1. The appellants are the owners of Survey No. 67 area 9.76 acres, Survey No. 68 area 10.37 acres, Survey No. 69 area 11.45 acres and Survey No. 70 area 8.16 acres situated at Mouza Chikhali, Tahsil and District Nagpur. These lands were acquired for Eastern Industrial Area Street Scheme by the Nagpur Improvement Trust. The notification regarding framing of the said scheme was published on 30-6-1962 under S. 39 of the Nagpur Improvement Trust Act, 1936 (hereinafter referred to as "the N.I.T. Act" for the sake of brevity). This notification under S. 39 of the Nagpur Improvement Trust Act corresponds to the notification under sub-section (1) of S. 4 of the Land Acquisition Act, 1894. A final noiification under S. 45 of the Nagpur Improvement Trust Act was also issued, Which notification corresponds to S. 6 of the Land Acquisition Act, 1894.
2. The Land Acquisition Officer adopted the land rate of Rs. 1800/- per acre for survey No. 70 and the land rate of Rs. 3000/- per acre for the remaining three fields. After adding solatium of 15% the total compensation awarded to the appellant was Rupees 1,26,250/- only. The award was accordingly passed on 31-12-1969. Since the appellants were not satisfied with the award passed by the. Land Acquisition Officer, they filed a reference under S. 18 of the Land Acquisition Act before the Tribunal. They claimed the compensation at the rate of Rs. 30,000/- per acre for the field Survey Nos. 67, 68 and 69 and at the rate of Rs. 20,000/- per acre for field Survey No. 70. The claim in respect of the well and also trees were also included in the reference. The Tribunal after considering the evidence on record, awarded the compensation at the rate of Rs. 11,000/- per acre. The Tribunal took into consideration the transaction of sale of land Survey Nos. 29, 42 and 43 of Mouza Pardi by the Nagpur Improvement Trust to the Ware Housing Corporation, Nagpur vide sale deed dated 15th February, 1963. The sale of land under the said sale deed was at the rate of Re. 0.96 paise per sq. ft. The rate awarded for the land under acquisition was Re. 0.25 paise per sq. ft, only because, according to the Tribunal, the situation of the fields was beyond the railway crossing and a Nallah also intervenes. It also considered the heavy development cost, which will be required to be incurred for developing the lands. The judgment of the Tribunal was challenged by the appellants in Writ Petition No. 2561 of 1982. The said writ petition, which was heard with Writ Petition No. 2448 of 1982, also came to be dismissed by a common judgment dated 19th June, 1987. Feeling aggrieved thereby this Letters Patent Appeal is filed by the appellant claimants.
3. No fault could be found in the approach of the Tribunal for taking into consideration the sale transaction dated 15th February, 1963 in order to assess the value of the land under acquisition. It appears that the land sold under the said sale deed was a developed piece of land, whereas the fields under acquisition are not at all developed. Considering this factor the value of the land under acquisition was reduced by 3/4 of the value of the land under the sale deed dated 15th February, 1963. It is this reduction in value which is disputed before us. It was vehemently contended on behalf of the appellants that there was no justification for reducing the price drastically to the extent of 3/4th of the value by way of development charges. Our attention was drawn to the observations of the Supreme Court in Tribeni Devi v.
Collector, Ranchi, and Brig. Sahib Singh Kalha v. Amritsar Improvement Trust, . In the former case, it is observed that in order to develop the area at least 1/3rd value of the land would have to be deducted for roads, drainage and amenities, while in the latter case it was observed that it is a well settled principle of valuation that where there is a large area of undeveloped land under acquisition, provision has to be made for providing minimum amenities of town life, such as water connection, well laid out roads, drainage, facility, electric connection etc. The process necessarily involves deduction of cost of factors required to bring undeveloped lands on par with developed lands. An extent of 20 per cent of the total land acquired is normally taken as a reasonable deduction for the space required for roads, but the cost of development may range between 20 and 33 per cent depending on the nature of the land, its situation and the stage of development etc.
4. The evidence on record discloses that the Nagpur Improvement Trust sold survey Nos. 42 and 43 of Mouza Pardi to the Central Ware Housing Corporation on 15-2-1963 at the rate of O. 96 paise per sq. ft. and these lands are at a distance of about one furlong from the lands which are under acquisition.
There is also evidence on record to show that the land sold under the sale deed dated 15-2-
1963 is a piece of developed land, whereas the land under acquisition is still an agricultural land situated at an interior place having no approach road whatsoever. Apart from the peculiar situation, one has to cross the railway line and a nallah in order to reach the land under acquisition. These factors cannot be ignored while fixing the value of the land in question. Taking this aspect into considera tion as well as the development charges, we feel that the Tribunal was justified in deduct ing 3/4th of the value of the land while granting compensation to the appellants.
Therefore, the reliance placed upon the deci sion of the Supreme Court in the case of Tribeni Devi and Brig.
Sahib Singh Kalha (cited supra) cannot be of such assistance to the appellants. The learned single Judge of this Court was right in not interfering with the decision of the Tribunal. We agree that the compensation fixed by the Tribunal was reasonable calling for no interference in this appeal.
5. Next question which falls for determination is whether sub-section (2) of Sec. 23 of the Land Acquisition Act, 1894 as amended by the Act No. 68 of 1984 would apply making the appellants eligible to 30 per cent solatium on the market value of the land in consideration of compulsory nature of acquisition. Elaborate arguments were advanced on both sides and reliance was also placed on various decisions of this Court as well as that of the Supreme Court. It is, however, a settled principle of law that where a certain provision 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. But where a statute incorporates by general reference the law concerning the particular subject, it may be presumed that the legislative intent was to include all such subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. Heavy reliance was placed on behalf of the respondent Trust on the decision of a Division Bench of this Court in All India Reporter Ltd. v. Nagpur Improvement Trust (Writ Petn. No. 1370 of 1975 along with other Writ Petitions decided on 14-6-1983). One of the points involved therein was, whether the first proviso to S. 6 (newly added) of the Land Acquisition Act would be applicable to the , notification issued under Sec. 45 of the Nagpur Improvement Trust Act and hence if any notificaiton is published three years after the publication of notice under S. 39 of the Nagpur Improvement Trust Act would be null and void being in breach of the said proviso to S. 6 of the Land Acquisition Act. It was held therein that the subsequent amendment, by which the first proviso to S. 6 was added in the Land Acquisition Act, 1894, cannot automatically be made applicable in the matter of acquisition of land by the Nagpur Improvement Trust. On the other hand the contention on behalf of the appellants was that the Land Acquisition Act was not incorporated in the Nagpur Improvement Trust Act,"but was only referred to or cited in it and therefore any amendment made in the Land Acquisition Act was also applicable for acquisition under the Nagpur Improvement Trust Act. In short, the contention was that it is a case of "reference" and not a case of "incorporation". In view of the rival contentions supported by the cases referred to by the respective parties, deep probing is warranted in the circumstances.
6. Taking up the case of Division Bench of this Court in All India Reporter Ltd. v.
Nagpur Improvement Trust (Writ Petn.
No. 1370 of 1975 : (reported in(1983) 85 Bom LR 321) with other connected petitions), the question that fell for consideration was as to whether the first proviso to S. 6 which came to be inserted in the year 1967 by the Land Acquisition (Amendment and Validation) Ordinance, subsequently converted into an Act, would be applicable to a notification published under S. 45 of the Nagpur Im provement Trust Act, and if so, whether such notification published three years after pub lication of the notification under S. 39 of the Nagpur Improvement Trust Act would be null and void. After discussing various provi sions of the Nagpur Improvement Trust Act the learned Judges of the Division Bench held that the amended proviso to S. 6 of the Land Acquisition Act cannot be made applicable to the notification issued under S. 45 of the Nagpur Improvement Trust Act. In our opinion also, the particular point, viz. the applicability of the proviso to S. 6 to the notification published under S. 45 of the Nagpur Improvement Trust, is correctly de cided. It will be relevant to clearify at this stage that the point involved in the case before us is altogether different and that is payment of compensation under S. 23 of the Land Acquisition Act, there being no independent provision in the Nagpur Improvement Trust Act on that subject.
7. The submission of the learned counsel for the respondent trust was, however, that the ratio of the said decision of the Division Bench is that no amendments made to the Land Acquisition Act to any section whatsoever after the year 1936, the year in which the Nagpur Improvement Trust Act was enacted, will be applicable to the proceedings taken up for compulsory acquisition of the land for sanctioned Nagpur Improvements Trust schemes. Reliance was also placed on another decision of this Court in Jagoba Morba Dhamankar v. State of Maharashtra (Writ Petn. No. 2287 of 1983 decided on 28th January 1987). We may only add that the learned single Judge hearing the writ petition simply followed the decision of the Division Bench in the case of All India Reporter Ltd. (1983-85 Bom LR 321) (cited supra). It appears that the relevant decisions of the Supreme Court were not brought to the. notice of the learned Judge, In any case we find it difficult to agree with the learned counsel for the Trust to hold that the ratio of the decision of the Division Bench in the case of All India Reporter Ltd. (cited supra) is so generalised and is of such a sweeping nature. To decide this point, we propose not only to look into the scheme of the Nagpur Improvement Trust Act but also the established principles in the relevant decisions of the Supreme Court cited at the Bar.
8. A statute may instead of referring to a particular previous statute or to any specific provision therein, refer to the law or the subject generally. In such cases reference is construed to mean that the law as it reads thereafter including amendments subsequent to the time of adoption. This principle was applied in Bajya v. Gopikabai, while construing S. 151 of the Madhya Pradesh Land Revenu Code, 1954 which provides that "subject to his personal law, the interest of a tenure holder shall on his death pass by inheritance, survivorship or bequest as the case may be." It was held that this was a case where a statute incorporated by reference the law on the subject generally and, therefore, the expression 'personal law' will not be limited to personal law as it stood in the year 1954, when the Madhya Pradesh Land Revenue Code was enacted, but will also embrace all subsequent statutes like Indian Succession Act, 1956, which from time to time amended the personal law. The principle laid down in this case is as follows (at p. 797 of AIR):
"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 awgenus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adoptive 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."
9. The other relevant case for our purpose is the case of Western Coalfields Ltd. v. Special Area Development Authority, . In that case S. 69(d) of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 enacted that the Special Area Development Authority shall for the purposes of taxation have the powers which a municipal corporation or a municipal council has as the case may be, under the Madhya Pradesh Municipal Corporation Act, 1956 or the Madhya Pradesh Municipalities Act, 1961. This was held to be not a case of incorporation, but of mere reference and hence additional power of taxation conferred on the Municipal Corporation or Municipalities by amending the Corporation Act or the Municipalities Act became available to the Special Area Development Authority. The principle followed in this case is extracted below (at p. 704 of AIR) :--
"The Act of 1973 does not provide for any independent power of taxation or any machinery of its own for exercising the power of taxation. It rests content by pointing its finger to the provisions contained in the two Municipal Acts. The three Acts are therefore supplemental, from which it must follow that amendments made to the earlier Acts after the enactment of section 69(d) shall have to be read into that section. Without recourse to such a construction, the power of taxation conferred by that section will become ineffectual. A reading of the reference to the two earlier Muncipal Acts as a reference to those Acts as they stand at the time when the power of taxation is sought to be exercised by respondent 1, will not, possibly, cause repugnancy between the two earlier Acts on one hand and the Act of 1973 on the other, nor indeed will it cause any confusion in the practical application of the earlier Acts, because the Act of 1973 does not contain any independent provision or machinery for exercising the power of taxation."
10. In order to find out the applicability of the aforesaid principles to the present case, it is also necessary to look into the scheme of the N. I. T. Act, 1936. The provisions contained in S. 36 to 45 of the N. I. T. Act, 1936 which correspond" to Ss. 4 to 6 of the Land Acquisition Act, 1893, deal with the procedure to be followed in framing an improvement scheme. In other words, it is an expression of intention to acquire the land for the Nagpur Improvement Trust scheme, the only rider being the approval of the State Government. Once that stage is over, the question of acquisition of land arises. Two modes are prescribed for acquisition. Section 58 of the N. I. T. Act, 1936 empowers the Nagpur Improvement Trust to enter into an agreement with any person for acquisition by purchase, lease or exchange by the Trust from such person of any land within the area comprised in a sanctioned scheme. The other mode prescribed is that of compulsory acquisition in S. 59 of the N. I. T. Act 1936, which reads as under:
"59. The Trust may, with the previous sanction of the State Government, acquire land under the provisions of the Land Acquisition 1894, as modified by the provisions of this Act, for carrying out any of the purposes of this Act."
A reading of the section makes it abundantly clear that the N. I. T. Act, 1936 does not have any independent provision for compulsory acquisition of the land. The right to acquire the land by the Nagpur Improvement Trust for the purposes of S. 39 to 45 flows only out of S. 59. In this respect as well as for the payment of compensation, the N. I. T. Act, 1936 simply points a finger to the Land Acquisition Act, 1894 without laying down any specific procedure for the purpose. There-
fore, the right to acquire the land flows from the Land Acquisition Act itself and this is also apparent from the marginal note to S. 59 which reads as "power to acquire land under the Land Acquisition Act, 1894". Needless to mention here that it is well established principle of law that while interpreting the provision of a particular section, what prevails is the wording of the section itself, but it is equally the well settled principle that the marginal notes to provide guidelines for interpreting provisions of a particular section and to understand the purport thereof. Section 59 of the N. I. T. Act, 1936 does reserve the power to modify the provisions of the Land Acquisition Act and that power flows from S. 61(b) of that Act, which provides that for the purpose of acquiring the land under the Land Acquisition Act, 1894 for the Trust, the Act shall be subject to further modifications as indicated in the schedule. The question that arises is whether the power to modify, as contained in S. 59 and 61(b) of the N. I. T. Act will apply to the referred Act, namely, the Land Acquisition Act as it stood at the time of its enactment in the year 1894 or does it mean that the power to modify in the N. I. T. Act is in addition to the amendments made from time to time in the Land Acquisition Act. In view of the principles laid down in the Western Coalfield's case (cited supra), if the power and also the procedure to acquire the land flows only because of the Land Acquisition Act and not independently under the N. I. T. Act, then it is certainly a case of referred Act and consequently all amendments made in the referred Act from time to time will have to be taken into consideration, being applicable in view of the principles laid down in the Supreme Court case referred to above.
11. To come to the specific point involved in the case, the scheme of the Act makes no independent provision for acquisition of land for the Nagpur Improvement Trust schemes approved by the State Government. There is also no independent provision made for paying compensation for the land acquired by the Nagpur Improvement Trust. For both the purposes the source of power as well as the procedure is the Land Acquisition Act, 1894. Under these circumstances, the amendments made to the Land Acquisition Act will have to be considered while deciding at what rate compensation is to be paid. If the State Legislature is not in agreement to pay solatium at a particular rate under subsection (2) of S. 23 of the Land Acquisition Act, the power is vested in them to make appropriate modifications under the powers reserved in S. 59 read with S. 61(b) of the Land Acquisition Act. N. I. T. Act. The corollary follows that unless the State Legislature modifies the relevant provision exercising its reserved powers under S. 59 read with S. 61 (b) of the N.I.T. Act differing from the amendments made in the Land Acquisition Act. 1894 in the matter, the latter amendments will remain in force and compensation will have to be granted under the amended provisions of sub-section (2) of S. 23 of the N.I.T. Act. As a matter of fact the provision was made in paragraph 10 (2) and 10(3) of the Schedule to the N. I. T. Act. under S.61 thereof, but were held to be void and not effective in determining the amount of compensation payable in respect of the property acquired by the Trust. The provisions in so far as they add a new clause (3)(a) to S. 23 and a proviso to sub-section (2) of S. 23 of the Land Acquisition Act are held to be ultra vires as violating the guarantee of Article 14 of the Constitution in the case of Vithalrao v. The Collector, Land Acquisition Officer for N.I.T. 1969 Mah LJ 272.
12. We are hence unable to agree with the contention on behalf of the respondent Nagpur Improvement Trust that the ratio of the decision of the Division Bench in the case of All India Reporter Limited (1983-85 Bom LR 321) (cited supra) was that no amendment made to the Land Acquisition Act to any section whatsoever after 1936, the year in which the N. I. T. Act was enacted, will be applicable to the proceedings taken up for compulsory acquisition of the land for sanctioned Nagpur Improvement Trust schemes. Three reasons are obvious. First the point involved and decided by the Division Bench in the case of All India Reporter Ltd. was quite different. As stated earlier the point before the Division Bench was the applicability of the proviso to S. 6 (newly added) to the notification issued under S. 45 of the N. I. T. Act. Secondly, if the learned counsel representing the respondent Trust wants certain observations in the judgment of All India Reporter Limited's case to mean that the ratio in that case is what he contends, then as per the general principles, it will have to be treated as obiter dicta. We are not inclined to read that ratio as a general sweeping proposition, as is sought to be contended before us. Thirdly, even otherwise if the observations made in the judgment are to be construed as streneously contended on behalf of the respondent Trust, we will be constrained to hold that the said decision is rendered per incurium in view of the categorical principles laid down by the two decisions of the Supreme Court in Bajiya's case and Western Coalfield's case (both cited supra). None of the two decisions were brought to the notice of the Division Bench, when it decided the case of All India Reporter Limited (1983-85 Bom LR 321).
13. Though we have held that sub-section (2) of S. 23 of the Land Acquisition Act as amended by Act No. LXVIII of 1984 would be applicable to the compulsory acquisition made by the Nagpur Improvement Trust under their scheme, the question still remains whether the appellants are entitled to the benefit of payment of solatium at the enhanced rate of 30 per cent on the ground that the present appeal was pending before this Court after 30th April, 1982. The appellants would be entitled to the benefit under subsection (2) of S. 23 of the Amending Act No. LXVIII of 1984, only if the Constitution Bench of the Supreme Court upholds the view expressed in Bhag Singh v. Union Territory of Chandigarh and overrules "the view" expressed in K. Kamala jamman-niavar v. Special Land Acquisition Officer which judgment is still awaited.
14. The appeal is allowed only in part to the extent that the procedure for acquisition and determination of compensation shall be in accordance with the Land Acquisition Act as amended from time to time. Only to that extent the judgment of the learned single Judge is set aside. The entitlement to the enhanced amount of solatium will however depend upon the final outcome of the decision of the Supreme Court which is awaited. In the circumstances of the case, the parties are directed to bear their respective costs.
15. Petition partly allowed