. State Legislature to provide for the establishment, incorporation and functioning of a housing and development board in the State of Uttar Pradesh. It had received the assent of the President. Section 3 of the Adhiniyam provides for constitution of the Board and in accordance with the said provision the Parishad has been constituted by the State Government as a Board under the Adhiniyam. By virtue of Section 3(3) of the Adhiniyam the Parishad is a local authority for the purposes of the LA Act. Section 15 of the Adhiniyam enumerates the function of the Board and one of the functions thus enumerated is to frame and execute housing and improvement schemes and other projects. Section 16 provides that the Board may on its own motion or at the instance of a local authority frame a housing or improvement scheme and that the Board shall frame such a scheme when so directed by the State Government. Section 17 prescribes the matters which are required to be provided for in such a scheme. One of the matters to be provided is "the acquisition by purchase, exchange or otherwise of any property necessary for or affected by the execution of the scheme". Sub-section (1) of Section 28 provides that when any housing or improvement scheme has been framed the Board shall prepare a notice to that effect specifying the matters mentioned in clauses (a) to (c). Sub-section (2) of Section 28 requires such notice to be published in the manner laid down therein. Section 29 provides for service on the persons or classes or persons of a notice stating that the Board proposes to acquire any specified land or building for the execution of the scheme. Section 30 makes provision for filing of objections against the scheme. Section 31 provides for sanctioning of the scheme, with or without modifications after considering the objections received under Section 30, by the Board if the estimated cost of the scheme does not exceed twenty lakh rupees and by the State Government if it exceeds the said amount. Sub-section (1) of Section 32 provides that whenever the Board or the State Government sanctions a housing or improvement scheme, it shall be notified in the Gazette and sub-section (2) lays down that the notification under sub-section (1) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned. In cases where the scheme is sanctioned by the Board an appeal lies to the State Government against the decision of the Board under sub-section (3) of Section 32 and if the scheme is altered or cancelled by the State Government on such appeal the cancellation or alteration is required to be notified in the Gazette under sub-section (4) of Section 32. In Section 38 provision is made for transfer to the Board of any building or land or any street, or any part thereof, vested in a local authority which lies within the area comprised in any housing or improvement scheme and for payment by the Board to the local authority, as compensation, a sum equal to the market value of such land or building or both, as the case may be, as on the date on which the scheme comes into force. Section 39 makes provision for transfer of any private street or square or part thereof which the public or any section of the public has right to pass along or use and which is not vested in the Board or in any local authority for executing any housing or improvement scheme and for payment to the previous owner compensation determined on the basis of the market value, on the date of vesting of his rights therein. Section 55 of the Adhiniyam makes the following provisions regarding acquisition of land that is required by the Board for any of the purposes of the Adhiniyam.
6. Section 56 empowers the Board, by agreement with any person, to purchase, lease or exchange any land or any interest therein required by it for any of the purposes of the Adhiniyam. Section 64 makes provisions for the constitution of one or more Tribunals for the purposes of, inter alia, performing the functions of the Court with reference to the acquisition of land for the Board under the LA Act, as modified by the Schedule to the Adhiniyam.
7. The Schedule to the Adhiniyam sets out the modifications in the LA Act, as amended, in its application to the State of Uttar Pradesh. As per the said modifications
(vii) In Section 23 of the LA Act for existing explanation to the clause firstly the following provision has been substituted
(viii) After the existing sub-section (1) in Section 23 of the LA Act the following sub-section (2) has been added.
(ix) In Section 49 after sub-section (1) the following sub-section (1-a) has been added
8. In this context, it may be mentioned that prior to the enactment of the Adhiniyam the Uttar Pradesh State Legislature had enacted the Land Acquisition (U.P. Amendment) Act, 1954 (U.P. Act 22 of 1954) (hereinafter State of Uttar Pradesh, insofar as it relates to acquisitions of land except for the purposes of the Union, had been amended and it was to have effect in the State subject to the amendments specified in the Schedule to the 1954 Act. One of the amendments that was so introduced was in Section 23 of the LA Act whereby the following explanation was added in clause (1) of Section 23.
The other amendment was the deletion of sub-section (2) of Section 23.
9. By the Land Acquisition (U.P. Amendment) Act, 1972 (U.P. Act No. 28 of 1972) (hereinafter referred to as "the 1972 Act") the LA Act, as application in the state of Utter Pradesh, was further amended and the Explanation that was inserted in sub-section (1) of Section 23 by the 1954 Act was omitted and sub-section (2) of Section 23 which was deleted by the 1954 Act was restored. This would show that in 1965 when the Adhiniyam was enacted solution @ 15% was not payable under Section 23 of the LA Act in respect of acquisition of land in the State of Uttar Pradesh when such acquisition was not for the purposes of the Union and while enacting the Adhiniyam the legislature made provision for payment of such solatium. Thus there was disparity in the matter of payment of solatium in respect of acquisition of land for the purposes of the Adhiniyam and acquisition of land under the provisions of the LA Act as applicable in the State of Uttar Pradesh where such acquisition was not for the purposes of the Union. This disparity stood removed after the enactment of the 1972 Act whereby sub-section (2) was introduced in the LA Act as applicable in the State of Uttar Pradesh.
10. By the 1984 Act the LA Act has been amended and amongst the amendments that have been made the following are relevant.
11. The 1984 Act, being a subsequent parliamentary enactment, overrides the 1972 Act by virtue of Article 254(2) of the Constitution and as a result in the State of Uttar Pradesh in the event of land being acquired under the provisions of the LA Act, as applicable in the said State, the with the landowner is entitled to payment of compensation and interest in accordance provisions of Sections 23 and 28, as amended by the 1984 Act. Since there has been no corresponding amendment in the Adhiniyam the question has arisen whether the benefit of the amendments introduced in the LA Act by the 1984 Act can be extended to landowners whose land is acquired for the purposes of the Adhiniyam on the basis of the provisions of the LA Act as modified by the Adhiniyam.
12. In Gauri Shankar Gaur v. State of U. P. a Bench of two Judges of this Court (K. Ramaswamy and R. M. Sahai, JJ.) has dealt with the question regarding the applicability of the 1984 Act to acquisition of land under the provisions of the Adhiniyam in the context of the first proviso to Section 6 of the LA Act which was substituted by the 1984 Act. By the said proviso it has been prescribed that no declaration in respect of any particular land covered by a notification under Section 4(1) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, but before the commencement of the 1984 Act, shall be made after the expiry of three years from the date of the publication of the notification. In that case the notification under Section 28(1) of the Adhiniyam was published in the Gazette on 8-9-1973, 15-9-1973, and 22-9-1973 and the notification under Section 32(1) of the Adhiniyam was published on 27-8-1977, i.e., after the expiry of three years. A contention was raised that the notification under Section 32 was required to be issued within three years from the date of the notification under Section 28(1) on the basis of the first proviso to Section 6 of the earlier Act. It was urged that the amendment introduced in the LA Act by the 1984 Act, including the first proviso to Section 6, are applicable to acquisition of land under the Adhiniyam. Although both the learned Judges have concurred in upholding the validity of the acquisition, but there was difference of opinion between them on some of the questions that came up for consideration. One of the questions arising for consideration was whether the provisions of the LA Act have been incorporated by reference in the Adhiniyam by virtue of Section 55 read with the Schedule to the Adhiniyam and as a consequence any amendment made in the earlier Act after the enactment of the Adhiniyam does not, ipso facto, apply to an acquisition for the purposes of the Adhiniyam on the basis of the provisions of the LA Act as modified by the Adhiniyam.
13. Ramaswamy, J. was of the view that Section 55 of the Adhiniyam read with the Schedule made an express incorporation of the provisions of Section 4(1) and Section 6 as modified and incorporated in the Schedule and that the Schedule effected necessary structural amendments to Sections 4, 5, 17 and 23 incorporating therein the procedure and principles with necessary modifications and that it is a complete code in itself. He, therefore, held that Section 55 and the Schedule adopted only by incorporation Sections 4(1) and 6(1) and the subsequent amendments to Section 6 did not become part of the Adhiniyam and they have no effect on the operation of the provisions of the Adhiniyam. Sahai, J. however, took a contrary view. He was of the opinion that whether a legislation was by way of incorporation or by way of reference is more a matter of construction by the courts keeping in view the language employed by the enactment, the purpose of referring or incorporating provisions of an existing Act and the effect of it on the day-to-day working. According to the learned Judge such legislation by incorporation is subject to exceptions and that one such situation where legislation by incorporation is excluded is if it creates difficulty in day-to-day working. The learned Judge was of the view that in our constitutional set-up the exception can be extended further and the courts should lean against a construction which may result in discrimination. He, therefore, held that the amendments introduced in the LA Act by the 1984 Act would be applicable to acquisition of land for the purpose of the Adhiniyam and restriction of three years added by the first proviso to Section 6 of the LA Act was applicable to acquisition for the purposes of the Adhiniyam also. The learned Judge, however, took note of the fact that the Parishad had entered into possession and had constructed housing colonies as there was no interim order in favour of the landowners during pendency of the writ petitions in the High Court and observed that larger social interest requires this Court to mould the relief in such a manner that justice may not suffer. He, therefore, held that even though publication of declarations under the Act were beyond the period of three years it was not in the interest of justice to quash the proceedings but the landowners should be paid compensation of the land acquired on market value prevalent in the year in which the declaration analogous to Section 6 of the earlier Act was published/issued by fictionally assuming that fresh notification under the Act analogous to Section 4 was issued in that year.
14. Another question that came up for consideration in Gauri Shankar Gaur was whether the provisions contained in the LA Act, as amended by Section 55 read with the Schedule to the Adhiniyam, have ceased to operate after the enactment of the 1984 Act in view of Article 254 of the Constitution for the reason that the provisions contained in the Adhiniyam are repugnant to the provisions contained in the LA Act as amended by the 1984 Act. Ramaswamy, J. has dealt with this question and has held that the Adhiniyam was a law made under Entry 6, Entry 5 and Entry 66 of List II (State List) and incidentally it took recourse to Entry 42 of List III (Concurrent List) and that since the main purpose of the Adhiniyam was not the acquisition of the property, as the provisions do indicate in pith and substance that they did not occupy the same field, it was not fully inconsistent and were not absolutely irreconcilable with the LA Act as amended by the 1984 Act and that the Adhiniyam and the earlier Act both do coexist in relation to the procedure prescribed under both these Acts and the Adhiniyam did coexist independently without in any way colliding with the earlier Act and, therefore, Section 55 and the Schedule did not become void under the proviso to Article 254(2) of the Constitution. Sahai, J. has, however, not considered the said question of repugnancy of the Adhiniyam to the LA Act as amended by the 1984 Act.
15. Since there was difference of opinion between the learned Judges the question regarding the applicability of the 1984 Act to acquisitions for the purpose of the Adhiniyam in Gauri Shankar Gaur 55 LJ(Ch) 488) these matters have been directed to be heard by a Bench of three Judges and that is how these matters have come up before us.
16. Shri S. B. Sanyal, learned Senior Counsel appearing for the Parishad, has placed reliance on the judgment of Ramaswamy, J. in Gauri Shankar Gaur and has urged that the provisions of the LA Act, as modified by the Schedule to the Adhiniyam, have been incorporated into the Adhiniyam and as a consequence of such incorporation the provisions of the LA Act as modified must be read as a part of the Adhiniyam itself and any amendment made in the LA Act after the enactment of the Adhiniyam would not, ipso facto, apply so as to have the effect of modifying those provisions contained in the Adhiniyam and, therefore, the amendments introduced in the LA Act by the 1984 Act would not apply to an acquisition made for the purposes of the Adhiniyam on the basis of the provisions of the LA Act as modified by the Adhiniyam. On behalf of the landowners reliance has been been placed on the judgment of Sahai, J. in Gauri Shankar Gaur and it has been submitted that the amendments introduced in the LA Act by the 1984 Act are applicable to an acquisition for the purposes of the Adhiniyam.
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 stature; or (ii) a legislation by incorporation whereunder the provisions of the earlier legislation to which reference is made are incorporated into the later legislation by reference. If it is a referential legislation the provisions of the earlier legislation to which reference is made in the subsequent legislation would be applicable as it stands on the date of application of such earlier legislation to matters referred to in the subsequent legislation. In other words, any amendment made in the earlier legislation after the date of enactment of the subsequent legislation would also be applicable. But if it is a legislation by incorporation the rule of construction is that repeal of the earlier stature which is incorporated does not affect operation of the subsequent statute in which it has been incorporated. So also any amendment in the stature 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 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. In the words of Lord Esher, M.R., the legal effect of such incorporation by reference.
(See : Woods Estate, Re, 55 LJ(Ch) 488) Ch D at o. 615.) 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 legislation and other relevant circumstances. The legal position has been thus summed up by this Court in State of M. P. v. M. V. Narasimhan (SCR p. 14 : SCC p. 385, para 15).
.
18. Section 55 of the Adhiniyam makes a reference to the provisions of the LA Act, as amended in its application to Uttar Pradesh, and has laid down that any land or any interest therein required by the Parishad for any of the purposes of the Adhiniyam may be acquired under the provisions of the LA Act as amended in its application to Uttar Pradesh which for this purpose has to be subject to the modifications specified in the Schedule to the Adhiniyam. A number of modifications have been made in the various provisions of the LA Act that have been made applicable in respect of acquisition for the purposes of the Adhiniyam. The publication of the notification under Section 28(1) of the Adhiniyam has been equated with a notice under sub-section (1) of Section 4 of the LA Act and the publication of a notification under Section 32(1) of the Adhiniyam has been equated with a declaration under Section 6 of the LA Act. As regards compensation modification has been made by inserting sub-section (2) in Section 23 of the LA Act, as it was applicable in the State of Uttar Pradesh. As pointed out earlier, in the LA Act, in its application to the State of Uttar Pradesh, insofar as it related to acquisitions of land except for the purposes of the Union, sub-section (2) of Section 23 had been deleted by virtue of the 1954 Act and there was no provision for payment of solatium. A provision for payment of solatium @ 15% was introduced by a modification made in the Schedule to the Adhiniyam and sub-section (2) was inserted in Section 23 of the LA Act in its application to acquisition for the purposes of the Adhiniyam.
19. Provisions similar to Section 55 of the Adhiniyam are found in other enactments providing for urban improvement. One such enactment was the Calcutta Improvement Act, 1911 whereunder the Board of Trustees of the Calcutta Improvement Trust was entrusted with very wide powers for the purpose of carrying improvement schemes within the municipal limits of Calcutta. The said powers included the power of compulsory acquisition of land. In Part 4 of the said Act it was provided that the Trustees may make such acquisitions under the LA Act but the LA Act was modified for the purposes of the Calcutta Improvement Trust. The modifications were contained partly in the body of the Improvement Act and partly in a Schedule attached to the Improvement Act. One of the departures from the LA Act was that under the Improvement Act a tribunal was constituted to take the place of a court under the LA Act and the tribunal was to be deemed to be the court under the LA Act except for the purposes of Section 54 of the said Act and as a consequence there was no general right of appeal to the High Court which right was available under the LA Act. By an amendment made contemporaneously by Act 18 of 1911 passed by the Governor General-in-Council the Calcutta Improvement Act was amended and a right of appeal to the High Court from the tribunal was conferred. Subsequently by Act 19 of 1921 an amendment was introduced in the LA Act whereby a right of appeal to His Majesty in Council from any decree passed by the High Court on appeal from an award of the Court was conferred. In Secy. of State v. Hindustan Coop. Insurance Society Ltd. 1931 All(LJ) 475: 58 IA 259) a question arose whether the said amendment in the LA Act was applicable so as to confer a right of appeal from the Tribunal. The said question was answered in the negative by the Privy Council. After referring to Part 4 of the Calcutta Improvement Act and the modifications that were made in the LA Act, their Lordships observed : (AIR pp. 150-51, 152).
20. It was held that the amendment that was introduced in the LA Act in 1921 could not be regarded as incorporated in the Calcutta Improvement Act because the same was not part of the LA Act when the Calcutta Improvement Act was passed, nor part of the LA Act when the Calcutta Improvement anything to suggest that the Bengal Legislature intended to bind themselves to any future additions which might be made to the LA Act and that Act 19 of 1921 also did not contain any provision that the amendments enacted by it were to be treated as in any way retrospective or were to be regarded as affecting any other enactment than the LA Act itself.
21. The provisions of Section 55 read with the Schedule to the Adhiniyam are on the same lines as those contained in the Calcutta Improvement Act, 1911 and the principles laid down in Secy. of State v. Hindustan Coop. Insurance Society Ltd. 1931 All(LJ) 475: 58 IA 259) are equally applicable to the present case. The amendments introduced in the LA Act by the 1984 Act were not part of the LA Act as applicable in the State of Uttar Pradesh, at the time of passing of the Adhiniyam. The provisions 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 any subsequent repeal or amendment in the LA Act unless any of the exceptional situations indicated in State of M. P. v. M. V. Narasimhan can be attracted.
22. In Gauri Shankar Gaur Sahai, J. has stated that the language of Section 55 of the Adhiniyam permitting acquisition under the provisions of the LA Act, as amended in its application to Uttar Pradesh, with modifications specified in the Schedule to the Adhiniyam, is widely different from the language used in the Calcutta Improvement Act and further that the decision of the Judicial Committee of the Privy Council in Secy. of State v. Hindustan Coop. Insurance Society Ltd. 1931 All(LJ) 475: 58 IA 259) turned on the principle that specific excludes general. We find it difficult to agree with the said view of the learned Judge. As noticed earlier by Part 4 of the Calcutta Improvement Act, 1911, which dealt with the acquisition of land for the purposes of that Act, the LA Act had been modified for the purposes of the Calcutta Improvement Act and the said modifications were contained partly in the body of the Calcutta Improvement Act and partly in the Schedule attached to the Act and on that basis it was held by the Judicial Committee of the Privy Council that the effect of the said provisions was to enact for the purposes of the Calcutta Improvement Act a special law for acquisition of land by the trustees within the limited area over which their powers extended and the Calcutta Improvement Act was regarded as doing nothing more than incorporating certain provisions from an existing Act and for convenience of drafting doing so by reference to that Act, instead of setting out for itself at length the provisions which it was desired to adopt. The scheme of Section 55 read with the Schedule to the Adhiniyam is not very different.
23. As regards the exceptional situations referred to in State M. P. v. M. V. Narasimhan it may be stated that the Adhiniyam and the LA Act cannot be regarded supplemental to each other. The Adhiniyam contains provisions regarding acquisition of land which are complete and self-contained. Nor can the provisions in the Adhiniyam be said to be in pari materia with the LA Act because the Adhiniyam also deals with matters which do not fall within the ambit of the LA Act. It cannot also be said that the 1984 Act, expressly or by necessary intendment, applies the said amendments to the Adhiniyam. Can it be said that if the amendments made in the LA Act by the 1984 Act are not incorporated in the Adhiniyam it would be rendered unworkable Sahai, J. has expressed the view that the exceptional situations referred to in State of M. P. v. M. V. Narasimhan can be extended further in our constitutional set-up and that the courts should lean against a construction which may result in discrimination. In the impugned judgment the High Court has observed that while persons whose lands were acquired under the Land Acquisition Act were entitled to all statutory benefits as per the 1984 Act, similar benefits are denied in the matter of determination of market value of the land acquired by application of provision of the Adhiniyam and that it would be discriminatory and violative of Article 14 of the Constitution and that the court should interpret the provisions of a law to favour constitutionality rather than interpret it so as to be violative of the fundamental rights guaranteed under the Constitution.
24. The learned counsel for the landowners have urged that if the provisions of the LA Act, as they stood on the date of enactment of the Adhiniyam without the amendments introduced by the 1984 Act relating to determination and payment of compensation are held to be incorporated in the Adhiniyam the provisions of the Adhiniyam incorporating the provisions of the LA Act would be rendered unconstitutional as being violative of Article 14 of the Constitution. Reliance has been placed on the decision of this Court in Nagpur Improvement Trust v. Vithal Rao. On behalf of the Parishad it has, however, been urged that in proceedings arising from a reference under Section 18 it is not open to the claimants to raise the question regarding constitutional validity of the provisions of the Adhiniyam under which the reference has been made. It has been pointed out that the LA Act was enacted by Parliament while the Adhiniyam was enacted by the Uttar Pradesh State Legislature and that Article 14 cannot be invoked when the alleged discrimination arises on the basis of laws made by two different legislative bodies. It has also been urged that merely because under the provisions of the LA Act, as modified by the Schedule to the Adhiniyam which are applicable in the matter of acquisition of land for the purposes of the Adhiniyam, solatium is payable @ 15% and not @ 30% and interest is payable @ 6% and not @ 9% and 5%, as provided in the LA Act as amended by the 1984 Act, would not render the acquisition proceedings taken under the Adhiniyam to be unconstitutional. In support of the said submissions reliance has been placed on the decisions of this Court in State of M. P. v. G. C. Mandawar; Prakash Amichand Shah v. State of Gujarat and Union of India v. Hari Krishan Khosla.
25. It is no doubt true that in an appeal arising from a reference under Section 18 of the LA Act it is not open to the claimants to challenge the validity of he provisions of the law under which the reference has been made. But, at the same time, while construing the provisions of the Adhiniyam providing for acquisition of land for the purposes of the Adhiniyam, we cannot lose sight of the settled principle of statutory construction that "if certain provisions of law, construed in one way, would make them consistent with the Constitution and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction". (See : Kedar Nath Singh v. State of Bihar, at pp. 808, 809.) We would, therefore, examine whether the provisions of the Adhiniyam if they are so construed as to incorporate the provisions of the LA Act as it stood on the date of enactment of the Adhiniyam without the amendments introduced in the LA Act by the 1984 Act relating to determination and payment of compensation would be violative of the provisions of Article 14 of the Constitution. In this context, it may be stated that if the provisions are construed as indicated above an owner whose land is acquired for the purpose of the Adhiniyam would be entitled to payment of solatium under Section 23(2) of the LA Act @ 15% and interest under Section 28 of the LA Act @ 6% but an owner whose lands are acquired under the provisions of the LA Act as amended by the 1984 Act would be entitled to payment of solatium @ 30% and interest @ 9% and 15% and would also be entitled to payment of additional amount as per the provisions of Section 23(1-A) of the LA Act, as amended. In other words, the compensation payable to the owner whose land is acquired for the purposes of the Adhiniyam would be less than the compensation payable to the owner whose land is acquired under the LA Act as amended by the 1984 Act. Is there any rational basis for treating the two landowners differently in the matter of payment of compensation for the acquisition of their lands
26. This question came up for consideration in Nagpur Improvement Trust decided by a Special Bench of seven Judges of this Court. Section 59 of the Nagpur Improvement Trust Act, 1936 provided that the Trust may, with the previous of the LA Act, as modified by the provisions of the Improvement Trust Act, for carrying out any of the purposes of the Improvement Trust Act. By Section 61 certain express provisions were made in the matter of acquisition for the purpose of acquisition of land under the LA Act and it was also laid down that "the Act shall be subject to the further modifications as indicated in the Schedule". The Schedule to the Improvement Trust Act contained various modifications. Among the modifications made in the Schedule was the substitution of sub-section (2) of Section 23 of LA Act and as a result the applicability of the provisions of sub-section (2) of Section 23 of the LA Act were made inapplicable to lands other than those specified therein. The constitutional validity of the provisions of the Improvement Trust Act, insofar as the same related to acquisition of land, was challenged on the ground that the same were violative of the right to equality guaranteed under Article 14 of the Constitution inasmuch as the said provisions empowered the acquisition of land at prices lower than those that would have been payable if the lands had been acquired under the LA Act. The said challenge was upheld by the High Court and the provisions contained in the Improvement Trust Act, whereby Section 23 of the LA Act, as applicable to acquisition for the purpose of the Improvement Trust Act, were struck down on the ground of violation of Article 14 of the Constitution. The said decision of the High Court was upheld by this Court. This Court has referred to Section 17-A which had been inserted by way of modification as per the Schedule to the Improvement Trust Act and wherein it was provided that "in every case referred to in Section 16 or Section 17, Collector shall, upon payment of the cost of acquisition, make over charge of the land to the Trust and the land shall thereupon vest in the Trust, subject to the liability of the Trust to pay any further costs which may be incurred on account of its acquisition". It was held that in view of Section 17-A, as inserted by paragraph 6 of the Schedule to the Improvement Trust Act, it was quite clear that the acquisition will be by the Government and it is only on payment of the cost of acquisition to the Government that the lands vest in the Trust and though the acquisition is for the Trust and may be at its instance, but nevertheless the acquisition is by the Government. It was pointed out that the Government could thus acquire for a housing accommodation scheme either under the LA Act or under the Improvement Trust Act and, if it were so, it would enable the State Government of discriminate between one owner equally situated from another owner. It was observed : (SCC p. 507, paras 29 & 30)
27. The provisions of the Adhiniyam are very similar to those contained in the Nagpur Improvement Trust Act. Section 55 of the Adhiniyam is similar to Section 59 of the Nagpur Improvement Trust Act inasmuch as both the provisions provide for modifications being made in the LA Act. Section 17-A that has been inserted in the LA Act by the modifications made by the Adhiniyam is in the same terms as Section 17-A which was inserted by paragraph 6 of the Schedule to the Nagpur Improvement Trust Act. The reasons which weighed with this Court in striking down the provisions of the Nagpur Improvement Trust Act whereby Section 23 of the earlier Act had been modified in its application for the purpose of acquisition under the said Act would, therefore, equally apply while considering the constitutional validity of the provisions of the Adhiniyam whereunder the provisions of Section 23 of the LA Act have been modified under the Schedule to the Adhiniyam.
28. The principle laid down by this Court in State of M. P. v. G. C. Mandawar that Article 14 cannot be invoked when the alleged discrimination is on account of laws made by two different legislatures has no application in the present case because under the LA Act as well as under the provisions of the Adhiniyam the acquisition is to be made by the same authority, viz., the State Government of Uttar Pradesh, and discrimination arises on account of action taken by the same authority.
29. The decision in Prakash Amichand Shah v. State of Gujarat on which reliance has been placed by Shri Sanyal on behalf of the Parishad, also does not lend any assistance to his submissions. In that case this Court was dealing with the provisions of the Bombay Town Planning Act, 1954 as applicable in the State of Gujarat. Under the said Act there were three modes for taking over land, namely, (i) acquisition under Section 11 for development purposes for which compensation was payable under the provisions of the LA Act as amended by the provisions contained in the Schedule to the said Act, (ii) transfer of lands that takes place on coming into force of the final scheme under Section 53 of the said Act for which compensation is payable in accordance with Section 67 of the said Act, and (iii) acquisition of land under Section 84 of the said Act which empowered the State Government to acquire land included in the Town Planning Scheme at a subsequent stage where amount was payable in accordance with provisions of the LA Act as amended by the Schedule to the said Act. In that case acquisition had been made under Section 53 of the said Act and compensation was payable in accordance with Section 67 of the said Act and there was no provision for payment of solatium. While negativing the challenge to the validity of the acquisition on the ground of discrimination in the matter of payment of compensation, this Court, after referring to the decision in Nagpur Improvement Trust has pointed out that the provision under consideration in that case, viz., Section 59 of the Nagpur Improvement Trust Act, corresponds to Section 11 or Section 84 of the Bombay Town Planning Act and that the provisions under Section 53 of the said Act are not like acquisition proceedings under he LA Act and the provisions of the LA Act were not applicable with or without modifications as in the case of the Nagpur Improvement Trust Act. Section 53 of the Bombay Town Planning Act contained provisions which are similar to those contained in Sections 38 and 39 of the Adhiniyam which also provide for vesting of certain public lands vested in a local authority or private street or square and payment of compensation for such lands. A provision similar to Section 55 of the Adhiniyam was contained in Section 11 of the Bombay Town Planning Act which provided that the LA Act as amended by the Schedule to the said Act would apply to the determination of compensation for the acquisition of such land. Since the Court was not dealing with an acquisition under Section 11 of the Bombay Town Planning Act the decision in Prakash Amichand Shah has no application.
30. Union of India v. Hari Krishan Khosla relates to acquisition under the provisions of Requisitioning and Acquisition of Immovable Property Act, 1952. Section 8(3) of the said Act did not provide for payment of solatium @ 15% and interest @ 6% on acquisition of requisitioned lands. The validity of Section 8(3) was challenged on the ground that it was violative of Article 14 of the Constitution and reliance was placed on Nagpur Improvement Trust. The said challenge was negatived by the Court on the ground that "cases of acquisition of land stood on a different footing than those where such property is subject to prior requisition before acquisition". This decision also does not lend any assistance to the submissions of Shri Sanyal.
31. Since the present case involves acquisition of land under the provisions of the LA Act as applicable under the Adhiniyam, it is fully covered by the law laid down by this Court in Nagpur Improvement Trust. Keeping in view the principles laid down in the said decision of this Court, it has to be held that if the provisions of the Adhiniyam are so construed as to mean that the provisions of the LA Act, as they stood on the date of enactment of the Adhiniyam, would be applicable to acquisition of land for the purpose of the Adhiniyam and that the amendments introduced in the LA Act by the 1984 Act relating to determination and payment of compensation are not applicable, the consequence would be that the provisions of the LA Act, as applicable under 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 he legislature, in enacting the Adhiniyam, was to deny to the landowners the benefits relating to determination and payment of compensation which would be available to them under any amendment made in the LA Act after the enactment of the Adhiniyam. We are, therefore, of the opinion that on a proper construction of Section 55 of the Adhiniyam it must be held that while incorporating the provisions of the LA Act in the Adhiniyam the intention of the legislature.
(A) Civil Appeals Nos. 6343, 6383, 6358, 6368, 6353, 6370, 6369, 6371, 6363, 6357, 6361, 6356, 6376, 6359, 7646, 7361, 7362, 7363, 6373, 6374, 6375, 6352, 6382, 6347, 6354, 6344, 6345, 6355, 6350, 6362, 6364, 7357, 7358, 7360, 7359, 7356, 7644, 7364, 7365, 6351, 6349, 6377, 6372, 6365, 6360 of 1995 and Civil Appeals Nos. ... [arising out of Special Leave Petitions (Civil) Nos. 11170, 10512-10538, 10147 and 9549 of 1995]
1. Leave granted in Special Leave Petitions (Civil) Nos. 11170, 10512-10538, 10147 and 9549 of 1995
2. These appeals are directed against the judgment of the Allahabad High Court dated 7-12-1994 in appeals arising out of proceedings for acquisition of land in connection with housing scheme framed by the U.P. Avas Evam Vikas Parishad (hereinafter referred to as "the Parishad") under the provisions of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as "the Adhiniyam"). They raise common questions relating to the applicability of the provisions contained in the Land Acquisition (Amendment) Act, 1984 (hereinafter referred to as "the 1984 Act") to acquisition of land for executing the said scheme. The amendments introduced by the 1984 Act include insertion of sub-section (1-A) in Section 23 and amendment of Sections 23(2) and 28 of the Land Acquisition Act, 1894 (hereinafter referred to as "the LA Act"). As a result of the amendments in Sections 23(2) and 28 the solatium payable under Section 23(2) has been enhanced from 15% to 30% and the interest payable under Section 28 has been enhanced from 6% to 9% and 15%
3. The Parishad is a housing and development board established under Section 3 of the Adhiniyam. Under Section 15 of the Adhiniyam one of the functions of the Board is "to frame and execute housing and improvement schemes and other projects". In accordance with the provisions of the Adhiniyam the Parishad framed the "Bhoomi Vikas Evam Grihasthan Yojana No. 10 between Meerut-Hapur and Meerut-Delhi Road in Meerut". By notification dated 23-7-1983 (published in the U.P. Government Gazette dated 27-8-1983) issued under Section 28 of the Adhiniyam the Parishad notified the said scheme. The scheme was prepared with a view to solving the acute housing problem in Meerut city and it covered lands lying on the outskirts of Meerut city. The said notification was followed by notification dated 15-7-1985 (published in the U.P Government Gazette dated 3-8-1985) issued under Section 32(1) of the Adhiniyam. The said notification dated 15-7-1985 was in respect of land covering 202.48 acres equivalent to 9, 07, 954 sq. yards which was to be acquired under Section 55 of the Adhiniyam whereby the provisions of the LA Act, as modified by the Schedule to the Adhiniyam, have been made applicable to acquisition of land for the purposes of the Adhiniyam. After the issuance of the said notifications, the Land Acquisition Officer initiated proceedings to determine the compensation to be paid to the landowners whose lands were acquired in accordance with provisions of the LA Act as modified under the Schedule to the Adhiniyam. The Land Acquisition Officer determined the market value of the land so acquired at Rs. 30 per sq. yard and the compensation was offered to the landowners on that basis. The landowners claimed compensation at a higher rate of Rs. 150 per sq. yard and sought reference under Section 18 of the LA Act and thereupon references were made to the civil court for determination of such claims of the landowners. By judgment dated 12-12-1991, the civil court, namely, the Additional District Judge, Meerut, determined the market value of the land at Rs. 150 per sq. yard but he made a deduction of 10% out of it since the land acquired constituted a large area. Feeling aggrieved by the said determination made by the civil court the Parishad and the State of Uttar Pradesh jointly filed appeals before the Allahabad High Court. Some of the landowners filed cross-objections wherein they confined their challenge to the deduction of 10% that was made by the civil court. By the impugned judgment dated 7-12-1994 the High Court has partly allowed the appeals filed by the Parishad and has assessed the market value of the land at Rs. 110 per sq. yard and, instead of a deduction of 10% made by the civil court on account of the large area of the land, the High Court has directed that such deduction should be one-third of the sum of Rs. 110. The High Court has, therefore, fixed the market value of the land at Rs. 73 per sq. yard. The cross-objections filed by the landowners have been dismissed. The High Court has, however, held that the amendments introduced in the LA Act by the 1984 are applicable to acquisition of land for the purposes of the Adhiniyam and the landowners are entitled to all the statutory benefits under the LA Act as amended by the 1984 Act so far as applicable to them. Feeling aggrieved by the said decision of the High Court, the Parishad had filed Civil Appeals Nos. 6343, 6383, 6358, 6368, 6353, 6370, 6369, 6371, 6363, 6357, 6361, 6356, 6376, 6359, 7646, 7361, 7362, 7363, 6373, 6374, 6375, 6352, 6382, 6347, 6354, 6344, 6345, 6355, 6350, 6362, 6364, 7357, 7358, 7360, 7359, 7356, 7644, 7364, 7365, 6351, 6349, 6377, 6372, 6365, and 6360 of 1995 before this Court. Feeling aggrieved by the reduction in the market value by the High Court some of the claimants have filed civil appeals arising out of Special Leave Petitions (Civil) Nos. 11170, 10512-10538, 10147 and 9549 of 1995. The claimants, who are respondents in Civil Appeals Nos. 6353 and 6363 of 1995 filed by the Parishad, have filed Writ Petitions Nos. 224 and 339 of 1997 under Article 32 of the Constitutions wherein they have challenged the validity of the provisions contained in the LA Act as applicable in the matter of acquisition of land for the purposes of the Adhiniyam by virtue of Section 55 read with the Schedule to the Adhiniyam.
4. It would be convenient, at this stage, to briefly refer to the relevant provisions of the Adhiniyam.
5. The Adhiniyam has been enacted by the U.P. State Legislature to provide for the establishment, incorporation and functioning of a housing and development board in the State of Uttar Pradesh. It had received the assent of the President. Section 3 of the Adhiniyam provides for constitution of the Board and in accordance with the said provision the Parishad has been constituted by the State Government as a Board under the Adhiniyam. By virtue of Section 3(3) of the Adhiniyam the Parishad is a local authority for the purposes of the LA Act. Section 15 of the Adhiniyam enumerates the function of the Board and one of the functions thus enumerated is to frame and execute housing and improvement schemes and other projects. Section 16 provides that the Board may on its own motion or at the instance of a local authority frame a housing or improvement scheme and that the Board shall frame such a scheme when so directed by the State Government. Section 17 prescribes the matters which are required to be provided for in such a scheme. One of the matters to be provided is "the acquisition by purchase, exchange or otherwise of any property necessary for or affected by the execution of the scheme". Sub-section (1) of Section 28 provides that when any housing or improvement scheme has been framed the Board shall prepare a notice to that effect specifying the matters mentioned in clauses (a) to (c). Sub-section (2) of Section 28 requires such notice to be published in the manner laid down therein. Section 29 provides for service on the persons or classes or persons of a notice stating that the Board proposes to acquire any specified land or building for the execution of the scheme. Section 30 makes provision for filing of objections against the scheme. Section 31 provides for sanctioning of the scheme, with or without modifications after considering the objections received under Section 30, by the Board if the estimated cost of the scheme does not exceed twenty lakh rupees and by the State Government if it exceeds the said amount. Sub-section (1) of Section 32 provides that whenever the Board or the State Government sanctions a housing or improvement scheme, it shall be notified in the Gazette and sub-section (2) lays down that the notification under sub-section (1) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned. In cases where the scheme is sanctioned by the Board an appeal lies to the State Government against the decision of the Board under sub-section (3) of Section 32 and if the scheme is altered or cancelled by the State Government on such appeal the cancellation or alteration is required to be notified in the Gazette under sub-section (4) of Section 32. In Section 38 provision is made for transfer to the Board of any building or land or any street, or any part thereof, vested in a local authority which lies within the area comprised in any housing or improvement scheme and for payment by the Board to the local authority, as compensation, a sum equal to the market value of such land or building or both, as the case may be, as on the date on which the scheme comes into force. Section 39 makes provision for transfer of any private street or square or part thereof which the public or any section of the public has right to pass along or use and which is not vested in the Board or in any local authority for executing any housing or improvement scheme and for payment to the previous owner compensation determined on the basis of the market value, on the date of vesting of his rights therein. Section 55 of the Adhiniyam makes the following provisions regarding acquisition of land that is required by the Board for any of the purposes of the Adhiniyam.
"55. Power to acquire land. - (1) Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of the Land Acquisition Act, 1894 (Act No. 1 of 1894), as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to this Act
(2) If any land in respect of which betterment fee has been levied under this Act is subsequently required for any of the purposes of this Act, such levy shall not be deemed to prevent the acquisition of the land under the Land Acquisition Act, 1894 (Act No. 1 of 1894)." *
6. Section 56 empowers the Board, by agreement with any person, to purchase, lease or exchange any land or any interest therein required by it for any of the purposes of the Adhiniyam. Section 64 makes provisions for the constitution of one or more Tribunals for the purposes of, inter alia, performing the functions of the Court with reference to the acquisition of land for the Board under the LA Act, as modified by the Schedule to the Adhiniyam.
7. The Schedule to the Adhiniyam sets out the modifications in the LA Act, as amended, in its application to the State of Uttar Pradesh. As per the said modifications
(i) Clause (i) has been inserted in Section 3 of the LA Act to define "local authority" as including "the Board"
(ii) Clause (j) has been inserted in Section 3 of the LA Act to define "Board" to mean the Parishad established under the Adhiniyam
(iii) The first publication in the Official Gazette of a notice of any housing or improvement scheme under Section 28 or under clause (a) of sub-section 31 of the Adhiniyam has been substituted for and shall have, in relation to any land proposed to be acquired under the Scheme, the same effect as publication in the Official Gazette of a notification under sub-section (1) of Section 4 of the LA Act(iv) The publication of a notification under sub-section (1) or, as the case may be, under sub-section (4) of Section 32 of the Adhiniyam in the case of land acquired under any housing or improvement scheme under the Adhiniyam has been substituted for and shall have the same effect as a declaration by the State Government under Section 6 of the LA Act
(v) Sub-section (1) of Section 17 of the LA Act has been substituted. In sub-section (1), so substituted, it is provided that whenever the State Government so directs in the interest of the expeditious execution of housing or improvement scheme under the Adhiniyam, the Collector, though no such award has been made, may on the expiration of fifteen days from the publication of the notice mentioned in sub-section (1) of Section 9 take possession of any land needed for the purposes of the Adhiniyam and such land shall thereupon vest absolutely in the Government free from all encumbrances
(vi) Section 17-A has been inserted in the LA Act. The said provision reads as under
"17-A. Transfer of land to Board. - In every case referred to in Section 16 or Section 17, the Collector shall, upon payment of the cost of acquisition, make over change of the land to the Housing Commissioner, or an officer authorised in this behalf under the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965, and the land shall, thereupon vest in the Board subject to the liability of the Board to pay any further costs which may be incurred on account of its acquisition." *
(vii) In Section 23 of the LA Act for existing explanation to the clause firstly the following provision has been substituted
"Explanation. - In judging the market value aforesaid in any case where a land is acquired under a housing or improvement scheme under the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965, if any building has been erected, re-erected, added to or altered in contravention of the provisions of clause (a) of sub-section (3) of Section 23, sub-section (3) of Section 24 or Section 35 of the said Adhiniyam, any increase in the market value resulting from such erection, re-erection, addition or alteration shall be disregarded;" *
(viii) After the existing sub-section (1) in Section 23 of the LA Act the following sub-section (2) has been added.
"(2) In addition to the market value of the land as above provided, the court shall in every case award a sum of fifteen per centum of such market value in consideration of the compulsory nature of the acquisition." *
(ix) In Section 49 after sub-section (1) the following sub-section (1-a) has been added
"(1-a) For the purposes of sub-section (1), land which is held with and attached to a house and is reasonably for the enjoyment and use of the house shall be deemed to be part of the house." *
8. In this context, it may be mentioned that prior to the enactment of the Adhiniyam the Uttar Pradesh State Legislature had enacted the Land Acquisition (U.P. Amendment) Act, 1954 (U.P. Act 22 of 1954) (hereinafter State of Uttar Pradesh, insofar as it relates to acquisitions of land except for the purposes of the Union, had been amended and it was to have effect in the State subject to the amendments specified in the Schedule to the 1954 Act. One of the amendments that was so introduced was in Section 23 of the LA Act whereby the following explanation was added in clause (1) of Section 23.
"Explanation. - In judging the market value aforesaid in any case where the land acquired for or in connection with sanitary improvement or any kind or planned development due regard shall be had to the insanitary and unhygienic conditions of the land on the date aforesaid." *
The other amendment was the deletion of sub-section (2) of Section 23.
9. By the Land Acquisition (U.P. Amendment) Act, 1972 (U.P. Act No. 28 of 1972) (hereinafter referred to as "the 1972 Act") the LA Act, as application in the state of Utter Pradesh, was further amended and the Explanation that was inserted in sub-section (1) of Section 23 by the 1954 Act was omitted and sub-section (2) of Section 23 which was deleted by the 1954 Act was restored. This would show that in 1965 when the Adhiniyam was enacted solution @ 15% was not payable under Section 23 of the LA Act in respect of acquisition of land in the State of Uttar Pradesh when such acquisition was not for the purposes of the Union and while enacting the Adhiniyam the legislature made provision for payment of such solatium. Thus there was disparity in the matter of payment of solatium in respect of acquisition of land for the purposes of the Adhiniyam and acquisition of land under the provisions of the LA Act as applicable in the State of Uttar Pradesh where such acquisition was not for the purposes of the Union. This disparity stood removed after the enactment of the 1972 Act whereby sub-section (2) was introduced in the LA Act as applicable in the State of Uttar Pradesh.
10. By the 1984 Act the LA Act has been amended and amongst the amendments that have been made the following are relevant.
(i) Sub-section (1-A) was inserted in Section 23 whereby an additional amount calculated at the rate of 12% per annum on the market value of land as determined under sub-section (1) of Section 23 has to be awarded by the Court for the period commencing on and from the date of the publication of notification under Section 4(1) in respect of such land to the date of the award of the Collector or to the dated of taking possession of land, whichever is earlier
(ii) The rate of solatium payable under Section 23(2) had been enhanced from 15% to 30%
(iii) The rate of interest payable on the excess amount of compensation under Section 28 had been enhanced from 6% to 9% per annum when the excess amount is paid within one year of the date on which the Collector took possession of the land and where the excess amount is paid after the expiry of the period of one year interest would be payable @ 15% per annum from the date of expiry of the period of one year
11. The 1984 Act, being a subsequent parliamentary enactment, overrides the 1972 Act by virtue of Article 254(2) of the Constitution and as a result in the State of Uttar Pradesh in the event of land being acquired under the provisions of the LA Act, as applicable in the said State, the with the landowner is entitled to payment of compensation and interest in accordance provisions of Sections 23 and 28, as amended by the 1984 Act. Since there has been no corresponding amendment in the Adhiniyam the question has arisen whether the benefit of the amendments introduced in the LA Act by the 1984 Act can be extended to landowners whose land is acquired for the purposes of the Adhiniyam on the basis of the provisions of the LA Act as modified by the Adhiniyam.
12. In Gauri Shankar Gaur v. State of U. P. a Bench of two Judges of this Court (K. Ramaswamy and R. M. Sahai, JJ.) has dealt with the question regarding the applicability of the 1984 Act to acquisition of land under the provisions of the Adhiniyam in the context of the first proviso to Section 6 of the LA Act which was substituted by the 1984 Act. By the said proviso it has been prescribed that no declaration in respect of any particular land covered by a notification under Section 4(1) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, but before the commencement of the 1984 Act, shall be made after the expiry of three years from the date of the publication of the notification. In that case the notification under Section 28(1) of the Adhiniyam was published in the Gazette on 8-9-1973, 15-9-1973, and 22-9-1973 and the notification under Section 32(1) of the Adhiniyam was published on 27-8-1977, i.e., after the expiry of three years. A contention was raised that the notification under Section 32 was required to be issued within three years from the date of the notification under Section 28(1) on the basis of the first proviso to Section 6 of the earlier Act. It was urged that the amendment introduced in the LA Act by the 1984 Act, including the first proviso to Section 6, are applicable to acquisition of land under the Adhiniyam. Although both the learned Judges have concurred in upholding the validity of the acquisition, but there was difference of opinion between them on some of the questions that came up for consideration. One of the questions arising for consideration was whether the provisions of the LA Act have been incorporated by reference in the Adhiniyam by virtue of Section 55 read with the Schedule to the Adhiniyam and as a consequence any amendment made in the earlier Act after the enactment of the Adhiniyam does not, ipso facto, apply to an acquisition for the purposes of the Adhiniyam on the basis of the provisions of the LA Act as modified by the Adhiniyam.
13. Ramaswamy, J. was of the view that Section 55 of the Adhiniyam read with the Schedule made an express incorporation of the provisions of Section 4(1) and Section 6 as modified and incorporated in the Schedule and that the Schedule effected necessary structural amendments to Sections 4, 5, 17 and 23 incorporating therein the procedure and principles with necessary modifications and that it is a complete code in itself. He, therefore, held that Section 55 and the Schedule adopted only by incorporation Sections 4(1) and 6(1) and the subsequent amendments to Section 6 did not become part of the Adhiniyam and they have no effect on the operation of the provisions of the Adhiniyam. Sahai, J. however, took a contrary view. He was of the opinion that whether a legislation was by way of incorporation or by way of reference is more a matter of construction by the courts keeping in view the language employed by the enactment, the purpose of referring or incorporating provisions of an existing Act and the effect of it on the day-to-day working. According to the learned Judge such legislation by incorporation is subject to exceptions and that one such situation where legislation by incorporation is excluded is if it creates difficulty in day-to-day working. The learned Judge was of the view that in our constitutional set-up the exception can be extended further and the courts should lean against a construction which may result in discrimination. He, therefore, held that the amendments introduced in the LA Act by the 1984 Act would be applicable to acquisition of land for the purpose of the Adhiniyam and restriction of three years added by the first proviso to Section 6 of the LA Act was applicable to acquisition for the purposes of the Adhiniyam also. The learned Judge, however, took note of the fact that the Parishad had entered into possession and had constructed housing colonies as there was no interim order in favour of the landowners during pendency of the writ petitions in the High Court and observed that larger social interest requires this Court to mould the relief in such a manner that justice may not suffer. He, therefore, held that even though publication of declarations under the Act were beyond the period of three years it was not in the interest of justice to quash the proceedings but the landowners should be paid compensation of the land acquired on market value prevalent in the year in which the declaration analogous to Section 6 of the earlier Act was published/issued by fictionally assuming that fresh notification under the Act analogous to Section 4 was issued in that year.
14. Another question that came up for consideration in Gauri Shankar Gaur was whether the provisions contained in the LA Act, as amended by Section 55 read with the Schedule to the Adhiniyam, have ceased to operate after the enactment of the 1984 Act in view of Article 254 of the Constitution for the reason that the provisions contained in the Adhiniyam are repugnant to the provisions contained in the LA Act as amended by the 1984 Act. Ramaswamy, J. has dealt with this question and has held that the Adhiniyam was a law made under Entry 6, Entry 5 and Entry 66 of List II (State List) and incidentally it took recourse to Entry 42 of List III (Concurrent List) and that since the main purpose of the Adhiniyam was not the acquisition of the property, as the provisions do indicate in pith and substance that they did not occupy the same field, it was not fully inconsistent and were not absolutely irreconcilable with the LA Act as amended by the 1984 Act and that the Adhiniyam and the earlier Act both do coexist in relation to the procedure prescribed under both these Acts and the Adhiniyam did coexist independently without in any way colliding with the earlier Act and, therefore, Section 55 and the Schedule did not become void under the proviso to Article 254(2) of the Constitution. Sahai, J. has, however, not considered the said question of repugnancy of the Adhiniyam to the LA Act as amended by the 1984 Act.
15. Since there was difference of opinion between the learned Judges the question regarding the applicability of the 1984 Act to acquisitions for the purpose of the Adhiniyam in Gauri Shankar Gaur 55 LJ(Ch) 488) these matters have been directed to be heard by a Bench of three Judges and that is how these matters have come up before us.
16. Shri S. B. Sanyal, learned Senior Counsel appearing for the Parishad, has placed reliance on the judgment of Ramaswamy, J. in Gauri Shankar Gaur and has urged that the provisions of the LA Act, as modified by the Schedule to the Adhiniyam, have been incorporated into the Adhiniyam and as a consequence of such incorporation the provisions of the LA Act as modified must be read as a part of the Adhiniyam itself and any amendment made in the LA Act after the enactment of the Adhiniyam would not, ipso facto, apply so as to have the effect of modifying those provisions contained in the Adhiniyam and, therefore, the amendments introduced in the LA Act by the 1984 Act would not apply to an acquisition made for the purposes of the Adhiniyam on the basis of the provisions of the LA Act as modified by the Adhiniyam. On behalf of the landowners reliance has been been placed on the judgment of Sahai, J. in Gauri Shankar Gaur and it has been submitted that the amendments introduced in the LA Act by the 1984 Act are applicable to an acquisition for the purposes of the Adhiniyam.
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 stature; or (ii) a legislation by incorporation whereunder the provisions of the earlier legislation to which reference is made are incorporated into the later legislation by reference. If it is a referential legislation the provisions of the earlier legislation to which reference is made in the subsequent legislation would be applicable as it stands on the date of application of such earlier legislation to matters referred to in the subsequent legislation. In other words, any amendment made in the earlier legislation after the date of enactment of the subsequent legislation would also be applicable. But if it is a legislation by incorporation the rule of construction is that repeal of the earlier stature which is incorporated does not affect operation of the subsequent statute in which it has been incorporated. So also any amendment in the stature 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 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. In the words of Lord Esher, M.R., the legal effect of such incorporation by reference.
"is to write those sections into the new Act just as if they had been actually written in it with the pen or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all." *
(See : Woods Estate, Re, 55 LJ(Ch) 488) Ch D at o. 615.) 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 legislation and other relevant circumstances. The legal position has been thus summed up by this Court in State of M. P. v. M. V. Narasimhan (SCR p. 14 : SCC p. 385, para 15).
.
"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 are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases
(a) Where the subsequent Act and the previous Act are supplemental to each other;
(b) where the two Acts are in pari materia;
(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and
(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act." *
18. Section 55 of the Adhiniyam makes a reference to the provisions of the LA Act, as amended in its application to Uttar Pradesh, and has laid down that any land or any interest therein required by the Parishad for any of the purposes of the Adhiniyam may be acquired under the provisions of the LA Act as amended in its application to Uttar Pradesh which for this purpose has to be subject to the modifications specified in the Schedule to the Adhiniyam. A number of modifications have been made in the various provisions of the LA Act that have been made applicable in respect of acquisition for the purposes of the Adhiniyam. The publication of the notification under Section 28(1) of the Adhiniyam has been equated with a notice under sub-section (1) of Section 4 of the LA Act and the publication of a notification under Section 32(1) of the Adhiniyam has been equated with a declaration under Section 6 of the LA Act. As regards compensation modification has been made by inserting sub-section (2) in Section 23 of the LA Act, as it was applicable in the State of Uttar Pradesh. As pointed out earlier, in the LA Act, in its application to the State of Uttar Pradesh, insofar as it related to acquisitions of land except for the purposes of the Union, sub-section (2) of Section 23 had been deleted by virtue of the 1954 Act and there was no provision for payment of solatium. A provision for payment of solatium @ 15% was introduced by a modification made in the Schedule to the Adhiniyam and sub-section (2) was inserted in Section 23 of the LA Act in its application to acquisition for the purposes of the Adhiniyam.
19. Provisions similar to Section 55 of the Adhiniyam are found in other enactments providing for urban improvement. One such enactment was the Calcutta Improvement Act, 1911 whereunder the Board of Trustees of the Calcutta Improvement Trust was entrusted with very wide powers for the purpose of carrying improvement schemes within the municipal limits of Calcutta. The said powers included the power of compulsory acquisition of land. In Part 4 of the said Act it was provided that the Trustees may make such acquisitions under the LA Act but the LA Act was modified for the purposes of the Calcutta Improvement Trust. The modifications were contained partly in the body of the Improvement Act and partly in a Schedule attached to the Improvement Act. One of the departures from the LA Act was that under the Improvement Act a tribunal was constituted to take the place of a court under the LA Act and the tribunal was to be deemed to be the court under the LA Act except for the purposes of Section 54 of the said Act and as a consequence there was no general right of appeal to the High Court which right was available under the LA Act. By an amendment made contemporaneously by Act 18 of 1911 passed by the Governor General-in-Council the Calcutta Improvement Act was amended and a right of appeal to the High Court from the tribunal was conferred. Subsequently by Act 19 of 1921 an amendment was introduced in the LA Act whereby a right of appeal to His Majesty in Council from any decree passed by the High Court on appeal from an award of the Court was conferred. In Secy. of State v. Hindustan Coop. Insurance Society Ltd. 1931 All(LJ) 475: 58 IA 259) a question arose whether the said amendment in the LA Act was applicable so as to confer a right of appeal from the Tribunal. The said question was answered in the negative by the Privy Council. After referring to Part 4 of the Calcutta Improvement Act and the modifications that were made in the LA Act, their Lordships observed : (AIR pp. 150-51, 152).
"The modifications are contained partly in the body of the Act and partly in a schedule attached to the Act. They are numerous and substantial and the effect is, in their Lordships opinion to enact for the purposes of the local Act a special law for the acquisition of land by the trustees within the limited area over which their powers extend
Their Lordships regard the local Act as doing nothing more than incorporating certain provisions from an existing Act, and for convenience of drafting doing so by reference to that Act, instead of setting out for itself at length the provisions which it was desired to adopt." *
20. It was held that the amendment that was introduced in the LA Act in 1921 could not be regarded as incorporated in the Calcutta Improvement Act because the same was not part of the LA Act when the Calcutta Improvement Act was passed, nor part of the LA Act when the Calcutta Improvement anything to suggest that the Bengal Legislature intended to bind themselves to any future additions which might be made to the LA Act and that Act 19 of 1921 also did not contain any provision that the amendments enacted by it were to be treated as in any way retrospective or were to be regarded as affecting any other enactment than the LA Act itself.
21. The provisions of Section 55 read with the Schedule to the Adhiniyam are on the same lines as those contained in the Calcutta Improvement Act, 1911 and the principles laid down in Secy. of State v. Hindustan Coop. Insurance Society Ltd. 1931 All(LJ) 475: 58 IA 259) are equally applicable to the present case. The amendments introduced in the LA Act by the 1984 Act were not part of the LA Act as applicable in the State of Uttar Pradesh, at the time of passing of the Adhiniyam. The provisions 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 any subsequent repeal or amendment in the LA Act unless any of the exceptional situations indicated in State of M. P. v. M. V. Narasimhan can be attracted.
22. In Gauri Shankar Gaur Sahai, J. has stated that the language of Section 55 of the Adhiniyam permitting acquisition under the provisions of the LA Act, as amended in its application to Uttar Pradesh, with modifications specified in the Schedule to the Adhiniyam, is widely different from the language used in the Calcutta Improvement Act and further that the decision of the Judicial Committee of the Privy Council in Secy. of State v. Hindustan Coop. Insurance Society Ltd. 1931 All(LJ) 475: 58 IA 259) turned on the principle that specific excludes general. We find it difficult to agree with the said view of the learned Judge. As noticed earlier by Part 4 of the Calcutta Improvement Act, 1911, which dealt with the acquisition of land for the purposes of that Act, the LA Act had been modified for the purposes of the Calcutta Improvement Act and the said modifications were contained partly in the body of the Calcutta Improvement Act and partly in the Schedule attached to the Act and on that basis it was held by the Judicial Committee of the Privy Council that the effect of the said provisions was to enact for the purposes of the Calcutta Improvement Act a special law for acquisition of land by the trustees within the limited area over which their powers extended and the Calcutta Improvement Act was regarded as doing nothing more than incorporating certain provisions from an existing Act and for convenience of drafting doing so by reference to that Act, instead of setting out for itself at length the provisions which it was desired to adopt. The scheme of Section 55 read with the Schedule to the Adhiniyam is not very different.
23. As regards the exceptional situations referred to in State M. P. v. M. V. Narasimhan it may be stated that the Adhiniyam and the LA Act cannot be regarded supplemental to each other. The Adhiniyam contains provisions regarding acquisition of land which are complete and self-contained. Nor can the provisions in the Adhiniyam be said to be in pari materia with the LA Act because the Adhiniyam also deals with matters which do not fall within the ambit of the LA Act. It cannot also be said that the 1984 Act, expressly or by necessary intendment, applies the said amendments to the Adhiniyam. Can it be said that if the amendments made in the LA Act by the 1984 Act are not incorporated in the Adhiniyam it would be rendered unworkable Sahai, J. has expressed the view that the exceptional situations referred to in State of M. P. v. M. V. Narasimhan can be extended further in our constitutional set-up and that the courts should lean against a construction which may result in discrimination. In the impugned judgment the High Court has observed that while persons whose lands were acquired under the Land Acquisition Act were entitled to all statutory benefits as per the 1984 Act, similar benefits are denied in the matter of determination of market value of the land acquired by application of provision of the Adhiniyam and that it would be discriminatory and violative of Article 14 of the Constitution and that the court should interpret the provisions of a law to favour constitutionality rather than interpret it so as to be violative of the fundamental rights guaranteed under the Constitution.
24. The learned counsel for the landowners have urged that if the provisions of the LA Act, as they stood on the date of enactment of the Adhiniyam without the amendments introduced by the 1984 Act relating to determination and payment of compensation are held to be incorporated in the Adhiniyam the provisions of the Adhiniyam incorporating the provisions of the LA Act would be rendered unconstitutional as being violative of Article 14 of the Constitution. Reliance has been placed on the decision of this Court in Nagpur Improvement Trust v. Vithal Rao. On behalf of the Parishad it has, however, been urged that in proceedings arising from a reference under Section 18 it is not open to the claimants to raise the question regarding constitutional validity of the provisions of the Adhiniyam under which the reference has been made. It has been pointed out that the LA Act was enacted by Parliament while the Adhiniyam was enacted by the Uttar Pradesh State Legislature and that Article 14 cannot be invoked when the alleged discrimination arises on the basis of laws made by two different legislative bodies. It has also been urged that merely because under the provisions of the LA Act, as modified by the Schedule to the Adhiniyam which are applicable in the matter of acquisition of land for the purposes of the Adhiniyam, solatium is payable @ 15% and not @ 30% and interest is payable @ 6% and not @ 9% and 5%, as provided in the LA Act as amended by the 1984 Act, would not render the acquisition proceedings taken under the Adhiniyam to be unconstitutional. In support of the said submissions reliance has been placed on the decisions of this Court in State of M. P. v. G. C. Mandawar; Prakash Amichand Shah v. State of Gujarat and Union of India v. Hari Krishan Khosla.
25. It is no doubt true that in an appeal arising from a reference under Section 18 of the LA Act it is not open to the claimants to challenge the validity of he provisions of the law under which the reference has been made. But, at the same time, while construing the provisions of the Adhiniyam providing for acquisition of land for the purposes of the Adhiniyam, we cannot lose sight of the settled principle of statutory construction that "if certain provisions of law, construed in one way, would make them consistent with the Constitution and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction". (See : Kedar Nath Singh v. State of Bihar, at pp. 808, 809.) We would, therefore, examine whether the provisions of the Adhiniyam if they are so construed as to incorporate the provisions of the LA Act as it stood on the date of enactment of the Adhiniyam without the amendments introduced in the LA Act by the 1984 Act relating to determination and payment of compensation would be violative of the provisions of Article 14 of the Constitution. In this context, it may be stated that if the provisions are construed as indicated above an owner whose land is acquired for the purpose of the Adhiniyam would be entitled to payment of solatium under Section 23(2) of the LA Act @ 15% and interest under Section 28 of the LA Act @ 6% but an owner whose lands are acquired under the provisions of the LA Act as amended by the 1984 Act would be entitled to payment of solatium @ 30% and interest @ 9% and 15% and would also be entitled to payment of additional amount as per the provisions of Section 23(1-A) of the LA Act, as amended. In other words, the compensation payable to the owner whose land is acquired for the purposes of the Adhiniyam would be less than the compensation payable to the owner whose land is acquired under the LA Act as amended by the 1984 Act. Is there any rational basis for treating the two landowners differently in the matter of payment of compensation for the acquisition of their lands
26. This question came up for consideration in Nagpur Improvement Trust decided by a Special Bench of seven Judges of this Court. Section 59 of the Nagpur Improvement Trust Act, 1936 provided that the Trust may, with the previous of the LA Act, as modified by the provisions of the Improvement Trust Act, for carrying out any of the purposes of the Improvement Trust Act. By Section 61 certain express provisions were made in the matter of acquisition for the purpose of acquisition of land under the LA Act and it was also laid down that "the Act shall be subject to the further modifications as indicated in the Schedule". The Schedule to the Improvement Trust Act contained various modifications. Among the modifications made in the Schedule was the substitution of sub-section (2) of Section 23 of LA Act and as a result the applicability of the provisions of sub-section (2) of Section 23 of the LA Act were made inapplicable to lands other than those specified therein. The constitutional validity of the provisions of the Improvement Trust Act, insofar as the same related to acquisition of land, was challenged on the ground that the same were violative of the right to equality guaranteed under Article 14 of the Constitution inasmuch as the said provisions empowered the acquisition of land at prices lower than those that would have been payable if the lands had been acquired under the LA Act. The said challenge was upheld by the High Court and the provisions contained in the Improvement Trust Act, whereby Section 23 of the LA Act, as applicable to acquisition for the purpose of the Improvement Trust Act, were struck down on the ground of violation of Article 14 of the Constitution. The said decision of the High Court was upheld by this Court. This Court has referred to Section 17-A which had been inserted by way of modification as per the Schedule to the Improvement Trust Act and wherein it was provided that "in every case referred to in Section 16 or Section 17, Collector shall, upon payment of the cost of acquisition, make over charge of the land to the Trust and the land shall thereupon vest in the Trust, subject to the liability of the Trust to pay any further costs which may be incurred on account of its acquisition". It was held that in view of Section 17-A, as inserted by paragraph 6 of the Schedule to the Improvement Trust Act, it was quite clear that the acquisition will be by the Government and it is only on payment of the cost of acquisition to the Government that the lands vest in the Trust and though the acquisition is for the Trust and may be at its instance, but nevertheless the acquisition is by the Government. It was pointed out that the Government could thus acquire for a housing accommodation scheme either under the LA Act or under the Improvement Trust Act and, if it were so, it would enable the State Government of discriminate between one owner equally situated from another owner. It was observed : (SCC p. 507, paras 29 & 30)
"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 recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classification be made on the basis of the authority acquiring the land In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other
It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts enables the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14." *
27. The provisions of the Adhiniyam are very similar to those contained in the Nagpur Improvement Trust Act. Section 55 of the Adhiniyam is similar to Section 59 of the Nagpur Improvement Trust Act inasmuch as both the provisions provide for modifications being made in the LA Act. Section 17-A that has been inserted in the LA Act by the modifications made by the Adhiniyam is in the same terms as Section 17-A which was inserted by paragraph 6 of the Schedule to the Nagpur Improvement Trust Act. The reasons which weighed with this Court in striking down the provisions of the Nagpur Improvement Trust Act whereby Section 23 of the earlier Act had been modified in its application for the purpose of acquisition under the said Act would, therefore, equally apply while considering the constitutional validity of the provisions of the Adhiniyam whereunder the provisions of Section 23 of the LA Act have been modified under the Schedule to the Adhiniyam.
28. The principle laid down by this Court in State of M. P. v. G. C. Mandawar that Article 14 cannot be invoked when the alleged discrimination is on account of laws made by two different legislatures has no application in the present case because under the LA Act as well as under the provisions of the Adhiniyam the acquisition is to be made by the same authority, viz., the State Government of Uttar Pradesh, and discrimination arises on account of action taken by the same authority.
29. The decision in Prakash Amichand Shah v. State of Gujarat on which reliance has been placed by Shri Sanyal on behalf of the Parishad, also does not lend any assistance to his submissions. In that case this Court was dealing with the provisions of the Bombay Town Planning Act, 1954 as applicable in the State of Gujarat. Under the said Act there were three modes for taking over land, namely, (i) acquisition under Section 11 for development purposes for which compensation was payable under the provisions of the LA Act as amended by the provisions contained in the Schedule to the said Act, (ii) transfer of lands that takes place on coming into force of the final scheme under Section 53 of the said Act for which compensation is payable in accordance with Section 67 of the said Act, and (iii) acquisition of land under Section 84 of the said Act which empowered the State Government to acquire land included in the Town Planning Scheme at a subsequent stage where amount was payable in accordance with provisions of the LA Act as amended by the Schedule to the said Act. In that case acquisition had been made under Section 53 of the said Act and compensation was payable in accordance with Section 67 of the said Act and there was no provision for payment of solatium. While negativing the challenge to the validity of the acquisition on the ground of discrimination in the matter of payment of compensation, this Court, after referring to the decision in Nagpur Improvement Trust has pointed out that the provision under consideration in that case, viz., Section 59 of the Nagpur Improvement Trust Act, corresponds to Section 11 or Section 84 of the Bombay Town Planning Act and that the provisions under Section 53 of the said Act are not like acquisition proceedings under he LA Act and the provisions of the LA Act were not applicable with or without modifications as in the case of the Nagpur Improvement Trust Act. Section 53 of the Bombay Town Planning Act contained provisions which are similar to those contained in Sections 38 and 39 of the Adhiniyam which also provide for vesting of certain public lands vested in a local authority or private street or square and payment of compensation for such lands. A provision similar to Section 55 of the Adhiniyam was contained in Section 11 of the Bombay Town Planning Act which provided that the LA Act as amended by the Schedule to the said Act would apply to the determination of compensation for the acquisition of such land. Since the Court was not dealing with an acquisition under Section 11 of the Bombay Town Planning Act the decision in Prakash Amichand Shah has no application.
30. Union of India v. Hari Krishan Khosla relates to acquisition under the provisions of Requisitioning and Acquisition of Immovable Property Act, 1952. Section 8(3) of the said Act did not provide for payment of solatium @ 15% and interest @ 6% on acquisition of requisitioned lands. The validity of Section 8(3) was challenged on the ground that it was violative of Article 14 of the Constitution and reliance was placed on Nagpur Improvement Trust. The said challenge was negatived by the Court on the ground that "cases of acquisition of land stood on a different footing than those where such property is subject to prior requisition before acquisition". This decision also does not lend any assistance to the submissions of Shri Sanyal.
31. Since the present case involves acquisition of land under the provisions of the LA Act as applicable under the Adhiniyam, it is fully covered by the law laid down by this Court in Nagpur Improvement Trust. Keeping in view the principles laid down in the said decision of this Court, it has to be held that if the provisions of the Adhiniyam are so construed as to mean that the provisions of the LA Act, as they stood on the date of enactment of the Adhiniyam, would be applicable to acquisition of land for the purpose of the Adhiniyam and that the amendments introduced in the LA Act by the 1984 Act relating to determination and payment of compensation are not applicable, the consequence would be that the provisions of the LA Act, as applicable under 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 he legislature, in enacting the Adhiniyam, was to deny to the landowners the benefits relating to determination and payment of compensation which would be available to them under any amendment made in the LA Act after the enactment of the Adhiniyam. We are, therefore, of the opinion that on a proper construction of Section 55 of the Adhiniyam it must be held that while incorporating the provisions of the LA Act in the Adhiniyam the intention of the legislature.
Advocates List
For the Appearing Partes K.T.S.Tulsi, M.N.Venkataramani, S.B.Sanyal and Shanti Bhushan, Senior Advocates (Jitendra Mohan Sharma, P.K.Jain, K.C.Jain, R.C.Agarwala, P.K.Roy, Nafis Ahmad Siddiqui, Mansoor Ali, Shiv Sagar Tiwari, S.Murlidhar, Pramod Dayal, Prashant Chaudhary, Jayant Bhushan, Arvind Varma, Surya Kant, Sunil Gupta, Shashi Bhushan and Anand Padmanabhan, Advocates with them), Advocates.
For Petitioner
- Shekhar Naphade
- Mahesh Agrawal
- Tarun Dua
For Respondent
- S. Vani
- B. Sunita Rao
- Sushil Kumar Pathak
Bench List
HON'BLE JUSTICE B. N. KIRPAL
HON'BLE JUSTICE S. C. AGRAWAL
HON'BLE JUSTICE V. N. KHARE
Eq Citation
(1998) 2 SCC 467
[1998] 1 SCR 254
AIR 1998 SC 1028
(1998) 1 UPLBEC 650
(1998) 2 MLJ 104 (SC)
1998 (1) UJ 292
1998 (1) SCALE 185
JT 1998 (1) SC 231
LQ/SC/1998/86
HeadNote
Land Acquisition Act, 1894 (1 of 1894); Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (1 of 1965); Constitution of India, Article 14; Land Acquisition (Amendment) Act, 1984 (68 of 1984) — Acquisition of land — Applicability of amendments introduced in LA Act by 1984 Act to acquisition of land for the purposes of Adhiniyam — LA Act modified in its application to Uttar Pradesh by Schedule to Adhiniyam — Provisions of LA Act, as modified, incorporated into Adhiniyam by virtue of S. 55 read with Schedule — Amendments introduced in LA Act after enactment of Adhiniyam do not, ipso facto, apply to an acquisition for the purposes of Adhiniyam on the basis of provisions of LA Act, as modified by Adhiniyam — Amendments introduced in LA Act by 1984 Act are not applicable to acquisition of land for the purposes of Adhiniyam. (Paras 11 to 21) — Article 14 of Constitution — Acquisition of land — Applicability of amendments introduced in LA Act by 1984 Act to acquisition of land for the purposes of Adhiniyam — If provisions of Adhiniyam are so construed as to mean that provisions of LA Act, as they stood on date of enactment of Adhiniyam, would be applicable to acquisition of land for the purpose of Adhiniyam and that amendments introduced in LA Act by 1984 Act relating to determination and payment of compensation are not applicable, consequence would be that provisions of LA Act, as applicable under Adhiniyam, would suffer from vice of arbitrary and hostile discrimination; such consequence would be avoided if provisions of Adhiniyam are construed to mean that provisions of LA Act, as amended by 1984 Act, relating to determination and payment of compensation would apply to acquisition of land for the purposes of Adhiniyam — Intention of legislature in enacting Adhiniyam was to confer benefit of solatium @ 15% by modifying S. 23(2) in Schedule, which benefit was not available under provisions of LA Act as it was applicable in Uttar Pradesh at time of enactment of Adhiniyam — Intention of legislature, in enacting Adhiniyam, was not to deny to the landowners the benefits relating to determination and payment of compensation which would be available to them under any amendment made in LA Act after enactment of Adhiniyam — On a proper construction of S. 55 of Adhiniyam it must be held that while incorporating provisions of LA Act in Adhiniyam intention of legislature was to incorporate provisions of LA Act, as amended from time to time — Amendments introduced in LA Act by 1984 Act are applicable to acquisition of land for the purposes of Adhiniyam. (Paras 22 to 31)
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