Holding

Section 126(4) of the Maharashtra Regional & Town Planning Act, 1966 empowers the State to issue a fresh declaration after the three‑year period expires, with compensation assessed as of that fresh declaration date by applying the principles of Section 23 of the Land Acquisition Act, 1894, and the amendment applies to both pending and later proceedings.

Summary

The State of Maharashtra acquired land under the Maharashtra Regional & Town Planning Act, 1966 after the Act was amended to include a three‑year limit for publishing a declaration under s.126(2). The petitioners challenged the acquisition, arguing that the amendment applied only to pending proceedings and that compensation should be determined under s.11‑A of the Land Acquisition Act, 1894. The Supreme Court held that s.126(4) expressly allows the State to make a fresh declaration after the three‑year period expires and that the amendment applies to both pending and future proceedings. In the absence of a specific compensation provision in the 1966 Act, the Court applied the principles of s.23 of the Land Acquisition Act, 1894, fixing the market value as of the date of the fresh declaration. The Court rejected the contention that the notification under s.125 lapses and affirmed the validity of the fresh declaration. Consequently, the appeals were allowed, setting aside the High Court’s orders and permitting the State to proceed with the acquisition under the clarified regime.

Issues considered

The amendment provision of s.126(4) of the Maharashtra Regional & Town Planning Act, 1966, does it apply to pending as well as subsequent acquisition proceedings?
Whether compensation for land acquired under the 1966 Act can be determined by applying s.23 of the Land Acquisition Act, 1894 in the absence of an express provision.
Whether the failure to publish a declaration within three years renders the notification under s.125 void and precludes a fresh declaration under s.126(4).
Whether provisions of s.11‑A of the Land Acquisition Act, 1894, are incorporated into the 1966 Act by reference.

Legislation cited

Land Acquisition Act, 1894s. 11-A, s. 16, s. 17, s. 23, s. 24, s. 4(1), s. 6
Maharashtra Regional Town Planning Act, 1966s. 125, s. 126(2), s. 126(4), s. 127, s. 128

Subjects

land acquisitioncompensationMaharashtra Regional & Town Planning ActSection 126eminent domainprocedural limitationsubstantive provisionmutatis mutandisfresh declaration

Judgment

J

A STATE OF MAHARASHTRA AND ANR.
v.
SANT JOGINDER SINGH KISHAN SINGH AND ORS.

FEBRUARY 22, 1995

B [K. RAMASWAMY AND B.L. HANSARIA, JJ.]

Maharashtra Regional and Town Planning Act, 1966 : Compensation
for· land acquired-Determination of-Absence of express provision-Can be '
~
determined by applying mutatis mutandis the principles laid down in Section
c 23 of the Land Acquisition Act, 1894.

Section 125-Effect of amendment-Notification issued there-
under-Did not lapse after expiry of three years--Fresh declaration made
under Section 126(4) valid.

D Section 126(2)-Effect of amendment-Applicability of-Applied to
pending as well as later proceedings.
)..•

Land Acquisition Act, 1894 : Section 23-Acquisition of land-Com-
pensation-Determination of-Substantive provision not procedural.
E The Maharashtra Regional & Town Planning Act; 1966 was amended
and a notification under Section US of the Act was published. The land
could be acquired by agreement with the owner, or making an application
to the State Government for acquisition under Land Acquisition Act, 1894,
in which event by operation of the proviso to sub-s.(2) s.126, the declara·
F tion bas 10 be made within three years from the date or the publication or
notificaUon under s. 125. 'The notification under s.125 is treated as one
under s.4(1) and the declaration under s.2 of s.ll6 as declartion under s.6
of the Central Act. The failure to have the declaration published within

G
three years entails with the. prohibition to take further action in acquiring
the land. ---
The respondent's land was acquired subsequent to the amendment
of the Act. The respondeut filed a writ petition in the High Court challeng-
ing the said acquisition. The High Court allowed the writ petition on the
ground that the amendment would apply only to the pending proceedings
H and not to later procee dings. Aggrieved by the High Court's judgment tJae
1

242
Sl'ATEOFMAHARASIITRAv.J.SINGHKISHANSINGH 243

appellant preferred the present appeal. A
~·
On behalf of the respondent it was contended that since acquisition
of the land was compulsory expropriation, restrictive interpretation
should be given; that though there was no express provision that the
notification published under s.125 would lapse, by operation of s.llA of
the Land Acquision Act, 1894 introduced by the L.A. Amendment Act 68 B
of 1984 award had to be made within two years from the date of declaration
published under s.6 of the Central Act i.e. under s. 126(2) of the Act; that
/
this period of limiation must be deemed to have been incorporated in the
\ Act; that the only course open to the State was to issue the notification
under s. 125 aftresh, if law permitted and it should not resort to the c
publication of the declaration under sub-s. (4J of s. 126;

/ Allowing the appeal, this Court

HELD: 1.1. Section 126(4) of the Maharashtra Regional & Town
Planning Act, 1966 gives the legislative intent that if declaration is not D
made within three years of having been made, the aforesaid period expired
...(
on the commencement of the Amendment Act, the State Government has
been empowered to make a fresh declaration for acquiring the land in the
manner provided by sub- ss. (2) and (3) of s. 126 of the Act. (246-E]

1.2. The legislature being cognizant of the consequences that would
E
flow from iong delay in publication of the declaration in the official gazette
under sub-s. (2) of s. 126, provision was made in that behalf to put a fetter
on the exercise of power under ~.126(2) and simultaneously mitigated the
hardship to be caused to the public purpose as well as to private interest
of the owner of the land. [247-F] F
2.1. While permitting the State to exercise its power of eminent
domain, the owner of the land or the person interested in the land bas been
/ relieved of hard~hip of payment of the compensation as per the price
prevailing as on the date of publication of the notification under s.125
(s.4(1) of th.e Land Acquisition Act, 1894) and directed that market value .
G
be determined as on the date of publication of the fresh declaration under
sub-s.(4) of s. 126. [247-G]

2.2. Though declaration under sub-s.(2) of s. 126 is not made within
three years as prescribed under proviso to sub-s. (2) of s.126! by necessary H, .
'
244 SUPREME COURT REPORTS [1995] 2 S.C.R.

A inference it would be construed that notification under s. 125 does not
lapse and fresh declaration made under sub-s.(4) of s.126 is valid, be it
made after the Amendment Act came into force or the one made under the
unamended Act and three years had expired before the Amendmeut Act
has come into force. The Government was then clearly within its power to
B have published the declaration under sub-s. (2) of s. 126 of the Actin the
Official Gazette. (248-D-E]

Muni2paz Corporation of Greater Bombay v. Dr. Hakimwadi Tenants'
Assocjation and Ors., (1988) (Supp.) SCC 55, referred to.

C 3.1. The State legislature amended the Act by the Amendment Act
and introduced 3 years limitation for p1Jblication of the declaration under
sub·s.(2) of s~ 126. In s. 128, it had expressly engrafted the provisions of
ss. 16, 17 and 24 of the Central Act as its part. Wherever the legislature
intended to apply the specific procedure .or the fetters in exercising the
power as visualised by the Central Act, it did so specifically. After the
D Central Act 68 of 1984 has come into force, no attempt was taken by the
State legislature to amend the Act in,troducing or incorporating s.llA of
the Central Act as part of the Act. Since ~e legislature had incorporated
specific provisions of the Central Act, the necessary conclusion is that the
legislature did not intend to apply the unspecified provisions of the
E Central Act to the exercise of power under the Act. In this behalf it is to
be remembered that there is a distinction between incorporation and
adoption by reference. If the legisb1ture would have merely adopted the
Central Act, subsequent amendments to that Act made under Act, 68 of
1984 would have become applicable per force. (248-H, 249-A·B]

F Gauri Shankar Gaur v. State of U.P., (1994) 1 SCC 92, followed.

3.2. It is true that there fa no express provision under the Act to
determine· compensation for the land acquired under the Act. Therefore,
by necessary implication, compensation need to be determined applying
the principles in s. 23 of the Ce'lltral Act. But, there is a distinction between
G procedureal and substantive provisions of a statute. Determination of
compensation by applying appropriate principles is relatab!e to substan· ,Y
tive provision, whereas maUng of award within a prescribed period is
basically procedural. So, merely because s.23 of the Central Act would
apply to acquisition under the Act, is not enough to hold that what is
H contained in. s.U·A would also apply. Further, what has been provided in
STATEOFMAHARASHfRAv. J.SINGHKISHANSINGH 245

sub-s. (4) of s.126 of the Act is clear indication that failure to make the A
award within two years from the date of the declaration under sub-s. (2)
'-{ of s. 126 of the Act, would not render the notification published udder s.
125 of the Act non-est. (250-B-D]

3.3. It is clear from the opening part of Section 126(4) of the Act that
the Amendment Act applies. not only to the proceedings which were pend- B
ing when the Amendment was brought into force but also to the proceed-
ings initiated afterwards. (250-E]

Shiorani v. State of Maharashtra, (1994) Mh.L.J. 1821, approved.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4925 of C
1989 etc. etc.

From the Judgment and Order dated 8.2.89 of the Bombay High
Court in W.P. No. 312 of 1982.

K. Madhava Reddy, Dr. N.M. Ghatate, A.S. Bhasme, S.C. Birla, Sunil D
Dogra, P.H. Parekh, S.V. Deshpande, S.K. Agnihotri, Rajendra Mal Tatia,
Indraw Makwana, A.B. Lal and Ms. Punam Kumari for the appearing
parties.

In-person in C.A. No. 4826/90.
E
The following Order of the Court was delivered :

S.L.P. Nos. 18079/91, 17883/90 are taken on board. Substitution
allowed.

Leave granted in all the S.L.Ps. F

A common question of law arises for decision in these matters.
Hence, they are disposed of together.

The Maharashtra Regional & Town Planning, Act 37 of 1966, (for
short 'the Act') was invoked for acquiring the land in question by the G
Regional & Town Planning Board for planned development in the State of
Maharashtra. The facts in C.A. No. 4925/89 are sufficient for consideration
and decision in these appeals. The Act was amended by Amendment Act
1970 which came into force on February 17, 1971 as Act 14 of 1971. A
notification under s.125 of the Act was published on December 28, 1972. H
246 SUPREME COURT REPORTS [1995] 2 S.C.R.
'
A The land could be acquired by agreement with the owner, or making an
application to the State Government for acquisition under Land Acquisi-
tion Act, 1894, (for short 'the Central Act') in which event by operation of
the proviso to sub-s. {2) of s. 126, the declaration has to be made within
three years from the date of the publication of notification under s. 125.
B The notifi~tion under s.125 is treated as one s.4(1) and the declaration
udner s.2 of s.126 as declaration under s.6 of the Central Act. The failure
to have the declaration published within three years entails with the
prohibition to take further action in acquiring the land.

Sub-s. (4) lifts the embargo thus:
c
. "{4) If a declaration is not made within the period referred to in
sub-s.{2) or having been made, the aforesaid period expired on the.
commencement. of the Maharashtra Regional and Town Planning
{Amendment) Act, 1970, the State Government may make a fresh
declaration for acquiring the land under the Land Acquisition Act,
D 1894, in the manner provided by sub-ss. (2) and {3) of this section,
subject to the modification that the market value of the land shall
be the market value at the date of declaration in the Official
Gazette made for acquiring the land afresh."

E A reading of sub-s. (4) would give us the legislative intent that if
declaration is not made within three years or having been made, the
¥oresaid period exi)ired on the commencement of the Amendment Act,
~ State Government has been empowered to· make a fresh declaration
fo~ acquiring the land in the manner provided by sub-ss. (2) and (3) of
p s.126. The rider to the exercise of the power of eminent domain is that the
market value of the land should be as at the date of fresh declaration under
s. 126{2) published in the official Gazette. In other words, on publication
of the· notifiacatiott under s. 125, the market value has been pegged down
to the date of its publication in the· State Gazette. Since there lapsed time
between the dates ~f the notification and the declaration, the oWner is
G relieved from the hardship of determination of compensation as per prices
prevailing as on the n~cation under s. 125; and the rise in the market
value between tlie date's of the publication of the notification and the
declaration is set off.; Th.~egislature while giving power to the State to
issue declaration after the xpiry of three years· or having made the fresh
H declaration as va:lid, relieve the owner or person interested in the land
' STATEOFMAHARASIITRA "· J.SINGHKISHAN SINGH 247

from hardship; and the crucial date for determination of the compensation A
is the date on which the declaration under sub-s. (4) of s. 126 is published
in the official gazette treating that declaration as a fresh one. Thereby the
legislative intention would be clear that though three years period had
expired after the publication of the notification under s. 125 or the decla-
ration made under sub-s.(2) had expired before the commencement of the B
Amendment Act, the State Government h~ been given power to have the
declaration published afresh. In other words, power was given to have the
declaration published afresh so as to proceed with making the award but
to determine the compensation as per the price prevailing ~ on the date
of the fresh declaration published in the Gazette afresh.
/.
c
Dr. N.M. Ghatate, learned Senior counsel for the respondents, con-
ten<;ts that since acquisition of .the land is compulsory expropriation, restric-
tive interpretation should be given. He further contends that though there
/ is no express provision-that the notification published under s.125 would
lapse, by operation of dlA of the Central Act introduced by the L.A. D
Amendment Act 68 of 1~84, award has to be made within two years from
the date of declaration published under s.6 of the Central Act i.e. under
s.126(2) of the Act; and this period of limitation must be deemed to have.
been incorporated in the Act. Thereby, the only course open to the State
is to issue the notification under s. 125 afresh, if law permits and it should
not· resort to the publication of the declaration under sub-s.(4) of s.126. E

We find no force in the contentions. The legislature being cognizant
of the conseq~ences that would Jlow from long detay in publication of the
declaration in the official gazette under sub- s. (2) ·of s.126, provision was
made in that behalf to put a fetter on the exercise of power under s. 126(2) F
and simultaneously mitigated the hardship to be caused to the public
purpose as well as to private interest of the owner of the land. In other
words, while permitting the State to exercise its power of eminent domain,
the owner of the land or the person interested in the land has been relieved
of hardship of payment of the compensation as per the price prevailing as ·
on the date of publication of the notification under s.125 [s. 4(1) of the G
Central Act} and directed that market value be determined as on the date
of publication of th.e fresh declaration under sub-s.(4) of s. 126.

This Court in Municipal Colporation of Greater Bombay v. Dr.
Hakimwadi Tenants' Association & Ors., (1988) Supp. SCC .ss,
had con- H
248 SUPREME COURT REPORTS (1995] 2 S.C.R
/
" '
A sidered the effect of privisions of s. 126, in particular the proviso to
sub-ss.(2) and (4), while angulating the reservation under s.127 and held
thus:

"The conjoint effect of sub-ss. (1), (2) and (4) of s.126 is that if no
declaration is made within the period referred to in sub-s. (2), that
B is to say, before the expiry of three years from the date of publi-
cation of the draft regional plan, development plan or any other
plan, the compensation payable to the owner of the land for such
acquisition, in that event, shall be the market value on the date of
the fresh declaration under s.6 of the Land Acquisition Act i.e.
c the market value not at the date of the notification under s.4(1) of
the Land Acquisition Act but the market value at the date of
declaration under s.6. That is one of the safeguards provided under .
the Act."

D Therefore, it would be clear that though declaration under sub- s.(2)
of s.126 is not made within three years as prescribed under proviso to sub-s.
{2) of s.126, by necessary inference it would be construed that notification
under s.125 does not lapse and fresh declaration made under sub-s. (4) of
s.12.() is valid, be it made after the Amendment Act came into force or the
one made under the unamended Act three years had expired before the
E Amendment Act has come into. force. The Government was then clearly
within its power to have published the declaration under sub-s. (2) of s.
- 126 in the Official Gazette. This conclusion of ours gets fortified from the
consideration of the effect of s.127, as interpreted by this Court in aforesaid
case.
F
It is next contended by Dr. N.M. Ghatate that in appeal arising from '·
S.L.P. No. 5251/90 since the award has not been made within two years
from the date declaration under sub-s. (2) of s. 126, by operation of s.llA
of the Central Act, the notification published under s. 125 shall be deemed
to have been lapsed and, therefore, the authorities are devoid of jurisdic-
G tion to proceed further. We find no force in the contention too. It is seen
that the State legislature amended the fAct by the Amendment Act and
introduced 3 years limitation for publication of the declaration under sub-s.
(2) of s.126. In s.128, it had expressly engrafted the provisions of ss. 16, 17
and 24 of the Central Act as its part. In other words, wherever the
H legislature intended to apply the specific procedure or the fetters in
STATEOFMAHARASHfRAv. J.SINGHKlSHANSINGH 249

exercising the power as visualised by the Central Act, it did so specifically. A
After the Central Act 68 of 1984 has come into force, no attempt was
taken by the State legislature to amend the Act introducing or incorporat-
ing s.llA of the Central Act as part of the Act. Since the legislature had "
incorporated specific provisions of the Central Act, the necessary con-
slusion is that the legislature did not intend to apply the unspecified B
provisions of the Central Act to the exercise of power under the Act. In
this behalf it is to be remembered that there is a distinction between
inc:Orporation and adoption by reference. If the legislature would have
merely adopted the Central Act, subsequent amendments to that Act made
under Act 68 of 1984 would have become applicable per force.
c
In Gauri Shankar Gaur v. State of M:P., [1994] 1 SCC 92, the U.P.
legislature, while enacting U.P. Awas Evam Vikas Prishad Adhiniyam,
1965, enacted s. 55 and the schedule annexed to the Act making ap-
'
propriate incorporation therein of the provisions of the Central Act. It was
contended that as the Central Amendment Act 68 of 1984 prescribed D
limitation of 3 years for publication of the declaration under s.6, on expiry
thereof, the notification under s. 28 of the Adhiniyam stood lapsed. The
correctness of the contention and the scope and ambit of s. 55 read with
the schedule was considered by one of us (K. Ramaswamy, J.). After
exhaustive consideration of the case law on the topic in paragraphs 31-32, E
it was held that in legislation by incorporation, the provisions of the former
Act becomes an integral part of the latter Act, as if it was written with ink
and printed in the later Act. It is not so in case of adoption by reference.
In such a case, when provisions in the former Act are repealed or amended,
they cannot, unless expressly made .applicable to the subsequent Act, be
/
deemed to be incorporated in it. The later Act is totally unaffected by any F
amendment or repeal. Whether a case is one of incorporative or reference
is to be judged from the scheme, language employed and purpose the
statute seeks to achieve. If a later Act merely makes a reference to the
earlier Act or existing law, it is only by way of reference and all amend-
ments subsequently made will have effect, unless its operation is saved by G
section 8(1) of the. General ~uses Act or it is void under Art. 254 of the
Constitution. It was held in that case that s. 55 of the Act read with the
schedule merely incorporated the provisions of the Central Act and so,
subsequent amendments t~ s.6 of the Central Act- did not form part of the
Adhiniyam and they have no effect on the provisions of the Adhiniyam. H
)

250 SUPREME COURT REPORTS (1995) 2 S.C.R.

A Similar is the position under the Act.
It is next contended that since no separate procedure was prescribed
by the Act for determining the compensation, by necessary inference, the
Central Act was intended to be applied mutatis mutandis to the acquisition
under the ·Act. He seeks support from the award made by the Collector in
·B that behalf. It is true that there is no express provision under the Act to
determine compensation for the land acquired under the Act. Therefore,
by necessary implication, compensation need to be determined applying
the priciples in s.23 of the Central Act. But, there is a distinction between
procedural and substantive provisions of a statute. Determination of com-
C pensation by applying appropriate principles is relatable to substantive
provisi~n, whereas making of award within a prescribed period is basically
procedural. So, merely because s. 23 of the Central Act would apply to
acquisition under the Act, is not enough to hold that what is contained in
s. 11-A would also apply. Further, what has been provided in sub-s. (4) of
s.126 of the Act is clear indication that failure to make the award within
D two years from the date .of the declaration under sub-s. (2) of s. 126 of the
Act, would not render the notification published under s.125 of the Act
non-e8t.
\_.
A Full Bench of the High Court recently considered the question as
E to whether the Amendment Act applies not only to the proceedings which
were pending when the amendment was brought into force but also to the
proceedings initiated afterwards in Shiorani v. State of Maharashtra, (1994)
Mh.LJ. 1821; and has opined that it applies to later proceedings also. We
are in agreement with the reasoning and the oonclusion of the Full Bench,
as this is clear even from the opening part of sub-s. (4). Therefore, the.
F Division Bench of the High Court was not right in its conclusion that the
Amendment Act would apply only to the pending proceedings.

All the appeals, except Civil Appeal No. 62/92, are allowed; Civil
Appeal No. 62/92, however, stands dismissed. The orders and judgments
G. of the High Court in the appeals hereby allowed are set aside. Comequent-
ly, the notifications and the declarations which are subject matter of those
appeals stand upheld. The authorities would be at liberty to proceed
further in ac:cOrdance with the law. No costs.

v.s.s. Appeal allowed.