# GAURI SHANKAR GAUR AND ORS. ETC v. STATE OF U.P. AND ORS

- **Citation:** [1993] Supp. 1 S.C.R. 667
- **Court:** Supreme Court of India
- **Decided:** 1993-08-12
- **Case number:** Civil Appeal No. 965 of 1979
- **Bench:** K. Ramaswamy, R.M. Saha!
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gauri-shankar-gaur-and-ors-etc-v-state-of-u-p-and-ors-11983
- **Pages:** 45

## Headnote

B
U.P. Avas Evam Vikas Parishdd Adhiniyam, 1963:
Sections 23, 32 and 5~Schedule-Acquisition of land for Housing
Scheme-Notifications for-Limitation of period prescribed under first C
proviso to S.6(1) of Land Acquisition Act, 1894--Applicability of
Land Acquisition Ac!, 1894:
First provis'a to s.6(1)-Applicability to Acquisitions Proceedings under
Sections 28 and 32 of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965.
D
Constitution of India, 1950:
Articles 245, 254(2)-Provi.,o-'-Seventh Schedule-State List-Entries
5, 6 and 66 Concu"ent List:-Entry 42-Repugnancy between State Law and
Central Law-Unless State Law is fully inconsistent and absolutely irreconE
cilable it would not be co"ect to co71clude that repugnancy renders the State
Law void.
U.P. Avas Evam Vikas Pailshad Adhiniyam, 1965 co-exist independently without colliding with Land Acquisition Act, 1894--Section 55 and
Schedule of the 1965 Adhiniyam held not void.
F
Doctrine of Occupied field-t.Applicability of Doctrine on Pith and
Substance-Applicability of
Articles 32 and 136.
Special .Leave Petition-Grant of leave confined to one point-Writ
Petition filed subsequent to grant of leave-Tagging of-Same point involved
in writ and appeals-Additional points raised in Writ Petitions-Power an.1
duty of Court to decide.
Article 142 ( 1)
667
G
H
668
SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R.
A
Supreme Court-Power to mould and restrict relief to parties.
B
Interpretation of Statutes.
Legislative intent-Dury of Court to give effect to-No provision of
statute should be rendered otiose.
Statute-Legislation by Incorporation and Legislation by Referenc~Distinction between and effect of
Judicial Propriety and Comity:
C
Bench hearing Appeals-Duty to respect order of earlier Bench granting
D
leave.
The U.P. Avas and Vikas Parishad published Notilications in the
Gazette on September 8, 15 and 22 of 1973 under section 28(1) of the Avi.s
Vikas Parishad Adhiniyam, 1965 proposing to ac<1uire 14 Acres of Land
for a housing schen1e. Notices inviting objections under section 29 were
served on the appellants ou September 20, 1973 and the objections were
filed on October 28, 1973. The Committee after hearing objections rejected
the same and recommended to the Governn1ent to approve the scheme.
The Government approved the scheme only to the extent of 11 acres 27
E
~ents and a Notification under section 32(1) was published in the Gazette
on. August 27, 1977. Appeal preferred under section 32(2) before the
Government was rejected. Thereafter the Housing Board issued Notices on
: February 1, 1979 under section 9 of the Land Acquisition Act, 1894 to take
possession of the lands on expiry of 15 days thereafter.
F
The appellant unsuccessfully challenged the acquisition proceedings
before the High Court. Against the decision of High Court Special Leave
Petition was preferred to this Court and while granting leave this Court
restricted the appeal to the question whether the Limitation period of three
years prescribed under first Proviso to Section 6 of the Land Acquisition
G Act, 1894 would apply to Notilication under Sections 32(i) and 28 (i) of the
U.P. Avas Vikas Parishad Adhiniyam, 1965. In the connected writ petitions
and appeals which were filed subsequently similar question arose for
consideration.
For the appellants it was contended (i) that the 1965 Act adapted the
H Land Ac<1uisition Act by reference and that, therefore, the first proviso to
-
G.S.GAUR v.STATEOFU.P.
669
Section 6 as amended by Act 13 of 1967 gets attracted. J)eclaration under A
Section 6 vis-a-vis notification under Section 32(1) not having been published within three years from the date of the publication of the notification
under Section 28(1) of the Act (Section 4(1) of the Land Acquisition Act)
the notifications under ss.28(1) and 32(1) became void ab initio and the
authorities were devoid of jurisdiction to proceed further; (ii) Section 55
of the 1965 Act and the Schedule must be so read as to apply Section 6 as
amended· fr

## Text

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GAURI SHANKAR GAUR AND ORS. ETC.
A
v.
STATE OF U.P. AND ORS.
AUGUST 12, 1993
[K. RAMASWAMY AND R.M. SAHA!, JJ.]
B
U.P. Avas Evam Vikas Parishdd Adhiniyam, 1963:
Sections 23, 32 and 5~Schedule-Acquisition of land for Housing
Scheme-Notifications for-Limitation of period prescribed under first C
proviso to S.6(1) of Land Acquisition Act, 1894--Applicability of
Land Acquisition Ac!, 1894:
First provis'a to s.6(1)-Applicability to Acquisitions Proceedings under
Sections 28 and 32 of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965.
D
Constitution of India, 1950:
Articles 245, 254(2)-Provi.,o-'-Seventh Schedule-State List-Entries
5, 6 and 66 Concu"ent List:-Entry 42-Repugnancy between State Law and
Central Law-Unless State Law is fully inconsistent and absolutely irreconE
cilable it would not be co"ect to co71clude that repugnancy renders the State
Law void.
U.P. Avas Evam Vikas Pailshad Adhiniyam, 1965 co-exist independently without colliding with Land Acquisition Act, 1894--Section 55 and
Schedule of the 1965 Adhiniyam held not void.
F
Doctrine of Occupied field-t.Applicability of Doctrine on Pith and
Substance-Applicability of
Articles 32 and 136.
Special .Leave Petition-Grant of leave confined to one point-Writ
Petition filed subsequent to grant of leave-Tagging of-Same point involved
in writ and appeals-Additional points raised in Writ Petitions-Power an.1
duty of Court to decide.
Article 142 ( 1)
667
G
H
668
SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R.
A
Supreme Court-Power to mould and restrict relief to parties.
B
Interpretation of Statutes.
Legislative intent-Dury of Court to give effect to-No provision of
statute should be rendered otiose.
Statute-Legislation by Incorporation and Legislation by Referenc~Distinction between and effect of
Judicial Propriety and Comity:
C
Bench hearing Appeals-Duty to respect order of earlier Bench granting
D
leave.
The U.P. Avas and Vikas Parishad published Notilications in the
Gazette on September 8, 15 and 22 of 1973 under section 28(1) of the Avi.s
Vikas Parishad Adhiniyam, 1965 proposing to ac<1uire 14 Acres of Land
for a housing schen1e. Notices inviting objections under section 29 were
served on the appellants ou September 20, 1973 and the objections were
filed on October 28, 1973. The Committee after hearing objections rejected
the same and recommended to the Governn1ent to approve the scheme.
The Government approved the scheme only to the extent of 11 acres 27
E
~ents and a Notification under section 32(1) was published in the Gazette
on. August 27, 1977. Appeal preferred under section 32(2) before the
Government was rejected. Thereafter the Housing Board issued Notices on
: February 1, 1979 under section 9 of the Land Acquisition Act, 1894 to take
possession of the lands on expiry of 15 days thereafter.
F
The appellant unsuccessfully challenged the acquisition proceedings
before the High Court. Against the decision of High Court Special Leave
Petition was preferred to this Court and while granting leave this Court
restricted the appeal to the question whether the Limitation period of three
years prescribed under first Proviso to Section 6 of the Land Acquisition
G Act, 1894 would apply to Notilication under Sections 32(i) and 28 (i) of the
U.P. Avas Vikas Parishad Adhiniyam, 1965. In the connected writ petitions
and appeals which were filed subsequently similar question arose for
consideration.
For the appellants it was contended (i) that the 1965 Act adapted the
H Land Ac<1uisition Act by reference and that, therefore, the first proviso to
-
G.S.GAUR v.STATEOFU.P.
669
Section 6 as amended by Act 13 of 1967 gets attracted. J)eclaration under A
Section 6 vis-a-vis notification under Section 32(1) not having been published within three years from the date of the publication of the notification
under Section 28(1) of the Act (Section 4(1) of the Land Acquisition Act)
the notifications under ss.28(1) and 32(1) became void ab initio and the
authorities were devoid of jurisdiction to proceed further; (ii) Section 55
of the 1965 Act and the Schedule must be so read as to apply Section 6 as
amended· from time to time and shall be applicable to the proceedings
taken under Sections 28 and 32 of the 1965 Act; and (iii) by operation of
proviso to Article 254(2) of the Constitution, Section 55 and the Schedule
of the 1965 Act became inconsistent with the first proviso to Section 6(1)
B
of the Land Acquisition Act; the Amendment Act of 1967 and 1984 brought C
on statute the first and second provisos into section 6(1) of the Land
Acquisition Act. The Act being earlier, Section 55 and Schedule became
void, the first proviso to Section 6(1) of the Land Acquisition Act would
be applied and the declarations made beyond three years became void and
inoperative.
D
Disposing of the cases, this Court
HELD: (BY THE COURT)
The Civil Appeals and Writ Petitions are dismissed. But the appellants and petitioners sball be paid compensation on the market rate E
prevalent in the year the declarations analogous to Section 6 of the Land
Acquisition Act, 1894 were issued.
(Per K. Ramaswamy,!.)
1. The limitation of three years prescribed under the first proviso to
F
Section 6 of the Land Acquisition Act, 1894 is not attracted in its application to the State of U.P. vis-a- vis the procedure prescribed in paragraph
2 of the schedule to the U.P. Avas Vikas Parishad Adhiniyam, read with
Section 55 of the Adhiniyam. [702-A]
Kadim Hussain v. State of U.P, AIR (1973) All 132; Riazuddin v. State
of U.P., AIR (1973) All. 240; Satish Kumar Agarwal & Ors. v. State of U.P.
& Ors., Civil Misc. Writ No. 1966 of 1979 decided on 6.7.79 by Allahabad
High Court; Gawi Shankar v. State of U.P., W.P No.1247/76 decided on 13.
G
2.81 by Allahabad High Court; Doctors' Grih Nirman Samiti Ltd. v. Avas
Evam Vikas Parishad, AIR (1984) All. 234; Abdul Wahab & Ors. v. State of H
670
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A
U.P:, W.P. No. 37/87 decided. on 9.8.88 by Allahabad High Court and
Bhaiinda Improvement Tntst v. Ba/want Singh & Ors., (1991] 4 SCC 368,
referred to.
,,.
2. Sections 28 and 32 of the U.P. Avas Evam, Vikas Parishad Ad·
hiniyam, 1965 operate in their own sphere within the time specified thereB under as separate and complete code, while Section 4(1) and Section 6 of
the Land Acquisition Act, mandate to follow the procedure prescribed
thereunder within the period of limitation provided therein as general law.
[684-EJ
3. In case of legislation by incorporation, incorporated provisions
C would become part and parcel of the later fresh statute as if it is written
by pen in ink or printed bodily therein as part of the later statute and
became an integral scheme of that Act. The legislature while incorporating
them did not intend to speculate that any subsequent amendment to
previous Act or its repeal would alter the textufe of thr later Act unless
D the previous Act is supplemental to the later Act or both are in pmi matoia
in which case it would render the later Act wholly unworkable and ineffectual or by necessary intendment applies it. [691-E-F]
4. In case of legislation by incorporation the former Act becomes an
integral part and parcel of the later Act, as if it was written with ink and
E printed in the later Act. Its validity including the provisions incorporated
thereunder would be judged with reference to the power of the legislature
enacting the later Act. It is not by reference. Logically when provisions in
the former Act are repealed or amended, they do not, unless expressly
made applicable to the subsequent Act, be deemed to be incorporated in
F
it. The later act is totally unaffected by any amendment or repeal. It would
be subject to the enumerated exceptions. The statute being distinct and
different each is to be judged with reference to its own source that emerges
from its scheme, language employed and the purpose it seeks to achieve.
(696-A-C]
Clarke v. Brad/augh, (1881) 8 QBD 63; In re Wood's Estate, (1886) 31
G Ch.D 607; Secretmy of State v. Hindustan Coop. Insurance Society Ltd., 58
Indian Appeals 259 =AIR (1931) P.C. l49; Ram Swantp v. Munshi & Ors.,
(1963] 3 SCR 875; State of Madhya Pradesh v. M. V. Narasimhan, [1976] I
SCR 6; State of K~rala v. Mis. Attessee (AIT C01poration), AIR (1989) SC
222 andMahendra ,~ Mahendra Ltd. v. Union of India &Anr.; (1979] 2 SCR
H 1038, referred to.
•
G.S.GAUR v.STATEOFU.P.
671
5. If a later Act merely makes a reference to the earlier Act or existing A
law, it is only by way of reference and an· amendments repeals, new 'I.aw
subsequently made \\ill have efl'ect unJess its operation is saved by S!!ctioi1
8(1) of the General Clauses Act or is void under Article 254 ot' the
Constitution. [696-D]
Collector of Customs, Madras v. Nathalia Sampathu Cheey & Anr.,
[1962] 3 SCR 786; New Central Jute Mills Co. Ltd. v. Asstt. Collector of
Central Excise, Allahabad & 01:1·., [1971] 2 SCR 92; Rajaya v. Gopikabai &
Anr., [1978] 2 SCC 542; UjagarP1ints& Ors. v. Union of India & Ors., [1989]
3 SCC 488; Dr. Pratap Singh & Oh. v. Director of Enforcement, FERA &
Ors., [1985] 3 SCC 72; Westem Coalfields Ltd. v. Special Area Developmel!t
Authority, Korba & Anr., [1982] 2 SCR 1; Klishna Chandra Gangopadhyaya
v. Union of India, [1988] 1 SCC 356, Rajnath Kedia v. State of Bihar, AIR
(1975) SC 1389 and Bangalore Jute Factory Co. v. Inspector of Central Etcise,
[1992] 1 sec 401, referred to.
B
c
Kallfhimathy Plantation Pvt. Ltd. v. State of Kera/a & 01>·., [1989] 4 D
SCC 650; P. Vajravelu Mudarliarv. Sp/. Dy. Co/lect01; Madras &Anr., [1965]
1 SCR 614 and Om Prakash v. Union of India, [1968] 1 SCC 356, held
inapplicable.
6. Section 55 of the U.P. Avas and Vikas parishad Adhiniyam, 1965 E
read with the Schedule made an express inoperation of the provision ol'
Section 4(1) and Section 6 as modified and incorporated in the Schedule.
The Schedule effected necessary structural amendments to Sections 4, 6,
17 and 23 incorporating therein the procedure and principles with neces·
sary modifications. Sections 28(2) and 32(1) prescribed procedure for
publication of the notifications under Sections 28(1} and 32(1) of the Act F
without prescribing any limitation. The Act of 1965 is a complete code in
itself. The Act is not wholly unworkable or ineffectual though may be
incompatible with provisos to Section 6(1) of the Land Acquisition Act.
The U.P. Legislature did not visualise that later amendment to Central Act
1/1984 i.e. Land Acc1uisition Act would be automatically extended. ThereG
fore, Section 55 and the schedule adopted only by incorporation of Sections
4(1) and 6(1) and the subsequent amendments to Section did not become
part of the Act and they have no effect on the 01ieration of the provisions
of the Act. [696·E·F]
7. There is no force in the contention that Section 55 and the H
672
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A schedule must be so read as tu apply Section 6 as amended from time tu
time and shall be applicable to the proceedings taken under Sections 28
and 32 of the Act. By Statutory interpretation the court has no power to
add words or interpret the words "as amended from time to time".
[696-G, 697-F]
B
Yuri Mam v. 77ie Woron, (1927) Appeal Cases 906, referred to.
8. It is fallacuous to contend that Section 2 of U.P. Amendment Act
28 of 1972 amended Section 6 of the Land Acquisition Act retrospectively
and validated the invalid declaration under first proviso to Section 6(1) of
C the Land Acquisition Act and by necessary implication the U.P. Legislature
extended the first proviso to Section 6(1) to the acquisition under the Act,
otherwise the State Amendment Act would be rendered otiose. Therefore,
the first proviso to Section 6(1) and Sub Section (2) as amended by the
U.P. Legislature should be harmoniously interpreted to apply first proviso
to all the acquisition under the Act. Different local Acts applied the
D provisions of the Land Acquisition Act, with different language. In U.P.
Urban Land Planning and Development Act, 1973, Section 17 thereof
adopted by reference the Land Acquisition Act, 1894 for acquisition of the
land under that Act. It adopted not by incorporation therein. The declaration under Section 6 was made beyond the period 3 years. So to validate
E those acquisitions, Amendment Act came to be made. [697-H; 698-A]
9. Even it .the law be invalid law, its incorporation becomes valid
provided the legislature has competence to made the Law. It is not in
dispute that the U.P. Legislature has legislative competence to make the
Act. Instead of enacting separately, a separate procedure with necessary
F modifications under Section 55 and the schedule applied the procedure
provided under Sections 4 and 6 of the Land Acquisition Act with modifications enacted thereunder. Since the Act is not an Act to acquire the land,
the question of inconsistency does not arise and the proviso to Article
254(2) is not attracted. [699-C·D]
G
\H
Land Acquisition Officer, City Improvement T111st Board v. H.
Narayanaiah etc. etc., [1977] 1 SCR 178; Special Land Acquisition Officer
City Improvement Trust Board, Mysore v. P. Govindan, [1977] 1 SCR 549;
Farid Ahamed Abdul Samnad & Anr. v. Municipal Corpn. of the City of
Ahmedabad & Anr., AIR (1976) SC 2095 and Boiani Ore. Ltd. v. State of
Orissa, [1975] 2 SCR 138, referred to.
G.S. GAUR.v. STATE OF U.P.
673
10. The Parliament may not expressly repeal the State Law and may A
by necessary implication the State Law Stands repealed to the extent of
the repugnancy, as soon as the subsequent law of the Parliament creating
repugnancy is made. Such repugnancy may also arise where both the laws
are operating in the same field and they cannot possibly stand together.
(700-BJ
B
11. The U.P. Avas and Vikas Parishad Adhiniyam, 1965 was made
under Entry 6, Entry 5 and Entry 66 of the State list and incidentally it
took recourse to Entry 42 of the Concurrent List. Presumptive evidence
furnishes that the State Legislature would be aware of the Central law and
appreciated the local needs and the remedy is provided for and would C
make the law. Every endeavour should be made to allow both the laws to
operate in their respective field. Unless State Law is fully inconsistent and
absolutely irreconcilable it would not be correct to condude the repugnancy renders the State Law void. Since the main purpose of the Act is not
the acquisition of the property as the provisions do indicate in pith and
substance they do not occupy the same field. It is not fully inconsistent and D
is not absolutely irreconcilable. Both do co-exist in relation to the procedure prescribed under the Acts. The Act does co-exist independently
without in any way colliding with the Land Acquisition Act. Therefore,
Section 55 and the Schedule did not become void. (701-E-G)
Mithan Lal v. State of Delhi, AIR (1958) SC 682; Zaverbhai Amaidas
v. 1he State of Bombay, (1955) 1 SCR 799; M. Kanmanidhi v. Union of
India, [1979) 3 SCR 254 and T. Barai v. Remy Ah Hee and Anr., [1983) 1
SCR 905, referred to.
E
12. It is settled law that the court would make every endeavour to
F
give effect to the legislative intent, allowing full play of its operation· by
harmonious construction and no part of the provision of the statute would
be rendered surplus or otiose. In construing a statute equity will not relieve
against a public statute of general policy in cases admitted to fall within
the statnte and it is the duty of the Court to give effect to the legislative G
intent. (686-C; 687-D)
Brandling v. Barrington, (1927) 6 B & C 467, referred to.
Intel]Jretation of Statute, Maxwell 12th Edn. page 236 and Craies on
Statute Law, 7th Edn. Page 101, referred to.
H ·
. 674
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A
13. When the jurisdiction of the this court was invoked under Article
32, this court though would normally deal with the points which arose for
decision but writ petitions were admitted after the leave was granted and
tagged them to the main case. Generally, if not invariably, it is desirable
to maintain uniformity at the hearing of the point on which leave was
B granted and any other point would not be permitted to be canvassed unless
the point touches the jurisdiction or constitutional validity of the offending
provisions. Exceptions should not become the rule and permitting to
reopen several points which this court did not consider lit to be canvassed,
would create uncertainty and inconsistency and would become a gamble
and exceptions become the rule. To maintain this concomitant comity and
C certainty court declined to permit counsel for the appellants or writ
petitioners to raise other points for adjudication. (681-F-G]
(Per Sahai, !.)-(partly dissenting)
D
1. Adopting or applying an earlier or existing Act by a competent
Legislature to a latter Act is an accepted device of legislation. If the
adopting Act refers to certain provisions in an earlier existing Act it is
known as Legislation by reference. Whereas if the provisions of another
act are bodily lifted and incorporated in the Act then it is known as
legislation by incorporation. Legal meaning of these expressions, therefore,
E is no different than the literal meaning. But the consequences o( their
application are far reaching. When an earlier Act is referred in a later act
then any subsequent amendment, addition or alteration in the earlier Act,
automatically becomes a part of it even for purpose of the later Act. But
in a legislation by incorporation since the entire provision either wholly or
F partly stands bodily engrafted, therefore, it stands frozen on the date of
incorporation and remains unaffected by any subsequent or future amendment. When an Act is wholly or partly referred in another Act it has to be
applied or acted upon in the form it exists. The natural consequence that
flows from it is that any amendment or alteration in the adopted Act
becomes operative even in the statute in which it is referred. (702-D-F, G]
G
2. A legislation by incorporation is to write sections into the new Act
as if they had been actually written in it with pen or printed in it. Repeal
of the provision of the earlier Act adopted or any amendment or alteration
in it can have no effect on its operation in the adopting Act as having
H become part of the news statute it r~mains untouched by what happens in
G.S. GAUR v. STATE OFU.P.
675
the parent Act. One of the reasons to resort to such method of legislation A
is to ensure uniformity. When such method of legislation is resorted to the
legislature prefers to accept the interpretation and understanding of such
an expression as given by the courts in respect of it in the earlier Act.
Legislation by incorporation brings into effect a new and independent
legislation which remains unaffected by any change, or alteration or B
amendment in the earlier Act, because the legislature, which adopts by
incorporation the existing provisions of another law, cannot be assumed
to intend to bind itself to all future amendments or modifications which
may be made in the earlier law. (703-D; 704-A-B]
Madendra.and Mahendra Ltd. v. Union of India & Anr., AIR (1979) C
SC 798; State of Madhya Pradesh v. M. V. Narasimhan, (1976] l SCR 6; Smt.
Ujjain Bai y. State of Uttar Pradesh, [1963] 1 SCR 778; Boiani Ores Ltd. v.
State of 01issa, (1975] 2 SCR 138; Westem Coal-fields Ltd. v. Special Area
Development Authmity, Ko1i1a & Anr., (1982] 2 SCR 1; Secretaiy of State v.
fiindustan Coop. Insurance Society Ltd., AIR (1931) PC 149; Farid Ahmed D
Abdul Samad & Anr. v. T7ie Municipal C01poration of the City of Ahmedabad
& Anr., AIR (1976) SC 2095; Special Land Acquisition Officer City Improvement Trnst Board, Mysore v. P. Govindan, [1977] 1 SCR 549; State of Kera/a
v. Mis. Attessee, [1989] Suppl. 1 SCC 733; Bajaya v. Gopikabai & A11r.
[1978] 2 SCC 542; M/s. Bangalore Jute Facto1y Co. & Ors. v. Inspector of
Central Excise & 01>., (1992] 1 SCC 401; Bhatinda Improvement Trnst v. E
Ba/want Singh & 01>., (1991] 4 SCC 368; Re Wood's Estate Ex. parte, Works
and Buildings Commrs. , (1886) 31 Ch. D 607; Clarke v. Bradilaugh, [1881]
8. QBD 63 and Sutherland, Statut01y Constntction; Corpus Juris Secundum,
referred to.
F
3. The determination whether a legislation was by way of incorporation or reference is more a matter of construction by the courts keeping
in view the language employed by the Act, the purpose of referring or
incorporating provisions of an existing Act and the effect of it on the day
to day working. Reason for it is the courts' prime duty to assume that any
law made by the Legislature is enacted to serve public interest. (706-B]
G
4. The language of Section 55 of the U.P.Avas Evam Vikas Parishad
Adhiniyam, 1965 indicates that the legislature intended to take proceedings for acquisition of land under the Land Acquisition Act except to the
extent it has been amended by the Schedule. The notices issued under the H
676
SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.
A Act under different sections mentioned in it shall be substituted in place
of Sections 4 and 6 of the Land Acquisition Act. It is not bringing into ··
effect a new legislation nor transposing provisions of Land Acquisition Act
to the Avas Vikas Act by applying the Land Acquisition Act as modified to
proceedings under the Act. [706-G; 707-B]
B
5. Language of section 55, apart, the courts have a duty to construe
the provisions of a statute to advance the cause of justice and facilitate the
day to day working of the statute to serve the public interest and achieve
the objective of social betterment. Motivated by such principles the rigour
of legislation by incorporation has been mitigated by carving out excepC !ions to it. One of such situations where legislation by incorporation has
been excluded is if it would create difficulty in day to day working. In our
constitutional set up it can be extended further and the courts should lean
against a construction which may result in discrimination. Suppose adjoining lands are acquired one by the State Government for constructing
D a road or canal or bridge and other by the Avas Vikas Parishad for
constructing a building in public interest. The acquisition proceedings in
either case is taken under the Land Acquisition Act. In one it is Land
Acquisition Act simplicitor whereas in other as modified to the extent
indicated in the schedule or appendix '<!f the Act adopting it. Wltere it is
under the Land Acc1uisition Act the proceedings ltave to be completed
E within three years whereas under other it may go on for ten years. Such
consequence can be avoided by construing the statutory provision in such
a manner that it does not operate unjustly. A legislature should not be
deemed to have intended that the State Legislature while providing for
acquisition of land under tlte Land Acquisition Act opted to exclude
F availability of any beneficial amendments in it. At least not by construction. Faulty implementation of a legislative provision by the executive
should not pursuade the court to impute intention t_o the legislature to
have intended to act unfairly. [708-B-F]
6. Reason for adding the proviso to Sections 6 itself was public
G interest. The proviso was added for reducing the gap between notification
under section 4 and declaration under Section 6 of tlte Land Acquisition
Act to three years. The object was to ensure that land acquisition proceedings do not linger on for unduly long time. It would be unjust to exclude
operation of tlte beneficent provision added for general betterment in
H social interest, by resorting to rule of construction. The courts are obliged
•
G.S. GAUR v. STATEOFU.P.
677
to adopt a constructive approach while construing such provisions. In A
absence of express exclusion it is more in cons(Jnance 'vith justice to hold
that the restriction of three years added by the proviso to Section 6 applied
to the Act. Any effort to demonstrate impossibility of completing proceedings within three years cannot be countenanced. Legislative intention
cannot be frustrated by executive inaction. The acc1uisition proceedings
thus came to end after expiry of three years from the date of issuance of
notification under the Act analogous to Section 4 of the Land Acquisition
Act. [708-H; 709-D-E]
B
7. Even though the law is in favour of petitioners equity stands in
their way since in pursuance of these proceedings the Avas Vikas Parishad C
entered into possession and constructed housing colonies as there was no
interim order in favour of land owners during pendencY. of the writ
petitioners in the High Court. Therefore, the indi~idual interest of the land
owners is faced with public interest of those larged number of middle class
persons who must have. invested their life's savings in purchasing these D
houses and the demolition of houses which are standing over the land and
rendering its occupants homeless shall result in incalculable less and
injury. Larger social interest therefore requires this Conrt to mould the
relief in such manner thatjnstice may not suffer. No flaw bas been found
in the notifications issued for acquisition of land under Section 4 or
publication of declaration under Section 6 of the Act. The infirmity has
arisen due to procedural delay. It is well established that delay destroys
the remedy but not the right. The Avas Vikas Parishad could have acquired
the land by issuing fresh notification. Therefore the equities can be adjusted by directing that the compensation to the land owners shall be paid
by assuming that fresh proceedings for aCtJnisition n·ere taken in the year
in which the declaration was published. [709-F-H; 710-A]
8. Though publication of declarations under the Act were beyond the
period of three years it is not in interest of justice to quash the proceedings
but the appellants shall be paid compensation of the land acquired on
market value prevalent 1n the year in which the declaration analogous to
Section 6 of the Land Acquisition Act was published/issued by fictionally
assuming that fresh notification under the Act analogous to Section 4 was
issued in that year. [710-H; 711-A]
E
F
G
9. The order granting leave was confined to facts of that case. It may H
678
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A legitimately be argued that the Bench hearing the appeals not bound by
the order granting leave as even though other aspects shall be deemed to
have been heard and decided yet in absence of any decision or adjudication
on merits it has no binding effect. Whether it is so or not need not be gone
into in these petitions except observing that the implied rejection of an
B order does not amount to deciding on merits but in propriety and comity
it is just and proper that except in very rare cases where injustice is
manifest the Bench hearing the matter finally is expected to respect the
earlier order passed by the Bench granting leave. But that does not apply
to the writ petitions which were merely tagged with special leave petitions.
In absence of any specific order it would not be fair to shut out the
C petitioner who invoked extraordinary jurisdiction of this court merely
because one of the questions, may be the main one, being common the
petitions were directed to be connected either at the instance of the Bar or
the Benc_h. Once the petitions were admitted the court has an obligation
to hear them or to settle the question of law and permit the petitioners to
D seek their remedy on other issues in appropriate forum. (710-D-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 965 of
1979.
From the Judgment and Order dated 13.2.1981 of the Allahabad
E High Court io Civil Misc. Writ Petition No. 1247 of 1979.
WITH
Civil Appeal Nos. 3325/84, 2185-87/80, 2381/80, S.L.P. (C) Nos.
12352-53/84, 10572-74/84, 5026/85, 6400/82, 484/89, 11697/84, 11698/84,
F 11699/84, W.P (C) Nos. 861-64/82, 2136-37/82, 2316-19/82, 6452- 53/82,
6493-95/82, 5214-17/83, 3539-40/83, 3551-53/83, I.A. Nos. 1-6/91 in W.P.
Nos. 6493-95/82.
K.N. Bhat, Satish Chandra, O.P. Rana, A.B. Rohtagi, Yogeshwar
Prasad, R.P. Bhatt , S.R. Bhatt, N.R. Nath, L.M. Bhat, Ms. Kiran Aneja,
G K.C. Jain, H.K. Puri, Satish Chandra, Dileep Tandon, J.M. Knanna, Dr.
B.S. Chauhan, Ms. Rachna Gupta, Vishwajeet Singh, R.B. Misra, P.N.
Gupta, P. Kesava Pillai, Vijay Kumar Verma, Raju Ramachandran, R.P.
Singh, Aruneshwar Gupta, Manoj Swarup, Ashok Grover, Mrs. Rani
Chhabra, Mukul Mudgal, Mrs. Sheela Geol, P.N. Puri, Shrish Kumar
Mishra, U.S. Prasad, Kan1leshwar Sahai_, P.K. Bajaj, E.C. Agarwala, Atul
H Sh<(rma, Ms. P. Bhat Kak, A.V. Palli, A.K. Srivastava and S.C. Birla for the
' '
G.S.GAUR v.STATEOFU.P. [RAMASWAMY,J.]
679
apprearing parties.
A
The Judgments of the court were delivered by
K. RAMASWAMY, J. Special leave granted.
These 41 appeals and writ petitions raise common question of law B
for decision. Therefore, they are disposed of together. As the facts in C.A.
No. 965/81 are sufficient to consider the controversy raised, the need to
reiterate the facts in each case became redundant.
U.P. Avas Evam Vikas Parishad, Lucknow, the second respondent
framed Bhumi Vikas Evam Grahastham Yojana No. 1 Scheme for Rampur c
city to relieve the acute housing problems of that city and published the
impugned notification in the Gazette on September 8, 15 and 22 of 1973
under s.28(1) of the Avas Evam Vikas Parishad Adhiniyam, 1965 (Act l of
1966) amended as on that date, for short 'the Act' proposing to acquire 14
acres of land situated in civil area at an estimated cost of Rs. 25.21 lacs. D
Local publications too were made. Notices under s.29 inviting objections
were served on the appellants and others on Sept. 20, 1973. On October
28, 1973 objections were filed. On July 31, 1976 notice was given of hearing
objections on August 28, 1976 The Committee constituted in that behalf
after hearing the objections; consideration thereof and rejection by
proceedings dated Nov. 1, 1976, recommended to the Govt. to approve the
Scheme. The Govt. on June 25, 1977 approved it to the extent of 11 acres
27 cents and the notification was published on August 27, 1977 in the
gazette as required under s.32(1). Appeal under s.32(2) filed before the
Govt. too was rejected on July 14, 1978. On its receipt the Board issued
notices on Feb. l, 1979 under s.9 of the Land Acquisition Act of 1894 for
short, 'L.A. Act' to take possession of the lands on expiry of 15 days
thereafter. The appellant questioned its legality under Art. 226 in the High
Court. Similar notifications at different places were also subject matters of
E
F
writ petitions raising reverse contentions. In Kadim Hussain v. State of U.P.,
AIR (1973) All. 132, a Diviswn ocncn held that the first proviso of the
L.A. Act did not restrict the right to issue notification under s.32( 4) of the G
Act, nor should it be done within a period of three years of the notification
under s. 28(1) of the Act. In Riazuddin v. State of U.P., AIR (1973) All.
240, the notification under s.32 did not contain adequately the identity and
the particulars of the land sought to be acquired as required in ss.4 and 6
of the L.A. Act., when its validity was questioned. The Division Bench held
that Ss.4 and 6 of L.A. Act had no application. In Satish Kumar Aga1Wal H
680
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A & Ors. v. State of U.P. & 01s., Civil Misc. Writ No. 1966 of 1979 dt. July 6,
1979, another Division Bench consisting of K.N. Singh, .T., as he then was,
and B.D. Agrawal, J., as he then was, negatived the contention that
notification under s.32 was to be issued within three years from the date
of the notification under s.28(1) and the first proviso to s.6 of the L.A. Act
had no application. Reliance was placed on Riazuddin's case. When similar
B question was again raised in Gawi Shankar v. State of U.P., Writ Petition
No. 1247 of 1976 dated 13.2.1981, a division bench consisting of Salish
Chandra, C.J. And AN. Verma, .I. upheld the validity of the notification
under s.32(1) independently considered the provisions of the Act and also
followed Kadim Hussain's case an reiterated the same view. Similar cases
C were dismissed which are subject matter of these appeals. When Doctor'
Gdh Ninnan Samiti Ltd. v. Avas Evam Vikas Padshad, AIR (1984) Allahabad 234, came up for consideration before another division bench, on
reference, the full bench considered the question in extenso and held that
the first proviso to s.6 of the L.A. Act is inapplicable to the proceedings
under s.28(1) or 32(1) of the Act. When an appeal was filed, this court in
D S.L.P. Nos. 92-94 of 1984 dated Nov. 13, 1984 upheld the full bench
judgment and dismissed the petition. In Abdul Wahab & Ors. v. State of
U.P., Writ Petition No. 37 of 1987 dt. August 9, 1988, another division
bench bellowing the full bench ratio held that s. llA of L.A. Act had no
application and award need not be made within one year as per 1984
amendment Act. In S.L.P. No. 11310 of 1989, etc. another three judges
E bench confirmed the decision and dismissed the S.L.P. on November 6,
1989. It would thus be clear that in interpreting the Act and the L.A. Act
as incorporated therein a consistent and unbroken judicial flora has been
nurturing in the State of U.P. that ss.4 and 6 of L.A. Act have no application to the
proceedings under the Act and the bar of three years
F prescribed in first proviso to s.G too does not apply. In this case while
granting leave, by order dated March 13, 1981 this Court restricted the
appeal to the question whether the limitation of three years prescribed in
first proviso to s.6 of the L.A. Act would apply to the notification under
ss.32(i) and 28(i) of the Act. Other cases and Writ Petitions filed, thereafter, were tagged with it.
G
H
The counsel appearing for the appellants addressed the arguments
exhaustively. They placed reliance on Bhatinda Improvement Tmst v. Ba/-
want Singh & On., [1991] A SCC 368, and other decisions and contended
that the Act adapted the L.A. Act by reference and that, therefore, the
first proviso to s.6 as amended by Act 13of1967 gets attracted. Declaration
G.S. GAUR v. STATE OF U.P. [RAMASWAMY, J.]
681
under s.6 vis-a-vis notification under s.32(1) not having been published A
within three years from the date of the publication of the notification under
s.28(1) of the Act [s.4(1) of the L.A. Act], the notifications under ss. 28(1)
& 32(i) became void ab initio, and the authorities are devoid of jurisdiction
to proceed further. The High Court had not adequately dealt with the
point. The contention of the respondents is that by operation of s.55 and
the schedule appended to the Act the legislature incorporated ss.4(i) and
6(i) L.A. Act \\ith modification existing as on the date the Act had come
into force. The subsequent amendments to the L.A. Act are inapplicable.
The legislature did not intend that any subsequent amendments made to
the L.A. Act would protanto protando be applicable to the proceedings
under the Act. Their main plank is the full bench decision. The State
sought to justify the delay on the plea of inconvenience or impossibility of
compliance within three years' limitation prescribed in the proviso to s.6
of L.A. Act, due to the procedure the Act had prescribed and so departure
from the rigorous test of compliance of time Schedule was salvaged.
Though counsel for the appellants sought to argue other points or
new contentions, to maintain comity and concomitant consistence, we
restricted our consideration to the point on which this court granted leave.
B
c
D
It would be obvious that this court applied its mind to the other questions
canvassed by the counsel and did not consider them fit to be decided and
limited to the general question of law of public importance as to the. E
applicability of the first proviso to s.6 of L.A. Act to the proceedings under
the Act in the State 0f U.P. to lay down the law authoritatively. When the
jurisdiction of this court was invoked under Art. 32, this court would
normally deal v,ith the points arose for decision but writ petitions were
admitted after the leave was granted and tagged them to the main case.
Generally, if not invariably, it is desirable to maintain uniformity,' 'at the
F
hearing of the point on which leave was granted and any other poi;.t would
not be permitted to be canvassed unless the point touches the jurisdiction
or constitutional validity of the offending provisions. Exceptions should not
become the rule and permitting to reopen several points which this court ·
did not consider fit to be canvassed, would create uncertainty and incon- G
sistences and would become a gamble and exceptions become the rule. To
maintain this concomitant comity and certainty we declined to permit
counsel for the appellants or writ petitioners to raise other points for
adjudication.
Whether limitation of three years prescribed under the first proviso H
682
SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.
A to s.6 of the L.A. Act would apply to the acquisit1ons under ss.28 and 32
of the Act is the crucial question. The object of the Act is the establishment, incorporation and functioning of a Housing and Development
Board in U.P. to develop the land, construct the houses, acquire, hold and
dispose of property and to contract and do all things necessary for the
proposes of the Act. (Preamble and s.4) to relieve housing shortage in
B urban areas due to increased influx of the migrant rural population to
towns and cities to take out their livelihood or for their betterment and
consequent rapid increase of urban population. The Housing Board or the
Improvement Trust, Development Boards have been constituted under the
Act and other allied Acts to frame and execute housing and improvement
C schemes in other projects; to coordinate housing activities and expeditious
and effective implementation thereof, etc. (s.15) and to construct new
houses under the planned development of towns and cities and if need be
to acquire land and to execute the housing improvement schemes and other
projects regulating building operations, improvement and clearance of
slums to provide roads, electricity, sanitation, waler supply and other civic
D amenities in the area to be developed. Section 17 provides that, notwithstanding anything containing in any other law for the time being in
force and without prejudice to the provisions in Chapter III , a housing to
improvement scheme may provide for all or any of the enumerated powers,
one of which is to acquire by purchase or exchange otherwise of any
property necessary for or effected by the execution of the scheme, etc.
E Section 18 of the Act specifies diverse types of housing improvement
schemes which the Housing Board was authorised to frame. The
parameters were laid down in ss. 19 of 27. Section 28(1) envisages that
when any housing or improvement schemes have been framed, the Board
shall prepare a notice specifying (a) the boundaries of the area comprised ·
F in the scheme; (b) the dates, hours and place or places at which the map
of the area covering the scheme and the particulars mentioned in clause
(b) of sub-s.(1) of s.28 are available; and (c) the date by which the objection
to the scheme shall be invited. The procedure was prescribed under
Sub-s(2) of it publication in the state Gazette two daily newspapers, one
of which shall be a Hindi newspaper, and publication on the notice board
G of local authorities within whose jurisdiction the area comprised in the
scheme lies, etc. It shall be complied with within six weeks from the date
of the publication of s.28(1) notification. The Board is enjoined to serve
the notice in the prescribed form on such person or classes of persons and
jn such manner as may be prescribed, of ·the proposed acquisition and the
H particulars of the land comprised therein. Within 30 days from the date of
G.S.GAUR v.STATEOFU.P.