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PETITIONER: STATE OF MAHARASHTRA & ANR.

       Vs.

RESPONDENT: SANT JOGINDER SINGH KISHAN SINGH & ORS.

DATE OF JUDGMENT22/02/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 AIR 2181            1995 SCC  Supl.  (2) 475  JT 1995 (3)    21        1995 SCALE  (2)121

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.   S.L.P.   Nos.  18079/91,  17883/90  taken   on   board. Substitution allowed. 2.   Leave granted in all the S.L.Ps. 3.   A common question of law arises for     decision     in these matters.  Hence, they are    disposed of together. 4.   The  Maharashtra  Regional & Town Planning, Act  37  of 1966,  (for short ’the Act’) was invoked for  acquiring  the land  in question by the Regional & Town Planning Board  for planned development in the State of Maharashtra.  The  facts in  C.A.  No.4925/89 are sufficient  for  consideration  and decision in these appeals.  The Act was amended by Amendment Act  1970 which came into force on February 17, 1971 as  Act 14  of  197 1. A notification under s. 125 of  the  Act  was published on December 28, 1972.  The land could be  acquired by agreement with the owner, or making an application to the State Government for acquisition under Land Acquisition Act, 1894,  (for  short  ’the Central Act’)  in  which  event  by operation  of  the  proviso  to sub-s.(2)  of  s.  126,  the declaration has to be made within three years from the  date of  the  publication  of notification  under  s.  125.   The notification  under s. 125 is treated as one s.4(1) and  the declaration under s.2 of s. 126 as declaration under s.6  of the  Central  Act.   The failure  to  have  the  declaration published  within three years. entails with the  prohibition to take further 23 action in acquiring the land. 5.   Sub-s.(4) lifts the embargo thus:               "(4)  If a declaration is not made within  the               period referred to in sub-s.(2) or having been               made,  the  aforesaid period  expired  on  the               commencement  of the Maharashtra Regional  and               Town Planning (Amendment) Act, 1970, the State               Government  may make a fresh  declaration  for

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                           acquiring  the land under the Land  Acquisitio n               Act,  1894,  in the manner  provided  by  sub-               ss.(2) and (3) of this section, subject to the               modification that the market value of the land               shall  be  the  market value at  the  date  of               declaration  in the Official Gazette made  for               acquiring the land afresh.  " 6.   A  reading of sub-s.(4) would give us  the  legislative intent that if declaration is not made within three years or having  been  made,  the aforesaid  period  expired  on  the commencement of the Amendment Act, the State Government  has been empowered to make a fresh declaration for acquiring the land in the manner provided by sub-ss.(2) and (3) of  s.126. The rider to the exercise of the power of eminent domain  is that  the market value of the land should be as at the  date of  fresh declaration under s.126(2) published in the  offi- cial  Gazette.   In  other  words,  on  publication  of  the notification  under s.125, the market value has been  pegged down  to the date of its publication in the  State  Gazette. Since   there   lapsed  time  between  the  dates   of   the notification and the declaration, the owner is relieved from the hardship of determination of compensation as per  prices prevailing as on the notification under s. 125; and the rise in the market value between the dates of the publication  of the  notification  and  the declaration  is  set  off.   The legislature  while  giving  power  to  the  State  to  issue declaration  after the expiry of three years or having  made the fresh declaration as valid, relieved the owner or person interested  in the land from hardship; and the crucial  date for  determination of the compensation is the date on  which the declaration under sub-s.(4) of s.126 is published in the official  gazette treating that declaration as a fresh  one. Thereby the legislative intention would be clear that though three years period had expired after the publication of  the notification under s. 125 or the declaration made under sub- s.(2)  had expired before the commencement of the  Amendment Act,  the State Government has been given power to have  the declaration  published  afresh.  In other words,  power  was given  to  have the declaration published afresh  so  as  to proceed   with  making  the  award  but  to  determine   the compensation  as per the price prevailing as on the date  of the fresh declaration published in the Gazette afresh. 7.   Dr.  N.M.  Ghatate,  learned  Senior  counsel  for  the respondents, contends that since acquisition of the land  is compulsory expropriation, restrictive interpretation  should be  given.   He  further contends that though  there  is  no express  provision that the notification published under  s. 125  would lapse, by operation of s. 11A of the Central  Act introduced  by the L.A. Amendment Act 68 of 1984, award  has to  be  made within two years from the date  of  declaration published under s.6 of the Central Act i.e. under s.  126(2) of the Act; and this period of limitation must be deemed  to have been incorporated in the Act.  Thereby, the only course open  to the State is to issue the notification under  s.125 afresh,  if  law  permits and it should not  resort  to  the publication of the declaration under sub-s.(4) of s. 126. 24 8.   We  find no force in the contentions.  The  legislature being  cognizant  of the consequences that would  flow  from long delay in publication of the declaration in the official gazette  under  sub-s.(2) of s. 126, provision was  made  in that  behalf to put a fetter on the exercise of power  under s.  126(2) and simultaneously mitigated -the hardship to  be caused to the public purpose as well as to private  interest

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of the owner of the land.  In other words, while  permitting the State to exercise its power of eminent domain, the owner of  the land or the person interested in the land  has  been relieved  of hardship of payment of the compensation as  per the  price prevailing as on the date of publication  of  the notification  under s. 125 [s.4(1) of the Central  Act]  and directed  that market value be determined as on the date  of publication  of the fresh declaration under sub-s.(4) of  s. 126. 9.   This  Court in Municipal Corporation of Greater  Bombay v.  Dr. Hakimwadi Tenants Association & Ors.,  1988  (supp.) SCC  55, had considered the effect of provisions of s.  126, in  particular  the  proviso to sub-ss.(2)  and  (4),  while angulating the reservation under s. 127 and held thus:               "The  conjoint effect of sub-ss.(1),  (2)  and               (4)  of  s. 126 is that if no  declaration  is               made  within  the period referred to  in  sub-               s.(2),  that is to say, before the  expiry  of               three  years from the date of  publication  of               the  draft regional plan, development plan  or               any  other plan, the compensation  payable  to               the owner of the land for such acquisition, in               that  event, shall be the market value on  the               date of the fresh declaration under s.6 of the               Land Acquisition Act i.e. the market value not               at  the date of the notification under  s.4(1)               of  the  Land Acquisition Act but  the  market               value  at the date of declaration  under  s.6.               That  is one of the safeguards provided  under               the Act.  " 10.  Therefore, it would be clear that though     declaration under sub-s.(2) of s. 126 is not   made  within three  years as prescribed under proviso to sub-s.(2) of s. 126, by  nec- essary  inference  it would be construed  that  notification under s. 125 does not lapse and fresh declaration made under sub-s.(4) of s. 126 is valid, be it made after the Amendment Act came into force or the one made under the unamended  Act and  three  years had expired before the Amendment  Act  has come into force.  The Government was then clearly within its power to have, published the declaration under sub-s.(2)  of s.  126  in the Official Gazette.  This conclusion  of  ours gets  fortified from the consideration of the effect  of  s. 127, as interpreted by this Court in aforesaid case. 11.  It is next contended by Dr. N.M. Ghatate that in appeal arising from S.L.P. No.5251/90 since the award has not  been made within two years from the date of the declaration under sub-s.(2)  of s.126, by operation of s. 11A of  the  Central Act, the notification published under s. 125 shall be deemed to  have  been lapsed and, therefore,  the  authorities  are devoid of jurisdiction to proceed further.  We find no force in   the  contention  too.   It  is  seen  that  the   State legislature  amended  the  Act  by  the  Amendment  Act  and introduced  3  years  limitation  for  publication  of   the declaration  under sub-s.(2) of s. 126.  In s. 128,  it  had expressly  engrafted the provisions of ss. 16, 17 and 24  of the  Central Act as its part.  In other words, wherever  the legislature intended to apply the specific procedure or  the fetters in exercising the power as visualised by the Central Act,  it did so specifically.  After the Central Act  68  of 1984 has come into force, no attempt was 25 taken by the State legislature to amend the Act  introducing or  incorporating s. 11A of the Central Act as part  of  the Act.   Since  the  legislature  had  incorporated   specific provisions  of the Central Act, the necessary conclusion  is

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that the legislature did not intend to apply the unspecified provisions of the Central Act to the exercise of power under the  Act.  In this behalf it is to be remembered that  there is a distinction between incorporation and adoption by  ref- erence.   If the legislature would have merely  adopted  the Central  Act, subsequent amendments to that Act  made  under Act 68 of 1984 would have become applicable per force. 12.In Gauri Shankar Gaur v. State UP., 1994 (1) SCC 92,  the U.P.  legislature,  while  enacting U.P. A  was  Evam  Vikas Parishad  Adhiniyam,  1965, enacted s.55  and  the  schedule annexed to the Act making appropriate incorporation  therein of the provisions of the Central Act.  It was contended that as   the  Central  Amendment  Act  68  of  1984   prescribed limitation  of  3 years for publication of  the  declaration under s.6, on expiry thereof, the notification under s.28 of the   Adhiniyam  stood  lapsed.   The  correctness  of   the contention and the  scope  and ambit of s.55 read  with  the schedule was considered by one of us (K.     Ramaswamy, J.). After exhaustive consideration of the case law on the  topic in  paragraphs  31-32, it was held that  in  legislation  by incorporation,  the provisions of the former Act becomes  an integral  part of the latter Act, as if it was written  with ink  and printed in the later Act.  It is not so in case  of adoption  by reference.  In such a case, when provisions  in the former Act are repealed or amended, they cannot,  unless expressly  made applicable to the subsequent Act, be  deemed to  be  incorporated  in  it.   The  later  Act  is  totally unaffected  by any amendment or repeal.  Whether a  case  is one  of incorporative or reference is to be judged from  the scheme,  language employed and purpose the statute seeks  to achieve.   If  a later Act merely makes a reference  to  the earlier Act or existing law, it is only by way of  reference and  all  amendments  subsequently made  will  have  effect, unless its operation is saved by section 8(1) of the General Clauses Act or it is void under Art.254 of the Constitution. It was held in that case that s.55 of the Act read with  the schedule  merely incorporated the provisions of the  Central Act and so, subsequent amendments to s.6 of the Central  Act did  not form part of the Adhiniyam and they have no  effect on the provisions of the Adhiniyam.  Similar is the position under the Act. 13.  It  is next contended that since no separate  procedure was prescribed by the Act for determining the  compensation, by  necessary inference, the Central Act was intended to  be applied  mutatis mutandis to the acquisition under the  Act. He  seeks  support from the award made by the  Collector  in that  behalf It is true that there is no  express  provision under  the  Act  to  determine  compensation  for  the  land acquired   under   the   Act.    Therefore,   by   necessary implication, compensation need to be determined applying the principles  in  s.23 of the Central Act.  But,  there  is  a distinction between procedural and substantive provisions of a;  statute.   Determination  of  compensation  by  applying appropriate   principles   is   relatable   to   substantive provision,  whereas  making  of award  within  a  prescribed period is basically procedural.  So, merely because s. 23 of the Central Act would apply to acquisition under the Act, is not enough to hold that what is 26 contained  in s. 11-A would also apply.  Further,  what  has been  provided in sub-s.(4) ,of s. 126 of the Act  is  clear indication  that failure to make the award within two  years from the date of the declaration under subs.(2) of s. 126 of the  Act, would not render the notification published  under s. 125 of the Act non-est.

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14.  A Full Bench of the High Court recently considered  the question as to whether the Amendment Act applies not only to the  proceedings which were pending when the  Amendment  was brought  into  force but also to the  proceedings  initiated afterwards in Shiorani v. State of Maharashtra, 1994 Mh.L.J. 182  1; and has opined that it applies to later  proceedings also.   We  are  in agreement with  the  reasoning  and  the conclusion of the Full Bench, as this is clear even from the opening part of sub-s.(4). Therefore, the Division Bench  of the  High  Court was not right in its  conclusion  that  the Amendment Act would apply only to the pending proceedings. 15.  All  the  appeals, except Civil  Appeal  No.62/92,  are allowed;  Civil Appeal No.62/92, however, stands  dismissed. ’The  orders and judgments of the High Court in the  appeals hereby   allowed   are   set   aside.    Consequently,   the notifications and the declarations which are subject  matter of those appeals stand upheld.  The authorities would be  at liberty  to proceed further in accordance with the law.   No costs. 28