Allahabad High Court
Jagdamba Prasad Tiwari vs State Of U.P. Thru Prin. Secy. Awas Evam ... on 19 September, 2019
Bench: Pankaj Kumar Jaiswal, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- MISC. BENCH No. - 18264 of 2019 Petitioner :- Jagdamba Prasad Tiwari Respondent :- State Of U.P. Thru Prin. Secy. Awas Evam Sahri Niyojan & Ors Counsel for Petitioner :- S.P. Giri,Manish Mani Tripathi Counsel for Respondent :- C.S.C.,Ratnesh Chandra Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Jaspreet Singh,J.
1. Heard Sri S. P. Giri, learned Counsel for the petitioner and Sri Ratnesh Chandra, learned Counsel for respondent Nos.2, 3 and 4.
2. By means of this writ petition under Article 226 of the Constitution of India, the petitioner has made the following reliefs:-
(i) Issue appropriate writ order or direction in the nature of Certiorari to quash impugned order dated 26.06.2019 for demolition of House No.D-167, Indira Nagar, Lucknow situated over plot No.507 and 508 (Plot No.50 and 51) issued by Prescribed Authority/office of the Executive Engineer, Nirman Khand II Uttar Pradesh Awas Evam Vikas Parishad, Bhoothnath Office Complex, 3rd Floor, Indira Nagar, Lucknow (Annexure No.11).
(ii) To issue appropriate writ order or direction in the nature of Mandamus commanding respondents-authorities not to dispossess to petitioner from House No.D-167, Indira Nagar, Lucknow with open place in any manner situated over plot No.507 and 508 (Plot No.50 and 51).
(iii) To pass issue appropriate writ order or direction as this Hon'ble Court may deem fit and proper in the interest of justice.
(iv) To allow costs of the petition to the petitioner.
3. Brief facts of the case are that the petitioner is owner of 446 sq. mtr. land of Khasra No.507 and 508 purchased from Sultan Mirza Beg vide sale deed dated 4.12.1965. The respondents are not taking steps to not only dispossess the petitioner but also demolish the house/structure constructed over the land in 1966 and remain living therein along with family. The Housing Board for its Scheme, namely, Bastauli Gazipur Bhumi Vikas Evam Grih Sthan Yojana, Lucknow (presently known as Indira Nagar, Lucknow) had earlier issued notice under Section 28 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965 [here-in-after referred to as '1965 Adhiniyam'] on 20.12.1969 and thereafter, a notification under Section 32 of the 1965 Adhiniyam, which is akin to Section 6 of the Land Acquisition Act, 1894 was issued on 8.7.1972. The Award of the said land was declared on 31.3.1977 and the possession of the land was taken on two different dates, i.e., 1.9.1975 and 7.4.1976 respectively. After issuance of notification under Section 28 of the 1965 Adhiniyam, notice under Section 29 of the 1965 Adhiniyam was also sent to the tenure holders and objections were filed by the land owners including the petitioner in respect of Khasra Plot Nos.507 and 508, Ghazipur Saidulnissa Pargana and Tehsil and District Lucknow. The objections were considered by the Niyojan Samiti of the Parishad and thereafter, final notification for acquisition under Section 32 of the 1965 Adhiniyam was issued on 8.7.1972 by which the land of the petitioner was also acquired. No Appeal against the decision taken by the Niyojan Samiti of the Parishd under Section 32 (3) of the 1965 Adhiniyam was filed within 30 days from the date of issuance of notification under Section 32, i.e., 8.7.1972.
4. As per Sale Deed dated 4.12.1965, total area is 446.1 sq. mtr. whereas the petitioner is claiming ownership over Khasra Plot Nos.507 and 508 measuing 0-1-3-0 bigha and 0-3-8-0 bigha respectively, but he has completely failed to establish as to how he is claiming ownership over the said piece of land after the same has been acquired by the Housing Board. According to the petitioner, he is claiming ownership on the basis of sale deed dated 4.12.1965 executed in his favour for 4800 sq. ft. (446.1 sq. mtr.), whereas on spot, he is in possession of 811 sq. mtr. As per Award dated 31.3.1977, he is in possession of 570 sq. mtr. which means he is still encroached the land of 241 sq. mtr. illegally. He is relying upon an order dated 9.6.1982 allegedly issued by the Secretary, Housing and Urban Development without any signatures by which land measuring 417.13 sq. mtr. (155.05 sq. mtr. for constructed area and 262.08 sq.mtr. for land area) was proposed to be exempted. As per counter affidavit of the Parishad, there is no authorized copy of the letter/order dated 9.6.1982 available in their office.
5. As per Award dated 31.3.1977, the land which was found to be under the ownership of the petitioner, prior to the acquisition was 570 sq. mtr. which is under consideration before the Housing Commissioner. The petitioner has encroached 241.18 sq. mtr. more land for which notice dated 16.3.2019 was issued by the Competent Authority but as the petitioner failed to remove the encroachment, hence order dated 26.6.2019 has been passed for demolition of the unauthorized structures over the encroached area. It is this order which is impugned in this writ petition.
6. This case has a chequered history. In the year 1981-82, U. P. Awas Evam Vikas Parishad given notice to the petitioner for demolition of the house in question against which he moved representation before the State Government to remove the process of acquisition from the area of the petitioner wherein prior to acquisition process dated 20.12.1969, he has already constructed house in the year 1966 which is still pending disposal at the end of State Government. On 1.1.1990, a notice was sent to the petitioner for demolition of boundary wall standing over Plot No.507 against which the petitioner filed a Civil Suit No.73 of 1990 and on 4.4.1994, the said Civil Suit was dismissed under Order 7 Rule 11 (d) of CPC.
7. Learned Counsel for the petitioner has submitted that after issuance of notice on 1.10.1990, the Parishad kept mum about 27 years and all of sudden, on instigation of the private developers, the Parishad issued notice to the petitioner on 15.2.2019 and 16.3.2019 by contending that the petitioner's land is under encroachment land of the Parishad. The said Authority without applying proper mind over the fact that the petitioner is in possession for the last 50 years has passed the impugned demolition order dated 26.6.2019 by contending that the land in question is Parishad's land and the Parishad is entitled to retain possession over the said land.
8. Learned Counsel for the petitioner further submitted that the land in dispute is bearing 811 sq. mtr. which was purchased by the petitioner in the year 1965 by a registered sale deed and thereafter, the entire land was developed by the developers in the year 1965. The vacant land between plot Nos.50 and 51 is for easement rights of the petitioner and therefore, it cannot be said that the same has been unauthorizedly encroached by the petitioner.
9. No document or material has been filed alongwith this writ petition to prove that in the year 1965, the petitioner has purchased the total area of 811 sq. mtr except the sale deed by which the petitioner has purchased 446 sq. mtr. from one Sultan Mirza Beg. The petitioner is not disputing the notifications issued under Section 28 and 32 in the year 1969 and 1972 respectively, by which Khasra Nos.507 and 508, apart from other plot numbers, were acquired by the Housing Board. After aqcquisition, the Award was passed and compensation in respect of Khasra Plot Nos.507 and 508 was paid long back to the tenure holders. The possession of the land has also been delivered to the Housing Board on 1.9.1975 and 7.4.1976 respectively. If we admit the argument of learned Counsel for the petitioner that the petitioner has purchased 570 sq. mtr. whereas on spot he is in possession of 811 sq. mtr., i.e., 811 - 570=241, which belongs to Parishad of which the petitioner is illegally constructed his house. Learned Authority after giving notice to the petitioner passed an order for demolition on 26.6.2019.
10. The Apex Court in the case of Satya Pal and others v. State of U.P. and others [(1997) 9 SCC 117] has held that notification issued under Section 28-A of the 1965 Adhiniyam is similar to Section 4 (1) of the Land Acquisition Act, 1894 and declaration under Section 32 of the 1965 Adhiniyam is similar to Section 6 of the Land Acquisition Act, 1894.
11. In the case of U. P. Avas Evam Vikas Parishad v. Pushpa Lata Awasthi [(1995) 3 SCC 573], the Apex Court held that the Amendment Act has no application since some of the provisions of the Land Acquisition Act, 1894 were incorporated into the Adhiniyam. The same was reiterated in Ramesh Chandra Tiwari v. U. P. Avas Evam Vikas Parishad [(1997) 4 SCC 408].
12. From the aforesaid, it is now well settled that the Land Acquisition Amendment Act 68 of 1984 has no application to the acquisition under the Adhiniyam. As a result, Section 11-A of the Land Acquisition Act, 1894, as amended by Act 68 of 1984, has no application. The notification under Adhiniyam similar to Section 4 (1) and the declaration similar to Section 6 do not stand lapsed after the expiry of two years from the date the Amendment Act has come into force.
13. In Atul Sharma and another v. State of U.P. and others, Land Acquisition No.159 of 2014, a Division Bench of this Court, vide judgment and order dated 7.2.2017 has held that the land owners are not entitled to the benefits of the provisions of The Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 on the ground that the land has been acquired under U. P. Avas Evam Vikas Parishad Adhiniyam, 1965. Relevant portion of the order dated 7.2.2017 reads as under:-
"We have considered the submissions raised and we find that so far as the provisions of the 1965 Act are concerned section 55 clearly incorporates the provisions of acquisition within its fold in relation to the mode of acquisition under the 1894 Act. Thus, in the absence of any amendment to section 55 the provisions of the 2013 Act cannot be ifso facto read into or be enforced so as to include or construe any amendment in the 1965 Act. This is further supplemented by the non-inclusion of the 1965 Act in Schedule 4 of the 2013 Act. The question of pressing into service the provisions of the 2013 Act automatically merely because of the 1894 Act as mentioned in section 55, therefore, does not arise.
The second question is that the State continues to enjoy the legislative competence of enacting any such law under Entry no. 42 of list III of the 7th schedule of the Constitution of India. The provisions of section 103, 104 and 107 of the 2013 Act are designed to avoid any repugnancy. The relevant provisions of the 2013 Act are extracted herein under:
"103. The provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force.
104. Notwithstanding anything contained in this Act, the appropriate Government shall, wherever possible, be free to exercise the option of taking the land on lease, instead of acquisition, for any public purpose referred to in sub-section (l) of section 2.
105. (l) Subject to sub-section (3), the provisions of this act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.
(2) Subject to sub-section (2) of section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule.
(3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notifications, as the case may be.
(4) A copy of every notification proposed to be used under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament.
107. Nothing in this Act shall prevent any State from enacting any law to enhance or add to the entitlements enumerated under this Act which confers higher compensation than payable under this Act or make provisions for rehabilitation and resettlement which is more beneficial than provided under this Act.
114. (1) The land Acquisition Act, 1894 is hereby repealed.
(2) Save as otherwise provided in this act the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeals."
The issue of any inconsistency, conflict or repugnancy has to be analysed vis-a-vis Article 254 of the Constitution of India that reads as follows :
"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
The law relating to acquisition is within the competence of the Parliament as well as the State legislature as provided for in the Concurrent list III of the 7th Schedule of the Constitution of India. Entry 42 that governs the field of legislative competence is extracted herein under:
"42. Acquisition and requisitioning of property"
The provisions of the 1894 Act existed when the said Act of 1965 was enacted and consequently section 55 of the 1965 Act incorporated the procedure relating to land acquisition as contained in the 1894 Act. The 2013 Act came into force w.e.f. 1.1.2014. The issue of repugnancy which has been raised is on the ground of resulting discrimination for extending benefits of section 24(2) of the 2013 Act which is clearly relating to the acquisition being treated and deemed to have lapsed in the event possession has not been taken and compensation has not been paid as explained by the Supreme Court in the case of Pune Municipal Corporation & Another vs. Harakchand Misirimal Solanki and others (2014) 3 SCC 183 and Delhi Development Authority vs. Sukhbir Singh and others (2016) SCC online SC 929. This stated discrimination is being made the basis of the argument of repugnancy between the 1965 Act and the 2013 Act with the aid of the law of discrimination as explained in the case of Jainul Islam (supra). The denial of any benefit under the 2013 Act is, therefore, being urged as applying different sets of law for such benefit that has a common element as the issue of not taking possession and non-payment of compensation are of a cognate and allied character. It is urged on behalf of the petitioners that while interpreting the benefits arising out of the amendments in section 23A of the Land Acquisition Act, 1894 the Supreme Court in Jainul Islam's case (supra) clearly came to the conclusion that even if the said provision was not specifically incorporated, it had to be read in favour of the tenure holders as it was a beneficial piece of legislation. The same analogy is, therefore, being pressed into service before us for construing the applicability of the 2013 Act and it's provisions in acquisitions under the 1965 act in spite of the fact that the 1965 Act has neither been amended nor it is included in the schedule of the 2013 Act.
It is also urged that the absence of exclusion of the applicability of the 2013 Act under section 105 read with the 4th Schedule of the 2013 Act implies tha the Parliament did not intend to exclude the applicability of the Act in acquisitions under the 1965 Act.
The question is as to whether this can be understood as a repugnancy or a conflict or inconsistency giving rise to any discrimination as pleaded on behalf of the petitioners. In order to understand as to what is repugnancy in the sense as understood under Article 254 of the Constitution of India and its connotations several decisions have been rendered by different Courts including the Apex Court of our country and in order to appreciate the same we are referring the ratio of these judgments that illustrates this point. The first decision is of the Calcutta High Court in the case of G. P. Stewart vs. Brojendra Kishore Roy Chaudhary (AIR 1939 Calcutta 628). While referring to the law as expounded by some of the Courts of the common-wealth countries the Court in paragraphs 10 to 14 has ruled as under :
"10. Meaning of "repugnancy." - It is sometimes said that two laws cannot be said to be properly repugnant unless there is a direct' conflict between them, as when one says "do" and the other "don't," there is no true repugnancy, according to this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is to narrow a test: there may well be cases of repugnancy where both laws say "don't" but in different ways. For example, one law may say "No person shall sell liquor by retail, that is, in quantities of less than five gallons at a time" and another law may say, "No per. son shall sell liquor by retail, that is, in [quantities of less than ten gallons at a time." Here, it is obviously possible to obey both laws, by obeying the more stringent of the two, namely the second one; yet it is equally obvious that the two laws are repugnant, for to the extent to which a citizen is compelled to obey one of them, the other, though not actually disobeyed, is nullified. This was the type of repugnancy that arose for consideration in Attorney general for Ontario v. Attorney General for Dominion of Canada (1896) A.C. 348 The Canada Temperance Act, 1886, (a Dominion Act) contained one set of prohibitions, while the Ontario Act, 53 Viet. c. 56 (a Provincial Act), contained another and a rather different set. Their Lordships of the Judicial Committee of the Privy Council held that where the prohibitions of the Dominion Act were or might be in actual operation the Provincial Act was or would be inoperative by reason of repugnancy; but where the former were not in actual operation (by reason of their not having been locally adopted), there could be no repugnancy (pp. 369, 370 loc cit.). The question of repugnancy or inconsistency has arisen and been considered in several Australian cases, with reference to Section 109, Commonwealth of Australia Constitution Act which provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall to the extent of the inconsistency be invalid. (A summary of the cases will be found in Wynes's Legislative and Executive Powers in Australia; and in Street on Ultra Vires.) In the earlier cases Federated Saw Mills &c. Employees v. Moore 8 C.L.R. 465, Australian Boot Trade Employees v. whybrow 10 C.L.R. 266, Federated Engine Drivers &c. of Australia v. Adelaide Chemical and Fertiliser Co. 28 C.L.R. 1 the test of inconsistency adopted was whether it was possible to obey both the competing laws. But in the case in Clyde Engineering Co. v. Cowburn 37 C.L.R. 466 where the conflict was between an award of the Conciliation Court providing for a working weak of 48 hours and a New South Wales Act providing for payment of overtime for any work in excess of 44 hours, it was recognized that the test was to narrow. Isaacs J. observed that two statutes imposing respectively twenty and twenty, five lashes for robbery might in a sense be both obeyed by infliction of forty five lashes and he therefore propounded a more satisfactory test thus:
If however a competent Legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another Legislature assumes to enter to any extent upon the same field: (page 490 loc. Cit.)
11. It is unnecessary to mention all the subsequent Australian cases where this test was adopted we content ourselves with citing only Ex parte Molean Re Firth (1930) 43 C.L.R. 472 where Dixon J. observed that inconsistency depends on the intention of the paramount Legislature to express by its enactment completely, exhaustively, or exclusively what shall be the law governing the particular conduct or matter to which its intention is directed. When a Federal Statute discloses such an intention it is inconsistent with it for the law of a State to govern the same conduct or matter.
12. In Canada, of course, apart from a few exceptional provisions, such as those relating to agriculture and immigration, the Constitution Act itself does not confer any concurrent powers of legislation. There are only two legislative lists, but it has been settled by a long line of Privy Council decisions that there can be a domain in which provincial and dominion legislation may overlap, in which case neither legislation will be ultra vires, if the field is clear, but that if the field is not clear and in such a domain the two legislations meet, then the dominion legislation must prevail: Grand Trunk Railway of Canada v. Attorney-General of Canada (1907) A.C. 65
13. Once again threfore we are led to the same test as that propounded by Isaacs J.: "Is the field completely occupied by the dominant Legislature?" In England, the question of repugnancy has been considered chiefly in relation to byelaws and the general law of the land, a byelaw being treated as ultra vires if it is repugnant to the general law. In Gentel v. Rapps (1902) 1 K.B. 160 meaning of repugnancy thus:
is not repugnant to the general law merely because it created a new offence and says that something shall be unlawful which the law does not say is unlawful. It is repugnant if it makes unlawful that which the general law says is lawful. It is repugnant if it expressly or by necessary implication professes to alter the general Jaw of the land. I say by necessary implication' because I have in mind the cases with respect to bye-laws prohibiting persons from travelling on railways without a ticket. In those cases bye-laws which impose the same penalty as the general law without making a fraudulent intention part of the description of the offence have been held to be bad, because the statute creating the offence says that there must be a fraudulent intention on the part of the person charged with travelling without a ticket and the bye-law therefore by implication alters the general law. Again, a bye-law is repugnant if it adds something inconsistent with the provisions of a statute creating the same offence; but if it adds something not inconsistent, that is not sufficient to make the bye-law bad as repugnant.
14. All these propositions are really reducible to the single test of the 'occupied field,' for in the first and the last illustrations, the ground not being covered by the general law, there is no repugnancy and in the others, the ground is already covered, so that the bye-law is repugnant. In Strickland v. Hayes (1896) 1 Q.B. 290 a bye-law which provided that no person shall use profane language in any street was held to be bad, because the general law, namely the Town Police Clauses Act, 1847, dealing with precisely the same subject, required that annoyance should be caused by the language used in order that there might be an offence. In Thomas v. Sutters (1900) 1 Ch. D. 10 a bye-law that no person shall frequent or use any street for the purposes of betting was held to be good and not repugnant to the general law, the Metropolitan Streets Act, 1867, Section 23 of which provided that any three or more persons assembled together in any part of a street for the purpose of betting shall be liable to a penalty. The ground of the decision was in effect that the general law in this case did not occupy the same field as the bye-law; the one was concerned with the subject of street obstruction and the other with that of betting. In Gentel v. Rapps (1902) 1 K.B 160 a bye-law providing that no person shall use offensive language in a tramcar was held to be consistent with the Town Police Clauses Act, 1847, which punished any person who in any street used offensive language to the annoyance of the residents or passengers, because the latter law (relating, as it did, to nuisances in streets) did not intend to deal with or affect the power to make bye-laws under special circumstances and dealing with particular places (namely bye-laws relating to nuisances in tramcars. The principle deducible from the English cases, as from the Canadian cases, seems therefore to be the same as that enunciated by Isaacs J. in the Australian 44 hour case Clyde Engineering Co. v. Cowburn 37 C.L.R. 466 if the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore in. operative. Whether and to what extent in a given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law"
The aforesaid observations have been later on reproduced, considered and explained by the Apex Court in at least three decisions which deserve mention, the leading being Ch. Tika Ramji and Ors etc. vs. The State of Uttar Pradesh and Ors. (AIR 1956 Supreme Court 676), paragraphs 30 to 39. The second decision is in the case of the State of T.N. and Anr. vs. Adhiyaman Educational & Research Institute and Ors,(1995 (4) SCC 104) paragraphs 15 to 18 and the third decision is in the case of Thirumuruga Kirupananda Variyarthavathiru Sundara Swamigalme vs. Stae of Tamil Nadu and Ors. (1996 Vol. 3 SCC 15) paragraphs 19, 20, 23 to 26. There are many more decisions to the same effect and it is not necessary for us to burden this judgment with anything further.
The basic principle that can be culled out from a perusal of these judgments is that the test of repugnancy is whether the law made by Parliament and that by the State Legislature occupy the same field and whether the Parliament intended to lay down a exhaustive code in respect of the subject matter replacing the act of the State Legislature.
The non-inclusion of the 1965 Act in the 4th Schedule to the 2013 Act in terms of section 105 thereof does not necessarily mean that the 2013 Act was extended to be applied in acquisitions under the 1965 Act. The intent of the 2013 Act was to eclipse the anomalies and improve the conditions of payment of compensation to acquisitions made under the Land Acquisition Act, 1894 only. Since the 1894 Act has been repealed, and the 1965 Act continues to exist without any amendment there does not arise any issue of repugnancy or inconsistency. This has to be viewed from another angle. The benefit of deemed lapse is by a fiction under a specific statute. A provision of fiction has to be strictly construed and it cannot be impliedly treated to be incorporated unless the 1965 Act also contemplates any such fiction. It is for this reason that an amendment will have to be expressly brought about in the 1965 Act if the provisions of 2013 Act have to be applied and not otherwise in relation to the procedure of acquisition. A provision of deemed lapse cannot be read into by way of interpretation into 1965 Act without specific amendment therein.
The other question is can this be construed the other way around by presuming an implied applicability of the 2013 Act merely because section 55 of the 1965 Act incorporates the procedure of acquisition under the 1894 Act. We may put on record that the issue of lapse of an acquisition proceeding under section 11-A of the 1894 Act was specifically held to be not applicable in acquisitions under the 1965 Act in Jainul Islam's case. The same situation exists here where the issue of deemed lapse under section 24(2) is sought to be introduced and read into the 1965 Act. We cannot accept this proposition inasmuch as section 55 of the 1965 Act has not been amended so as to include any provision relating to the acquisition resulting in any lapse as contained in the 2013 Act. Thus, such applicability cannot be implied when it has not been incorporated in the 1965 Act.
There is yet another reason namely the provisions of 2013 Act as contained in section 24(2) are not inconsistent with any provision of the State Act that exists from before. Conversely the State Act also does not include any provision that may said to be inconsistent or in conflict with 2013 Act. The non-inclusion of the benefit of the clause of deemed lapse does not make the enactment inconsistent, conflicting or repugnant.
To understand this recourse can be had to the provisions quoted herein above in the 2013 Act that clearly provide that the 2013 Act and its provisions are in addition and not in derogation of any law for the time being in force. Consequently the States have been left to enact any law that may provide for any better facilities relating to acquisition over and above that has been provided for in the 2013 Act. This, therefore, also removes the elements of discrimination or arbitrariness. It is open to the State to provide better facility or benefit in matters of acquisition by bringing about any amendment in the 1965 Act.
Coming to the last limb of this argument namely the resultant discrimination in relation to acquisitions having been made prior to 01.01.2014, we may point out that when there is a legislation by incorporation then it is only that part of legislation which stands incorporated and continues to exist and not a new legislation which refers to the proceedings under the old legislation. The reason is what can be incorporated is that which exists. It is for this reason that section 55 of the 1965 Act incorporated the then existing provisions of 1894 Act. The 1894 Act has now been repealed and is not in existence. Thus, it is only the provisions of 1894 Act that have been incorporated in section 55 of the 1965 Act that will continue to exist for that purpose only to that limited extent. The same does not within its fold draw the elements of the 2013 Act which has never been intended to be incorporated or included in the 1965 Act or vice-versa. Thus, these are two sets of acquisitions under the different Acts and the question of applying Article 14 to invoke discrimination does not arise.
However, there is another shade of this discrimination which has to be avoided keeping in view the ratio of the Jainul Islam's case. To that extent we hold that if any acquisition is made by the authority under the 1965 Act after 01.01.2014 then it's actions or the assessment of compensation cannot be less than what has been contemplated in 2013 Act. The determination of the quantum of compensation, therefore, on principles will have to be applied in relation to acquisitions made by the Awas Vikas Parishad under the 1965 Act after 01.01.2014 as per the 2013 Act.
Consequently for all the reasons aforesaid the relief claimed in the writ petition with regard to the lapse of the proceedings cannot be availed of and the petition is accordingly dismissed."
14. The land has been acquired in accordance with law and the Housing Board is in possession of the land since 1.9.1975 and 7.4.1976 respectively. In view of the law laid down by the Division Bench in the case of Atul Kumar Sharma (supra), the judgment rendered in Pune Municipal Corporation (supra), on which heavy reliance has been placed by the petitioner is not applicable in the set of facts and circumstances of the case. The Scheme for which the land in question alongwith other land has been acquired in 1969-72 is being executed and the tenure holders are being paid compensation. There is no provision under 1965 Adhiniyam for exempting the land of the petitioner. The petitioner has not been able to demonstrate as to how his land has been exempted and the said land has been released from acquisition. Under these circumstances, the petitioner is in possession of 811 sq. mtr., though the petitioner has been unable to give satisfactory response to the show cause notice issued to him. From the impugned order also, it is very clear that the petitioner is in possession of 811 sq. mtr. out of which 241.18 sq. mtr. is in unauthorized possession and structures therein are required to be demolished. Furthermore, as the 2013 Act will not beapplicable in view of the law laid down in Atul Kumar Sharma (supra), the petitioner is not entitled for any benefit as provided in Section 24 (2) of the 2013 Act.
15. From the Award dated 31.3.1977 (Annexure - 2), it is also clear that the land in question was never exempted or released from acquisition and adequate compensation was also paid to the tenure holders in terms of the Award passed by the learned Authority.
16. From the above, we are of the view that the writ petition filed by the petitioner challenging the order of demolition dated 26.06.2019 has no merit and is accordingly dismissed.
.
[Jaspreet Singh, J.] [Pankaj Kumar Jaiswal, J.] Order Date :- 19.9.2019 lakshman