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Mira Rani Hazra And Ors vs State Of West Bengal And Ors on 4 February, 2020

IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE

BEFORE:-

THE HON’BLE JUSTICE RAJASEKHAR MANTHA

W.P.25195 (W) of 2015

MIRA RANI HAZRA AND ORS.

VERSUS

STATE OF WEST BENGAL AND ORS.

For the Petitioner : Mr. Debayan Bera,
Mr. Shakti Prasad Chadraborty

For the State : Mr. Kishore Dutta, Ld. Adv. Gen,
Mr. Chandi Charan De, Ld. AGP,
Mr. Soumitra Banerjee.

For the K.M.D.A : Mr. P.S Basu, Mr. Satyajit Talukdar

Hearing Concluded On : 21.01.2020

Judgment On : 04.02.2020

Rajasekhar Mantha, J.:-

1. The brief facts relevant are that C.S./R.S. Plot No. 1 Mouza Madurdaha, at

E.M. Bypass in Kolkata, comprised in 47.63 Acres of land. (R.S. Plot No.1)

2. A declaration was published under section 6 of the West Bengal Land

Development and Planning Act of 1948 in respect of 265.20 Acres of Land that

was numbered LD Case No.55 of 1954-55. An area of about 33.10 Acres out of

the said aforesaid 265.20 Acres fell under C.S./R.S. Plot No. 1 of Mouza

Madurdaha. The Land was meant for Refugee Rehabilitation Department of the

State Government.
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3. Possession was taken under the aforesaid LD Case of about 265.20 acres of

land which included Land measuring about 33.10 Acres. In respect of the said 265

Acres of Land an award was declared of all plots excluding plots under R.S.No.1.

Mouza Madurdaha. Despite the above an area of 9.29 acres of the said R.S.Plot

No.1. Was taken over by the State as vested land and handed over to the Kolkata

Metropolitan Development Authority (KMDA).

4. In respect of the balance 14.53 Acres in R.S No.1, L.A. Case No.4/22 of

2000/2001 was commenced by the State. An award for the entire 14.53 Acres was

declared. Award in respect of one half of the said land was paid to the recorded

owners and the balance half was paid to the Collector as the recorded owner.

Admittedly the Collector could not have been the recorded owner in respect of other

half of the land as no award was declared in aforesaid LD case.

5. The petitioners lay claim in respect of the 9.29 Acres of land by deducing

that out of the total area of plot no. 1 above 23.815 Acres of Land has been stated

to have been vested in the State and the balance 23.815 is Retained land. Of the

said 23.815 Acres of retained land about 14.53 Acres is stated to have been settled

in favour of the KMDA pursuant to LA Case No.4 of 22.

6. The petitioners have argued that their lands have been taken away in part

under the aforesaid LD Case No.54 of 1956/57 which has lapsed.

7. The property has changed hands from the state to private persons from time

to time. No award has been passed in respect of the aforesaid Ld. Court in respect

of R.S No.1 Not compensation has been paid.

8. The state would contend before the Court that the original acquisition

having been made under the provisions of the 1948 Act and quantum of

compensation being specified under the said 1948 Act, there is no question of
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formal declaration of any compensation. Reliance is placed on the Proviso b) to

Section 8 of the said Act. It is argued that the market value of the land should be

that of the year 1955.

9. The parties are ad idem that an interpretation of scope and purport of

Section 8 of the 1948 Act addressed the issues raised herein.

10. Mr. Bera appearing for the petitioners would argue that since no award has

been published under the acquisition made by the State as per the 1948 Act for the

purpose of Refugee Rehabilitations the Said acquisition proceedings have lapsed.

The KMDA contended that they received the land in question from the State of West

Bengal and have transferred the same to private parties who have further

transferred the same. A large number of third party interest has been created in

respect of the said land. The KMDA contents that they cannot be held liable for

any compensation or any sum of money, the petitioner and the latter if at all may

have a claim against the State.

11. The State admits that compensation is required to be paid but only in

terms

of Proviso b) of Sections 8 of the 1948 Act i.e. as per the valuation prevalent on the

31st of December 1946.

12. The petitioners’ arguments are summarised as follows:

a. Section 8 of the 1948 Act includes by reference provisions of Land

Acquisition Act, 1894. Section 11 of the L.A. Act 1894 came to be

amended in the year 1984 introducing Section 11A, which prescribes

that if an award is not published under proceedings under the L.A.

Act within 2 years of initiation thereof, such proceedings would lapse

automatically.
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b. The application of the provision of the Land acquisition Act in Section

8 of the 1948 Act is an inclusion by reference and not by

incorporation and hence any subsequent amendment to the 1894 Act

would apply to acquisition proceedings even under the 1948 Act.

c. Since no award has been passed in the original acquisition

proceedings of 1955 under the 1948 Act, by the amendment to

Section 11 of the 1894 Act, the acquisition proceedings in LD case No.

55 of 1954-55 in respect of whole CS RS plot No. 1 must be deemed to

have lapsed insofar as the petitioners’ share of 9.3 acre is concerned.

13. Learned Advocate General, Shri Kishore Dutta representing the State by

reference of the provisions of Section 8 of the 1948 Act would submit that the

provisions of the L.A. Act have been incorporated into the 1948 Act for a limited

purpose. The 1948 Act is a complete code, since it contemplates at Section 4 and 6

thereof of notification as well as declaration. The other provisions of the 1948 Act

are still intact and operative and the amendment to Section 11 of the 1894 Act

cannot be applied to proceedings under the 1948 Act hence the proceedings in LD

case No. 55 of 1954-55 have not lapsed.

14. In reply, Mr. Bera, counsel for the petitioner would submit that the process

of acquisition by reference to the L.A. Act, 1894 involved declaration under Section

6 adjudication of objections, declaration of award and deposit and payment of the

compensation and subsequent taking of possession under Section 16 thereof. It is

only thereafter that the land would vest absolutely in the State. In the instant case

no proceedings for declaration of award are available, no compensation has

admittedly been paid and possession has also admittedly taken in terms of Section

16. Since the aforesaid steps and stages are not available or prescribed under the
5

1948 Act the provisions of the Land Acquisition Act are to be resorted to. Hence

the said inclusion of the L.A. Act in Section 8 of the 1948 Act is by reference.

15. The 1948 Act is, therefore, not a complete code and hence the reference to

the 1894 Act is only by reference and not by incorporation and hence the

proceedings under LD case No. 55 of 1954-55 have not been concluded within 2

years, Section 11A is attracted and must be invoked to declare of the proceedings

under the aforesaid LD case to have lapsed.

16. Mr. Bera relied upon the judgments of the Hon’ble Supreme Court. In the

case of State of Madhya Pradesh Vs. M. V. Narasimhan, reported in (1975) 2

SCC 377. In the said case the Hon’ble Supreme Court was dealing with the

meaning of Public Servant under Section 2 of the PCRA which was stated to be as

defined under Section 21 of the Indian Penal Code that was incorporated into the

Prevention of Corruption Act, 1947. The issue was whether subsequent

amendment to Section 21 of the IPC would be attracted to the Prevention of

Corruption Act. It was held that in respect of a legislation by incorporation the

normal rule is the same survived notwithstanding the repeal amendment or is

declared ineffective or erased from the statute book except in the cases when the

subsequent and the previous act are supplemental to each other or where the two

acts are pari materia or if in the absence of the provisions of the amendment of the

previous Act to be incorporated in the subsequent Act, the subsequent Act would

render unworkable or ineffective. At Paragraphs 14 and 15 of the said Judgment

are set out hereinbelow. It was held that while it is true that The Prevention of

Corruption Act was not pari materia with the Indian Penal Code Section 3 of the

PCRA was Pari Passu with the IPC and hence by reference to the object and

purpose of the PCRA the defination of Corruption ought to be given the widest

possible meaning. It was held that notwithstanding the fact that the defination was
6

borrowed and lifted word to word from the IPC the subsequent amendments to

Section 21 of the IPC must be read into Section 3 of the PCRA.

“14. There is yet another aspect of the matter which is spelt out
from the decision of the Privy Council in the Hindusthan
Cooperative Insurance Society’s case (supra) which has been relied
upon by the High Court itself. While reiterating the principle that
after certain provisions from an existing Act have been incorporated
into a subsequent Act, no addition to the former Act can be made,
their Lordships of the Privy Council made it clear that this principle
would not apply where the subsequent Act is rendered unworkable
or is not able to function effectually. In this connection their
Lordships observed as follows:

“It seems to be no less logical to hold that where certain
provisions from an existing Act have been incorporated into a
subsequent Act, no addition to the former Act, which is not
expressly made applicable to the subsequent Act, can be
deemed to be incorporated in it, at all events if it is possible for
the subsequent Act to function effectually without the
addition.”

15. On a consideration of these authorities, therefore, it seems that
the following proposition emerges:

“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.”

17. Mr. Bera next relied upon in the case of Western Coalfields Limited Vs.

Special Area Development Authority, Korba and Anr. reported in (1982) 1 SCC

125. In the said case the Supreme Court was considering with the question as to
7

whether Section 69 d of M. P. Nagar Tatha Gram Nibesh Adhiniyan 1973 which

included the provisions of taxation from the provisions of the Madhya Pradesh

Municipal Corporation Act 1956 and the M.P. Minicipalities Act 1961. It was held

that the 1973 Act included the provisions of the 1956 and 1961 Acts by reference

and not by incorporation.

18. In the said decision (supra) at Paragraph 16, 17 and 18 the Hon’ble Supreme

Court held as follows:

16. The principle, broadly, is that where a statute is incorporated by
reference into a second statute, the repeal of the first statute by a third does
not affect the second (see Clarke v. Bradlaugh [(1881) 8 QBD 63, 69 : 46 LT
49 : 30 WR 53 (CA)] ). Likewise, logically, where certain provisions from an
existing Act have been incorporated into a subsequent Act, no addition to the
former Act, which is not expressly made applicable to the subsequent Act,
can be deemed to be incorporated in it (see Secretary of State for India-in-
Council v. Hindusthan Cooperative Insurance Society Ltd. [AIR 1931 PC 149 :
58 IA 259 : 132 IC 748] ). But these rules are not absolute and inflexible. In
the case last cited, the Privy Council qualified its statement of the law by
saying that the principle, that an amendment of the first law which is not
expressly made applicable to the subsequent incorporating Act cannot be
deemed to be incorporated into the second Act, applies “if it is possible for
the subsequent Act to function effectually without the addition” (IA p. 267).
Besides, as held by a Constitution Bench of this Court in the Collector of
Customs, Madras v. Nathella Sampathu Chetty [AIR 1962 SC 316 : (1962) 3
SCR 786 : (1962) 1 SCJ 68] the decision of the Privy Council could not be
extended too far so as to cover every case in which the provisions of another
statute are adopted by absorption (see SCR p. 837). Finally, in State of
M.P. v. M.V. Narasimhan [(1975) 2 SCC 377 : 1975 SCC (Cri) 589 : AIR 1975
SC 1835 : (1976) 1 SCR 6] this Court held, after an examination of the
relevant decisions, that the broad principle that 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, is subject
to four exceptions, one of which is that the principle will not apply to cases
“where the subsequent Act and the previous Act are supplemental to each
other”.

“17. Applying these principles, we are of the opinion that in the
instant case, subsequent amendments made to the Municipal
Corporation Act and the Municipalities Act will also apply to the
power of taxation provided for in Section 69(d) of the Act of 1973.
The Act of 1973 did not, by Section 69 (d), incorporate in its true
signification any particular provision of the two earlier Acts. It
provides that, for the purpose of taxation, the Special Area
Development Authority shall have the powers which a Municipal
Corporation or a Municipal Council has under the Madhya Pradesh
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Municipal Corporation Act, 1956 or the Madhya Pradesh
Municipalities Act, 1961. The case therefore is not one of
incorporation but of mere reference to the powers conferred by the
earlier Acts. As observed in Nathella Sampathu Chetty [AIR 1962 SC
316: (1962) 3 SCR 786 : (1962) 1 SCJ 68] , there is a distinction
between a mere reference to or a citation of one statute in another
and an incorporation which in effect means the bodily lifting of the
provisions of one enactment and making them part of another, so
much so that the repeal of the former leaves the latter wholly
untouched. Section 69(d) of the Act of 1973 must accordingly be
read to mean that Respondent 1 shall have all the powers of

taxation which a Municipal Corporation or a Municipal Council has
for the time being, that is to say, at the time when Respondent 1
seeks to exercise those powers.

18. The Act of 1973 does not provide for any independent power of
taxation or any machinery of its own for exercising the power of
taxation. It rests content by pointing its finger to the provisions
contained in the two Municipal Acts. The three Acts are therefore
supplemental, from which it must follow that amendments made to
the earlier Acts after the enactment of Section 69 (d) shall have to
be read into that section. Without recourse to such a construction,
the power of taxation conferred by that section will become
ineffectual. A reading of the reference to the two earlier Municipal
Acts as a reference to those Acts as they stand at the time when the
power of taxation is sought to be exercised by Respondent 1, will
not, possibly, cause repugnancy between the two earlier Acts on
one hand and the Act of 1973 on the other, nor indeed will it cause
any confusion in the practical application of the earlier Acts,
because the Act of 1973 does not contain any independent
provision or machinery for exercising the power of taxation. The
first contention of the Attorney-General must therefore fail.”

16. It was thus found that the subsequent amendments to the previous

M.P.Acts of 1956 and 1961, removing the power of Taxation conferred to local

authorities are not attracted to the subsequent 1973 Adhiniyam (Act). Going by the

Narsimhan decision (Supra) this should have been held as a case of Incorporation.

17. Counsel for the petitioner relied upon the decision of Dr. Partap Singh and

Anr. Vs. Director of Enforcement, Foreign Exchange Regulation and Ors.

reported in (1985) 3 SCC 72. In the said decision the Hon’ble Supreme Court was

considering as to whether the provisions of Code of Criminal Procedure 1973
9

particularly Section 165, in Section 37 of the Foreign Exchange Regulation Act

1973, it was held that an officer issuing search warrant under the FERA Act 1973

was not obliged to record reasons as required under Section 165 of the Cr.P.C. and

hence the inclusion of the provisions of the Cr.P.C. into the FERA Act of 1973 was

only by reference and not by incorporation. It was so held as Section 37(2) of the

FERA Act 1973 has used the expression insofar may be. Para 11 and 12 of the

aforesaid judgment is set out hereinbelow.

“11. It was however contended that when sub-section (2) of Section
37 is read in juxtaposition with sub-section (1), the legislative
mandate clearly manifest itself that before issuing a search warrant
in exercise of the power conferred by Section 37(1), it is obligatory
upon the officer issuing the search warrant to record in writing the
grounds of his belief and specifying in such writing, so far as
possible, the thing for which search is to be made because Section
37(2) provides that the provisions of the Code of Criminal
Procedure, 1898(now 1973) relating to searches, shall, so far as
may be, apply to searches under this section subject to the
modification that sub-section (5) of Section 165 of the said Code
shall have effect as if for the word “Magistrate”, wherever it occurs,
the words “Director of Enforcement or other officer exercising his
power” is substituted. It was submitted that if the power to search
premises is conferred on the officer therein mentioned, it is hedged
in with a condition that in exercise of the power he is bound by the
requirements of Section 165 of the Code. In other words, it was said
that by sub-section (2) of Section 37, Section 165 of the Code is
incorporated in pen and ink in Section 37. It was urged that the
section should be re-read as Section 37(1) as it is and Section
165(1) of the Code be read as Section 37(2). Continuing along this
line, it was submitted that read thus, the necessary intendment of
the legislature becomes revealed in that such drastic power of
search and seizure without notice to the person affected, can be
exercised, if the officer has reason to believe which must have its
foundation on some material or grounds which must be stated in
the search warrant itself or in a record anterior to the issuance of
the search warrant so that when questioned the contemporaneous
record would be available to the court to examine the contention
whether there was material for taking such a drastic action or that
the action was taken for extraneous and irrelevant reasons. In
support of this submission, reliance was placed on a decision of the
Punjab and Haryana High Court in H.L. Sibal v. CIT [(1975) 101 ITR
112 (PH HC)] . The Court was examining the expression “in
consequence of information in his possession, has reason to
believe” in Section 132 of the Income Tax Act, 1961. The Court after
referring to the decision of this Court in Commr. of Commercial
Taxes v. Ramkishan Shrikishan Jhaver [AIR 1968 SC 59 : (1968) 1
SCR 148 : (1967) 66 ITR 664] held that “the obligation to record in
10

writing, the grounds of the belief as enjoined by Section 165(1), if
not complied with would vitiate the issuance of search warrant and
the seizure of the articles”. It was then submitted that if the search
is illegal, anything seized during such an illegal search has to be
returned as held by a learned Single Judge of the Calcutta High
Court in New Central Jute Mills Co. Ltd. v. T.N. Kaul [AIR 1976 Cal
178] .

12. Section 37(2) provides that “the provisions of the Code relating
to searches, shall so far as may be, apply to searches directed
under Section 37(1)”. Reading the two sub-sections together it
merely means that the methodology prescribed for carrying out the
search provided in Section 165 has to be generally followed. The
expression “so far as may be” has always been construed to mean
that those provisions may be generally followed to the extent
possible. The submission that Section 165(1) has been incorporated
by pen and ink in Section 37(2) has to be negatived in view of the
positive language employed in the section that the provisions
relating to searches ‘shall so far as may be’ apply to searches under
Section 37(1). If Section 165(1) was to be incorporated by pen and
ink as sub-section (2) of Section 37, the legislative draftsmanship
will leave no room for doubt by providing that the provisions of the
Code of Criminal Procedure relating to searches shall apply to the
searches directed or ordered under Section 37(1) except that the
power will be exercised by the Director of Enforcement or other
officer exercising his power and he will be substituted in place of
the Magistrate. The provisions of sub-section (2) of Section 37 has
not been cast in any such language. It merely provides that the
search may be carried out according to the method prescribed in
Section 165(1). If the duty to record reasons which furnish grounds
for entertaining a reasonable belief were to be recorded in advance,
the same could have been incorporated in Section 37(1), otherwise
a simple one-line section would have been sufficient that all
searches as required for the purpose of this Act shall be carried out
in the manner prescribed in Section 165 of the Code by the officer
to be set out in the section. In order to give full meaning to the
expression “so far as may be”, sub-section (2) of Section 37 should
be interpreted to mean that broadly the procedure relating to
search as enacted in Section 165 shall be followed. But if a
deviation becomes necessary to carry out the purposes of the Act in
which Section 37(1) is incorporated, it would be permissible except
that when challenged before a court of law, justification will have to
be offered for the deviation. This view will give full play to the
expression “so far as may be.”

18. The petitioner next relied upon the decision of the Supreme Court in the

case of Mariyappa and Ors. Vs. the State of Karnataka and Ors. reported in

(1998) 3 SCC 276. In the said decision which is relevant in the instant case, the
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Hon’ble Supreme Court was considering Section 5 of the Karnataka Acquisition of

Land for Grant of House Sites Act of 1972 incorporated the provisions of the Land

Acquisition Act of 1984 as amended by (Karnataka Amendment) Act of 1961. It

was held that the inclusion of the 1894 Act as amended by the 1961 Karnataka Act

that was brought within the scope of Section 5 of the Karnataka Act 1972 by

reference and an exception to incorporation. It was held that the Karnataka Act

1972 is not a self-contained code. It was further held that the subsequent and

previous Acts i.e. 1972 and the 1894 Act are pari materia and that they are

supplemental to each other.

19. At Paragraph 14-15 and 19-22 the Hon’ble Supreme Court has laid down as

follows:

“14. From the above, it will be seen that the Karnataka Act, 1972
contains only seven sections and that it does not contain any
independent machinery or provisions for the purpose of inquiry,
reference, award and apportionment and payment of compensation.

15. Section 5 of the Karnataka Act, 1972 refer to the application of
the Central Act, 1894 as amended by the Karnataka Act, 1961.
These amendments concern the following sections of the Central
Act, 1894 — Section 1(2), Sections 3(aa), (d), (e), (ee), (f), proviso (iii)

(g), (h); (1) 4(1-A), 4(2), (3), (4), 5-5A(1), (2), (6) (1-A), (2) — (Section 8
is omitted), 9(2), (3), (4), 10(1), addition of proviso to 11, 12 (1), (2),
12-A, 15-A, 16, 17, 18, 19, 20, 24, 25, 26(2), 27(2), 28, 30-A, 34,
35(1-A), (1-B)(ii), 35(2), 37-A, 45, 46, 50, 54. We are not referring to
the details of these amendments except to say that the Dy.
Commissioner replaces the Collector, certain extra details are to be
given in Sections 4, 6 notifications, the Section 4(1) notification has
also to be served on the owner or occupier, report on Section 5-A
inquiry is to be approved by the Government, the State Government
may revise the Dy. Commissioner’s orders, application for reference
to court is to be made within 90 days of service of notice under
Section 12(2) and the Dy. Commissioner is to make a reference to
the civil court in 90 days failing which the affected party can
directly move the civil court. In Section 24 certain other factors are
introduced for determining market value. Sections 28 and 34 are
amended fixing a rate of interest of 5% rather than 6%. There are a
12

few other amendments which are not material in the present
context.

19. As the case before us, as we shall presently show, falls within
the “exceptions” to the rule of “incorporation”, we shall refer to the
relevant rulings in this behalf.

20. The leading case in which the broad principles were laid down
is the one in State of M.P. v. M.V. Narasimhan [(1975) 2 SCC 377 :
1975 SCC (Cri) 589] . On a consideration of the case-law, it was
stated by Fazal Ali, J. as follows: (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.”

(emphasis supplied)

21. In that case, the position was that the Prevention of Corruption
Act, 1947 adopted the definition of public servant from Section 21
of the Penal Code, 1860. The question was whether the subsequent
amendments made in 1958 and 1964 to Section 21 of the Penal
Code enlarging the definition of “public servant” could be read into
the Prevention of Corruption Act, 1947. Though it was held that the
13

1947 Act dealt with a specific offence of “criminal misconduct, while
the Penal Code dealt with ‘bribery’ and were not in pari materia still,
it was held that having regard to the preamble and object of the
Prevention of Corruption Act, 1947 and the Penal Code, there could
be no doubt that the former Act was undoubtedly a
statute supplemental to the latter. Hence it was held that the
amendments of 1958 and 1964 in the IPC should be read into the
Prevention of Corruption Act, 1947, as the case fell within one of
the exceptions to the principle of “incorporation”.

22.Similarly, in Western Coalfields Ltd. v. Special Area Development
Authority [(1982) 1 SCC 125] Section 69(d) of the Madhya Pradesh
Nagar Tatha Gram Nivesh Adhiniyam (Act 23 of 1973) stated that
the Special Area Development Authority under that Act would, for
the purpose of taxation, have the powers which a Municipal
Corporation or a Municipal Council has under the M.P. Municipal
Corporation Act, 1956 or the M.P. Municipalities Act, 1961, as the
case may be. Chandrachud, C.J. gave two reasons as to why the
subsequent amendments made in the 1956 and 1961 Acts could be
read into the 1973 Act. One reason was that the Act of 1973 did
not, in Section 69(d), incorporate any particular provision of the
1956 and 1961 Acts but said that for the “purposes of taxation” the
Authority shall have the powers which a Municipal Corporation or a
Municipal Council would have under the 1956 and 1961 Acts
respectively. It was not therefore a case where merely some
provisions of one Act were bodily lifted into another. The other
reason was that the 1973 Act did not provide for any independent
power of taxation or any machinery of its own for the exercise of the
power of taxation. Further, the three Acts were supplemental to
each other.”

20. The petitioners next relied upon in the case of Girnar Traders (3) Vs. State

of Maharashtra and Ors. reported in (2011) 3 SCC 1. In the said decision the

Hon’ble Supreme Court was considering as to whether the provisions of Section 11-

A of the L.A. Act of 1894 was applicable to attract in the Maharashtra Regional and

Town Planning Act 1966 i.e. Section 125-129. The 5-Judge Bench of the Supreme

Court has held that both the Town Planning Act of 1966 and the L.A. Act of 1984

were complete and self-content codes and the provisions of the 1894 Act

incorporated in the 1966 Maharashtra Act were not by reference but by

incorporation and hence the Section 11-A brought by amendment in the year 1984

was not applicable to the Maharashtra Act of 1966. It was, therefore, held that
14

proceedings initiated under the Maharashtra Act 1966 would not lapse by reason of

Section 11-A of the 1894 Act. At Paragraph 77, the Hon’ble Supreme Court has

stated as follows:

48. The various provisions, which we have indicated above, clearly
demonstrate a self-contained scheme under the MRTP Act. Section 116
of the MRTP Act is one other provision which refers to the provisions of
the Land Acquisition Act and states that a Development Authority
constituted under Section 113(2) of the MRTP Act is vested with the
powers of a Planning Authority under Chapter VII of this Act for the
purposes of acquisition either by agreement or under the Land
Acquisition Act.

49. Reference to the provisions of the Land Acquisition Act in some of
the provisions of the MRTP Act could only imply that they have solely
been made for the purpose of completing the process of acquisition. Most
of the provisions of the Land Acquisition Act, with alteration in the
language, have been specifically stated under the provisions of the MRTP
Act itself. Sections 126 to 129 of the State Act clearly enunciate the
intention of the framers that substantive provisions of the Land
Acquisition Act are not applicable to the MRTP Act, which is a self-
contained code providing procedure regarding all matters contained
therein, except to the extent that provisions of Sections 9 to 11 of the
Land Acquisition Act be brought into it for the limited purpose of
acquiring land.

50. Once the provisions of the MRTP Act are analysed in their correct
perspective, a holistic view can be taken that it is a code in itself. It is a
legislation which has the paramount purpose only of planning; and
acquisition of land is merely incidental, that too for a very limited
purpose. The object of the MRTP Act is to specify and provide for
development plans at the macro as well as micro level. While providing
for larger concepts of development as contemplated under the regional
plan as well as reservations under the development plan, provision for
development at the most minute level i.e. a small township as a part of
region has also been provided.

51. The primary object of the State Act is planned development.
Acquisition of land takes place only where the land is reserved,
designated or required for complete development in the view of the
planning, development or appropriate authority. Complete mechanism as
to how the development plans shall be prepared, notified and
implemented as well as how the land is to be acquired, and how the
rights and disputes inter se parties as well as between the Planning
Authorities and the owners will be settled are provided under different
provisions of this Act. In other words, it is explicitly clear that a complete
mechanism of planning, implementation, adjudicatory process in that
regard as well as the methodology adopted for acquiring lands, in its
limited sense, inclusive of change in the use, for public purpose, for
15

which the land is required have been specifically provided under the
MRTP Act. The State Act is hardly dependent upon the Land Acquisition
Act except to the limited extent of completing the process of determining
compensation, other than the compensation determinable by the
designated arbitrator or tribunal.

53. Under Section 83 of the MRTP Act, the lands can be vested in the
authority concerned at different stages right from the commencement of
preparation/approval of draft plan to the final plans and their execution
under the provisions of the Act. Like Section 83 of the MRTP Act,
Sections 116 and 128(3) of the State Act can be enforced by the Planning
Authorities with an object to achieve planned development and as part of
planning under the Act.

68. The schemes under the two Acts are distinct and different. The
scheme under the State Act can be implemented with recourse to the
provisions of the Central Act which have been specifically stated therein.
At the same time where there are specific provisions under the State Act
the corresponding provisions of the Central Act will not apply. The
provisions of the Land Acquisition Act relating to the acquisition of land
alone, for which there are no specific provisions under the State Act,
would be applicable to the acquisition under the State Act. This view was
also taken by a three-Judge Bench of this Court in a very recent
judgment in Bondu Ramaswamy v. Bangalore Development
Authority [(2010) 7 SCC 129 : (2010) 3 SCC (Civ) 1] .

69. For an Act to be a “self-contained code”, it is required to be shown
that it is a complete legislation for the purpose for which it is enacted.
The provisions of the MRTP Act relate to preparation, submission and
sanction of approval of different plans by the authorities concerned
which are aimed at achieving the object of planned development in
contradistinction to haphazard development. An owner/person
interested in the land and who wishes to object to the plans at the
appropriate stage a self-contained adjudicatory machinery has been spelt
out in the MRTP Act. Even the remedy of appeal is available under the
MRTP Act with a complete chapter being devoted to acquisition of land
for the planned development. Providing adjudicatory mechanism is one
of the most important facets of deciding whether a particular statute is a
“complete code” in itself or not.

22. The Honble Supreme Court thereafter went on to hold that even under

legislations by reference there may be two categories. It was held that while

applying the two doctrines the Court must see whether the subsequent amendment
16

to the former legislations would still have to see if the reading into the subsequent

amendment would militate with the object of the subsequent legislation.

135. While applying any of the doctrines, the Court will have to take care
that there is no distortion or destruction of the provisions of the principal
statute. For examining this aspect, it really would not matter whether we
apply the doctrine of incorporation or reference to the facts of the present
case. It will have to be examined on the touchstone of effective and
complete workability while protecting legislative intent. Primarily, we have
to examine whether incorporating provisions of Section 11-A of the Land
Acquisition Act into the provisions of the MRTP Act by reference would
disturb the scheme of the MRTP Act and cause legal and practical
impediments in the execution of this Act.

“77. Now, we may, while referring to an example, show when a
statute may not be treated as a self-contained code.

In Mariyappa v. State of Karnataka [(1998) 3 SCC 276] , a Bench of
this Court was concerned with the Karnataka Acquisition of Land
for Grant of House Sites Act, 1972 (in short “the Karnataka Act”)
which was an Act of only seven sections and Section 5 of which
provided that provisions of the Land Acquisition Act shall mutatis
mutandis apply. The Court, in SCC para 37 of the judgment, stated
that there being no detailed machinery whatsoever in the
Karnataka Act, it cannot be treated as a self-contained code. This
clearly shows that if complete machinery or mechanism is not
provided under an Act to ensure effective execution of the functions
assigned therein with due protection of the rights of the interested
persons within the framework of law, it may not be possible for the
court to hold that such a statute is a self-contained code.”

23. The Learned Advocate General appearing for the State by reference to the

provisions of Section 8 of the 1948 Act relied upon the decision of the Supreme

Court in Government of Tamil Nadu and Ors. Vs. S. Balasubramanian and

Ors. reported in (1995) 6 SCC 642. In the said decision the Hon’ble Supreme

Court at Paragraph 12 has stated as follows:

“12. We may in this context point out that in law a distinction is
drawn between a mere reference or citation of a statute into
another and incorporation of a particular provision of a statute.
While in the former case a modification, repeal or re-enactment of
the statute that is referred will also have effect for the statute in
which it is referred, but in the latter case any change in the
incorporated statute by way of amendment or repeal has no
repercussion on the incorporating statute. [See : Collector of
17

Customs v. Nathella Sampathu Chetty [(1962) 3 SCR 786 : AIR 1962
SC 316 : (1962) 1 Cri LJ 364] (SCR at p. 831); G.P. Singh, Principles
of Statutory Interpretation, 4th Edn., pp. 178-179.] The provisions of
Rule 6 of the Special Rules, as they stood prior to the impugned
amendment, applied the rule of reservation in the matter of
appointments as contained in Rule 22 of the General Rules, to
appointment to the post of Deputy Tahsildar in each district. The
said Rule 6 only referred to the provisions contained in Rule 22 of
the General Rules and it cannot be construed as incorporating by
reference Rule 22 of the General Rules into the said Special Rule.
This means that a subsequent amendment in Rule 22 of the
General Rules would be applicable in the matter of appointment to
the category of Deputy Tahsildar under the Special Rules and the
amendments that were introduced in Rule 22 of the General Rules
in 1967 and thereafter were applicable in the matter of such
appointments. It was not necessary to make an amendment in Rule
6 of the Special Rules to incorporate the amendment that was
introduced in Rule 22 of the General Rules in 1967. Moreover, the
principle that where a subsequent enactment incorporates the
provisions of a previous enactment, then the borrowed provisions
become an integral and independent part of the subsequent
enactment and are totally unaffected by any repeal or amendment
in the previous enactment is subject to certain exceptions. One
such exception excluding the applicability of this principle is where
the subsequent Act and the previous Act are supplemental to each
other. [See : State of M.P. v. M.V. Narasimhan [(1975) 2 SCC 377 :
1975 SCC (Cri) 589 : (1976) 1 SCR 6] (SCR at p. 14)]”

24. What follows from the above discussions is that there is no straight jacket

formula to determine as to whether subsequent amendment to a former Act

when the said former Act has been included to apply to a latter Act would be

automatically be incorporated in the said latter Act. Some of the principles that

would help determine the above is the doctrine of Legislation by Incorporation

Vs. the Doctrine of Legislation by Reference. While in the case of Legislation by

Incorporation the repeal, extinguishment or amendment to the amendment of

the former legislation would not have any effect or bearing on the subsequent

legislation, in case of legislation by Reference the subsequent Act would attract

the provisions of the amendment, repeal, substitution or extinguishment of the

former legislation. The cases which are an exception to the rule of incorporation

are
18

(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.”

e) where given the objects of the purpose of the subsequent legislation
the amendment to the former would serve to further the said objects
and purpose of the subsequent legislation. Narasimhan Case
(Supra).

f) Where the Subsequent legislation is not a complete code. Western
Coalfields Case (Supra).

g) Where the subsequent legislation does not have substantive
provisions like Taxation as in the former Act Mariappa Case (Supra).

25. Let us now analyse the provisions of the West Bengal Land Development and

Planning Act of 1948.

i) Under Section 2a of the 1948 Act the definition of Land, Collector and

Company have the same definition as in the 1894 Act.

ii) Publication of Gazette Notification is prescribed under the Section 4 of 1948

Act as in Section 4 of 1894 Act.

iii) Invitation of Objections by collector is provided under Section 4A of the 1948

Act as in Section 5A of the 1894 Act.

19

iv) Publication of Scheme for Development is under Section 5 of the 1948 Act as

in Section 6 of the 1894 Act.

v) Declaration of Scheme for Public Purpose is under Section 6 of the 1948 Act,

vi) Special provisions for urgency/ fast track procedure are in Section 7 of the

1948 Act as under Section 17 of the 1894 Act.

vii) Possession can be taken by the authorised officer under Section 8(1)(a)

at any time after publication of declaration u/s 6. The provisions for taking

possession are available under Section 16 of the 1894 Act. Vesting takes

place immediately thereafter under both the Acts.

26. Hence it is seen that the 1948 Act is a complete Code and the facts of instant

case bear a striking similarity with the Girnar Traders Case (Supra). The said

decision of the Constitution Bench squarely applies in the instant case. The 1948

Act is Complete Code in itself. The reference to the provisions of the 1894 Act is

only to fill in gaps in the 1948 Act. The two acts are not supplemental to each other

and but may be Pari Materia. The objects and purpose of the said Act are special

and made for a specific purpose. Section 11A introduced by amendment in the year

1984 is not necessary for the achievement of the objects and purposes of the 1948

Act. The State Legislature has not specifically or by implication incorporated the

Section 11A of the 1894 Act into the 1948 Act. The repeal of the 1894 Act therefore

would not have any effect or bearing on the 1948 Act which is still in force. Hence

this Court is of the view that the acquisition proceedings under LD case No.55 of

1954-55 are not hit by the mischief of the Section 11A of the 1894 Act.

27. There is however one very important consideration. The petitioners have relied

upon the decision of the Hon’ble Supreme Court in the case of State of West

Bengal Vs Aziman Bibi reported in (2016) 15 SCC Pg 710. In the said decision
20

that was rendered in the specific context of the 1948 Act and the 1894 in a similar

case of lapsing of proceedings under the 1948 Act by application of Section 11A of

the 1894 Act. The Hon’ble Supreme Court held that the Acquisition proceedings in

the said case under the 1948 Act had lapsed by reason of application of Section 11A

of the amended 1894 Act. It, however, appears that none of the judgements referred

to hereinabove particularly the Constitution bench Decision in the case of Girnar

Traders (Supra) have been placed or argued by the parties and the Hon’ble

Supreme Court has thus not addressed the questions addressed herein. It is

submitted by the State that an application for Review has been filed in the Aziman

Bibi Case (Supra). It is also submitted by Ld. Advocate General that the disposal of

the Review was not consented to by the State.

28. This Court is not concerned with the Review application or its disposal by

consent. This Court is only notes that the Aziman Bibi decision (Supra) has not

been upset by the Supreme Court till date and is binding on this Court. Hence, in

view of the Aziman Bibi decision (Supra) it is held that the acquisition proceedings

in LDP Case No. 55 of 1954 -55 have lapsed.

29. There shall be no order as to costs

30. Urgent Photostat Certified copy be given to the parties after compliance with the

usual formalities.

(Rajasekhar Mantha, J.)

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