State Of Uttarakhand & Another vs M/S Ski And Snow Resorts Pvt. Ltd. on 9 July, 2010

Uttaranchal High Court

Reserved

HIGH COURT OF UTTARAKHAND, AT NAINITAL

Special Appeal No.02 of 2009

State of Uttarakhand & another ... Appellants Versus

M/s Ski and Snow Resorts Pvt. Ltd. ... Respondent

Dated:- 09th July, 2010

Coram: Hon. Tarun Agarwala, J.

Hon. V. K. Bist, J.

Per:- Hon'ble Tarun Agarwala, J.

The present special appeal has been filed by the State of Uttarakhand against the judgment dated 30th September, 2008 passed by the learned Single Judge in Writ Petition No.180 of 2008 (M/S) by which the learned Single Judge has quashed the proceedings initiated by the Assistant Collector under Section 166 & 167 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the UPZA & LR Act).

2. The facts leading to the filing of the Special Appeal is that Dr. Vijay Singh Pal and Arun Singh, belonging to the Scheduled Tribes community, sold plot nos.15, 16 and 17 measuring 15 naali and 12 muthi (0.315 hectares) by means of a sale deed dated 24.04.1996 to the writ petitioner M/s Ski & Snow Resorts Pvt. Ltd., which is a company duly incorporated under the Companies Act and which is engaged in tourism and hospitality business. Subsequent to the sale deed, the land was declared non-agriculture under Section 143 of the UPZA & LR Act, upon which the writ petitioner (now 'opposite party' in this Special Appeal) constructed a resort at Auli in District Chamoli under the name and style of M/s Ski & Snow Resort, which is alleged to be registered under the Sarai Act. It is alleged that the tourism department of the State Government proposed acquisition of the land at Auli for promoting winter games, but, subsequent upon the representation of the 2

writ petitioner, the State Government excluded the land of the petitioner from acquisition. The State Government also constructed a winter resort at the same place, namely at Auli and, it is alleged that there was some dispute with regard to the demarcation of the land in which proceedings have been initiated and certain portion constructed by the petitioner was demolished. In this regard, the writ petitioner has filed a suit, which is pending consideration before the Civil Judge (Junior Division), Gopeshwar in District Chamoli.

3. In the meanwhile, the Revenue Inspector, Joshimath submitted a report dated 28.11.2007 and the Tehsildar also submitted a report dated 30th November, 2007 indicating therein that Dr. Vijay Singh Pal, being a member of the Scheduled Tribes community, was debarred from selling the land to a person outside his community under Section 157-B of the UPZA & LR Act. The report submitted by the Revenue Inspector and the Tehsildar indicated that Dr. Vijay Singh Pal had illegally transferred the land to the petitioner, who did not belong to the Scheduled Tribes community and that the sale deed executed was in violation of the provision of Section 157-B of the UPZA & LR Act. On the basis of the said reports, the Assistant Collector, Joshimath, District Chamoli registered a case under Section 166 and 167 of the UPZA & LR Act, being case No.6 of 2007-2008, and issued notices to Dr. Vijay Singh Pal and his nephew as well as to the writ petitioner to show cause as to why the land should not vest in the State Government for the contravention of the provision of Section 157-B of the UPZA & LR Act. It transpires that Dr. Vijay Singh Pal filed his reply before the authority admitting that he was not aware of the provision of Section 157-B of the UPZA & LR Act and that he was not aware that previous permission was required to be obtained from the Collector before transferring the property to the writ petitioner. The writ petitioner, instead of filing a reply, preferred Writ Petition No.180 of 2008 (M/S) praying for the quashing of the proceedings initiated by the Assistant 3

Collector under Section 166 & 167 of the UPZA & LR Act. The said writ petition was entertained and, eventually, the learned Single Judge, by the impugned judgment, quashed the proceedings.

4. The State Government, being aggrieved by the aforesaid judgment, preferred a Special Leave Petition before the Supreme Court of India and, upon an objection being raised by the writ petitioner with regard to the maintainability of the Special Leave Petition, withdrew the appeal seeking liberty to file a Special Appeal before the Division Bench of the High Court. Accordingly, the present Special Appeal has been filed by the State of Uttarakhand against the decision of the learned Single Judge under Chapter VIII Rule 5 of the Rules of the High Court.

5. The learned Single Judge, while quashing the proceedings held that Section 157-B of the UPZA & LR Act was not applicable to the land which was situated in Auli in District Chamoli, which was governed by the provisions of the Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960 (hereinafter referred to as KUZA Act). The learned Single Judge held that since Section 157-B was not applicable to the areas governed by the KUZA Act, the sale made in favour of the petitioner by Dr. Vijay Singh Pal was not a void sale deed and consequently, the proceedings initiated under Section 166 & 167 of the UPZA & LR Act was an abuse of the process of law. The learned Single Judge held that only certain provisions of UPZA & LR Act were applicable to the KUZA Act as per Section 47 and 52 of the KUZA Act, which existed at that time when KUZA Act was enacted. The learned Single Judge held that Section 157-B was inserted in the UPZA & LR Act by U.P. Act No.20 of 1982 w.e.f 03.06.1981 and that the amending Act did not indicate any provision by which the said insertion of Section 157-B was made applicable to the areas governed by the KUZA Act. The learned Single Judge held that since there was no express 4

provision in the Amending Act No.20 of 1982, the said provision, consequently, was not applicable to KUZA Act. The learned Single Judge was further of the opinion that since certain provisions of UPZA & LR Act was incorporated in the KUZA Act and, therefore, only those provisions which was incorporated at the initial stage were applicable and subsequent insertion of Section 157-B in the UPZA & LR Act would not apply to areas governed by the KUZA Act. The learned Single Judge further held that the KUZA Act was a complete and self- contained Act and was not pari materia with UPZA & LR Act.

6. We have heard Sri S. N. Babulkar, the learned Advocate General assisted by Sri Subhash Upadhyaya, the learned Brief Holder for the State of Uttarakhand and Sri Sharad Sharma, the learned senior counsel assisted by Sri Sudhir Kumar and Sri J. K. Khanna, the learned Advocates for the writ petitioner.

7. The learned Advocate General for the appellants submitted that the writ petition was not maintainable against a show cause notice and that all such objections, as raised in the writ petition, being disputed questions of fact, could have been raised by the petitioner before the Assistant Collector, who would have decided the matter by a reasoned and speaking order. The learned Advocate General further submitted that the provision of Section 157-B of the UPZA & LR Act was applicable to the areas governed by the KUZA Act and that the provisions of UPZA & LR Act has been adapted in the KUZA Act by reference and not by incorporation. The learned counsel submitted that since the provision of UPZA & LR Act has been adapted by reference, any amendment made in the UPZA & LR Act becomes automatically applicable to the KUZA Act and that there was no requirement that a specific provision was required to be made in the Amending Act making the said provision applicable to the KUZA Act. 5

8. On the other hand, the learned senior counsel for the writ petitioner submitted that the provisions of the UPZA & LR Act has been adapted in the KUZA Act by incorporation and, consequently, only those provisions which were initially incorporated by Section 47 and 52 of the KUZA Act are only made applicable to the KUZA Act and that any subsequent amendment or insertion of a new provision made in UPZA & LR Act would not automatically apply to the areas governed under the KUZA Act unless a special provision was made in the Amending Act indicating that the said provision would also apply to the areas governed by the KUZA Act. The learned senior counsel Sri Sharad Sharma submitted that under the Amending Act No.20 of 1982 there is no provision which would indicate that Section 157-B of the UPZA & LR Act would also apply to the areas governed by the KUZA Act. In the absence of such a provision, the learned counsel submitted that Section 157-B of the UPZA & LR Act was not applicable and that the learned Single Judge had rightly quashed the proceedings.

9. The learned counsel for the parties placed reliance on various judgments in support of their submissions, which would be dealt with at the appropriate place. While dealing with the rival submissions of the parties, it would be essential to consider certain provisions of the UPZA & LR Act and the KUZA Act.

10. Admittedly, the land in dispute is situate in Auli in District Chamoli and is covered by the provision of the KUZA Act. In the year 1950, the UPZA & LR Act was enacted by the State of Uttar Pradesh. Section 2 of the UPZA & LR Act stipulated that the State Government may by notification apply the whole or any provision of this Act to the areas specified in the first Schedule of U.P. Tenancy Act, 1939. Section 1 of the U.P. Tenancy Act, 1939 read with the first Schedule stipulated that the said Act was not applicable to the Garhwal region. The district of Chamoli is in the Garhwal region, and accordingly, when 6

UPZA & LR Act was enacted, it was not made applicable to the Garhwal region. The KUZA Act came into force in the year 1965. By virtue of Section 27, 41, 47 and 52 of the KUZA Act, certain provisions of UPZA & LR Act and its Rules were made applicable to the areas governed by the KUZA Act. For facility, Section 3(18), Section 27, Section 41, Section 47 and Section 52 of the KUZA Act, which has a relevance to the dispute in question is extracted hereunder:- "3 (18) [references to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and the U.P. Land Revenue Act, 1901 or to rules framed

thereunder shall be construed respectively as references to the said Acts or rules as amended from time to time, and references to enactments relating to acquisition of land for a public purpose shall be construed as references to those enactments as amended from time to time in their application to Uttar Pradesh.]

27.(1) the provisions of Chapter VI of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951); and of the rules framed thereunder shall, mutatis mutandis apply to the area to which the notification under Section 4 relates; but the State Government may by order published in the Official Gazette make such

adaptations, modifications and alterations or exceptions, not affecting the substance, as may in its opinion appear necessary and any such adaptation, modification, alteration or exception shall not be questioned in any court of law.

(2) Every such order shall have the effect form the date of commencement of this Chapter.

41. Superintendence, management and control of land (U.P. Act 1 of 1951).- (1) the provisions of Chapter VII of the U.P. Zamindari Abolition and Land Reforms Act, 1950, and of the Rules made thereunder, shall mutatis mutandis apply to the areas to which the notification under Sections 4 relates and to such lands things (including forests and uncultivated land not belonging to any tenure- holder) as may be prescribed; but the State

Government may, by order published in the official Gazette, make such adaptation, modification, alteration or exception, not affecting the substance, as may in its opinion appear necessary and any such adaptation, modification, alternation or exception shall not be questioned in any Court of Law. (2) Every such order shall have effect from the date commencement of this Chapter.

[47. Application of the provisions of Chapter VIII and X of U.P. Act 1 of 1951.- (1) The provisions of Sections 134 to 139, 142 to 146, 152 to 195, 197 to 211-A, 212-B, 212-C, 213 to 230, 232 and Section 241 to 294 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, and of the rules framed under Sections 230 and 294 of the said Act, 1950, and of the rules framed under Section 230 and 294 of the said Act shall mutatis mutandis apply to the area to which the notification under Section 4 relates, but the State Government may, by order published in the official Gazette, make such adaptation, modification, alteration, or exception not affecting the substance as may in its opinion appear necessary and any such adaptation, 8

modification, alteration, or exception shall not be questioned in any court of law;

[Provided that Section 245 of the said Act

shall, in relation to such area, apply with the following modifications:-

(i) one and a half acres of land in areas to which this Act applies shall count as one

acre;

(ii) in a district where there are no hereditary rates, the reference to 'hereditary rates'

shall be construed as a reference to

'village land revenue rates';

(iii) in relation to any district in which the maximum hereditary rates or village land

revenue rates do not exceed rupee one per

acre, the words 'rupees five' and 'rupees

ten' in clause (i) of the proviso to sub-

section (2) of the said Section 245 shall be substituted by the words 'rupees three' and

'rupees five' respectively and the words

'rupees ten' and rupees 'twenty' in clause

(ii) thereof shall be substituted by the

words 'rupees six' and 'rupees ten'

respectively. ]

(2) Every such Order shall have effect from the date of commencement of this Chapter.

[(3) The State Government may, by a subsequent notified order, supersede or modify an order issued under sub-section (1) wholly or partly, and any such suppression or modification may by made retrospectively to a date not earlier than the date of the order issued under that sub-section.]

52. Application of provisions of certain sections of Chapter XII of U.P. Act 1 of 1951 to Kumaun and Uttarakhand.- (1) The provision of Section 321 of 331-A, 333 to 336, 338 and 341 to 344 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951), and of the rules framed under Section 344 of the said Act shall mutatis mutandis apply to Kumaun and Garhwal Division but the State Government may, by order published in the official Gazette, make such adaptation, modification, alteration or exception not affecting the substance as may in its opinion appear

necessary and any such adaptation, modification, alteration or exception shall not be questioned in any court of law.

(2) Every such order shall have effect from

the date of commencement of this Chapter."

11. A reading of the aforesaid provisions of the KUZA Act indicate that certain provisions of the UPZA & LR Act were made applicable. Amongst other provisions, Sections 152 to 195 of the UPZA & LR Act were made applicable to the areas governed by the KUZA Act.

12. Section 157-B was introduced vide amendment in UPZA & LR Act w.e.f. 03.06.1981 by U.P. Act No.21 of 1982. The said provision is extracted hereunder:-

"157-B. Restrictions on transfer of land by members of Scheduled Tribes.- (1) Without prejudice to the restrictions contained in sections 153 to 157, no bhumidhar or asami belonging to a Scheduled Tribes shall have the right to transfer by way of sale, gift, mortgage or lease or otherwise any land to a person not belonging to a Scheduled Tribes."

13. Under this provision, no bhumidhar or asami belonging to the Scheduled Tribes would have a right to transfer by way of sale, gift, mortgage or lease or otherwise any land to a person not belonging to a Scheduled Tribe. In the light of the aforesaid provisions, the court has 10

to see and decide as to whether by virtue of the provisions of Sections 3(18), 27, 41, 47 and 52 of the KUZA Act, certain provisions of UPZA & LR Act has been adapted in the KUZA Act by way of reference or by way of incorporation.

14. Adaptation of a provision by a reference or citation or by incorporation is an accepted device of legislation. If the adapting Act refers to certain provisions of an earlier existing Act, it is known as legislation by reference but if the provisions of another Act are bodily lifted and incorporated in the new Act, it is known as legislation by incorporation. The distinction between a legislation by reference or by incorporation is not easy to highlight and the distinction is one of difference in degree and is often blurred. There are no clear cut guidelines or distinguishing features which would ascertain as to whether the said adaptation belongs to one category or the other. The Supreme Court in the case of Bharat Cooperative Bank (Mumbai) Ltd. Vs. Cooperative Bank Employees Union 2007 (4) SCC 685 held:-

"21. .................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. Therefore, the kind of language used in the provision, the scheme and purpose of the Act assume significance in finding answer to the question. (See: Collector of Customs vs. Sampathu Chetty & Anr. ). The doctrinaire approach to ascertain whether the legislation is by incorporation or reference is, on ultimate analysis, directed towards that end."

15. In Rakesh Vij Vs. Dr. Raminder Pal Singh Sethi & others 2005 (8) SCC 504, the Supreme Court held as under :- 11

"In Maxwell on The Interpretation of Statutes (Twelfth edition 1969) on page 28 it is said that the primary rule is to give literal construction and if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences. In Chapter 2, page 28, the principle has been stated thus: -"The rule of construction is "to intend the Legislature to have meant what they have actually expressed". The object of all interpretation is to discover the intention of Parliament, but the intention of Parliament must be deduced from the language used, for it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law."

16. In the light of the aforesaid, we have to consider various decisions of the Supreme Court in this regard. As early as in 1931, the Privy Council in the case of Secretary of State Vs. Hindustan Cooperative Insurance Society Ltd. reported in A.I.R. 1931 Privy Council 149 held as under:-

"In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second." The Privy Council further held as under:-

"It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no

addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function

effectually without the addition."

17. The Supreme Court in Shamrao Vs. Parulekar & others A.I.R. 1952 SC 324 held as follows:-

7. The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to

incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. ..........."

18. The doctrine of legislation by incorporation and its effect has been dealt with by this Court in a catena of decisions. In Ram Sarup vs. Munshi & Ors. AIR 1963 SC 553, a Constitution Bench held that repeal of Punjab Alienation of Land Act, 1900 had no effect on the continued operation of the Punjab Pre-emption Act, 1913 and that the expression "agricultural land" in the later Act had to be read as if the definition of the Alienation of Land Act had been bodily transposed into it. After referring to what Brett, L.J. said on the effect of incorporation in Clarke vs. Bradlaugh, namely, "where a statute is incorporated, by reference, into a second statute the repeal of the first statute by a third does not affect the second", it was observed as follows:-

"Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. 13

In the circumstances, therefore, the repeal of the Punjab Alienation of Land Act of 1900 has no effect on the continued operation of the Pre-emption Act and the expression 'agricultural land' in the later Act has to be read as if the definition in the Alienation of Land Act had been bodily transposed into it."

19. In Bolani Ores Ltd. vs. State of Orissa 1974 (2) SCC 777, the Supreme Court was considering the question regarding the interpretation of Section 2(c) of the Bihar and Orissa Motor Vehicles Taxation Act, 1930 (for short "the Taxation Act"). This Section when enacted adopted the definition of "motor vehicle" contained in Section 2(18) of the Motor Vehicles Act, 1939. Subsequently, Section 2(18) was amended by Act 100 of 1956 but no corresponding amendment was made in the definition contained in Section 2(c) of the Taxation Act. It was submitted that the definition in Section 2(c) of the Taxation Act was not a definition by incorporation but only a definition by reference and that the meaning of "motor vehicle" in Section 2(c) must, therefore, be taken to be the same as defined from time to time in Section 2(18) of the Motor Vehicles Act, 1939. The submission was rejected by the Supreme Court and it was held that it was a case of incorporation and not reference and that the definition in Section 2(18) of the Motor Vehicles Act, 1939, as then existing, was incorporated in Section 2(c) of the Taxation Act and neither repeal of the Motor Vehicles Act, 1939 nor any amendment in it would affect the definition of "motor vehicle" in Section 2(c) of the Taxation Act.

20. The legal position has been summed by the Supreme Court in the State of Madhya Pradesh Vs. M. V. Narasimhan AIR 1975 SC 1835, in which the Supreme Court held as under:- "where a subsequent Act incorporates provisions of a previous Act, then the borrowed provisions become an integral and independent part of the subsequent Act and 14

are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases :

(a) Where the subsequent Act and the previous Act are supplemental to each other;

(b) where the two Acts are in pari materia;

(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and (d) where the amendment of the previous Act, either expressly or by necessary intendment, applied the said provisions to the subsequent Act."

21. In Mahindra & Mahindra Ltd. Vs. Union of India & Anr. 1979 (2) SCC 529, the question was in regard to the effect of subsequent amendment in Section 100 of the Code of Civil Procedure, 1908 on Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 (for short "The MRTP Act"). Section 55 of the MRTP Act provided an appeal against an order of the Monopolies and Restrictive Trade Practices Commission on "one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908". Section 100 of the Code of Civil Procedure was substituted by a new Section in 1976, which narrowed the grounds of appeal under that Section. In construing Section 55 of the MRTP Act, the Supreme Court held that Section 100 of the Code as it existed in 1969 was incorporated in Section 55 and the substitution of new Section in the Code, abridging the grounds of appeal, had no affect on the appeal under Section 55 of the MRTP Act.

22. In U.P. Avas Evam Vikas Parishad Vs. Jainul Islam & another AIR 1998 SC 1028, the Supreme Court held :- "17. A subsequent legislation often makes a

reference to an earlier legislation so as to make the 15

provision of the earlier legislation applicable to matters covered by the later legislation. Such a legislation may either be (i) a referential legislation which merely contains a reference to or the citation of the provisions of the earlier statute; or (ii) a legislation by incorporation where under the provisions of the earlier legislation to which reference is made are incorporated into the late legislation by reference. If it is 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 the subsequent legislation. In other words, any amendment made in the earlier legislation after the date of enactment of the subsequent legislation would also be applicable. But if it is a legislation by incorporation the rule of construction is that repeal of the earlier statute which is incorporated does not affect operation of the subsequent statue in which it has been incorporated. So also any amendment in the statue 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 of the statue which have been incorporated would remain the same as they were at the time of incorporation and the subsequent amendments are not to be read in the subsequent legislation. In the words of Lord Esher, M.R. the legal effect of such incorporation by reference "is to write those sections into the new 16

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 to refer to the former Act at all.

................"

23. The Supreme Court in the said judgment further held as under:- "17. ................As to whether a particular legislation falls in the category of 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."

24. In Kerala State Road Transport Corporation Vs. K.O. Varghese & others 2003 (12) SCC 293, the Supreme Court held as follows:-

"29. One of the issues which needed

consideration was indication of KSR Part III on the question of paying pension in the Corporation's order dated 5-5-1984. A distinction has been made between a mere reference or citation of one statute into another and incorporation. A statute may instead of referring to a particular previous statute or to any specific provision therein refer to the law on the subject generally. In such cases a reference is construed to mean that the law is as it reads thereafter including amendments subsequent to the time of adoption, as was noted by Sutherland: Statutory Construction.

30. The legislation by referable incorporation falls into two categories. That is (i) where a statute by specific reference incorporates the provisions of another statute as at the time of adoption, and (ii) where a statute incorporates by general reference. The law concerning a particular subject has a genus. In the former case the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. But in the second category it may be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the generic law on the subject adopted by the general reference.

31. In the former case a modification, repeal or re-enactment of the statute that is referred will also have effect on the statute in which it is referred; but in the latter case any change in the

incorporation statute by way of amendment or repeal has no repercussion on the incorporating statute. The rule that the repeal or amendment of an Act which is incorporated in a later Act has no effect on the later Act or on the provisions incorporated therein is subject to four exceptions. They are: (i) where the later Act and the earlier Act are

supplemental to each other, (ii) where the two Acts are in pari materia, (iii) where the amendment of the earlier Act if not imported in the later Act would render it wholly unworkable, and (iv) where the amendment of the earlier Act either expressly or by necessary intendment also applies to the later Act. Even though only particular sections of an earlier 18

Act are incorporated into the later statute, in construing the incorporated provisions it may be necessary and permissible to refer to other parts of the earlier statute which are not incorporated. This does not however mean that a provision in the nature of a proviso or exception in the earlier Act which is not brought in by incorporation can be read in a manner so as to limit the meaning of the provision incorporated. Reference to other provisions of the earlier statute is only permissible to cull out the meaning of the provision incorporated."

25. Similar view was reiterated by the Supreme Court in State of West Bengal Vs. Kedarnath Rajgarhia Charit, Trust Estate 2004 (12) SCC 425 and in P.C. Agarwala v. Payment of Wages Inspector, M.P.,(2005) 8 SCC 104 the Supreme Court held as follows:-

"9. A distinction has been made between a

mere reference or citation of one of the statutes into another and its incorporation. A statute may instead of referring to a particular previous statute or to any specific provision therein refer to the law on the subject generally. In such cases a reference is construed to mean that the law is as it reads thereafter including amendments subsequently to the time of adoption, as was noted by Sutherland; Statutory Construction.

10. Legislation by referable incorporation

falls into two categories. That is (i) where a statute by specific reference incorporates the provisions of another statute as at the time of adoption, and (ii) 19

where a statute incorporates by general reference. The law concerning a particular subject has a genus. In the former case the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. But in the second category it may be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the generic law on the subject adopted by the general reference."

26. In Rakesh Vij's case (supra), the Supreme Court held:- "28. Adopting or applying an earlier or existing Act by competent Legislature to a later Act is an accepted device of Legislation. If the adopting Act refers to certain provisions of 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. 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 purpose."

27. In Bharat Cooperative Bank (Mumbai) Ltd. (supra), the Supreme Court held as under:-

15. Before adverting to the said core issue, we may briefly notice the distinction between the two 20

afore-mentioned concepts of statutory interpretation, viz., a mere reference or citation of one statute in another and incorporation by

reference. Legislation by incorporation is a common legislative device where the legislature, for the sake of convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of verbatim reproducing the provisions, which it desires to adopt in another stature. Once incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute. On the contrary, in the case of a mere reference or citation, a modification, repeal or re-enactment of the statute, that is referred will also have effect on the stature in which it is referred."

28. It is, therefore, clear from the aforesaid decisions that if there is a mere reference to a provision of one statute in another without incorporation, then, unless a different intention appears, the reference would be construed as a reference to the provision as may be in force from time to time in the former statute. But if a provision of one statute is bodily lifted and incorporated in another, any subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the latter statute. Further, in order to ascertain as to whether a particular legislation is made by way of reference or by way of incorporation the court has to see the legislative intention and the language used in the section. 21

29. In the light of the aforesaid, let us peruse the provisions of Sections 27, 41, 47 and 52 of the KUZA Act. Section 27 provides that the provisions of Chapter VI of UPZA & LR Act and the rules framed therein shall mutatis mutandis apply to the area to which the notification under Section 4 relates. Similarly, Section 41 provides that the provisions of Chapter VII of UPZA & LR Act and the rules framed therein shall mutatis mutandis apply to the areas to which the notification under Section 4 relates. Similarly, Section 47 provides that certain Sections of Chapter VIII and X of UPZA & LR Act and the rules framed under Sections 230 and 294 of UPZA & LR Act shall mutatis mutandis apply to the area to which the notification under Section relates. Under Section 52, certain provisions of Chapter XII of UPZA & LR Act and the rules framed therein are made applicable.

30. A reading of Section 27, 41, 47 and 52 of the KUZA Act indicates that a general reference has been made adapting and applying the provisions of Chapter VI, VII, VIII, X and XII of UPZA & LR Act and the rules framed therein in KUZA Act. The said provision has not been bodily lifted nor incorporated. In fact, certain provisions of UPZA & LR Act has been referred to in the KUZA Act.

31. This view of ours is fortified by the use of the expression "mutatis mutandis" in the aforesaid sections. The Supreme Court in Ashok Service Centre Vs. State of Orissa 1983 (2) SCC 81, after referring to various decisions, concluded that the phrase "mutatis mutandis" means "that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like". In Prahlad Sharma Vs. State of U.P. 2004 (4) SCC 113, the Supreme Court held that "the expression 'mutatis mutandis' itself implies applicability of any provision with necessary changes in points of detail."

32. Consequently, extension of an earlier Act mutatis mutandis to a later Act brings in the concept of adaptation in so far as it is necessary for the purpose. Sections 27, 41, 47 & 52 of the KUZA Act shows that the State legislature intended not to depart substantially from the UPZA & LR Act except with regard to matters in respect of which express provision has been made in the KUZA Act. The legislature has expressly made the provision of UPZA & LR Act mutatis mutandis applicable to the KUZA Act. It cannot be held that there was a legislative intendment to restrict the applicability of UPZA & LR Act only to those provisions which were originally mentioned in Section 27, 41, 47 and 52 of the KUZA Act.

33. In the light of the aforesaid, the conclusion drawn is that the provisions of UPZA & LR Act has been adapted by a general reference. The language employed and the intention of the legislature is that any subsequent amendment made in the referred statute viz. UPZA & LR Act would automatically apply to the KUZA Act. Consequently, the conclusion drawn by the learned Single Judge that since certain provisions of UPZA & LR Act was incorporated in KUZA Act and that only those provisions of UPZA & LR Act which are mentioned in Sections 27, 41, 47 and 52 of KUZA Act would only be applicable is incorrect.

34. This view of ours further is fortified by the provision of Section 3(18) of KUZA Act which was added by U.P. Act XII of 1965 which in clear and categorical term clarifies that any amendment made in UPZA & LR Act and to the rules framed therein from time to time would be applicable by way of reference to the KUZA Act. Consequently, the legislative intent was to include all the subsequent amendments made from time to time on the subject adapted by general reference. 23

35. The learned Single Judge erred in holding that Section 3(18) of the KUZA Act was only applicable for amendments in UPZA & LR Act and not "an insertion of a new section". The learned Single Judge held that Section 157-B was inserted as a new section in UPZA & LR Act and was not added as a sub-section of a preexisting section. In our view, the approach adopted by the learned Single Judge is manifestly erroneous. The word "insertion", as defined in Concise Oxford English Dictionary, 10th Edition means "an amendment or addition inserted in a text". Consequently, an insertion of a new section in an Act is nothing else but an amendment made in the Act".

36. In the light of the aforesaid, Section 47 of KUZA Act provides that amongst other provisions of Chapter VIII and X of UPZA & LR Act, Section 152 to 195 of UPZA & LR Act shall mutatis mutandis apply to the KUZA Act. Section 157-B was added to UPZA & LR Act by U.P. Act No.21 of 1982. Section 157-B falls between 152 to 195 of UPZA & LR Act. Consequently, in the light of the fact that the provisions of UPZA & LR Act has been adapted by reference, the amendment made in 1982 adding Section 157-B automatically became applicable to the KUZA Act.

37. There is another aspect of the matter. The statement of object and reasons given in the UPZA & LR Act is :

"An Act to provide for the abolition of the

Zamindari system which involves intermediaries between the tiller of the soil and the State of the Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith."

38. On the other hand, the object and reasons given in KUZA Act is extracted hereunder:-

"An Act to provide for the acquisition of the rights, title and interest of persons between the State and the tiller of the soil in certain areas of the Kumaon and Garhwal Divisions and for the

introduction of land reforms therein."

39. A perusal of the statement of object and reasons of the two Acts leads to an irresistible conclusion that it is necessary to read and to construe the two Act together as if the two Acts are one and, while doing so, the provisions of KUZA Act can be given effect to.

40. In the circumstances, we are of the view that the learned Single Judge erred in holding that the two Acts were independent of each other. Without the provisions of UPZA & LR Act, the KUZA Act would be rendered ineffective and illusory. Consequently, we are of the view that KUZA Act is supplemental to the UPZA & LR Act.

41. There is yet another aspect of the matter. Section 157-B was inserted in UPZA & LR Act by U.P. Act No.21 of 1982 w.e.f. 03.06.1981. At that time, Kumaon and Garhwal Divisions were part of the State of Uttar Pradesh. As per the information available on the internet of the office of the Registrar General and Census Commission of India, Ministry of Home Affairs, Government of India, the Scheduled Tribes population of Uttar Pradesh at 2001 census, constituted a meager 0.1 percent of the total population of the State. Similarly as per 2001 census, the Scheduled Tribes population of Uttarakhand constituted 3 percent of the population of the State. The percentage of the population in 1982 would have been more or less the same. It is inconceivable to imagine that the legislative intent of the State Government of Uttar Pradesh was only to apply the provisions of 25

Section 157-B of the Act to all parts of the State of Uttar Pradesh except the Kumaon and Garhwal Divisions. Consequently, we are of the view that the legislative intent of the Government is that amendments made in UPZA & LR Act would automatically apply to the provisions mentioned in Section 27, 41, 47 and 52 of the KUZA Act.

42. In view of the aforesaid, we are of the opinion that Section 157- B, as inserted by U.P. Act No.21 of 1982, is applicable to the KUZA Act. Consequently, the registration of the case by the Assistant Collector under Sections 166 and 167 of UPZA & LR Act and the proceedings initiated therein was validly initiated. In the light of the aforesaid, the judgment of the learned Single Judge cannot be sustained and is set aside. The Special Appeal is allowed. In the circumstances of the case, parties shall bear their own cost.

(V. K. Bist, J.) (Tarun Agarwala, J.)

Dated 09th July, 2010

LSR

HIGH COURT OF UTTARAKHAND, AT NAINITAL

Special Appeal No.266 of 2009

M/s Harish Singh Bachi Singh & Co.

and others ... Appellants Versus

Director, Mandi Samiti,

Navin Mandi, Haldwani,

District Nainital ... Respondents

AND

Special Appeal No.272 of 2009

Alu Phal Aarhti Vyapari Association

Navin Mandi, Haldwani

District Nainital ... Appellant Versus

M/s Harish Singh Bachi Singh & Co.

and others ... Respondents

Dated:- 02nd July, 2010

Coram: Hon. Tarun Agarwala, J.

Hon. B. C. Kandpal, J.

Hon'ble Tarun Agarwala, J. (Oral)

Since both the special appeals raise a common issue, the same is being decided together.

2. Heard Mr. Manoj Tiwari, the learned senior counsel assisted by Mr. Alok Mehra, the learned counsel for the appellant in Special Appeal No.266 of 2009, Mr. Lalit Belwal, the learned counsel for the appellant Alu Phal Aahti Vyapari Association in Special Appeal No.272/2009, Mr. T.A. Khan, the learned counsel for the respondent M/s Paradise Fruit Center and Mr. J. C. Belwal, the learned counsel for the Mandi Samiti.

3. These Special Appeals under Chapter VIII Rule 5 of the High Court Rules have been filed against the judgment of the learned Single 27

Judge dated 10.12.2009 as well as against the order dated 24.12.2009 passed on the review application.

4. The essential facts leading to the filing of the appeals is that the Mandi Samiti framed a scheme in the year 2003 for the construction and allotment of the shops in Naveen Mandi yard at Haldwani. Against the allocation of the shops, one trader filed a suit and, thereafter, filed writ petition No.1258 of 2005 (M/S) in which an interim order was passed staying the policy with respect to the allotment of the shops. Eventually, the said writ petition was dismissed by a judgment dated 30th March, 2009.

5. Subsequently, fresh writ petitions were filed being aggrieved by the policy framed by the Mandi Samiti by which allotment of the newly constructed shops were being made to the traders and, therefore, prayed in the writ petitions that the Mandi Samiti respondent should be directed to make a fair allotment of 74 shops by adopting a proper criteria. The learned Single Judge, by an order dated 10.12.2009, held that the policy formulated by the Mandi Samiti is just and proper and requires no interference and while disposing of the writ petitions, the following directions were issued :-

"It is therefore directed that as a first step the "mandi samiti" shall delete within a period of ten days from today, the names of those applicants, if any, from the list who already have a shop in the market yard, either in individual name or even as a partner of a firm. After deleting the names of such persons who are clearly ineligible for allotment as per its own policy of the "mandi samiti", the "mandi samiti" shall prepare a list in descending order as per clause 1 of the policy by calculating the "mandi" fee given by the said applicants. In case the number of such applicants are less or equal than the number of shops then in such an eventuality the 28

shops will be allocated as per their names in the list and the use of lottery will not be for allocation of shops but only for the "choice" of shops. In case where the shops are less than the number of eligible candidates then as per the terms and conditions of its own policy, the shops shall be allocated by draw of lots, from these eligible candidates."

6. One of the writ petitioners filed a review application contending that one of the directions issued by the court was not in consonance with the policy framed by the Mandi Samiti that there was an error apparent on the face of the record which required reconsideration. The learned Single Judge partly allowed the review application, and deleted one direction of the court and substituted it with a fresh direction. The direction so deleted is quoted hereunder:-

"In case where the shops are less than the number of eligible candidates then as per the terms and conditions of its own policy, the shops shall be allocated by draw of lots, from these eligible candidates."

7. The learned Single Judge while deleting the aforesaid direction substituted it with the following direction:- "In case the shops are less than the number of eligible candidates then as per the terms and conditions of the policy, the shops will be allocated to the first 74 candidates who are at the top in the eligibility list, which has been prepared in terms of the descending order of the market fee paid for the last three years."

8. The appellants, being aggrieved by the aforesaid orders of the learned Single Judge, have now preferred the special appeals. 29

9. Special Appeal No.272/2009 has been filed by Alu Phal Aarhti Vyapari Association, who had also filed the review application. The appellant is aggrieved by the direction of the learned Single Judge by which the court directed the Mandi Samiti to prepare the list which does not contain the name of a trader, who had a shop in the market yard either in his name or even as a partner of a firm. The appellant submitted that such direction was not in consonance with the scheme and that the appellants have a fundamental right under Article 19(1)(g) to trade and get a shop allotted in their name, even if they possess a shop in the Mandi yard. The learned counsel further submitted that subsequent to the passing of the order, the Mandi Samiti prepared a list deleting their names, but subsequently gave a certificate that the appellant does not have a shop in their names and consequently filed the appeal for certain directions.

10. Special Appeal No.266 has been filed by M/s Harish Singh Bachi Singh & Company contending that the learned Single Judge committed an error in partly allowing the review application and passing a fresh order, which was against the policy framed by the Mandi Samiti. The learned counsel for the appellant submitted that the order passed in the review application was not only against the policy of the Mandi Samiti, but, the recall application was not maintainable nor could it be allowed. The learned counsel submitted that the learned Single Judge has acted as the appellate court in allowing the review application which could not have been done.

11. Having heard the learned counsel for the parties, the court finds that the directions given by the learned Single Judge is in consonance with the policy framed by the Mandi Samiti. A perusal of the policy indicates that priority was to be given to those traders who had no shops allotted to them and who were paying the Mandi fee. Clause 1 of the scheme indicates that a list would be prepared from those eligible 30

traders, who had no shop allotted in their name and who were paying Mandi Fee. Clause 1 indicated that the list would be prepared in the descending order, namely, that a trader who was paying the highest fee would be placed at serial no.1 and a person paying a lower Mandi fee would come at serial no.2. and so forth. In the light of this provision, the learned Single Judge found that there were 147 applicants and that the total number of shops constructed were 74 in number. The learned Single Judge accordingly directed that the Mandi Samiti would prepare a list of those applicants who do not have a shop in the market yard either in the individual name or even as a partner of a firm. Such direction in our view is in consonance with the scheme framed by the Mandi Samiti namely that the shops would be allotted to those traders who do not have a shop. The contention of the learned counsel for the appellant in Special Appeal No.272 of 2009 is, consequently, bereft of merit. At this stage, the contention of the learned counsel for the appellant that the Mandi Samiti has itself certified that the appellant do not have a shop and have arbitrarily been ousted from the list and therefore a direction should be issued is also bereft of merit. Such information was not before the learned Single Judge nor such documents could be considered in the appeal. In view of the aforesaid, Special Appeal No.272 of 2009 lacks merit.

12. With regard to Special Appeal No.266 of 2009, the submission of the learned counsel for the appellant that there was no error apparent on the face of the record and consequently the order could not be reviewed by the learned Single Judge is patently bereft of merit. The submission of the learned counsel for the appellant that earlier order directing the shops to be allocated by draw of lots was in consonance with clause 6 of the scheme is wholly erroneous and misconceived. From a combined reading of clause 1 and 6 of the scheme, it is clear that the list of eligible candidates who do not have a shop in the market yard was to be prepared in the descending order on the basis of the market fee 31

payable by such applicants. The court clarified the scheme by holding that where the number of applicants are less than or equal than the number of shops, then in such an eventuality, the shops would be allocated as per their names in the list and that the use of lottery will not be for allocation of the shops but only for the choice of shops. The learned Single Judge further directed that if the shops were less then the number of eligible candidates then the shops would be allocated by draw of lots. This part of the order was recalled and substituted by an order that in the event the shops were less than the number of eligible candidates then the shops would be allocated on the basis of the eligibility list in the order of seniority. In our view, the learned Single Judge rightly substituted the aforesaid direction replacing the direction of allotment of shop by draw of lots. The earlier direction was against clause 1 and 6 of the scheme. We find that there was an error apparent on the face of the record, which the learned Single Judge rightly rectified it by its order dated 24.12.2009.

13. In view of the aforesaid, we do not find any infirmity in the orders passed by the learned Single Judge. The Special Appeals fail and are dismissed. In the circumstances of the case parties shall bear their own cost.

(B. C. Kandpal, J.) (Tarun Agarwala, J.)

Dated 02.07.2010

LSR