1. Property acquisition for road widening under a development scheme — Challenge to validity regarding the definition of damaged area under the Punjab Development and Damaged Areas Act, 1951. (Para 2 )
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1962 Supreme(SC) 133
SUPREME COURT OF INDIA
4th April, 1962
B.P.SINHA, C.J.I. K. SUBBA RAO, N. RAJAGOPALA AYYANGAR, J.R. MUDHOLKAR AND T.L. VENKATARAMA AYYAR, JJ.
Trust Mai Lachhmi Sialkoti Bradari, Appellant
Versus
Chairman, Amritsar Improvement Trust and others, Respondents.
Civil Appeal No. 331 of 1961
Advocate appeared
Mr. S. P. Sinha, Senior Advocate, (Mr. M.K Madan, Advocate, with him), for Appellant; M/s. Har Parshad and J.P. Goyal, Advocates, for Respondents Nos. 1 and 2; Mr. S. M. Sikri, Advocate-General for the State of Punjab and Mr. N. S. Bindra, Senior Advocate, (Mr. P. D. Menon; Advocate, with them), for Respondent No. 3.
Advocates:
HAMID QURESHI, J.P.GOYAL, M.K.Madan, N.S.BINDRA, P.D.MENON, S.M.Sikri, S.P.SINHA
HAMID QURESHI, J.P.GOYAL, M.K.Madan, N.S.BINDRA, P.D.MENON, S.M.Sikri, S.P.SINHA
A notification issued under a temporary statute that expires by efflux of time is not deemed to be issued under a subsequent permanent statute without express repeal and re-enactment. Statutory conclusive evidence clauses cannot validate actions taken in total lack of jurisdiction.
Headnote:(A) Development and Damaged Areas Act, 1951 - Section 2(d) - Definition of "damaged area" - Section 3 - Framing of schemes for development - Section 5(4) - Conclusive evidence of sanction - Damaged Areas Act, 1947 - Damaged Areas Act, 1949 - General Clauses Act - Section 22 - Repeal and re-enactment - Notification issued under a temporary act not deemed to be issued under a subsequent permanent act in the absence of express repeal. (Paras 4, 8, 9)
(B) Jurisdiction - Where a scheme is framed for an area that does not fall within the statutory definition of a "damaged area", there is a total lack of jurisdiction - Conclusive evidence clause under the Act cannot cure a total lack of jurisdiction. (Para 10)
Facts of the case:
An improvement trust sought to acquire property for road widening under a development scheme framed under a 1951 Act. The property was located in an area declared as a "damaged area" via a notification issued under a 1947 Act. The 1951 Act defines "damaged area" as those notified by the state government or those already notified under a 1949 Act. The 1947 Act was a temporary measure that lapsed. It was contended that the 1947 Act was repealed and re-enacted by the 1949 Act, making the 1948 notification valid under the 1949 Act.
Findings of Court:
The court found that the 1947 Act was a temporary enactment that expired by efflux of time and was not expressly repealed. The doctrine of implied repeal does not apply where two statutes are identical and run parallel. Consequently, the relevant section of the General Clauses Act regarding repeal and re-enactment is not attracted. The notification issued under the 1947 Act cannot be deemed a notification under the 1949 Act.
Issues: Whether a notification issued under a temporary act could be considered a notification under a subsequent act for the purpose of the definition of "damaged area" in a later act, and whether a conclusive evidence clause can validate a scheme framed without jurisdiction.
Ratio Decidendi: A notification issued under a temporary statute that lapses cannot be deemed to have been issued under a subsequent permanent statute unless there is an express repeal and re-enactment. A statutory provision providing conclusive evidence of the sanction of a scheme cannot validate the scheme if the authority lacked the basic jurisdiction to frame it.
Result: Appeal allowed.
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Table of Contents
2. Whether a notification under the 1947 Act is deemed a notification under the 1949 Act via the General Clauses Act to satisfy the 1951 Act's definition. (Para 5 , 8 )
3. Temporary statutes lapsing do not constitute repeal; identical statutes do not imply repeal; the 1951 Act's definition of damaged area excludes notifications issued under the 1947 Act. (Para 6 , 7 , 8 , 9 )
4. A notification under a lapsed temporary statute is not saved by a subsequent identical permanent statute unless expressly provided or through valid repeal and re-enactment. (Para 8 , 9 )
5. Acquisition proceedings held illegal and ultra vires due to lack of jurisdiction to frame a scheme for an area not defined as a damaged area. (Para 9 , 10 )
6. Does the lapse of a temporary statute constitute a repeal for the purpose of the General Clauses Act?
No. The court held that where a temporary enactment expires by efflux of time, there is no repeal to attract the application of rules of construction such as Section 22 of the Punjab General Clauses Act. (Para 8 )
7. When does the doctrine of implied repeal apply to two identical statutes?
Implied repeals are not favored. Where two statutes are entirely affirmative and identical, no inconsistency exists, and thus there is no scope for invoking the doctrine of implied repeal. (Para 8 )
8. Does a conclusive evidence clause validate a scheme framed without jurisdiction?
No. A clause providing that publication is conclusive evidence of a scheme's validity cannot cure a total lack of jurisdiction, such as framing a scheme for an area not legally defined as a damaged area. (Para 10 )
Judgment
AYYANGAR, J. : The point arising for decision in this appeal by special leave is a very short one and refutes to the proper construction of the definition of damaged area in S. 2(d) of the Punjab Development and Damaged Areas Act, 1951 which will hereafter be referred to as the Act.
2. A few facts are necessary to be stated in order to appreciate how this point arises. The appellant claims to be the trustee of a public Trust created for the management of certain properties situated in Amritsar. Of the properties belonging to the trust is one which is said to be a dharamshala. By a resolution of the Amritsar Improvement Trust dated March 21 1957 the Improvement Trust decided to acquire a portion of this property for the purpose of widening a road under a development scheme framed under S. 3 of the Act. This section enacts:
"3. The trust may frame a scheme or schemes for the development of a damaged area, providing for all or any of the matters mentioned in Section 28 of the Punjab Town Improvement Act, 1922; and any scheme already framed or sanctioned in respect of a damaged area under the provisions of that Act shall be deemed to have been framed or sanctioned under this Act."
Section 4 makes provision for the publication of the schemes setting out with particularity the properties which would be affected by the scheme and specifying the period within which the objections to the scheme would be received. Section 5 makes provision for the consideration of the objections which might be put forward under S. 4 and sub-ss. (3) and (4) of this section read:
"5. (3) The State Government shall then notify the scheme, either in original or as modified by it and the scheme so published shall be deemed to be the sanctioned scheme.
(4) The publication under sub-section (3) shall be conclusive evidence that a scheme has been duly framed and sanctioned."
Thereafter S. 6 proceeds to make provision for the acquisition of property in the damaged area" and there are other provisions as regards the ascertainment and payment of compensation but as these are not relevant to the appeal, no reference to them is needed.
3. It is common ground that a scheme has been framed under S. 3 and this has been finalised after considering objections. It was in pursuance of this scheme that the Improvement Trust took steps to effect the acquisition of the property bearing Municipal No. 2320/1, 884/9 belonging to the appellant-trust. The appellant filed a suit for a declaration that the acquisition proceedings were illegal and ultra vires and for a permanent injunction restraining the Improvement Trust from proceeding with the acquisition. The suit was, however, withdrawn by reason of a Consent Memo which was filed and subsequently the appellant filed a petition under Art. 226 of the Constitution in the Punjab High Court challenging the validity of the action of the Improvement Trust and praying for appropriate reliefs quashing the proceedings for the acquisition. The petition, however, was summarily dismissed by the High Court by order dated April 20, 1961. The further petition fled by the appellant praying for a certificate of fitness under Art. 133 (1) (c) was also dismissed. Thereafter the appellant obtained special leave of this Court to prefer an appeal against the Judgment of the High Court and that is how the appeal is now before us.
4.Though several points have been taken in the memorandum of appeal to this Court, learned Counsel confined his arguments to only one point to which we shall refer immediately and which alone requires to be dealt with in the appeal. We have already pointed out that the acquisition now sought to be made and which, it is contended, is illegal and not justified by law, is under a scheme which has been framed under S. 3 of the Act. Under the terms of the provision the Improvement Trust could frame a scheme only for the development of "a damaged area". "Damaged area" is defined in the Act by S. 2 (d) which runs:
2. (d) Damaged A
