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TMI Blog2003 (3) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... rimarily, in this appeal, this Court is called upon to decide the question whether amendments made to the Land Acquisition Act by Central Act No. 68 of 1984 to Sections 23 and Section 28 which confer certain additional monetary benefits to the land holders are to be made applicable to the instant acquisition. It may be noted that by Central Act 68 of 1984, sub-section (1-A) was added to Section 23 which entitled the claimants to receive the amount calculated at the rate of 12 per cent per annum on the market value for the period commencing on and from the date of the publication of the notification under Section 4(1) upto the date of the award or the date of taking possession of the land, whichever is earlier. It is ruled by the Constitution bench in Sunder vs. Union Of India (2001 (7) SCC 211) that this additional amount is part of compensation awarded. Another benefit made available under Act 68 of 1984 is the enhancement of solatium payable as per sub-section (2) of Section 23 from 15 per cent to 30 per cent. Under Section 28, as amended, the claimant is entitled to receive interest on the excess compensation awarded at the increased rates. The contention on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensive development, which ever is earlier, or as the case may be, the date or publication of the draft town planning scheme Provisos omitted. The other provisions contained in Sections 125, 126, 128 and 129 may also be noted. Section 125 lays down that any land required, reserved or designated in a regional plan, development plan or town planning scheme for a public purpose including plans for any area of comprehensive development or for any new town shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. Section 126(1) deals with modes of acquisition. It provides that after the publication of a draft regional plan or a development or other plan or town planning scheme, if any land is required or reserved for any of the public purposes specified in the plans or scheme, the Planning Authority, Development Authority or any Appropriate Authority may acquire the land (a) by mutual agreement; (b) by granting the land owner or the lessee subject to his paying or depositing the value of the lessor's interest, floor space index or transferable development rights against the area of the land surrendered free of cost and free fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue of the land shall be the market value at the date of declaration in the Official Gazette made for acquiring the land afresh. Then, we come to Section 128(1) which enables the State Government, notwithstanding anything contained in the Act, to acquire lands for a purpose other than the one specified in any plan or scheme, by invoking the provisions of L.A. Act. Sub-section (2) provides that the Planning Authority or the Development Authority or appropriate Authority shall be deemed to be a 'person interested' in the land acquired. It also says that in determining the amount of compensation the market value shall be assessed as if the land has been released from the reservation, or designation made in any plan or scheme. Sub-section (3) enjoins that on the land vesting in the State Government under Section 16 or 17 of the earlier Act, the relevant plan or scheme shall be deemed to be suitably varied by reason of acquisition of the land. Section 129 corresponds to Section 17 or the L.A. Act and provides for taking possession of the land in case of urgency after giving notice of 15 days and thereupon the land shall vest in the State Government free from encumbrances. For se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may be few or numerous. When such legislative device is adopted, the relevant provisions of the earlier Act will apply mutatis mutandis to the matters governed by the later Act. But, the difficulty in construction would arise when the earlier Act is repealed or amended/modified. The intricate question then would be whether the repeal or amendments should be ignored and the borrowed provisions should be read as they were at the time of enactment of later Act OR the provisions of earlier Act should be applied subject to subsequent amendments/modifications. If there is a definite indication in the later Act as to the applicability or otherwise of subsequent amendments in the Act referred to, no difficulty arises; but, the problem arises when there is no such indication. It is here that we come across two allied but qualitatively different concepts of statutory interpretation known as incorporation by reference and mere reference or citation of earlier statute in the later Act. In the former case, any change in the incorporated statute by way of amendment or repeal has no effect on the incorporating statute. In other words, the provisions of the incorporated statute as they stood at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficult. The semantics associated with interpretation play their role to a limited extent. Ultimately, it is a matter of probe into legislative intention and/or taking an insight into the working of the enactment if one or the other view is adopted. The doctrinaire approach to ascertain whether the legislation is by incorporation or reference is, on ultimate analysis, directed towards that end. The distinction often pales into insignificance with the exceptions enveloping the main rule. Did the Legislature intend to bind itself to any future changes that may be made to the earlier enactment from which the provisions are borrowed ? OR whether the Legislature had frozen the provisions of earlier Act prevailing on the date of enactment of later statute so as to insulate it from the impact of subsequent modifications ? These are the questions which loom large in judging the question whether the provisions borrowed from an earlier Act should be read subject to the subsequent amendments made therein. The language, the scheme and purpose of the Act no doubt assume significance while finding answer to this question. One indicia to spell out whether it is a case of incorporation or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified provisions of the earlier Act to the exercise of power of acquisition under M.R.T.P. Act. The learned Judges proceeded on the basis that the scheme and provisions of U.P. Adhiniyam and M.R.T.P. Act are the same. Though we find that there are certain differences between the two provisions, it is however not necessary to dilate on this aspect further. The ultimate conclusion in Sant Joginder Singh's case seems to rest on the ratio that there is sufficient indicia in M.R.T.P. Act itself to exclude the applicability of Section 11A of the L.A. Act in view of sub-Sections (2) and (4) of Section 126. As we are approaching the question of correct interpretation of Section 126(3) from a different perspective, there is no need to enter into a further discussion as to whether and to what extent support can be drawn from this decision. We are of the view that the issue arising in the present case can be decided on a different principle in the light of two recent decisions of this Court without undertaking an exercise of placing Section 126(3) into one or the other category of legislation. First, we have the case of U.P. Avas Evam Vikas Parishad v. Jainul Islam (1998 (2) SCC 46 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust Act whereby Section 23 of the earlier Act had been modified in its application for the purpose of acquisition under the said Act would, therefore, equally apply while considering the constitutional validity of the provisions of the Adhiniyam whereunder the provisions of Section 23 of the LA Act have been modified under the Schedule to the Adhiniyam. The opinion was further reinforced in Para 31 and a final view was expressed in the following terms Since the present case involves acquisition of land under the provisions of the LA Act as applicable under the Adhiniyam, it is fully covered by the law laid down by this Court in Nagpur Improvement Trust. Keeping in view the principles laid down in the said decision of this Court, it has to be held that if the provisions of the Adhiniyam are so construed as to mean that the provisions of the LA Act, as they stood on the date of enactment of the Adhiniyam, would be applicable to acquisition of land for the purpose of the Adhiniyam and that the amendments introduced in the LA Act, by the 1984 Act relating to determination and payment of compensation are not applicable, the consequence would be that the provisions of the LA Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) is a part. In fact the modifications made by MRTP Act to the provisions of L.A. Act are minimal and at any rate, less substantial than those effected by U.P. Adhiniyam except in regard to the urgent acquisition dealt with by Section 129. The matters covered by the earlier Act have not been specifically referred to or restated because it is already ordained by Section 126(3) that the provisions of L.A. Act should be applied to the acquisition of land notified under the MRTP Act. As regards the determination of compensation, there are no modifications of substantial or drastic nature. The modification in Section 126(3) relating to the date of ascertainment of market value is only warranted in the context of the scheme of the Act. Section 126(4) read with the proviso to sub-section (2) is aimed at giving a fair deal to the land holder while at the same time reserving the power to issue a fresh declaration notwithstanding the expiry of one year. If such fresh declaration is issued, the market value shall be assessed with reference to the date of publication of fresh declaration. In our view, the provisions contained in Section 126 or any other provisions occurring in Chapter VII (di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the provisions of the land Acquisition Act, as modified, the legislature did not intend to deprive the claimants of solatium as provided under the Land Acquisition Act. But solatium was not payable in cases of acquisition under the State Acts. There are provisions in both the State Acts which permit the State to acquire lands for the purposes of the schemes without resorting to the provisions of the Land Acquisition Act such as acquisition by purchase, lease, exchange, or otherwise, or acquisitions contemplated under deferred street scheme, development scheme and expansion scheme. In respect of such acquisitions solatium is not payable. Such cases are similar to the acquisitions under Section 53 of the Bombay Town Planning Act which was considered by this Court in Prakash Amichand Shah v. State of Gujarat. In these circumstances with a view to save the law from the vice of arbitrary and hostile discrimination, the provisions must be construed to mean, in the absence of anything to the contrary, that the provisions of the Land Acquisition Act as amended by the 1984 Act relating to determination and payment of compensation would apply to acquisition of land for the purposes of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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