http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: TRUST MAI LACHMI SIALKOTI BRADRI

       Vs.

RESPONDENT: THE CHAIRMAN, AMRITSAR IMPPOVEMENTTRUST

DATE OF JUDGMENT: 04/04/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1963 AIR  976            1963 SCR  Supl. (1) 242  CITATOR INFO :  R          1964 SC1284  (20)

ACT: Improvement Scheme--Statute permitting scheme for "  damaged areas"--  Definition  of-Conclusiveness  of  scheme--Whether prevents challenge on ground that scheme was not for damaged area --Punjab Development and Damaged Areas Act, 1951 (Punj. 10 of 1951), ss. 2 (d) and 5 (4).

HEADNOTE: The Amritsar Improvement Trust framed a scheme under s. 3 of the  Punjab Development and Damaged Areas Act,  1951,  which empowered  it  to frame a scheme for the  development  of  a damaged  area,  It passed a resolution  to  acquire  certain property  of  the appellant for widening a  road  under  the scheme.  The appellant contended that the scheme was without jurisdiction as the area was not a "damaged area" within  s. 2  (d)  of the Act which contemplated only  two  classes  of areas, i. e. (i) areas which may, by notification, under the Act be declared by the Government to be "damaged areas", and (ii)  areas already notified under the Punjab Damaged  Areas Act, 1949.  The respondents contended that a notification 243 issued  under  the  Punjab Damaged Areas  Act,  1947,  which declared  the entire walled City of Amritsar as  a  "damaged area"  should be deemed to be a declaration" under the  1949 Act because of the operation of s. 22 of the Punjab  General Clauses  Act  and was sufficient to sustain the  scheme  and that  the  scheme  could not be challenged as  it  had  been notified by the State Government and under- s. 5 (4) of  the Act the publication was conclusive evidence that the  scheme had been duly framed and sanctioned. Held, that the scheme was without jurisdiction and that  the proceedings for the acquisition of the appellant’s  property were  illegal.  Admittedly the area had not been declared  a "damaged  area either under the 1951 Act or under  the  1949 Act.   The declaration under the 1947 Act was of  no  avail, firstly, because there was no basis for the argument that it would be "deemed to be a declaration" under the Act of  1949

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

and  secondly  even if it were so deemed the  same  was  not within the definition of damaged area" in the Act of 1951. The appellant was not precluded by s. 5 (4) from challenging the  scheme  and the acquisition ; since  the  collusiveness postulated  by  s.  5  (4)  was  only  in  respect  of   the formalities prescribed by ss. 3,4 and 5 and did not touch  a case  where there was complete lack of jurisdiction  in  the authorities to frame a scheme.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 331 of 1961.  Appeal  by special leave from the judgment and order  dated April  20, 1961, of the Punjab High Court in Civil Writ  No. 460 of 1961. S. P. Sinha and.  M. K. Madan, for the appellant. Har Prasad and J. P. Goyal, for respondents Nos;.  1 and 2. S.   M. Sikri, Advocate-General, Punjab, N. S. Bindra and P. D. Menon, for the respondent No. 3. 1,962.  April 4. The Judgment of the Court was delivered by AYYANGAR, J.-,The point arising for decision in  this,appeal by  special leave is,, a, very Shortly one and  relaters  to the proper construction of the definition of ’damaged  area’ in s. 2(d) of the Punjab 244 Development and Damaged Areas Act, 1951 which will hereafter be referred to as the Act. A  few  facts  are  necessary  to  be  stated  in  order  to appreciate  how this point arises.  The appellant claims  to be the trustee of a Public Trust created for the  management of   certain  properties  situated  in  Amritsar.   Of   the properties belonging to the trust is one which is said to be a dharamshala.  By a resolution of the Amritsar  Improvement Trust dated March 21, 1957 the Improvement Trust decided  to acquire  a  portion  of this property  for  the  purpose  of widening a road under a development-scheme framed under s. 3 of the Act.  This section enacts;               "3.  The Trust may frame a scheme  or  schemes               for   the  development  of  a  damaged   area,               providing  for  all  or  any  of  the  matters               mentioned  in  section 28 of the  Punjab  Town               Improvement Act, 1922; and any scheme  already               framed  or sanctioned in respect of a  damaged               area under the provisions of that Act shall be               deemed to have been framed or sanctioned under               this Act". Section 4 makes provision for the publication of the schemes setting out with particularity the properties which would be affected  by  the scheme and specifying  the  period  within which  the  objections  to the  scheme  would  be  received. Section  5  makes  provision for the  consideration  of  the objections which might be put forward under a. 4 and sub-ss. (3) and (4) of this section read;               "5. (3) The State Government shall then notify               the  scheme either in original or as  modified               by  it  and the scheme so published  shall  be               deemed to be the sanctioned scheme.               (4)   The  publication  under  subsection  (3)               shall be conclusive evidence that a scheme has               been duly framed and sanctioned," 245 Thereafter   s.  6  proceeds  to  make  provision  for   the acquisition  of property in the ’,’damaged area"  and  there are  other  provisions  as  regards  the  ascertainment  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

payment of compensation but as these are not relevant to the appeal, no reference to them is needed. It is common ground that a scheme has been framed under s. 3 and  this has been finalised after  considering  objections. It  was  in pursuance of this scheme  that  the  Improvement Trust  took steps to effect the acquisition of the  property bearing Municipal No. 2320/1, 884/9 belonging to the  appel- lant-trust.   The appellant filed a suit for  a  declaration that  the  acquisition proceedings were  illegal  and  ultra vires  and  for  a  permanent  injunction  restraining   the Improvement Trust from proceeding with the acquisition.  The suit  was,  however, withdrawn by reason of a  Consent  Memo which  was  filed  and subsequently the  appellant  filed  a petition  under Art. 226 of the Constitution in  the  Punjab High  Court  challenging the validity of the action  of  the Improvement  Trust  and  praying  for  appropriate   reliefs quashing the proceedings for the acquisition.  The petition, however, was summarily dismissed by the High Court by  order dated  April  20, 1961.  The further petition filed  by  the appellant  praying for a certificate of fitness  under  Art. 133(1)(c)  was  also dismissed.   Thereafter  the  appellant obtained  special  leave of this Court to prefer  an  appeal against  the judgment of the High Court and that is bow  the appeal is now before us. Though several points have been, taken in the memorandum  of appeal to this Court, learned Counsel confined his arguments to  only one point to which we shall refer  immediately  and which  alone  requires to be dealt with in the  appeal.   We have already pointed out that the acquisition now sought  to be  made  and  which, it is contended, is  illegal  and  not justified by law, is under a scheme 247 under the Act of 1947 vis-a-vis the definition in s.   2(d) of the Act. By  a proclamation issued under s. 93 of the  Government  of India  Act,  1935  the Governor of the  Punjab  assumed  to- himself   the  powers  vested  in  the   Punjab   Provincial Legislature  and under the powers so vested he  enacted  the Punjab  Damaged  Areas Act, 1947 (Punj.  Act  11  of  1947). Section   3  of  that  enactment  enabled   the   Provincial Government  by notification "to declare any urban  area,  or any  portion  thereof to be a damaged area" and  it  was  in Pursuance  of this provision that the notification of  April 1948,  to which we have referred, was issued.  It  might  at once  be stated that the Act of 1947 contained no  provision for  framing  schemes or for acquisitions  of  property  for implementing  such  schemes, but this feature might  not  be very material for ,he purposes of this case.  Section 93  of the  Government of India Act, 1935 which made  provision  in cases   of  failure  of  constitutional  machinery  in   the Provinces enacted by sub-s.(4):               "93.(4).  If  the Governor by  a  proclamation               under  this  section assumes  to  himself  any               power  of the Provincial Legislature  to  make               laws,  any law made by him in the exercise  of               that   power  shall,  subject  to  the   terms               thereof,  continue  to have effect  until  two               years have elapsed from the date on which  the               proclamation  ceases  to  have  effect  unless               sooner repealed or reenacted by an Act of  the               appropriate Legislature..........." The  rule  of the Governor under s.93 ended on’  August  15, 1947  and in consequence this enactment which was  temporary would  have  lapsed on August 15, 1949.  Section 93  of  the Government of India Act, 1935 was repealed by the  Governor-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

General under the powers vested in him by s.8 of 248 the  Indian  Independence Act, 1947 by virtue of  the  India (provisional  Constitution) Order,- 1947, but cl.6  of  this order enacted:               "6.  Where any law made by the Governor  of  a               Province  by  virtue  of  Section  93  of  the               Government  of  India Act, 1935, is  in  force               immediately before the appointed day, the said               law, notwithstanding that the said section  is               directed to be omitted is in Schedule to  this               Order  or  that by reason of such  omission  a               Proclamation under the said section ceases  to               have  effect,  shall remain in force  for  the               period  for  which it would have  remained  in               force  if  the said section bad  been  At  all               material times in operation." The  result was that the Punjab Act of 1947  continued  till August 15,1949 and no further. It was to make provision for the gap that would be caused by the expiry of this Act in 1949 that the Fast Punjab  Damaged Areas  Act, 1949, which is referred to in s.2(d) of the  Act of  1951,  was  enacted.  The Act of  1949  reproduced  sub- stantially  the  terms of the Act which  it  was  replacing. Section   2  contained  definitions  which  were  in   terms indentical with the definitions in the Act of 1947,  subject to changes necessitated by the partition of the country  and Lahore ceasing to be within India and s.3 which enabled  the State Government by notification to declare an urban area to be a (damaged area" was brought into force at once, i.e., in April  1949 when the Governor’s assent was received, and  by s.  1(3) the State Government reserved the power  to  direct that  the  other provisions of the Act viz. ss.4 to  21  may come  into  force from such date as it may  by  notification appoint.   In  spite of diligent  research  no  notification under s. 1(3) bringing the rest of 249 the  Act into force could be discovered in any event,  there is  nothing  to  show that the rest  of  the  sections  were brought into force before August 15, 1949 when owing to  the laps; of two years prescribed by s. 93(4) of the  Government of  India Act, the Act of 1947 expired and ceased to  be  in force. Based  on  the  fact  that  the  Act  of  1949   practically reproduces,  the  earlier Act of 1947 the  contention  urged before  us was that the Act of 1947 was in  effect  repealed and re-enacted ’by the Act of 1949, that by virtue of s.  22 of the Punjab General Clauses Act, which runs:               "22  Where any Punjab Act is repealed and  re-               enacted  with or without  modification,  then,               unless it is otherwise expressly provided, any               appointment, notification, order, scheme rule,               form  or  bye-law, made or  issued  under  the               repealed  Act,  shall,  so far as  it  is  not               inconsistent  with the  provisions  reenacted,               continue in force, and be deemed to have  been               made  or  issued under the provisions  so  re-               enacted, unless and until it is superseded  by               any   I  appointment,   notification,   order,               scheme,  rule, form or bye-law made or  issued               under the provisions so re-enacted." the  notification  issued under the Act of  1947  should  be deemed to have been issued under the Act of 1949 and that in consequence the reference to a notification under the Act of 1949  in  s.  2(d)  of the Act of  1951  would  include  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

notification  of  1948 made under the Act of 1947.   We  are unable  to accept this argument.  In the first place,  there was no repeal of the Act of 1947 to attract the  application of the rule of construction embodied in S. 22 of the  Punjab General  Clauses Act.  No doubt, even  temporary  enactments could  be  repealed  and re-enacted so  as  to  attract  the operation of provisions like a. 22 of 250 the  Punjab General Clauses Act vide, for instance State  of Punjab v. Mohar Singh (1).  It is however conceded that here there  is  no express repeal of the Act  of  1947.   Learned Counsel for the respondents ,submitted that by reason of the very  existence  of the enactments of 1947 and 1949  on  the Statute Book in terms identical with each other, the earlier ,statute  should be held to have been impliedly repealed  by the  later enactment.  If, as we have pointed  out  earlier, the  first Act was temporary and ,Its place was taken  by  a later  enactment after the former ceased to be in force,  it is  obvious  that there could be no scope for  invoking  the principal  embodied in s. 22 of the Punjab  Central  Clauses Act.  Further, apart from the larger question as the whether implied repeals are within the contemplation of s. 22 of the Punjab  General  Clauses Act or similar provisions  in  like enactments, we ’consider that there is no basis for invoking the doctrine of implied repeal in the present case for  that assumes  that  there  is an inconsistency  between  the  two enactments such that the two cannot stand together.  It is a maxim  of  the  law that, implied ’repeals  are  not  to  be favoured,  and where two statute,% are entirely  affirmative and  identical  no question of  inconsistency  could  arise. -Where  the  Operative  terms  of  the  two  enactments  are identical  and the enactments, so to speak, run parallel  to each  other, there would be no scope for the application  of the  doctrine  of  implied  repeal  and  that  would  be  so particularly  in a case where the earlier ,enactment is  one of  temporary  duration  while  the  later  is  a  permanent enactment,  even ignoring the fact that ss. 4 to 21 ’of  the Act of 1949 were not in force during the life of the Act  of 1947. Ultimately,  the  question would have to be decided  on  the pro-per interpretation of s. 2 (d) of the Act’of 1951  under -which the-impugned scheme (1)  [19S6] I S.C.R. 893-                             251 was framed and proceedings for acquisition are sought to  be taken.   It is clear that besides the areas  notified  under the Act of 1951 the only other areas contemplated are  those which  were  notified  under the Act of 1949  which  on  any normal  and reasonable construction could only  include  the areas  which were the subject of notification under s. 3  of the  Act  of 1949 and not those under the Act  of  1947  but which are deemed to be areas notified under the Act of  1949 assuming  every submission of the respondent to be  correct. In  this view we consider that the appellant is entitled  to the relief sought because the acquisition was in respect  of a  scheme for an area which it was not within the  power  of the Improvement Trust to frame under s. 3 of the Act. Learned  Counsel for the Improvement Trust made a  furl  her submission that the appellant was precluded from challenging the validity of the scheme by reason of the provisions of s. 5  (4)  of  the Act (already  extracted)  which  imparted  a conclusive effect as to the legality of the scheme which had received  the  approval  of  the  government  and  had  been published under s. 5 (3) of the Act.  We are clearly of  the opinion  that there is no substance in this  argument.   The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

foundation  of the jurisdiction of the Improvement Trust  to frame a scheme and for the government to approve of the same depends upon the scheme relating to a "damaged area" and if, as  we have held, the property now sought to be acquired  is within an area which does not fall within the definition  of a ’damaged area’ under s. 2 (d) of the Act, it follows  that there  was  total lack of jurisdiction on the  part  of  the Improvement  Trust or the government to frame a  scheme  for this area.  The position is not very different from what  it would  have been if the Act itself bad not been extended  to an area in regard to which a scheme 252 has  been  framed.  The conclusive effect postulated  by  s. 5(4) can only be in regard to the formalities prescribed ’by as.  3,  4 and 5 and does not touch a case  where  there  is complete lack of jurisdiction in the authorities to frame  a scheme., The  result is that the appeal succeeds and there will be  a direction  that the proceedings for the acquisition  of  the property  belonging  to  the  appellant  under  the   Punjab Development  of  Damaged Areas Act, 1951  be  quashed.   The appellant will be entitled to its costs here. Appeal allowed.                             253