Trust Mai Lachmi Sialkoti Bradri vs The Chairman, Amritsar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 331 of 1961

Decision Date: 04/04/1962

Coram: N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, J.R. Mudholkar

In this matter, the Supreme Court of India delivered its judgment on the fourth day of April, 1962. The case was titled Trust Mai Lachmi Sialkoti Bradri versus the Chairman, Amritsar. The judgment was authored by Justice N. Rajagopala Ayyangar, who sat on a bench together with Justices Bhuvneshwar P. Sinha and J. R. Mudholkar. The decision was recorded under the citation 1963 AIR 976 and also appears in the 1963 Supplement to the Supreme Court Reports, volume 1, page 242. The legal issue centered on the interpretation of the Punjab Development and Damaged Areas Act, 1951, specifically the definition of a “damaged area” in section 2(d) and the effect of the scheme‑framing powers conferred by sections 3 and 5 of the same Act. The appellant, a trust managing certain properties in Amritsar, challenged a resolution passed by the Amritsar Improvement Trust that sought to acquire part of its land in order to widen a road, alleging that the scheme was beyond the Trust’s jurisdiction because the area involved had not been lawfully declared a damaged area under the 1951 Act.

The respondents argued that an earlier notification, numbered 243 and issued under the Punjab Damaged Areas Act, 1947, which had declared the whole walled city of Amritsar to be a damaged area, should be deemed a valid declaration under the 1949 Act by virtue of section 22 of the Punjab General Clauses Act. They further contended that this declaration rendered the scheme proper and that, under section 5(4) of the 1951 Act, the publication of the scheme by the State Government constituted conclusive evidence that the scheme had been duly framed and sanctioned, thereby precluding any challenge. The Court examined these submissions and held that the scheme was indeed without jurisdiction because the area in question had never been declared a damaged area either under the 1951 Act or under the earlier 1949 Act. The Court found that the 1947 declaration could not be treated as a declaration under the 1949 Act, and even if it were, it did not fall within the definition of “damaged area” in the 1951 legislation. Consequently, the Court concluded that section 5(4) did not bar the appellant from contesting the scheme and the acquisition, as the statutory provision only protected the formalities prescribed by sections 3, 4 and 5 and did not apply where there was a complete lack of jurisdiction to frame a scheme. The acquisition proceedings were therefore declared illegal.

The Court exercised civil appellate jurisdiction to hear Civil Appeal No 331 of 1961, which was filed by special leave against the judgment and order dated 20 April 1961 issued by the Punjab High Court in Civil Writ No 460 of 1961. Counsel for the appellant were S P Sinha and M K Madan, while counsel for respondents 1 and 2 were Har Prasad and J P Goyal. The Advocate‑General of Punjab, together with N S Bindra and P D Menon, appeared as counsel for respondent 3. The judgment was delivered by Justice Ayyangar on 4 April 1962.

The principal issue before the Court was the proper construction of the term “damaged area” as defined in section 2(d) of the Punjab Development and Damaged Areas Act, 1951 (hereinafter referred to as the Act). To appreciate how this issue arose, certain facts were set out. The appellant asserted that it held the position of trustee of a public trust created for the administration of several properties located in Amritsar, one of which was a dharamshala. By a resolution of the Amritsar Improvement Trust dated 21 March 1957, the Improvement Trust resolved to acquire a portion of this dharamshala for the purpose of widening a road, acting under a development scheme that had been framed pursuant to section 3 of the Act.

Section 3 of the Act provides that “The Trust may frame a scheme or schemes for the development of a damaged area, providing for all or any of the matters mentioned in section 28 of the Punjab Town Improvement Act, 1922; and any scheme already framed or sanctioned in respect of a damaged area under the provisions of that Act shall be deemed to have been framed or sanctioned under this Act.” Section 4 requires that each scheme be published, detailing with particularity the properties that would be affected and specifying the period within which objections must be received. Section 5 deals with the consideration of objections. Sub‑section (3) of section 5 states that “The State Government shall then notify the scheme either in original or as modified by it and the scheme so published shall be deemed to be the sanctioned scheme.” Sub‑section (4) adds that “The publication under subsection (3) shall be conclusive evidence that a scheme has been duly framed and sanctioned.” Subsequent provisions, including section 6, outline the acquisition of property in a damaged area and the procedures for determining and paying compensation; however, these later provisions were not relevant to the present appeal and therefore were not discussed in detail.

All parties agreed that a scheme had indeed been framed under section 3 and that the scheme had been finalized after the consideration of objections. It was on the basis of this finalized scheme that the Improvement Trust proceeded to take steps to effect the acquisition of the property identified as Municipal No 2320/1, 884/9, which belonged to the appellant‑trust.

In this case the Court observed that the Improvement Trust had proceeded to acquire the property identified as Municipal Nos. 2320/1 and 884/9, which were owned by the appellant‑trust. The appellant initially instituted a suit seeking a declaration that the acquisition proceedings were illegal and ultra vires, and also requested a permanent injunction to restrain the Trust from continuing the acquisition. That suit was later withdrawn after a Consent Memo was filed. Subsequently the appellant filed a petition under article 226 of the Constitution before the Punjab High Court, challenging the legality of the Trust’s actions and praying for relief that would set aside the acquisition proceedings. The High Court dismissed the petition summarily by an order dated 20 April 1961. The appellant then filed another petition seeking a certificate of fitness under article 133(1)(c), which the High Court likewise dismissed. Thereafter the appellant obtained special leave from this Court to appeal the High Court’s judgment, and the present appeal is now before this Court. Although the memorandum of appeal raised several points, counsel confined the argument to a single issue that the Court will address directly. The Court noted that the acquisition in question is undertaken under a scheme made pursuant to the Act of 1947, and that the scheme falls within the definition contained in section 2(d) of that Act. By a proclamation issued under section 93 of the Government of India Act 1935, the Governor of Punjab assumed the powers of the Punjab Provincial Legislature and, exercising those powers, enacted the Punjab Damaged Areas Act 1947 (Punjab Act 11 of 1947). Section 3 of that enactment authorised the Provincial Government, by means of a notification, to declare any urban area or any part thereof to be a damaged area, and it was on that basis that the notification of April 1948 was issued. The Court pointed out that the 1947 Act did not contain any provision for the preparation of schemes or for the acquisition of property to implement such schemes; however, the absence of such a provision was not deemed material for the purposes of the present dispute. Section 93 of the Government of India Act 1935, which dealt with the situation where the constitutional machinery of a province failed, provided in subsection 4 that any law made by the Governor under that section would continue in force for two years after the proclamation ceased, unless it was repealed or reenacted by the appropriate legislature. The Governor’s exercise of power under section 93 terminated on 15 August 1947, and consequently the temporary enactment would have lapsed on 15 August 1949.

On 15 August 1949 the Governor‑General, using the authority granted by section 8 of the Indian Independence Act 1947, repealed section 93 of the Government of India Act 1935. At the same time, clause 6 of the India (Provisional Constitution) Order 1947 provided that any law made by a provincial governor under section 93 and remaining in force immediately before the appointed day would continue to operate for the period it would have persisted if the section had not been omitted. Consequently, the Punjab Act 1947 remained effective until 15 August 1949 and ceased thereafter. To fill the legislative gap created by the expiry of that Act, the Fast Punjab Damaged Areas Act 1949 was enacted, a statute referred to in paragraph 2(d) of the 1951 Act. The 1949 Act essentially reproduced the substantive provisions of the 1947 Act. Its definition clause, set out in section 2, mirrored the definitions of the 1947 Act, altering only those terms affected by the partition of the country and the removal of Lahore from Indian jurisdiction. Section 3 empowered the State Government, by notification, to declare an urban area a “damaged area,” and this provision took effect immediately in April 1949 when the Governor’s assent was obtained. Section 1(3) reserved to the State Government the authority to order that the remaining provisions of the Act, namely sections 4 to 21, would come into force on a date to be specified by notification. Despite diligent examination, no such notification bringing those sections into force has been located, and there is no evidence that any part of the Act was operational before 15 August 1949, when, owing to the two‑year limitation prescribed by section 93(4) of the Government of India Act, the 1947 Act expired and ceased to have effect.

The argument presented before the Court suggested that because the 1949 Act substantially reproduced the 1947 Act, the latter was effectively repealed and reenacted by the former, thereby invoking section 22 of the Punjab General Clauses Act. Section 22 states: “Where any Punjab Act is repealed and re‑enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye‑law, made or issued under the repealed Act, shall, so far as it is not inconsistent with the provisions reenacted, continue in force, and be deemed to have been made or issued under the provisions so reenacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye‑law made or issued under the provisions so reenacted.” The contention was that the notification issued under the 1947 Act should be treated as if it were issued under the 1949 Act, and therefore the reference in section 2(d) of the 1951 Act to a notification under the 1949 Act would encompass the 1948 notification made under the 1947 Act. The Court was unable to accept this line of reasoning because there was no express repeal of the 1947 Act that would trigger the operation of the construction rule embodied in section 22 of the Punjab General Clauses Act. While temporary enactments can be repealed and reenacted to attract the effect of section 22, as illustrated in State of Punjab v. Mohar Singh, the present case does not involve an express repeal of the earlier legislation.

In this matter, the Court examined the contention that a notification issued under the 1947 Act should be treated as if it had been issued under the 1949 Act, and that therefore the reference in section 2(d) of the 1951 Act to a notification under the 1949 Act would also encompass the 1948 notification made under the 1947 Act. The Court rejected this argument. It observed that the rule of construction contained in section 22 of the Punjab General Clauses Act could be invoked only when a repealed enactment was expressly repealed and subsequently re‑enacted. The Court noted that, although temporary statutes can be repealed and re‑enacted so as to fall within the operation of section 22—citing State of Punjab v. Mohar Singh (1) as an example—there was no express repeal of the 1947 Act in the present case. Consequently, the condition required to attract the effect of section 22 was absent, and the Court could not deem the 1947 notification to have been issued under the later 1949 legislation.

The Court then turned to the submission made on behalf of the respondents that the 1949 enactment, being identical in wording to the 1947 enactment, impliedly repealed the earlier statute. The Court explained that if the first Act was a temporary measure whose operation ceased before the later Act came into force, the principle embodied in section 22 of the Punjab General Clauses Act could not be invoked. Moreover, the Court considered whether the doctrine of implied repeal fell within the contemplation of section 22 or comparable provisions in other statutes. It held that there was no foundation for invoking implied repeal because doing so would presuppose an inconsistency between the two statutes that would prevent them from operating together. The Court reiterated the well‑settled maxim that implied repeals are not to be favored and that where two statutes are wholly affirmative and identical, no inconsistency arises. Since the operative terms of the 1947 and 1949 Acts were identical and ran in parallel, the doctrine of implied repeal could not be applied, particularly where the earlier enactment was of temporary duration and the later one was permanent. The Court also noted that sections 4 to 21 of the 1949 Act were not in force during the life of the 1947 Act. Ultimately, the Court concluded that the dispute must be resolved by a proper construction of section 2(d) of the 1951 Act, under which the impugned scheme (1) [19S6] I S.C.R. 893 was framed and the acquisition proceedings were sought.

The Court observed that, apart from the areas expressly notified under the Act of 1951, the only other areas that could be considered were those notified under the Act of 1949. On a normal and reasonable construction, those 1949‑notified areas could include only the lands that had been specifically brought under section 3 of the 1949 Act. They could not include lands that had been notified under the Act of 1947 but were merely deemed to be notified under the 1949 Act, assuming that every submission of the respondent was correct. Accordingly, the Court concluded that the appellant was entitled to the relief it sought because the acquisition pertained to a scheme covering an area that the Improvement Trust did not have the power to frame under section 3 of the Act. Counsel for the Improvement Trust had submitted that the appellant was barred from challenging the scheme’s validity by virtue of section 5(4) of the Act, which, according to that submission, gave a conclusive effect to the legality of any scheme that had received government approval and had been published under section 5(3). The Court found no substance in that argument. It held that the jurisdiction of the Improvement Trust to draw up a scheme, and the government’s authority to sanction it, depended on the scheme relating to a “damaged area.” Since, as determined by the Court, the property sought to be acquired lay in an area that did not meet the definition of a damaged area under section 2(d) of the Act, the Improvement Trust and the government altogether lacked jurisdiction to devise a scheme for that land. The Court noted that the situation would be no different even if the Act itself had not been extended to the area for which a scheme had been prepared. Moreover, the conclusive effect contemplated by section 5(4) could apply only to the procedural requirements set out in sections 3, 4 and 5, and could not override a complete lack of jurisdiction on the part of the authorities to frame a scheme. Consequently, the Court allowed the appeal, directing that the proceedings for acquiring the appellant’s property under the Punjab Development of Damaged Areas Act, 1951 be quashed, and ordered that the appellant be awarded costs.