Munithimmaiah
Vs. State of Karnataka & Ors [2002] Insc 164 (22 March 2002)
Doraiswamy
Raju & Ashok Bhan Raju, J.
Special
leave granted.
This
appeal has been filed against the judgment dated 2.3.2000 of a Division Bench
of the Karnataka High Court in Writ Petition No.2083 of 1996, wherein the
relief sought in the nature of a writ of certiorari to quash the entire
acquisition proceedings pertaining to Survey No.81/6 in Agrahara Dasarahalli
Village, Yeswanthapura Hobli, Bangalore North Taluk, and the Award said to have
been passed by the Special Land Acquisition Officer, Bangalore Development
Authority, on 22.2.1995, came to be rejected on the ground that the matter is
covered against the appellant by an earlier Division Bench Judgment 1419]. For
appreciating the points raised as well as the grievance sought to be made out,
it would be necessary to advert to certain salient factual details pertaining
to the matter.
The
appellant claims to be the owner in possession of the land comprised in Survey
No.81/6, Agrahara Dasarahalli Village, Yeswanthapur Hobli, Bangalore
North Taluk. Permission was said to have been obtained by the appellant on
2.8.1969 from the Deputy Commissioner, Bangalore, sanctioning conversion of one acre 16 guntas in the said Survey number
into non-agricultural use, leaving the remaining 20 guntas as `Kharab' land.
The permission was subject to certain conditions, which, among other things,
included compliance with the formalities prescribed by and obligations to the
City Improvement Trust Board or need to secure the approval for the layout and
building plans from the said Board and obtaining of necessary licences, etc.
from the competent authority before the commencement of any construction work
on the said land. The appellant also claims to have substantially commenced
construction. While the matter stood thus, a preliminary Notification was said
to have been published in the Official Gazette dated 25.7.1974 proposing the
acquisition of the land belonging to the appellant in Survey No.81/6 along with
some other lands in Survey Nos.81/1, 81/2., 81/3, 81/4 and 81/5 for the
formation of a layout known as the "West of Chord Road-IV Stage". The
appellant claims to have filed objections, among other things, stating that
already a proposal dated 12.8.1974 for formation of a private layout under
Section 25 of the City Improvement Trust Board Act was submitted by him and the
same was pending with the CIT Board. Once again, the appellant claims that the
portions of the land were sold to various purchasers and buildings were put up
leaving no vacant land for formation of any site in Survey No.81/2 and only 27 guntas
of land in Survey No.81/2 was used by the owners of the buildings in the area
as Kacha Road.
By a
Gazette Notification on 31.1.1980 the Government of Karnataka published a
Notification under Section 19(1) of the Bangalore Development Authority Act,
1976 [hereinafter referred to as `the Act'] making known about the sanction of
an improvement scheme for the formation of layout called "West of Chord Road,
IV Stage", and the publication of preliminary Notification on 25.7.1974
and the declaration then made under Section 19 of the Act that the lands
specified in the said Notification, noticed supra, are needed for a public
purpose for the formation of the layout in question. Thereafter, an Award was
also said to have been passed on 19.3.1981 in respect of Survey No.81/2
measuring 27 guntas and possession of the same was also taken for forming a
road. The Special Land Acquisition Officer, B.D.A., was also appointed to
perform the functions of the Deputy Commissioner under the Land Acquisition Act
in exercise of the powers conferred under Section 36 of the Act read with
sub-section (2) of Sections 6 and 7 of the Land Acquisition Act, 1894 as
amended and extended from time to time by the Land Acquisition (Karnataka
Extension and Amendment) Act, 1961. The appellant claims that the Commissioner
of the Bangalore Development Authority also informed on 19.8.1982 that the land
comprised in Survey No.81/6, noticed above, was not really required by the CIT
Board for its Schemes. When the appellant approached the Commissioner, B.D.A.,
he was also informed about the Notification of the lands measuring one acre 36 guntas
for acquisition for the Scheme in question and the pendency of those
proceedings. Finally, as noticed earlier, the Award came to be made under
Section 11 of the Land Acquisition Act, 1894 on 22.12.1995. Since the appellant
seems to have mainly challenged the proceedings placing reliance on Section
11-A of the Land Acquisition Act inserted into the main Act by the Land
Acquisition (Amendment) Act, 1984 and the very question similar to the one
raised, was dealt with elaborately and held against the stand of the petitioner
in the decision reported in Khoday Distilleries Limited case (supra), the Writ
Petition of the appellant came to be dismissed necessitating this appeal.
The
main and substantial question raised by Shri D.P. Chaturvedi, learned counsel
for the appellant, before us is that the High Court erred in following the
earlier decision in Khoday Distilleries Ltd. case (supra) and that having
regard to the provisions contained in Section 11-A of the Land Acquisition Act,
1894, the Award passed beyond the stipulated period of limitation is illegal
and that after the expiry of the stipulated period under Section 11-A, the
acquisition proceedings stood lapsed and, therefore, the claim of the appellant
ought to have been sustained. Though, the learned counsel for the appellant
tried to urge that the lands of the appellant are not really required to be
acquired for implementation of the Scheme in question, we are not adverting to
such contentions in detail since no such ground seems to have been argued
before the High Court and strong objection is also taken by the learned Senior
Counsel for the respondents for such pleas being raised in this Court. To
complete the sequence of narration of facts and particularly the grievance
sought to be made about the delay by the appellant in this Court, it is useful
to refer to the fact that under the pretext of alleged trespass into the land
in question pursuant to the allotments made by the B.D.A. in favour of certain
third parties, the appellant filed O.S. No.3361 of 1989 seeking a declaration
that the land was not acquired for any public purpose and also for an
injunction restraining interference with his possession of the land. Though the
appellant was able to secure interim orders in his favour, which came to be
confirmed at that stage by the High Court also ultimately, the Civil Suit came
to be dismissed only on 20.1.1995 holding that the appellant was not in
possession and that the Civil
Court cannot declare
the Notification for acquisition, to be null and void. The appellant appears to
have filed an appeal in R.F.A. No.90/95 as well as an overlapping Writ
Petition. It is at that stage that taking leave of the Court, the Award came to
be passed and the matter was brought to the notice of the High Court on
6.12.1996 in the pending proceedings.
Per
contra, Shri Altaf Ahmad, learned Additional Solicitor General, as also the
other counsel following his submissions, submitted that the decision rendered
in Khoday Distilleries Ltd. (supra) by a Division Bench of the Karnataka High
Court, which came to be followed and applied in the present case, lays down the
correct position of law and the decision does not suffer from any infirmity to
call for interference in this appeal.
Strong
reliance has been placed for the appellant on the decisions reported in The
Special Land Acquisition Officer, City Improvement Trust Board, Mysore vs P. Govindan
(AIR 1976 SC 2517) and Mariyappa and Others vs State of Karnataka and Others
[1998 (3) SCC 276].
In the
first of the above decisions, this Court, after adverting to an earlier
decision reported in The Land Acquisition Officer, City Improvement Trust
Board, Bangalore vs H. Narayanaiah Etc. Etc. (AIR 1976 SC 2403), observed as
follows:
"6.
It is true that it can be more plausibly argued, with regard to the provisions
of Mysore Act of 1903, that the market value for acquisitions under this Act
should be determined with reference to the Acquisition Act as it stood in 1903.
After carefully considering this point of view, we think that such a departure
from the generally accepted procedure which regulates acquisition and
compensation for it under similar Acts in the State of Mysore as well as under
Land Acquisition Act today has to be justified by something more explicit,
express and substantial than the mere date of enactment of the Mysore Act. If
Section 23(1) of the Acquisition Act lays down, as we think it does, the only
procedure for award of compensation, it has to be followed as it exists at the
time of acquisition proceedings. No one has a vested right in a particular
procedure. It is a fair interpretation of Section 23 of the Mysore Act of 1903
to hold that it means that, whatever may be the procedure there, with regard to
matters regulating compensation under the Acquisition Act, at the time of
acquisition proceedings will apply to acquisitions under the Mysore Act."
Proceeding further, and placing also reliance on Section 6 of the Mysore
General Clauses Act, it was ultimately held that in substance Section 23 of the
City of Mysore Improvement Act, 1903 provided for the application of the
general procedure found in the Land Acquisition Act except to the extent it was
inapplicable, meaning thereby that the amendments of the procedure in the Land
Acquisition Act, will apply "if it is capable of application". In Narayanaiah's
case (supra) this Court, while construing the words "so far as they are
applicable" in Section 27 of the City of Bangalore Improvement Act, 1945,
observed that the intention in using these words was to exclude only those
provisions of the Land Acquisition Act which become inapplicable because of any
special procedure prescribed under the Bangalore Act and those words
sufficiently bring in or make applicable, so far as it is reasonably possible,
the general provisions like Section 23 of the Land Acquisition Act laying down
the principles for the determination of compensation payable. In that context,
it was specifically observed, "They cannot be reasonably construed to
exclude the application of any general provisions of the Acquisition Act. They
amount to laying down the principle that what is not either expressly, or by a
necessary implication, excluded must be applied." It is not only relevant
but necessary to notice even at this stage that the Division Bench of the
Karnataka High Court, while deciding the case reported in Khoday Distilleries
Ltd. (supra) specifically referred to and only applied the ratio of the above
noticed decisions of this Court as well as the one rendered in Farid Ahmed
Abdul Samad & Another vs The Municipal Corporation of the City of Ahmedabad
& Another (AIR 1976 SC 2095). A detailed and meticulous comparative
analysis of the relevant provisions of the Bangalore Development Authority Act,
1976 and the Land Acquisition Act, 1894, as amended by the Amending Act of
1984, was made by the Division Bench of the High Court and it was observed as
hereunder:
".The
two sets of provisions under Sections 4, 5A and 6 of the L.A. Act are
comparable with the provisions of Sections 17 and 18 of the B.D.A. Act.
Under
the provisions of the L.A. Act, if the final notification is not issued within
the period mentioned therein and if any award is not made within the time
prescribed under Section 11-A of the Act, the acquisition proceedings would
lapse. In the case of schemes covered by the B.D.A. Act, the authority has to
execute the schemes within a period of 5 years and if the authority fails to
execute the scheme substantially, the scheme shall lapse and the provisions of
Section 36 shall become inoperative.
Thus
in substance there are provisions under the B.D.A. Act to indicate the
proposals for acquisition, considering the objections thereto, sanctioning the
proposal for acquisition on consideration of such objections and if such acts
do not take place within a period of 5 years the proceedings would lapse. The
Supreme Court in several decisions where questions of delay in the
implementation of the proposals made under the L.A. Act for purpose of
completion of the acquisition proceedings occurs, has taken the view that if
the same is unreasonable, the acquisition proceedings could be quashed, prior
to the introduction of Section 6 and 11-A of the L.A. Act prescribing
limitation on the powers and the time within which such action should be taken.
It would be a matter of policy for the Legislature to indicate the time within
which such acts should be taken. In the case of B.D.A. Act, considering the
nature and complexity of the implementation of the scheme, a period of 5 years
has been fixed for purpose of completion of the scheme from the date of issue
of the notification under Section 19 of the B.D.A. Act on sanction of the
scheme. Therefore, when the Legislature itself has taken note of within what
period the schemes have to be implemented and prescribes an authority thereto
and also provides for as to what consequence would follow on non-implementation
of the scheme within that period, we do not think this Court can take a view
that such implementation of the scheme is in any way discriminatory when
compared to the provisions of the L. A. Act. In substance, both the provisions
provided for identical situation may be in case of L.A. Act more details are
set forth such as the period within which final notification has to be issued
and the period within which award has to be passed. But in case of the B.D.A.
Act implementation of the scheme has been limited to a period of 5 years as
provided in Section 27 of the B.D.A. Act.
9.
Section 27 of the B.D.A. Act provides that where within a period of 5 years
from the date of the publication in the official gazette of the declaration
under Section 19(1), the authority fails to execute the scheme substantially,
the scheme shall lapse and the provisions of Section 36 shall become
inoperative. In the L.A. Act certain period has been fixed which is considered
to be reasonable within which the final notification will have to be issued and
award has to be passed and if such acts are done beyond the time prescribed
therein, the acquisition of land will lapse.
To the
same effect is Section 27 of the B.D.A. Act. If the B.D.A. Act provides for 5
years to be reasonable period for substantial compliance with the scheme, we
cannot state that the said provision is unreasonable of not proper. Thus the
scheme of the L.A. Act as modified by the B.D.A. Act would be applicable by
reason of the provisions of Sections 17, 18, 27 and 36 of the B.D.A. Act."
After adopting such process of reasoning only the High Court held in para 12 of
the report, "we hold therefore that the provisions of Section 6 and
Section 11-A of the Land Acquisition Act, which provide for the period of
Limitation within which the final notification can be made and award could be
passed are excluded from the application to acquisition made under B.D.A. Act
by necessary implication. The rest of the provisions other than those relating
to the issue of preliminary notification, final notification or period within
which the award should be passed and lapsing of proceedings under the B.D.A.
Act, of the L.A. Act would certainly be applicable." Thus, a decision as
to the inapplicability of the provisions of Section 6 and 11-A where the period
of limitation is prescribed respectively for the issue of final notification
and for passing the Award, in relation to proceedings for acquisition under the
B.D.A. Act came to be rendered on a mere construction of the relevant
provisions in the light of the very principles laid down by this Court in the
earlier decisions, noticed supra, even without reference to the general
question as to whether the reference in the B.D.A. Act to the provisions of the
L.A. Act amount to legislation by reference or incorporation.
We are
in entire agreement with the reasoning and also affirm the ultimate conclusions
arrived at by the High Court in Khoday Distilleries Ltd case (supra) which, in
our view also, is squarely in conformity with the ratio of the earlier
decisions of this Court specifically noticed and relied upon, in support
thereof.
The
decision in Mariyappa and Others case (supra) has no relevance or application
to the case on hand for more than one reason. In para 40 of the report it is
found stated: "we are not to be understood as having said anything with
regard to the Bangalore Development Act, 1976". That apart, this Court, on
an analysis of the provisions of the Karnataka Acquisition of Land for Grant of
House Sites Act, 1972 in contrast to the provisions of the Land Acquisition
Act, 1894, observed that not only the Karnataka Act, 1972 had a skeleton of
only seven sections without any full machinery for being treated as a complete
Code without depending on the Central Act, 1894, for being functional so far as
the inquiry, passing of Award, seeking reference and apportionment and payment
of compensation, etc. is concerned, but the Karnataka Act, 1972 and the Central
Act, 1894 are supplemental to each other and both the Acts are in pari materia
since the subject-matter of the 1972 Act could have otherwise also come within
the ambit of the Central Act and, therefore, the Karnataka Act, 1972 cannot be
considered to deal with any subject other than acquisition of land. On the
general question as to the principles of legislation by incorporation or
referential legislation, reference has been made to the decision reported in
State of M.P.
"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." Scanning
through the nature of legislation, enacted as the Karnataka Act, 1972, it has
been held that the said Act 1972 clearly comes within the exceptions stated in
M.V. Narasimhan's case (supra) for the following reasons :
"Firstly
there being no detailed machinery whatsoever in the Karnataka Act, 1972, that
Act cannot be treated as a self-contained or complete code. Secondly, the
Karnataka Act, 1972 and the Central Act, 1894 (as amended by the Karnataka Act,
1961) are supplemental to each other for unless the Central Act supplements the
Karnataka Act, the latter cannot function. Thirdly, these Acts are in pari materia
because the Karnataka Act, 1972 unlike the Calcutta Act, 1911 and the U.P. Act,
1965 does not deal with any other subject but deals with the same subject of
land acquisition which otherwise would have fallen within the ambit of the
Central Act, 1894.
For
the aforesaid reasons, we are of the view that the amendments made in 1984 to
the Central Act, 1894 including Section 11-A have to be read into the Karnataka
Act, 1972, so far as enquiry, award, reference to court, apportionment of
amount and the payment of amount in respect of land acquired under the
Act." [(1998) 2 SCC 467], which has also been noticed and distinguished in
Mariyappa's case (supra), dealt extensively with the salient principles
relevant as well as governing the construction of legislation by reference and
by incorporation. On a review of the entire case-law on the subject, this Court
observed that in case of incorporation of provisions of an earlier legislation
in a subsequent statute they get frozen and atrophied and the repeal or
amendment of the earlier legislation does not affect the operation of the
incorporating statute and that the question as to whether a legislation is by
incorporation or by reference would invariably depend on the language used in
the incorporating statute and other relevant circumstances. Adverting to the
provisions of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 and the provisions
of the Land Acquisition Act, 1894, as amended in 1984, it was held that the Adhiniyam
and the Land Acquisiton Act cannot be regarded as supplemental to each other
since the Adhiniyam contains provisions regarding acquisition of land which are
complete and self-contained and, therefore, the provisions of the Land
Acquisition Act as applicable in the State of U.P., at the time of passing of
the Adhiniyam in 1965 alone applied and the subsequent repeal or amendment in
the Central Land Acquisition Act unless any of the exceptional situations
indicated in M.V. Narasimhan's case (supra) can be said to be attracted.
Despite
coming to such conclusions, on the principles of law governing the category of
referential legislation or legislation by incorporation those provisions
inserted by way of an amendment by the Land Acquisition (Amendment) Act of 1984
in the Land Acquisition Act, 1894 relating to determination and payment of
compensation, viz., Section 23(1-A) and Sections 23(2) and 28 would be
applicable to acquisition for the purpose of the Adhiniyam under Section 55 of
the Adhiniyam by applying the ratio of a seven-Judge Constitution Bench
decision in holding that there can be no differential treatment in the
determination of the principles of compensation payable merely on the
distinction based upon who acquires the property, namely, whether the land is
acquired for or by an Improvement Trust or Municipal Corporation or the
Government, 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 for one or other of
its purposes.
So far
as the B.D.A. Act is concerned, it is not an Act for mere acquisition of land
but an Act to provide for the establishment of a Development Authority to
facilitate and ensure a planned growth and development of the city of Bangalore
and areas adjacent thereto and acquisition of lands, if any, therefor is merely
incidental thereto. In pith and substance the Act is one which will squarely
fall under, and be traceable to the powers of the State Legislature under Entry
5 of List II of the VIIth Schedule and not a law for acquisition of land like
the Land Acquisition Act, 1894 traceable to Entry 42 of List III of the VIIth
Schedule to the Constitution of India, the field in respect of which is already
occupied by the Central Enactment of 1894, as amended from time to time. If at
all, the B.D.A. Act, so far as acquisition of land for its developmental
activities are concerned, in substance and effect will constitute a special law
providing for acquisition for the special purposes of the B.D.A. and the same
was not also considered to be part of the Land Acquisition Act, 1894. It could
not also be legitimately stated, on a reading of Section 36 of the B.D.A. Act
that the Karnataka legislature intended thereby to bind themselves to any
future additions or amendments, which might be made by altogether a different
legislature, be it the Parliament, to the Land Acquisition Act, 1894. The
procedure for acquisition under the B.D.A. Act vis-à- vis the Central Act has
been analysed elaborately by the Division Bench, as noticed supra, and, in our
view, very rightly too, considered to constitute a special and self-contained
code of its own and the B.D.A. Act and Central Act cannot be said to be either
supplemental to each other, or pari materia legislations. That apart, the
B.D.A. Act could not be said to be either wholly unworkable and ineffectual if
the subsequent amendments to the Central Act are not also imported into
consideration. On an overall consideration of the entire situation also it
could not either possibly or reasonably stated that the subsequent amendments
to the Central Act get attracted or applied either due to any express provision
or by necessary intendment or implication to acquisitions under the B.D.A. Act.
When the B.D.A. Act, expressly provides by specifically enacting the
circumstances under which and the period of time on the expiry of which alone
the proceedings initiated there under shall lapse due to any default, the
different circumstances and period of limitation envisaged under the Central
Act, 1894, as amended by the amending Act of 1984 for completing the
proceedings on pain of letting them lapse forever, cannot be imported into
consideration for purposes of B.D.A. Act without doing violence to the language
or destroying and defeating the very intendment of the State Legislature
expressed by the enactment of its own special provisions in a special law
falling under a topic of legislation exclusively earmarked for the State
Legislature. A scheme formulated, sanctioned and set for implementation under
the B.D.A. Act, cannot be stultified or rendered ineffective and unenforceable
by a provision in the Central Act, particularly of the nature of Sections 6 and
11-A, which cannot also on its own force have any application to actions taken
under the B.D.A. Act. Consequently, we see no infirmity whatsoever in the
reasoning of the Division Bench of the Karnataka High Court in Khoday
Distilleries Ltd. case (Supra) to exclude the applicability of Sections 6 and
11-A as amended and inserted by the Central Amendment Act of 1984 to
proceedings under the B.D.A. Act. The submissions to the contra on behalf of
the appellant has no merit whatsoever and do not commend for our acceptance.
The
wail about the inordinate delay or laches in passing the Award cannot be
countenanced at the instance of the appellant who contributed mainly for the same
by institution of litigation causing through prohibitory orders obtained,
impediments in the expeditious implementation of the portion of the Scheme by
taking further course of action under the B.D.A. Act, including the passing of
the Award.
For
all the reasons stated supra, we see no merit in the appeal and the same shall
stand dismissed, but with no costs.
..J.
[Doraiswamy
Raju] J.
[Ashok
Bhan] March 22, 2002.
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