1. Heard Sri A.S Diwekar, counsel for the petitioner and learned standing counsel.
2. By this writ petition, the petitioner has prayed for writ of certiorari quashing the order dated 2nd September, 2002 and the show cause notice dated 25th September, 2000 and also writ of prohibition prohibiting the proceedings. Facts of the case as stated in the writ petition, briefly stated, are; Plot No. 416 is a Government estate land under the management of District Magistrate, Allahabad having area of 13 bighas, 19 biswas and 10 dhoors. On part of the aforesaid plot there is old building popularly known as European Lockup. It is claimed that father of the petitioner was clerk in the Collectorate who was allowed to occupy the land in pre-independence era. It is claimed that father of the petitioner died in the year 1983 and thereafter name of mother of the petitioner was mutated who too died in the year 1996. It is stated that for fiscal purposes the name of mother of the petitioner is recorded in the records of Nagar Nigam. It is claimed that house of the petitioner exists on the above land for the last 60 years. It is further claimed in the writ petition that certain other persons who occupied the land were granted lease of certain area. Petitioner's mother also sent several reminders and applications for grant of lease of 3 biswas land of Plot No. 416. A notice under Section 4(1) of U.P Public Premises (Eviction of Unauthorised Occupants) Act, 1972 was issued to the petitioner by Prescribed Authority on 25th September, 2000 asking the petitioner to show cause why petitioner be not evicted. Before the Prescribed Authority, the petitioner filed a preliminary objection dated 25th October, 2000 to the effect that there is no jurisdiction to proceed under U.P Public Premises (Eviction of Unauthorised Occupants) Act, 1972 and any encroachment is questionable only under U.P Urban Planning and Development Act, 1973. The Prescribed Authority by order dated 2nd September, 2000 took the view that the land is Government estate land belonging to category 15(2) whose owner is the State. It was further stated in the order that at this juncture there is no occasion to consider the question, the party may file their evidence and the objection is accordingly disposed of. The said order dated 2nd September, 2002 as well as the notice issued by the Prescribed Authority dated 25th September, 2000 have been challenged by the petitioner. The counsel for the petitioner has also prayed for writ of prohibition prohibiting the Prescribed Authority from proceeding with the case.
3. Sri A.S Diwekar, learned counsel appearing for the petitioner contended since preliminary objection of the petitioner has been rejected and the Prescribed Authority is proceeding with the case, it is appropriate that this Court may consider the question raised in the writ petition which goes to very jurisdiction of the Prescribed Authority to proceed under U.P Public Premises (Eviction of Unauthorised Occupants) Act, 1972. Although the Prescribed Authority has observed that petitioner may lead his evidence but the submission of counsel for the petitioner is that in view of the disposal of petitioner's objection, Prescribed Authority has impliedly rejected his preliminary objection and it is necessary that this Court may examine and decide this question as to whether Prescribed Authority has jurisdiction under U.P Public Premises (Eviction of Unauthorised Occupants) Act, 1972 or not.
4. The counsel for the petitioner challenging the proceeding under U.P Public Premises (Eviction of Unauthorised Occupants) Act, 1972 raised following submissions in support of the writ petition:—
(i) After the enforcement of U.P Urban Planning and Development Act, 1973, the provisions of U.P Public Premises (Eviction of Unauthorised Occupants) Act, 1972 are no longer applicable with regard to development area and proceedings initiated by Prescribed Authority under U.P Public Premises (Eviction of Unauthorised Occupants) Act, 1972 is without jurisdiction. The U.P Urban Planning and Development Act, 1973 being special Act, the provisions of U.P Public Premises (Eviction of Unauthorised Occupants) Act, 1972 will stand abrogated. Reliance has been placed on the Judgment of Apex Court reported in (2000) 4 SCC 406 : AIR 2000 SC 1535; Allahabad Bank v. Canara Bank.
(ii) The land being Government estate land which is situated in development area within meaning of the U.P Urban Planning and Development Act, 1973, the proceeding, if any, can be taken only under Section 26-A of the Uttar Pradesh Urban Planning and Development Act, 1973.
5. I have heard counsel for the parties and perused the record. The only question raised in this writ petition is as to whether Prescribed Authority has jurisdiction to issue notice under S. 4 of U.P Public Premises (Eviction of Unauthorised Occupants) Act, 1972 for evicting the petitioner from the Government land in accordance with the aforesaid 1972 Act or after the enforcement of Uttar Pradesh Urban Planning and Development Act, 1973, the provisions of aforesaid 1972 Act stand repealed and only action in the development area can be taken under S. 26-A of aforesaid 1973 Act. Both the submissions of counsel for the petitioner, as noted above, being interrelated are taken together.
6. For considering the submissions raised in the writ petition, it is necessary to look into the object and scope of both the aforesaid Acts, namely, the U.P Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as 1972 Act) and the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as 1973 Act).
7. The U.P Municipalities Act, 1916 and the Town Area Act, 1926 were enacted which contain various provisions regarding development in municipalities and town area. Municipalities were entrusted with the duties and functions for better municipal government. Uttar Pradesh Regulation of Buildings Operation Act, 1968 was enacted to provide for regulation of building operations in Uttar Pradesh with a view to preventing haphazard development of urban and rural areas. The aforesaid 1958 Act provides for declaration of regulated area under Section 3 and for constitution of a controlling authority under Section 4.
8. The 1972 Act enacted to provide for eviction of unauthorised occupants from public premises and for certain incidental matters. The 1972 Act is a special Act enacted by State Legislature for dealing with an specified object i.e eviction of unauthorised occupants from public premises. ‘Premises’ have been defined under S. 2(b) of 1972 Act which means any land or any building or part of a building not including any land which for the time being is held by a tenure holder under any law relating to land tenures. ‘Public Premises’ have been defined under S. 2(e), Public premises means any premises belonging to State Government including Nazul land or any other premises entrusted to the management of local authority. Definition of ‘Public Premises’ as given in Section 2(e) is extracted as below:—
“2(e). ‘Public’ premises means any premises belonging to or taken on lease or requisitioned by or on behalf of the State Government, and includes any premises belonging to or taken on lease by or on behalf of—
(i) any company as defined in Section 3 of the Companies Act, 1956, in which not less than fifty-one per cent of the paid-up share capital is held by the State Government; or
(ii) any local authority; or
(iii) any corporation (not being a company as defined in Section 3 of the Companies Act, 1956 or a local authority) owned or controlled by the State Government; or
(iv) any society registered under the Societies Registration Act, 1860, the governing body whereof consists, under the rules or regulations of the society, wholly of public officers or nominees of the State Government or both;
and also includes—
(i) Nazul land or any other premises entrusted to the management of local authority (including any building built with Government funds on land belonging to the State Government after the entrustment of the land to that local authority, not being land vested in or entrusted to the management of a Gaon Sabha or any other local authority under any law relating to land tenures):
(ii) any premises acquired under the Land Acquisition Act, 1894 with the consent of the State Government for a company (as defined in that Act) and held by that company under on agreement executed under S. 41 of that Act providing for re-entry by the State Government in certain conditions;
Section 4 provides that if the Prescribed Authority is of the opinion that any person is in unauthorised occupation of any public premises and he should be evicted, the Prescribed Authority shall issue notice in the manner provided. Section 5 provides that if after considering the cause shown by a person in pursuance of notice under S. 4 and any evidence produced in support of the same and after giving reasonable opportunity of being heard. Prescribed Authority is satisfied that public premises are in unauthorised occupation, the Prescribed Authority may make order of eviction. Section 8 provides that Prescribed Authority as well as the Appellate Authority shall for the purpose of holding any enquiry or hearing, have the same powers as are vested in a Civil Court under the Code of Civil Procedure in respect of summoning and enforcing the attendance of any person, requiring the discovery and production of documents and any other matters which may be prescribed. Section 9 provides appeal against the order of the Prescribed Authority to an Appellate Officer who shall be the District Judge of the district or such other judicial officer not below the rank of Civil Judge as the District Judge may designate. Section 11 deals with offences and penalty. Section 11 is quoted as below:—
“11. Offences and penalty.— (1) If any person who has been evicted from any public premises under this Act again occupies the premises without authority for such occupation, he shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
(2) Any Magistrate convicting a person under sub-section (1) may make an order for evicting the person summarily and such person shall be liable to such eviction without prejudice to any other action that may be taken against him under this Act.”
9. Section 15 has the jurisdiction of Court to entertain any suit or proceeding in respect of eviction of any person. Section 15 is quoted as below:—
“15. Bar of jurisdiction.— No Court Shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of rent payable under sub-section (1) of S. 7 or the damages payable under sub-section (2) of that Section or the costs awarded to the State Government or the Corporate Authority under sub-section (5) of Section 9 or any portion of such rent, damages or costs.”
10. Section 19 is with regard to repeal and consequential amendments. By Section 19 several enactments and certain provisions of enactments were repealed. From the aforesaid Scheme of 1972 Act, it appears that 1972 Act was complete code with regard to eviction of unauthorised occupants. Procedure was prescribed for initiating proceedings, right of appeal was given to the District Judge/Civil Judge and any suit or proceeding in respect of eviction was barred. The provisions of repeal and consequential amendments as contained in Section 19 also contemplate that by this provision various enactments pertaining to eviction were repealed. Amendment by U.P Act No. 22 of 1972 in various Acts including Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965, Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959 and U.P Municipalities Act, 1916 clearly suggest that for eviction of unauthorised occupants, the provisions of U.P Act No. 22 of 1972 were to be resorted and the U.P Act No. 22 of 1972 was an special Act providing for special procedure for eviction of unauthorised occupants from public premises and the definition of public premises included the premises belonging to or taken on lease by or on behalf of any local authority also.
11. The 1973 Act was enacted to provide for the development of certain areas of Uttar Pradesh according to plan and for matters ancillary thereto. The object of the authority was clearly mentioned in S. 7 of 1973 Act. Section 7 of 1973 Act is quoted as below:—
“7. Object of the Authority.— The objects of the Authority shall be to promote and secure the development of the development area according to plan and for that purpose the authority shall have the power to acquire, hold, manage and dispose of land and other property to carry out building engineering mining and other operations, to execute words in connection with the supply of water and electricity, to dispose of sewage and to provide and maintain other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto:
Provided that save as provided in this Act nothing contained in this Act shall be construed as authorising the disregard by the Authority of any law for the time being in force.”
12. The 1973 Act provides for constitution of development authority for any development area as declared by State Government under S. 3, Chapter III provides for master plan and zonal development plan. Chapter V provides for development of lands. Section 15 provides for application for permission. Chapter VIII contains the heading supplemental and miscellaneous provisions. The counsel for the petitioner has laid emphasis on Section 26-A. Section 26 provides for penalties and Section 26-A provides for encroachment or obstruction on public land. Section 26 provides that if any person undertakes or carries out any land development of any land in contravention of the Master Plan or Zonal Development Plan or without permission or in contravention of any condition subject to which such permission, approval or sanction has been granted, shall be punishable with fine. Section 26-A provides that whoever makes any encroachment on any land not being private property, whether such land belongs to or vests in the authority or not in the development area, shall be punishable with simple imprisonment for a term which may extend to one year. Section 59 of the Act provides for repeal and savings. Section 59(1) is relevant for the purpose which is extracted below:—
“59. Repeal etc., and Savings.— (1)(a) The operation of Clause (c) of Section 5, Sections 54, 55 and 56, Clause (xxxiii) of Section 114, sub-section (3) of S. 117, Clause (c) of sub-section (1) of Section 119, Section 191, Sections 316, 317, 318, 319, 320, 322, 323, 324, 325, 326, 327, 328, 329 and 333, Clauses (a) and (b) of sub-section (1) of Section 394, Sections 335, 336, Chapter XIV of the Uttar Pradesh (U.P Municipal Corporation Act, 1959) Sections 178, 179, 180, 180-A, 181, 182, 183, 184, 185, 186, 203, 204, 205, 206, 207, 208, 209, 210 and 222 of the (U.P Municipalities Act, 1916) (or the said sections as extended under Section 338 thereof or under Section 38 of the United Provinces Town Areas Act, 1914), or as the case may be of Sections 162 to 171 of the (The U.P Kshetra Panchayat Zila Panchayat Adhiniyam, 1961) and of the Uttar Pradesh (Regulation of Building Operation Act, 1958 and the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (except in relation to those housing or improvement schemes which have either been notified under Section 32 of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 before the declaration of the area comprised therein as development area or which having been notified under Section 28 of the said Adhiniyam before the said declarations are thereafter approved by the State Government for continuance under the said Adhiniyam or which are initiated after such declaration with the approval of the State Government, hereinafter in this section referred to as Special Avas Parishad Schemes) shall in respect of a development area remain suspended and sub-section (3) of Section 139 of the Uttar Pradesh (Municipal Corporations Act, 1959) shall have effect as if the requirement as to constitution of a Development fund were suspended with effect from the date of constitution of the Authority for that area and until the dissolution of such Authority, and the provisions (Sections 6 and 24 of the United Provinces General Clauses Act, 1904) shall apply in relation to such suspension as if the suspension amounted to repeal of the said enactments by this Act, and in particular, all proceedings relating to acquisition of land and interest in land for improvement schemes under the, said enactments pending immediately before such suspension before any Court, tribunal or authority may be continued and concluded in accordance with the provisions of the said enactments (which shall mutatis mutandis apply) as if those provisions were not suspended (and the powers, for doing anything which could, but for such suspension of the Uttar Pradesh (Regulation of Building Operations) Act, 1958, be done by the Prescribed Authority and Controlling Authority and which can after such suspension be done by virtue of the application of Section 6 of the Uttar Pradesh General Clauses Act, 1904, shall vest in the Vice-Chairman and the Chairman respectively).
(b) The operation of the provisions suspended by virtue of clause (a) shall revive upon the dissolution of the Authority under Section 58, and the provisions of (Sections 6 and 24 of the United Provinces General Clauses Act, 1904) shall apply in relation to the cesser of application of the corresponding provisions this Act as if such cesser amounted to a repeal of these provisions of this Act by an Uttar Pradesh Act.
((c) Without prejudice to the generating of the provisions of Clauses (a) and (b), and bye-laws, directions or regulations under the U.P Municipalities Act, 1916 or the Uttar Pradesh Regulation of Building Operations) Act, 1958 or the (U.P Municipal Corporation Act, 1959) as the case may be and in force on the date immediately before the date of commencement of this Act, shall, insofar as they are not inconsistent with the provisions of this Act, continue in force, until altered, repealed or amended by any competent authority under this Act).”
13. The submission which has been made by counsel for the petitioner is to the effect that after the enforcement of 1973 Act the recourse to provisions of 1972 Act cannot be taken and the notice issued by Prescribed Authority is without jurisdiction. The above submission can be accepted only when it can be found that 1973 Act repeals provisions of 1972 Act. Section 59 of 1973 Act which contain provisions of repeal and saving does not specifically mention repeal of 1972 Act. Thus, the present case is not a case of specific repeal. It not being a case of specific repeal, the question is as to whether from the provisions of 1973 Act any Implied repeal can be found out to substantiate the submission of counsel for the petitioner. The question of Implied repeal of a statute has engaged attention of the Apex Court in several decisions. The Apex Court in AIR 1963 SC 1561; Municipal Council, Palai v. T.J Joseph had occasion to consider the principle of determining the question of implied repeal. The Apex Court in the aforesaid judgment had laid down that there is presumption against an implied repeal since the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject and failure to add a repeal clause indicates that intent was not to repeal existing legislation. Paragraph 9 of the aforesaid judgment is extracted below:—
“(9). It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is an equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Of course this presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together. As has been observed by Crowford on Statutory Construction, p. 631, para 31:
“There must be what is often called ‘such a positive repugnancy between the two provisions of the old and the new statutes that they cannot be reconciled and made to stand together’. In other words they must be absolutely repugnant or irreconcilable. Otherwise, there can be no implied repeal……. for the intent of the legislature to repeal the old enactment is utterly lacking.”
…………………………………………………………….”
14. In paragraph 11, the Apex Court noted the principles as laid down in earlier case to ascertain whether there is repugnancy or not. It was laid down by the Apex Court paragraphs 11 and 12 of the judgment.
“(11). The further question which is to be considered is whether there is any repugnancy between the old and the new law. In order to ascertain whether there is repugnancy or not this Court has laid down the following principles in Deep Chand v. The State of Uttar Pradesh, (1959) Supp 2 SCR 8 at p. 43 : AIR 1959 SC 648 at p. 665.
1. Whether there is direct contract between the two provisions;
2. Whether the legislature intended to lay down an exhaustive code in respect of the subject matter replacing the earlier law;
3. Whether the two laws occupy the same field.
(12) Another principle of law which has to be borne in mind is stated thus by Sutherland on Statutory Construction (Vol. 1, 3rd edn. P. 486).”
15. Again (1971) 1 SCC 442 : AIR 1971 SC 815; Municipal Corporation of Delhi v. Shiv Shankar, the Apex Court noted the general principles governing implied repeal, Paragraph 5 of the aforesaid decision is extracted as under:—
“5. The general principles governing implied repeal appear to us to have long since been settled. The difficulty is normally experienced in their application to a given case. From the passage quoted by Kapur J. from the unreported Bench decision in Raj Kumar's case, Cri A. No. 996 of 1961, D/- 29-10-1962 (Punj) (supra) upholding the implied repeal of the Adulteration Act by the Fruit Order it seems to us that the Division Bench did not correctly and fully grasp them. We accordingly consider it proper to broadly restate the general rule it was laid in Paine v. Stater (1883) 11 QBD 120, that when two Acts are inconsistent or repugnant the later will be read as having impliedly repealed the earlier. As the legislature must be presumed, in deference to the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory laws in the absence of express or at least clear and unambiguous indication to that effect. This is essential in the interest of certainty and consistency in the laws which the citizens are enjoined and expected to obey. The legislature, which may generally be presumed to know the existing law, is not expected to intend to create confusion by its omission to express its intent to repeal in clear terms. The Courts, therefore, as a rule, lean against implying a repeal unless the two provisions are so plainly repugnant to each other that they cannot stand together and it is not possible on any reasonable hypothesis to give effect to both at the some time. The repeal must, if not express, flow from necessary implication as the only intendment. The provisions must be wholly incompatible with each other so that the two provisions operating together would lead to absurd consequences, whose intention could not reasonably be imputed to the Legislature. It is only when a consistent body of law cannot be maintained without abrogation of the previous law that the plea of implied repeal should be sustained. To determine if a later statutory provision repeals by implication an earlier one it is accordingly necessary to closely scrutinise and consider the true meaning and effect both the earlier and the later statute. Until this is done it cannot be satisfactorily ascertained if any fatal inconsistency exists between them. The meaning scope and effect of the two statutes, as discovered on scrutiny determines the legislative intent as to whether the earlier law shall cease or shall only be supplemented. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on the surface. Statutes in pari materia although in apparent conflict, should also so far as reasonably possible, be construed to be in harmony with each other and it is only when there is an irreconcilable conflict between the new provision and the prior statute relating to the same subject-matter, that the former, being the later expression of the Legislature, may be held to prevail, the prior law yielding to the extent of the conflict. The same rule of irreconcilable repugnancy controls implied repeal of a general by a special statute. The subsequent provision treating a phase of the same general subject-matter in a more minute way may be intended to imply repeal pro tanto of the repugnant general provision with which it cannot reasonably co-exist. When there is no inconsistency between the general and special statute the latter may well be construed as supplementary.
16. From the law as laid down by the Apex Court in above cases, it is clear that principles governing implied repeal are well settled. In the present case Section 59 of 1973 Act is very relevant which gives the clear intendment of Legislature. Under Section 59 of 1973 Act details of enactments were given operation of which were suspended. In Section 59 although there is mention of several acts operation of which were directed to be suspended whereas the provisions of U.P Act No. 22 of 1972 were not mentioned therein. Section 59 itself makes it clear that 1973 Act never intended to repeal 1972 Act. As noted above, there is presumption against implied repeal.
17. The scope and object of both the Acts, i.e, 1972 Act and 1973 Act are also entirely different. The 1972 Act provides for eviction of unauthorised occupants from public premises whereas 1973 Act provides for development of certain areas according to plan and other ancillary matter the 1973 Act is primarily concerned with development area in planned manner according to master plan and zonal development plan. The definition of land as given in 1973 Act has meaning as given in Land Acquisition Act, 1894 whereas 1972 Act deals with public premises. Premises as defined in S. 2(b) means land or any building or part of building and public premises has given a very wide meaning. Further unauthorised occupation as defined in Section 2(g) of 1972 Act contains a very wide definition. According to definition of unauthorised occupation given in Section 2(g) e.g if a person has been allotted a premises by the Government fully constructed according to sanction plan under 1973 Act and his authority to (remain) in occupation is terminated by the Government there cannot be any provision under 1973 Act to evict him and it is only 1972 Act which governs the case. The 1973 Act, thus, does not provide to cover the situation for which 1972 Act was enacted. The provisions of 1972 Act giving certain right to the Prescribed Authority as exercised by the Court under Code of Civil Procedure for determining the suit and the right of appeal to the District Judge and further bar of jurisdiction as given in Section 15 clearly proves that the Act is a self contained code.
18. Much emphasis has been laid down by counsel for the petitioner on Section 26-A of 1973 Act. Section 26-A of 1973 Act is a penal provision providing for punishment to a person who raises any encroachment on any land. The penal provisions under Sections 26 and 26-A of 1973 Act has been provided with intent to enforce the provisions of 1973 Act and provisions of punishment have been provided to deter the persons from making encroachment on any land. Sections 26 and 26-A are not substantive provisions providing for machinery for eviction of unauthorised occupants nor the aforesaid provisions can be said to be substitute of Section 4 and Section 5 of 1972 Act. Sections 26 and 26-A never intended to provide a parallel machinery for eviction as provided in 1972 Act. From the aforesaid, I am of considered view that both the Acts operate in different field and 1973 Act does not in any manner repeal 1972 Act. Provisions of both the Acts operate in different field with different object.
19. Counsel for the petitioner has placed reliance on a judgment of Apex Court in Allahabad Bank's case ((2000) 4 SCC 406 : AIR 2000 SC 1535) (supra) specifically in paragraphs 38, 39 and 40. In the aforesaid judgment, the Apex Court was considering the provisions of Recovery of Debts due to Banks and Financial Institutions Act, 1993 and the provisions of Companies Act, 1956. The Apex Court took the view that Act 1993 overrides the provisions of Companies Act, 1956. The Apex Court affirmed the view of the High Court by, which Act 1993 was treated as special statute overriding the Companies Act which was treated as general statute. The Apex Court held in paragraph 40 as under:—
“40. Alternatively, the Companies Act, 1956 and the RDB Act can both be treated as special laws, and the principle that when there are two special laws, the latter will normally prevail over the former if there is a provision in the latter special Act giving it overriding effect, can also be applied. Such a provision is there in the RDB Act, namely Section 34. A similar situation arose in Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of India (1993) 2 Supreme Court Cases 144 : 1993 AIR SCW 991 where there was inconsistency between twospecial laws, the Finance Corporation Act, 1951 and the Sick Industries Companies (Special Provisions) Act, 1985. The latter contained Section 32 which gave overriding effect to its former. It was pointed out by Ahmadi, J. that both special statutes contained non-obstante clause but the “1985 Act being a subsequent enactment, the non-obstante clause therein would ordinarily prevail over the non-obstante clause in Section 46-B of the 1951 Act unless it is found that the 1985 Act is a general statutes and the 1951 statute is a special one”. Therefore, in view of Section 34 of the RDB Act, the said Act overrides the Companies Act, to the extent there is anything inconsistent between the Acts.
Other rulings of Supreme Court and High Courts cited by counsel.”
20. From the law laid down by the Apex Court in paragraph 40 of the aforesaid judgment, it is clear that if there are two special laws and if there is a provision in the latter special Act giving it overriding effect then the latter will normally prevail. In that case before the Apex Court Section 34 of 1993 Act gave an overriding effect to the provisions of 1993 Act. Section 34(1) of 1993 Act provided:
“34(1) Save as otherwise provided in sub-section (2), the provisions of the Act shall effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”
21. In the present case both, 1972 Act and 1973 Act can be treated as special law. However, there is no overriding clause in 1973 Act overriding the provisions of 1972 Act. Further as held above both the Acts were enacted with different objects to cover the different fields, hence there is no occasion to apply the principle of implied repeal. Neither judgment of the Apex Court in Allahabad Bank's case ((2000) 4 SCC 406 : AIR 2000 SC 1535) (supra) nor the proposition as laid down in the above case by the Apex Court helps the petitioner in any manner.
22. For what has been said above, it is clear that the Prescribed Authority has every jurisdiction to proceed in accordance with provisions of 1972 Act and there is no lack of jurisdiction with the Prescribed Authority in issuing the notice dated 25th September, 2000 to the petitioner under Section 4 of U.P Act No. 22 of 1972. For the aforesaid reasons, neither the notice can be quashed nor writ of prohibition as prayed by the petitioner can be issued.
23. The petitioner is not entitled for the reliefs claimed in the writ petition.
24. The writ petition lacks merit and is dismissed.
25. Petition dismissed.
Section 4 of U.P Act
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