Karnataka High Court
B Raviprakash S/O. Late B Basappa vs State Of Karnataka on 18 July, 2022
Author: N.S. Sanjay Gowda
Bench: N.S. Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA
W.P.No.108802/2016 (LA-KIADB)
C/W
W.P.No.107748/2014 (LA-KIADB)
C/W
W.P.No.100762/2017 (LA-KIADB)
In W.P.No.108802/2016
BETWEEN:
1. SREE S. SHEENAPPA
S/O LATE S. VENKATAPPA,
AGE: 50 YEARS,
OCC: AGRICULTURIST,
R/O 2ND WARD, KAMMA ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
2. SREE S. NARAYANASWAMY
S/O LATE S. VENKATAPPA,
Digitally signed
by J MAMATHA AGE: 65 YEARS,
Location: High
J
Court of
Karnataka, OCC: AGRICULTURIST,
MAMATHA Dharwad Bench
Dharwad.
Date: R/O 2ND WARD, KAMMA ONI,
2022.07.20
13:30:57 +0530
POST: KUDITINI,
TQ AND DIST: BALLARI
3. SREE KUMBARA MALLIAH
S/O LATE HANUMANTHAPPA,
AGE: 56 YEARS,
OCC: AGRICULTURIST,
R/O 2ND WARD, KAMMA ONI,
2
POST: KUDITINI,
TQ AND DIST: BALLARI
4. SREE GOTURU SHANMUKAPPA
S/O LATE AYYAPPA,
AGE: 65 YEARS,
OCC: AGRICULTURIST,
R/O NEAR SANGANABAVI,
POST: KUDITINI,
TQ AND DIST: BALLARI
5. SREE UPPARU THIMMAPPA
S/O LATE HANUMANTHAPPA,
AGE: 58 YEARS,
OCC: AGRICULTURIST,
R/O 7TH WARD,
RAMANJUNAPPA JINNA,
POST: KUDITINI,
TQ AND DIST: BALLARI
6. SREE G. M. VIRUPANNA
S/O VENKATAPPA,
AGE: 90 YEARS,
OCC: AGRICULTURIST,
R/O NEAR DASARA SHESHAPPA HOUSE,
KAMMA'S ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
7. SREE KURUBARA VITLAPURA SOMAPPA
S/O LATE VITLAPURA HANUMANTHAPPA,
AGE: 53 YEARS,
OCC: AGRICULTURIST,
R/O PINJARA ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
8. SMT.LALITHAMMA
W/O LATE CHIDANDAPPA,
AGE: 58 YEARS,
OCC: AGRICULTURIST,
3
R/O KAMMA'S ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
9. SMT.B. SATHYAVATHI
W/O B. RAMAMURTHY,
AGE: 54 YEARS,
OCC: AGRICULTURIST,
R/O KAMMA'S ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
10. SREE B. RAMAMURTHY
S/O LATE HANUMAPPA,
AGE: 63 YEARS,
OCC: AGRICULTURIST,
R/O KAMMA'S ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
11. SREE PRAKASH BABU
S/O B. HANUMANNA,
AGE: 50 YEARS,
OCC: AGRICULTURIST,
R/O KAMMA'S ONI,
POST: KUDITINI,
TQ AND DIST: BALLARI
12. SREE G. HAREESH
S/O LATE G. HANUMANTHAPPA,
AGE: 51 YEARS,
OCC: AGRICULTURIST,
R/O SOMASHETTI ROAD,
POST: KUDITINI,
TQ AND DIST: BALLARI
13. SREE ADIBASAPPA
S/O LATE MULLANGI DODDABASAPPA,
AGE: 53 YEARS,
OCC: AGRICULTURIST,
R/O KAMMA'S ONI,
4
POST: KUDITINI,
TQ AND DIST: BALLARI
14. SMT.RAJESWARI
S/O LATE R. BASAVARAJ,
AGE: 63 YEARS,
OCC: AGRICULTURIST,
R/O 4TH WARD,
NEAR NAYANASWAMY MATH,
POST: KUDITINI,
TQ AND DIST: BALLARI
15. SMT.THIMMAKKA
W/O LATE JADEPPA,
AGE: 69 YEARS,
OCC: AGRICULTURIST,
R/O NEAR JAKKER BAVI,
POST: KUDITINI,
TQ AND DIST: BALLARI
16. H. GAVISIDDAPPA
S/O H. LINGANNA,
AGE: 78 YEARS,
OCC: AGRICULTURIST,
R/O HARAGINADINI VILLAGE,
POST: HARAGINADONI,
TQ AND DIST: BALLARI
17. SMT.T. MEENAKSHAMMA
W/O LATE TITAGAL LOKANATHA
AGE: 59 YEARS
OCC: HOUSEHOLD,
R/O RAGHAVENDRA COLONY,
POST: KUDITINI,
TQ AND DIST: BALLARI
18. SREE T. SUDHAKARA
W/O LATE TITAGAL LOKANATHA
AGE: 41 YEARS
OCC: AGRICULTURE
R/O RAGHAVENDRA COLONY,
5
POST: KUDITINI,
TQ AND DIST: BALLARI
19. V. GADILINGAPPA
S/O SREE VITHLAPUR RAMANJINAPPA @
RAMANJINEYYA, AGE: 55 YEARS
OCC: AGRICULTURE
R/O NEAR DASARA GANDE
POST: KUDITINI, TQ AND DIST: BALLARI
20. V.HANUMAPPA
S/O SREE VITHLAPUR RAMANJINAPPA @
RAMANJINEYYA, AGE: 51 YEARS
OCC: AGRICULTURE
R/O NEAR DASARA GANDE
POST: KUDITINI, TQ AND DIST: BALLARI
21. V.LAKSHMI
D/O SREE VITHLAPUR RAMANJINAPPA @
RAMANJINEYYA, AGE: 40 YEARS
OCC: HOUSEHOLD,
R/O NEAR DASARA GANDE
POST: KUDITINI, TQ AND DIST: BALLARI
22. V. SHRADA
D/O SREE VITHLAPUR RAMANJINAPPA @
RAMANJINEYYA, AGE: 38 YEARS
OCC: HOUSEHOLD,
R/O NEAR DASARA GANDE
POST: KUDITINI, TQ AND DIST: BALLARI
... PETITIONERS
(BY SRI.T. HANUMAREDDY, ADV.)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF COMMERCE
AND INDUSTRIES,
VIKAS SOUDHA,
6
BENGALURU-560001
REPRESENTED BY ITS SECRETARY
2. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
NO.14/3, 2ND FLOOR,
R.P. BUILDING,
NRUPATHUNGA ROAD,
BENGALURU-560001
REP. BY ITS
CHIEF EXECUTIVE OFFICER
3. THE SPECIAL LAND ACQUISITION OFFICER
THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
ZONAL OFFICE,
KARUR INDUSTRIAL AREA,
PLOT NO.CA (1-B),
P.B. ROAD,
DAVANAGERE-577006
4. DEPUTY COMMISSIONER,
BALLARI DISTRICT,
BALLARI-583101
5. ASST. MANAGER
M/S. ARCELOR MITTAL INDIA CO. LTD.,
DOOR NO.21-A,
Y. NAGESH SHASTRY ROAD,
PARVATHINAGAR,
OPP TO K.C. KONDAYYA HOUSE,
BALLARI-583101
... RESPONDENTS
(BY SRI. VEERESH.R. BUDIHAL, ADV., FOR R-3;
SRI. R.V.S. NAIK, SENIOR COUNSEL FOR
SRI T. SURYANARAYANA FOR R-5;
R-1 AND R-2 SERVED AND UNREPRESENTED)
7
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ENDORSEMENTS ISSUED VIDE ANNEXURES C, C1 TO
C18 DATED:10.06.2016, ETC.
In W.P.No.107748/2014
BETWEEN:
1. B. RAVIPRAKASH,
S/O. LATE B BASAPPA
AGE: 46 YEARS,
R/AT: "VISHNU PRIYA"
6TH CROSS, LEFT SIDE,
KAPPAGAL ROAD, M V NAGAR,
BELLARY - 583 101.
2. SMT. C SUJATHA, W/O. DR. C. C. PULLAIAH,
AGE: YEARS
R/AT: NO. 21, 2247-39
CHEKURI NURSING HOME
"O" ROAD, S.K.D COLONY,
ADONI POST, ANDHRA PRADESH
3. VANTI KURI BASAPAP
S/O. BARMAPPA
AGE: 54 YEARS
R/AT: VODDU POST, SANDUR TALUK
BELLARY DIST: BELLARY
... PETITIONERS
(BY SRI.T. HANUMAREDDY, ADV.)
AND:
1. STATE OF KARNATAKA,
DEPARTMENT OF COMMERCE
AND INDUSTRIES,
VIKAS SOUDHA,
BANGALORE - 560 001.
REPRESENTED BY ITS SECRETARY
8
2. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
NO. 14/3, 2ND FLOOR, R P BUILDING,
NRUPATUNGA ROAD,
BANGALORE - 560 001.
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER
3. THE SPECIAL LAND ACQUISITION OFFICER,
THE KARNATAKA INDUSTRIAL AREAS,
DEVELOPMENT BOARD, ZONAL OFFICE,
KARUR INDUSTRIAL AREA,
PLOT NO. CA (1-B),
P.B.ROAD, DAVANAGERE - 577 006.
4. DEPUTY COMMISSIONER
BELLARY DISTRICT, BELLARY-583 101.
5. ASST. MANAGER,
M/S. ARCELOR MITTAL INDIA CO. LTD.,
DOOR NO. 21-A, Y.NAGESH SHASTRY ROAD,
PARVATHINAGAR,
BELLARY-583 101.
... RESPONDENTS
(BY SRI.V.S. KALASURMATH, HCGP FOR R-1, R-3 AND R-4;
SRI. VEERESH R. BUDIHAL, ADV., FOR R-2, R-3 AND R-5;
SRI. R.V.S. NAIK, SENIOR COUNSEL FOR
SRI. T. SURYANARAYAN, FOR R-5.)
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRYAING TO QUASH
THE ANNEXURE "D AND D-1" ENDORSEMENT
DATED:07.05.2014 AND ENDORSEMENT DATED 17.06.2014
RESPECTIVELY, ISSUED BY THE 3RD RESPONDENT, ETC.
In W.P.No.100762/2017
BETWEEN:
1. SRI GURUDASA REDDY
S/O THIMMA REDDY
AGED ABOUT 55 YEARS,
9
R/O VEERANAGOUDA COLONY,
OPP TO KUMARASWAMY TEMPLE,
BALLARI.
2. SMT.G. JAYALAKSHMI
W/O SATHYANARAYAN REDDY
AGED ABOUT 57 YEARS,
R/O D.NO.17/13-A,
3RD CROSS, S.N.PET,
BALLARI.
3. SMT.P. SUDAMANI
W/O P. SRINIVASA REDDY
AGED ABOUT 47 YEARS,
R/O D.NO.15/A,
PATEL NAGAR,
1ST CROSS, BALLARI.
... PETITIONERS
(BY SRI. T. HANUMAREDDY, ADV.)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF COMMERCE
AND INDUSTRIES,
VIKAS SOUDHA,
BENGALURU-560001
REPRESENTED BY ITS SECRETARY.
2. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
NO.14/3, 2ND FLOOR,
R.P. BUILDING,
NRUPATHUNGA ROAD,
BANGALORE-560001
REP. BYY ITS
CHIEF EXECUTIVE OFFICER.
10
3. THE SPECIAL LAND ACQUISITION OFFICER
THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
LAKAMANAHALLI INDUSTRIAL AREA,
P.B. ROAD, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER
THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
ZONAL OFFICE,
KARUR INDUSTRIAL AREA,
PLOT NO.CA (1-B),
P.B. ROAD, DAVANAGERE-577006.
5. THE SPECIAL LAND ACQUISITION OFFICER,
NATIONAL HIGHWAY AUTHORITY INDIA,
HOSAPETE, NO.1032(A),
NEAR SAI AND HARIPRIYA APARTMENT,
RAJEEVNAGAR, HOSAPETE,
DIST: BALLARI.
6. DEPUTY COMMISSIONER,
BALLARI DISTRICT,
BALLARI-583 101.
7. ASST. MANAGER
M/S. ARCELOR MITTAL INDIA CO. LTD.,
DOOR NO.21-A,
Y. NAGESH SHASTRY ROAD,
PARVATHINAGAR,
BELLARY-583 101.
... RESPONDENTS
(BY SRI. V.S. KALASURMATH, HCGP FOR R-1 AND R-6;
SRI. G.I. GACHCHINAMATH, ADV., FOR R-2 AND R-4;
SRI. SHASHANK HEGDE, ADV., FOR R-4;
SRI. SHIVARAJ.S. BALLOLI, ADV., FOR R-5;
SRI. R.V.S. NAIK, SENIOR COUNSEL FOR
SRI. SURYANARAYAN, ADV., FOR R-7;
R-3 SERVED AND UNREPRESENTED.)
11
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ENDORESEMENTS ISSUED VIDE ANNEXURES-H, H1 AND
H2 AND THE NOTICE DATED 17.09.2016 ISSUED UNDER
SECTION 12(2) OF THE LAND ACQUISITION ACT BY
RESPONDENT No.4, ETC.
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.04.2022 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING
ORDER
1. On 05.02.2010, the State Government issued a notification under Section 28(1) of the Karnataka Industrial Area Development Act, 1966 (hereinafter referred to as "KIAD Act") giving notice of its intention to acquire about 5368-83 acres for the benefit of M/s. Arcelor Mittal India Company Limited, a private limited company.
2. After hearing the land owners, the State Government proceeded to pass an order for acquiring the said lands.
3. On 04.05.2010 the State Government issued a declaration under Section 28(4) of the KIAD Act declaring that an extent of 4864-64 acres were needed to be acquired. 12
4. It appears that the Land Value Determination/Assessment Committee had been constituted under the Chairmanship of the Deputy Commissioner for determining the market value of the land in respect of those land owners who had agreed for the determination of the market value and compensation was not only determined but also paid in respect of about 3950 acres, at the rate determined by the Committee. It is stated that compensation in respect of about 80% of the lands acquired had been paid in this mode.
5. Petitioners herein, who are the landowners, apparently refused to receive the compensation as determined by the Committee on the ground that compensation to their lands ought to have been paid at a far higher value than the one determined by the Committee.
6. Petitioners appear to have contended that the market value of the lands ought to have been determined by taking into consideration the sale statistics of the past three years and compensation at four times of that value ought to have been paid to them.
13
7. The petitioners, basically, demanded payment of compensation in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, "the 2013 Act") as is evident by Annexure-C to W.P.Nos.107748- 50/2014.
8. The Karnataka Industrial Areas Development Board (for short, "the Board"), however, refused the claim of the petitioners for determination of compensation under the provisions of the 2013 Act by issuing an endorsement dated 07.05.2014 as per Annexure-D. Therefore, one set of petitioners approached this Court by way of a writ petition, in W.P.Nos.107748-50/2014.
9. This Court ordered issuance of notice to the respondents and also granted an interim order of stay as prayed for. The interim order that was prayed for was to direct the Board not to pass the award under the provisions of the Land Acquisition Act, 1894 (for short, "the 1894 Act") and also for stay of the endorsements dated 07.05.2014 and 17.06.2014.
14
10. The petitioners in W.P.No.108802/2016, thereafter, filed a writ petition on 03.11.2016. In the said writ petition, they challenged the endorsement in which it was stated that the provisions of the 2013 Act were inapplicable to the acquisition under the KIAD Act since the notification under Section 28(1) of the KIAD Act had been issued prior to 01.01.2014, the award would be passed only under the 1894 Act. During the pendency of these writ petitions, awards were passed on 18.02.2020 under the provisions of the 1894 Act and also deposited the award amount in the Civil Court.
11. Thereafter, on 25.01.2017, W.P.No.100762/2016 was filed by the three petitioners challenging a similar endorsement by which the Board informed that awards would be passed only under the 1894 Act and not under the 2013 Act. During the pendency of this writ petition also, an award was passed under the 1894 Act and the award amount was also deposited before the Civil Court.
12. The principal contention advanced by all the petitioners in these batch of writ petitions is that, notwithstanding the fact that the notifications issued under 15 Section 28(1) & 28(4) of the KIAD Act had been issued prior to the enactment of the 2013 Act, since awards were not passed till 01.01.2014, by virtue of the repeal of the 1894 Act and the enactment of the 2013 Act, compensation was required to be determined under the provisions of the 2013 Act as envisaged under Section 24(1) of the 2013 Act.
13. It is their contention that under Section 30 of the KIAD Act, the provisions of the 1894 Act had been made applicable-
a. in respect of enquiry and award by the Deputy Commissioner, b. the reference to Court, c. the apportionment of compensation and d. payment of compensation in respect of lands acquired under Chapter-VI of the KIAD Act and since the 1894 Act was repealed and replaced by the 2013 Act, necessarily, the award would have to be passed under the 2013 Act.
16
14. It is contended that Section 30 of the KIAD Act was a piece of legislation by reference and not a legislation by incorporation, and therefore, all subsequent amendments, and reenactments of the 1894 Act would have to be applied and the provisions of the 1894 Act could not survive on its repeal and reenactment of the 2013 Act and the 2013 Act would have to be made applicable to determine the award amount under the KIAD Act.
15. It is also contended that under Section 8 of the General Clauses Act, 1897 (for short, "the GC Act") when any Act is repealed and reenacted with or without modifications, then references to the provisions of the 1894 Act in other enactments, should be construed as reference to the reenacted provisions of the 2013 Act. It is argued that since the 1894 Act was repealed and reenacted in the form of the 2013 Act, the references to the provisions of the 1894 Act should be construed as a reference to the 2013 Act.
16. It is also contended that in view of the decision of the Constitution Bench in the case of INDORE DEVELOPMENT AUTHORITY VS MANOHARLAL & OTHERS - (2020) 8 SCC 129,after 17 01.01.2014, any award that is required to be passed under the provisions of the 1894 Act would have to be under the 2013 Act only. It is submitted that since the 1894 Act was repealed and the 2013 Act was reenacted in its place, obviously, the award would have to be passed only under the 2013 Act.
17. On the other hand, Sri. Veeresh Budhihal, learned counsel on behalf of the Board and the learned Senior Counsel Sri.Naik for the beneficiary contended that since the notifications issued under Section 28(1) and 28(4) of the KIAD Act had been issued prior to enactment of the 2013 Act, necessarily, the award would have to be passed only in accordance with the provisions of 1894 Act. It is contended that Section 30 of the KIAD Act is a piece of legislation by incorporation and even if the 1894 Act was repealed, nevertheless, for determination of compensation in respect of lands acquired under the KIAD Act, the provisions of the 1894 Act would survive and it is only the provisions of the 1894 Act which could be applied for determination of the compensation.
18
18. It is contended that the Apex Court as well as this Court in a series of decisions have held that the provisions of the 2013 Act have no application to the acquisition under the provisions of the KIAD Act and therefore, an award cannot be passed as prayed for by the petitioners under 2013 Act.
19. Thus, from the above contentions, the principal question that is required to be decided in these writ petitions is:
"Whether in respect of lands notified prior to 01.01.2014 under the KIAD Act, in respect of which an award had not been passed as on 01.01.2014, awards are required to be passed under the 1894 Act or the 2013 Act as envisaged in Section 24 (1) of the 2013 Act?"
20. To answer this question, a brief overview of the KIAD Act would be necessary.
21. The KIAD Act has been enacted to secure the establishment of industrial areas and promoting the establishment and orderly development of industries and for that purpose to establish an Industrial Areas Development Board.
19
22. The KIAD Act envisages the declaration of an industrial area in the State and entrusts the Board constituted under the Act to promote and assist the rapid and orderly establishment of industries and to provide industrial infrastructure facilities and amenities in industrial areas. To ensure this objective, the Board is given the power to acquire and hold property and also lease or sell any property held by it. The Board is empowered to purchase land or take any land on lease and erect buildings for the purpose of carrying out its duties and functions and it is also empowered to allot premises in the industrial areas established by it.
23. In essence, the KIAD Act is designed to ensure that industrial areas are established by the Board by acquiring lands, developing them into an industrial area and allotting premises either by sale or by lease-cum-sale to persons and entities and thereby ensuring the orderly establishment and development of industries in the State.
24. Chapter VII of the KIAD Act enumerates the provisions for acquisition and disposal of land under the KIAD Act.
20
25. Section 27 of the KIAD Act states that the provisions of Chapter VII would apply to areas which have been notified as industrial areas by the State Government under Section 1(3) of the KIAD Act from the date as notified by the Government.
26. Section 28 of the KIAD Act, which provides for acquisition of land, states that whenever Government forms an opinion that any land is required for the purpose of development by the Board or any other purposes to further the objects of the Act, the State is obliged to issue a notification and notify its intention to acquire lands. The State is thereafter required to serve notice on the landowners to show cause as to why their lands should not be acquired and on considering the cause shown by the land owners or the interested persons and after giving them an opportunity of being heard, the State is required to pass such orders, as it deems fit.
27. In the event, the State Government is satisfied that any land is required for the purpose specified in the notification, it is obliged to issue a declaration to that effect in 21 the gazette and on publication of the gazette of the declaration, the lands would stand vested absolutely in the State Government free from all encumbrances.
28. Thus, on the very declaration, being issued under Section 28(4) of the KIAD Act stating that the lands are required to be acquired, the lands notified would stand vested absolutely in the State Government free from all encumbrances.
29. It is pertinent to state here that the difference in the matter of vesting under the 1894 Act and the KIAD Act is required to be noticed and emphasized here.
30. Under the 1894 Act, lands which have been notified for acquisition and declared to be needed for the public purpose would stand vested in the State Government free from all encumbrances only on taking possession of the land (under Section 16 of the 1894 Act) after an award is passed (under Section 11 of the 1894 Act).
31. However, under the KIAD Act, the land stands vested in the State on the very issuance of a declaration 22 under Section 28(4) of the KIAD Act. In fact, on the land vesting in the State Government, the State Government is empowered to call upon any person, who is in possession of the land, to surrender possession within 30 days and if such person refuses to comply with the order, the State Government or any Officer authorized by the State is empowered to take possession of the land by using such force as may be necessary. After possession of land has been taken over, the provision also enables the State to transfer the land to the Board for the purpose for which the land has been acquired.
32. Thus, from the reading of Section 28 of the KIAD Act, it is clear that the notified lands stand vested with the State on a declaration being published in the gazette and the State is also empowered to take possession of the land and transfer it to the Board even before the compensation is determined and paid to the land owner.
33. Section 29 of the KIAD Act provides for payment of compensation. It stipulates that when any land is acquired by the State Government, the State Government is required to 23 pay for such acquisition. It also states when the amount of compensation has been determined by way of an agreement between the State Government and the person to be compensated, it shall be paid in accordance with the agreement.
34. In cases where the compensation cannot be determined by way of an agreement, between the State Government and the person to be compensated, the provision stipulates that the State Government is bound to refer the case to the Deputy Commissioner for determination of the amount of compensation to be paid and also to determine the person or persons to whom it should be paid.
35. On receipt of a reference by the State Government, the Deputy Commissioner is required to notify the owner/occupier and all persons interested in the land to appear before him and state their respective interests in the land.
36. Section 30 of the KIAD Act states that the provisions of the 1894 Act shall mutatis mutandis apply not only in respect of enquiry and award by the Deputy Commissioner 24 but also in respect of reference to Court, apportionment of compensation and payment of compensation. Thus, in respect of conducting an enquiry and passing of an award, the Deputy Commissioner is required to apply the provisions of the 1894 Act as per the mandate of Section 30 of the KIAD Act.
37. The admitted factual position, in this case, is that though the declaration under Section 28(4) of the KIAD Act was issued on 04.05.2010, in respect of petitioners herein, the compensation was admittedly neither determined by agreement nor was an award made by the Deputy Commissioner till 01.01.2014. Thus, though a declaration had been issued in 2010 and the land stood vested in 2010 itself, the compensation was not paid to the petitioners, either by way of an agreement or by way of an award made by the Deputy Commissioner under the provisions of the 1894 Act.
38. It would be pertinent to state here that three years after the issuance of a declaration under Section 28(4) of the KIAD Act, on 26.09.2013, the 2013 Act received the assent of the President. The 2013 Act, was, however, brought into 25 force by the issuance of a notification on 19.12.2013. This notification stated that the 2013 Act would come into force with effect from 01.01.2014.
39. It may also be stated here that on the enactment of the 2013 Act, by virtue of Section 114 of the 2013 Act, the 1894 Act was repealed. In other words, on the coming into force of the 2013 Act, i.e., on and from 01.01.2014, the 1894 Act was repealed as per Section 114 of the 2013 Act.
40. The question that is raised in this case is, on and after 01.01.2014, whether an award could be passed under the 1894 Act, despite its repeal or whether the award is to be passed under the reenacted statute i.e., the 2013 Act. This controversy, in the present case, has arisen because of the intervening legislative event i.e., the repeal of the 1894 Act and the coming into force of the 2013 Act.
41. As stated above, according to the petitioners, on and from 01.01.2014, awards would have to be passed only in accordance with the provisions of the 2013 Act, as mandated under Section 24(1)(a) of the 2013 Act, in cases where an award has not been passed by then. However, it is the case 26 of the Board and also that of the beneficiary that notwithstanding the repeal of the 1894 Act, the award would still have to be made only under the repealed 1894 Act and not under the 2013 Act, since the notifications for acquisition had been issued prior to the repeal of the 1894 Act.
42. In order to determine what would be the effect of the repeal of a statute and its reenactment in a new form, it would be necessary to refer to the provisions of the GC Act.
43. Sections 5 to 13 of the GC Act enumerate the rules of construction.
44. Section 5 of the GC Act relates to the date from which enactments come into force.
45. Section 6 of the GC Act deals with the effect of repeal of the Act. It states that the repeal of an Act would not in any way affect anything that had been done under the repealed Act. In other words, the repeal of an enactment would not result in invalidating or rendering ineffective anything done under the repealed Act, unless a different intention is made known while repealing the Act. 27
46. Section 6A of the GC Act deals with the repeal of an Act which makes a textual amendment in the Act or Regulation and states that the repeal would not affect the continuance of any such amendment made by the enactment so repealed and in operation, at the time of repeal.
47. Section 7 of the GC Act states that if a repealed enactment is to be revived, either wholly or partially, it would be necessary to expressly state so in the Act, which seeks to revive the repealed enactment.
48. Section 8 of the GC Act1 relates to construction of references to repealed enactments. It states that where any Act repeals and reenacts any provision of a former enactment, then references in any other enactments or in any instrument to the provision so repealed, shall unless a different intention appears, be construed as references to the provisions so reenacted.
1 Construction of references to repealed enactments:(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
(2) Where before the Fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification any provision of a former enactment, then reference in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. 28
49. In other words, if an Act repeals any provision and reenacts the provision, then the reference to the repealed provision in any other existing enactment would have to be construed as a reference to the reenacted provision and not the repealed provision, unless, of course, a different intention appears.
50. Section 8 of the GC Act, which is found in the Chapter relating to Rules of Construction, expressly, states the manner in which a reference to a repealed provision in another existing enactment is to be construed when it is reenacted. It basically states that any reference to the repealed provision in any other enactment, would mean it was a reference to the provision of the reenacted provision and not the repealed provision.
51. It is to be kept in mind that a provision of one enactment is usually referred to in another enactment, basically to ensure that there is a uniform law applied in respect of identical or similar matters. This legislative device is also adopted by the Legislature to avoid a verbatim repetition of the provision of an existing enactment, in the 29 new enactment in respect of similar matters. This, legislative device adopted by the Legislature, serves a dual purpose.
52. Firstly, it ensures the uniform application of the law across different enactments in respect of the same or similar matters. Secondly, it also prevents the unnecessary verbatim repetition of the provisions of an existing enactment in respect of situations dealing with identical or similar matters in a new enactment. It may probably be apt to say that it is a normal legislative practice to borrow a provision or provisions of an existing law and make it a part of a new enactment to avoid inconsistency in the law relating to similar or identical matters.
53. Such examples of borrowing provisions are many and one of the most common would be the application of the provisions relating to search and seizure provided under the Criminal Procedure Code. In several statutes, which confer the power of search and seizure to various authorities, the statutes merely state that for the purposes of search and seizure, the procedure to be followed would be the one prescribed under the Criminal Procedure Code. Thus, by 30 express reference to another enactment, in a new enactment, the mode of conducting a search and seizure is prescribed by referring to the procedure prescribed in another enactment.
54. It is quite obvious, given the fact that such a legislative device was being consistently adopted over a long period of time, the Legislature was also conscious of the fact that enactments are often repealed and reenacted afresh and in such a situation, a contradiction would arise whenever the provision of a repealed Act was referred to in some other enactment. The Legislature was acutely conscious of the fact that the enactment, in which a reference was made to a provision of another enactment, were to be subsequently repealed, that would render the enactment, which refers to the repealed enactment, unworkable and would thereby lead to a disruption in the application of the law.
55. It is for avoiding such an anomalous situation, Section 8 of the GC Act was enacted. The intent behind the enactment of Section 8 is to ensure continuity of the law and removal of any ambiguity in the application of laws. It fundamentally ensures that in an enactment, if a reference 31 has been made to some other provision of some other enactment and whenever that provision is repealed and reenacted, the reference to the repealed provision would necessarily mean that it was a reference to the reenacted provision and not the repealed provision. This is obviously because, on a provision being repealed and reenacted, it would mean that there was a new law in operation. The Legislature by virtue of Section 8 seeks to ensure that this new reenacted provision would have to be applied and not the old repealed provision.
56. It is to be borne in mind that Section 8 of the GC Act would apply only to those cases where a provision is repealed and reenacted. If a provision is repealed but is not reenacted, Section 8 of the GC Act would have no application and the repealed provision would, therefore, continue to apply to the enactment in which a reference has been made to the repealed provision.
57. In the present case, the entire 1894 Act was repealed and reenacted afresh as the 2013 Act. Thus, the condition laid down in Section 8 of the GC Act that whenever 32 a provision is repealed and reenacted would be attracted. Resultantly, by virtue of the rule of construction stipulated in Section 8 of the GC Act, any reference in the KIAD Act to the provisions of the 1894 Act would have to be necessarily construed as a reference to the reenacted provisions of the 2013 Act.
58. In the 1894 Act, Sections 11, 23, 23A and 24 were the provisions in respect of an enquiry and award and in the reenacted 2013 Act, Sections 27 to 30 are the provisions in respect of an enquiry and award.Thus, the provisions relating to enquiry and award in the 1894 Act referred to in the KIAD Act will have to be construed as a reference to the provisions relating to an enquiry and award under the 2013 Act by virtue of Section 8 of the GC Act.
59. In other words, on the 1894 Act being repealed and the 2013 Act coming into force, any reference to the provisions of the 1894 Act in Section 30 of the KIAD Act, would have to be necessarily construed as a reference to the provisions relating to enquiry and award in the 2013 Act, by 33 virtue of the rule of construction envisaged under Section 8 of the GC Act.
60. Thus, on the coming into force of the 2013 Act, whenever an award is required to be passed in respect of a land notified under the provisions of the KIAD Act, by the mandate of Section 8 of the GC Act, an award can be passed only under the provisions relating to the passing of an award under the 2013 Act and an award cannot be passed in accordance with the repealed provisions relating to award in the 1894 Act.
61. Section 24 of the 2013 Act is a provision relating to lapsing of acquisition which were initiated under the 1894 Act in certain situations. This provision basically seeks to govern the fate of acquisitions which were initiated under the 1894 Act and which were not yet concluded as on the day, the 2013 enactment came into force. In other words, it governs the transitory phase between the repeal of the 1894 Act and the coming into force of the 2013 Act in respect of lands which have been notified for acquisition.
34
62. The provision begins with a non-obstante clause and is thereafter divided into two sub-sections.
63. Sub-section (1) of Section 24 of the 2013 Act has two parts. The first part i.e., Section 24(1)(a), deals with a situation where no award is passed under the 1894 Act as on the date of the enactment of the 2013 Act. In such an event, it mandates that the award is required to be made under the 2013 Act. Section 24(1)(a) basically ensures that the land losers, who were not offered compensation by passing of an award, in respect of notifications issued immediately prior to enactment of the 2013 Act, would be entitled to an award being passed under the 2013 Act, which is undoubtedly more beneficial.
64. The second part of Section 24 (1) of the 2013 Act i.e., Section 24 (1) (b) deals with a situation where an award is already passed (under the 1894 Act) as on the date of the enactment of the 2013 Act. It states that in such an event, the proceedings would continue under the 1894 Act itself, and a legal fiction is created to the effect that the 1894 Act should not be construed as repealed and the 1894 Act continues to 35 operate, even though it had stood repealed as on 01.01.2014.
65. Thus, sub-section (1) of Section 24 of the 2013 Act itself indicates under what circumstances the 1894 Act is to be considered repealed or to be considered prevailing. If an award is not passed, the provision indicates that the award is to be made under the 2013 Act, thereby implying that the provision of the 1894 Act stands repealed in the context of that situation. If, however, an award is already passed, the provision itself states that the proceedings would continue under the provisions of the 1894 Act itself and in that context, it will have to be assumed that the 1894 Act was not repealed at all.
66. This distinction carved out in sub-section (1) of Section 24 of the 2013 Act itself establishes when the provision under the 1894 Act would cease to operate and when the provision of the 1894 Act would continue to operate.
67. Normally, by virtue of Section 8 of the GC Act, any reference to a provision of a repealed enactment in another 36 enactment would have to be construed as a reference to the reenacted provision. However, in the case of Section 24 (1)
(b) of the 2013 Act, there is a slight deviation made from this rule of construction. The Legislature, by expressly stating in Section 24 (1) (b) of the 2013 Act that, in cases where an award is already passed, the reference to the repealed provision of the 1894 Act, in the KIAD Act would have to be construed as a reference to the repealed provision itself and not the reenacted provision relating to enquiry and award in the 2013 Act. Thus, in cases where an award is not passed, the Legislature has clearly indicated a deviation from the normal rule of construction found in Section 8 of the GC Act.
68. In other words, in cases where an award is already made under the 1894 Act, the provisions of the 1894 Act would continue to operate for further proceedings, as if the 1894 Act was not repealed, notwithstanding the mandate of Section 8 of the GC Act.
69. If, however, an award is yet to be passed under the 1894 Act, the provisions of the repealed 1894 Act are expressly made inapplicable since it is clearly and 37 categorically stated that the awards are to be made under the 2013 Act and thus the mandate of Section 8 of the GC Act is sought to be satisfied and adhered to.
70. The language of Section 24 (1) of the 2013 Act is fundamentally designed to ensure that there is clarity in the varied situations that emerge during the repeal of the 1894 Act and the enactment of the 2013 Act. A plain reading of Section 24 (1) (a) of the 2013 Act makes it manifestly clear that in cases where an award is yet to be passed in respect of lands notified, the award is required to be made under the provisions of the 2013 Act and not the 1894 Act, whereas a plain reading of Section 24 (1) (b) of the 2013 Act makes it clear that in cases where an award is already made, the repealed provisions of the 1894 Act would continue to operate for further proceedings to conclude the acquisition.
71. However, to prevent the applicability of the provisions of the 2013 Act even in cases where an award is yet to be passed, just as in the present set of petitions, a contention is advanced by the Board and the beneficiary that not only the Apex Court in the case of THE SPECIAL LAND 38 ACQUISITION OFFICER, KIADB, MYSORE AND ANOTHER Vs. ANASUYA BAI (D) BY LRS AND OTHERS -AIR 2017 SC 904 and in the case of BANGALORE DEVELOPMENT AUTHORITY AND ANOTHER Vs. STATE OF KARNATAKA AND ANOTHER - AIR 2022 SC 598, but also a Division Bench of this Court (to which the undersigned was also a party) in the case of SRI. L. RAMAREDDY Vs. THE STATE OF KARNATAKA (WA.No.1415/2018 DISPOSED OF ON 01.12.2020), have clearly held that the provisions of the 2013 Act would have no application to the acquisitions made under the KIAD Act and therefore, an award cannot be passed under the 2013 Act in respect of lands notified for acquisition under the KIAD Act.
72. In my view, this contention is without any merit. In the aforementioned cases, upon which strong reliance has been placed, it is to be stated here that the Apex Court, as well as this Court, were dealing with the contention that acquisition proceedings would lapse, if an award had not been passed within the time stipulated under Section 11A of the 1894 Act or by the situation contemplated under Section 24(2) of the 2013 Act. Both the Apex Court as well as this Court were not dealing with a situation contemplated under 39 Section 24 (1) (a) of the 2013 Act i.e., where an award had been passed as on 01.01.2014 or with a situation contemplated under Section 24 (1) (b) of the 2013 Act i.e., where an award had not passed as on 01.01.2014.
73. In these decisions, the question as to whether an award was required to be passed under the provisions of the 1894 Act or the provisions of the 2013 Act were not considered. Thus, the aforementioned decisions, in which the Courts were considering whether there would be a lapse in the acquisition proceedings by virtue of Section 24 (2) of the 2013 Act was only considered. In other words, the effect and purport of Section 24 (1) of the 2013 Act was not the focus of attention in those cases.
74. In the present set of petitions, the contention being advanced by the petitioners is not one of lapsing of acquisition by virtue of Section 24 (2) of the 2013 Act i.e., a situation where an award had been passed within prior to 5 years of the commencement of the 2013 Act and thereafter possession of that land not being taken or that the compensation had not been paid to the land losers. The 40 contention advanced in these cases, is simply, as to whether the provisions of the 1894 Act have to be applied or the provisions of the 2013 Act have to be applied, in the matter of passing of an award in cases where an award had not been passed in respect of notified lands as on 01.01.2014.
75. It must be stated here that sub-section (1) of Section 24 of the 2013 Act does not deal with the lapsing of acquisition at all. It only prescribes the statute that is required to be applied in the matter of passing of an award, if an award is not passed as 01.01.2014 and the statute that is to be applied for the continuation of the proceedings, if an award has already been passed as on 01.01.2014.
76. It is sub-section (2) of Section 24 of the 2013 Act, which provides for the deemed lapsing of acquisition. In order to attract this deeming clause, there are certain prescribed criteria.
77. Firstly, an award must have been passed under the 1894 Act prior to 01.01.2009 i.e., five years prior to the commencement of the 2013 Act. Secondly, despite the 41 passing of this award, the authorities have not taken physical possession.
78. Thirdly, despite an award having been passed prior to 01.01.2009, the compensation has not been paid to the land losers. It is only if these prescribed criteria are satisfied, the acquisition proceedings would be deemed to have lapsed.
79. If, however, an award is passed at any time after 01.01.2009 there is no question of acquisition lapsing and by the mandate of Section 24 (1) (b) of the 2013 Act, the acquisition proceedings have to continue under the provisions of the 1894 Act.
80. If, on the other hand, an award is not passed as on the date of the commencement of the 2013 Act, i.e., 01.01.2014, by virtue of the mandate of Section 24 (1) (a) of the Act, the award would have to be passed as provided under the more beneficial provisions of the 2013 Act. Thus, in both the scenarios prescribed in Section 24 (1) of the 2013 Act, the question of lapsing would not arise at all. 42
81. As stated above, it is only if an award has been passed on or after 01.01.2009 (five years prior to the commencement of the 2013 Act) and either the physical possession of the land is not taken or the compensation is not paid to the land loser, the question of lapsing of acquisition would be attracted.
82. Thus, for the non-passing of an award as on the date of commencement of the 2013 Act or if an award is already passed within five years of the commencement of the 2013 Act, the question of lapsing of acquisition would not arise at all.
83. However, in the present case, it is not the case of the petitioners that there was a lapsing of the acquisition. Consequently, the decisions, upon which reliance was placed by the Board and the beneficiary, which deal only with lapsing of acquisition under Section 24 (2) of the 2013 Act, would have no application at all. The limited prayer of the petitioners is to direct the Board to determine and pay the compensation under the provisions of the 2013 Act, since admittedly no awards were made as on 01.01.2014. 43
84. Yet another factor that is to be kept in mind is the concept of lapsing of an acquisition when dealing with this contention of the Board and the beneficiary. The Constitution Bench of the Apex Court in OFFSHORE HOLDINGS PRIVATE LIMITED. VS BANGALORE DEVELOPMENT AUTHORITY - (2011) 3 SCC 139 while dealing with the BDA Act has held that once the land vests with the State Government, the question of the acquisition proceedings lapsing will not arise. The Apex Court has stated that acquisition would lapse only if lands had not been vested in the State Government. It has been held that if the lands have been not vested, the provisions of the Land Acquisition Act would become inoperative and hence lands cannot be acquired. If, however, the lands are acquired and the lands stand vested with the State Government, even if the scheme were to lapse due to non-execution of the scheme substantially, the acquisition of the lands would nevertheless not lapse.
85. The relevant passage in the said decision reads as follows:
"35. Be that as it may, it is clear that the BDA Act is a self-contained code which provides for all the situations 44 that may arise in planned development of an area including acquisition of land for that purpose. The scheme of the Act does not admit any necessity for reading the provisions of Sections 6 and 11-A of the Land Acquisition Act, as part and parcel of the BDA Act for attainment of its object. The primary object of the State Act is to carry out planned development and acquisition is a mere incident of such planned development. The provisions of the Land Acquisition Act, where the land is to be acquired for a specific public purpose and acquisition is the sum and substance of that Act, all matters in relation to the acquisition of land will be regulated by the provisions of that Act. The State Act has provided its own scheme and provisions for acquisition of land.
36. The co-relation between the two enactments is a very limited one. The provisions of the Land Acquisition Act would be attracted only insofar as they are applicable to the State law. Where there are specific provisions under the State Act the provisions of the Central Act will not be attracted. Furthermore, reading the provisions of default and consequences thereof, as stated under the Central Act into the State Act, is bound to frustrate the very scheme formulated under the State Act. Only because some of the provisions of the Land Acquisition Act are attracted, it does not necessarily contemplate that all the provisions of the Central Act would per se be applicable to the provisions of the State Act irrespective of the scheme and object contained therein. The Authority under the BDA Act is vested with complete powers to prepare and execute the development plans of which acquisition may or may not be a part. The provisions of the State Act can be implemented completely and effectively on their own and reading the provisions of the Land Acquisition Act into the 45 State Act, which may result in frustrating its object, is not called for. We would be dealing with various facets which would support this view shortly.
37. The provisions of Section 27 of the BDA Act mandate the Authority to execute the scheme, substantially, within five years from the date of publication of the declaration under sub-section (1) of Section 19. If the Authority fails to do so, then the scheme shall lapse and the provisions of Section 36 of the BDA Act will become inoperative. The provisions of Section 27 have a direct nexus with the provisions of Section 36 which provide that the provisions of the Land Acquisition Act, so far as they are applicable to the State Act, shall govern the cases of acquisition otherwise than by agreement. Acquisition stands on a completely distinct footing from the scheme formulated which is the subject-matter of execution under the provisions of the BDA Act.
38. On a conjunctive reading of the provisions of Sections 27 and 36 of the State Act, it is clear that where a scheme lapses, the acquisition may not. This, of course, will depend upon the facts and circumstances of a given case. Where, upon completion of the acquisition proceedings, the land has vested in the State Government in terms of Section 16 of the Land Acquisition Act, the acquisition would not lapse or terminate as a result of lapsing of the scheme under Section 27 of the BDA Act. An argument to the contrary cannot be accepted for the reason that on vesting, the land stands transferred and vested in the State/Authority free from all encumbrances and such status of the property is incapable of being altered by fiction of law either by the State Act or by the Central Act. Both these Acts do not contain any provision in terms of 46 which property, once and absolutely, vested in the State can be reverted to the owner on any condition. There is no reversal of the title and possession of the State. However, this may not be true in cases where acquisition proceedings are still pending and land has not been vested in the Government in terms of Section 16 of the Land Acquisition Act.
125. Having said so, now we proceed to record our answer to the question referred to the larger Bench as follows:
For the reasons stated in this judgment, we hold that the BDA Act is a self-contained code. Further, we hold that provisions introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984, limited to the extent of acquisition of land, payment of compensation and recourse to legal remedies provided under the said Act, can be read into an acquisition controlled by the provisions of the BDA Act but with a specific exception that the provisions of the Land Acquisition Act insofar as they provide different time-frames and consequences of default thereof, including lapsing of acquisition proceedings, cannot be read into the BDA Act. Section 11-A of the Land Acquisition Act being one of such provisions cannot be applied to the acquisitions under the provisions of the BDA Act."
86. Thus, as per the said declaration of law by the Constitution Bench, if the lands stand vested with the State, the question of lapsing of acquisition proceedings would not arise and the provisions in the 1894 Act which provide 47 different time frames and the consequences of default would not apply to the statute (BDA Act) in which they are referred to. On a similar analogy even to the KIAD Act, the time frame, if any, which would result in the acquisition lapsing under the 1894 Act would also obviously not apply.
87. In the case of an acquisition under the KIAD Act, on a declaration being made under Section 28(4) of the KIAD Act, the lands stand vested with the State Government absolutely free from encumbrances, even though an award is yet to be passed in respect of the lands. In the light of the judgment rendered in the case of Offshore Holdings cited above, once the lands vest with the State Government, the question of lapsing of the acquisition of the lands would never arise. Thus, in the case of an acquisition under the KIAD Act, the lapsing of acquisition for non-passing of an award would never arise since the lands stand vested in the State on a declaration being published under Section 28 (4) of the KIAD Act.
88. It may also be pertinent to state here that unlike the BDA Act in which a time limit has been prescribed for 48 execution of the scheme under Section 27 of the BDA Act, there is no provision under the KIAD Act mandating the Board to utilize the lands acquired by it for the purpose for which it was acquired in a given time frame failing which there would be a lapsing of the acquisition. Therefore, there is no question of lapsing of acquisition of the lands notified under the KIAD Act at all primarily because the notified lands stand vested with the State immediately on the issuance of a declaration under Section 28 (4) of the KIAD Act.
89. It is to be stated here that since the vesting occurs under the KIAD Act on the very issuance of the declaration under Section 28 (4) of the Act, hypothetically speaking, even if some time frame had been fixed under the KIAD Act, there would be no question of lapsing of the acquisition of lands at all.
90. An argument was also advanced that Section 30 of the KIAD Act was a piece of "legislation by incorporation" by which the provisions of the 1894 Act had been incorporated and therefore, the subsequent repeal of the 1894 Act would have absolutely no effect and the provisions of the 1894 Act, 49 even if repealed, would continue to operate for lands notified under the KIAD Act. It was also contended that it was only in the cases of "legislation by reference", that the subsequent amendments to the provisions which are referred to in another enactment would become applicable.
91. In the case of UJAGAR PRINTS (2) Vs. UNION OF INDIA - (1989) 3 SCC 488, the Apex Court has held as follows:
"93. Referential legislation is of two types. One is where an earlier Act or some of its provisions are incorporated by reference into a later Act. In this event, the provisions of the earlier Act or those so incorporated, as they stand in the earlier Act at the time of incorporation, will be read into the later Act. Subsequent changes in the earlier Act or the incorporated provisions will have to be ignored because, for all practical purposes, the existing provisions of the earlier Act have been re-enacted by such reference into the later one, rendering irrelevant what happens to the earlier statute thereafter. Examples of this can be seen in Secretary of State v. Hindusthan Co- operative Insurance Society, Bolani Ores Ltd. v. State of Orissa, Mahindra and Mahindra Ltd. v. Union of India. On the other hand, the later statute may not incorporate the earlier provisions. It may only make a reference of a broad nature as to the law on a subject generally, as in Bhajiya v. Gopikabai, or contain a general reference to the terms of an earlier statute which are to be made applicable. In this case any modification, repeal or re-enactment of the earlier 50 statute will also be carried into in the later, for here, the idea is that certain provisions of an earlier statute which become applicable in certain circumstances are to be made use of for the purpose of the later Act also. Examples of this type of legislation are to be seen in Collector of Customs v. Nathella Sampathu Chetty, New Central Jute Mills Co. Ltd. v. Assistant Collector of Central Excise and Special Land Acquisition Officer v. City Improvement Trust. Whether a particular statute falls into the first or second category is always a question of construction. In the present case, in my view, the legislation falls into the second category. Section 3(3) of the 1957 Act does not incorporate into the 1957 Act any specific provisions of the 1944 Act. It only declares generally that the provisions of the 1944 Act shall apply "so far as may be", that is, to the extent necessary and practical, for the purposes of the 1957 Act as well."
92. The Constitution Bench of the Apex Court in GIRNAR TRADERS AND OTHERS VS STATE OF MAHARASHTRA - (2011) 3 SCC 1, has held as follows in relation to the doctrine of legislation by reference and legislation by incorporation:
"86. At the very outset, we may notice that in the preceding paragraphs of the judgment, we have specifically held that the 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 coexist and operate without conflict.51
87. 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 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.52
141. One of the pertinent principles that the Court should keep in mind while applying referential legislation as a tool of interpretative application is that such interpretation should not, in any way, defeat the object and essence of principal legislation. The likelihood of any interference with the scheme under the principal Act would tilt against accepting such an interpretation.
149. It will be useful to apply the `test of intention' and `test of unworkability' with their respective contextual reference while determining the applicability of either of the doctrines and for that matter, even on the applicability of the amended law to the later law. Impact analysis on the workability of the respective legislation shall be a relevant consideration for resolving such an issue. There can be instances where the amended law, if applied and treated as incorporated in the principal legislation, may be apparently unadjustable to the scheme of that legislation. In that circumstance, it will be unfair to interpret the amended law as deemed to be incorporated, irrespective of its consequences on the implementation of the provisions of the principal Act.
150. It is emphasized that the object of the principal Act should not be permitted to be defeated on the basis of either of the doctrines above referred. Hence, there is need for carving out exceptions to the rule of legislation by reference as well. Examples where such reference would be impermissible are as follows :
a) Legislation by reference should not result in defeating the object and purpose of the later Act;53
b) Where the amendments to the earlier law are read into the subsequent law as a result of legislation by reference, if the result is irresolvable conflict between their provisions or it results in destroying the essence and purpose of the principal Act (later law).
The above exceptions to the doctrine are not exhaustive but are merely indicative. The possibility of other exceptions to this doctrine cannot be ruled out as it is difficult for this Court to state all such exceptions with precision. Furthermore, defining such exceptions with exactitude will not even aid the ends of justice. We have already noticed that all the learned counsel appearing for the parties are ad idem that it would be necessary to carve out such exceptions to apply the doctrine appropriately, advantageously and objectively."
93. Thus, the question as to whether a legislation is a legislation by reference or it is a legislation by incorporation, would fundamentally depend on the construction of that statute. One of the tests to be applied is to examine whether the subsequent amendment to the referred statute, if applied, would result in defeating the very object and purpose of the Act, in which, the statute is referred.
94. To put it in the context of this case, if the provisions of the 2013 Act are to be applied for acquisition under the 54 KIAD Act, whether the object and purpose of KIAD Act would be defeated will have to be examined.
95. The controversy, as stated above, has arisen only because of the 1894 Act being replaced by the 2013 Act. Admittedly, the KIAD Act only refers to certain aspects of the 1894 Act which are to be applied for acquisition under the KIAD Act. The reference made in Section 30 of the KIAD Act is a general reference relating to enquiry and award, reference to Court, apportionment and payment of compensation, etc and no specific provisions of the 1894 Act is specified in Section 30 of the KIAD Act. It will, therefore, have to be held that Section 30 of KIAD Act, whereby certain provisions of the 1894 Act are made applicable would only be a case of legislation by reference and not a legislation by incorporation.
96. The other test of unworkability or test of intention would also require to be examined i.e., in order to ascertain whether the application of the provisions of the 2013 Act would defeat the object and purpose of the KIAD Act, it will have to be examined whether by payment of compensation, 55 which is more beneficial to the land losers, the purpose of acquiring the land by the Board would be defeated. The State Government, in case of acquiring lands for establishing industrial areas in the State under the KIAD Act, in any event, is bound to pay compensation for the lands acquired. Merely because the State is required to pay a higher compensation by virtue of a reenacted statute, it would not, in any way, defeat the purpose and object of KIAD Act. In fact, the general intent of the law that the land loser is to be compensated with just compensation would be in furtherance and in accordance with law. Thus, even if the test of intention and unworkability is to be applied, it is clear that the application of the provisions of the 1894 Act in Section 30 of the KIAD Act is a clear case of legislation by reference and not a case of legislation by incorporation.
97. As held by the Apex Court in Girnar Traders' case cited above, normally whenever it is a case of legislation by reference, it would ipso facto include all the prospective amendments made to the earlier statutes and make them applicable in the later statute. Thus, the provisions of 2013 56 Act which replace the 1894 Act would have to be applied into the KIAD Act, which is, admittedly, the later Act.
98. The reliance placed by the learned counsel for the Board and beneficiary in the case of BANGALORE DEVELOPMENT AUTHORITY & ANOTHER Vs. STATE OF KARNATAKA & OTHERS - AIR 2022 SC 598 would also be of no avail. In that case also, the Apex Court was considering whether the acquisition proceedings would stand lapsed by virtue of the 2013 Act, which question was decided by this Court and was under challenge before the Apex Court. No doubt, in that case, the Apex Court has stated that the provisions of the 2013 Act, even insofar as it relates to determination of compensation would not apply to the BDA Act. It is to be noticed here that in that case, the Apex Court has followed the findings recorded by the Constitution Bench earlier holding that Section 36 of the BDA Act was a legislation by incorporation and therefore has opined that the enactment of the 2013 Act cannot be applied to the BDA Act.
99. As already noticed above, the provisions of Section 30 of the KIAD Act is a clear case of legislation by reference 57 and not a case of legislation by incorporation and therefore, the said ratio also would have no application to the acquisition made under the provisions of the KIAD Act.
100. To sum up, a reading of Section 30 of the KIAD Act makes it clear that there is a general reference to the provisions of the 1894 Act and no specific provisions of the 1894 Act have been stated in Section 30 of the KIAD Act. It is, therefore, clear that Section 30 of the KIAD Act is only a piece of "legislation by reference" and not a "legislation by incorporation". If it is a case of legislation by reference, the amendments to the former Act (1894 Act) would become applicable to the KIAD Act. If, however, specific provisions of the 1894 Act had been specifically referred to or incorporated in Section 30 of the KIAD Act, then an argument could have probably been made that those incorporated provisions alone would be applicable and any subsequent amendment made to the incorporated provision or its repeal would continue to apply.
101. As stated above, the question of lapsing of acquisition under the KIAD Act would not arise in case of an 58 acquisition under the KIAD Act since the lands stand vested with the State immediately on the declaration being issued under Section 28 (4) of the KIAD Act, unlike under the 1894 Act, where the lands stand vested in the State only on the passing of the award and on taking possession of the lands.
102. Another factor which is to be noticed is that KIAD Act was amended in the year 2022. Section 30 of the KIAD Act, in its entirety, was substituted by Act No.20 of 20222, and the substituted provision came into effect when it was published in the gazette on 05.04.2022. By virtue of this 2022 amendment, as against the earlier reference to the provisions of the 1894 Act, specific provisions of the 2013 Act have been incorporated in respect of lands acquired under the KIAD Act and it is also made clear that the Sections mentioned therein shall be deemed to be formed part of this Act in the same manner as if they were reenacted in the body thereof. The amendment of the year 2022 would, therefore, be a clear case of legislation by incorporation.
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"30. Application of Central Act 30 of 2013: The Sections 23, 23A, 26, 27, 28, 29, 30, 64, 65, 69, 72, 73, 74, 75, 76, 77, 78, 79, 80, 96 and schedule-1 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) shall for the purpose be deemed to form part of this Act in the same manner as if they were re-enacted in the body thereof in respect of lands acquired under this Chapter."59
103. In other words, hypothetically speaking, if in the future, the 2013 Act were to be amended, those amendments would not apply to the lands acquired under KIAD Act and the provisions of the 2013 Act, as it stood on 05.04.2022, and which were incorporated alone will have to be applied, unless of course, an amendment is also made to KIAD Act.
104. This amendment of the year 2022 to the KIAD Act also makes it clear that it is indeed the intent of the Legislature that in respect of lands acquired under the KIAD Act, compensation will have to be paid in accordance with the 2013 Act.
105. However, if the arguments of the Board and the beneficiary is accepted, this legislative intent would be defeated, at least, in respect of lands which were notified but in respect of which no award had been passed from 01.01.2014 till 05.04.2022. To put it differently, if this argument is to be accepted, for the lands acquired between the period from 01.01.2014 till 05.04.2022 under the KIAD Act, compensation will have to be determined and awards would have to be passed under the repealed 1894 Act. Thus, 60 if this argument were to be accepted, then only in respect of lands notified under the KIAD Act, where awards are passed after 05.04.2022, can be made under the provisions of the 2013 Act.
106. This would result in an anomalous situation where different yardsticks would be applied for the determination of compensation for lands notified under the KIAD Act prior to 01.01.2014. This would not obviously be the intent of the Legislature. It is for this reason, that the Legislature has substituted the entire Section 30 of the KIAD Act and made it explicit that an award would have to be passed only under the 2013 Act even in respect of lands notified under the KIAD Act.
107. In this regard, reference may be made to the judgment of the Seven Judge Bench of the Apex Court in the case of NAGPUR IMPROVEMENT TRUST AND ANOTHER Vs. VITHAL RAO AND OTHERS - (1973) 1 SCC 512, in which, the Apex Court has stated as follows:
"28. It would not be disputed that different principles of compensation cannot be formulated for lands acquired on 61 the basis that the owner is old or young, healthy or ill, tall or short, or whether the owner has inherited the property or built it with his own efforts, or whether the owner is politician or an advocate. Why is this sort of classification not sustainable? Because the object being to compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type of owner or another type.
29. Can classification be made on the basis of the public purpose for the purpose of compensation for which land is acquired? In other words can the Legislature lay down different principles of compensation for lands acquired say for a hospital or a school or a Government building? Can the Legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60% of the value and for a Government building at 70% of the market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other. Article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Article 14 for the purpose of determining compensation. The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classification be made on the basis of the authority acquiring the land? In other words can different principles 62 of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.
30. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14."
108. In the light of this judgment, it is clear that different principles of compensation cannot be adopted for the lands acquired for different purposes and by different entities.
109. It may also be relevant to state here that in Indore Development Authority's case cited above, the Constitution Bench of the Apex Court after considering the scope of Section 24 of the 2013 Act, in answer to the questions raised in respect of Section 24 of the 2013 Act, declared its first conclusion as follows:
"363.1 Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of 63 proceedings. Compensation has to be determined under the provisions of the 2013 Act."
110. In the light of this clear enunciation of law by the Constitution Bench that in case, an award is not made as on 01.01.2014 (i.e., the date of commencement of the 2013 Act), the compensation would have to be necessarily determined under the provisions of the 2013 Act. This conclusion of the Constitution Bench cannot be overcome by recourse to an argument that in cases where the question of lapsing of the acquisition was raised, the Apex Court as well as this Court had held that the provisions of the 2013 Act are inapplicable in cases of acquisition by the KIADB.
111. As stated earlier, all the judgments relied upon before me related to the lapse of acquisition as contemplated under Section 24(2) of 2013 Act and the necessity of passing an award under Section 24(1)(a) of 2013 Act after 01.01.2014 was not considered.
112. It may also be pertinent to note here that the stand of the Board is a contradiction in itself and I say so for this reason:
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113. It is an indisputable fact that after the KIAD Act was enacted in the year 1966, there has been an amendment made to the 1894 Act in the year 1984. By the said amendment in the year 1984, Section 23 of the original 1894 Act was amended and sub-section (1-A) was inserted into Section 23 and sub-section (2) was amended.
114. By the insertion of sub-section (1-A), amount at 12% p.a. of the market value from the date of publication of the preliminary notification under Section 4 (1) of the 1894 Act till the date of the award or the date of taking of possession, whichever was earlier, was granted.
115. By the amendment to sub-section (2), the solatium of 15% was increased to 30%.
116. Thus, by virtue of this 1984 amendment, two additional benefits were conferred to the land losers. It is not in dispute that this amendment to Section 23 in 1984 has been adopted by the Board and in respect of awards passed after the said amendment of the year 1984, the Board has been undisputedly paying the benefits conferred under Section 23(1)(a) and has also been paying the benefit of 65 enhanced solatium at the rate of 30% as per Section 23 (2) of the 1894 Act.
117. If the argument of the Board was that the provisions of the 1894 Act as it stood only should be adopted, obviously, the Board would not have adopted the amendments made in the year 1984 to the 1894 Act and would not have paid the benefits conferred under the 1984 amendment. In effect, the Board, by incorporating the benefits conferred under 1984 amendment in the awards passed thereafter, has basically accepted the fact that Section 30 of the KIAD Act was a legislation by reference and not a legislation by incorporation. It has also thereby accepted that any amendment made to the Principal Act i.e., the 1894 Act insofar as it relates to enquiry and award will also have to be applied to the awards passed under the KIAD Act. In this view of the matter, the argument of the Board and the beneficiary that Section 30 of KIAD Act was a case of legislation by incorporation cannot be accepted.
118. It may also be pertinent to state here that the Board itself while acquiring the lands in respect of M/s. N.M.D.C. 66 Limited, in respect of which, it had issued a notification prior to 01.01.2014, had resolved to pay compensation in accordance with the 2013 Act, as the beneficiary thereunder i.e., M/s. N.M.D.C. Limited had agreed to the said course of action. It is to be stated here that the Board cannot in respect of one instance adopt 1894 Act and, in another instance, cannot apply the 2013 Act to determine the compensation.
119. An argument was also advanced by the Board and the beneficiary that the mandate of Section 24 (1) of the 2013 Act can be applied only in cases where the land acquisition proceedings are initiated under the 1894 Act and the mandate of Section 24 (1) of the 2013 Act would have no application for acquisition of lands under any other enactment.
120. It is to be stated here that, in this case, though the land acquisition proceedings were initiated under the KIAD Act, nevertheless, in respect of the conclusion of the acquisition proceedings, such as holding an enquiry and passing an award, reference to the court, apportionment of compensation and payment of compensation, it is only the 67 provisions of the 1894 Act which are made applicable. The expression "initiated" in Section 24 of the 2013 Act would have to necessarily include the conclusion of the land acquisition proceedings and an artificial divide cannot be constructed between "initiated" and the conclusion of the acquisition proceedings. In other words, even if the land acquisition process have been initiated under the 1894 Act, since they would have to be concluded only as per the provisions of the 1894 Act, even in respect of cases where land acquisition proceedings are initiated under the KIAD Act, the provisions of Section 24 (1) of 2013 would apply.
121. Lastly, it is to be stated here that in W.P.No.107748- 50/2014, an interim order was granted restraining the Board from passing an award under 1894 Act. Similar orders were, however, not passed in respect of other writ petitions. However, the fact remains that there was a restraint on the Board to pass an award under 1894 Act and despite being aware of this interim order, the Board has proceeded to pass an award under the 1894 Act in some cases. In my view, this conduct of the Board cannot be commended. When the Board was aware of the fact that in one set of writ petitions, there 68 was a restraint order to pass an award under the 1894 Act, it ought not to have disregarded this interim order and should not have passed an award under the 1894 Act in respect of lands in which there was no interim order. Be that as it may, since it is held that the Board is required to pass an award in respect of lands acquired by it only under the 2013 Act, notwithstanding the fact that the notifications had been issued prior to 01.01.2014, it would be necessary to direct the Board to pass an award afresh in accordance with the provisions of 2013 Act.
122. As a result, it is hereby held that in respect of lands notified prior to 01.01.2014 under the KIAD Act and in respect of which, an award has not been passed as on 01.01.2014, the awards are required to be passed under Section 24 (1) (a) of the 2013 Act only.
123. The question framed in these petitions are accordingly answered.
124. The awards, if any, passed under the 1894 Act are hereby declared to be void and shall not be acted upon. If, however, the petitioners have withdrawn any sums deposited 69 pursuant to the awards passed under the 1894 Act, the amounts withdrawn by them shall be adjusted as against the award that is required to be passed under the 2013 Act as ordered above.
125. Accordingly, the writ petitions are allowed. The impugned endorsements by which the Board had stated that awards will have to be made only under the 1894 Act are quashed and the Board shall now pass an award in respect of lands which are the subject matter of these writ petitions as provided under the 2013 Act.
Sd/-
JUDGE PKS