Trust Mai Lachmi Sialkoti Bradri Vs.
The Chairman, Amritsar Imp povement Trust  INSC 122 (4 April 1962)
04/04/1962 AYYANGAR, N.
RAJAGOPALA AYYANGAR, N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR
P.(CJ) SUBBARAO, K.
CITATION: 1963 AIR 976 1963 SCR Supl. (1) 242
CITATOR INFO :
R 1964 SC1284 (20)
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
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 unders. 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 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.
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
S. P. Sinha and. M. K. Madan, for the
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
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 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 appellant-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
"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-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 substantially the terms of the Act which it
Section 2 contained definitions which were in
terms identical 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
reenacted 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 reenacted, 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
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 weather 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. 893251 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 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.