# U.P. AVAS EVAM VIKAS PARISHAD v. JAINUL ISLAM AND ANR

- **Citation:** [1998] 1 S.C.R. 254
- **Court:** Supreme Court of India
- **Decided:** 1998-01-21
- **Case number:** Civil Appeal No. 6343 of 1995
- **Bench:** S.C. Agrawal, B.N. Kirpal, V.N. Khare
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/u-p-avas-evam-vikas-parishad-v-jainul-islam-and-anr-15998
- **Pages:** 30

## Headnote

U.P. Avas Evem Vikas Parishad Adhiniyam, 1965-Section 55Acquisition o_f land for executing housing sche1ne under the Adhini}·amC Reference to land Acquisition Act, 1894 in section 55 of the AdhiniyamApplicability of amendments introduced in the land Acquisition Act, 1894
relating to determination and payment of compensation under Section 23 (IA}, 23(2) and 28 as amended by 1894 Act-Held, legislature intended to
apply amendments introduced to acquisition Act, 1894-Section 23 (1-A),
23(2) and 28.
D
Acquisition of land-Afarket Value-Determination-Direction about
deduction of one third of price towards cost of development for housing
scheme-Held, not illegal interference with the determination of market
value uncalled for-land Acquisition Act, 1894-Section 23.
E
Interpretation of statutes-legislation by incorporation and by
reference-Effect of-Jn case of legislation by incorporation, repeal or
amendment does not effect operation of the incorporation ~tatute
Determination of whether legislation is by incorporation or reference depends
upon the language used in the incorporating statute.
F
Housing scheme was framed by the appellant under the provisions of
the Uttar Pradesh Avas Evem Vikas Parishad Adhiniyam, 1965. The
notification was issued to the acquired under section 55 of the Adhiniyam.
The provisions of Land Acquisition Act ;is modified by the schedule to the
Adhiniyam were made applicable to acquisition of land for the purpose of the
G Adhiniyam. Therefore, amendments were introduced in the land Acquisition
Act, 1894 relating to determination and payment of compensation under
Section 23(1-A), 23(2) and 28 as amended by 1984 Act. As a result of the
amendments in Section 23(2) and 28 the solatium payable under Section •
23(2) has been enhanced from 15% to 30% and the interest payable under
Section 28 has been enhanced from 6% to 9% and 15%. The land
H Acquisition Officer determined the compensation to be paid to the respondent
254
~I
./~
U.P. A VAS EVAM VJKAS PARISHAD v. JAINUL ISLAM
255
The respondent claiming higher compensation made reference under Section A
18 of the claims. The civil court determined the market value oft.he land at
Rs. 150 per sq. yards but made a deduction of 10% out of it since the land
acquired constituted a large area. Aggrieved by the order the appellant and
the State of Uttar Pradesh jointly filed appeals before the High Court.
Some of the respondents-land owners challenged the deduction of 10% B
out of the market value of the land. The High Court partly allowing the
appeal assessed the market value of the land at Rs. llO per sq. yard and
directed that deduction on account of the large area of the land should be onethird of the sum of Rs. 110. The High Court held that the amendments
introduced in the Land Acquisition Act by the 1984 Act are applicable to C
acquisition of land for the purposes of the Adhiniyam and the respondents
are entitled to all statutory benefits under the Land Acquisition Act as
amended by the 1984 Act.
In this batch of civil appeals and Special Leave Petitions before this
Court the appellate challenged the applicability of the provisions contained D
in the Land Acquisition (Amendment) Act, 1984 to acquisition of land for
executing the housing scheme framed by the U.P. Avas Evam Vikas Parishad
Adhiniyam, 1965. In the other batch of civil appeals and writ petitions the
respondents challenged the validity of provisions contained in L.A. Act, 1894
as applicable in the matter of acquisition of Land.
The appellant contended that the provisions of the L.A. Act, as modified
by the Schedule to the Adhjniyam, have been incorporated into the Adhiniyam
and as a consequence of such incorporation the provisions of the L.A. Act
E
as modified must be read as a part of the Adhiniyam itself and any amendment
made in the L.A. Act after the enactment of the Adhiniyam would not, ipso F
facto, apply so as to have the effect of modifying those provisions contained
in the Adhiniyam and, therefore, th

## Text

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A
U.P. AVAS EVAM VIKAS PAR!SHAD
v.
JAINUL ISLAM AND ANR.
JANUARY 21, 1998
B
[S.C. AGRAWAL, B.N. KIRPAL AND V.N. KHARE, JJ.]
U.P. Avas Evem Vikas Parishad Adhiniyam, 1965-Section 55Acquisition o_f land for executing housing sche1ne under the Adhini}·amC Reference to land Acquisition Act, 1894 in section 55 of the AdhiniyamApplicability of amendments introduced in the land Acquisition Act, 1894
relating to determination and payment of compensation under Section 23 (IA}, 23(2) and 28 as amended by 1894 Act-Held, legislature intended to
apply amendments introduced to acquisition Act, 1894-Section 23 (1-A),
23(2) and 28.
D
Acquisition of land-Afarket Value-Determination-Direction about
deduction of one third of price towards cost of development for housing
scheme-Held, not illegal interference with the determination of market
value uncalled for-land Acquisition Act, 1894-Section 23.
E
Interpretation of statutes-legislation by incorporation and by
reference-Effect of-Jn case of legislation by incorporation, repeal or
amendment does not effect operation of the incorporation ~tatute
Determination of whether legislation is by incorporation or reference depends
upon the language used in the incorporating statute.
F
Housing scheme was framed by the appellant under the provisions of
the Uttar Pradesh Avas Evem Vikas Parishad Adhiniyam, 1965. The
notification was issued to the acquired under section 55 of the Adhiniyam.
The provisions of Land Acquisition Act ;is modified by the schedule to the
Adhiniyam were made applicable to acquisition of land for the purpose of the
G Adhiniyam. Therefore, amendments were introduced in the land Acquisition
Act, 1894 relating to determination and payment of compensation under
Section 23(1-A), 23(2) and 28 as amended by 1984 Act. As a result of the
amendments in Section 23(2) and 28 the solatium payable under Section •
23(2) has been enhanced from 15% to 30% and the interest payable under
Section 28 has been enhanced from 6% to 9% and 15%. The land
H Acquisition Officer determined the compensation to be paid to the respondent
254
~I
./~
U.P. A VAS EVAM VJKAS PARISHAD v. JAINUL ISLAM
255
The respondent claiming higher compensation made reference under Section A
18 of the claims. The civil court determined the market value oft.he land at
Rs. 150 per sq. yards but made a deduction of 10% out of it since the land
acquired constituted a large area. Aggrieved by the order the appellant and
the State of Uttar Pradesh jointly filed appeals before the High Court.
Some of the respondents-land owners challenged the deduction of 10% B
out of the market value of the land. The High Court partly allowing the
appeal assessed the market value of the land at Rs. llO per sq. yard and
directed that deduction on account of the large area of the land should be onethird of the sum of Rs. 110. The High Court held that the amendments
introduced in the Land Acquisition Act by the 1984 Act are applicable to C
acquisition of land for the purposes of the Adhiniyam and the respondents
are entitled to all statutory benefits under the Land Acquisition Act as
amended by the 1984 Act.
In this batch of civil appeals and Special Leave Petitions before this
Court the appellate challenged the applicability of the provisions contained D
in the Land Acquisition (Amendment) Act, 1984 to acquisition of land for
executing the housing scheme framed by the U.P. Avas Evam Vikas Parishad
Adhiniyam, 1965. In the other batch of civil appeals and writ petitions the
respondents challenged the validity of provisions contained in L.A. Act, 1894
as applicable in the matter of acquisition of Land.
The appellant contended that the provisions of the L.A. Act, as modified
by the Schedule to the Adhjniyam, have been incorporated into the Adhiniyam
and as a consequence of such incorporation the provisions of the L.A. Act
E
as modified must be read as a part of the Adhiniyam itself and any amendment
made in the L.A. Act after the enactment of the Adhiniyam would not, ipso F
facto, apply so as to have the effect of modifying those provisions contained
in the Adhiniyam and, therefore, the amendments introduced the L.A. Act by
the 1984 Act would not apply to an acquisition made for the purposes of the
Adhiniyam on the basis of the provisions of L.A. Act as modified by the
Adhiniyam.
The respondent submitted that the amendments introduced in the L.A. G
• f--
Act by the 1984 Act are applicable to an acquisition for the purposes of the
Adhiniyam.
Dismissing the Civil Appeals, writ petitions and Special Leave Petitions,
this court.
H
A
256
SUPREME COURT REPORTS
(1998] 1 S.C.R.
HELD : 1.1. On a proper construction of Section 55 of the U.P. Avas
Evam Vikas Paris had Adhiniyam while incorporating the provisions of the
L.A. Act in the Adhiniyam the intention of the Legislature was that
amendments in the L.A. Act relating to determination and payment of
compensation would be applicable to acquisition of lands for the purposes of
B the Adhiniyam. This means that the amendments introduced in the L.A. Act
by the 1984 Act relating to determination i;nd payment of compensation
under Sections 23,(1-A), 23(2) and 28 as amended by the 1984 Act would be
applicable to acquisitions for the purposes of the Adhiniyam under Section
55 of the Adhiniyam. [279-C)
C
2. A legislation may be a referential legislation or a legislation by
D
incorporation. In a referential legislation the provisions of the earlier
legislation to which reference is made in the subsequent legislation would
be applicable as it stands on the date of application of such earlier legislation
to matters referred to in the subsequent legislation. But in legislation by
incorporation the rule of construction is that repeal of the earlier statute
which is incorporated does not affect operation of the subsequent statute in
which it has been incorporated. So also any amendment in the statute which
has been so incorporated that is made after the date of incorporation of such
statute does not affect the subsequent statute in which it is incorporated and
the provisions the of statute which have been incorporated would remain the
E same as they were at the time of incorporated and the subsequent amendments
are not to be read in the subsequent legislation. The legal effect of such
incorporation by referenee "is to write those sections into the new Act just
as if they had been actually written in it with the' pen or printed in it, and,
the moment you have those clauses in the later Act, you have no occasion
F
to refer to the former Act at all". As to whether a particular legislation falls
in the category or referential legislation or legislation by incorporation
depends upon the language used in the statute in _which reference is made
to the earlier legislation and other relevant circumstances. 1269-E-G I
State of Madhya Pradesh v. M V. Narasimhan, 1197611 SCR 6, relied
G on Wood's Estate, Re (1886) 31 Ch D 607 p. 615, referred to
3.1. The amendments introduced in the L.A. Act by the 1984 Act were
not part of the L.A. Act as applicable in State of Uttar Pradesh, at the time
of passing of the Adhiniyam. The provisions of the L.A. Act, as amended in
its application to U.P., with the modification specified in the Schedule to the
H Adhiniyam, have, therefore, to be treated to have been incorporated by reference
U.P. AVAS EVAM VIKAS PARISHAD v JAINUL ISLAM
257
into the Adhiniyam and became an integral part of the Adhiniyam and the A
said provisions would remain in the L.A. Act unless any of the exceptional
situations can be attracted. [267-G, 272-E-F]
Secretary of State v. Hindustan Co-operative Insurance Society Ltd.,
AIR (1931) PC 149. State of Madhya Pradesh v. M V Narasimha, [1931] I B
SCR 6, applied.
3.2. While construing the provisions of the Adhiniyam providing for
acquisition of land for the purposes of the Adhiniyam one cannot lose sight
of the settled principle of statutory construction that if certain provisions of
law, construed in one way, would make them consistent with the Constitution C
another interpretation would render them unconstitutional, the Court would
lean in favour of the former construction. [274-F]
Kadar Nath Singh v. State of Bihar, [1962] Supp. 2 SCR 769, 808, 809.
relied on
3.3. If the provisions of the Adhiniyam are so construed as to incorporate
the provisions of the L.A. Act as it stood on the date of enactment of the
Adhiniyam without the amendments introduced in the L.A. Act by the 1984
D
Act relating to determination and payment of compensation an owner whose
land is acquired for the purpose of the Adhiniyam would be entitled to E
payment of solatium under Section 23(2) of the L.A. Ad@ 15% and interest
under Section 28 of the L.A. Act @ 6% but an owner whose lands are
acquired ·under the provisions of the L.A. Act amended by the 1984 Act would
be entitled to payment of solatium @30% and interest@ 9% and 15% and
would also he entitled to payment of additional amount as per the provisions
of Section 23(1-A) of the L.A. Act, as amended. In other words, the F
__,,...
compensation payable to the owner whose land is acquired for the purposes
of the Adhiniyam would be less than the compensation payable to the owner
whose land is acquired under the L.A. Act as amended by the 1984 Act.
There is no rational basis for treating the two land owners differently in the
matter of payment of compensation on the acquisition of their lands. It would G
suffer from the vice of arbitrary and hostile discrimination. Such a
consequence would be avoided ifthe provisions of the Adhiniyam are construed
to mean that the provisions of the L.A. Act, as amended by the 1984 Act,
relating to determination and payment of compensation would apply to
acquisition of land for the purposes of the Adhiniyam. The provisions of the
Adhiniyam show that the intention of the Legislature, while enacting the H
258
SUPREME COURT REPORTS
[1998] I S.C.R.
A Adhiniyam, was to confer the benefit of solatuim @ 15% by modifying
Section 23(2) in the Schedule, which benefit was not available under the
provisions of the L.A. Act as it was applicable in the State of Uttar Pradesh
at the time of enactment of the Adhiniyam. 1275-A-C, 278-G-H, 279-A-B]
Nagpur Improvement Trust & Anr v. Vithal Rao & Ors., [1973] 3 SCR
B 3, followed.
State of Madhya Pradesh v. G.C. Mandawar, [1955] 1 SCR 599;
Prakash Amichand Shah v. State of Gujarat & Ors., 11985] Supp. 3 SCR
1025 and Union of India v. Hari Kishan Khalsa (dead) by LRs., 11993] Supp.
c 2 sec 2 149, referred to.
D
E
4.1. The High Court, rightly held that in the absence of any material
that the agreements for sale relied upon had matured into sale transactions
not much assistance could be derived from them in the matter of determination
of the market value of the acquired land. [281-E]
4.2. For determining the market value of a large property on the basis
of sale transactions for a small property a deduction should be given. Thus,
the direction about deduction of one third of the said price towards cost of
development for the housing scheme involving construction of roads and
other amenities is upheld. [281~F-G]
Tribeni Devi & Ors., v. Collector of Ranchi, [1972] 3 SCR 208; Vijay
Kumar Moti Lal v. State of Mahr:irashtra, (1981] 2 SCC 719; Special Land
Acquisition officer Benga/ore v. VT Velu & Ors., (1996] 2 SCC 538; K.S.
Shivadevamma & Ors. v. Asst. Commissioner & Ors., 11996] 2 SCC 62 and
F Basant Kumar v. Union of India, [1996] 2 SCC 542, held applicable.
G
Bhawathula Samanna & Ors. v. Special Tehsildar & Land Acquisition
Officer, Visakhapatnam, [1991] 4 SCC 506 and Maharbad & Ors. v. The
State of UP. & Ors., [199714Scale363, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6343 of 1995
Etc. Etc.
From the Judgment and Order dated 7.12.1994 of the Allahabad High
Court in R.F.A. No. 750of1992.
H
K.T.S. Tulsi, M.N. Venkataramani, S.B. Sanyal, Shanti Bhushan, Jitendra
U.P. AVAS EVAMVIKAS PARISHADv. JAINUL ISLAM [S.C. AGRAWAL, J]
259
Mohan Sharma, P.K. Jain, K.C. Jain, E.C. Agarwala, P.K. Roy, Nafis Ahmed A
>-
Siqq, Mansoor Ali, Shiv Sagar Tiwari, S. Murlidhar, Pramod Dayal, Prashant
Chaudhary, Jayant Bhushan, Arvind Varma, Surya Kant, Sunil Gupta, Shashi
Bhushan and Anand Padmanabhan for the appearing parties.
The Judgment of the Court was delivered by
B
,_ ---:·
S.C. AGRA WAL, J. : (A) Civil Appeals Nos. 6343195, 6383/95, 6358/95,
6368/95, 6353/95, 6370/95, 6369195, 6371/95, 6363195, 6357/95, 6361195, 6356195,
6376195,6359195, 7646/95, 7361/95, 7362/95, 7363195, 6373/95, 6374/95, 6375/95,
6352/95, 6382/95, 6347/95, 6354/95, 6344/95, 6345195, 6355/95, 6350195, 6362/95,
6364/95, 7357/95, 7358/95, 7360/95, 7359/95, 7356/95, 7644/95, 7364/95, 7365/95, c
6351195, 6349195, 6377/95, 6372/95, 6365/95, 6360195 And Civil Appeal
Nos ............. {arising out of Special leave Petitions (Civil) Nos. 11170/95, 1051210538/95, 10147/95 and 9549/95}.
"-
Leave granted in Special Leave Petitions (Civil) Nos. 1170/95, 1051210538/95, 10147/95 and 9549/95.
D
...(
These appeals are directed against the judgment of the Allahabad High
Court dated December 7, 1994 in appeals arising out of proceedings for
acquisition of land in connection with the housing scheme framed by the U.P.
Avas Evam Vikas Parishad [hereinafter referred to as 'the Parishad'] under the
provisions of The Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 E
[hereinafter referred to as 'the Adhiniyam]. They raise common questions
relating to the applicability of the provisions contained in the Land Acquisition
(Amendment) Act, 1984 [hereinafter referred to as 'the 198'1 Act' to acquisition
of land for executing the said scheme. The amendments introduced by the
1984 Act include insertion of sub-section (1-A) in Section 23 and amendment
of Sections 23(2) and 28 of the Land Acquisition Act, 1894 [hereinafter to as F
...,...,
'the L.A. Act]. As a result of the amendments in Sections 23(2) and 28 the
=-
solatium payable under Section 23(2) has been enhanced from 15% to 30%
and the interest payable under Section 28 has been enhanced from 6% to 9%
and 15%.
The Parishad is a housing and development board established under G
Section 3 of the Adhiniyam. Under Section 15 of the Adhiniyam one of the
>-
functions of the Board is "to frame and execute housing and improvement
schemes and other projects". In accordance with the provisions of the
Adhiniyam the Parishad framed the "Bhomi Vikas Evam Grihasthan Yojana No.
I 0 between Meerut-Hapur and Meerut-Delhi Road in Meerut". By Notification H·
260
SUPREME COURT REPORTS
[1998] 1 S.C.R.
A dated July 23, 1983 (published in the U.P. Government Gazette dated August
27, 1983) issued under Section 28 of the Adhiniyam the Parishad notified the
said scheme. The scheme was prepared with a view to solving the acute
housing problem in the Meerut city and it covered lands lying in the outskirts
of Meerut city. The said notification was followed by Notification dated July.
15, 1985 (published in the U.P. Government Gazette dated August 3, 1985)
B issued under Section 32(1) of the Adhiniyam. The said notification dated July,
15, 1985 was in respect ofland covering 202.48 acres equivalent to 9,07,954 sq.
yards which was to be acquired under Section 55 of the Adhiniyam whereby
the provisions of the L.A. Act, as modified by the Schedule to the Adhiniyam,
have been made applicable to acquisition of land for the purposes of the
C Adhiniyam. After the issuance of the said notifications, the Land Acquisition
Officer initiated proceedings to determine the compensation to be paid to the
land owners whose lands were acquired in accordance with provisions of the
L.A. Act as modified under the Schedule to the Adhiniyam. The Land
Acquisition Officer determined the market value of the land so acquired at Rs.
30 per sq, yard and the compensation was offered to the land owners on that
D basis. The land owners claimed compensation at a higher rate of Rs. 150/-per
sq yard and sought reference under Section 18 of the L.A. Act and thereupon
references were made to the Civil Court for determination of such claims of
the land owners. By judgment dated December 12, 1991, the Civil Court,
namely, the Additional District Judge, Meerut, determined the marked value
E of the land at Rs. 150 per sq yard but he made a deduction of I 0% out of
it since the land acquired constituted a large area. Feeling aggrieved by the
said delermination made by the Civil Court the Parishad and the State ofUttar
Pradesh jointly filed appeals before the Allahabad High Court. Some of the
land owners filed cross-objections wherein they confined their challenge to
the deduction of 10% that was made by the Civil Court. By the impugned
F judgment dated December 7, 1994 the High Court has partly allowed the
appeals filed by the Parishad and has assessed the market value of the land
at Rs. 110 per sq yard and, instead of a deduction of I 0% made by the Civil
Court on account of the large area of the land, the High Court has, therefore,
fixed the market value of the land at Rs. 73 per sq. yard. The cross-objections
G filed by the land owners have been dismissed. The High Court has, however,
held that the amendments introduced in the L.A. Act by the 1984 Act are
applicable to acquisition of land for the purposes of the Adhiniyam and the
land owners are entitled to all the statutory benefits under the L.A. Act as
amended by the 1984 Act so far as applicable to them. Feeling aggrieved by
the said decision of the High Court, the Parishad has filed Civil Appeals Nos.
H 6343/95, 6383/9.5, 6358195, 6368/95, 6353195, 6370195, 6369195, 6371/95, 6363/95,
UP AVAS EVAMVIKAS PARISHADv. JAINUL ISLAM [S.C. AGRAWAL,J.]
261
6357195, 6361195, 6356195, 6376195, 6359195, 7646195, 7361195, 7362195, 7363195, A
6373/95, 6374195, 6375195, 6352/95, 6382/95, 6347/95, 6354/95, 6344195, 6345195,
6355195, 6350195, 6362/95, 6364195, 7357195, 7358/95, 7360/95, 7359195, 7356/95,
7644/95, 7364/95, 7365/95, 6351/95, 6349/95, 6377/95, 6372/95, 6365/95 and
6360/95, before this Court. Felling aggrieved by the reduction in the market
value by the High Court some of the claimants have filed Civil Appeals arising B
out of Special Leave Petitions (Civil) Nos. 11170/95, 10512-10538/95, 10147/95
~
and 9579/95. The claimants, who are respondents in Civil Appeals Nos. 6353/
95 and 6363/95, filed by the Parishad, have filed Writ Petitions Nos. 224/97
and 339/97 under Article 32 of the Constitution wherein they have challenged
the validity of the provisions contained in the L.A. Act as applicable in the
matter of acquisition of land for the purposes of the Adhiniyam by virtue of C
Section 55 read with the Schedule to the Adhiniyam.
It would be convenient, at this stage, to briefly refer to the relevant
provisions of the Adhiniyam.
The Adhiniyam has been enacted by the U.P. State Legislature to D
...
provide for the establishment, incorporation and functioning of a housing and
development Board in the State of Uttar Pradesh. It had received the assent
of the President. Section 3 of the Adhiniyam provides for constitution of the
Board and in accordance with the said provision the Parishad had been
constituted by the State Government as a Board under the Adhiniyam. By
virtue of Section 3(3) of the Adhiniyam the Parishad is a local authority for E
the purposes of the L.A. Act. Section 15 of the Adhiniyam enumerates the
functions of the Board and one of the function thus enumerated is to frame
and execute housing and improvement schemes and other projects. Section
•
16 provides that the Board may on its own motion or at the instance of a local
authority frame a housing or improvement scheme and that the Board shall p
frame such a scheme when so directed by the State Government. Section 17
prescribed the matters whish are required to be provided for in such a scheme.
One of the matters to be provided is "the acquisition by purchase, exchange
or otherwise of any property necessary for or affected by 'the execution of
the scheme". Sub-section(!) of Section 28 provides that when any housing
or improvement scheme has been. framed the Board shall prepare a notice to G
that effect specifying the matters mentioned in clauses (a) to (c). Sub-section
(2) of Section 28 requires such notice to be published in the manner laid down
therein. Section 29 provides for service on the persons or classes of persons
of a notice stating that the Board proposes to acquire any specified land or
building for the execution of the scheme. Section 30 makes provision for filling H
262
SUPREME COURT REPORTS
[ 1998] 1 S.C.R.
A of objections against the scheme. Section 31 provides for sanctioning of the
scheme, with or without modifications after considering the objections received
under the Section 30, by the Board if the estimated cost of the scheme does
not exceed twenty lakhs of rupees and by the State Government if it exceeds
the said amount. Sub-Section ( 1) of Section 32 provides that whenever the
Board or the State Government sanctions a housing or improvement scheme,
B it shall be notified in the Gazette and Sub-section (2) lays down that the
notification under Sub-Section (I) in respect of any scheme shall be conclusive
evidence that the scheme has been duly framed and sanctioned. In cases
where the scheme is sanctioned by the Board an appeal lies to the State
Government against the decision of the Board under Sub-Section (3) of
C Section 32 and if the scheme is altered or cancelled by the State Government
on such appeal the cancellation or alteration is required to be notified in the
Gazette under sub-section (4) of Section 32. In Section 38 provision is made
for transfer to the Board of any building or land or any street, or any part
thereof, vested in a local authority which lies within the area comprised in any
'
.
housing or improvement scheme and for payment by the Board to the local
D
authority. as compensation. a sum equal to the market value of such land or
building or both, as the case may be, as on the date on which the scheme
comes into force. Section 39 makes provision for transfer of any private street
or square or part thereof which the public or any section of the public has
right to pass along or use and which is not vested in the Board or in any
E local authority for executing any housing or improvement scheme and for
. payment to the'previous owner compensation determined on the basis of the
market value, on the date of vesting, of his rights therein. Section 55 of tile
Adhiniyarn makes the following provisions regarding acquisition of land that
is required by the Board for any of the purposes of the Adhiniyam :-
F
"Section 55. Power to acquire land.-(!) Any land or any interest
therein required by the Board for any of the purposes of this Act, may
be acquired under the provisions of the Land Acquisition Act, 1894
G
· (Act No.I of 1894), as amended in its application to Uttar Pradesh,
which for this purpose.shall be subject to the modifications specified
in the Schedule to this Act.
(2) If any land is respect of which· betterment fee has been levied
under this Act is subsequently required for any of the purposes of
this Act, such lery shall not be deemed. to prevent the acquisition of
the land under the Land.Acquisition Act, 1894 (Act No. I of 1894)."
H
Section 56 empowers the Board, by agreement with any person, to
·•
>-'.• .
U.P. AVAS EVAM VIKAS PARISHADv. JAINUL ISLAM [S.C. AGRAWAL, J]
263
purchase, lease or exchange any land or any interest therein required by it A
for any of the purposes of the Adhiniyam. Section 64 makes provision for the
constitution of one or more Tribunals for the purposes of, inter alia, performing
the functions of the Court with reference to the acquisition of land for the
Board under the L.A. Act, as modified by the Schedule to the Adhiniyam.
The Schedule to the Adhiniyam sets out the modifications in the L.A. B
Act, as amended, in its application to the State of Uttar Pradesh. As per the
said modifications:-
(i) Clause (i) has been inserted in Section 3 of the L.A. Act to define
"local authority" as including "the Board".
(ii) Clause G) has been inserted in Section 3 of the L.A. Act to define
'Board' to mean the Parishad established under the Adhiniyam.
(iii) The first publication in the Official Gazette of a notice of any
housing or improvement scheme under Section 28 or under clause (a)
c
of Sub-section (3) of Section 31 of the Adhiniyam has been substituted D
. for and shall have, in relation to any· 1and proposed to be acquired
under the Scheme, the same effect as publication in the Official Gazette
of a notification under sub-section (I) of Section 4 of the L.A. Act.
(iv) The publication of a notification under sub-section(!) or, as the
case may be, under sub-section (4) of Section 32 of the Adhiniyarn E
in the case of land acquired .under any housing or improvement
scheme under the Adhiniyam has been substituted for and shall have
the same effect as a declaration by ·the State Government under
Section 6 of the L.A. Act.
(v) Sub-section(!) of Section 17 of the L.A. Act has been substituted. F
In sub-section (I), so substituted, it is provided that whenever the
State Government so directs in the interest of the expeditious execution
ofhousing or improvement scheme under the Adhiniyam, the Collector,
though no such award has been. made, may on the expiration of fifteen
days from the publication of the notice mentioned in sub-section (I) G
of Section 9 take possession of any land needed for the purposes of
·the Adhiniyam aiill su¢h land shall thereupon vest absolutely in the
'
'
· . .-
.,
'
._·
·' .,
.· · . Go\iemment free.from·airencurnbrarrces.
·.I .•. ·.
'
, ...
(vi) Section 17-A has been inserted in the L.A. Act. The said provision
reads as ullder:-
H
A
B
c
D
E
F
G
264
SUPREME COURT REPORTS
[1998] l S.C.R.
"Section I 7-A Transfer of land to Board,- In every case referred
to in Section 16 or Section 17, the Collector shall upon payment
of the cost of acquisition make over charge of the land to the
Housing Commissioner, or an officer authorised in this behalf
under the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam,
1965, and the land shall, thereupon vest in the Board subject to
the liability of the Board to pay any further costs which may be
incurred on account of its acquisition."
(vii) In Section 23 of the L.A. Act for existing explanation to me clause
"firstly" the following provision has been substituted :-
"Explanation.- In judging the market value aforesaid in any case
where a land is acquired under a housing or improvement scheme
under the Uttar Pradesh A vas Ev am Vikas Parishad Adhiniyam,
1965, if any building has been erected, re-erected, added or
altered in contravention of the provisions of clause (a) of subsection (3) of Section 23, sub-section (3) of Section 24, or Section
35 of the said Adhiniyam, any increase in the market value
resulting from such erection, re-erection, addition or alteration
shall be disregarded."
(viii) After the existing sub-section (1) in Section 23 of the L.A. Act
the following sub-section (2) has been added :-
"(2) In addition to the market value of the land as above provided,
the court shall in every case award a sum of fifteen percentum
of such marked value in consideration of the compulsory nature
of the acquisition."
(ix) In Section 49 after sub-section (1) the following sub-section (1-a)
has been added :-
"(I-a) For the purposes of sub-section (! ), land which is held
with and attached to a house and is reasonably required for the
enjoyment and use of the house shall be deemed to be part of
the house."
In this context, it may be mentioned that prior to the enactment of the
Adhiniyam the Uttar Pradesh State Legislature had enacted the Land
Acquisition (U.P. Amendment) Act, 1954 [U.P. Act 22 of 1954] [hereinafter
referred to as 'the 1954 Act'] where by the L.A~ Act in its application to the
H State of Uttar Pradesh, in so far as it relates to acquisitions of land except
U.P.AVASEVAMVIKASPARISHADv. JAINULISLAM[S.C. AGRAWAL,J]
265
for the purposes of the Union, had been amended and it was to have effect A
)-
in the State subject to the amendments specified in the Schedule to the 1954
Act. One of amendments that was so introduced was in Section 23 of the L.A.
Act whereby the following explanation was added in clause (I) of Section 23:-
"Explanation.-In judging the market value aforesaid in any case.
where the land acquired for or in connection with sanitar1 improvement B
or any kind or planned development due regard shall be had to the
insanitary and unhygenic conditions of the land on the date aforesaid."
The other amendment was the deletion of sub-section (2) of Section 23.
By the Land Acquisition (U.P. Amendment) Act, 1972 (U.P. Act No. 28 C
of 1972) [hereinafter referred to as 'the 1972 Act' the L.A. Act, as applicable
in the State of Uttar Pradesh, was further amended and· the Explanation that
was inserted in sub-section (1) of Section 23 by the 1954 Act was omitted and
sub-section (2) of Section 23 which was deleted by the 1954 Act \\'as restored.
This would show that in 1965 when the Adhiniyam was enacted solatium@ D
15% was not payable under Section 23 of the L.A. Act in respect of acquisition
of land in the State of Uttar Pradesh when such acquisition was not for the
purposes of the Union and while enacting the Adhiniyam the Legislature
made provision for payment of such soh1tium. Thus there was disparity in the
. matter of payment of solatium in respect acquisition of land for the purposes
of the Adhiniyam and acquisitions of land under the provision of the L.A. E
Act as applicable in the State of Uttar Pradesh where such acquisition was
not f!Jr the purposes of the Union, This disparity stood removed after the
enactment of the 1972 Act whereby sub-section (2) was introduced in the L.A.
Act as applicable in the State of Uttar Pradesh.
By the 1984 Act the L.A. Act has been amended and amongst the F
amendments that have been made the following are relevant:
(i)
Sub-section (1-A) was inserted in Section 23 whereby an
additional amount calculated at the rate o.f 12% per annum on the
. market value of land as determined under sub-section (I) of Section G
23 has to be awarded by the Court for the period commencing on and
,from the date of the publication of notification under Section 4(1) in
respect of such land to the date of the award of the Collector or to
the date of taking possession of land, whichever is earlier ..
(ii) The rate of solatium payable under Section 23(2) had been H
T
266
SUPREME COURT REPORTS
[1998] I S.C.R.
A
enhanced from 15% to 30%.
(iii) The rate of interest payable of the excess amount of compensation
-<.
under Section 28 had been enhanced from 6% to 9% per annum when
the excess amount is paid within one year of the date on which the
Collector took possession of the land and where the excess amount
B
is paid after the expiry of the period of one year interest wou Id be
payable @ 15% per annum from the date of expiry of the period of
.,...
one year.
,$
The 1984 Act, being a subsequent parliamentary enactment, overrides
c
the 1972 Act by virtue of Article 254(2) of the Constitution and as a result
in the State of Uttar Pradesh in the event of land being acquired under the ·
provisions of the L.A. Act, as applicable in the said State, the land owner is
entitled to payment of compensation and interest in accordance with the
provisions.of Sections 23 and 28. as amended by the 1984 Act. Since there
has been no corresponding amendment in the Adhiniyam the question has
.._
D arisen whether the benefit of the amendments introduced in the L.A. A.ct by
the 1984 Act can be extended to land owners whose land is acquired for the
).._
purposes of the Adhiniyam on the basis of the provisions of the L.A. Act
as modified by the Adhiniyam.
E
In Gauri Shankar Gaur and Ors. v. State of UP. and Ors., [1994] I SCC
92, a bench of two Judges of this Court (K. Ramaswamy and R.M. Sahai, JJ .)
has dealt with the question regarding the applicability of the 1984 Act to
acquisition of land under the· provisions of the Adhiniyam in the context of
the first proviso to Section 6 of the L.A. Act which was substituted by the
1984 Act. By the said proviso it had been prescribed that no declaration in
F respect of any particular land covered by a notification under Section 4( I)
published after the commencement of the Land Acquisition (Amendment and
y
Validation) Ordinance, 1967, but before the commencement of the 1984 Act,
...
shall be made after the expiry of the three years from the date of the publication
of the notification. In that case the notification under Section 28(1) of the
G Adhiniyam was published in the Gazette on September 8, 15 and 22 of 1973
and the notification under Section 32( I) of the Adhiniyam was published on
August 27, 1977, i.e., after the expiry of three years. A contention was raised
that the notification under Section 32 was required to be issued within three
-<.
years from the date of the notification under Section 28(1) on the basis of the
first proviso to Section 6 of the earlier Act. It was urged that the amendment
H introduced in the L.A. Act by the 1984 Act, including the first proviso to
U.P. AVAS EVAM VIKAS PARISHAD1•. JAINUL ISLAM [S.C. AGRAWAL,!.]
267
Section 6, are applicable to acquisition of land under the Adhiniyam. Although A
>-·
both the learned Judges have. concurred in upholding the validity of the
acquisition, but there. was difference of opinion between them on some of the
questions that came up for consideration. One of the questions arising for
consideration was whether the provision of the L.A. Act have been
incorporated by reference in the Adhiniyam by virtue of Section 55 read with B
the Schedule to the Adhiniyam and as a consequence any amendment made
- -(
in the earlier Act after the enactment of the Adhiniyam does not, ipso facto,
apply to an acquisition of the purposes of the Adhiniyam on the basis of the
provisions of the L.A. Act as modified by the Adhiniyam.
Ramaswamy J. was of the view that Section 55 of the Adhiniyam read c
with the Schedule made an express incorporation of the provisions of Section
4(1) and Section 6 as modified and incorporated in the Schedule and that the
Schedule effected necessary structural amendments to Sections 4,5, 17 and 23
incorporating therein the procedure and principles with necessary modifications
and that it is a complete code in itself. He, therefore, held that Section 55 and
D
the Schedule adopted only by incorporation Sections 4(1) and 6(1) and the
. ..<.
subsequent amendments to Section 6 did not become part of the Adhiniyam
and they have no effect on the operation of the provisions of the Adhiniyam.
Sahai J., however, took a contrary view. He was of the opinion that whether
a legislation was by way of incorporation or by way of reference is more a
matter of construction by the courts keeping in view the language employed E
by the enactment, the purpose of referring or incorporating provisions of an
existing Act and the effect of it on the day to day working. According to the
learned Judge such legislation by incorporation is subject to exceptions and
that one such situation where legislation by incorporation is excluded is if it
creates difficulty in day to day working. The learned Judge was of the view
that in our constitutional set up the exception can be extended further and F
~
the Courts should lean against a construction which may result in
discrimination. He, therefore, held that the amendments introduced in the L.A.
Act by the 1984 Act would be applicable to acquisition of land for the
purpose of the Adhiniyam and restriction of three years added by the first
proviso to Section 6 of the L.A. Act was applicable to acquisition for the G
purposes of the Adhiniyam also. The learned Judge, however, took note of
the fact that the Parishad had entered into possession and had constructed
housing colonies as there was no interim order in favour of the land owners
during pendency of the writ petitions in the High Court and observed that
larger social interest requires this Court to mould the relief in such manner
that justice may not suffer. He, therefore, held that even though publication H
268
SUPREME COURT REPORTS
[1998] 1 S.C.R.
A of declarations under the Act were beyond the period of three years it was
not in the interest of justice to quash the proceedings but the land owners
should be paid compensation of the land acquired on market value prevalent
in the year in which the declaration analogous to Section 6 of the earlier Act
was published/issued by fictionally assuming that fresh notification under the
B Act analogous to Section 4 was issued in that year.
c
D
E
F
G
Another question that came up for consideration in Gauri Shankar
Gaur (supra) was whether the provisions contained in the L.A. Act, as
amended by Section 55 read with the Schedule to the Adhiniyam, have ceased
to operate after the enactment of the 1984 Act in view of Article 254 of the
Constitution for the reason that the provisions contained in the Adhiniyam
are repugnant to the provisions contained in the L.A. Act as amended by the
1984 Act. Ramaswamy J. has dealt with this question and has held that the
Adhiniyam was a law made under Entry 6, Entry 5 and Entry 66 of List 11
(State List) and incidentally it took recourse to Entry 42 of List III (Concurrent
List) and that since the main purpose of the Adhiniyam was not the acquisition
of the property, as the provisions do indicate in pith and substance that they
did not occupy the same field, it was not fully inconsistent and were not
absolutely irreconcilable with the L.A. Act as amended by the 1984 Act and
that the Adhiniyam and the earlier Act both do co-exist in relation to the
procedure prescribed under both these Acts and the Adhiniyam did co-exist
independently with out in any was colliding with the earlier Act and, therefore,
Sectiou 55 and the Schedule did not become void under the proviso to Article
254 (2) of the Constitution. Sahai J. has, however, not considered the said
question of tepugnancy of the Adhiniyam to the L.A. Act as amended by the ·
1984 Act.
Since there was difference of opinion between the learned Judges the
question regarding the applicability of the 1984 Act to acquisitions for the
purpose of the Adhiniyam in Gauri Shankar Gaur (supra), these matters
have been directed to be heard by a Bench of three Judges and that is how
these matters have come up before us.
Shri S.B. Sanyal, the learned senior counsel appearing for the Parishad,
has placed reliance on the judgment of Ramaswamy J. in Gauri Shankar Gaur
(supra) and has urged that the provisions of the L.A. Act, as modified by the
Schedule to the Adhiniyam, have been incorporated into the Adhiniyam and
as a consequence of such incorporation the provisions of the L.A. Act as
H modified must be read as a part of the Adhiniyam itself and any amendment
! ......
'
,
r-
~
k
r
y
U.P. A VAS EVAM VIKAS PARISHAD v. JAINULISLAM [S.C. AGRAWAL, J.]
269
made in the L.A. Act after the enactment of the Adhiniyam would not, ipso A
facto, apply so as to have the effect of modifying those provisions contained
in the Adhiniyam and, therefore, the amendments introduced in the L.A. Act
by the 1984 Act would not apply to an acquisition made for the purposes of
the Adhiniyam on the basis of the provisions of L.A. Act as modified by the
Adhiniyam. On behalf of the land owners reliance has been placed on the B
judgment of Sahai J. in Gauri Shankar Gaur (supra) and has been submitted
that the amendments introduced in the L.A. Act by the 1984 Act are applicable
to an acquisition for the purposes of the Adhiniyam.
A subsequent legislation often makes a reference to an earlier legislation
so as to make the provisions of the earlier legislation applicable to matters C
covered by the later legislation.