JUDGMENT
G.P. Mathur, J.
1. These writ petitions under Article 226 of the Constitution have been filed for quashing the notifications dated 14.9.1983 and 3.6.1987 issued under Sections 28 and 32 respectively of U.P. Awas Avam Vikas Parishad Adhiniyam, 1965. A further prayer has been made that a writ of mandamus be issued declaring the entire acquisition proceedings under the impugned notifications as having lapsed and the respondents be restrained from interfering in the possession of the petitioners over the plots in dispute.
2. The U.P. Awas Evam Vikas Parishad (hereinafter referred to as the Parishad) floated a scheme known as Bhumi Vikas & Grih Asthan Yojna in Azamgarh and a notification under Section 28 of U.P. Awas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as the Adhiniyam) was issued on 14.9.1983 inviting objections to the scheme within 30 days. The notification mentioned the boundaries of the area comprising in the scheme. After the scheme had been sanctioned by the State Government, a notification under Section 32 of the Adhiniyam was published in the Gazette on 3.6.1987. Thereafter, the State Government on 17.7.1991, exercising power under Section 17(1) of Land Acquisition Act (hereinafter referred to as the L. A. Act) directed the Collector, Azamgarh, to take possession over the land in dispute after expiry of fifteen days from the publication of the notice mentioned in Section 9(1) even though no award had been made. Nearly six years thereafter, notice dated 19.6.1997 was issued to the tenure holders including the petitioners under Sections 9(1) and (2) of the L.A. Act directing them to appear before the Special Land Acquisition Officer on 8.7.1997. The parties adduced evidence and ultimately the Special Land Acquisition Officer gave an award on 30.12.2000. The respondents claim that the possession over the land in dispute was taken over on 29.1.2001 though this fact is disputed by the petitioners and they claim that they are still in possession.
3. The U.P. Awas Evam Vikas Parishad Adhiniyam, 1965 received the assent of the President of India on 28.1.1966 and was published in the Gazette on 16.2.1966. The Preamble of the Act is an Act to provide for the establishment, incorporation and functioning of a housing and development board in Uttar Pradesh. Section 28 of the Adhiniyam lays down that when any housing and improvement scheme has been framed, the Board (U.P. Awas Evam Vikas Parishad in view of Sections 2(d) of the Adhiniyam) shall prepare a notice to that effect specifying the boundaries of the area comprising in the scheme, the details of the land proposed to be acquired and the date by which objection to the scheme may be made. The notice has to be published weekly for three consecutive weeks in the Gazette and two daily newspapers having wide circulation in the area at least one of which shall be a Hindi newspaper. Section 30 of the Adhiniyam gives right to a person on whom a notice under Section 29 has been served to make an objection to the Board against the scheme. Section 32 of the Adhiniyam lays down that whoever the Board or the State Government sanctions a housing or improvement scheme, it shall be notified in the Gazette and the notification shall be conclusive evidence that the scheme has been duly framed and sanctioned. Any person aggrieved by the decision of the Board sanctioning a housing or an improvement scheme may prefer an appeal to the State Government under subsection (3) of Section 32 of the Act and the decision of the State Government shall be final. Sections 28, 30 and 32 of the Adhiniyam are akin to Sections 4, 5A and 6 of the L.A. Act. Section 55(1) is important and reads as under :
“55. Power to acquire 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, 1894 (Act No. 1 of 1894), as amended in its application to Uttar Pradesh, which for the purpose shall be subject to the modifications specified in the Schedule to this Act.”
4. The Schedule to the Act specifies the modifications in the L.A. Act as amended in its application to Uttar Pradesh. It provides that the first publication in the Official Gazette of a notice of any housing or improvement scheme under Section 28 or under Section 31(3)(a) of the Adhiniyam 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 L.A. Act. The publication of a notification under Sub-section (1) or Sub-section (4) of Section 32 of the Adhiniyam in case of land acquired under any other housing or improvement scheme shall be substituted for and have the same effect as ,a declaration by the State Government under Section 6 of the L.A. Act. Section 23 of the L.A. Act is also partly modified and a new Sub-section (2) is added which provides that in addition to the market value of the land, the Court shall in every case award a sum of fifteen per centum of such market-value in consideration of the compulsory nature of the acquisition.
5. Sri Shashi Nandan, learned Counsel for the petitioners has, submitted that under the scheme of the Adhiniyam, Sections 28 and 32 correspond to Sections 4 and 6 of the L.A. Act and Section 55 which deals with the power of the Board to acquire land specifically lays down that any land or interest therein required by the Board for the purposes of the Adhiniyam may be acquired under the provisions of L.A. Act as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to the Adhiniyam and thus, it is the provision of the L.A, Act which apply for the purpose of acquisition of the land. The L.A. Act was amended by the Parliament by Land Acquisition (Amendment) Act No. 68 of 1894. The notification under Section 32 of the Adhiniyam which shall correspond to Section 6 of L.A. Act was published on 3.6.1987 but the award under Section 11 was made more than 131/2 years after on 30.12.2000. It is urged that in view of Section 11A of L.A. Act which provides that the Collector shall make an award under Section 11 within a period of 2 years from the date of publication of the declaration and if no award is made within that period, the entire proceeding for the acquisition of the land shall lapse, the proceedings initiated for acquisition of the petitioners land have lapsed. Learned Counsel has further submitted that the compensation for the acquired land has been determined with reference to the date on which notification under Section 28 of the Adhiniyam was published, namely, 14.9.1983 and the award has been made after more than 17 years on 30.12.2000 and during this period the prices of land in cities and in the periphery of the cities have risen sky high and, thus, the compensation determined on such basis is not only wholly inadequate but is illusory. The submission is that the value of the land has been determined as it existed on the date of notification under Section 28 of the Adhiniyam viz., on 14.9.1983 and the payment of the amount now in the year 2001 would be wholly unfair to the landholders as from the said amount it is not at all possible for them to buy even a fraction of their original holding learned Counsel has submitted that in view of the fact that the respondents have taken more than 17 years to make the award, the acquisition proceedings ought to be quashed. Learned Counsel has also drawn attention to the statement of objects and reasons of Act No. 64 of 1984 which takes account of the fact that the pendency of the acquisition proceedings for long period after causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them. It emphasises the need for fixing a time frame of one year between issue of preliminary notification under Section 4 and the declaration under Section 6 of the L.A. Act and further a limitation of 2 years for making of the award after the declaration has been made under Section 6 failing which the entire proceedings for acquisition of the land would lapse. Shri Shailendra, learned Counsel for the petitioners in the connected writ petition has supported the contention of Shri Shashi Nandan and has further submitted that the scheme of the Adhiniyam shows that any housing or development scheme has to be executed expeditiously and any delay may cause immense injury to public at large. He has drawn attention to Section 35 which provides that where a notice has been published under Section 28 in respect of a housing or improvement scheme, no person shall, until the scheme is abandoned or sanctioned and if the scheme has come into force during the period of 2 years from the date of its commencement, erect, reerect, add to or alter any building or otherwise develop any land in the area comprised within the scheme except in accordance with the scheme and subject to such restrictions and conditions as the Housing Commissioner may, on an application for permission in this behalf, by an order impose. Section 44 provides that where the State Government is of the opinion, after a notice of a housing or improvement scheme has been published under Section 28, that it is expedient in the public interest that any a scheme framed under Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, covering the same area or part thereof should not be further proceeded with, it may, after giving to the Nagar Mahapalika concerned an opportunity of making written objections, direct that the scheme shall not be so proceeded with. Sub-section (2) of Section 44 places a restriction upon Nagar Mahapalika or any other local authority to dispose of any property within the area comprising in a scheme without the permission of the State Government, after a notice has been published under Section 28 of the Adhiniyam. Section 73 of the Adhiniyam provides that if any person erects, re-erects, adds to, or alters any building in contravention of the provisions of Section 35, he shall be punishable with fine which may extend to ten thousand rupees, and in case of continuing breach, with further fine which may extend to five hundred rupees for each day during which the breach continues after the first conviction. Learned Counsel has submitted that these provisions are very drastic in nature and impose a serious restriction on the owner of the property to make any kind of alteration or construction or to develop the property after a notification under Section 28 has been issued. They further impose restriction upon the local authority or Nagar Mahapalika not to proceed with any scheme. According to learned Counsel, the intention behind making of these provisions may be good that the development work may not be hampered or obstructed in any manner but at the same time they also contemplate that the scheme should be executed with utmost expediency so that the restrictions imposed upon persons living in that area to make any improvement, alteration or construction over their own property. Or even on the Nagar Mahapalika or local authority may not remain in operation for a long period.
6. Shri Pankaj Mittal, learned Counsel for the Awas Evam Vikas Parishad (Board) has, submitted that in view of Section 55 of the Adhiniyam land may be acquired under the provisions of Land Acquisition Act as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to the Adhiniyam. The effect of Section 55 of the Adhiniyam is to make legislation by incorporation of an earlier Act. According to Shri Mittal when an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act as if they had been bodily transposed into it. The legal effect of this is to write the section into the new Act as if they had been actually written in its with the pen or printed in it. The Adhiniyam having come into force on 16.2.1966, the provisions of the Land Acquisition Act as they stood on the said date after amendment in Uttar Pradesh, would be applicable and any subsequent amendment in the L.A. Act will have no bearing on application. “Therefore, Section 11A of the L.A. Act which prescribes a limitation of 2 years for making the award can have no application here. Learned Counsel has further submitted that the Adhiniyam is a special enactment and a self contained Code and is not confined to making provisions for acquisition of land and, therefore, it is only the provision of this Adhiniyam, which can be looked into. He has also submitted that the petitioners can not complain of discrimination as there are some other enactments which contain altogether different provisions regarding acquisition and payment of compensations like, Section 37 of Defence of India Act, where no solatium is paid. Shri Mittal has also submitted that total area of land acquired was 48.92 acres and as many as 71 sets of objections were filed and therefore, their hearing and decision took time. The Collector also failed to evaluate the value of the property within a reasonable time and no blame can possibly be laid upon the Parishad for the delay in making of the award by the Special Land Acquisition Officer.
7. The Principal question which requires consideration is whether the proceedings for acquisition of land would lapse in view of Section 11A of L.A. Act as the award was made more than 13 years after the notification under Section 32 of the Adhiniyam which corresponds to Section 6 of the L.A. Act was published. By Land Acquisition (Amendment and Validation) Act, 1967 (No. 13 of 1967), a proviso was added to Section 6(1) of L.A. Act which provides that no declaration under Section 6 of the principal Act in respect of any land which has been notified before the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (No. 1 of 1967), under Sub-section (1) of Section 4 of the principal Act, shall be made after the expiry of 3 years from the commencement of the said Ordinance. The effect of this amendment was considered by two Division Bench decisions of this Court in Khadim Hussain v. State of U.P., AIR 1973 Alld. 132 and Bharat Sewak Samaj Sahkari Grih Nirman Samiti v. State of U.P., 1981 ALJ 409 and it was held that the limitation of 3 years provided in the L.A. Act for issuance of notification under Section 6 thereof was not applicable in cases where land was sought to be acquired in pursuance of a scheme framed under the Adhiniyam. This question was re-examined by a Full Bench of this Court in Doctors’ Sahkari Grah Nirman Samiti Ltd. v. Awas Evam Vikas Parishad, AIR 1984 Alld 234 and it was held that where a statute is incorporated by reference into a draft statute, the repeal or amendment of the first Statute does not affect the second and accordingly any amendment made in the incorporated provisions of the Land Acquisition Act in the Year 1967 will have no bearing whatsoever on the question of acquisition of property in connection with a scheme formulated under the Adhiniyam, S.L.P. No. 92-94 of 1984 preferred against the said decision was dismissed by the Supreme Court on 13.11.1984. This very question was considered by a Bench of 2 Hon’ble Judges in Gauri Shankar Gaur v. State of U.P., AIR 1994 SC 169, and Hon’ble K. Ramaswamy, J., held as follows in Para 33 of the reports :
“Section 55 of the Act read with the Schedule made an 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 or ineffectual. May be incompatible with proviso to Section 6(1) of L.A. Act. The U.P. Legislature did not visualise that later amendment to Central Act 1 of 1984 i.e., L.A. 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.”
8. In Paragraph 41, his Lordship held that the limitation of 3 years prescribed in the first proviso to Section 6 of the L.A. Act is not attracted. However, Hon’ble R.M. Sahai, J. expressed a dissenting note and held as under in Para 47 of the report:
“…………..It would be unjust to exclude operation of the beneficient provision added for general betterment in social interest, by reporting to rule of construction. The Courts are obliged to adopt a constructive approach while construing such provisions. In absence of express exclusion it is more in consonance with justice to hold that the restriction of three years added by the proviso to Section 6 applied to the Act. Any effort to demonstrate impossibility of completing proceedings within three years cannot be countenanced. Legislative intention cannot be frustrated by executive inaction. The acquisition proceedings thus came to end after expiry of three years from the date of issuance of Notification under the Act analogous to Section 4 of the L.A. Act.”
9. Though Hon’ble Sahai, J. had deferred regarding applicability of proviso to Section 6 of the L.A. Act, but agreed with the final order regarding dismissal of the writ petition on equitable consideration viz., that in view of the fact that Awas Evam Vikas Parishad had taken possession and had constructed housing colonies and the demolition of the houses would have caused incalculable loss and injury to the occupants of the houses who had purchased the same from the Parishad. The same question again came to be examined in U.P. Awas Evam Vikas Parishad v. Pusp Lata Awasthi, (1995) 3 SCC 573, and it was held that the provisions of Land Acquisition (Amendment) Act, 1984 (No. 68 of 1984), were inapplicable and, therefore, the notification acquiring the land would not lapse. In Ramesh Chandra Tiwari v. U.P. Awas Evam Vikas Parishad, AIR 1996 SC 3274, it was reiterated that the amendments made by Act No. 68 of 1984 to the L.A. Act would not apply to the acquisition of the land made by issuing notifications under Sections 28 and 32 of the Adhiniyam. In Satya Pal v. State of UP., (1997) 9 SCC 117, it was again held that Land Acquisition (Amendment) Act, 1984 (No. 68 of 1984) has no application to the acquisition made under the Adhiniyam and, consequently, Section 11A of the L.A. Act would not apply. In view of these decisions by the Apex Court there is absolutely no scope for holding that the award having not been made within 2 years of the publication of notification under Section 32 of the Adhiniyam, the acquisition proceedings would lapse by virtue of Section 11A of L.A. Act and the contention raised by the petitioners must be rejected.
10. Shri Shashi Nandan, learned Counsel for the petitioners has submitted that the three decisions referred to above, namely, U.P. Awas Evam Vikas Parishad v. Pusp Lata Awasthi; Ramesh Chandra Tiwari v. U.P. Awas Evam Vikas Parishad and Satya Pal v. State of UP., have been rendered by a Bench of 2 Hon’ble Judges wherein reliance has been placed on Gauri Shankar Gaur v. State of UP., AIR 1994 SC 169, but; as in this case there was difference of opinion between the two Hon’ble Judges constituting the Bench regarding applicability of Land Acquisition (Amendment And Validation) Act, 1967, therefore, the aforesaid decisions can not be held to be laying down any binding precedent. In our opinion, the contention raised is wholly misconceived. The difference of opinion was noticed in Satya Pal v. State of U.P., and yet it was held that Section 11A of L.A. Act would not apply. These judgments have been rendered subsequent to the decision in Gauri Shankar Gaur’s case and they are fully binding upon this Court. The contention raised by the learned Counsel for the petitioners having been squarely decided against them in the aforesaid three decisions, it is not open to this Court to take a contrary view.
11. A subsequent pronouncement by Bench of three Hon’ble Judges in U.P. Awas Evam Vikas Parishad v. Jainul Islam, AIR 1998 SC 1028, has again taken the same view. What has examined here was the question relating to applicability of the provisions contained in Land Acquisition (Amendment) Act, 1984, which included insertion of Sub-section (1-A) of Section 23 and amendment of Sections 23(2) and 28 of the L.A. Act whereby the solatium payable under Section 23(2) has been enhanced from 15 percent to 30 per cent and the interest payable under Section 28 has been enhanced from 6 per cent to 9 per cent and 15 per cent. In Para 12 of the reports, the Court referred to Gauri Shankar Gaur (supra) and also noticed that there was difference of opinion between the two Hon’ble Judges Constitution the Bench. It was held as under in Para 21 of the reports :
“……..The amendments introduced in the L.A. Act by the 1984 Act were not part of the L.A. Act as applicable in the State of Uttar Pradesh, at the time of passing of the Adhiniyam. The provisions of the L.A. Act, as amended in its application to U.P., 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 L.A. Act unless any of the exceptional situations indicated in State of Madhya Pradesh v. M.V. Narasimhan, AIR 1995 SC 1835, (supra) can be attracted.”
12. In Para 22 and 23, the Court expressed its dissent with the view taken by Hon’ble R.M. Sahai, J., and thus the view taken by his Lordship stands expressly over-ruled. Therefore, the main contention of the learned Counsel for the petitioners that the land acquisition proceedings have lapsed on account of non-making of award within 2 years of the publication of notification under Section 32 of the Adhiniyam is devoid of any merit and has to be rejected.
13. Shri Shashi Nandan has next submitted that the Parishad had issued a general notice on 29.7.1994 to the effect that those persons who wanted to directly sell their land to the Parishad may give their offer in a sealed envelope between 28.7.1994 and 3.8.1994 and this shows that the Parishad itself was proceeding on the assumption that acquisition proceedings had lapsed. In the counter-affidavit, it is stated that notice was issued with the intention to settle the matter of compensation by means of an agreement but no one appeared. In our opinion from the mere fact that the Parishad invited people to sell the land, it is not possible to draw an inference that it was proceeding on the assumption that the acquisition proceedings had lapsed. The Parishad may have done so in order to avoid future litigation. Land holders are after not satisfied with the determination of compensation made by the Collector and they ask for a reference under Section 18 of L.A. Act and the decision of the Court is further challenged by filing an appeal. The outright purchases of the land which was subject matter of acquisition would have certainly saved public time and would have avoided litigation.
14. The challenge to the determination of compensation with reference to the date of notification under Section 28 of the Adhiniyam may be examined now. There is no dispute that the notification under Section 28 was published on 14.9.1983 and the award by the Special land Acquisition Officer has been made after more than 17 years on 30.12.2000. The petitioners had not secured any stay order and, therefore, they are not responsible for the delay in making of the award. Normally an agriculturist whose land has been acquired tries to purchase alternate land from the amount of compensation received by him. This is necessary for his survival. An agriculturist is neither trained nor has the expertise to carry on any other occupation. He does not have the business acumen to start a business nor he may be having the desired educational qualification to get a job and may be of such an age that getting a job may become impossible. Judicial notice can be taken of the fact that prices of land in urban areas and in periphery thereof have risen many folds in the last two decades. There is great substance in the contention of learned Counsel for the petitioners that had the compensation amount been paid to them soon after the notification had been published in the year 1983, they could have bought some alternate land with the said amount for their survival. But the amount being paid to them now would not enable them to buy even a fraction of the land which they originally possessed and, thus, they would suffer irreparable injury. The statement of objects and reasons of the Land Acquisition (Amendment) Act, 1984 clearly highlights this fact in the very first paragraph by stating that the pendency of acquisition proceedings for long periods often causes hardships to affected parties and renders unrealistic the scale of compensation offered to them. It is also stated therein that it was necessary to restructure the legislative framework for acquisition of land so that it is more adequately informed by this objective of serving the interest of the community in harmony with the rights of the individuals. Fixation of time limit in completing the acquisition proceeding was emphasised in Paras 2(iii) and (v). In U.P. Awas Evam Vikas Parishad v. Jainul Islam (supra), it was held in Para 31 that the provisions of the Adhiniyam should be so construed that the provisions of the L.A. Act, as they stood on the date of enactment of the Adhiniyam, would be applicable to acquisition of land for the purposes of Adhiniyam but the amendments introduced in relation to determination and payment of compensation should be made applicable otherwise the same would be hit by the vice of arbitrary and hostile discrimination. It was accordingly held that the amendments in the L.A. Act relating to determination and payment of compensation would be applicable to acquisition of land for the purposes of Adhiniyam and thus Sections 23(1-A) and 23(2) and 28 as amended by 1984 Act would apply. The combined effect of Sections 6 and 11A of the L.A. Act is that the award has to be given within three years of the publication of notification under Section 4(1) of the L.A. Act. The intention of the legislature is that all tenure holders must get compensation within three years of the preliminary notification under Section 4(1) of the Act. In the present case, the award has been made on 30.12.2000 and the date three years prior to the said date would be 30.12.1997. The first notice issued under Sections 9(1) and (2) of L.A. Act bears the date 19.6.1997 and required the tenure holders to appear on 8.7.1997. In the peculiar facts and circumstances of the case, it appears to us equitable and also just and proper that the market value of the acquired land should be determined with reference to the said date, namely, 8.7.1997 when the tenure holders were for the first time required to put forward their claim to compensation. It may be mentioned here that in Ramesh Chandra Tiwari and Gauri Shankar Gaur (supra), it was directed that compensation will be determined with reference to the date of notification under Section 32 of the Adhiniyam. In Satya Pal (supra), a direction was issued that if the Land Acquisition Officer did not make the award within 6 weeks, interest @ 18 per cent would be awarded. The directon issued by us would not be very unfair to the Parishad either. A copy of the award has been filed as Annexure-2 to the counter-affidavit filed by Shri Awadhoo Ram, Special Land Acquisition Officer. This shows that an amount of Rs. 56,03,410/- has been determined as market value of the land, Rs. 17,57,988/- towards 30 per cent solatium and Rs. 1,21,29,533/- towards additional statutory sum calculated @ 12 per cent on the market value commencing from the date of publication of notification under Section 28 to the date of award in terms of Section 23(1-A) of L.A. Act. This statutory sum at the rate of 12 per cent has become more than double of the market value on account of long period of 17 years which has elapsed. If compensation is determined with reference to the date of appearance in the notice under Section 9 of L.A. Act which is 8.7.1997, this amount will get considerably reduced.
15. The writ petitions are accordingly partly allowed. While upholding the validity of the acquisition proceedings the award made by the Special Land Acquisition Officer (respondent No. 3) on 30.12.2000 (Copy filed as Annexure-2 to the counter-affidavit filed by the State) is quashed. The Special Land Acquisition Officer is directed to redetermine the compensation treated 8.7.1997, the date of appearance in the notice under Section 9(1) of L.A. Act, as the date on which the market value of the acquired land will be determined and the statutory sum @ 12 per cent per annum in terms of Section 23(1-A) of the L.A. Act shall also be calculated from the said date.
16. Parties to bear their own costs.