GAURI SHANKAR V. STATE OF U.P (1993) INSC 316; AIR 1994 SC 169; 1994 (1) SCC 92; 1993 Suppl.JT 104; 1993 (3) SCALE 371 (12 August 1993)

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PETITIONER: GAURI SHANKAR Vs. RESPONDENT: STATE OF U.P.

JUDGMENT:

The Judgments of the Court were delivered by K. RAMASWAMY, J.- Special leave granted.

2. These 41 appeals and writ petitions raise a common question of law for decision. Therefore, they are disposed of together. As the facts in C.A. No. 965 of 1981 are sufficient to consider the controversy raised, the need to reiterate the facts in each case became redundant.

3. U.P. Avas Evam Vikas Parishad, Lucknow, the second respondent framed Bhumi Vikas Evam Grahastham Yojana No. 1 Scheme for Rampur city to relieve the acute housing problems of that city and published the impugned notification in the Gazette on September 8, 15 and 22 of 1973 under Section 28(1) of the Avas Evam Vikas Parishad Adhiniyam, 1965 (Act 1 of 1966) amended as on that date, for short 'the Act' proposing to acquire 14 acres of land situated in civil area at an estimated cost of Rs 25.21 lakhs. Local publications too were made. Notices under Section 29 inviting objections were served on the appellants and others on September 20, 1973. On October 28, 1973 objections were filed. On July 31, 1976 notice was given of hearing objections on August 28, 1976. The Committee constituted in that behalf after hearing the objections, consideration thereof and rejection by proceedings dated November 1, 1976, recommended to the Government to approve the scheme. The Government on June 25, 1977 approved it to the extent of 11 acres 27 cents and the notification was published on August 27, 1977 in the Gazette as required under Section 32(1). Appeal under Section 32(2) filed before the Government too was rejected on July 14, 1978. On its receipt the Board issued notices on February 1, 1979 under28(1)of the Act. Other cases and writ petitions filed thereafter, were tagged with it.

4. The counsel appearing for the appellants addressed the arguments exhaustively. They placed reliance onSection 6of the L.A. Act, due to the procedure the Act had prescribed and so departure from the rigorous test of compliance of time schedule was salvaged.

5. Though counsel for the appellants sought to argue other points or new contentions, to maintain comity and concomitant consistence, we restricted our consideration to the point on which this Court granted leave. It would be obvious that this Court applied its mind to the other questions canvassed by the counsel and did not consider them fit to be decided and limited itself to the general question of law of public importance as to the applicability of the first proviso toArticle 32, this Court would normally deal with the points that arise for decision but writ petitions were admitted after the leave was granted and tagged to the main case. Generally, if not invariably, it is desirable to maintain uniformity at the hearing of the point on which leave was granted and any other point would not be permitted to be canvassed unless the point touches the jurisdiction or constitutional validity of the offending provisions. Exceptions should not become the rule and permitting to reopen several points which this Court did not consider fit to be canvassed, would create uncertainty and inconsistence and would become a gamble and exceptions become the rule. To maintain this concomitant comity and certainty we declined to permit counsel for the appellants or writ petitioners to raise other points for adjudication.

6. Whether limitation of three years prescribed under the first proviso toSection 32, on expiry of 30 days from the date of the notification under sub-section (1); where an appeal was preferred and the scheme was maintained with or without alteration, on the date of decision of the appeal and where more than one appeal is preferred, on the date of decision of the appeal last decided.

7. The purpose ofLand Acquisition Amendment Act, 1984 shall be made after expiry of three years from the date of the publication of the notification. Further provisos and explanation, etc. are not material, hence omitted. The publication of the declaration in the Official Gazette has been envisaged under sub-section (2). Under sub-section (3) the said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be and the appropriate Government would acquire the land in the manner laid down thereafter.

8. It would, thus, be seen thatSection 6of the earlier Act mandate to follow the procedure prescribed thereunder within the period of limitation provided therein as general law.

9.Section 55of the Act manifests the intendment of the legislature thus:

104 (1994) 1 "55. Power to acquire land.- (1) Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of theLand Acquisition Act, 1894 (Act 1 of 1894), as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to this Act."

(emphasis supplied) In schedule it has been provided thus:

"Modifications in theLand Acquisition Act, 1894 (Act 1 of 1894), as amended in its application to Uttar Pradesh (hereinafter called 'the said Act').

2. Effect of notices under this Act.- (1) The first publication, in the Official Gazette, of a notice of any housing or improvement scheme underSection 5-Aof the said Act shall be inapplicable in the case of such land.

(2) The issue of a notice under clause (c) of sub-section (3) ofSection 6of the said Act, unless a declaration under the last mentioned section has previously been made and is still in force.

(3) In a case to which sub-paragraph (1) or sub-paragraph (2) applies, a notification under sub-section (2) ofSection 6of the said Act, so however, that any such modification shall be without prejudice to the validity of anything previously done under the original notification or declaration."

(emphasis supplied) Paragraph No. 3 amendsSection 23of L.A. Act by substituting the Explanation to clause 'firstly' and adding sub-section (2) directing payment of 15% solatium on the market value.

10. Service of notice has been prescribed in U.P. Avas Evam Vikas Parishad (Form and Manner of Service of Notice) Rules, 1967, the details of which are not material for the purpose of this case, hence omitted.

11. Before adverting to the main question it is well to keep in mind at the forefront that in Uttar Pradesh the legislature wherever it found necessary adapted (sic adopted) theL.A. Acteither by reference or by incorporation in different Acts to suit its local needs and to remedy the alarming malady. So it made the Act and provided its own procedure to achieve the object of the Act. It is settled law that the court would make every endeavour to give effect to the legislative intent, allowing full play of its operation by harmonious construction and no part of the provision of the statute would be rendered surplus or otiose.

12. In Maxwell on The Interpretation of Statutes, 12th Edn., at page 236 it is stated thus:

"By 'equitable construction', the judges have sometimes meant nothing more than construction in accordance with the intention of the legislature. 'Within the equity', said Byles, J., means the same thing as 'within the mischief' of the statute. In this sense, equitable construction is unobjectionable and is still common: in application of mischief rule, for instance; in a 'beneficial' or broadly liberal approach to problems of interpretation; and in the practice of construing a statute in such a way as to prevent evasion of its terms."

At page 237 it is stated that 'equity in interpretation of statute would not be tolerated today and it may be now considered altogether discarded in the construction of modem statutes.... It was at one time asserted that a statute contrary to natural equity or reason (such as one which made a man judge in his own cause), or contrary to Magna Carta, was void, for, it was said, jura naturae sunt immutabilia, they are leges legum, and an Act of Parliament can do no wrong.'

13. Craies on Statute Law, 7th Edn., at page 101 in Chapter VI 'Construction where the meaning is not plain' in Part 4 'Construction by the Equity of the Statute', at page 102 it is stated that:

" ... in Brandling v. Barrington8 'that there is always danger in giving effect to what is called the equity of the statute, and that it is much safer and better to rely on and abide by the plain words, although the legislature might possibly have provided for other cases had their attention been directed to them'.

Although the expression 'equity of the statute' has long been out of use in the courts, we find that a somewhat similar principle of construction is sometimes acted upon, and that if it is manifest that the principles of justice require something to be done which is not expressly provided for in an Act of Parliament, a court of justice will take into 8 (1827) 6 B&C 467, 475 : 108 ER 523consideration the spirit and meaning of the Act apart from the words; in other words, there is still, as Jessel M.R. said, in Bethlem Hospital, Re9 ,such a thing as construing an Act according to its intent though not according to its words'."

14. It would thus be clear that in construing a statute equity will not relieve against a public statute of general policy in cases admitted to fall within the statute and it is the duty of the court to give effect to the legislative intent. We have to advert, therefore, to the main question, whether the Act adapted6of the L.A. Act, by incorporation or by reference.

15. In Clarke v. Bradlaugh10 Brett, L.J. laid the rule of incorporation thus:

" [T]here is a rule of construction that, where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third statute does not affect the second."

This was reiterated by Lord Esher, M.R., dealing with legislation by incorporation, in Wood's Estate, Re11 thus:

"If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all."

16.General Clauses Act, the principle involved is still applicable. Where certain provisions from an existing Act have been 9 (1875) 19 Eq 457, 459 10 (1881) 8 QB D 63, 69: 41 LJQB 1 (CA) 11 (1886) 31 Ch D 607, 615 : 34 WR 375 (CA) 12 58 IA 259: AIR 1931 PC 149: 35 CWN 794incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it at all events if it is possible for the subsequent Act to function effectually without the addition. Accordingly it was held that an appeal would not lie to the Privy Council. This Court approved and followed the above ratio in catena of cases.

17.Section 15not available to those who satisfy its terms". Sections 15 and 3(1) of the Pre-emption Act incorporated ,agricultural land' as defined in Punjab Alienation of Land Act, 1900, as amended by Act 1 of 1907, without giving any right of mortgage, whether usufructury or not, in such a land. The Punjab Alienation of Land Act was repealed later on. The contention raised was that the Punjab Alienation of Land Act was applied only by reference, and not by incorporation. The repeal of the Punjab Alienation of Land Act of 1900 had, therefore, affected the continued operation of the Pre-emption Act. While negating the contention it was held that "the expression 'agricultural land' in the later Act has to be read as if the definition in the Alienation of Land Act had been bodily transposed into it" and it was by incorporation.

18. In Bolani Ores Ltd. v. State of Orissa14 Bihar and Orissa Motor Vehicles Taxation Act andTaxation Act. The constitutional validity of the said Act was accordingly upheld.

19.P.C. Act. Dealing with the doctrine of incorporation by reference this Court considered the scope and reiterated the ratio in Hindustan Coop. Insurance Society case12 holding thus: (SCC p. 385, para 14) "... their Lordships of the Privy Council made it clear that this principle would not apply where the subsequent Act is rendered unworkable or is not able to function effectively."

On a consideration of the authorities the Court laid down the following exceptions: (SCC p. 385, para 15) "(a) where the subsequent Act and the previous Act are supplemental to each other;

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

(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and

(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act."

It was held in that case that exceptions (c) and (d) would get attracted to the facts of that case and corporation employee was a public servant and theP.C. Act. Otherwise P.C. Act becomes wholly unworkable and inefficient.

20. The same view was reiterated by this Court inSection 5-A.

According to Appendix I all the sections in Part II of the Land Acquisition Act except sub-section (1) ofSection 17are bodily incorporated in the Bombay Act. Those provisions are deemed to be part and parcel of the Bombay Act in terms of Appendix I."

16 1989 Supp 1 SCC 733, 739-40: 1989 SCC (Tax) 536 : AIR 1989 SC 222, 226 17 (1976) 3 SCC 719: AIR 1976 SC 2095

21. In Mahindra & Mahindra Ltd. v. Union of India18 the Monopolies & Restrictive Trade Practices Act, 1969 bySection 55."

22. It would thus be clear that in case of legislation by incorporation, incorporated provisions would become part and parcel of the later fresh statute as if it is written by pen in ink or printed bodily therein as part of the later statute and became an integral scheme of that Act. The Legislature while incorporating them did not intend to speculate that any subsequent amendment to the previous Act or its repeal would after the texture of the later Act, unless the previous Act is supplemental to the later Act or both are in pari materia in which case it would render the later Act wholly unworkable and ineffectual or by necessary intendment applies it.

23. Let us then proceed to consider the cases on reference.Section 23-Aof the Foreign Exchange Regulation Act this Court held that adaptation is only by way of reference and not by incorporation and the repeal of the Sea Customs Act had no consequence. The order of confiscation and detention orders were upheld.

24. In New Central Jute Mills Co. Ltd. v. Asstt. Collector of Central Excise, Allahabad the appellant was a manufacturer of chemicals which included Ammonia. The Asstt. Collector, Central Excise issued warrant to search and seize certain goods and documents from the appellant's premises on the plea that the appellant was evading excise duty on Ammonia. The jurisdiction of the officer under the offending action was questioned by way of writ petition on the ground that Sea Customs Act, 1875 having been repealed whether Central Government by operation ofSection 3.

25.Section 55as integral scheme. Therefore, incorporation to that extent was specific, unambiguous and explicit.

26.Hindu Succession Act, 1956 had come into force.

27. In Ujagar Prints v. Union of India24 the Constitution Bench of this Court held that the facts in that case fell in the exceptions carved out in Narsimhan case". The levy and excise duty on textiles was upheld. In Pratap Singh v. Director of Enforcement, FERA25 the question was whether the provisions ofSection 37" would indicate that it is only by reference and not by incorporation. 23 (1978) 2 SCC 542 24 (1989) 3 SCC 488 : 1989 SCC (Tax) 469 25 (1985) 3 SCC 72 : 1985 SCC (Cri) 312 : 1985 SCC (Tax) 352

28.Municipalities Actand Municipal Corporation Act in the 1973 Act to regulate the procedure to levy property tax. It was contended that the subsequent amendment of 1976 was not applicable. In that behalf relying upon Hindustan Coop. Insurance Societies Ltd. case12 this Court held that if an earlier legislation is incorporated into a later legislation, the procedure of previous Act which are incorporated into the later Act became a part and parcel of the latter Act. Therefore, amendments made in the earlier law after the repeal of previous Act cannot by their own force be merged with the later law.

29.Section 36(4)(1)(sic) of the Land Improvement Trust Act shall stand lapsed. We are informed that the same bench directed these appeals to be heard later, though were posted together and obviously the bench was not inclined to apply the above ratio and intended to consider these appeals in the setting of the Act.

26 (1982) 1 SCC 125 : (1982) 2 SCR 1 27 (1992) 1 SCC 401

30. The ratio inCentral Act.

31. It would thus be clear that in case of legislation by incorporation the former Act becomes an integral part and parcel of the later Act, as if it was written with ink and printed in the later Act. Its validity including the provisions incorporated thereunder would be judged with reference to the power of the legislature enacting the later Act. It is not by reference. Logically when provisions in the former Act are repealed or amended, they do not, unless expressly made applicable to the subsequent Act, be deemed to be incorporated in it. The later Act is totally unaffected by any amendment or repeal. It would be subject to the exceptions enumerated hereinbefore. The statute being distinct and different each is to be judged with reference to its own source that emerges from its scheme, language employed and purpose it seeks to achieve. 28 (1989) 4 SCC 650 29 (1965) 1 SCR 614: AIR 1965 SC 10 1 7 30 (1988) 1 SCC 356 31 (1975) 2 SCC 302: AIR 1975 SC 1389 32 (1969) 3 SCC 838

32. If a later Act merely makes a reference to the earlier Act or existing law, it is only by way of reference and all amendments, repeals, new law subsequently made will have effect unless its operation is saved byArticle 254of the Constitution.

33.Section 6did not become part of the Act and they have no effect on the operation of the provisions of the Act.

34. It is next contended that32of the Act. We find no force in the contention. In Yuri Maru v. The Woron33 the Colonial Courts of Admiralty Act, 1890 limited the jurisdiction of the High Court of England as colonial Admiralty court established under the Act "as if existed at the passing of the Act". When suit for damages against charter party was laid in the Exchequer Court of Canada, which was established under the Admiralty Act, 1906, it was contended that it had ceased having jurisdiction for the action for damages for breach of charter party; the defendant being domiciled in London and the cause of action not having arisen within the limits of Exchequer Court of Canada, and the ship having been within the limits of the High Court of England it had jurisdiction as if the Act has been amended from time to time excluding the colonial jurisdiction of Canada Court. Therefore, the Exchequer Court of Canada had no jurisdiction to try the case. The Privy Council negatived the contention and held that the High Court of England had jurisdiction only as available at the time when the Act was made. The appellant's claim that these words can be understood as applying to conditions which are to come into being upon and after passing of the Act and they offer in effect to make the meaning clear by reading into the sentence before the words "existing", the words "from time to time". The judicial committee negatived the contention and held that, "the admiralty jurisdiction of the High Court of England as then existing would not apply in the following words: 33 1927 AC 906"On the whole, the true intent of the Act appears to their Lordships to have been to define as a maximum of jurisdictional authority for the courts to be set up thereunder, the Admiralty jurisdiction of the High Court in England as it existed at the time when the Act was passed. What shall from time to time be added or excluded is left for independent legislative determination."

35. It is, therefore, clear that by statutory interpretation the court has no power to add words or interpret the words "as amended from time to time".

36. Shri Satish Chandra then contended thatAmendment Actcame to be made.

37. It is next contended that by operation of proviso toTaxation Act. Its constitutional validity was accordingly upheld.

38. In Mithan Lal v. State of Delhi34 the Constitution Bench of this Court was to consider the constitutionality of the notification extending Bengal Finance Sales Tax Act, 1941 to Delhi State Part 'C'. When its constitutional validity underArticle 254(2)is not attracted.

39. There is no doubt or difficulty as to applicability of the law underArticle 254(2)the State law is void. Since the Central Amendment Act, 1976 occupies the same field imposing lesser punishment, the previous State law imposing punishment of imprisonment for life, though received the assent of the President was held to be void.

40. It is seen that the Act was made under Entry 6, Entry 5 and Entry 66 of the State List and incidentally it took recourse to Entry 42 of the Concurrent List. Presumptive evidence furnishes that the State Legislature would be aware of the Central law and appreciated the local needs and the remedy is provided for and would make the law. Every endeavour should be made to allow both the laws to operate in their respective field. Unless State law is fully inconsistent and absolutely irreconcilable it would not be correct to conclude that repugnancy renders the State law void. Since the main purpose of the Act is not the acquisition of the property as the provisions do indicate in pith and substance that they do not occupy the same field. It is not fully inconsistent and are not absolutely irreconcilable. Both do co-exist in relation to the procedure prescribed under the Acts.Section 55and the Schedule did not become void.

41. Thus considered, we hold that the view of the Full Bench' is perfectly legal and already was upheld by this Court. The limitation of three years prescribed under the first proviso toSection 55of the Act. We would reiterate that the State had undertaken, before the Full Bench, to property compensate the land owners for the delayed period as it had occurred due to several supervening events beyond the State's control. The appeals and writ petitions are dismissed, but without costs.

R.M. SAHAI, J.- Principal issue debated at length in these special leave petitions directed against Full Bench judgment of Allahabad High Court and writ petitions filed underSection 55of the Act all subsequent amendments in it applied automatically.

37 (1983) 1 SCC 177 : 1983 SCC (Cri) 143 :(1983) 1 SCR 905

43. Adopting or applying an earlier or existing Act by a competent Legislature to a later Act is an accepted device of legislation. If the adopting Act refers to certain provisions in an earlier existing Act it is known as legislation by reference. Whereas if the provisions of another Act are bodily lifted and incorporated in the Act then it is known as legislation by incorporation. Legal meaning of these expressions, therefore, is no different than the literal meaning. But the consequences of their application are far reaching. When an earlier Act is referred in a later Act then any subsequent amendment, addition or alteration in the earlier Act, automatically, becomes a part of it even for purpose of the later Act. But in a legislation by incorporation since the entire provision either wholly or partly stands bodily engrafted, therefore, it stands frozen on the date of incorporation and remains unaffected by any subsequent or future amendment. Why it is so? What is the rationale for it? When an Act is wholly or partly referred in another Act it has to be applied or acted upon in the form it exists. For instance if a statute provides that the proceedings under the Act shall be conducted in accordance with the procedure provided inthe Codeof Civil Procedure (in brief 'CPC'), then on the date the proceedings commence it is the CPC as existing, on that date which shall apply. The natural consequence that flows from it is that any amendment or alteration in the adopted Act becomes operative even in the statute in which it is referred. Sutherland in his book Statutory Construction has explained it thus, "A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked.

This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted."

Same principle is discussed in Corpus Juris Secundum as under:

"...Where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof, ... the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute."

44. On the other hand legislation by incorporation, 'is to write those sections into the new Act as if they had been actually written in it with pen or printed in it'. Repeal of the provision of the earlier Act adopted or any amendment or alteration in it can have no effect on its operation in the adopting Act as having become part of the-new statute it remains untouched by what happens in the parent Act. One of the reasons to resort to such method of legislation is to ensure uniformity. For instance if a statute provides a remedy by way of second appeal on the same grounds as is specified in Section 100 CPC then it may for sake of brevity and uniformity incorporate those provisions as was the case inFarid Ahmed Abdul Samad v. Municipal Corpn. of the City of Ahmedabad17held Section 284-N of the Municipal Corporation Act was a referential legislation even though the section ran as under:

38 (1963) 1 SCR 778 : AIR 1962 SC 1621"284-N. The Land Acquisition Act, 1894 (in this and the next succeeding sections referred to as 'theLand Acquisition Act') shall to the extent set forth in Appendix I regulate and apply to the acquisition of land under this Chapter, otherwise than by agreement, and shall for that purpose be deemed to form part of this Chapter in the same manner as if enacted in the body thereof, subject to the provisions of this Chapter and to the provisions following, namely........

It was held that theExcise Actwas subsequently amended. It was held: (SCC p. 742, para 5) "In the first place, we think it would be correct to say that the 1963 Act brings in the definitions of the 1944 Act by way of reference or citation and not by way of incorporation. For, a reading of the Act shows that the Act intended to confer exemption on a number of goods set out in the schedule. Of these, since Items 5 to 7 are defined in the 1944 Act, the Act refers to those definitions to ascertain the scope of these items. There are no express words used by the statute which will justify an inference that the intention was to incorporate those definitions, as standing on that date, into the 1963 Act."

In Bajaya v. Gopikabai23it was held that it was a case of legislation by reference.

45. Principles laid down in these decisions indicate that the determination if a legislation was by way of incorporation or reference is more a matter of construction by the courts keeping in view the language employed by the Act, the purpose of referring or incorporating provisions of an existing Act and the effect of it on the day-to-day working. Reason for it is the courts' prime duty to assume that any law made by the Legislature is enacted to serve public interest. That is the rationale due to which the Courtconstrued provisions in Western Coalfields Ltd.26 or Attesee16 orL.A. Actas modified by the schedule stood bodily engrafted:

"55. Power to acquire land.- (1) Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of theLand Acquisition Act, 1894 (Act 1 of 1894), as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to this Act".

(emphasis supplied) The language indicates that the legislature intended to take proceedings for acquisition of land under theSection 6of the Land Acquisition Act."

46. Language of the section, apart, the courts have a duty to construe theprovisions of a statute to advance the cause of justice and facilitate the day today working of the statute to serve the public interest and achieve the objective of social betterment. Motivated by such principles the Privy Council mitigated the rigour of legislation by incorporation by carving outexceptions to it which have been reiterated by this Court in Narasimhan 15 and Attessee16. One of such situations where legislation by incorporation has been excluded is if it would create difficulty in day-to-day working. In our constitutional set- up it can be extended further and the courts should lean against a construction which may result in discrimination. How does it arise? Land of 'A' or 'B', owners of adjoining land is acquired one by the State Government for constructing a road or canal or bridge and other by the Avas Vikas Parishad for constructing a building in public interest. The acquisition proceedings in either case is taken under theL.A. Actopted to exclude availability of any beneficial amendments in it. At least not by construction. Faulty implementation of a legislative provision by the executive should notpersuade the court to impute intention to the legislature to have intended to act unfairly.

47. Reason for adding the proviso toSection 6of the Act. The infirmity has arisen due to procedural delay. It is well established that delaydestroys the remedy but not the right. The Avas Evam Vikas Parishad could have acquired the land by issuing fresh notification. Therefore the equities can be adjusted by directing that the compensation to the land owners shall be paid by assuming that fresh proceedings for acquisition were taken in the year in which the declaration was published.

49. Before parting it is also necessary to mention whether the petitioners who approached this Court underArticle 32can be denied hearing on points other than limitation only because their petitions had been tagged with special leave petition in which following order was passed:

"Leave granted limited to the question as to whether the limitation provided in the proviso toSection 6of the Land Acquisition Act introduced by the amending Act of 1967 is also applicable in the facts of this case in view of U.P. Avas Evam Vikas Adhiniyam."

From the order granting leave extracted above it is clear that the order was confined to facts of that case. It may legitimately be argued that the Bench hearing the appeals is not bound by the order granting leave as even though other aspects shall be deemed to have been heard and decided yet in absence of any decision or adjudication on merits it has no binding effect. Whether it is so or not need not be gone into in these petitions except observing that the implied rejection of an order does not amount to deciding on merits but in propriety and comity it is just and proper that except in very rare cases where injustice is manifest the Bench hearing the matter finally is expected to respect the earlier order passed by the Bench granting leave. But that does not apply to the writ petitions which were merely tagged with special leave petitions. In absence of any specific order it would not be fair to shut out the petitioners who invoked extraordinary jurisdiction of this Court merely because one of the questions, may be the main one, being common the petitions were directed to be connected either at the instance of the Bar or the Bench. Once the petitions were admitted the court has an obligation to hear them or to settle the question of law and permit the petitioners to seek their remedy on other issues in appropriate forum.

50. For these reasons even though publication of declarations under the Act were beyond the period of three years it is not in interest of justice to quash the proceedings but the appellants shall be paid compensation of the land acquired on market value prevalent in the year in which the declaration analogous toSection 4was issued in that year.

51. So far the writ petitions are concerned it shall be open to petitioners to seek their remedy in appropriate forum against any aspect other than the limitation. The special leave petitions and writ petitions are dismissed subject to observations made above.

ORDER

52. Though for different reasons, we have come to the same conclusions that the civil appeals and writ petitions shall stand dismissed. But theappellants and petitioners shall be paid compensation on the market rate prevalent in the year the declarations analogous toSection 6of the Land Acquisition Act, 1894 were issued. In view of the special facts and peculiar circumstances and not as of law we have adapted this course.

53. Parties shall bear their own costs.

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  1. https://indiankanoon.org/doc/1752395/Gauri Shankar vs State Of U.P on 12 August, 1993