Judgment

REPORTABLE 

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 3703 OF 2003 

Girnar Traders … Appellant Versus 

State of Maharashtra & Ors. … Respondents WITH 

CIVIL APPEAL NO. 292 OF 2011 

(Arising out of SLP (C) No.9734 Of 2005) 

Digambar Motiram Jhadhav …Appellant Versus 

The Commissioner & Ors. …Respondents 

J U D G M E N T 

Swatanter Kumar, J

Leave granted in SLP (C) No. 9734 of 2005. 

IA Nos.4 and 5 of 2009 in Civil Appeal No.3703 of 2003 are allowed subject to just exceptions and limited to this reference. Legalistic federalism was introduced as a technique of governance with the people of India adopting, enacting and giving

2

unto themselves the Constitution of India on 26th November, 1949. The legislative competence of the Central and State Legislatures has been demarcated by the Constitution under Article 246, with the fields for exercise of legislative power enumerated in List I (Central List), List II (State List) and List III (Concurrent List) of Schedule VII to the Constitution of India. Power to enact laws, thus, is vested in the Parliament as well as in the State Legislative Assemblies within their respective spheres. This is the paramount source for enactment of law, i.e., direct exercise of legislative power by the respective constituents. On the issue of distribution of powers between the Centre and the State, a Constitution Bench of this Court in Federation of Hotel & Restaurant Association of India v. Union of India [(1989) 3 SCC 634], noticed that the constitutionality of a law becomes essentially a question of power which, in a federal constitution, turns upon the construction of the entries in the legislative lists. Interpretative process, as a tool of interpretation, introduced new dimensions to the expansion of law enacted by Legislature, through Judge made law. Amongst others, doctrines of ‘legislation by reference’ and ‘legislation by incorporation’ are the creation of judicial pronouncements. One of the earliest instances, 

3

where the Privy Council, then responsible for Indian Judicial system, accepted the plea of ‘legislation by incorporation’ and interpreted the statute accordingly in the case of Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society Ltd. [AIR 1931 PC 149]. This judicial pronouncement was followed in different subsequent judgments and these doctrines were analyzed in greater depth for bringing out the distinction between them. The judgment of the Privy Council was referred with approval by this Court in different judgments including Municipal Commissioner of Howrah v. Shalimar Wood Products [(1963) 1 SCR 47]; Bolani Ores Ltd. v. State of Orissa [(1974) 2 SCC 777]; Mahindra & Mahindra v. Union of India [(1979) 2 SCC 529]; Ujagar Prints v. Union of India [(1989) 3 SCC 488]; U.P. Avas Evam Vikas Parishad v. Jainul Islam [(1998) 2 SCC 467]; Nagpur Improvement Trust v. Vasant Rao [(2002) 7 SCC 657] and Maharashtra State Road Transport Corporation v. State of Maharashtra [(2003) 4 SCC 200]. The principle that was enunciated by the Privy Council in the case of Hindusthan Co-operative Insurance Society Ltd. (supra) stated, “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 

4

the subsequent Act, can be deemed to be incorporated in it, at all events, if it is possible for the subsequent to function effectually without the addition”. Though this principle has been reiterated from time to time; with the development of law, still certain doubts were reflected in the judicial pronouncements of the courts as to the application of this principle as an absolute proposition of law. On the contrary, this principle received criticism from various quarters. The critics said that it was causing impediments in smooth operation of the later law as well as abdication of legislative power by the concerned legislative constituent. Another criticism and argument which, in fact, was even advanced before us is that while approving the principle stated by the Privy Council, the subsequent Benches have not taken into consideration the impact of the judgment of the Constitution Bench of this Court in B. Shama Rao v. Union Territory of Pondicherry [(1967) 2 SCR 650]. A pertinent constitutional aspect that ought to have been brought to the notice of different Benches was that the federal structure of the Constitution had come into force which controlled governance of the country and therefore the principles, inter alia, stated by the Privy Council could not be adopted as law of universal application without appropriately modifying the 

5

stated position of law to bring it in complete harmony with the constitutional mandate. In the case of Gauri Shankar Gaur v. State of U.P. [(1994) 1 SCC 92], one member of the Bench of this Court, relied upon the principle stated in Hindusthan Co-operative Insurance Society Ltd. (supra) and held that in a case of legislation by incorporation, subsequent amendment or repeal of the provisions of an earlier Act adopted cannot be deemed to have been incorporated in the adopting Act which may be true in the case of legislation by reference. This judgment was relied upon by another Bench of this Court in the case of State of Maharashtra v. Sant Joginder Singh Kishan Singh [1995 Supp.(2) SCC 475]. The amendments in various relevant laws and introduction and application of newly enunciated principles of law resulted in varied opinions. A Bench of this Court in the case of Girnar Traders v. State of Maharashtra [(2004) 8 SCC 505] (hereinafter referred to as ‘Girnar Traders-I) expressed certain doubts on the correctness of the law stated in the case of Sant Joginder Singh (supra) and referred the matter to a larger Bench.  

The Bench in Girnar Traders-I (supra) felt that there were good reasons for reading the provisions introduced by the Land Acquisition (Amendment) Act, 1984 (hereinafter referred to as the ‘Central Act 68 

6

of 1984’) into Chapter VII of the Maharashtra Regional and Town Planning Act,1966 (for short, ‘the MRTP Act’ or ‘the State Act’) and Section 11A of the Land Acquisition Act, 1894 (for short, ‘the Land Acquisition Act’ or ‘the Central Act’) is one of such provisions. Thus, the Constitution Bench is called upon to examine whether the MRTP Act is a self-contained Code or not, if so, to what effect? Further, whether, in any event, all the provisions of the Land Acquisition Act, as amended by Central Act 68 of 1984 with emphasis on Section 11A can be read into the provisions of the MRTP Act? 

The above questions require examination in light of the facts which, to some extent, have been referred to in the Order of Reference dated 14th October, 2004 which reads as under: 

“This appeal is directed against the judgment 

of the Division Bench of the High Court of 

Judicature at Bombay, Aurangabad Bench, 

dismissing the writ petition of the appellant 

under Article 226 of the Constitution. The 

question for consideration is: whether all the 

provisions of the Land Acquisition Act, 1894 

as amended by Central Act 68 of 1984 can be 

read into the provisions under Chapter VII of 

the Maharashtra Regional and Town Planning 

Act, 1966 for an acquisition thereunder. 

The appellant is a registered partnership firm 

owning certain lands situated within the 

7

jurisdiction of the second respondent Jalgaon Municipal Council. The land owned by the appellant was subject to a reservation in the draft development plan of Jalgaon town, which was published on 19-3-1987. Since the appellant was unable to develop the land under reservation, and no steps were being taken by the Jalgaon Municipal Council to acquire the said land under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as “the MRTP Act”), the appellant issued a notice dated 19-1-1989 under Section 49(1) of the MRTP Act, calling upon the State Government to either confirm or refuse the purchase notice within the period fixed under Section 49 of the MRTP Act. 

On 25-7-1989 the State Government, acting under Section 49(4) of the MRTP Act, confirmed the purchase notice issued by the appellant. Despite confirmation of the purchase notice, the second respondent Jalgaon Municipal Council did not take any steps under Section 126 of the MRTP Act, nor did it apply to the State Government for acquisition of the land under reservation. 

Ultimately, on 3-10-1991, the first respondent State Government issued a notification under Section 126(4) of the MRTP Act read with Section 6 of the Land Acquisition Act, 1894, declaring that the land concerned was required for a public purpose as indicated in the notification. This notification expressly mentions that the period of three years prescribed under Section 126(2) of the MRTP Act was over and, therefore, the State Government was acting under sub-section (4) of Section 126 of the MRTP Act.  

8

It is the case of the appellant that it had no knowledge of this declaration dated 3-10-1991 as no individual notice has been served on it, though this declaration was published in the Official Gazette on 15-10-1991. Despite the declaration under Section 126(4) of the MRTP Act, as aforesaid, nothing happened till March 1994. On 23-3-1994 the appellant issued second purchase notice under Section 49(1) of the MRTP Act. By a reply dated 10-4-1995, the State Government informed the appellant that inasmuch as the earlier purchase notice dated 19-1-1989 had already been confirmed by the State Government on 25-7-1989, and further since the Jalgaon Municipal Council has already initiated proceedings for acquisition of the land, the second purchase notice was rejected. 

The appellant challenged the said rejection by his Writ Petition No. 2829 of 1996 before the High Court of Judicature at Bombay. This writ petition was disposed of by the High Court by its judgment and order dated 31-3-1997 by which the State Government and the Municipal Council were directed to initiate the proceedings for acquisition of the lands in question within one year and complete the same within the time prescribed under the MRTP Act. The High Court further directed, “in case the authorities fail to initiate the acquisition proceedings within the prescribed period, the lands of the petitioners shall be deemed to have been released from the reservation”. 

According to the appellant, despite the order of the High Court, it was not informed about any steps taken by the authorities concerned for acquisition of its land. On 13-4-1998, the 

9

appellant issued a letter to the Special Land Acquisition Officer, Respondent 3, calling upon him to disclose whether any proceedings had been initiated for acquisition. The appellant, however, received no reply. 

On 18-2-1999, Respondent 3 issued a notice to the appellant under Section 12(2) of the Land Acquisition Act, 1894 calling upon him to accept the compensation for the land acquired as per the award. The appellant moved Writ Petition No. 822 of 2000 in the High Court of Judicature at Bombay and sought quashing of the notice under Section 12(2) of the Land Acquisition Act, 1894 and a direction enabling it to develop its land for residential purpose. By the impugned judgment, the High Court dismissed the writ petition by holding that the prayer for declaration of dereservation of the subject land as well as granting of permission to develop the property for residential purpose had already been declined by its earlier order dated 31-3-1997, which had become final as far as the appellant was concerned. The High Court thus took the view, “the only issue we are required to examine i.e. whether the Land Acquisition Officer has complied with our directions and if the directions were not complied within the period of one year, as set out by us, whether the petitioner is entitled for the reliefs prayed for in this petition”. The High Court held: “on perusal of the documents submitted before us we are satisfied that the requisite steps have been taken by the Special Land Acquisition Officer for acquisition of the subject land and after Writ Petition No. 2829 of 1996 was disposed of, there was no necessity to initiate fresh action by the Planning Authority as contemplated under 

10

Section 126(1)(c) of the MRTP Act”. In this view of the matter, the writ petition came to be dismissed. Hence, this appeal by special leave. 

Mr V.A. Mohta, learned Senior Counsel for the appellant urged that the scheme of the MRTP Act shows that, on receipt of an application under sub-section (1) of Section 126, if the State Government is satisfied that the land specified in the application is required for a public purpose, it may make a declaration to that effect in the Official Gazette in the manner specified in the Land Acquisition Act, 1894, and such declaration is deemed to be a declaration duly made under Section 6 of the Land Acquisition Act, 1894. The proviso to sub-section (2) of this section prescribes the period within which such declaration has to be made. Sub-section (3) of this section provides that on publication of the declaration under Section 6 of the Land Acquisition Act, 1894, the Collector shall proceed to take order for the acquisition of the land under the said Act, and thereafter, the provisions of the Land Acquisition Act, 1894 shall apply to the acquisition of the said land, subject to the modification introduced by sub-section (3), which pertains only to the market value of the land. The only change made in the scheme of this Act is that, if the State Government fails to make the declaration under sub-section (2) within the time provided in the proviso thereto, the declaration does not become bad as it is saved by sub-section (4). Under sub-section (4), notwithstanding the fact that the requisite declaration under sub-section (2) had not been made within the time provided therein, the State Government is empowered to issue 

11

a fresh declaration for acquiring the land in the manner provided by sub-sections (2) and (3) of Section 126 of the MRTP Act, but, if that be done, the market value of the land for the purpose of compensation shall be the market value at the date of such declaration made afresh. 

Mr. Mohta submitted that barring the above special modification introduced in the scheme of acquisition of land, in all other respects, the provisions of the Land Acquisition Act, 1894 would mutatis mutandis apply to an acquisition under Chapter VII of the MRTP Act. He pointed out that the MRTP Act contains neither any provision for payment of compensation, nor does it prescribe the time within which the award has to be made after a declaration is made under sub-sections (2), (3) or (4) of Section 126. It is urged that the legislature could not have left it vague and indefinite. In the submission of the learned counsel, this is a situation of invocation of the provisions of the Land Acquisition Act, 1894, not by incorporation, but by reference. In other words, as and when the provisions of the Land Acquisition Act, 1894 are amended, all the amended provisions would be attracted to an acquisition under Chapter VII of the MRTP Act, unless barred expressly or by direct implication. The amendments introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984 would all automatically apply. Consequently, the period of limitation prescribed under Section 11-A for making the award would squarely apply. 

Appellant urges that while sub-section (4) of Section 126 may save a declaration under Section 6 of the Land Acquisition Act, 1894 

12

from becoming bad because of lapse of time (though, subject to the modification with regard to the market value of the land prescribed therein), there is nothing in the MRTP Act which precludes, expressly or by direct implication, the provisions of Section 11-A from applying to govern the period within which the award has to be made. In the facts of the present case, there is no dispute that the declaration under Section 126(4) was made on 3-10-1991 and published in the Official Gazette on 15-10-1991, while the award is said to have been made on 18-2- 1999. In these circumstances, the award not having been made within the period of two years from the date of the declaration under Section 6, the entire proceedings for the acquisition of the land would lapse by reason of Section 11-A of the Land Acquisition Act, 1894. 

Appellant relies heavily on the Statement of Objects and Reasons attached to the Bill preceding Act 68 of 1984. The attention of the legislature was drawn to the fact of pendency of acquisition proceedings for long time and, “the pendency of acquisition proceedings for long periods often causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them”. 

Finally, it is contended that the amendments introduced by Central Act 68 of 1984 in the Land Acquisition Act, 1894 were by way of a composite package and it is not open to anyone to pick and choose them in their application, unless so provided in any competent legislative enactment. In the present case, there is nothing in the provisions of the MRTP Act which could oust 

13

the application of the entire gamut of amendments introduced by Central Act 68 of 1984 and, therefore, all acquisitions, even under the MRTP Act, must be read subject to them. 

Learned counsel for the respondents, refuting the contentions urged on behalf of the appellant, placed heavy reliance upon the judgment of a Bench of two learned Judges in State of Maharashtra v. Sant Joginder Singh Kishan Singh1. Learned counsel for the respondents strongly urged that this judgment clinches the arguments against the appellant. The same contention as urged by the appellant before us has been considered and negatived in Sant Joginder Singh (supra) wherein it is observed (vide para 13) as under: 

“It is next contended that since no 

separate procedure was prescribed by 

the Act for determining the 

compensation, by necessary inference, 

the Central Act was intended to be 

applied mutatis mutandis to the 

acquisition under the Act. He seeks 

support from the award made by the 

Collector in that behalf. It is true that 

there is no express provision under the 

Act to determine compensation for the 

land acquired under the Act. Therefore, 

by necessary implication, compensation 

needs to be determined by applying the 

principles in Section 23 of the Central 

Act. But, there is a distinction between 

procedural and substantive provisions of 

a statute. Determination of 

compensation by applying appropriate 

principles is relatable to substantive 

1 1995 Supp (2) SCC 475 

14

provision, whereas making of award 

within a prescribed period is basically 

procedural. So, merely because Section 

23 of the Central Act would apply to 

acquisition under the Act, it is not 

enough to hold that what is contained in 

Section 11-A would also apply. Further, 

what has been provided in sub-section 

(4) of Section 126 of the Act is a clear 

indication that failure to make the award 

within two years from the date of the 

declaration under sub-section (2) of 

Section 126 of the Act, would not render 

the notification published under Section 

125 of the Act non est.” 

The appellant urges that Sant Joginder Singh (supra) needs reconsideration by a larger Bench. 

Upon careful consideration of the contentions urged before us, we are inclined to accept the submissions of Mr. Mohta for more than one reason. First, although the MRTP Act and similar Regional Town Planning Acts did not contain specific provisions for payment of compensation, when they were challenged as infringing Article 14 of the Constitution, their validity was upheld by reading the provisions as to payment of compensation contained in the Land Acquisition Act, 1894 into the Regional Town Planning Acts. (See in this connection Gauri Shankar Gaur v. State of U.P.2 and Nagpur Improvement Trust v. Vithal Rao3

Secondly, Sant Joginder Singh (supra) appears to have been doubted by a judgment 

2 (1994) 1 SCC 92 

3 (1973) 1 SCC 500 Paragraphs 30 and 31 

15

of another Bench of two learned Judges in Maharashtra SRTC v. State of Maharashtra4. This was a case under the provisions of the same Act viz. MRTP Act, 1966. After considering the judgments in U.P. Avas Evam Vikas Parishad v. Jainul Islam5 and Nagpur Improvement Trust (supra) it was held that the provisions with regard to compensation made by Central Act 68 of 1984, by addition of sub section (1-A) to Section 23 and the increased amount of solatium under Section 23(2) and the interest payable under Section 28 would all apply to an acquisition under Chapter VII of the MRTP Act. Dealing with Sant Joginder Singh (supra) the Division Bench of this Court explained away Sant Joginder Singh by observing : 

“The ultimate conclusion in Sant 

Joginder Singh case1 seems to rest on 

the ratio that there is sufficient indicia in 

the MRTP Act itself to exclude the 

applicability of Section 11-A of the LA 

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.” 

Reading the judgment in Maharashtra SRTC (supra) it appears to us that, the Division Bench in that case did not seem to agree with the proposition that was laid down in Sant Joginder Singh (supra). 

4 (2003) 4 SCC 200 

5 (1998) 2 SCC 467 

16

There appears to be no good reason to shut out or preclude the amendments introduced by Central Act 68 of 1984 in the Land Acquisition Act, 1894 from applying to an acquisition under Chapter VII of the MRTP Act. Or else, the consequence would be that, in respect of two landholders there would be arbitrary discrimination in the matter of acquisition of their lands, merely because in one case the acquisition is by the direct route of the Land Acquisition Act, 1894 and, in another case, through the indirect route of the MRTP Act. The vice of discrimination pointed out by a Bench of seven learned Judges in Nagpur Improvement Trust (supra) (vide para 31) would affect such a situation. In order to avoid such a situation, and to save the constitutionality of the provisions of the MRTP Act, the provisions of enhanced benefits introduced by Central Act 68 of 1984 were read into the provisions of the MRTP Act, and an acquisition under the MRTP Act was held to be governed by the same provisions. The same principle should apply in the matter of attracting the provisions of Section 11-A of Act 68 of 1984 also to the acquisition under the MRTP Act. 

Thirdly, if the provisions of the MRTP Act are read as contended by the learned counsel for the respondents, in the light of Sant Joginder Singh (supra) then it would be open to the authorities, after issuing a declaration under sub-section (3), to go into hibernation and leave the matter hanging in perpetuity. That certainly would seriously affect the rights of the landholder preventing him from developing the land or alienating it, merely because the authority chooses to act under one Act instead 

17

of the other. This again, would attract the 

wrath of Article 14 of the Constitution, not only 

on account of discrimination, but also on 

account of arbitrariness. 

We, therefore, see no good reason as to why 

the provisions introduced in the Land 

Acquisition Act, 1894 by Central Act 68 of 

1984 should not be read into an acquisition 

under Chapter VII of the MRTP Act, to the 

extent not precluded by the MRTP Act, 1966. 

Section 11-A being one such section, it may 

have to be applied to the acquisition under 

Chapter VII of the MRTP Act. 

For these reasons, in our considered view, the 

decision in Sant Joginder Singh (supra) 

requires reconsideration by a larger Bench. 

The Registry is directed to place the papers 

before the Hon’ble Chief Justice of India for 

appropriate directions in the matter.” 

At the cost of repetition and also keeping in mind that certain important facts do not emerge in entirety from the Order of Reference, we will prefer to refer some of the essential additional facts as they appear from the record and, particularly, from the impugned judgment. Draft Development Plan was published on 19th March, 1987 and the lands of the appellant were reserved for a school and playground. On 19thJanuary, 1989, the appellant served purchase notice under Section 49 of the MRTP Act which was 

18

confirmed on 25th July, 1989. The Planning Authority requested the Collector to initiate steps for acquisition of the land in question on 18th November, 1989 in furtherance to which the Collector, Jalgaon appointed Special Land Acquisition Officer (LAO) to initiate proceedings for acquiring reserved lands in the Development Plan. However, the Planning Authority passed a resolution (No.736) recommending de-reservation of appellant’s land but no further steps in accordance with law were taken and, on the contrary, on 3rd October, 1991, declaration under Section 126(2) of the MRTP Act in the manner specified under Section 6 of the Land Acquisition Act was issued along with notices under Section 9 of that Act, which had been denied by the appellant. It is alleged that this resolution was passed in collusion with the appellants. The State Government sanctioned the Draft Development Plan on 6th January, 1993 and draft award was prepared by the LAO on 20thJuly, 1993. The application dated 19th March, 1994 for developing the land, filed by the appellant under Section 44 of the MRTP Act, was turned down by the Municipality. The appellant served the second purchase notice under Section 49 of the MRTP Act which was also turned down vide order dated 10th April, 1995. It may be noticed that the communication dated 10th April, 

19

1995 was challenged by the appellant before the High Court by filing a writ petition being CWP No.2829 of 1996. In this petition, the appellant had prayed for quashing of the communication dated 10th April, 1995 and declaring that the appellant’s land would be deemed to have been released from the reservation. The Court, vide its order dated 31st March, 1997, rejected all the prayers and directed as under: 

“The respondents No.1 and 3 are directed to 

initiate the proceedings for acquisition of the 

lands in question within one year from today 

and complete the same within the time 

prescribed under the Act. In case the 

authorities fail to initiate the acquisition 

proceedings within the prescribed period, the 

lands of the petitioner shall be deemed to 

have been released from the reservation. 

Petition is disposed of accordingly.” 

Final award was passed by the LAO on 10th February, 1999 and he issued notices to the parties under Section 12(2) of the Land Acquisition Act on 18th February, 1999. The appellant approached the High Court of Bombay, again, by filing Writ Petition No.822 of 2000 in which the basic challenge to the action of the respondent was on the ground that the concerned authorities including the Planning Authority had failed to take steps for acquisition in terms of the order 

20

of the Court dated 31st March, 1997 within one year and, thus, the reservation had lapsed. The land of the appellant, thus, should be deemed to have reverted to the appellant and he should be at liberty to develop the said land free from any encumbrance. The writ petition came to be dismissed summarily by the High Court vide order dated 29th March, 2000 which was challenged by filing a Special Leave Petition which subsequently had been registered upon grant of leave as Civil Appeal No.3703 of 2003. It has been noticed by the High Court in the impugned judgment, “Admittedly, a notice under Section 127 of the MRTP Act has not been issued by the appellant to the Planning Authority at any time and, therefore, the reliance on the provisions of Section 127 of the MRTP Act is totally misplaced. The appellant had issued the first purchase notice under Section 49 of the MRTP Act to the State Government on 19th January, 1989 and it was confirmed by the State Government under Section 49(4) of the MRTP Act on 25th July, 1989.” This is not even disputed by the appellant before us.  

Another important fact which needs to be noticed by us is that the order dated 31st March, 1997 passed by the High Court in Writ 

21

Petition (C) No.2829 of 1996, was clarified in the impugned judgment by stating that the LAO had taken steps in furtherance to his appointment by the Collector vide order dated 29th June, 1990 and had prepared the draft award on 20th July, 1993. As these facts were not brought to the notice of the Court, the directions issued by the High Court certainly did not mean that fresh steps for acquisition should be taken. In fact, the acquisition proceedings were expected to be completed by the LAO in furtherance to his appointment by the Collector in accordance with law. Thus, the High Court, while referring to the second notice served by the appellant under Section 49 of the MRTP Act, rejected all relief claimed by the appellant, as necessary steps had already been taken by the LAO. 

The appellant herein had argued in Girnar Traders-I (supra) that the decision of this Court in Sant Joginder Singh’s case (supra) needs reconsideration by a larger Bench as it did not state correct law whereas the respondent-State of Maharashtra had taken up the plea that Sant Joginder Singh’s case (supra) clinched the entire issue. The Bench, while accepting the contentions raised on behalf of the appellant, stated three reasons for referring the matter to a 

22

larger Bench. As is evident from para 17 of the Order of Reference, the Bench noticed that Sant Joginder Singh’s case (supra) appears to have been doubted by judgments of other Benches of this Court in the cases of Maharashtra SRTC, Nagpur Improvement Trust and U.P. Avas Evam Vikas Parishad (supra) in which it was held that the provisions with regard to compensation in terms of Central Act 68 of 1984, including Sections 23(1A), 23(2) and 28 of the Land Acquisition Act would be applicable to an acquisition under Chapter VII of the MRTP Act. On the contrary, in Sant Joginder Singh’s case (supra), the Court had held that there are sufficient indicia in MRTP Act itself to exclude applicability of Section 11A of the Land Acquisition Act in view of sub-sections (2) and (4) of Section 126 of the MRTP Act. The Bench also felt that voice of discrimination pointed by the Seven Judge Bench in Nagpur Improvement Trust v. Vithal Rao [(1973) 1SCC 500] would affect a situation like the present case and such provisions may have to be read into the Land Acquisition Act. After expressing this view, the Bench chose to refer a restricted question for determination by the larger Bench that whether provisions of Section 11A of the Land Acquisition Act, amongst other provisions, introduced by Central Act 68 of 1984 would, apply to Chapter VII of 

23

the MRTP Act. 

Before we answer this legal controversy arising in the present case, we consider it appropriate to refer to the contentions raised by the learned counsel appearing before us. 

The appellant has challenged the findings recorded by the High Court in the impugned judgment on various grounds. They have to be examined on merits by the appropriate Bench. We are primarily concerned with answering the question referred to this Bench in the above Order of Reference. In that regard, the contentions raised on behalf of the appellants are: 

  1. There is generic reference to the provisions of Land Acquisition Act in different Chapters of the MRTP Act. Hence, the provisions of the Land Acquisition Act will have to be read into the provisions of MRTP Act as it is legislation by reference. As a result thereto, all the provisions introduced by the amending Central Act 68 of 1984, including Section 11A of the Land Acquisition Act will be read into and become integral part of the MRTP Act. 

24

  1. The scheme under both the Acts is complementary to each other. Therefore, both the Acts have to operate in a common field and, then alone, it will form a unified workable scheme with due regard to dichotomy between reservation and acquisition. 
  2. In terms of Section 125 of the MRTP Act, the purpose of acquisition shall be deemed to be a public purpose within the meaning of the Land Acquisition Act. The provisions of Section 126 of the MRTP Act require application of the provisions of the Land Acquisition Act. Once notification under Section 126(2) is issued, automatically the provisions of Section 6 and complete mechanism for acquisition of land under the provisions of the Land Acquisition Act comes into operation and, thus, the provisions of Section 11A of the Land Acquisition Act would become part of such acquisition necessarily. 
  3. The provisions of the Central Act 68 of 1984 are procedural in their nature and application and are not substantive. These provisions, therefore, would form part of the MRTP Act. Hence, the judgment of this Court in Sant Joginder Singh’s case (supra) requires reconsideration. 

25

  1. The view taken by this Court in the case of Sant Joginder Singh (supra), following Hindusthan Co-operative Insurance Societys case (supra), applying the principle of legislation by incorporation is not applicable to the present case and these judgments require reconsideration by this Court. 
  2. Lastly and in alternative, it is contended that any other approach would vest the concerned authorities with the choice of initiating proceedings under either of these Acts which have substantially different consequences, in fact and in law. It is also argued that if Section 11A of the Land Acquisition Act is not read into or treated as part of the MRTP Act, then it will amount to discrimination between the similarly situated persons whose lands are subject matter of acquisition. 

Reacting to the above submissions, the learned counsel appearing for different respondents contended that: 

  1. The MRTP Act is a self-contained Code in itself. Consequently, it is not necessary for the Court to go into the larger question, whether it is a case of legislation by reference or legislation by incorporation. 

26

  1. In the alternative, even if the Court decides to examine this aspect, it is a clear case of legislation by incorporation. Various provisions of the MRTP Act have referred to specific provisions of the Land Acquisition Act and no general application of the provisions of the Land Acquisition Act is contemplated under the provisions of the MRTP Act. Since it is legislation by incorporation, the amended provisions inserted by Central Act 68 of 1984 cannot be read into the MRTP Act. Both the laws are wholly dissimilar, operate in different fields and have different objects. The Land Acquisition Act is a Central legislation relatable to Entry 42 of List III while the MRTP Act is enacted by the State Legislature with reference to Entries 5 and 18 of List II of Schedule VII to the Constitution.  
  2. These being the legislations enacted by two different bodies for different purposes cannot attract any of the aforestated principles. Both the Acts operate in different fields and cannot be read together to create a coherent legislation as that would frustrate the very object of the legislation falling exclusively in the domain of the State Legislature.  

27

  1. The State enactment has provided for definite time frame in regard to different subjects, except for making of the award after a declaration in terms of Section 126(2) or 126(4) of the State Act as the case may be, which by necessary implication, would mean intended exclusion of the provisions of Section 11A of the Central Act. 
  2. On following the principle stated by the Constitution Bench in the case of B. Shama Rao (supra), the other judgments of this Court cannot be stated as a binding precedent. There shall be abdication of its constitutional functions by the State Legislature as it would not be aware of and able to apply its mind to the amendments made to the Central Legislation, if the principle of legislation by reference is applied to the present case. It would lead to undesirable consequences. 

SCHEME UNDER THE RESPECTIVE ACTS

THE MAHARASHTRA REGIONAL & TOWN PLANNING ACT, 1966 The MRTP Act was enacted by the legislature of the State of Maharashtra as it was expedient to make provisions for the planning, development and use of the land in regions established for the purpose of that Act, for the constitution of Regional Planning Boards 

28

therefor and to make better provisions for the preparation of development plans with a view to ensure that the town planning scheme is made in a proper manner and its execution is made effective. According to the statement of objects and reasons of this enactment, the Bombay Town Planning Act, 1954 had made planning of land possible only within the areas of local authorities and there was no provision to control development of land in the important peripheral areas outside the municipal limits. This resulted in development of land in the peripheral areas in an irregular and haphazard manner which was clearly demonstrated in the vast areas outside Greater Bombay, Poona and other important urban centres. The object of regional planning was to facilitate proper planning of such extensive areas of land, called Regions in the Bill, having common physical, social and economic problems so that certain matters such as distribution of population and industries, roads and highways, preservation of good agricultural lands, reservation of green belts and preservation of areas of natural scenery etc. could be dealt with and planned comprehensively on a regional level. The Bill had sought to improve the provisions of the Bombay Town Planning Act, 1954 in regard to preparation and execution of development 

29

plans to ensure that such plans are made properly and expeditiously. Every planning Authority is required to appoint a Town Planner for carrying out surveys and to prepare an existing land use map and formulating proposals of the development plan within the framework of the Regional Plan, where one exists, for the consideration of the Planning Authority. The Planning Authority is entitled to refuse or grant, subject to certain conditions, permission to develop in accordance with such plan. This order of the Planning Authority is appealable before the Prescribed Officer in the State Government. Unauthorized development was made penal and could be removed and the use contrary to the plan could be discontinued. One of the main features of the Bill was the provision for creation of new towns by means of Development Authorities. The problems of overcrowding of population and industries, traffic congestion, inadequacy of public services and utilities like schools, hospitals, markets, water supply, drainage and road, rail transport etc. became so acute in the regions of Greater Bombay and Poona that it became necessary to consider proposals for the dispersal of population and industry from such centres and their reallocation at suitable places within the Region. The MRTP Act required every local authority to prepare a 

30

development plan for the area within its jurisdiction. Under such plan, the local authority was to allocate land for different uses, e.g. for residential, industrial, commercial and agricultural and to reserve sites required for public purposes as well. Town planning schemes could be made in respect of any land, whether open or built up and incremental contribution, i.e. betterments in land value could be recovered from owners of the plots benefitting from the proposals made in the scheme. These were the features of the Bombay Town Planning Act, 1954 which extended to whole of the State of Maharashtra excluding the City of Nagpur and, thus, a more comprehensive and effective legislation was contemplated by the legislature. 

The scheme of the MRTP Act is, primarily, focused on planning and development of the land in the entire State of Maharashtra. The MRTP Act provides for development plans from macro to micro level which includes specifying the land to be used for providing various public amenities and services. That is the precise reason that the expression ‘development’ under Section 2(7) of the MRTP Act has been defined in very wide terms. It is difficult to comprehend any 

31

activity relating to land and planning which could fall outside the scope of this definition. Section 2(9) of the State Act defines ‘development plan’ to mean a plan for development or redevelopment of the area within the jurisdiction of the Planning Authority and includes revision of a development plan and proposals of a Special Planning Authority for development of land within its jurisdiction. The ‘regional plan’ means a plan for development or redevelopment of a region which is approved by the State Government and has come into operation under the MRTP Act. The expression ‘town planning scheme’ has not been defined as such but the term ‘scheme’ includes a plan relating to town planning scheme in terms of Section 2(30) of the State Act. Corresponding to each plan there are authorities like ‘Development Authority’ which means a New Town Development Authority constituted or declared under Section 113 of the MRTP Act, ‘Planning Authority’ which means a local authority including a Special Planning Authority and the Slum Rehabilitation Authority appointed under Section 40 of this Act and Section 3(c) of the Maharashtra Slum Areas Improvement Clearance & Redevelopment Act, 1971 respectively. ‘Region’ means any area established to be region under Section 3, ‘Regional Board’ or ‘Board’ means Regional 

32

Planning Board constituted under Section 4, ‘Regional Planning Committee’ means a committee constituted under Section 10. ‘Development Rights’ in terms of Section 2(9A) means the right to carry out development or to develop the land or building or both and shall include the transferable development right in the form of right to utilize the Floor Space Index of land utilizable either on the remainder of the land partially reserved for a public purpose or elsewhere, as the final Development Control Regulations in this behalf provide. Once a region has been created under the provisions of the MRTP Act then a regional plan is to be prepared and it should provide for matters contemplated under Section 14. This plan is to be submitted to the State Government for approval. The Regional Board, before preparing common regional plan and submitting it to the State Government for approval, is required to carry out necessary surveys and prepare an existing land use map of the region or such other maps as are considered necessary and then prepare a draft regional plan. It shall be published in the Official Gazette in the manner prescribed and shall be open to inspection at all reasonable hours mentioned therein inviting objections and suggestions from any person with regard to draft plan before the specified date which is not 

33

to be earlier than four months from the publication of the notice. Then this plan has to be notified in accordance with the provisions of Section 17 of the MRTP Act. It is important to note that once the draft regional plan or regional plan has been notified and published then Section 18 of the MRTP Act places a restriction on change of use of land or development thereof which reads as under: 

“18. Restriction on change of user of land or 

development hereof. 

(1) No person shall on or [after the publication 

of the notice that the draft of Regional plan 

has been prepared or the draft Regional plan 

has been approved], institute or change the 

use of any land for any purpose other than 

agriculture, or carry out any development, in 

respect of any land without the previous 

permission of the Municipal Corporation or 

Municipal Council, within whose area the land 

is situate, and elsewhere, of the Collector. 

(2) Notwithstanding anything contained in any 

law for the time being in force the permission 

referred to in sub-section (1) shall not be 

granted otherwise than in conformity with the 

provisions of the draft of final Regional plan. 

(3) Without prejudice to the provisions of sub 

sections (1) and (2) or any other provisions of 

this Act, any person intending to execute a 

Special Township Project on any land, may 

make an application to the State Government 

and on receipt of such application the State 

Government may, after making such inquiry 

34

as it may deem fit in that behalf, grant such 

permission and declare such project to be a 

Special Township Project by notification in the 

Official Gazette or, reject the application” 

Section 20 of the State Act empowers the State Government to revise or modify the regional plan in accordance with the prescribed procedure. Chapter III of the MRTP Act deals with preparation, submission and sanction of Development Plan and, primarily, provides for use of land for purposes such as residential, industrial, commercial, agricultural, recreational, schools, colleges and other educational institutions, open spaces, playgrounds, stadia, zoological gardens, green belts, nature reserves, transport and communication, water supply, drainage, sewerage amongst other public utilities and amenities. The Draft Development Plan is also to be submitted to the State Government in terms of Section 30 of the MRTP Act. Chapter IV of this Act contains certain significant provisions and relates to control of development and use of land included in the development plans. Section 43 of the MRTP Act states that after the date on which, the declaration of intention to prepare a development plan for any area is published in the Official Gazette or after the date on which a notification specifying any undeveloped area as a notified area, or 

35

any area designated as a site for a new town is published in the Official Gazette, no person shall institute or change the use of any land or carry out any development of land without the permission in writing of the Planning Authority. However, the proviso to this Section provides that no such permission shall be necessary for carrying out works for the maintenance, improvement or other alterations of any building which do not materially affect the external appearance thereof as specified in that Section. Even in terms of Section 49 of the MRTP Act where a purchase notice is served, the person has to call upon the authorities to purchase his interest in the land for reasons contained in clauses (a) to (e) of sub-section (1) and in accordance with the provisions of this Act. 

The Government/Appropriate Authority, other than the Planning Authority is vested with the powers under Section 50 of the MRTP Act to delete reserved or designated land from interim or draft or final development plan and in terms of Section 68 of the MRTP Act, the State Government is also vested with the power to sanction even the draft scheme. Section 69 of the MRTP contemplates similar restrictions on the use and development of the land upon declaration 

36

of town planning scheme. Town planning schemes are required to be prepared for the purposes of implementing the proposal in the official development plan in terms of the provisions of Chapter V of MRTP Act. Another aspect which requires consideration of this Court is reference to Section 72 of the MRTP Act which refers that the matters in relation to such schemes to be adjudicated upon by the Arbitrator who has been vested with wide powers and duties. The Arbitrator shall follow the procedure prescribed under Section 72(3), estimate the value and fix difference between the values of the original plots and the values of the final plots included in the final scheme and estimate the amount of compensation payable under Section 66 of the MRTP Act, estimate the reference of claims made before him and decide the dispute of ownership amongst other specified matters. Appeal against the decision of the Arbitrator under clauses (iv) to (xi) (both inclusive) and clauses (xiv) to (xvi) of sub-section (3) of Section 72 of the State Act lies to a tribunal constituted under Section 75 of the MRTP Act. In fact, certain decisions of the Arbitrator are final and binding on the parties including the Planning Authority. However, some of such decisions do not attain finality qua filing of civil suits, e.g. disputes under Section 71 of the MRTP. Thus, an adjudicatory 

37

mechanism covering larger aspects of planning and execution is provided under the provisions of the MRTP Act. Preparation, submission and sanction of development plans are basic functions of various authorities constituted under Chapter VI of the MRTP Act with ultimate object of execution of such plan. The MRTP Act contemplates preparation, approval and finalization of an interim or draft plan and, as already noticed, with the publication of such plans, the restrictions operate. 

We may also notice that Section 14(e) of the MRTP Act contemplates reservation of sites for new towns, industrial estates and any other large scale development or project which is required to be undertaken for proper development of the region or new town. Section 113 of the State Act provides for designation of a site for a new town. 

The most important facet of this legislation is the provisions with regard to acquisition and lapsing of reservation and powers of the Government in that regard. These aspects have been dealt with under Chapter VII of the MRTP Act. Section 125 of the MRTP Act provides that any land required, reserved or designated in a Regional 

38

Plan, Development Plan or Town Planning Scheme for a public purpose or purposes, 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. Section 126 of the MRTP Act contemplates that after the publication of a draft Regional Plan, a Development Plan or any other plan or Town Planning Scheme, if any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in section 113A of the MRTP Act, acquire the land, in the mode specified in that Section. Section 126(2) of the MRTP Act also contemplates that where an application has been moved under Section 126(1)(c) of the MRTP Act to the State Government for acquiring such land under the Land Acquisition Act, then the Government is to act in accordance with and subject to the provisions of Section 126(2) of the MRTP Act. If the State Government is of the opinion that any land included in such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in Section 6 of the Land Acquisition 

39

Act (emphasis supplied). Such declaration, notwithstanding anything contained in the Land Acquisition Act, shall be deemed to be a declaration duly made under that Section. In other words, there is no requirement to comply with the provisions of Sections 4 and 5(A) of the Land Acquisition Act before such declaration is published. It is further provided that subject to the provisions of Section 126(4) of the MRTP Act no such declaration shall be made after the expiry of one year from the date of publication of the draft regional plan, development plan or any other plan or the scheme, as the case may be. After such declaration is published, the Collector shall proceed to take order for the acquisition of the land under the Land Acquisition Act and provisions of that Act shall apply to the acquisition of the said land with the modification that date of market value of the land to be acquired shall be determined with reference to sub-section 3(i) to 3(iii) of Section 126 of the MRTP Act. Sub-section (4) of Section 126 empowers the State Government to make a fresh declaration for acquiring the land where the period of one year, as specified in the proviso to sub-section (2) to Section 126 of the MRTP Act, has lapsed but then the market value of the land would be the market value on the date of publication of fresh declaration. Section 126 of 

40

the MRTP Act reads as under: 

“126. Acquisition of land required for public purposes specified in plans. 

(1) When after the publication of a draft regional Plan, a Development or of land any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time of the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in section 113A acquire the land, – 

(a) by agreement by paying an amount agreed to, or 

(b) in lieu of any such amount, by granting the land-owner or the lessee, subject, however, to the lessee-paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor’s interest to be determined by any of the said Authorities concerned on the basis of the principles laid down in the Land Acquisition Act, 1894, Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final 

41

Development Control Regulations prepared in this behalf provide, or  

(c) by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894, and the land (together with the amenity, if any, so developed or constructed) so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this sections or under the Land Acquisition Act, 1894, as the case may be, shall vest absolutely free from all encumbrances in the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority. 

(2) On receipt of such application, if the State Government is satisfied that the and specified in the application is needed for the public purpose therein specified, or if the State Government (except in cases falling under section 49 and except as provided in section 113A) itself is of opinion that any land included in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in section 6 of the Land Acquisition Act, 1894, in respect of the said land, The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section : 

Provided that, subject to the provisions of sub section (4), no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, 

42

Development Plan or any other Plan, or Scheme, as the case may be. 

(3) On publication of a declaration under the said section 6, the Collector shall proceed to take order for the acquisition of the land under the said Act; and the provisions of that Act shall apply to the acquisition of the said land with the modification that the market value of the land shall be, – 

(i) where the land is to be acquired for the purposes of a new town, the market value prevailing on the date of publication of the notification constituting or declaring the Development Authority for such town; 

(ii) where the land is acquired for the purposes of a Special Planning Authority, the market value prevailing on the date of publication of the notification of the area as an undeveloped area; and 

(iii) in any other case the market value on the date of publication of the interim development plan, the draft development plan or the plan for the area or areas for comprehensive development, whichever is earlier, or as the case may be the date or publication of the draft town planning scheme : 

Provided that, nothing in this sub-section shall affect the date for the purpose of determining the market value of land in respect of which proceedings for acquisition commenced before the commencement of the Maharashtra 

43

Regional and Town Planning (Second 

Amendment) Act, 1972: 

Provided further that, for the purpose of 

clause (ii) of this sub-section, the market value 

in respect of land included in any undeveloped 

area notified under sub-section (1) of section 

40 prior to the commencement of the 

Maharashtra Regional and Town Planning 

(Second Amendment) Act, 1972, shall be the 

market value prevailing on the date of such 

commencement. 

(4) Notwithstanding anything contained in 

the proviso to sub-section (2) and sub-section 

(3), if a declaration,] is not made, within the 

period referred to in sub-section (2) (or having 

been made, the aforesaid period expired on 

the commencement of the Maharashtra 

Regional and Town Planning [(Amendment) 

Act, 1993)], the State Government may make 

a fresh declaration for acquiring the land 

under the Land of Acquisition Act, 1894, in the 

manner provided by sub-sections (2) and (3) 

of this section, subject to the modification that 

the market value of the land shall be the 

market value at the date of declaration in the 

Official Gazette, made for acquiring the land 

afresh.” 

Section 127 of the MRTP Act relates to lapsing of reservations. The unamended provisions of Section 127 MRTP Act, subject to satisfaction of the ingredients therein, provide that if any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the 

44

date on which a final Regional plan, or final Development plan comes into force or no steps for acquisition have been taken then the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan. The provisions of Section 127 of the MRTP Act came to be amended by The Maharashtra Regional & Town Planning (Second Amendment) Act, 2009. By amendment, the portion underlined in the unamended Section, reproduced hereinafter, was deleted. The Legislature, in its wisdom, while deleting the reference to the Land Acquisition Act made lapsing of reservation a consequence of the default arising only from sub-sections (2) and (4) of Section 126 of the MRTP Act. Where such default appeared as well as no steps for acquisition were taken within the specified time, under the amended/unamended Section 127 of the MRTP Act, the owner was required to give notice in relation to release of the property. If no steps for acquisition were taken within 12 months of such notice, the land stood de-reserved. The amended and unamended provisions of Section 127 of the 

45

MRTP Act read as under: 

Unamended “127. Lapsing of reservations. If any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan comes into force or if proceedings for the acquisition of such land under this Act or under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and if within six months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan.” (emphasis supplied) 

Amended “127. Lapsing of reservations. (1) If any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan comes into force or, if a declaration under sub-section (2) or (4) of section 126 is not published in the Official Gazette within such period, the owner or any person interested in the land may serve 

46

notice, along with the documents showing his 

title or interest in the said land, on the 

Planning Authority, the Development Authority 

or, as the case may be, the Appropriate 

Authority to that effect ; and if within twelve 

months from the date of the service of such 

notice, the land is not acquired or no steps as 

aforesaid are commenced for its acquisition, 

the reservation, allotment or designation shall 

be deemed to have lapsed, and thereupon the 

land shall be deemed to be released from 

such reservation, allotment or designation and 

shall become available to the owner for the 

purpose of development as otherwise, 

permissible in the case of adjacent land under 

the relevant plan; 

(2) On Lapsing of reservation, allocation or 

designation of any land under sub-section (1), 

the Government shall notify the same, by an 

order published in the Official Gazette.” 

The objects and reasons for amendment of Section 127 of the MRTP Act specifically referred to the hardship to the land owners, stated in the judgment of this Court in the case of Girnar Traders v. State of Maharashtra [(2007) 7 SCC 555] (hereinafter referred to as ‘Girnar Traders-II’), pertaining to indefinite waiting for release of their respective lands because of inaction on the part of the Planning Authority in acquisition of their lands. The Legislature was obviously aware of the provisions of Section 11A of the Land Acquisition Act which permitted lapse of entire acquisition proceedings after the 

47

prescribed period. Still, the Legislature opted to amend Section 127 of the MRTP Act in the manner as it had amended. The intention appears to be to remove the doubt, if any, created by the unamended provisions of Section 127 of the MRTP Act with regard to application of Section 11A of the Central Act to the State Act. Once the State Legislature has, by amendment, restricted the application of default clause only in the situations covered under Section 126(2) and 126(4) of the State Act respectively, it will then be impermissible to read Section 11A of the Land Acquisition Act into the language of Section 126(2) of the State Act. The amendment ex-facie appears to be to avoid undue hardship to the owners of the land on the one hand while on the other, exclusion of the underlined portion supra especially the words ‘under the Land Acquisition Act’, suggests the legislative intent to complete all proceedings within the framework of the MRTP Act. Section 128 of the State Act deals with the powers of the State Government to acquire land for purposes other than the one for which it is designated in any plan or scheme. This provision is quite distinct and different from any of the provisions in the Land Acquisition Act. Section 128(2) of the MRTP Act makes, by operation of law, any Planning, Development or Appropriate Authority under this Act as a 

48

‘person interested’ in the land acquired under the provisions of the Land Acquisition Act; and in determining the amount of compensation to be awarded, the market value of the land shall be assessed as if the land has been released from reservation, allotment or designation made. Further the Collector or the Court shall take into consideration the damage sustained along with the proportionate cost of the development plan or town planning scheme or new town, if any, incurred by such authority which is rendered abortive by reason of such acquisition. The provisions of Section 129 of the MRTP Act are relatable to and in substance are pari materia to the provisions of Section 17 of the Land Acquisition Act. On an application made by the Planning, Development or Appropriate Authority, the State Government if satisfied that the possession of any land is reserved or designated for a public purpose under any of the plans is urgently required in the public interest by that Authority, can take steps for taking possession of the land after giving a notice of 15 days and thereupon, the right or interest in that land shall extinguish from the date specified; and on the date on which possession is taken, the land shall vest without any further assurance and free from encumbrances in the State Government. Of course, this power has 

49

to be exercised in consonance with other provisions of Section 129 of the MRTP Act. Wherever the possession of the land is taken under sub-section (1) the authority is required to pay at the request of the person interested an advance not exceeding 2/3rd of the amount estimated to be payable to such person on account of the land after executing an agreement in that behalf under Section 157 of the MRTP Act.  

The various provisions, which we have indicated above, clearly demonstrate a self-contained scheme under the MRTP Act. Section 116 of MRTP Act is one other provision which refers to the provisions of the Land Acquisition Act and states that a Development Authority constituted under Section 113(2) of the MRTP Act is vested with the powers of a Planning Authority under Chapter VII of this Act for the purposes of acquisition either by agreement or under the Land Acquisition Act. Reference to the provisions of the Land Acquisition Act in some of the provisions of the MRTP Act could only imply that they have solely been made for the purpose of completing the process of acquisition. Most of the provisions of the Land Acquisition Act, with alteration in the language, have been specifically stated 

50

under the provisions of MRTP Act itself. Sections 126 to 129 of the State Act clearly enunciate the intention of the framers that substantive provisions of Land Acquisition Act are not applicable to MRTP Act, which is a self-contained code providing procedure regarding all matters contained therein, except to the extent that provisions of Sections 9 to 11 of the Land Acquisition Act be brought into it for the limited purpose of acquiring land. Once the provisions of MRTP Act are analyzed in their correct perspective, a holistic view can be taken that it is a code in itself. It is a legislation which has the paramount purpose only of planning; and acquisition of land is merely incidental, that too for a very limited purpose. The object of the MRTP Act is to specify and provide for development plans at the macro as well as micro level. While providing for larger concepts of development as contemplated under the regional plan as well as reservations under the development plan, provision for development at the most minute level, i.e. a small township as a part of region has also been provided. The primary object of the State Act is planned development. Acquisition of land takes place only where the land is reserved, designated or required for complete development in the view of the Planning, Development or Appropriate Authority. 

51

Complete mechanism as to how the development plans shall be prepared, notified and implemented as well as how the land is to be acquired, and how the rights and disputes inter se parties as well as between the Planning Authorities and the owners will be settled are provided under different provisions of this Act. In other words, it is explicitly clear that a complete mechanism of planning, implementation, adjudicatory process in that regard as well as the methodology adopted for acquiring lands, in its limited sense, inclusive of change in the use, for public purpose, for which the land is required have been specifically provided under the MRTP Act. The State Act is hardly dependent upon the Land Acquisition Act except to the limited extent of completing the process of determining compensation, other than the compensation determinable by the designated Arbitrator or Tribunal. Recourse to legal remedies and providing a complete machinery to remedy the grievances of claimants is another significant feature to be considered while examining the legislative scheme of a statute. Section 72 of the MRTP Act gives jurisdiction to the Arbitrator to decide certain disputes arising between Planning Authority and claimants, as well as between the private owners. The jurisdiction of the Arbitrator is 

52

strictly controlled by the provisions of that Section. The power of the Arbitrator in regard to estimation and determination of the amounts, as contemplated under Section 72(iii) and 72(iv) of the MRTP Act are referable only to Section 97 of the State Act. The Arbitrator is primarily to resolve disputes relating to the ‘plots’ as defined under the MRTP Act in contradistinction to the expression ‘land’ used in other provisions of the Act. This indicates the limited jurisdiction of the Arbitrator. Appeals lie to the Tribunal only from such orders of the Arbitrator which are specified under Sections 73 and 74 of the MRTP Act. The matters for acquisition and payment of compensation are to be finalized with the aid of the provisions of the Land Acquisition Act. Under Section 83 of the MRTP Act, the lands can be vested in the concerned authority at different stages right from the commencement of preparation/approval of draft plan to the final plans and their execution under the provisions of the Act. Like Section 83 of the MRTP Act, Sections 116 and 128(3) of the State Act can be enforced by the planning authorities with an object to achieve planned development and as part of planning under the Act. Section 117 of the State Act again states the consequences of default. Where the land notified under Section 113 of the MRTP Act, as site of a new 

53

town, is not acquired by the Government or a development authority within a period of ten years from the date of notification, the owner is entitled to serve a notice upon the authority, upon service of such notice, the provisions of Section 127 of the MRTP Act would come into play for lapsing of reservation. This being the scheme of the MRTP Act, mere reference to some of the provisions of the Land Acquisition Act would not take away the substantive scheme of the State Act which is a complete code in itself. 

LAND ACQUISITION ACT, 1894  

Land Acquisition Act was enacted as it was considered expedient to amend the law for acquisition of land needed for public purposes and for companies and, particularly, for payment and determination of the amount of compensation to be paid on account of such acquisition. The Land Acquisition Act, 1870 made it obligatory for the Collector, to refer the matter to Civil Courts for a decision in cases of difference of opinion with interested person(s) as 

54

to value of the land as well as cases in which one of the claimants was absent, as the Collector was not empowered to make an award ex-parte even after notice. This requirement resulted in a lot of litigation, delay and expenses. According to the statement of objects and reasons of the Land Acquisition Act; the Act of 1870 had not, in practice, been found entirely effective for the protection either of the persons interested in lands taken up or of the public purse. Thus the law was amended by making Collector’s award final unless altered by a decree. The persons interested in the land thus still have the opportunity, if they desire, to prefer to an authority, quite independent of the Collector, their claims for more substantial compensation than what the Collector has awarded. Procedure for determining the valuation of land was also proposed to be suitably changed. Major amendments were proposed by the Central Act 68 of 1984 to the Land Acquisition Act. The statement of objects and reasons for this amending Bill posited that due to enormous expansion of the State’s role in promoting public welfare and economic development since independence, acquisition of land for public purposes, industrialization, building of institutions etc. has become far more numerous than ever before. Acquisition of land for private 

55

enterprises ought not to be placed on the same footing as acquisition for the State or for an enterprise under it. The individuals and institutions who are unavoidably to be deprived of their property rights in land need to be adequately compensated for the loss keeping in view the sacrifice they have to make for larger interest of the community. The pendency of acquisition proceedings for long periods often caused hardship to the affected parties and rendered unrealistic, the scale of compensation offered to them. With this background the legislature felt that it was necessary to restructure the legislative framework for acquisition of land so that it is more adequately governed by the objective of serving the interests of the community in harmony with the rights of the individuals. Recommendations on similar lines were also made by the Law Commission and while considering these proposals for amendment, the legislature carried out various amendments of significance in the existing Land Acquisition Act. Besides enlarging the definition of ‘public purpose’, provision was also made for acquisition of land for non-governmental companies. Further, it provided the time limit for completion of all formalities between issue of preliminary notification under Section 4(1) and declaration under Section 6(1) of the Land 

56

Acquisition Act. Section 11A of the Land Acquisition Act was introduced which provided for time limit of two years, from the date of publication of declaration under Section 6 of the Central Act, within which the Collector should make its award under that Act. Provision was also made for taking of possession of land by the Collector before the award is made in urgent cases. From the objects and reasons of the Land Acquisition Act, it is clear that the primary object of this Act is acquisition of land for a public purpose which may be ‘planned development’ or even otherwise. In fact the provisions of the Land Acquisition Act do not deal with the concept of development as is intended under the specific statutes like MRTP Act, Delhi Development Act, 1957, Bangalore Development Authority Act, 1976 (for short, ‘the Bangalore Act’) etc. The primary purpose of the Land Acquisition Act is to acquire land for public purpose and for companies as well as to award compensation to the owners/interested persons in accordance with the provisions of this Act. 

The acquisition proceedings commence with issuance of a notification under Section 4 of the Land Acquisition Act against which 

57

the interested persons are entitled to file objections which will be heard by the competent authority in accordance with the provisions of Section 5A leading to issuance of declaration under Section 6 of the Land Acquisition Act. After complying with the requirements of Section 9 of the Land acquisition Act, the Collector is expected to make an award under Section 11 of the Central Act and in terms of Section 11A of the Land Acquisition Act, if the award is not made within two years from the date of publication of the declaration the acquisition proceedings shall lapse. Section 11A of the Land Acquisition Act reads as under: 

11A. Period within which an award shall be 

made.—(1) The Collector shall make an 

award under section 11 within a period of 

two years from the date of the publication of 

the declaration and if no award is made 

within that period, the entire proceedings for 

the acquisition of the land shall lapse: 

Provided that in a case where the said 

declaration has been published before the 

commencement of the Land Acquisition 

(Amendment) Act, 1984, the award shall be 

made within a period of two years from such 

commencement. 

Explanation.—In computing the period of two 

years referred to in this section the period 

during which any action or proceeding to be 

taken in pursuance of the said declaration is 

58

stayed by an order of a Court shall be 

excluded.” 

If the award is made within the stipulated period, such award attains finality under Section 12 of the Land Acquisition Act and is conclusive evidence of the true area or the value of the land as between the collector and person interested. In normal acquisition proceedings, after passing the award, the Collector may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances as per Section 16 of the Land Acquisition Act. The possession can also be taken earlier as the Appropriate Government is vested with special powers in cases of urgency. In that case, the provisions of Section 17 of the Land Acquisition Act state the scheme to be followed by the Collector for acquisition of the land including taking of possession prior to making of an award. Section 48 of the Land Acquisition Act is another important provision of this Act which empowers the Government to withdraw from the acquisition of any land of which possession has not been taken and whenever it withdraws from the acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner/interested person in consequence of 

59

such proceedings. The owner/interested person is entitled to invoke the remedy of reference under Section 18 of the Land Acquisition Act against the award made by the Collector and thereafter he may appeal to the High Court under Section 54 of the Land Acquisition Act for enhancement of compensation including determination of the disputes covered under the provisions of this Act. As is evident from the afore-narrated provisions, the primary purpose and the only object of the Land Acquisition Act is acquisition of land and payment of compensation for such acquisition. It is not an Act dealing in extenso or otherwise with development and planning. The scheme of this Act is very simple. Despite the fact that it is compulsory acquisition, which is in exercise of the State’s power of eminent domain, the legislature has still attempted to create a balance between compulsory acquisition on the one hand and rights of owner/interested person in land on the other. The acquisition proceedings are commenced with issuance of a notification under Section 4 of the Land Acquisition Act for a public purpose and would end with the payment of compensation for such acquired land. The mechanism provided under this Act is entirely relatable to the process of acquisition of land and payment of compensation. This Court in 

60

the case of Delhi Development Authority v. Mahender Singh [(2009) 5 SCC 339], while examining the scope of power of the High Court under Article 226 of the Constitution to direct payment of statutory interest in terms of Section 34 of the Land Acquisition Act held as under: 

  1. “In D-Block Ashok Nagar (Sahibabad) Plot 

Holders’ Assn. (Regd.) v. State of U.P.[(1997) 

7 SCC 77] this Court again observed that 

liability to pay interest to the claimant arises 

only in accordance with Section 34 of the Act. 

As the Act is a self-contained code, common 

law principles of justice, equity and good 

conscience cannot be extended in awarding 

interest, contrary to or beyond the provisions 

of the statute.” 

The Land Acquisition Act itself is a self contained code within the framework of its limited purpose, i.e. acquisition of land. It provides for complete machinery for acquisition of land including the process of execution, payment of compensation as well as legal remedies in case of any grievances.  

Having stated the scheme of the two Acts, let us proceed to examine if there are marked distinctions between the statutory provisions of the two Acts and, if so, what is the scope of the same. 

Sl. 

Land Acquisition Act 

MRTP Act

61

No.

   

1. 

The Land Acquisition Act is a legislation regulating only the acquisition of land for a public purpose and payment of its compensation. In other words, it is a legislation of acquisition alone and is in no way concerned with planned development.

The primary object of MRTP Act is regional/town planning and development of the entire State of Maharashtra. The function of the authorities constituted under the Act is planning. The purpose of the Act primarily is planned development and acquisition is incidental thereto.

2. 

The lands are to be acquired only for a public purpose in terms of the notification under Section 4.

The Act deals with and provides only for land required, reserved or designated for planned development.

3. 

Upon issuance of notification under Section 4 of the Act, the owner/interested person can develop the land or utilize the same for his benefit but without claiming any compensation for such modification subsequent to the date of the notification (Matter seventhly of Section 24)

Even prior to issuance of declaration under Section 126(2), i.e., on publication of declaration of intention to prepare a development plan for any area under Section 43 or town planning scheme under Section 69, the rights of the owner are completely restricted. No person is entitled to institute or change the use of any land or carry out any development of land without permission of the authority under Section 43 or a commencement certificate under Section 69.

4. 

Under normal proceedings for acquisition under the Act, the land vests in the Government only after the award is made and possession is taken in terms of Section 16 of the Act, of course with the exception

Under this Act, the land required for development vests in the Government at the very threshold. Under Section 129(1) when emergency provisions are invoked, the land shall vest without any

62

stated in Section 17 of the Act. further assurance and free from all encumbrances in the 

State only when notice of 15 

days is given by the Collector 

prior to taking possession. 

Section 83 shows marked 

distinction that possession of 

the land can be taken and it 

shall vest in the 

Government/authority where it 

is necessary to undertake 

forthwith any work included 

even in a draft scheme for a 

public purpose. 

5. 

Under this Act, there is no provision empowering the State Government to acquire the land for any purpose other than the one specified in the notification issued under Section 4 for which the property was acquired. 

In terms of Section 128(1), the Government has been vested with the power to acquire land for the purposes other than the one for which it is designated in any plan or scheme.

6. 

Very few provisions provide for limitation of period within which the action by the authority is required to be taken and default thereto results in substantial consequences. (Sections 6 and 11A)

There are as many as 80 different provisions of the Act which provide limitation of time for commencement, execution and completion of actions by the authorities concerned and in default the consequences flowing therefrom.

7. 

The Collector is vested with all the powers under the Act right from acquisition till payment of compensation. The award passed by the Collector is subject to reference and appeal under the provisions of the Act.

Multiple authorities have been constituted under different provisions of the Act which are responsible for performing the specified functions. The Arbitrator nominated and the Tribunal constituted under the provisions of the Act has to

63

perform practically all the adjudicatory proceedings except where land is to be acquired for planned development acquisition thereof and awarding of its compensation by the Collector. 

8. 

This Act is a Central Legislation relatable to Entry 42 of List III of Schedule VII to the Constitution.

This Act is a State Legislation relatable to Entries 5 and 18 of List II of the Schedule VII to the Constitution. (without prejudice to the contention of the parties)

9. 

The market value of the land has to be determined as of the date of issuance of notification under Section 4 of the Land Acquisition Act.

The market value has to be determined with reference to the date/dates specified in Section 126(3) and upon issuance of a declaration under Section 126(2) in the manner for issuance of declaration under Section 6 of the LA Act.

10. 

The Government can withdraw from acquisition of any land before possession is taken in terms of Section 48 of the Act

There is no provision empowering the planning authority from de-notifying land from acquisition. However, in terms of Section 50, it has power to delete from reservation, designation for an interim draft plan.

These are some of the glaring points of distinction between the two Acts. Of course, there may be other distinctions and the ones stated by us are only illustrative. The purpose of referring to these 

64

distinctions is primarily to demonstrate that they are two different statutes operating in different fields, the provisions of which are required to be utilized by the concerned authorities for the object sought to be achieved under the respective Acts. The schemes under the two Acts are distinct and different. Scheme under the State Act can be implemented with recourse to the provisions of the Central Act which have been specifically stated therein. At the same time where there are specific provisions under the State Act the corresponding provisions of the Central Act will not apply. The provisions of the Land Acquisition Act relating to the acquisition of land alone, for which there are no specific provisions under the State Act, would be applicable to the acquisition under the State Act. This view was also taken by a three Judge Bench of this Court in a very recent judgment in the case of Bondu Ramaswamy v. Bangalore Development Authority [(2010) 7 SCC 129]. 

SELF-CONTAINED CODE 

For an Act to be a ‘self-contained code’, it is required to be shown that it is a complete legislation for the purpose for which it is enacted. The provisions of the MRTP Act relate to preparation, 

65

submission and sanction of approval of different plans by the concerned authorities which are aimed at achieving the object of planned development in contradistinction to haphazard development. An owner/person interested in the land and who wishes to object to the plans at the appropriate stage a self-contained adjudicatory machinery has been spelt out in the MRTP Act. Even the remedy of appeal is available under the MRTP Act with a complete Chapter being devoted to acquisition of land for the planned development. Providing adjudicatory mechanism is one of the most important facets of deciding whether a particular statute is a ‘complete code’ in itself or not.  

This Court in Munithimmaiah v. State of Karnataka [(2002) 4 SCC 326] had the occasion to consider somewhat similar question in relation to the Bangalore Act and the provisions of the Land Acquisition Act. The provisions of Section 36 of the Bangalore Act refer to application of the provisions of the Land Acquisition Act. The Court rejected the plea that provisions of Sections 6 and 11A of the Land Acquisition Act providing a shorter period of limitation for publication of final notification and making of an award, were 

66

applicable to acquisition made under the Bangalore Act. Further, while holding that the Bangalore Act is a self-contained code, the Court held as under : 

“15. So far as the BDA Act is concerned, it is 

not an Act for mere acquisition of land but an 

Act to provide for the establishment of a 

development authority to facilitate and ensure 

planned growth and development of the city of 

Bangalore and areas adjacent thereto and 

acquisition of lands, if any, therefore is merely 

incidental thereto. In pith and substance the 

Act is one which will squarely fall under, and 

be traceable to the powers of the State 

Legislature under Entry 5 of List II of the 

Seventh Schedule and not a law for 

acquisition of land like the Land Acquisition 

Act, 1894 traceable to Entry 42 of List III of the 

Seventh Schedule to the Constitution of India, 

the field in respect of which is already 

occupied by the Central enactment of 1894, 

as amended from time to time. If at all, the 

BDA Act, so far as acquisition of land for its 

developmental activities is concerned, in 

substance and effect will constitute a special 

law providing for acquisition for the special 

purposes of BDA and the same was not also 

considered to be part of the Land Acquisition 

Act, 1894. It could not also be legitimately 

stated, on a reading of Section 36 of the BDA 

Act that the Karnataka Legislature intended 

thereby to bind themselves to any future 

additions or amendments, which might be 

made by altogether a different legislature, be it 

Parliament, to the Land Acquisition Act, 1894. 

The procedure for acquisition under the BDA 

67

Act vis-à-vis the Central Act has been analysed elaborately by the Division Bench, as noticed supra, in our view, very rightly too, considered to constitute a special and self contained code of its own and the BDA Act and Central Act cannot be said to be either supplemental to each other, or pari materia legislations. That apart, the BDA Act could not be said to be either wholly unworkable and ineffectual if the subsequent amendments to the Central Act are not also imported into consideration. On an overall consideration of the entire situation also it could not either possibly or reasonably be stated that the subsequent amendments to the Central Act get attracted or applied either due to any express provision or by necessary intendment or implication to acquisitions under the BDA Act. When the BDA Act, expressly provides by specifically enacting the circumstances under which and the period of time on the expiry of which alone the proceedings initiated thereunder shall lapse due to any default, the different circumstances and period of limitation envisaged under the Central Act, 1894, as amended by the amending Act of 1984 for completing the proceedings on pain of letting them lapse forever, cannot be imported into consideration for purposes of the BDA Act without doing violence to the language or destroying and defeating the very intendment of the State Legislature expressed by the enactment of its own special provisions in a special law falling under a topic of legislation exclusively earmarked for the State Legislature.” 

68

A Constitution Bench of this Court in Prakash Amichand Shah v. State of Gujarat [(1986) 1 SCC 581], while dealing with the erstwhile Bombay Town Planning Act, 1954 (for short, ‘the Bombay Act’) discussed in some elaboration the working under the Land Acquisition Act vis-à-vis the Bombay Act. The Court said that development and planning carried out under the Bombay Act is, primarily, for the benefit of the public. The local authority is under an obligation to function according to the Bombay Act and has to bear part of the expenses of development. It is in one sense a package deal. The proceedings relating to scheme are neither like acquisition proceedings under the Land Acquisition Act nor its provisions are made applicable to the Bombay Act either with or without modifications as in the case of Nagpur Improvement Trust Act, 1936. 

Another school of thought has taken the view that while determining whether a statute is a self-contained code or not, relevant consideration would be whether such Act contains a bar for application of other statute by specific language or even by necessary implication to the Act in question. In some cases, there may be general application of other laws to the law in question or there may 

69

be a reference of certain provisions of other statute in the provisions of the later statute and only those specified provisions would apply to the later statute while in other cases, the situation may be different where the later statute is not a self-contained code. It may be possible to enforce the bar or limitations created under the earlier statute even by subsequent amendments. We may refer to the judgment of this Court in the case of Gopal Sardar v. Karuna Sardar [(2004) 4 SCC 252], wherein the Court was concerned with the West Bengal Land Reforms Act, 1955. Some of the provisions of that Act referred to certain provisions of the Limitation Act, 1963. Section 8 of the West Bengal Land Reforms Act required service of the notice in terms of Section 5(5) within three months of the date of the transfer but no reference was made to any of the provisions of the Limitation Act in this Section. The contention raised was that the applicant could invoke Section 5 of the Limitation Act for condoning the delay in filing an application in terms of Section 8 of the West Bengal Land Reforms Act. The Court while emphasizing, that the West Bengal Land Reforms Act was a self-contained code, held as under: 

“13. Section 8 of the Act prescribes definite 

period of limitation of three months or four 

70

months, as the case may be, for initiating proceedings for enforcement of right of pre emption by different categories of people with no provision made for extension or application of Section 5 of the Limitation Act. When in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of Section 5 of the Limitation Act and such provision is not made to an application to be made under Section 8 of the Act, it obviously and necessarily follows that the legislature consciously excluded the application of Section 5 of the Limitation Act. Considering the scheme of the Act being a self-contained code in dealing with the matters arising under Section 8 of the Act and in the light of the aforementioned decisions of this Court in the case of Hukumdev Narain Yadav, Anwari Basavaraj Patil and Parson Tools it should be construed that there has been exclusion of application of Section 5 of the Limitation Act to an application under Section 8 of the Act. In view of what is stated above, the non-applicability of Section 5 of the Limitation Act to the proceedings under Section 8 of the Act is certain and sufficiently clear. Section 29(2) of the Limitation Act as to the express exclusion of Section 5 of the Limitation Act and the specific period of limitation prescribed under Section 8 of the Act without providing for either extension of time or application of Section 5 of the Limitation Act or its principles can be read together harmoniously.” 

71

In the case of Church of North India v. Lavajibhai Ratanjibhai [(2005) 10 SCC 760], Bombay Public Trusts Act, 1950 under which the jurisdiction of the Civil Court is expressly barred was held to be a ‘complete code’ in itself providing adequate machinery to deal with disputes relating to management of trust property. The provisions of this Act and the scheme thereof left no manner of doubt that the Act is a complete code in itself. It provides for a complete machinery for a person interested in a trust to put forward his claim before the Charity Commissioner, who is the competent authority under this Act to go into the said question and can prefer an appeal if he feels aggrieved by any decision. 

Now, we may, while referring to an example, show when a statute may not be treated as a self-contained Code. In the case of Mariyappa v. State of Karnataka [(1998) 3 SCC 276], a Bench of this Court was concerned with the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (in short ‘the Karnataka Act’) which was an Act of only seven Sections and Section 5 of which provided that provisions of the Land Acquisition Act shall mutatis mutandis apply. The Court, in paragraph 37 of the judgment, stated that there 

72

being no detailed machinery whatsoever in the Karnataka Act, it cannot be treated as a self-contained code. This clearly shows that if complete machinery or mechanism is not provided under an Act to ensure effective execution of the functions assigned therein with due protection of the rights of the interested persons within the framework of law, it may not be possible for the Court to hold that such a statute is a self-contained code.  

It may not be possible to state parameters of universal application which could determine with precision as to whether an Act is a self-contained code or not. It is difficult and, in fact, may not even be permissible to formulate any hard and fast rule which could uniformly be applied to all statutes for such determination. We have merely indicated some of the features which could serve as precepts for the courts to analyse whether an Act is a complete code in itself or not. The expression ‘complete code in itself’ has not been defined precisely. However, it will be of some help to understand what the word ‘code’ means. It has been explained in P. Ramanatha Aiyar’s ‘The Law Lexicon’ (2nd Edn. 1997) as under : 

“A general collection or compilation of laws by 

public authority; a system of law; a systematic 

73

and complete body of law, on any subject 

such as Civil Procedure Code, Code of 

Criminal Procedure, Penal Code. etc. 

… The code is broader in its scope, and more 

comprehensive in its purposes. Its general 

object is to embody, as near as practicable, all 

the law of the state, on any particular subject. 

It is more than evidentiary of the law; it is the 

law itself.” 

‘Complete’ further adds a degree of certainty to the code. It has to be a compilation of provisions which would comprehensively deal with various aspects of the purpose sought to be achieved by that law and its dependence on other legislations is either absent or at best is minimal. The provisions of the enactment in question should provide for a complete machinery to deal with various problems that may arise during its execution. Sufficient powers should be vested in the authority/forum created under the Act to ensure effectual and complete implementation of the Act. There should be complete and coherent scheme of the statutory provisions for attainment of the object and purpose of the Act. It essentially should also provide for adjudicatory scheme to deal with grievances/claims of the persons affected by enforcement of the provisions of the Act, preferably, including an appellate forum within the framework of the Act. In other 

74

words, the Act in itself should be a panacea to all facets arising from the implementation of the Act itself.  

Upon analysis of the above principles and particularly keeping in mind the negative instance in the case of Mariyappa (supra), we may turn back to the provisions of the MRTP Act. The principal object of this legislation is planned development of the State of Maharashtra by preparing development plans for regions and town planning schemes and constitution of various authorities to achieve the said purpose. Incidentally, it includes the function of acquisition of land but for a very limited purpose. It is not expected of the authorities to apply to the Government for a general acquisition but the acquisition has to be of the land which is required, reserved or designated under any development plan. Thus, it is an acquisition of a very limited connotation. The MRTP Act specifies all the authorities, their respective powers and functions for attaining the object of the Act. 

The complete scheme has been provided under the MRTP Act for attaining the object of planned development. Various provisions of the Act comprehensively prescribe what and how the steps are 

75

required to be taken by the authorities under the Act, right from the stage of preparation of draft development plan to its finalization as well as preparation and finalization of all regional and town planning schemes. The MRTP Act clearly spells out as to how these schemes are to be implemented and by whom. Right of the interested person to raise objections, pre-finalization of the respective plans, is specifically provided. The authority before whom such objections are to be raised and who is to be granted hearing and by whom is clearly spelt out. There is no aspect which is not dealt with or provided for under the provisions of the State Act right from the initial stage to its final execution. Besides providing right of objection to the owner of the land or property, which fall within the development plan, the State Act also provides machinery for finalization and determination of disputes between the authorities and private parties. Furthermore, a person is entitled to raise all disputes including the dispute of ownership. The Arbitrator nominated under the MRTP Act has the jurisdiction to decide all such matters. The jurisdiction of the Arbitrator is a limited one like estimation and payment of compensation in relation to plots in distinction to lands as defined under the Act within the four corners of the provisions of Sections 72 

76

to 74 of the MRTP Act with reference to Section 97 of the State Act. Some of his decisions are final, while on most of other decisions, an appeal lies to the Tribunal.  

The MRTP Act besides being a code in itself has one pre dominant purpose, i.e., planned development. Other matters are incidental and, therefore, should be construed to achieve that pre dominant object. All the provisions of the Land Acquisition Act cannot be applied to the MRTP Act. The provisions of the MRTP Act have to be implemented in their own field. As far as the provisions relating to preparation, approval and execution of the development plans are concerned, there is hardly any dependency of the State Act on the provisions of the Land Acquisition Act. It may be necessary, sometimes, to acquire land which primarily would be for the purpose of planned development as contemplated under the MRTP Act. Some of the provisions of the State Act have specifically referred to some of the provisions of the Land Acquisition Act but for the limited purpose of acquiring land. Thus, the purpose of such reference is, obviously, to take aid of the provisions of the Central Act only for the purpose of acquiring a land in accordance with law stated therein 

77

rather than letting any provision of the Central Act hamper or obstruct the principal object of the State Act, i.e. execution of the planned development. There can hardly be any hesitation in concluding that the MRTP Act is a self-contained code and does not lose its colour or content of being a self-contained code merely because it makes a reference to some of the provisions of Land Acquisition Act for acquisition of land for the purpose of MRTP Act and determination of compensation in that behalf. The referred provisions of the Land Acquisition Act may only be taken recourse to that limited extent, within the extensive framework and for the purpose of MRTP Act. 

Therefore, MRTP Act is an Act which completely provides for various steps in relation to execution of its object, constitution of various authorities to implement the underlying scheme of planned development, machinery for interested persons to raise their claims for adjudication under the provisions of this Act or at best to an authority referred to in the Act. Thus, we have no hesitation in holding that the MRTP Act is a complete code in itself. 

Whether the provisions of the Central Act 68 of 1984, with particular reference to Section 11A, can be read into and treated as part of the MRTP Act on the principle of either legislation by reference or legislation by incorporation? 

78

At the very outset, we may notice that in the preceding paragraphs of the judgment, we have specifically held that MRTP Act is a self-contained code. Once such finding is recorded, application of either of the doctrines, i.e. ‘legislation by reference’ or ‘legislation by incorporation’, would lose their significance particularly when the two Acts can co-exist and operate without conflict. 

However, since this aspect was argued by the learned counsel appearing for the parties at great length, we will proceed to discuss the merit or otherwise of this contention without prejudice to the above findings and as an alternative plea. These principles have been applied by the courts for a considerable period now. When there is general reference in the Act in question to some earlier Act but there is no specific mention of the provisions of the former Act, then it is clearly considered as legislation by reference. In the case of legislation by reference, the amending laws of the former Act would normally become applicable to the later Act; but, when the provisions of an Act are specifically referred and incorporated in the later statute, then those provisions alone are applicable and the amending 

79

provisions of the former Act would not become part of the later Act. This principle is generally called legislation by incorporation. General reference, ordinarily, will imply exclusion of specific reference and this is precisely the fine line of distinction between these two doctrines. Both are referential legislations, one merely by way of reference and the other by incorporation. It, normally, will depend on the language used in the later law and other relevant considerations. While the principle of legislation by incorporation has well defined exceptions, the law enunciated as of now provides for no exceptions to the principle of legislation by reference. Furthermore, despite strict application of doctrine of incorporation, it may still not operate in certain legislations and such legislation may fall within one of the stated exceptions. In this regard, the judgment of this Court in the case of M.V. Narasimhan (supra) can be usefully noticed where the Court after analyzing various judgments, summed up the exceptions to this rule as follows : 

“(a) where the subsequent Act and the 

previous Act are supplemental to each 

other; 

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

80

(c) where the amendment in the previous 

Act, if not imported into the subsequent 

Act also, would render the subsequent 

Act wholly unworkable and ineffectual; 

and 

(d) where the amendment of the previous 

Act, either expressly or by necessary 

intendment, applies the said provisions 

to the subsequent Act.” 

With the development of law, the legislature has adopted the common practice of referring to the provisions of the existing statute while enacting new laws. Reference to an earlier law in the later law could be a simple reference of provisions of earlier statute or a specific reference where the earlier law is made an integral part of the new law, i.e., by incorporation. In the case of legislation by reference, it is fictionally made a part of the later law. We have already noticed that all amendments to the former law, though made subsequent to the enactment of the later law, would ipso facto apply and one finds mention of this particular aspect in Section 8 of the General Clauses Act, 1897. In contrast to such simple reference, legal incidents of legislation by incorporation is that it becomes part of the existing law which implies bodily lifting provisions of one enactment and making them part of another and in such cases subsequent amendments in