Nayaz Ahmad v. State of U. P — 1984 DIGILAW 985 (ALL)

ORDER 1. This writ petition has been instituted with a prayer for issue of a writ of mandamus directing the Consolidation Committee of Village Mani Kalan, not to function. 2. The facts giving rise to the present writ petition lie in a narrow compass. Village Mani Kalan, Pargana Ungli, Tahsil Shahganj, District, Jaunpur was brought under consolidation operations under the U. P. Consolidation of Holdings Act. In order to give effect to the provisions of the said Act, it was necessary to constitute a Consolidation Committee. 11th Aug. 1983 was fixed for election of the members of the Consolidation Committee and on that date the election took place, as is apparent from Para 25 of the writ petition. Sub-rule (6) of R. 3-A of the Consolidation of Holdings Rules, 1953 (hereinafter referred to as the Rules) which deals with the election of the Consolidation Committee provides : "6(a). The elections shall be conducted by the Consolidator and the procedure laid down in Rr. 3 to 10 of the U.P. Panchayat Raj Land Management Committee (Election of Members) Rules 1963, in respect of election of members of Land Management Committees shall mutatis mutandis be followed." 3. According to the petitioner, the election of the Consolidation Committee of Village Mani Kalan, was held on 11th Aug. 1983 by following the procedure prescribed in sub- r. (6) of R. 3-A aforesaid. It has been urged by the counsel for the petitioner that the election of the Consolidation Committee held on 11th Aug. 1983 by following the aforesaid procedure was illegal, in as much as, Rr. 3 to 10 of the U. P. Panchayat Raj Management Committee (Election of Members) Rules 1963 had already been rescinded by Notification No. 333- B/XXXIII-79-66 dated April 15, 1974 published in U. P. Gazettee, extraordinary dated 15-4-1974, Part 1. According to the counsel for the petitioner when Rr. 3 to 10 aforesaid stood rescinded in April 1974, election of the Consolidation Committee by following those rules could not be held on 11th Aug. 1983, inasmuch as, sub-r. (6) of R. 3-A of the Rules made a mere reference to or citation of Rr. 3 to 10 of the U. P. Panchayat Raj Land Management (Election of Members) Rules 1963 and did not incorporate therein those rules by reference. 4. Having given our anxious consideration to the submission, we find if difficult to agree with it. 3 to 10 of the U. P. Panchayat Raj Land Management (Election of Members) Rules 1963 and did not incorporate therein those rules by reference. 4. Having given our anxious consideration to the submission, we find if difficult to agree with it. Reliance was placed by the counsel for the petitioner on the Supreme Court case reported in Collector of Customs, Madras v. Nathella Sampattu Chetty, AIR 1962 SC 316 . In that case the question of interpretation of S. 23-A of the Foreign Exchange Regulation Act and S. 19 of the Sea Customs Act came up for consideration. S. 23-A reads as follows : "Without prejudice to the provisions of S. 3 or to any other provision contained in this Act the restrictions imposed by sub-secs. (1) and (2) of S. 8, sub-sec. (1) of S. 12 and cl. (a) of sub-sec. (1) of S. 13 shall be deemed to have been imposed under S. 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly, except that S. 183 thereof shall have effect as if for the word 'shall' therein the word `may' were substituted." Whereas S. 19 of the Sea Customs Act reads : "The Central Government may from time to time, by notification in the Official Gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government." The Supreme Court held that it was a case not of incorporation by reference but of mere reference of one statute in another. The facts of that case are clearly distinguishable. A bare perusal of S. 23-A of the Foreign Exchange Regulation Act makes it apparent that the breach of the restrictions imposed therein was made punishable under the Sea Customs Act and for this purpose the provisions of the Sea Customs Act were not incorporated in the Foreign Exchange Regulation Act. On the other hand, breach of the restrictions imposed under the Foreign Exchange Regulation Act was made punishable under the Sea Customs Act, because in view of S. 23-A restrictions imposed under that Act were deemed to be restrictions imposed under S. 19 of the Sea Customs Act, This is, however, not so in the instant case. 5. In State of Madh. Pra. 5. In State of Madh. Pra. v. M. V. Narasimhan, AIR 1975 SC 1835 , the following observations of Lord Isher M. R. in In Re Woods Estate, ex parte Her Majesty's Commr. of Works and Buildings, (1886) 31 Ch. D. 607 at Pages 615 and 616 were quoted with approval. "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. For all practical purposes, therefore, those sections of the Act of 1840 are to be dealt with as if they were actually in the Act of 1855." Reference was also made in that case to Craies on Statute Law (7th Edition) where it was observed : "There is a rule of construction that where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third does not effect the second, as the incorporated provisions have become part of the second statute." 6. The consequences of incorporation by reference were laid down in para 16 of the said judgment. It was inter alia, held that where a subsequent Act incorporates provisions of previous Act, then the borrowed provision becomes an integral and independent part of the subsequent Act and are unaffected by any repeal or amendment in the previous Act, except in certain contingencies laid down therein. 7. In Mahindra and Mahindra Ltd. v. Union of India, ( AIR 1979 SC 798 ), the same principle was reiterated. 8. On the plain language of sub-r. (6) of R. 3-A of the Rules and in the light of the principles laid down in this behalf by the Supreme Court in the decisions referred to above, we are of the opinion that it was clearly a case of incorporation by reference and the mere fact that Rr. 3 to 10 of the U. P. Panchayat Raj Land Management (Election of Members) Rules 1963 were rescinded, it cannot be said that sub-r. (6) of R. 3-A aforesaid became unworkable. The provisions of Rr. 3 to 10 of the U. P. Panchayat Raj Land Management (Election of Members) Rules 1963 were rescinded, it cannot be said that sub-r. (6) of R. 3-A aforesaid became unworkable. The provisions of Rr. 3 to 10 of the U. P. Panchayat Raj Land Management Committee (Election of Members) Rules, 1963 will be deemed to have been bodily lifted from those rules and incorporated in sub-r. (6) of R. 3-A of the Rules and continued to be operative even after Rr. 3 to 10 of the U. P. Panchayat Raj Land Management Committee (Election of Members) Rules, 1963 were rescinded. Since the election of the Consolidation Committee of Village Mani Kalan has been challenged only on the aforesaid ground, we find no substance in the writ petition. 9. The writ petition is accordingly dismissed But in the circumstances of the case there shall be no order as to costs.