Dr. Mohammad Tahir vs State Of U.P. And Ors. [Alongwith ...

JUDGMENT R.K. Agrawal, J.

1. Disagreeing with a decision of a Co-ordinate Bench in the case of Dr. Abdul Quayum Khan v. State of U.P. and Ors., (1994) 1 UPLBEC 402, a Division Bench of this Court has referred the matter to a Larger Bench for reconsideration of the view expressed in the aforementioned cases.

2. In the case of Dr. Abdul Quayum Khan (supra), this Court has held that Section 50(1-B) of the U.P. State Universities Act, 1973 (hereinafter referred to as "the Act"), As inserted by the U.P. State Universities (Amendment) Act. 1987 (U.P. Act No. 19 of 1987) hereinafter referred to as (the Amendment Act 2), has made applicable the First Statutes of the University of Gorakhpur which was in force immediately before the establishment of the Purvanchal University, to the Purvanchal University (Which was established on 2nd October, 1987) and any amendments and modifications made in the First Statutes of the University of Gorakhpur subsequent to that date will not be applicable to the Purvanchal University unless and until the State Government, by notification, provides. The Division Bench while coming to the aforesaid conclusion has held that the words "as in force immediately before the establishment of the said University" have to be given fulll meaning and irresistible conclusion is that the First Statutes of the University of Gorakhpur as in force immediately before 2nd October, 1987, shall apply to the Purvanchal University. It further held that the expression "subject to such adaptations and modifications as the State Government may, by notification, provide empowers the State Government to issue notification directing the First Statutes of the University of Gorakhpur subject to such adaptations and modifications as were considered proper, would apply to the Purvanchal University but a separate notification made specifically for the University will have to be issued and as no notification with regard to the Purvanchal University notifying its Statutes has been issued so far either with adaptations and modifications or without any adaptation and modification, the amendments made in the Statutes of the University of Gorakhpur on or after 2nd October, 1987, would not apply to the former University.

3. The Division Bench while disagreeing with the decision in Dr. Abdul Quayum Khan (supra) has observed that the phrase "shall apply to it subject to such adaptations and modifications as the State Government may, by notification, provide" has been used in Sub-section (1) of Section 50 in more or less the same manner as it has been used in Sub-section (1-B). The educational qualification for appointment of Lecturer in the University of Gorakhpur can and should not be interpreted differently when it goes to appointment of a Lecturer in the Purvanchal University or in the college affiliated to either of these two Universities. There would be no justification for permitting the Board to relax the minimum qualifications of teachers of the Purvanchal University or any affiliated College thereof whereas those have to be adhered to for the teachers to be appointed in the University of Gorakhpur or colleges affiliated thereof and, therefore, the applicability of the aforesaid phrase must necessarily mean and govern the Statutes of the University of Gorakhpur and because the First Statutes of Purvanchal University having not yet been framed, the Statutes of the University of Gorakhpur must be held to apply to the Purvanchal University with all such adaptations and modifications as the State Government may by notification, provide in the Statutes of the University of Gorakhpur from time to time. Further, the educational standard of Gorakhpur and Purvanchal Universities or affiliated colleges to either of these two, cannot be permitted to differently viewed vis-a-vis appointment of Lecturer in various disciplines. It further held that the proposition that separate adaptation or modification notification has to be issued by the State Government in applying the Statutes of the University of Gorakhpur to the Purvanchal University, is not warranted and it is difficult to imagine how and why such distinction is permissible particularly when there is no qualifying expression which could have made permissible such segregated applicability of the provisions, According to the Division Bench, if the Legislature would have intended that all amendments made in the Statutes of the University of Gorakhpur would apply to the Purvanchal University, it could have used several different expressions or language to convey such a meaning and to them it appears that the aforesaid phrase governs the Statutes of the University of Gorakhpur, as amended from time to time, which have to apply to the Purvanchal University and if the argument of the petitioner is accepted, the Legislature would have added the .words "for its applicability on Purvanchal University" at the ends of sentence instead the Legislature has used a full stop after the word "provide".

4. As the question raised in all the three writ petitions and referred to us is common, for deciding the issue, we have treated Civil Misc. Writ Petition No. 25953 of 2000, Dr. Mohammed Tahir v. State of U.P. and Ors., as the leading case and give out the facts of the said writ petition.

5. In the District of Azamgarh, there is an institution, known as Shibli National Post Graduate College (hereinafter referred to as "the Institution") which, at present, is affiliated to Veer Bahadur Singh Purvanchal University (hereinafter referred to as "the Purvanchal University"). The institution was earlier affiliated to the University of Gorakhpur and with the establishment of the Purvanchal University in the year 1987, it was affiliated with the Purvanchal University.

6. Taking into consideration the demand for establishing a new University in the eastern region of the State, the State Government decided to set up a University at Jaunpur, to be known as the Purvanchal University, which would be an affiliating University having in its jurisdiction the Districts of Azamgarh, Ballia, Ghazipur, Jaunpur, Mirzapur and Varanasi, which districts were earlier within the jurisdiction of the University of Gorakhpur. In order to achieve the aforementioned object, the State Government decided to amend the Act. The State Legislature enacted the Amendment Act. By Section 2 of the Amendment Act, Section 4 of the Act which provided for establishment of new Universities and alteration of the areas or names of Universities was amended. Clause (d) was added in Section 4(1-A), which reads as follows :

"(d) a University to be known as Purvanchal University at Jaunpur."

7. Subsequently, by way of amendment by the U.P. Act No. 11 of 1999, the name of the Purvanchal University was changed to Vir Bahadur Singh Purvanchal University, Jaunpur.

8. Section 50 of the Act which provided for framing of the Statutes and empowered the State Government to frame the First Statutes of the University, was also amended. By Section 4 of the Amendment Act, a new Sub-section (1-B) was inserted which provides that "until the First Statutes of the Purvanchal University are made under this section, the Statutes of the University of Gorakhpur, as in force immediately before the establishment of the said University shall apply to it subject to such adaptations and modifications as the State Government may, by notification, provide." The Purvanchal University was established on 2nd October, 1987. There had been certain amendments in the First Statutes of the University of Gorakhpur after 2nd October, 1987.

9. The Committee of Management of the Institution advertised posts of Lecturers in various disciplines. Dr. Mohammad Tahir applied for the post of Lecturer in Urdu. His academic qualifications are as follows :

11. It may be mentioned here that Statute 11.13 of the First Statutes of the University of Gorakhpur deals with the qualifications and appointment of teachers in the affiliated colleges. Statute 11.13(1) provides for the minimum qualifications for the post of Lecturer in Faculties of Arts, Commerce and Science, except the Department of Fine Arts and Music, which is a M.Phil, degree or a recognised degree beyond Masters leval or published work indicating the capacity of a candidate for independent research work and consistently good academic record with at least first or high second class Master's degree or an equivalent degree of a Foreign University, in a relevant subject. Sub-clause (5) of Statute 11.13 empowers the Selection Committee to relax any of the qualifications prescribed in Sub-clause (b) of Clause (1). It provides that "if the Selection Committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard, it may relax any of the qualifications prescribed in Sub-clause (b) of Clause (1)....................." Statutes 11.13(1) and (5) of the University of Gorakhpur are reproduced below :

"11.13 (1) In the case of any college affiliated with the University, the following shall be the minimum qualifications for the post of a Lecturer in Faculty of Arts (except the Department of Fine Arts and Music) and the Faculties of Commerce and Science; namely :

(a) An M.Phil., degree or a recognised degree beyond Masters level or published work indicating the capacity of a candidate for independent research work; and

(b) Consistently good academic record with at least first or high second class Master's degree or an equivalent degree of a Foreign University, in a relevant subject."

"(5) If the Selection Committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard, it may relax any of the qualifications prescribed in Sub-clause (b) of Clause (1), or Sub-clause (b) of Clause (2), as the case may be."

12. The aforementioned Statute was in force at the time when the Purvanchal University was established i.e., on 2nd October, 1987. By notification dated 3rd March, 1989, published in the U.P. Gazette Extraordinary on the same date, the State Government amended the First Statutes of the Gorakhpur University. (Thirty Second Amendment) First Statutes, 1989. It substituted Statute 11.13. Clause (1) of the Statute 11.13, as substituted in 1989, reads as follows :

"(1) In the case of any college affiliated with the University the minimum qualifications for the post of Lecturer in the Faculties of Arts (except the Department of Fine Arts and Music) and the Faculties of Agriculture, Commerce and Science shall be Master's degree or an equivalent degree of a Foreign University in the relevant subject with at least 55 per cent marks or its equivalent grade and consistently good academic record."

13. The existing Clause (5) was substituted for the following :

"For purpose of this Statute, the expression consistently good academic record; in relation to the Faculty of Education or Faculty of Law or other Faculties, shall have the same meaning as given to it in Sub-clause (a) or Sub-clause (b) or Sub-clause (e) of Clause (5) of Statute 11.01, as the case may be."

14. Sub-clause (a) of Clause (5) of Statute 11.01, as inserted by the Thirty Second Amendment in the First Statutes of the University of Gorakhpur on 3rd March, 1989, provided that:

"(a) a candidate (other than a candidate for lecturership in the Faculties of Education and Law) having obtained either 55 per cent marks in Bachelor's Degree examination and second class in Intermediate examination, or 50 per cent marks in each of the two examinations separately, is said to have consistently good academic record.

15. Thus, the power of relaxation given to the Selection Committee in earlier Clause (b) of Statute 11.13(1), was taken away and now the Selection Committee had no power to relax the academic qualifications at all and what would be consistently good academic record, has also been provided in the First Statutes of the Gorakhpur University, as amended on 3rd March, 1989.

16. If it is held that the amendment made by the State Government in 1989 in the First Statutes of the University of Gorakhpur are not applicable to the Purvanchal University and only the First Statutes, as it stood on 2nd October, 1987, i.e., the date on which the Purvanchal University was established, is applicable then the Selection Committee had the power to relax the academic qualifications. Further, what is a consistently good academic record was not defined earlier and it was for the Selection Committee to evaluate and Judge for itself as to whether a candidate had consistently good academic record or not. However, if it is held that the amendment made in the First Statute of the Gorakhpur University on 3rd March, 1989 is also applicable to the Purvanchal University then what is consistently good academic record has been defined and the Selection Committee had no power to relax any academic qualification while making selection.

17. We have heard Sri Ashok Khare, learned Senior Counsel, assisted by Servsri P.M. Ojha, J.P. Singh, A.A. Khan, learned Advocates for the petitioners; Sri Sudhir Agrawal, learned Additional Advocate General, assisted by Sri A. Upadhyaya, learned Standing Counsel, on behalf of the State of U.P., Sri Anil Tiwari, learned Counsel for the Purvanchal University and Sri Neeraj Tripathi, learned Counsel for the Chancellor.

18. Sri Ashok Khare, learned Senior Counsel, submitted that the Universities established in the State of U.P. are autonomous bodies. They enjoy full freedom to enroll the students, to impart education according to their syllabus, to select and appoint teachers, to conduct research works and to confer degrees subject to the legislative enactments made by the State of U.P. and the Parliament of India. According to him, prior to enactment of the Act, the existing Universities established in the State of U.P. were governed by separate enactments. With the coming into force of the Act on 2nd September, 1973, earlier enactments were repealed. Now the Act governs the Universities of Lucknow, Allahabad, Agra, Gorakhpur, Kanpur, Meerut, Sampurnanand Sanskrit Vishwavidyalya at Varanasi, Bundelkhand University at Jhansi, Dr. Ram Manohar Lohia University at Faizabad, Mahatma Jyotiba Phule University at Bareilly and Vir Bahadur Singh Purvanchal University at Jaunpur. The autonomous functioning of these Universities has not been impaired at all. He referred to Section 3 of the Act which provides for each University to have perpetual succession and a common seal and can sue and be sued by its name. Section 5 of the Act provides for territorial exercise of powers of each University whereas Section 7 of the Act provides for the powers and duties. Section 19 of the Act describes as to who are the authorities of the University and each of the authorities so mentioned have been constituted, assigned and given powers separately. According to him, under Section 23 of the Act, the Court of the University has been constituted as an advisory body and has been given power to review from time to time the Board policy and programme of the University and to suggest measures for improvement and development of the University. Thus, he submitted that the Purvanchal University being an autonomous body, would be governed by the Statutes which may have been framed by the State Government under Section 50 of the Act. Under Sub-section (1-B) of Section 50 of the Act, only the First Statutes of the University of Gorakhpur which was in force on the date of establishment of the Purvanchal University, i.e., 2nd October, 1987, was made application to the Purvanchal University and not any subsequent amendment made in the First Statutes of the University of Gorakhpur, unless the same has been specifically notified by the State Government for the Purvanchal University. He submitted that the University Grants Commission constituted under the University Grants Commission Act lays down and prescribes the qualifications, academic standard and other matters which are necessary to be followed and complied with by the University fails to comply or to follow, it can be de-recognised or the financial aid may be stopped by the University Grants Commission. He further submitted that under Section 50(1) of the Act, the First Statutes of the Purvanchal University has to be made by the State Government and till such time the First Statutes are not made, the Statutes as in force immediately before the commencement of the Act in respect of the existing University, in so far as they are not inconsistent with the provisions of the Act, subject to such adaptation and modification as the State Government may, by notification, provide in the Gazette, shall continue in force. Under Sub-section (1-A), the State Government was empowered to amend the First Statutes upto 31st December, 1990. However, under Sub-section (2), the Executive Council was empowered to make new or additional Statutes or amend or repeal the Statutes referred to in Sub-section (1) or Sub-section (1-A), subject to certain limitations as provided in Sub-sections (3), (4) and (5). He further submitted that under Sub-section (5), the State Government has been empowered to issue any direction to the Executive Council to make new or additional Statutes or amend or repeal any Statute, to be in conformity with the direction given by the State Government in certain circumstances, and upon failure of the Executive Council to comply, the State Government, with the assent of the Chancellor, can make new or additional Statutes. He thus, submitted that the power to make Statutes have been well defined under Section 50 of the Act. According to him, till such time the First Statutes have not been framed by the State Government, only those Statutes of the University of Gorakhpur, which were in force on 2nd October, 1987, shall apply to the Purvanchal University. He thus, submitted that the State Government having not issued any notification applying the provisions of the amendment made in the First Statutes of the University of Gorakhpur in the year 1989 to the Purvanchal University, each of the petitioners had the requisite qualifications and possess consistently good academic record and it was open to the Selection Committee to relax the academic qualifications in a particular case and, therefore, the Vice Chancellor was not justified in declining to grant approval to the selection made on the posts of Lecturers in the Institution.

19. He further submitted that in the present case by Section 50(1-B) of the Act, the First Statutes of the University of Gorakhpur, as was in force on the date of establishment of the Purvanchal University, i.e., on 2nd October, 1987, have been incorporated and, therefore, any subsequent amendment in the First Statutes of the University of Gorakhpur shall not be applicable to the Purvanchal University unless the State Government specifically notifies the same. In support of his submissions he relied upon the following decisions :

(i) State of Kerala v. Atessee (Agro Industrial Trading Corporation, 1989 Supp. (1) SCC 733; (ii) Gauri Shanker Gaur and Ors. v. State of U.P. and Ors., (1994) 1 SCC 92 : AIR 1994 SC 169.

20. He further submitted that till such time the State Government did not issue any notification adopting the amendments made in the First Statute of the University of Gorakhpur, which have been amended on or after 2nd October, 1987, the Vice Chancellor had committed a manifest error in declining to grant approval to the selection made by the Selection Committee by relying upon the amended Statutes 11.13(1), (5) and (6) of the First Statutes of the University of Gorakhpur. In support thereof, he relied upon a decision of the Hon'ble Supreme Court in the case of All Kerala Private College Teachers' Association v. Nair Service Society and Ors., (1994) 5 SCC 479.

21. According to him, full meaning has to be given to the specific words used by the State Legislature and cannot be rendered nugatory by giving undue importance to the object of making applicable the amended provisions of the First Statutes of the University of Gorakhpur, as has been done by the Division Bench while referring the question to the Larger Bench. He relied upon the decision of the Hon'ble Supreme Court in the case of Bharathidasan University and Anr. v. All India Council for Technical Education and Ors., (2001) 8 SCC 676.

22. Sri Sudhir Agrawal, learned Additional Advocate General submitted that the Act has been enacted by the State Legislature to bring uniformity in all the University in the State whether existing or created subsequently and all existing enactments which govern individual University established by State of U.P., were repealed. He submitted that from the working of the First Statutes of all the Universities, it was felt by the State Government that there is no fixed standard or guidelines which are being applied by the Selection Committee for relaxing the academic qualifications of a candidate or finding our the consistently good academic record possessed by the candidate and, therefore, the State Government had amended the First Statutes or all the Universities in the State of U.P. which are governed by the Act deleting the provisions which empowered the Selection Committee to relax the academic qualifications. According to him, as the First Statutes of the Purvanchal University had not been framed by the State Government and under Section 50(1-B) of the Act the First Statutes of the University of Gorakhpur had been made applicable, the amended First Statutes of the University of Gorakhpur which have been notified by the State Government would be applicable to the Purvanchal University also, thus bringing it at pasr with other Universities in the matter of making selection and appointment of teachers. He submitted that it is not at all required to separately notify the amendments made in the First Statutes of the University of Gorakhpur for being applied to the Purvanchal University. He further submitted that the words of Section 50(1-B) has to be read as it is and the Court should not add or subtract any words from the said Sub-section while interpreting it. He submitted that the words "Purvanchal University", as added by this Court in the case of Dr. Abdul Quayum Khan (supra) could not have been added otherwise it would be doing violence to the plain language of the Sub-section itself. According to him, under Section 50 of the Act, the power has been given to the State Government to frame the First Statute of the Universities governed by the Act and till such time the First Statutes are made, the existing Statutes which are in force immediately before the commencement of the Act were applicable with such adaptations and modifications as the State Government may provide in the Gazette by a notification. He submitted that under Sub-section (1-A) the State Government has been empowered to amend the First Statutes at any time upto 31st December, 1990, whereas under Sub-section (1-B) while applying the First Statutes of the University of Gorakhpur as in force immediately before the establishment of the Purvanchal University, the State Government had exercised the powers vested in it under Sub-section (1-A) and amended the First Statutes of the University of Gorakhpur and upon notification in the Official Gazette, it automatically applied to the Purvanchal University also. He submitted that the words "adaptations and modifications" have to be given a very wide meaning as it includes repeal, amendment, addition as may be necessary and expedient. The words "subject to such adaptations and modifications as the State Government may by notification in the Gazette provide" occur both in Sub-section (1) and Sub-section (1-B) and the same meaning has to be given to it. It cannot have a different meaning assigned to it while interpreting the provisions of Sub-section (1) and Sub-section (1-B). Thus, he submitted that the adaptations and modifications have to be in the First Statutes of the concerned University which have to be notified. According to him, Sub-section (1-B) is a piece of legislation by reference and not a legislation by incorporation and, therefore, all subsequent amendments are automatically applicable. In support of his aforesaid submission, he relied upon a decision of the Hon'ble Supreme Court in the case of Maharashtra State Road Transport Corporation v. State of Maharashtra and Ors., 2003 (4) SCC 200. He further submitted that if the interpretation, as canvassed by him, is not given to Sub-section (1-B) of the Act, then the position would be that in all other Universities in the State of U.P. governed by the Act, except the Purvanchal University, in respect of making selection of teachers, consistently good academic record which has been defined as 55% in Bachelor Degree and second class in Intermediate examinations or 50% marks in each of the two examinations separately, shall be applicable whereas in respect of the Purvanchal University it is not required that the candidate should have obtained 55% in Bachelor's Degree and second class in Intermediate examination or 50% marks in Intermediate examination and Bachelor Degree examination separately. Further, whereas in all other Universities the power of the Selection Committee to relax the academic qualification has been taken away, the Selection Committee in the Purvanchal University will continue to enjoy that power. It would result in discrimination and, therefore, to avoid such discrimination, which is prohibited, by Article 14 of the Constitution of India, an interpretation should be given so as to take into fold the subsequent amendments made in the First Statutes of the University of Gorakhpur is applicable to the Purvanchal University as well.

23. Sri Anil Tiwari, the learned Counsel for the Purvanchal University and Sri Neeraj Tripathi, the learned Counsel for the Chancellor, adopted the arguments of the learned Additional Advocate General.

24. Having heard the learned Counsel for the parties, we are of the opinion that to resolve the question referred to us, it would be necessary to first examine as to whether the provisions of Sub-section (1-B) of Section 50 of the Act is a piece of legislation by reference or by incorporation.

25. In Sutherland's Statutory Construction (4th Ed., Vol 2-A), Articles 51.07, P. 514, legislation by reference has been stated as follows :

"There are two general types of reference Statutes : Statutes of specific reference and Statutes of general reference. A statute of specific reference, as its name implies, refers specifically to a particular statute by its title or section number. A general reference statute refers to the law on the subject generally. An example of this type of reference is a provision that contracts made under the statute are to be made "in the manner now provided by law."

"General and specific references have been held to differ in record to whether subsequent legislation which fits the reference is adopted. When a statute adopts the general law on a given subject, the reference is construed to mean that the law is as it reads thereafter at any given time including amendments subsequent to the time of adoption. This is to be contrasted with adoption by reference of limited and particular provisions of another statute, in which case the reference does not include subsequent amendments."

In Article 51.08, P. 516, it has been further stated as follows :

"A statute of specific reference incorporates the provisions referred to from the statute as of the time of adoption without subsequent amendments, unless the legislature has expressly or by strong implication shown its intention to incorporate subsequent amendments with the statute. In the absence of such intention, subsequent amendments of the referred statute will have no effect on the reference statute."

26. In Halsbury's Law of England [4th Ed., Vol 44(1)], Para 1257, P.744, incorporation of other enactments by reference has been described as follows :

"It is a common device of legislative drafters to incorporate earlier statutory provisions by reference, rather than setting out similar provisions in full. This saves space and also attracts the case law and other learning attached to the earlier provisions. Its main advantage is a Parliamentary one, however, since it shortens Bills and cuts down the area for debate. Incorporation of an enactment by reference does not affect the continued separate identity of that enactment. By implication, it requires any necessary verbal adjustments to be made in the incorporated provisions where, as is the modern practice, these adjustments are not spelt out. The technique of incorporation by reference has received much judicial criticism and is, therefore, less used today."

27. In Para 1396, P.852, interpretation where other enactments incorporated by reference has been dealt with as follows :

"Where an Act incorporates by reference the whole or any part of any earlier Act, the provisions so incorporated must generally be construed as if they were set out in full in the later Act."

28. FAR Bennion in Statutory Interpretation (2nd Ed), P.522 has dealt with incorporation of provisions by reference as follows :

"It is a common device of legislative drafters to incorporate earlier statutory provisions by reference, rather than setting out similar provisions in full. This saves space and also attracts the case law and other learning attached to the earlier provisions. Its main advantage is a parliamentary one, however, since it shortens Bills and cuts down the area for debate."

29. He further described the practice of incorporation by reference as archival drafting. At P.523 he has said as follows :

"1. An enactment sometimes incorporates into the Act a whole body of law as it existed at a given time ("the relevant date"). This may include the practice prevailing on the relevant date, as well as the substantive law in force at that time. Often the provisions thus incorporated do not otherwise continue in force. The technique is called archival drafting because it requires persons applying the Act after considerable period has elapsed since the relevant date to engage in historical research in order to find out what the law thus imported amounts to.

2. The effect of archival drafting is to 'freeze' the body of law, so far as thus imported, in the form it was in on the relevant date. Subject to any amendments subsequently made for the purpose of the applying Act, the body of law is to be interpreted for those purposes at any subsequent time, unless the contrary intention appears, as if it had remained unaltered since that date."

30. This is in accordance with the maxim", namely, verba relate hoc maxime operantur per ferentiaum ut in eis inesse videntur (words to which reference is made seem to be incorporated) words to which reference is made in an instrument have the same operation as if they were inserted in the instrument referring to them.

31. Craies on Statute Law (7th Ed.) P.29 has dealt with legislation by reference as follows :

"Legislation by reference occurs where an earlier enactment is amended, applied, etc., by a mere specific reference to the section or part affected without any description of its subject matter, necessitating in consequence resort to the enactment cited to appreciate what the later enactment is affecting."

He has described incorporation of earlier enactments at P.223 as follows :

"The effect of bringing into a later Act, by reference, sections of an earlier Act is to introduce the incorporated sections of the earlier Act into the later Act as if they had been enacted in it for the first time. Consequently when an Act of 1855 incorporated sections of an earlier Act of 1840, those sections were read so as to take effect as if they had been passed in 1855, and Lord Esher, MR said : if a subsequent Act bring into itself by reference some of the clauses of the 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. For all practical purposes, therefore, those sections of the Act of 1840 ar to be dealt with as if they were actually in the Act of 1855."

32. In Statutory Interpretation in Australia by DC Pearce and RS Goddes (3rd Ed.), P. 152, Acts incorporating other statutory provisions have been described as follows :

"It is not uncommon to find in an Act a provision staying that it is to be read as one with, or to be read and construed with, or to be incorporated with, another Act. The effect of such a provision is, in effect, to mould the two Acts into one - to require the incorporated Act notionally to be written into the incorporating Act, Accordingly, each of the provisions of the two Acts must be construed as if they were included in the one Act- unless there is such a manifest discrepancy that it can be seen that the later of the two Act impliedly repeated part of the earlier."

33. So far as the date of effect of incorporation is concerned, it has been stated at P. 153 as follows :

"In the absence of an indication to the contrary, provisions incorporated in another Act are fixed as it were at the date of their incorporation. Subsequent amendments to the incorporated provisions will not be included in the incorporating Act; Commr. for Government Transport (NSW) v. Deacon, (1957) 97 CLR 535. This assumption may, however, be rebutted by, for example, the incorporation of the designated legislation "as in force from time to time". This effect is achieved also in these jurisdictions which have an Interpretation Act provision that provides that reference to an Act are to that Act as amended."

34. In Crawford's Statutory Construction, 1989 Reprint, published by Pakistan Law House, Article 234, P.439, it has been stated as follows :

"A statute may assort all or only a part of another statute by express reference, or by re-enactment of the former in verbatim or in substantially the same language. Where this is true, the adopted provisions become a part of the adopting statute. Similarly, a statute may adopt the provisions of another statute by what is known as descriptive reference. In this case the adopted provisions become a part of the adopting statute but only those provisions which relate to the new statute's subject."

35. In re : Wood's Estate, 1886 (31) Ch. D. 607, Lord Esher, MR, has held that 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.

36. The Privy Council in Secretary of State v. Hindustan Co-operative Insurance Society Ltd., AIR 1931 PC 149, has held that it seems to be no less logical to hold that where certain provisions from an existing Act have been 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. The aforesaid decisions has been consistently followed in our country by the Hon'ble Supreme Court.

37. In the case of Agrawal Trading Corporation and Ors. v. The Assistant Collector of Customs, Calcutta and Ors., AIR 1972 SC 648, the Hon'ble Supreme Court has held that it is a well accepted legal practice to incorporate by reference, if the Legislature so chooses, the provisions of some other Act, in so far as they are relevant for the purposes of and in furtherance of the scheme and objects of the Act.

38. In the case of Bolani Ores Ltd. v. State of Orissa, AIR 1975 SC 17, the Hon'ble Supreme Court has held that the method of drafting which adopts incorporation by reference the another Act whatever may have been its historical justification in England, in this country does not exhibit an activistic draftsmanship which would have adopted the method of providing its own definition. Where two Act are complementary or interconnected, legislation by reference may be an easier method because a definition given in the one Act may be made to do as the definition in the other Act both of which being enacted by the same Legislature.

39. In the case of the State of Madhya Pradesh v. M.V. Narasimhan, AIR 1975 SC 1835, the Hon'ble Supreme Court after preferring to its earlier decisions on the subject as also the decision of the Privy Council in the case of Secretary of State (supra) and in re : Wood's Estate (supra) has laid down the following propositions :

"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 repeal or amendment in the previous Act. This principle, however, will not apply in the following cases :

(a) whether 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, applied the said provisions to the subsequent Act."

40. In the case of Bhajiya v. Smt. Gopikabai and another, AIR 1978 SC 793, the Hon'ble Supreme Court had held as follows :

"27. Broadly speaking, legislation by referential incorporation falls in two categories; First, where a statute by specific reference incorporates the provisions of another Statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus :

"A Statute which refers to the law of 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." (Vide Sutherland's Statutory Construction, Third Edition, Article 5208, P.5208).

Corpus Juris Secundum also enunciates the same principle in these terms :

"..........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 from time to time, at least as for as the changes are consistent with the purpose of the adopting statute."

41. In the case of Mahindra and Mahindra Ltd. v. The Union of India and Anr., AIR 1979 SC 798, the Hon'ble Supreme Court has held that the legislation by incorporation is a common legislative device employed by the Legislature where the Legislature for convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. Once the incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transported 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. In the aforesaid case, Section 55 of the Monopolies and Restrictive Trace Practices Act, 1969 provided that any person aggrieved by an order made by the Commissioner, under Section 13 may prefer an appeal to the Hon'ble Supreme Court on one or more of the grounds specified in Section 100 of the Code of Civil Procedure. Section 55 was enacted on 27th December, 1969. Section 100 of the Code of Civil Procedure specified three grounds on which a second appeal could be brought to the High Court and one of these grounds was that the decision appealed against was contrary to law. It was sufficient under Section 100, as it then stood, that there should be a question of law in order to attract the jurisdiction of the High Court in second appeal and, therefore, if 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 the Supreme Court under Section 55. Section 100 of the Code of Civil Procedure was substituted by a new Section by Section 37 of the Code of Civil Procedure (Amendment) Act, 1976 with effect from 1st February, 1977, and the new Section 100 provides 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 its place only one ground was substituted which was a highly stringent ground, namely, that there should be a substantial question of law. The Hon'ble Supreme Court held that no doubt Section 55 is an instance of legislation by incorporation and not legislation by reference. 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 out were appropriate for restricting the right of appeal hence it incorporated them in Section 55. The right of appeal was clearly intended to be limited in the grounds set out in the then existing Section 100. 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 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 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 necessary that these changes should also be reflected in Section 55 which deals with the right of appeal in a totally different context.

42. In th6 case of Western Coalfields Ltd. v. Special Area Development Authority, Korba and Anr., AIR 1982 SC 697, the Hon'ble Supreme Court has held as follows :

"14. ...............It is well settled that if an earlier legislation is incorporated into a later legislation, the provisions of earlier law which are incorporated into the later law become a part and parcel of the later law. Therefore, amendments made in the earlier law after the date of incorporation cannot, by their own force, be read into the later law. That is because the Legislature, which adopts by incorporation the existing provisions of another law, cannot be assumed to intend to bind itself to all future amendments or modifications, which may be made in the earlier law. In other words, the incorporating Act does nothing more than borrow certain provisions of an existing Act and instead of setting out, verbatim, those provisions in its own creation, refers to them as a matter of convenience in the mode of drafting. [See Secretary of State for India in Council v. Hindustan Co-operative Insurance Society Ltd., (1931) 58 Ind App 259 : AIR 1931 PC 149; Craies on Statute Law, 7th Edition, Pages 360-361].

15. The principle, broadly, is that where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third does not affect the second [See Clarke v. Bradlaugh, (1881) 8 QBD 63(69)]. Likewise, logically, where certain provisions from an existing Act have been 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. [See Secretary of State for India in Council v. Hindustan Co-operative Insurance Society Ltd., (1931) 58 Ind App 259 : AIR 1931 PC 149]. But these rules are not absolute and inflexible. In the case last cited, the Privy Council qualified its statement of the law by saying that the principle that an amendment of the first law which is not expressly made applicable to the subsequent incorporating Act cannot be deemed to be incorporated into the second Act, applies "if it is possible for the subsequent Act to function effectively without the addition' (Page 267) (of Ind App) : (at P. 152 of AIR) Besides, as held by a Constitution Bench of this Court in the Collector of Customs, Madras v. Nathella Sampathu Chetty, (1962) 3 SCR 786 : AIR 1962 SC 316, the decision of the Privy Council could not be extended too far so as to cover every case in which the provisions of another statute are adopted by absorption (See Page 837) (of SCR) : (at P.336 of AIR). Finally, in State of M.P. v. M.V. Narasimhan, (1976) 1 SCR 6 : AIR 1975 SC 1835, this Court held, after an examination of the relevant decisions, that the broad principle that were 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 repeal or amendment in the previous Act, is subject to four exceptions, one of which is that the principle will not apply to cases "where the subsequent Act and the previous Act are supplemental to each other."

16. Applying these principles, we are of the opinion that in the instant case, subsequent amendments made to the Municipal Corporation Act and the Municipalities Act will also apply to the power of taxation provided for in Section 69(d) of the Act of 1973. The Act of 1973 did not, by Section 69(d), incorporate in its true signification any particular provision of the two earlier Acts. It provides that, for the purpose of taxation, the Special area Development Authority shall have the powers which a Municipal Corporation or a Municipal Council has under the M.P. Municipal Corporation Act, 1956 or the M.P. Municipalities Act, 1961. The case, therefore, is not one of incorporation but of mere reference to the powers conferred by the earlier Acts. As observed in Nathella Sampathu Chetty, AIR 1962 SC 316, there is distinction between a mere reference to or a citation of one Statute in another and an incorporation which in effect means the bodily lifting of the provisions of one enactment and making them part of another, so much so that the repeal of the former leaves the later wholly untouched. Section 69(d) of the Act of 1973 must accordingly be read to mean that respondent I shall have all the powers of taxation which a Municipal Corporation or a Municipal Council has for the time being, that is to say at the time when respondent 1 seeks to exercise those powers."

43. The Hon'ble Supreme Court, in the case of Onkarlal Nandlal v. State of Rajasthan and Anr., (1985) 4 SCC 404, had considered the doctrine of incorporation by reference as follows :

"The doctrine of incorporation by reference has been succinctly explained by Lord Esher, MR. In re Wood's Estate, (1886) 31 ChD 607, in the following words :

"It is to put them into the Act of 1855, just as if they had been written into it for the first time. 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."

This Court also explained to doctrine of incorporation by reference in similar terms in Shamrao V. Parulekar v. District Magistrate, Thana, AIR 1952 SC 324, when this Court observed :

"The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is not need to refer to the amending Act at all. This is the rule in England : (See Craies on Statute Law, 5th Edition, Page 207); it is the law in America : (See Crawford on Statutory Construction, Page 110) and it is the law which the Privy Council applied to India in Keshoram Poddar v. Nundo Lal Mallick."

44. In the case of Mary Roy. v. State of Kerala and Ors., AIR 1986 SC 1011, the Hon'ble Supreme Court has held as follows :

"The legislative device of incorporation by reference is a well known device where the legislature instead of repeating the provisions of a particular statute in another statute by reference to the earlier in the latter statute by reference to the earlier statute. It is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of an earlier statute, in a later statute."

45. In the case of State of Kerala v. Attesee (Agro Industrial Trading Corporation), AIR 1989 SC 222 : 1989 Supp. (1) SCC 733 (supra), which has been relied upon by Sri Ashok Khare, the Hon'ble Supreme Court has held as follows :

"To appreciate the contentions urged, it is necessary to make a brief reference to the principles of interpretation of an enactment which, for purposes of convenience, refers to or incorporates a provision of another. These have been discussed in various earlier decisions viz. Secretary of State v. Hindustan Co-operative Insurance Society, (1932) 58 Ind. App. 259 : AIR 1931 PC 149; Collector of Customs v. Nathella Sampathu Chetty, (1961) 3 SCR 786 : AIR 1962 SC 316; Ram Sarup v. State, (1963) 3 SCR 858 : AIR 1963 SC 553; Ram Kirpal v. State, (1970) 3 SCR 233 : AIR 1970 SC 951; New Central Jute Mills Co. Ltd v. Assistant Collector, (1971) 2 SCR 92 : AIR 1971 SC 454; State of Madhya Pradesh v. Narasimhan, (1976) 1 SCR 6 : AIR 1975 SC 1835; Bhajiya v. Smt. Gopikabai, (1978) 2 SCR 561 : AIR 1978 SC 793; Mahindra and Mahindra Ltd. v. Union of India, (1979) 2 SCR 1038 : AIR 1979 SC 798 and Western Coal Fields v. Special Area Development Authority, (1982) 2 SCR 1 : AIR 1982 SC 697. It is unnecessary to make a detailed reference to these decisions. It is sufficient to say that they draw a distinction between referential legislation which merely contains a 'reference or citation of a provision of another statute and a piece of referential legislation which incorporates within itself a provision of any statute. In the former case, the provision of the second statute, along with all its amendments and variations from time to time, should be read into the first statute. In the latter case, the position will be as outlined in Narasimhan (1976) 1 SCR 6 : AIR 1975 SC 1835, where, after referring to Secretary of State v. Hindustan Co-operative Insurance Society, (1931) 58 Ind. App. 259 : AIR 1931 PC 149, this Court summed up the position thus (at P. 1841 of AIR):

"On a consideration of these authorities, therefore, it seems that the following proposition emerges :

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 repeal or amendment in the previous Act. This principle, however, will not apply in the following cases :

(e) where the subsequent Act and the previous Act are supplemental to each other,

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

(g) 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

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

46. In the case of Ujagar Prints v. Union of India and others, AIR 1989 SC 516, the Hon'ble Supreme Court has held as follows :

"48...............Legislatures sometimes take a short cut and try to reduce the length of Statutes by omitting elaborate provisions where such provisions have already been enacted earlier and can be adopted for the purpose on hand. While, on the one hand, the prolixity of modern Statutes and the necessary to have mere legislation than one on the same or allied topics render such a course useful and desirable, the attempt to legislate by reference is sometimes overdone and brevity is achieved at the expense of lucidity. However, this legislative device is quite well known and the principles applicable to it fairly well settled.

49. Referential legislation is of two types. One is where an earlier Act or some of its provisions are incorporated by reference into a later Act. In this event, the provisions of the earlier Act or these so incorporated, as they stand in the earlier Act at the time of incorporation, will be read into the later Act. Subsequent changes in the earlier Act or the incorporated provisions of the earlier Act have been re-enacted by such reference into the later one, rendering irrelevant what happens to the earlier statute thereafter. Examples of this can be seen in Secretary of State v. Hindustan Co-operative Insurance Society, AIR 1931 PC 149; Bloani Ores Ltd. v. State, AIR 1975 SC 17; Mahindra and Mahindra Ltd. v. Union of India, AIR 1979 SC 798. On the other hand, the later statute may not incorporate the earlier provisions. It may only make a reference of a broad nature as to the law on a subject generally, as in Bhajiya v. Gopikabai, (1978) 3 SCR 561 : AIR 1978 SC 793, or contain a general reference to the terms of an earlier statute which are to be made applicable. In this case any modification, repeal or re-enactment of the earlier statute will also be carried into in the later, for here, the idea is that certain provisions of an earlier statute which become applicable in certain circumstances are to be made use of for the purpose of the later Act also. Examples of this type of legislation are to be seen in Collector of Customs v. Nathella Sampathu Chetty, (1962) 3 SCR 786 : AIR 1962 SC 316; New Central Jute Mills Co. Ltd. v. Assistant Collector, (1971) 2 SCR 92 : AIR 1971 SC 454 and Special land Acquisition Officer v. City Improvement Trust, (1977) 1 SCR 569 : AIR 1976 SC 2517. Whether a.particular statute falls into the first or second category is always a question of construction. In the present case, in my view, the legislation falls into the second category. Section 3(3) of the 1957 Act does not incorporate into the 1957 Act any specific provisions of the 1944 Act, it only declares generally that the provisions of the 1944 Act shall apply "so far as may be" that is, to the extent necessary and practical, for the purposes of the 1957 Act as well."

47. In the case of Bhatinda Improvement Trust v. Balwant Singh and Ors., AIR 1992 SC 2214, the Hon'ble Supreme Court was considering the question as to whether the time limit of three years, as prescribed under the first proviso to Section 6 of the Land Acquisition Act, 1894, for the issue of a notification under Section 42 of the Punjab Town Improvement Act, 1922, even if not prescribed under the said Act, would be applicable or not. Section 59 of the Act provided for modification of the Land Acquisition Act, 1894 as set out therein for the purpose of acquiring the land under the Land Acquisition Act, 1894 for the Bhatinda Improvement Trust. Under Sub-section (6) of Section 59 it was provided that the Land Acquisition Act, 1894 may be subject to further modification as indicated in the Schedule to the said Act. Sub-clause (1) of Clause (2) of the Schedule to the Act, referred too in Section 59, provided as follows :

"(2) Notification under Section 4 and declaration under Section 6 to be replaced by notification under Sections 36 and 42 of this Act:

(1) The first publication of a notice of any improvement scheme under Section 36 of this Act shall be substituted for and have the same effect as publication in the Official Gazette and in the locality of a notification under Sub-section (1) of Section 4 of the said Act, except where a declaration under Section 4 or Section 6 of the said Act has previously been made and is still in force."

48. The first proviso to Section 6(2) of the Land Acquisition Act, 1894 was substituted by the Act No. 68 of 1984. It runs as follows :

"Provided that no declaration in respect of any particular land covered by a notification under Section 4, Sub-section (1):

(i) Published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or"

49. It was this substituted proviso that the time limit of three years was prescribed. The Hon'ble Supreme Court while considering the aforesaid question has held as follows :

"8.............As pointed out by the Supreme Court and the Judicial Committee in the aforesaid decisions, it is well settled law that where a statute is incorporated by a reference into a second statute, the repeal of the first statute does not affect the second. Similarly, in a case where a statute is incorporated by a reference into another statute an amendment of the statute so incorporated after the date of incorporation does not affect the second statute and the provisions of the latter statute remain the same as they were at the time of incorporation. It is again well settled that where one statute is referred to in another, it may be merely by way of reference or by way of incorporation of the same. This depends on the language used in the latter statute and other relevant circumstances. In the present case, however, we find that there is no question of incorporation of any of the provisions of the Land Acquisition Act into the said Act at all. The said Act does not deal with acquisition of land for the purposes of a scheme as contemplated under the said Act. The acquisition of such land for the purposes of the scheme is left to the general law of the land in that connection, namely, the Land Accusation Act, which has to be resorted to for the purposes of acquisition of land for the purposes of the schemes contemplated under the said Act. The only difference is that some of the provisions of the Land Acquisition Act, as referred to in the relevant sections of the said Act, are given effect to as amended by the relevant sections of the said Act. In these circumstances, it cannot be held that any provisions of the Land Acquisition Act have been incorporated into the said Act and the provisions of the Land Acquisition Act which have to be applied, are the provisions as they stand at the relevant time, namely, at the time of acquisition, in the absence of a contrary intention. There is nothing to indicate to indicate that there was any such contrary intention in the present case. In these circumstances, the notification under Section 42 should have been published within the period of three years of the date of publication of the notification under Section 4(1) of the Land Acquisition Act." As required under the first proviso to Section 6 of the Land Acquisition Act."

50. In the case of Gauri Shanker Gaur (supra), which has been relied upon by Sri Ashok Khare, the question was whether the first proviso to Section 6 of the Land Acquisition Act, 1894 will apply to the proceedings for acquisition under the U.P. Avas Evan Vikas Parishad Adhiniyam, 1965 or not. Section 55 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 given the power to acquire land. It reads as follows :

"55. Power to acquired 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 the Land Acquisition Act, 1984 (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."

In the Schedule it has provided as follows :

"Modification in the Land Acquisition Act, 1894, as amended in its application to Uttar Pradesh (hereinafter catted "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 under Section 28 or under Clause (a) of Sub-section (3) of Section 31 of the Act shall be substituted for and have, in relation to any land proposed to be acquired under the scheme, the same effect as publication in the Official Gazette, and in the locality, of a notification under Sub-section (1) of Section 4 of the said Act, except where a notification under Section 4 of a declaration under Section 6 of the said Act has previously been made is still in force, and the provisions of Section 5A of the said Act shall be inapplicable in the case of such land.

(2) The issue of a notice Clause (c) of Sub-section (3) of Section 23 of this Act in the case of land acquired under a Bhavi Sarak Yojna and the publication of a notification under Sub-section (1) or, as the case may be, under Sub-section (4) of Section 32 of this Act in the case of land acquired under any other housing or improvement scheme under this Act shall be substituted for and have the same effect as a declaration by the State Govt. under Section 6 of the said Act, unless a declaration under the law mentioned section has previously been made and is still in force.

(3) In a case to which sub-paragraph (I) or sub-paragraph (2) applies, a notification under Sub-section (2) of Section 33 or under Sub-section (3) of Section 49 of this Act involving alteration of the extent of the land proposed to be acquired shall have the effect of correspondingly modifying the notification under Sub-section (1) of Section 4 and the declaration under Section 6 of 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."

51. After referring to the decisions in the cases of Clarke v. Bradlaugh, (1881) 8 QBD 63; Wood Estate (supra); Secretary of State (supra); Ram Swarup v. Munshi, AIR 1963 SC 553; Rolani Cres Ltd. (supra); M.V. Narasimhan (supra); M/s. Attesee (supra) and Mahindra and Mahindra Ltd. (supra), the Hon'ble Supreme Court has held as follows :

"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 latter statute and became an integral scheme of that Act. The Legislature while incorporating them did not intend to speculate that any subsequent amendment to previous Act or its repeal would alter the texture of the latter Act unless the former is supplement to each other or both are in pari materia in which case it would render the latter Act wholly unworkable and ineffectual or by necessary intendment applies it."

52. On the question of legislation by reference, the Hon'ble Supreme Court referred to the decision of Collector of Customs, Madras v. Nathella Sampathu Chetty, AIR 1962 SC 316; New Central Jute Mills Co. Ltd. v. Assistant Collector of Central Excise, Allahabad, AIR 1971 SC 454; Land Acquisition Officer, City Improvement Trust Board v. H. Narayanaiah, AIR 1976 SC 2403; Bhajiya (supra); Ujagar Prints (supra); Dr. Pratap Singh v. Director of Enforcement, FERA, AIR 1985 SC 989; Western Coalfields. Ltd. (supra); Barnagaze Jute Factory C. v. Inspector of Central Excise, (1992) 1 SCC 401 and Bhatinda Improvement Trust (supra), and has held that:

"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 were 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 exception 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.

32. If a later Act mercy 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 by Section 8(1) of the General Clauses Act or void under Article 254 of the Constitution.

33. Section 55 of the Act read with the schedule made in express incorporation of the provisions of Section 4(1) and Section 6 as modified and incorporated in the schedule. The schedule affected necessary structural amendments to Sections 4, 6, 17 and 23 incorporating therein the procedure and principles with necessary modifications. Sections 28(2) and 32(1) prescribed procedure for publication of the notifications under Sections 28(1) and 32(1) of the Act without prescribing any limitation. It is a complete Code in itself. The Act is not wholly unworkable and ineffectual. May be incompatible with the provisos to Section 6(1) of LA Act. The U.P. Legislature did not visualize that later amendment to Central Act 1/1894, i.e., LA Act would be automatically extended, we have, therefore, no hesitation to conclude that Section 55 and the schedule adapted only by incorporation of Sections 4(1) and 6(1) and the subsequent amendments to Section 6 did not become part of the Act and they have no effect on the operation of the provisions of the Act."

53. This view was taken by Hon'ble Mr. Justice K. Ramaswamy. However, Hon'ble Mr. Justice R.M. Sahai held that in the absence of the express exclusion it is more in consonance with justice to say that the restriction of three years added by the proviso to Section 6 applied to the Act. The acquisition proceedings came to end after expiry of three years from the date of issuance of notification under the Act analogous to Section 4 of the Land Acquisition Act, 1894. However, the Hon'ble Supreme Court ordered that the land holder shall be paid compensation on the market rate prevalent in the year the declaration analogous to Section 6 of the Land Acquisition Act, 1894 were issued.

54. In Collector of Customs, Madras (supra), Section 23-A of the Foreign Exchange Regulation Act as amended in 1952 provided that the restriction imposed in Section 8 thereto shall be deemed to have been imposed under Section 19 of the Sea Customs Act, 1878 and all provisions of the Act shall have effect accordingly. A contention was raised that the Sea Customs Act was incorporated and that, therefore, the procedure therein alone would be followed. Their constitutional validity was also assailed. The Hon'ble Supreme Court has held that there is a "distinction between a mere reference to or a citation of one statute in another and incorporation which in effect means the bodily lifting the provisions of one enactment and making it part of another so much so the repeal of the former leaves the latter wholly untouched. Considering the provisions of Section 19 of Sea Customs Act, Section 8 of the General Clauses Act and Section 23-A of the Foreign Exchange Regulation Act the Hon'ble Supreme 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.

55. In New Central Jute Mills Co. Ltd. (supra), the appellant was a manufacture of chemicals, which included ammonia. The Assistant Collector, Central Excise issued warrant to search and seize certain goods and document 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 repeated whether Central Government by operation of Section 12 was empowered to apply Section 105 of Customs Act and the authority has power to take action. It was also contended that Section 12 of the Central Excises and Salt Act, 1944 was void. In considering the questions the Hon'ble Supreme Court angulated the distinction between incorporation and reference of the Sea Customs Act into the later Act. Applying Section 8(1) of the General Clauses Act the Hon'ble Supreme Court has held that Section 12 delegated limited power to Central Government to draw upon the provisions of the Sea Customs Act and were not meant to be incorporated in the Act. They are only to be applicable to the extent modified by the Central Government for the purpose of the excise duty leviable under Section 3.

56. In Land Acquisition Officer, City Improvement Trust Board (supra), Section 27 of the City of Bangalore Improvement Act, 1946 enables the officer to apply the procedure in the Land Acquisition Act to acquisition therein except to the extent the Bangalore Act provided the different procedure. It was contended that the Land Acquisition Act was by incorporation. Considering the scope and purpose of this Act the Hon'ble Supreme Court held it to be by reference and applied Section 23 of the Land Acquisition Act to determine the market value. In Special Land Acquisition Officer, City Improvement Trust Board, Mysore v. P. Govindan, (1977) 1 SCR 549 : AIR 1976 SC 2517, a Full Bench of the Mysore High Court held that the date of determination of the compensation under Section 23(1) of the Land Acquisition Act was the date of the notification under Section 18 of the local Act which correspondents to Section 6 of the Declaration of the Land Acquisition Act. The Hon'ble Supreme Court held that Section 23 of the Mysore Act provided that compensation for acquisition shall be governed by the Land Acquisition Act as they exist on the date of a particular acquisition proceedings. Except to the extend to which a different procedure is expressly laid down in the Mysore Acts. No such different procedure was provided therein. In that background it was held that the Land Acquisition Act was applied only by reference and to determine the market value was the date of the notification under Section 16 of the Mysore Act, corresponding to Section 4(i) of the Land Acquisition Act. The Hon'ble Supreme Court laid emphasis that Section 23 of the Mysore Act declared that "the general procedure provided in the Land Acquisition Act will apply except to the extant it was inapplicable". That would mean that "amendment of the procedure in the Acquisition Act will apply if it is capable of application". The emphasis laid by the Court was that "the departure from the generally accepted procedure which regulates acquisition and compensation for it has to be something more explicit, express and substantial than mere date of the enactment of the Mysore Act.

57. In the case of Dr. Pratap Singh (supra), the question was whether the provisions of Section 165 of the Code of Criminal Procedure ware made applicable to Section 37 of the Foreign Exchange Regulation Act, 1973 by reference or by incorporation. It was contended that it was riot by reference and that there was no power under the Act to search and seize the property accordingly the search and seizure were invalid. Repelling that contention the Hon'ble Supreme Court has reiterated that the language "as far as practicable used in Section 37" would indicate that it is by reference and not by incorporation.

58. In the case of Barnagoze Jute Factory Co. (supra), the Hon'ble Supreme Court has considered the inter-play of Rule 3 of the Jute Cess Rules amended Rules 9 and 49 of the Central Excise Rules and eligibility of excise duty on Jute yarn manufactured by the appellant. The Hon'ble Supreme Court held that Rule 3 of the Jute Cass Rules provided that the Central Excise Act and the Rule shall, so far as may be applied in relation to levy and collection of cass on Jute manufactures under that Act. Therefore, it was held that it is only by reference.

59. The aforesaid decision was followed by the Hon'ble Supreme Court in the case of State of Maharashtra and Anr. v. Sant Joginder Singh Kishan Singh and Ors., AIR 1995 SC 218.

60. In the case of Rajasthan State Road Transport Corporation, Jaipur v. Smt. Poonam Pahwa and Ors., AIR 1997 SC 2951, the Hon'ble Supreme Court was considering the question whether Order XXII, Rule 1(2) of the Code of Civil Procedure is applicable in respect of the claims under Section 110(c) of the Motor Vehicles Act, 1939. Section 110(c) of the Motor Vehicles Act, 1939 read as follows :

"(1) In holding any enquiry under Section 110-B the claim Tribunal may subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit;

(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes an may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Criminal Procedure Code, 1898 (Act 5 of 1988)."

61. Rules have been framed under Section 111-A of the Motor Vehicles Act. Rule 20 of the said Rules that Order X, Rules 9 to 13 and 15 to 30, Order IX, Order XXXIII, Rules 1 to 3 should be applicable in the proceedings before the Claims Tribunal. The Punjab Government vide notification dated 21st June, 1968 amended Rule 20 to the following effect:

"In the Punjab Motor Accident Claims Tribunal Rules, 1969 in Rule 20 between the words and figure Order XVII and Order XXXII, the word and figure, Order XXI shall be inserted."

62. The Harayana Government has vide notification dated 28th January, 1972 adopted the Punjab Motor Vehicles Rules by incorporation. In Harayana, the Punjab Motor Vehicles Rules is adopted after substituting the word "Haryana" for "Punjab" in Rule 1, Clause (b) and in Rule 2, Clause (b). Order XXI of the Code of Civil Procedure was inserted in Rule 20 in the State of Haryana by amendment made on 21st June, 1968. The Hon'ble Supreme Court has held as follows :

"25. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned Counsel for the appellant and by Dr. Dhavan, the leaned Senior Counsel appearing as amicus curie in this appeal, it appears to us that the State of Haryana has adopted the Punjab Motor Accidents Claims Tribunal Rules, 1964 by substituting the words "Haryana" for Punjab in Rule 1, Clause (b) and in Rule 2, Clause (b). Such adoption in the Punjab Motor Accidents Claims Tribunal Rules, 1964 was made on January 20, 1972. In the Punjab Motor Accidents Claims Tribunal Rules, 1964, amendment was effected on June 21, 1968 by inserting Order XXI of the Code of Civil Procedure in Rule 20 framed under the Motor Vehicles Act, 1939, In our view, Dr. Dhavan is justified in this submission that when Haryana has adopted the Punjab Motor Accidents Rules in 1972, it must be held that it has adopted the Punjab Rules as it stood on the date of adoption, namely, January 20, 1972. Order XXI of the Code of Civil Procedure has been expressly made applicable in the Punjab Motor Accidents Claims Tribunal Rules by amending the Punjab Rules in June, 1968 which was published in the Gazette on July 12, 1968. Therefore, by adopting the Motor Accidents Claims Tribunal Rules, 1964, in 1972 it should be held that Haryana has adopted the Punjab Motor Accidents Claims Tribunal Rules, 1964 as stood amended on the date of adoption. In this connection, reference may be made to the decision of this Court in Mahindra and Mahindra v. Union of India, (1979) 2 SCC 529 : AIR 1979 SC 798 and Bolani Ores Ltd. v. State of Orissa, (1974) 2 SCC 777 : AIR 1975 SC 17. In Mahindra and Mahindra's case it has been held that if there is mere reference to a provision of statute in . another without incorporation, then unless a different intention clearly appears Section 8(1) of General Clauses Act would apply and 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 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."

"27. There is nothing to indicate that in Haryana, the Punjab Motor Accidents Claims Tribunal Rules, 1964 without the amendment effected in the said Rules after 1964 were adopted. Hence, when Punjab Motor Accident Claims Tribunal Rules were adopted by only referring the Rules and not by expressly indicating that the said Punjab Rules of 1964 as it stood in 1964 were only adopted, it must be held that the Punjab Rules as stood amended on the date of adoption by Harayana are applicable in State of Haryana. It cannot be held that there was a legislative intendment to restrict the Punjab Rule in its application in Haryana only to the extent of Punjab Rules of 1964. The amendment in Punjab Rule in 1968 were made in order to bring in effect the procedural law being followed by the Civil Courts for ensuring fair trial and justice by inserting Order XXI Civil Procedure Code. In this connection, reference may be made to a decision of a seven Judges' Bench of this Court in State of Maharashtra v. Madhavrao Damodar Patil, AIR 1968 SC 1395. The question arose for consideration by this Court in the said case was whether amendments effected in the Maharasthra State Agricultural Land (Ceiling on Holdings) Act, 1961 have the protection for being included in Ninth Schedule of the Constitution when for inclusion in Ninth Schedule only the said principal Act of 1961 was mentioned without mentioning the amendment Acts. It has been held by this Court in the said decision that although for some purposes an amending Act retains its individuality but this, however, does not lead to conclusion that when an Act is referred to it is not intended to include the amendments made in it. Therefore, the amendments effected in the said Maharashtra State Agricultural Lands (Ceiling on Holdings) Act, 1961 will also get the protection for being included in the Ninth Schedule of the Constitution."

63. In the case of Gauri Shanker Gaur (supra) since there was a difference of opinion between the learned Judges, the question regarding the applicability of the Land Acquisition Act, 1894 to the acquisition for the purpose of the U.P. Avas Evam Vikas Parishad, the matter was directed to be heard by the Bench of three Judges in U.P. Avas Evam Vikas Parishad v. Jainul Islam and another, AIR 1998 SC 1028 : (1998) 1 UPLBEC 650 (SC). The Hon'ble Supreme Court while considering the question as to whether the legislation is by way of reference or by way of incorporation, has 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 either he (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 reference. 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, any amendment made in the earlier legislation after the 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 incorporation does not affect operation of the subsequent statute in which it has been incorporated. So also any amendment in the statute which has been incorporate 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 statute which have been incorporated would remain the same as they were at the time of incorporation and the subsequent amendments are not to be read in the subsequent legislation."

64. The Hon'ble Supreme Court did not agree with the view expressed by Hon'ble Mr. Justice R.M. Sahai in the case of Gauri Shanker Gaur (supra) and held that the provisions of Section 65 read with Schedule to the U.P. Avas Evam Vikas Parishad Adhiniyam are on the same lines as those contained in Calcutta Improvement Act, 1911 and the principle laid down in Secretary of State (supra) are equally applicable to the present case. The amendment introduced in the Land Acquisition Act, 1894 by the 1984 Act were not part of the Land Acquisition Act, 1894 as applicable in the State of U.P. at the time of passing of the Adhiniyam. The provisions of the Land Acquisition Act, 1894, as amended in its application to Uttar Pradesh, with the modifications specified in the Schedule to the Adhiniyam, have, therefore, to be treated to have been incorporated by reference into the Adhiniyam and became an integral part of the Adhiniyam and the said provisions would remain unaffected by the subsequent repeal or amendment in the Land Acquisition Act, 1894 unless any of the exceptional situations indicated in M.V. Narasimhan (supra) can be attracted. It has held as follows :

"23. As regards the exceptional situations referred to in State of Madhya Pradesh v. M.V. Narasimhan, AIR 1975 SC 1835 (supra), it may be stated that the Adhiniyam and the LA Act cannot be regarded supplemental to each other. The Adhiniyam contains provisions regarding acquisition of land which are complete and self-contained. Nor can the provisions in the Adhiniyam be said to be in pan materia with the LA Act because the Adhiniyam also deals with matters which do not fall within the ambit of the LA Act. It cannot also be said that the 1984 Act, expressly or by necessary intendment, applies the said amendments to the Adhiniyam. Can it be said that amendments made in the LA Act by the 1984 Act are not incorporated in the Adhiniyam it would be rendered unworkable."

65. In the case of Mariyappa and Ors. v. State of Karnataka and Ors., AIR 1994 SC 1334, the question for consideration before the Hon'ble Supreme Court was regarding the applicability of Section 11A of the Land Acquisition Act, 1894 for the purpose of Karnataka Acquisition of Land for House Sites Act, 1972. Section 5 of the Karnataka Act applied the provisions of the Land Acquisition Act, 1894. It reads as follows :

"Section 5. Application of Central Act 1 of 1894.--The provisions of the Land Acquisition Act, 1894 (Central Act 1 of 1894) as amended by the Land Acquisition (Karnataka Extension and Amendment) Act, 1961 shall, mutatis mutandis apply in respect of enquiry and award by the Deputy Commissioner, the reference to Court, the apportionment of amount and the payment in respect of land acquisition under this Act."

66. The question was as to whether the Land Acquisition Act, 1894 has been incorporated into the Karnataka Act or falls within the exception or whether Section 5 is to be treated as a piece of referential legislation. The Hon'ble Supreme Court after referring to various decisions has held as follows :

"35. In our view, these three rulings, namely Secretary of State v. Hindustan Co-operative Society Ltd., AIR 1931 PC 149; Gauri Shanker's case, (1994) 1 SCC 92 : 1993 AIR SCW 3029 and Jainul Islam's case, (1998) 1 SCALE 185 : 1998 AIR SCW 801, are clearly distinguishable. As pointed out earlier the Karnataka Act, 1972 has only 7 sections which deal with the issuance of notification corresponding to Sections 4, 6 and 9 of the Central Act and certain other minor modifications relating to acquisition and payment of compensation. The Act has no provision for a separate inquiry or award or reference to a Tribunal, or a machinery for payment of compensation or apportionment. The Central Act, 1894 alone is to apply insofar as it related to 'inquiry and award, the reference to the Court, the apportionment of amount and the payment of amount in respect of lands acquired under the Act'. There are no detailed provisions as in the Calcutta Act, 1911 or as in the U.P. Act, 1965.

36. We are of the view that the Karnataka Act, 1972 clearly comes within the exceptions stated in M.V. Narasimhan's case, AIR 1975 SC 1835, for the following reasons :

Firstly there being no detailed machinery whatsoever in the Karnataka Act, 1972, that Act cannot be treated as a self-contained or complete Code. Secondly, the Karnataka Act, 1972 and the Central Act, 1894 (as amended by the Karnataka Act, 1961) are supplemental to each other for unless the Central Act supplements the Karnataka Act, the latter cannot function. Thirdly, these Acts are in pari materia because the Karnataka Act, 1972 unlike the Calcutta Act, 1911 and the U.P. Act, 1965, does not deal with any other subject but deals with the same subject of land acquisition which otherwise would have fallen within the ambit of the Central Act, 1894. For the aforesaid reasons, we are of the view that the amendments made in 1984 to the Central Act, 1894 including Section 11A have to be read into the Karnataka Act, 1972, so far as enquiry, award, reference to Court, apportionment of amount and the payment of amount in respect of land acquired under the Act."

67. In the case of Nagpur Improvement Trust v. Vasantrao and others, (2002) 7 SCC 657, the Hon'ble Supreme Court was considering the question as to whether the provisions of the Land Acquisition Act, 1894, particularly Sections 6, 23(2) and 28 thereof, stand incorporated in the three States Act, namely, the Punjab Town Improvement Act, 1922, the Nagpur Improvement Trust Act, 1936 and the U.P. Avas Evem Vikas Parishad Adhiniyam, 1965, while considering the question whether the provisions of the Land Acquisition Act, 1894, as modified by the State, stand incorporated in the State Act or whether there is a mere reference of the Land Acquisition Act, 1894. It has held as follows :

"The law on the subject is well settled. When an earlier Act or certain of its provisions are incorporated by reference into a latter Act, the provisions so incorporated become part and parcel of the later Act as if they had been bodily transposed into it. The incorporation of an earlier Act into a later Act is a legislative device adopted for the same of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the later. But this must be distinguished from a referential legislation which merely contains a reference or the citation of the provisions of an earlier statute. In a case where a statute is incorporate, by reference, into a second statute, the repeal of the first statute by a third does not affect the second. The later Act along with the incorporated provisions of the earlier Act constitutes an independent legislation which is not modified or repealed by a modification or repeal of the earlier Act. However, where in a later Act there is a mere reference to an earlier Act, the modification, repeal or amendment of the statute that is referred, well also have an effect on the statute in which it is referred. It is equally we settled that the question whether a former statute is merely referred to or cited in a later statute, or whether it is wholly or partially incorporated therein, is a question of construction."

It further held:

"36. It is also well settled that the question as to whether a particular legislation falls in the category of referential legislation or legislation by incorporation depends upon the language used in the statute in which reference is made to the earlier decision and other relevant circumstances."

68. The Hon'ble Supreme Court has held that all the three State Acts have a common scheme and pattern. All the three legislations relate to town planning and development, and each one of them specifies the various schemes that may be undertaken. For acquisition of land for the purposes of any of the schemes under the said Acts, the Land Acquisition Act, 1984 has been made applicable with certain modifications as contained in the Schedule to the said Acts which are numerous and substantial. The modifications made are also similar. The Apex Court found no distinction in the three Acts which may have a bearing on the question relating to legislative incorporation of the Land Acquisition Act in the State Acts and was, therefore, of the view that what has been held by it in the U.P. Avas Evam Vikas Parishad v. Jainul Islam, (1998) 2 SCC 467 : (1998) 1 UPLBEC 650 (SC), with regard to the U.P. Act holds good for the Punjab Act as well as the Nagpur Act. Consequently, it did not subscribe to the view taken in Bhatinda Improvement Trust v. Balwant Singh, (1991) 4 SCC 368, that the provisions of the Land Acquisition Act have not been incorporated into the Punjab Act and that they have merely been cited or referred to in the Punjab Act.

69. However, with a view to save the law from the vice of arbitrary and hostile discrimination, it considered the provisions to mean, in the absence of anything to the contrary, that the provisions of the Land Acquisition Act, 1894, as amended by the 1984 Act, relating to determination and payment of compensation would apply to the acquisition of land for the purpose of the State Acts and held that while incorporating the provisions of the Land Acquisition Act, 1894 in the State Act, the intention of the Legislature was that the amendments in the Land Acquisition Act, 1894 relating to determination and payment of compensation would be applicable to the acquisition of land for the purposes of the State Acts.

70. In the case of Maharashtra State Road Transport Corporation (supra), the Hon'ble Supreme Court was considering the question whether the amendment made to the Land Acquisition Act, 1894 by the Central Act No. 68 of 1984 to Section 23 and Section 28 which confer certain additional monetary benefits to the land holder, are to be made applicable to the acquisition made under the Maharashtra Regional and Town Planning Act, 1966. The Hon'ble Supreme Court while considering the aforesaid question held as follows :

"8. It is a well established legislative practice to borrow the provisions of an earlier Act on a particular subject by making a broad reference to the earlier Act or some or most of its provisions therein so as to make them applicable to the relevant subject matter dealt with by the later statute. This is done primarily as a matter of convenience in order to avoid verbatim repetition of the provisions of the earlier Act. Very often such reference is followed by certain modifications subject to which the earlier Act should apply. Those modifications made be few or numerous. When such legislative device is adopted, the relevant provisions of the earlier Act will apply mutatis mutandis to the matters governed by the later Act. But, the difficulty in construction would arise when the earlier Act is repealed or amended/modified. The intricate question then would be whether the repeal or amendments should be ignored and the borrowed provisions should be read as they were all the time of enactment of the later Act pr the provisions of the earlier Act should be applied subject to subsequent amendments/modifications. If there is a definite indication in the later Act as to the applicability or otherwise of subsequent amendments in the Act, referred to, no difficulty arises; but, the problem arises when there is no such indication. It is here that we come across two allied but qualitatively different concepts of statutory interpretation known as incorporation by reference and mere reference or citation of earlier statute in the later Act. In the former case, any change in the incorporated statute by way of amendment or repeal has no effect on the incorporating statute. In other words, the provisions of the incorporated statute as they stood at the relevant time when the incorporating statute was enacted will ever continue to be read into that later statute unless the legislature takes a positive step to amend the later statute in tune with the amendments. However, the legal effect is otherwise in the case of a statute which merely makes a reference to the provisions of an earlier statute. In that case, the modification of the statute from time to time, will have its impact on the statute in which it is referred to. The provisions in the earlier statute with their amendments will have to be read into the later enactment in which they are referred to unless any such subsequent amendment is inconsistent with a specific provision already in existence."

"11. The distinction between incorporation by reference and adoption of provisions by mere reference or citation is not too easy to highlight. The distinction is one of difference in degree and is often blurred. The fact that no clear-cut guidelines or distinguishing features have been spelt out to ascertain whether it belongs to one or the other category makes the task of identification on difficult. The semantics associated with interpretation play their role to a limited extent. Ultimately, it is a matter of probe into legislative intention and/or taking an insight into the working of the enactment if one or the other view is adopted. The doctrinaire approach to ascertain whether the legislation is by incorporation or reference is, on ultimate analysis, directed towards that end. The distinction often pales into insignificance with the exceptions enveloping the main rule."

"12. Did the legislature intend to bind itself to any further changes that may be made to the earlier enactment from which the provisions are borrowed? Or whether the legislature had frozen the provisions of an earlier Act prevailing on the date of enactment of a later statute so as to insulate it from the impact of subsequent modifications? These are the questions which loom large in judging the question whether the provisions borrowed from an earlier Act should be read subject to the subsequent amendments made therein. The language, the scheme and purpose of the Act no doubt assume significance while finding answer to this question."

71. The Hon'ble Supreme Court after referring to its earlier decisions in the case of Jainul Islam (supra) and Nagpur Improvement Trust (supra) has held that the benefits conferred by Section 23(1)(a) will be available and Sections 23(2) and 28 of the Land Acquisition Act, 1894, as amended by the 1984 Act, were applicable.

72. Applying the principles laid down in the aforesaid cases to the facts of the present case, we find that the four exceptions culled out by the Hon'ble Supreme Court in the case of the State of Madhya Pradesh v. M.V. Narasimhan (supra) are not applicable. The question of the subsequent Act and the previous Act being supplemental to each other, does not arise. The two Acts are not in pari materia. Moreover, the amendment in the First Statutes of the Gorakhpur University, if not imported in the Statutes applicable to the Purvanchal University, would not render the Statutes applicable to the Purvanchal University wholly unworkable and infructuous and the amendments made in the First Statutes of the Gorakhpur University either expressly or by necessary intendment has not been applied to the Purvanchal University. Further, it is a case of statute of specific reference and not by general reference. Thus, it is a case of legislation by incorporation and not legislation by reference. Moreover, we find that the State Government has framed the First Statutes of the Purvanchal University on 28th September, 1987. The second proviso to Statute 14.14(ii) (b) empowers the Selection Committee to relax the academic qualifications. We are of the view that Section 50(1-B) of the Act makes applicable the First Statutes of the University of Gorakhpur as in force immediately before the establishment of the Purvanchal University. Thus, on 2nd October, 1987, when the Purvanchal University was established, the First Statutes which were applicable to the University of Gorakhpur, became applicable to the Purvanchal University also. This position was to continue till such time the First Statutes of the Purvanchal University were made by the State Government. From a reading of Section 50(1-B) of the Act, it appears that the intention of the State Legislature was only to apply the Statutes applicable to the University of Gorakhpur as on the date of the establishment of the Purvanchal University, i.e., 2nd October, 1987. The State Legislature left it open to the wisdom of the State Government either to apply the Statutes which were applicable to the University of Gorakhpur on the date of establishment of the Purvanchal University as a whole or with such adaptations and modifications as it may deem fit by providing in the notification. The phrase "subject to such adaptations and modifications" would necessarily mean adaptation and modification as may be considered necessary in respect of the Statutes which were applicable to the University of Gorakhpur on the date of establishment of the Purvanchal University and not to any amendments or modifications of the Statutes of the University of Gorakhpur made on or after 2nd October, 1987. Thus, it is a case of legislation by incorporation and not a case of legislation by reference. Only those provisions of the First Statutes of the University of Gorakhpur have been made applicable which was in force on 2nd October, 1987 and nothing more. The phrase "subject to such adaptations and modifications" have been used by the State Legislature in Sub-sections (1) and (1-B) of Section 50 of the Act. The Statutes which were in force immediately before the commencement of the Act in respect of an existing University, were made applicable so long as the First Statutes are not made by the State Government. The State Government was also permitted to adopt the existing Statutes or modify it, but such adaptation and modification was to be notified in the Gazette. Even under Sub-section (1-B) the same position continued. The Statutes of the University of Gorakhpur have been made applicable to the Purvanchal University on the date of establishment of the Purvanchal University. Any adaptation and modification is to be notified by the State Government. The contention of the learned Additional Advocate General that once the Statute of the University of Gorakhpur has been amended and has been notified by the State Government, the amended Statute would ipso facto be applicable to the Purvanchal University, is not correct. Separate adaptation and modification has to be notified by the State Government in the Gazette, if the State Government wanted that the amendments made in the Statutes of the University of Gorakhpur after the establishment of the Purvanchal University is applicable to the Purvanchal University.

73. The phrase "subject to such exceptions and modifications" has been used by the framers of the Constitution of the India in Article 370(1)(d) of the Constitution of India. Article 370(1) reads as follows :

"370. Temporary provisions with respect to the State of Jammu and Kashmir.--Notwithstanding anything in this Constitution :

(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to :

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation.--For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948;

(c) the provisions of Article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify :

. ..... .."

74. From a perusal of clauses (c) and (d), reproduced above, it is seen that Article 1 and Article 370 of the Constitution of India has been made applicable. So for as the other provisions of the Constitution of India are concerned, the President has been empowered to specify by an order for making it applicable to the State of Jammu and Kashmir. The President has also been empowered to apply the provisions of the Constitution of India subject to any exception and modification to be specified.

75. The Hon'ble Supreme Court in the case of Sampat Prakash v. The State of Jammu and Kashmir and Anr., AIR 1970 SC 1118, has held that the President has to specify by an order if other provisions of the Constitution is to be made applicable to the State of Jammu and Kashmir. The exceptions and modifications have also to be specified.

76. The Hon'ble Supreme Court in the case of Sampat Prakash (supra) has held as follows :

"...........Under Article 370(1)(d), the power of the President is expressed by laying down that provisions of the Constitution, other than Article 1 and Article 370 which, under Article 370(1)(c), became applicable when the Constitution came into force, shall apply in relation to the State of Jammu and Kashmir subject to such exceptions and modifications as the President may by order specify. What the President is required to do is to specify the provisions of the Constitution which are to apply to the State of Jammu and Kashmir and, when making such specification, he is also empowered to specify exceptions and modifications to those provisions. As soon as the President makes such specification, the provisions became applicable to the State with the specified exceptions and modifications."

77. In the case of M.G. Desai and another v. State of Bombay, AIR 1960 SC 1312, the Hon'ble Supreme Court was considering the question as to whether the Bhor State Ordinance continued to remain in operation notwithstanding merger of the Bhor State, even after the Constitution was enacted, in view of Article 372 of the Constitution of India. In the aforesaid case, the fact were that Bhor State was one of the Indian States in the Deccan area. The Raja Saheb of Bhor promulgated the Bhor State Ordinance being the Government of Bhor State Act, 1942. Section 6 of the said Act gives inherent authority-executive, legislative and judicial to the Raja Saheb. It provided that notwithstanding anything contained in that Act or any other Act, shall be deemed to have affected the right and prerogative of the Raja Saheb to make laws, issue proclamations, orders and ordinances. The Government of India promulgated an Ordinance on 12th January, 1946, called, the High Denomination Bank Notes (Demonetisation) Ordinance, 1946. The Raja Saheb of Bhor, vide notification dated 19th January, 1946, applied the aforesaid Ordinance to the whole of the Bhor State with immediate effect. The Ordinance promulgated by the Government of India lapsed. The question arose whether any prosecution can be launched in respect of an offence committed under the aforesaid Ordinance in the Bhor State or not. The Hon'ble Supreme Court held that the Ordinance did not lapse on the expiry of six months from the date of its promulgation as the Raja Saheb of Bhor State had issued an order under Section 6 of the Government of Bhor State Act, 1942, applying mutatis mutandis the provisions of the Ordinance issued by the Central Government to the whole of the Bhor State. It further held that under Article 372(2) of the Constitution of India, the President is authorized to adopt the existing law but the application of the existing law is not conditioned by making an adaptation or modification in that law by the President. Para 15 of the judgment is reproduced below :

"There is no substance in the contention that in the absence of adaptations which the President of India which the President of India is competent to make under Clause(2) of Article 372, the Bhor State Ordinance lapsed. By Clause(2) of Article 372, the President is authorized to adapt existing laws; but the application of the existing laws is not conditioned by the making of adaptations or modifications in that law by the President."

78. Thus, the existing Statutes of the University of Gorakhpur on the date of establishment of the Purvanchal University, stood applied to the Purvanchal University without even a specific notification having been issued by the State Government in this behalf. However, if any, amendment or modification were to be applied, a specific notification by the State Government is required.

79. The contention of the learned Additional Advocate General that if any other interpretation is given to the provisions of Section 50(1-B) of the Act, then it would be discriminatory as in all other existing Universities, the Power of the Selection Committee to relax the qualifications has been taken away and only in respect of the Purvanchal University this power would be available with the Selection Committee under the Statutes of the University of Gorakhpur, as it stood on 2nd October, 1987, i.e.. the date of establishment of the Purvanchal University and would, therefore, be violative of Article 14 of the Constitution of India and to remove the imbalance and discrimination, the Court should interpret it in a way to remove the discrimination and imbalance and hold that the amended Statutes of the University of Gorakhpur even after the establishment of the Purvanchal University would be applicable, is misconceived. It is always open to the State Legislature to adopt a particular Statute which may be prevailing in a University for a new University and give the powers to the State Government to either apply the said Statutes as it is or apply it after such adaptation and modification as it may think proper. The State Government has not issued any notification applying the amendments made in the Statutes of the University of Gorakhpur after 2nd October, 1987 and, thus, there is no question of imbalance or discrimination.

80. Lord Watson in Aron Salomon v. A. Salomon and Co. Ltd.. (1897) AC 22, observed as under :

"Intention of the legislature is a common but very slippery phrase, which, popularly understood may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there had been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication."

81. The Privy Council in Crawford v. Spooner, 6 Moor PC 1, 8, observed as under:

"...............we cannot aid the legislature's defective phrasing of an Act, we cannot add or mend and, by construction made up deficiencies which are left there."

82. In the case of Pinner v. Everett, (1969) 3 All ER 257, the House of Lords has held as follows :

"In determining the meaning of any word or phrase in statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonable be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase. We have been warned again and again that it is (sic)rong and dangerous to proceed by substituting some other words oi the statute."

83. The Privy Council in the case of Srimati Renula Bose, v. Rai Manmatha Nath Bose and Ors., AIR (32) 1945 PC 108, has laid down that it is contrary to rules of constructions to read words into an Act unless it is absolutely necessary to do so.

84. The Hon'ble Supreme Court in the case of Shyam Kishori Devi v. The Patna Municipal Corporation and Anr., AIR 1966 SC 1678, has held that it a well known rule of constructions that a Court must consider a section, unless it is impossible to do so, to make it workable rather than to make it unworkable. In the words of Lord Bramwell, the words of a statute never should in interpretation be added to or subtracted from, without almost a necessity.

85. The Hon'ble Supreme Court in the case of Gauri Shanker Gour (supra) has held that it is settled law that the Court would make every and favour to give effect to the legislative intent full meaning by harmonious constructions and no part of the provision of the statute would be rendered surplus or otiose.

86. In the case of Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, Palghat and Anr., AIR 1990 SC 1747, the Hon'ble Supreme Court has held as under :

"8...............Felix Frankfurther, J. said: "Legislation is a form of litrary composition. But construction is not an abstract process equally valid for every composition, not even for every composition whose meaning must be judicially ascertained. The nature of the composition demands awareness of certain presuppositions..........And so, the significance of an enactment, its antecedents as well as its later history, its relation to other enactments, all may be relevant to the construction of words for one purpose and in one setting but not for another. Some words are confined to their history; some are starting points for history-words are intellectual and moral currency. They come from the legislative mind with some intrinsic meaning. Sometimes it remains unchanged. Like currency, words sometimes appreciate in value." The learned Judge further stated : "Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air, it is evinced in the language of the statute, as read in the light of other external manifestations of purpose. That is what the Judge must seek and effectuate. (See Courts, Judges and Politics by Walter F. Murphy; Some Reflections on the Reading of Statute by Falix Frankfurther)."

87. Keeping in mind the principles of interpretation laid down in the aforementioned cases, we are of the considered view that the interpretation which we have placed on Section 50(1-B) of the Act does not cause any violence to the plain language of the Section. Neither any words are required to be added nor any words or phrase has been made redundant.

88. The learned Additional Advocate General submitted that if the State Government has notified any amendment in the Statutes of the University of Gorakhpur under Sub-section (1) of Section 50 of the Act, the same would be applicable to the Purvanchal University also and no separate notification for the Purvanchal University is required. He relied upon the provisions of Sub-sections (1) and (1-B) of Section 50 of the Act and submitted that the phrase "subject to such adaptations and modifications" occurred in both the sub-sections. If any adaptation and modification of the University of Gorakhpur has been made by the State Government, the same is not required to be separately notified for the Purvanchal University as by its own force it would be applicable. The contention is misconceived, as we have already held the provisions of Section 50(1-B) of the Act is a piece of legislation by incorporation. It has incorporated only those Statutes of the University of Gorakhpur which were in force at the time of establishment of the Purvanchal University. It had not made applicable any subsequent amendment in the Statutes of the University of Gorakhpur. Thus, if subsequent amendments in the First Statutes of the University of Gorakhpur were to apply, the State Government has to provide the same for the Purvanchal University by issuing a specific notification.

89. It may be relevant to mention here that the First Statutes of the Purvanchal University have been framed by the State Government on 2nd November, 2000, and Statute 15.14(2) gives the power to the Selection Committee to relax the qualifications. Thus, the intention of the State Government is clear that subsequent amendment by which the power of relaxation given to the Selection Committee had been withdrawn in respect of the University of Gorakhpur, has not been made applicable to the Purvanchal University.

90. In view of the foregoing discussion, we are of the considered opinion that the 32nd Amendment in the First Statutes of the University of Gorakhpur is not applicable to the Purvanchal University as it was brought on 3rd March, 1989, i.e., subsequent to the establishment of the Purvanchal University. We are further of the opinion that the case of Dr. Abdul Quayum Khan has been correctly decided.

91. As we have already come to the conclusion that the First Statutes of the Gorakhpur University as was in force on 2nd October, 1987, i.e., the date of establishment of the Purvanchal University, alone are applicable to the Purvanchal University and the amendments made by the 32nd Amendment in the First Statutes of the University of Gorakhpur on 3rd March, 1989 are not applicable, the Selection Committee had the powers under the existing Statutes to relax the academic qualification in appropriate cases and the Vice Chancellor was not justified in declining to grant approval to the appointment of the petitioners. Thus, the order of the Vice Chancellor impugned in these writ petition cannot be sustained and are hereby quashed.

92. In the result, all these writ petitions succeed and are allowed. However, the parties shall bear their own costs.