Supreme Court of India
STATE OF UTTARAKHAND (PREVIOUSLY STATE OF UTTAR PRADESH)versusMOHAN SINGH & OTHERS
- Citation
- 2012 INSC 390
- Decided
- 12 September 2012
- Disposal
- Appeal(s) allowed
Holding
Section 331(4) incorporates the unamended Section 100 CPC, so the Board of Revenue was required to frame a substantial question of law and its order was illegal, warranting remand.
Summary
The State of Uttarakhand appealed against the Board of Revenue’s order that had allowed a second appeal under Section 331(4) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, declaring that respondents had acquired Bhumidar rights by adverse possession. The Supreme Court examined whether Section 331(4) incorporated the unamended Section 100 of the Code of Civil Procedure or the amended version introduced in 1977, and consequently whether the Board was obliged to frame a substantial question of law. Relying on the principles of legislation by incorporation versus mere reference, the Court held that the reference to Section 100 in Section 331(4) was an incorporation of the version as it stood in 1908. Because the Board failed to frame any substantial question of law, its order was deemed illegal. The Court also noted that the Board had not examined the land records to determine tribal ownership, a necessary factual enquiry. Accordingly, the appeals were allowed and the matter was remanded to the Board of Revenue for fresh consideration.
Issues considered
- Whether Section 331(4) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act incorporates the unamended Section 100 of the Code of Civil Procedure or the amended version.
- Whether a second appeal under Section 331(4) must be predicated on a substantial question of law as required by Section 100 CPC.
- Whether the Board of Revenue erred in not examining the land records and tribal status of the land before deciding the appeal.
Legislation cited
- Code of Civil Procedure, 1908s. 100 (amended), s. 100 (unamended)
- General Clauses Act, 1897s. 8(1)
- Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951s. 210, s. 331(4)
Subjects
second appeallegislation by incorporationSection 331Section 100Bhumidar rightsadverse possessiontribal landBoard of Revenuesubstantial question of law
Judgment
[2012] 8 S.C.R. 686
A STATE OF UTTARAKHAND (PREVIOUSLY STATE OF
UTTAR PRADESH)
v.
MOHAN SINGH & OTHERS
(Civil Appeal No. 6479 of 2012 etc.)
B SEPTEMBER 12, 2012
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Uttar Pradesh Zamindari Abolition and Land Reforms
C Act, 1951 - ss. 210 and 331(4) - Suit by respondent-plaintiff
for their declaration as Bhumidhars being in adverse
possession of the land - Suit dismissed on the ground that
plaintiff could not obtain Bhumidhar right being a non':.tribe
person, as the land belonged to a tribe - Appeal against the
o order also dismissed - Second appeals u/s. 331(4) before
Board of Revenue - Board allowed appeals and decreed the
suit holding that plaintiffs perfected their title uls. 210 by
continuous possession for 20 years - Writ petition by State
dismissed - On appeal, plea interalia that order of the Board
E was illegal as it failed to frame substantial question of law as
per s. 331(4) and uls. 100(4) CPC as amended- Held: The
Act was enacted prior to the amendment of s. 100 CPC
whereby sub-section (4) was incorporated therein - Therefore,
the unamended s. 100 CPC was incorporated ins. 331(4) -
F Thus the right of second appeal was limited to the grounds
set out in the then existing s. 100 CPC - The Board of
Revenue has not examined the provisions of the land record,
and whether the land belonged to the tribe - Therefore, the
matter remanded to the Board of Revenue for fresh
G consideration - Code of Civil Procedure, 1908 - s. 100.
U.P. Avas Evam Vikas Parishad vs. Jainul Islam and
Anr. (1998) 2SCC 467:1998 (1) SCR 254; Mahindra and
Mahindra Ltd. v. Union of India and Anr. (1979) 2 SCC
H 686
STATE OF UTTARAKHAND (PREVIOUSLY STATE OF 687
UTTAR PRADESH) v. MOHAN SINGH
529: 1979 (2) SCR 1038; Secretary of State of India in A
Council v. Hindustan Co-operative lnsurace Society Ltd. 58
I.A. 259; Ramswarup v. Munshi and Ors. (1963) 3 SCR 858;
Boiani Ores Ltd. v. State of Orissa (1974) 2 SCC 777: 1975
(2) SCR 138 - referred to.
B
Case Law Reference:
1998 (1) SCR 254 Referred to Para 18
1979 (2) SCR 1038 Referred to Para 19
58 I.A. 259 Referred to Para 22 c
1963 (3) SCR 858 Referred to Para 23
1975 (2) SCR 138 Referred to Para 24
CIVIL APPELLATE JURISDICTION : Civil Appeal No. D
6479 of 2012.
From the Judgment and Order dated 21.11.2008 of the
High Court of Uttarakhand at Nainital in Writ Petition (C) No.
4037 of 2011.
E
WITH
Civil Appeal No. 6480 and 6481 of 2012.
Rachana Srivastava, Utkarsh Sharma for the Appellant.
F
Somnath Padhan, Satyajit A. Desai, Anagha S. Desai for
the Respondent.
The following Order of the Court was delivered
ORDER G
1. Delay condoned.
2. Leave granted.
H
688 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 3. Heard learned counsel on either side.
4. Respondents herein had filed a suit, being Revenue
Case No. 22/45 Year 1989-90, before the Sub Divisional
Magistrate/Assistant Collector (SOM), under Sectio;i 2298 of
the Uttar Pradesh Zamindari Abolition and Land Reforms Act,
8
1950 (for short 'U.P. Act') stating that they were in continuous
cultivation and in possession of land measuring 0.515 hectare
in Plot No. 137 of Khata No. 44 in village ltawa Tehsil Sitargunj,
District Nainital, for over 20 years. Despite having adverse
possession, their names had not been recorded as Bhumidars
C in the Revenue Records and hence a declaration was sought
for to that effect.
5. The Court of the SOM, however, dismissed the suit vide
judgment dated 19.03.1991 holding that the respondents could
D not establish adverse and continuous possession over the
disputed land and that the land in question belonged to Tharu
tribe and the Bhumidar right could not be obtained by non-Tharu
tribe persons. Aggrieved by the said judgment, the respondents
took up the matter in appeal before the Additional
E Commissioner (Judicial), Kumaon Division, Nainital under
Section 331 of the U.P. Act.
6. The appeal was elaborately considered by the
Additional Commissioner, on law as well as on facts, and he
recorded a finding that the land in dispute belonged to original
F 'Kashtkar' (tillers) of the land, members of Tharu tribe and on
their land the respondents could not claim any Bhumidar rights.
Further, it was also held that the adverse possession of the
respondents for prescribed period before 3.6.1981 could not
be proved .. Holding so, the appeal was dismissed vide
G judgment dated 12.07.1991 and the order of the SOM was
confirmed.
7. The respondents again took up the matter in two
separate appeals before the Board of Revenue under Section
H
STATE OF UTTARAKHAND (PREVIOUSLY STATE OF 689
UTTAR PRADESH) v. MOHAN SINGH
331(4) of the U. P. Act and both the appeals were heard A
together. The respondents claimed that their rights had been
perfected before the Act 20 of 1982 came into force by which
the provision prohibiting the perfection of title on the land
belonging to Scheduled Tribe was added.
B
8. The Board of Revenue took the view that the Lakhpal,
examined on behalf of the State, had admitted the possession
of the respondent's land and they were in continuous
possession for over twenty years on the date of the institution
of the suit and had perfected their title under Section 210 of
the U .P. Act, before incorporation of the proviso by Act No. 20 C
of 1982. The Board of Revenue, therefore, allowed the appeals
and decreed the suit vide its order dated 29.1.1992 and set
aside the orders passed by the SOM and the Additional
Commissioner.
D
9. State of Uttarakhand (previously State of Uttar Pradesh),
through the District Collector, preferred Writ Petition (M/S) Nos.
4031 of 2001 ·and 4034 of 2001 etc .. before' .the High Court of
Uttarakhand at Nainital. The High Court dismissed both the writ
petitions vide order dated 21.11.2008 following its earlier order E
dated 07.08.2008 passed in Writ Petition No. (M/S) 4035 of
2001. Aggrieved by the same, these appeals have been
preferred by the. State of Uttarakhand.
10. Sm!. Rachana Srivastava, learned counsel appearing
for the State of Uttarakhand, submitted that the High Court and
F
the Board of Revenue have committed an error in reversing the
well considered judgments of the SOM and the Additional
Commissioner. Learned counsel pointed out that they had
come to the definite conclusion on facts that the respondents
had not established any right under Section 210 of the U.P. Act. G
The Revenue record produced would clearly establish that the
respondents had not perfected their title by adverse possession
or otherwise. Further, it was also pointed that the Board of
Revenue had failed to frame any substantial question of law as
H
690 SUPREME COURT REPORTS [2012] 8 S.C.R.
A per Section 331(4) of the U. P. Act and under Section 100
C.P.C. as amended, consequently, committed a grave error in
reversing the concurrent findings rendered by the SOM and the
Additional Commissioner.
B 11. Shri Somnath Padhan, learned counsel appearing for
the respondents, on the other hand, contended that the Board
of Revenue had come to the right conclusion that the
respondents had perfected their title over the disputed land,
since the documents produced by them had established that
C they were in possession for more than 20 years, but their
names were not recorded in the Revenue records as
Bhumidars. Further, it was also stated that the appeals filed by
the respondents before the Board of Revenue were not properly
contested by the defendants. Learned counsel also pointed out
that Lakhpal, who was examined on behalf of the State, had
D also admitted the possession of the respondents and that the
respondents had perfected their title under Section 210 of the
U.P. Act before the incorporation of the proviso by Act 20 of
1982. Learned counsel also pointed out that the High Court has,
therefore, rightly dismissed the writ petitions filed by the State.
E
12. Let us first examine whether the Board of Revenue has
correctly appreciated the nature and scope of its power while
entertaining a second appeal under Section 331 (4) of the U.
P. Act. Learned counsel appearing for the State, as already
F indicated, submitted that the Board of Revenue ought to have
framed questions of law, if it was satisfied that the case involved
substantial questions of law. Since the Board of Revenue failed
to frame any substantial question of law, as per Section 100(4)
C.P.C., the order passed by the Board of Revenue was illegal,
G consequently, the writ petitions filed by the State should have
been allowed. Learned counsel appearing for the respondents
submitted that though the Board of Revenue did not frame any
question of law as such, it had considered all aspects of the
matter and came to the correct conclusion that the respondents
had proved their possession for more than 20 years and,
H
STATE OF UTTARAKHAND (PREVIOUSLY STATE OF 691
UTTAR PRADESH) v. MOHAN SINGH
therefore, entitled to get the benefit of Section 210 of the U.P. A
Act.
13. In order to examine the contentions raised by the
counsel on either side, it is necessary to first examine the
scope of Section 331 (3) and (4) and those provisions are B
extracted below for our easy reference:
"331. Cognizance of suits, etc. under this Act.-
xxx xxx xxx
c
xxx xxx xxx
(3) An appeal shall lie from any decree or from an order
passed under Section 47 of an order of the nature
mentioned in Section 104 of the Code of Civil Procedure, o
1908 (V of 1908) or in Order XLlll, Rule 1 of the First
Schedule to that Code passed by a court mentioned in
column No. 4 of Schedule II to this Act in proceedings
mentioned in column No. 3 thereof to the court or authority
mentioned in column No. 5 thereof. E
(4) A second appeal shall lie on any of the grounds
specified in Section 100 of the Code of Civil Procedure,
1908 (V of 1908) from the final order or decree, passed
in an appeal under sub-section (3), to the authority, if any, F
mentioned against it in Column 6 of the Scheduled
aforesaid."
14. Sub-section (4) of Section 331 also refers to Column
6 of Schedule II. Hence, the relevant portion of the Schedule is G
also extracted hereunder:
H
692 SUPREME COURT REPORTS [2012] 8 S.C.R.
A "SCHEDULE II
(Section 331)
Serial Section Description Court of Court of
No. of proce- original First Second
edings jurisdiction Appeal Appeal
B
1 2 3 4 5 6
xxx xxx xxx xxx xxx xxx
34. 229, 229 Suit for Assistant Commissioner
-B, 229-C declaration Collector, Board
c of rights 1st Class
15. Sub-section (4) of Section 331 of U.P. Act states that
a second appeal shall lie on "any of the grounds" specified in
Section 100 C.P.C., 1908.
D Section 100 C.P.C., as it stood prior to 1.2.1977, reads
as follows:
"(1) Save where otherwise expressly provided in the
body of this Code or by any other law for the time being in
force, an appeal shall lie to the High Court from every
E decree passed in appeal by any Court subordinate to a
High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage
having the force of law;
(b) the decision having failed to determine some
F
material issue of law or usage having the force of
law;
(c) a substantial error or defect in the procedure
provided by this Code or by any other law for the
G time being in force, which may possibly have
produced error or defect in the decision of the case
upon the merits.
(2) An appeal may lie under this section from an
appellate decree passed ex parte. •
H
STATE OF UTTARAKHAND (PREVIOUSLY STATE OF 693
UTTAR PRADESH) v. MOHAN SINGH
After Section 100 was substituted by the Act 104 of 1976 A
with effect from 1.2.1977, it reads as follows:
"100. Second appea/.-(1) Save as otherwise
expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie to the
B
High Court from every decree passed in appeal by any
Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of
law.
(2) An appeal may lie· under this section from an C
appellate decree passed ex-parte.
(3) In an appeal under this section, the memorandum
of appeal shall precisely state the substantial question of
law involved in the appeal. o
(4) Where the High Court is satisfied that a
substantial question of law is involved in any case, it shall
formulate that question.
(5) The appeal shall be heard on the question so E
formulated and the respondent shall, at the hearing of the
appeal, be allowed to argue that the case does not involve
such question:
Provided that nothing in this sub-section shall be
F
deemed to take away or abridge the power of the Court
to hear, for reasons to be recorded, the appeal on any
other substantial question of law, not formulated by it, if it
is satisfied that the case involves such question."
16. U.P. Act received the assent of the President on G
24.1.1951. It was published in the U .P. Gazette (Extraordinary)
dated 26.1.1951. Sub-section (4) of Section 331 has
incorporated the unamended Section 100 C.P.C. The question
that calls for consideration is whether sub-section (4) of Section
H
694 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 331 carries with it the amended Section 100 C.P.C. as well,
consequently, making it obligatory for the Board of Revenue to
frame substantial questions of law.
17. The question, therefore, calls for consideration
is whether reference to Section 100 in sub-section (4) of
B
Section 331 is by way of referential legislation or
legislation by incorporation. A subsequent legislation often
makes a reference to earlier legislation so as to make the
provisions of the earlier legislation applicable to matters
covered by later legislation. Such a legislation may either
c be (i) a referential legislation which merely contains a
reference to or the citation of the provisions of the earlier
statute; or (ii) a legislation by incorporation whereunder the
provisions of the earlier legislation to which reference is
made are incorporated into the later legislation by
D reference.
18. The question how the above two principles operate
came up for consideration in U.P. Avas Evam Vikas Parishad
v. Jainul Islam and Another (1998) 2 SCC 467 before a three-
E judge Bench of this Court and it was held as follows:
"17. A subsequent legislation often makes a
reference to an earlier legislation so as to make the
provisions of the earlier legislation applicable to matters
covered by the later legislation. Such a legislation may
F either be (i), a referential legislation which merely contains
a reference to or the citation of the provisions of the earlier
statute; or (ii) a legislation by incorporation whereunder the
provisions of the earlier legislation to which reference is
made are incorporated into the later legislation by
G reference. If it is a referential legislation the provisions of
the earlier legislation to which reference is made in the
subsequent legislation would be applicable as it stands on
the date of application of such earlier legislation to matters
referred to in the subsequent legislation. In other words,
H
STATE OF UTTARAKHAND (PREVIOUSLY STATE OF 695
UTTAR PRADESH) v. MOHAN SINGH
any amendment made in the earlier legislation after the A
date of enactment of the subsequent legislation would also
be applicable. But if it is a legislation by incorporation the
rule of construction is that repeal of the earlier statute which
is incorporated does not affect operation of the subsequent
statute in which it has been incorporated. So also any· s
amendment in the statue which has been so incorporated ·
that is made after the date of incorporation of such statute
does not affect the subsequent statute in which it is
incorporated and the provisions of the statue which have
been incorporated would remain the same as they were c
at the time of incorporation and the subsequent
amendments are not to be read in the subsequent
legislation. In the words of Lord Esher, M.R., the legal effect
of such incorporation by reference "is to write those
sections into the new Act just as if they had been actually
0
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." [See: Wood's
Estate, Re, Ch D at 615.) As to whether a particular
legislation falls in the category of referential legislation or E
legislation by incorporation depends upon the language
used in the statute in which reference is made to the earlier
legislation and other relevant circumstances. The legal
position has been thus summed up by this Court in State
of Madhya Pradesh v. M. V. Narasimhan: (SCR µ. 14 :
SCC p. 385, para 15) F
"where a subsequent Act incorporates provisions of
a previous Act then the borrowed provisions
become an integral and independent part of the
subsequent Act and are totally unaffected by any G
repeal or amendment in the previous Act. This
principle, however, will not apply in the following
cases:
(a) Where the subsequent Act and the previous Act
H
696 SUPREME COURT REPORTS [2012) 8 S.C.R
A are supplemental to each other,
(bl 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
B the subsequent Act wholly unworkable and
ineffectual; and
(d) where the amendment of the previous Act, either
expressly or by necessary intendment, applies the
c said provisions to the subsequent Act."
19. Law is, therefore, clear that a distinction has to be
drawn between a mere reference or citation of one statute into
another and incorporation. In the case of mere reference of
citation, a modification, repeal or re-enactment of the statute
D that is referred will also have effect for the statute in which it is
referred; but in the latter case any change in the incorporated
statute by way of amendment or repeal has no repercussion
on the incorporating statute.
E 20. We need not further elaborate this point, since almost
identical question came up for consideration before a three-
judge Bench of this Court in Mahindra and Mahindra Ltd. v.
Union of India and Another (1979) 2 SCC 529, wherein this
Court dealt with the scope of Section 55 of the Monopolies and
F Restrictive Trade Practices Act, 1969 read with Section 100
C.P.C., which reads as follows: ·
"55. Appeals.- Any person aggrieved by any decision
on any question referred to in clause (a), clause (b) or
clause (c) of section 2A, or any order made by the Central
G Government under Chapter Ill or Chapter IV, or, as the case
may be, or the Commission under section 12A or section
13 or section 360 or section 37, may, within sixty days
from the date of the order, prefer an appeal to the
Supreme Court on one or more of the grounds specified
H
STATE OF UTTARAKHAND (PREVIOUSLY STATE OF 697
UTTAR PRADESH) v. MOHAN SINGH
in section 100 of the Code of Civil Procedure, 1908 (5 of A
1908)."
21. This Court in the above mentioned case examined the
scope of Section 55 read with Section 100 CPC, both
amended and unamended. Section 55 provides inter alia that B
any person aggrieved by an order made by the Commissioner
under Section 13 may prefer an appeal to this Court on "one
or more of the grounds" specified in Section 100 C.P.C., 1908.
When Section 55 was enacted, namely, 27. 12. 1969, being the
day of coming into force of the Act, Section 100 C.P .C. C
specified three grounds on which a second appeal could be
brought to the High Court on one of those grounds was that the
decision appealed against was contrary to law. Therefore, if the
reference in Section 55 was to the grounds set out in the then
existing Section 100, there can be no doubt that an appeal
would lie to this Court under Section 55 on a question of law. D
The above aspects have been elaborately dealt with in
Mahindra and Mahindra (supra). The relevant portion of the
judgment is as follows:
"8 ........ It was sufficient under Section 100 as it E
stood then that there should be a question of law in order
to attract the jurisdiction of the High Court in second appeal
and, therefore, if the reference in Section 55 were to the
grounds set out in the then existing Section 100, there can
be no doubt that an appeal would lie to this Court under F
Section 55 on a question of law. But subsequent to the
enactment of Section 55, Section 100 of the Code of Civil
Procedure was substituted by a new section by Section
37 of th~ Code of Civil Procedure (Amendment) Act, 1976
with effect from 1st February, 1977 and the new G
Section 100 provided that a second appeal shall lie to the
High Court only if the High Court is satisfied that the case
involves a substantial question of law. The three grounds
on which a second appeal could lie under the former
Section 100 were abrogated and in their place only one H
698 SUPREME COURT REPORTS [2012) 8 S.C.R.
A ground was substituted which was a highly stringent
ground, namely, that there should be a substantial question
of law. This was the new Section 100 which was in force
on the date when the present appeal was preferred by the
appellant and the argument of the respondents was that
B the maintainability of the appeal was, therefore, required
to be judged by reference to the ground specified in the
new Section 100 and the appeal could be entertained only
if there was a substantial question of law. The respondents
leaned heavily on Section 8(1) of the General Clauses Act,
1897 which provides:
c
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
D 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.
and contended that the substitution of the new
E Section 100 amounted to repeal and re-enactment of the
former Section 100 and, therefore, on an application of the
rule of interpretation enacted in Section 8(1), the reference
in Section 55 to Section 100 must be construed as
reference to the new Section 100 and the appeal could be
maintained only on ground specified in the new
F
Section 100, that is, on a substantial question of law. We
do not think this contention is well founded. It ignores the
distinction between a mere reference to or citation of one
statute in another and an incorporation which in effect
means bodily letting a provision of one en·actment and
G
making it a part of another. Where there is mere reference
to or citation of one enactment in another without
incorporation, Section 8(1) applies and the repeal and re-
enactment of the provision referred to or cited has the
effect set out in that section and the reference to the
H
STATE OF UTTARAKHAND (PREVIOUSLY STATE OF 699
UTTAR PRADESH) v. MOHAN SINGH
provision repealed is required to be construed as A
reference to the provision as re-enacted. Such was the
case in fhe Collector of Customs, Madras v. Nathe/la
Sampathu Chetty (1962) 3 SCR 786 and the New Central
Jute Mills Co. Ltd. v. The Assistant Collector of Central
Excise and Ors. (1970) 2 SCC 820. But where a provision B
of one statute is incorporated in another, the repeal or
amendment of the former does not affect the latter. The
effect of incorporation is as if the provision incorporated
were written out in the incorporating statute and were a
part of it. Legislation by incorporation is a common c
legislative device employed by the legislature, where the
legislat_u~e for convenience of drafting incorporates
provisions from an existing statute by reference to that
statute l!lstead of setting out for itself at length the
provisio~s which it desires to adopt. Once the
0
incorporation is made, the provision incorporated
becomes an integral part of the statute in which it is
transposed and thereafter there is no need to refer to the
statute from which the incorporation is made and any
subsequent amendment made in it has no effect on the
incorporating statute. Lord Esher, M.R., while dealing with E
legislation in incorporation in In re. Wood's Estate (1886)
31 Ch:D. 607 pointed out at page 615:
:°If a subsequent Act brings into itself by reference
SOIT\e of the clauses of a former Act, the legal effect of that, F
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. G
Lord Justice Brett, also observed to the same effect in
Clark v. Bradlaugh (1881) 8 Q.B.D. 63, 69:
... there is a rule of construction that, where a statute
H
700 SUPREME COURT REPORTS [2012] 8 S.C.R.
A is incorporated by reference into a second statute, the
repeal of the first statute by a third statute does not affect
the second.
22. The Judicial Committee of the Privy Council in
Secretary of State for India in Council v. Hindustan Co-
8
operative Insurance Society Ltd. 58 I.A. 259 also applied the
same rule. The Judicial Committee pointed out that the
provisions of the Land Acquisition Act, 1894 having been
incorporated in the Calcutta Improvement Trust Act, 1911 and
become an integral part of it, the subsequent amendment of
C the Land Acquisition Act, 1894 by the addition of Sub-section
(2) in Section 26 had no effect on the Calcutta Land
Improvement Trust Act, 1911 and could not be read into it. Sir
George Lowndes delivering the opinion of the Judicial
Committee observed at page 267:
D
In this country it is accepted that where a statute is
incorporated by reference into a second statute, the repeal
of the first statute does not affect the second : see the
cases collected in Craies on Statute Law, 3rd edn. pp. 349,
E 350 ........ The independent existence of the two Acts is,
therefore, recognized; despite the death of the parent Act,
its offspring survives in the incorporating Act. x x x
It seems to be no less logical to hold that where
certain provisions from an existing Act have been
F incorporated 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.
G
23. This Court in Ramswarup v. Munshi and Others
(1963) 3 SCR 858, held that since the definition of "agricultural
land' in the Punjab Alienation of Land Act, 1900 was bodily
incorporated in the Punjab Pre-emption Act, 1913, the repeal
H of the former Act had no effect on the continued operation of
STATE OF UTTARAKHAND (PREVIOUSLY STATE OF 701
UTIAR PRADESH) v. MOHAN SINGH
the latter. Rajagopala Ayyangar, J., speaking for the Court A
observed at pages 868-869 of the Report:
Where the provisions of an Act are incorporated by
reference in a later Act the repeal of the earlier Act has,
in general, no effect upon the construction or effect of the
8
Act in which its provisions have been incorporated.
In the circumstances, therefore, the repeal of the Punjab
Alienation of Land Act of 1900 has no effect on the
continued operation of the Pre-emption Act and the
expression 'agricultural land' in the latter Act has to be read C
as if the definition in the Alienation of Land Act had been
bodily transposed into it.
24.ln Boiani Ores Ltd. v. State of Orissa ()974) 2 SCC
777, this Court proceeded on the same principle. There the D
question arose in regard to the interpretation of Section 2(c)
· of the Bihar and Orissa Motor Vehicles Taxation Act, 1930
(hereinafter referred to as the Taxation Act). This section when
enacted adopted the definition of 'motor vehicle' contained in
Section 2(18) of the Motor Vehicles Act, 1939. Subsequently, E
Section 2(18) was amended by Act 100 of 1956 but no
corresponding amendment was made in the definition
contained in Section 2(c) of the Taxation Act. The argument
advanced before the Court was that the definition in Section
2(c) of the Taxation Act was not a definition by incorporation
but only a definition by reference and the meaning of 'motor
F
vehicle' in Section 2(c) must, therefore, be taken to be the same
as defined from time to time in Section 2(18) of the Motor
Vehicles Act, 1939. This argument was negatived by the Court
and it was held that this was a case of incorporation and not
reference and the definition in Section 2(18) of the Motor G
Vehicles Act, 1939 as then existing was incorporation in Section
2(c) of the Taxation Act and neither repeal of the Motor Vehicles
Act, 1939 nor any amendment in it would affect the definition
of 'motor vehicle' in Section 2(c) of the Taxation Act. It is,
H
702 SUPREME COURT REPORTS [2012] 8 S.C.R.
A therefore, clear that if there is mere reference to a provision of
one statute in another without incorporation, then, unless a
different intention clearly appears, Section 8(1) would apply and
the reference would be construed as a reference to the
provision as may be in force from time to time in the former
B statute. But if a provision of one statute is incorporated in
another, any subsequent amendment in the former statute or
even its total repeal would not effect the provision as
incorporated in the latter statute. The question is to which
category the· present case belongs.
c 25. In Mahindra and Mahindra (supra), after referring to
the above mentioned judgment, this Court held as follows:
"We have no doubt that Section 55 is an instance of
legislation by incorporation and not legislation by
0 reference. Section 55 provides for an appeal to this Court
on "one or more of the grounds specified in Section 100''.
It is obvious that the legislature did not want to confer an
unlimited right of appeal, but wanted to restrict it and
turning to Section 100, it found that the grounds there set
E out were appropriate for restricting the right of appeal and
hence it incorporated them in Section 55. The right of
appeal was clearly intended to be limited to the grounds
set out in the existing Section 100. Those were the
grounds which were before the Legislature and to which
F the Legislature could have applied its mind and it is
reasonable to assume that it was with reference to those
specific and known grounds that the Legislature intended
to restrict the right of appeal. The Legislature could never
have intended to limit the right of appeal to any ground or
grounds which might from time to time find place in
G
Section 100 without knowing what those grounds were.
The grounds specified in Section 100 might be changed
from time to time having regard to the legislative policy
relating to second appeals and it is difficult to see any valid
reason why the Legislature should have thought it
H
STATE OF UTIARAKHAND (PREVIOUSLY STATE OF 703
UTTAR PRADESH) v. MOHAN SINGH
necessary that these changes should also be reflected in A
Section 55 which deals with the right of appeal in a totally
different context. We fail to appreciate what relevance the
legislative policy in regard to second appeals has to the
right of appeal under Section 55 so that Section 55 should
be inseparably linked or yoked to Section 100 and B
whatever changes take place in Section 100 must be
automatically read into Section 55. It must be remembered
that the Act is a self-contained Code dealing with
monopolies and restrictive trade practices and it is not
possible to believe that the Legislature could have made c
the right of appeal under such a code dependent on the
vicissitudes through which a section in another statute
might pass from time to time. The scope and ambit of the
appeal could not have been intended to fluctuate or vary
with every change in the grounds set out in Section 100.
0
Apart from the absence of any rational justification for
doing so, such an indissoluble linking of Section 55 with
Section 100 could conceivably lead to a rather absurd and
startling result. Take for example a situation where
Section 100 might be repealed altogether by the E
Legislature-a situation which cannot be regarded as wholly
unthinkable. It the construction contended for on behalf of
the respondents were accepted, Section 55 would in such
a case be reduced to futility and the right of appeal would
be wholly gone; because then there would be rio grounds
on which an appeal could lie. Could such a consequence F
ever have been contemplated by the Legislature? The
Legislature clearly intended that there should be a right of
appeal, though on limited grounds, and it would be absurd
to place on the language of Section 55 an interpretation
which might, in a given situation, result in denial of the right G
of appeal altogether and thus defeat the plain object and
purpose of the section. We must, therefore, hold that on a
proper interpretation the grounds specified in the then
existing Section 100 were incorporated in Section 55 and
the substitution of the new Section 100 did not affect or H
704 SUPREME COURT REPORTS .[2012] 8 S.C.R.
A restrict the grounds as incorporated and since the present
appeal admittedly raises questions of law, it is clearly
maintainable under Section 55. We may point out that
even if the right of appeal under Section 55 were restricted
to the ground specified in the new Section 100, the present
B appeal would still be maintainable, since ii involves a
substantial question of law relating to the interpretation of
Section 13(2) .................. "
26. We are of the view that the principle laid down in
Mahindra and Mahindra and the judgments referred to earlier
C clearly apply when we interpret sub-section (4) of Section 331
of the U.P. Act. Sub-section (4), as we have already indicated,
has used the expression "on any of the grounds" specified in
Section 100 of the C.P.C. Consequently, the then existing
Section 100 (i.e. section 100, as it existed in 1908
D unamended) was incorporated in sub-section (4) of Section
331 and substitution of the new Section 100 does not affect or
restrict the grounds as incorporated. The right of appeal to the
Board of Revenue under sub-section (4) of Section 331 clearly
intended to be limited to the grounds set out in the then existing
E Section 100, since those were the grounds which were before
the Legislature and to which the Legislature could have applied
its mind and it is reasonable to assume that it was with
reference to those specific and known grounds that the
Legislature intended to limit the right of appeal.
F
27. The appeal before the Board of Revenue would,
therefore, lie on a question of law. This legal aspect was not
considered properly either by the Board of Revenue or by the
High Court. Further, we also notice that the Board of Revenue
G has not examined the provisions of the land record and Lekhpal
Diary No., date and P.A. 10. The Additional Commissioner had
specifically noticed that P.A.10 which had been filed pertaining
to year 1976 did not bear any signature and the same was
found to be doubtful, as to whether the original 'Kashtkar' (tillers)
of the land in dispute belonged to Tharu tribe, was also not
H
STATE OF UTTARAKHAND (PREVIOUSLY STATE OF 705
UTTAR PRADESH) v. MOHAN SINGH
properly examined. Further, the Board of Revenue also should A
have examined whether the land belonged to Tharu tribe and
the plaintiff could claim the benefit of Section 210 of the U.P.
Act. All these aspects are very vital for a proper and just
adjudication of the dispute, which has not been done.
B
28. In such circumstances, we are inclined to allow the
appeals and set aside the order passed by the High Court as
well as that of the Board of Revenue and the matter is
remanded to the Board of Revenue for fresh consideration, in
accordance with law. However, we are. not expressing any C
opinion on the merits of the case, since we are remitting the
matter to the Board of Revenue. The Board of Revenue will
pass the final orders within a period of three months from the
date of receipt of this order.
K.K.T. Appeals allowed. D
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