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2010 Supreme(UK) 408
2010 (2) UAD 813
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Tarun Agarwala and Hon’ble Mr. Justice V.K. Bist
Special Appeal No. 02 of 2009
STATE OF UTTARAKHAND & ANR. – Appellants
Versus
M/S SKI AND SNOW RESORTS PVT. LTD. – Respondent
Decided on : 09.07.2010
Headnote:Practice and Procedure — Device of legislation — Legislation by reference — And regislation by incorporation — Held that if there is a mere reference to a provision of one statute in another without incorporation — Then, unless a different intention appears, the reference would be construed as a reference to the provision as may be in force from time to time in the former statute — But if a provision of one statute is bodily lifted and incorporated in another — Any subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the latter statute — Also, in order to ascertain as to whether a particular legislation is made by way of reference or by way of incorporation — Court has to see the legislative intention and the language used in the section.
(Paras 22 to 28)
O;ogkj vkSj izfd;k & fof/k fuekZ.k dh eqfDr & funsZ'kkuqlkj fof/k fuekZ.k & vkSj lekos'k }kjk fof/k fuekZ.k & fu.kZ; esa dgk x;k ;fn fdlh dkuwu ds izkfo/kku dk fcuk lekos'k fd;s ek= funsZ'k gh gS rc tc rd dksbZ fHké bjknk fofnr uk gks rks ml funsZ'k dk rkRi;Z mlh izkfo/kku ds funsZ'k ls gksxk tks iqjkus dkuwu esa le; le; ij iz;qDr gksrk jgk gS & ijUrq ;fn fdlh dkuwu dk izkfo/kku laiw.kZ :i esa mBk;k tkrk gS vkSj mls nwljs esa lekosf'kr fd;k tkrk gS rks igys dkuwu esa fd;k x;k okn esa la'kks/ku vFkok bl ds iw.kZr;k fujflr gks tkus ls ckn okys dkuwu esa lekosf'kr izkfo/kku dks izHkkfor ugha djsxk & ;g lqfuf'pr djus ds fy, fd dksbZ [kkl fof/k fuekZ.k funsZ'kkuqlkj fd;k x;k gS vFkok lekos'k }kjk] ds fo"k; esa U;k;ky; dks fo/kkf;dk dh fu;r vkSj mlesa iz;qDr Hkk"kk dks Hkh le>uk@ns[kuk gksxkA ¼izLrj 22 ls 28½
[Per : Hon’ble Tarun Agarwala, J.]
The present special appeal has been filed by the State of Uttarakhand against the judgment dated 30th September, 2008 passed by the learned Single Judge in Writ Petition No. 180 of 2008 (M/S) by which the learned Single Judge has quashed the proceedings initiated by the Assistant Collector under Section 166 & 167 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the UPZA & LR Act).
2. The facts leading to the filing of the Special Appeal is that Dr. Vijay Singh Pal and Arun Singh, belonging to the Scheduled Tribes community, sold plot nos. 15, 16 and 17 measuring 15 naali and 12 muthi (0.315 hectares) by means of a sale deed dated 24.04.1996 to the writ petitioner M/s Ski & Snow Resorts Pvt. Ltd., which is a company duly incorporated under the Companies Act and which is engaged in tourism and hospitality business. Subsequent to the sale deed, the land was declared non-agriculture under section 143 of the UPZA & LR Act, upon which the writ petitioner (now ‘opposite party’ in this Special Appeal) constructed a resort at Auli in District Chamoli under the name and style of M/s Ski & Snow Resort, which is alleged to be registered under the Sarai Act. It is alleged that the tourism department of the State Government proposed acquisition of the land at Auli for promoting winter games, but, subsequent upon the representation of the writ petitioner, the State Government excluded the land of the petitioner from acquisition. The State Government also constructed a winter resort at the same place, namely at Auli and, it is alleged that there was some dispute with regard to the demarcation of the land in which proceedings have been initiated and certain portion constructed by the petitioner was demolished. In this regard, the writ petitioner has filed a suit, which is pending consideration before the Civil Judge (Junior Division), Gopeshwar in District Chamoli.
3. In the meanwhile, the Revenue Inspector, Joshimath submitted a report dated 28.11.2007 and the Tehsildar also submitted a report dated 30th November, 2007 indicating therein that Dr. Vijay Singh Pal, being a member of the Scheduled Tribes community, was debarred from selling the land to a person outside his community under Section 157-B of the UPZA & LR Act. The report submitted by the Revenue Inspector and the Tehsildar indicated that Dr. Vijay Singh Pal had illegally transferred the land to the petitioner, who did not belong to the Scheduled Tribes community and that the sale deed executed was in violation of the provision of Section 157-B of the UPZA & LR Act. On the basis of the said reports, the Assistant Collector, Joshimath, District Chamoli registered a case under Section 166 and 167 of the UPZA & LR Act, being case No. 6 of 2007-2008, and issued notices to Dr. Vijay Singh Pal and his nephew as well as to the writ petitioner to show cause as to why the land should not vest in the State Government for the contravention of the provision of Section 157-B of the UPZA & LR Act. It transpires that Dr. Vijay Singh Pal filed his reply before the authority admitting that he was not aware of the provision of section 157-B of the UPZA & LR Act and that he was not aware that previous permission was required to be obtained from the Collector before transferring the property to the writ petitioner. The writ petitioner, instead of filing a reply, preferred Writ Petition No. 180 of 2008 (M/S) praying for the quashing of the proceedings initiated by the Assistant Collector under Section 166 & 167 of the UPZA & LR Act. The said writ petition was entertained and, eventually, the learned Single Judge, by the impugned judgment, quashed the proceedings.
4. The State Government, being aggrieved by the aforesaid judgment, preferred a Special Leave Petition before the Supreme Court of India and, upon an objection being raised by the writ petitioner with regard to the maintainability of the Special Leave Pet
