1. Common points arise in all these writ petitions and therefore they could be disposed of by a common judgment.

2. An area of Ac. 102-63 cents of land in Koritipadu village has been acquired, by way of a notification under section 4(1) of the Land Acquisition Act (for short ‘LA Act) dated 15-9-86 for the purpose of development of the same into plots by the Urban Development Authority, the 3rd respondent herein and for allotment of the same for construction of the houses. That is the subject-matter of challenge in these writ petitions. Seven contentions are raised on behalf of the petitioners by Sri V.L.N.G.K Murthy;

(1) The notification so issued under section 4(1) of the L.A Act has to be quashed since the Collector is not competent to issue the same, as it has to be issued by the Government, which has been admittedly for the benefit of the Urban Development Authority.

(2) The acquisition is with a profit motive and so, it is a fraud on power.

(3) The wholesale acquisition of the land comprising Ac. 102-63 cents is not necessary.

(4) There are Government lands in an extent of 100 acres leased out to a church and since the lease is expired, the lands could have been utilised, rendering thereby the acquisition unnecessary.

(5) Initially an extent of Ac. 123-31 cents of land was proposed for acquisition, which is later reduced to Ac. 102-63 cents by deleting the land and there by showing favour in favour of some of the land owners.

(6) The report under section 5-A of the LA Act has not been sent to the Government for its approval, as it has been finalised only by the District Collector and so, it is bad.

(7) The enquiry under section 5-A of the LA Act is a mere farce and is, not proper.

3. The first contention is based on the language of section 18 of the A.P Urban Areas (Development) Act, 1975 (hereinafter referred to as ‘Urban Areas Act,). Hence, the contents of the same be set out straightway.

“18: Compulsory acquisition of land;-(1) If, in the opinion of the Government, any land is acquired for the purpose of development or for any other purpose under this Act the Government may acquire such land under the provisions of the land Acquisition Act, 1894.”

4. Section 56(2) of the aforesaid Act also may be set out:

“56(2) The Government may by notification, direct that any power exercisable by them under this Act, except the power to make rules, may also be exercised by such officer as may be mentioned therein, in such cases and subject to such conditions, if any, as may be specified therein,”

5. Before analysis, section 3-A of the L.A Act, which was brought in by Amendment Act 22 of 1976, may be read:

“3-A. Delegations of functions;—The State Government may, by notification in the Andhra Pradesh Gazette, direct that any power conferred or any duty imposed on them by this Act, shall in such circumstances and under such conditions, if any, as may be specified in the notification, be exercised or discharged by the District Collector.”

6. The notification issued by the Government in G.O.Ms No. 4288 Revenue (K) Dept., dated 11-9-1980 reads:

“In exercise of the powers conferred by Section 3-A of the Land Acquisition Act 1894 (Central Act No. 1 of 1894)’ the Governor of Andhra Pradesh hereby directs that the District Collectors of Visakhapatnam, Vizianagaram, Krishna, Guntur, Hyderabad, Medak and Ranga Reddy districts shall in their respective jurisdiction exercise all the powers conferred and discharge all the duties imposed on the State Government under sections 4, 5-A, 6 and sub-section (4) of section 17 of the said Act in their respective jurisdiction for the purpose of acquisition of land for construction and improvement of houses and other developmental purposes undertaken by the Visakhapatnam Urban Development Authority; Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority, and the Hyderabad Urban Development Authority.”

7. The contention in the main of the learned counsel for the petitioners, based on the language “the Government may acquire such land under the provisions of the Land Acquisition Act, 1894”. in section 18(1) of the Urban Areas Act, is that it only seeks to incorporate and, therefore, there is no scope for referential legislation in this section. This was based on the ratio said to be laid down in Secretary of State v. H.C.I Society (1) AIR 1931 P.C 149 wherein it is held:

“It is an accepted rule of construction that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second. The independent existence of the two Acts viz’, Land Acquisiton Act and Calcutta Improvement Act, is therefore recognized; despite the death of the parent Act its offspring survives in the incorporating Act. Though no such saving clause appears in the General Clauses Act the principle involved is still applicable.

Where certain provisions from an exissting 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, at all events if it is possible for the subsequent Act to function effectually without the addition.”

8. Also held;

“The deliberate exclusion S. 54, Land Acquisition Act, from the Calcutta Improvement Act is an indication of the local legislature's intention that there should be under the special Code applicable to the improvement Trust not only no unrestricted right of appeal to the High Court, but no appeal at all beyond the High Court. If the introduction into the Calcutta Improvement Act of the new sub-sec. 26(2), Land Acquisition Act, were to give the right of appeal to His Majesty in Council it would clearly be repugnant to the pro visions of the former Act and on the well recognised principle of ‘generalia specialibus non derogant’ it follows that: the provision of the Calcutta Improvement Act must prevail and therefore no appeal lies against the decree of the Calcutta High Court passed on appeal against the award made by the Tribunal.”

9. The decision in Mahindra & Mahindra Ltd. v. Union of India (2) (1979) 2 SCC 529 : AIR 1979 S.C 798 was concerned with the interpretation of section 55 of the Monopolies and Restrictive Trade Practices Act, wherein the following observations made by the Privy Council in Secretary of State v. H.C.I Society (1) (supra) have been referred:

“It seems to be no less logical to hold that where certain provisions 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 incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.”

10. But, however, the decision in Westren Coalfields Ltd. v. Spl. Area Development Authority (3) (1982) 1 SCC 125 : AIR 1982 SC 697 wherein the aforesaid decision of the Privy Council has been referred to and distinguished, lays down;

“The principle, broadly, is that where a statute is incorporated by reference into a second statute the repeal of the first statute by a third does not affect the second (sec Clarke v. Bradlaugh (1881) 8 QBD 63 (69). Likewise, logically, where certain provisions 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. (see Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society Ltd., (1931) 58 Ind App 259 : (AIR 1931 PC 149). But these rules are not absolute and inflexible. In the case last cited, the Privy Council qualified its statement of the law by saying that the principle, that an amendment of the first law which is not expressly made applicable to the subsequent incorporating Act cannot be deemed to be incorporated into the second Act, applies “if it is possible for the subsequent Act to function effectually without the addition” (page 267)(of Ind App); (at p. 152 of AIR). Besides, as held by a Constitution Bench of this Court in the Collector of Customs, Madras v. Nathella Sampathu Chetty (1962) 3 SCR 786 : (AIR 1962 SC 316) the decision of the Privy Council could not be extended too far so as to cover every case in which the provisions of another statute are adopted by absorption (see page 837) of SCR at p. 336 of AIR. Finally, in State Of Madhya Pradesh v. M.V Narasimhan (1976 SCR 6 : (1975) 2 SCC 377 : AIR 1975 SC 1835) this Court held, after an examination of the relevant decisions, that broad principle that where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act, is subject to four exceptions, one of which is that the principle will not apply to cases “where the subsequent Act and the previous Act are supplemental to each other”.

11. Applying these principles, we are of the opinion that in the instant case, subsequent amendments made to the Municipal Corporation Act and the Municipalities Act will also apply to the power of taxation provided for in S. 69(d) of the Act of 1973. The Act of 1973 did not, by S. 69(d), incorporate in its true signification any particular provision of the two earlier Acts. It provides that, for the purpose of taxation, the Special Area Development Authority shall have the powers which a Municipal Corporation or a Municipal Council has under the M.P Municipal Corporation Act, 1956 or the M.P Municipalities Act, 1961. The case therefore is not one of incorporation but of mere reference to the powers conferred by the earlier Acts. As observed in Nathella Sampathu Chetty (AIR 1962 SC 316) there is a distinction between a mere reference to or a citation of one statute in another and an incorporation which in effect means the bodily lifting of the provisions of one enactment and making them part of another, so much so that the repeal of the former leaves the later wholly untouched. S. 69(d) of the Act of 1973 must accordingly be read to mean that respondent I shall have all the powers of taxation which a Municipal Corporation or a Municipal Council has for the time being that is to say, at the time when respondent I seeks to exercise those powers.”

12. The observations in “Principles of Statutory Interpretation” by G.P Singh, 3rd Edition, at page 226, may usefully be adverted to:—

“A distinction has also been drawn between a mere reference or citation of one statute into another and incorporation. In the former case a modification, repeal or re-enactment of the statute that is referred will also have effect for the statute in which it is referred: but in the latter case any change in the incorporated statute by way of amendment or repeal has no repercussion on the incorporating statute. It is a question of construction whether a particular former statute is merely referred to or cited in a later statute or is wholly or partially incorporated therein.”

13. In view of the above and also in view of the language in section 18 of the Urban Areas Act, it has to be discerned that the provisions of Urban Areas Act brought in section 18 are an instance of mere reference to the provisions enacted in the Land Acquisitition Act and not one of incoporation. There is no straight jacket formula in this matter. It all depends upon the context and the language, which provide queue for construction. Therefore, in this case, so judged, the power of delegation postulated under sec. 3-A of the L.A Act and the notification issued thereunder in G.O.Ms No. 4288 dated 11-9-1980, by which the powers of the Government have been delegated inter alia under sections 4 and 5-A of the L.A Act, to the District Collector concerned must be held to be applicable to these cases and so, it is competent for the District Collector to issue the notification under section 4(1).

14. That apart, the language of section 3-A of the L.A Act as well as section 56(2) of the Urban Areas Act being in pari materia, by virtue of referential legislation, the notification must also be deemed to have been issued within the meaning of section 56(2) of the Urban Areas Act. So construed, the District Collector had power under the delegated authority to issue the notification under section 4(1) of the L.A Act. Even otherwise, the Government's approval of the scheme contemplated herein is also made clear in G.O Rt. No. 121, M.A, dated 27-1-1986 which reads:

“In the circumstances stated by the Collector, Guntur district and Vice-Chairman, Vijayawada, Guntur, Tenali Urban Development Authority, Vijayawada in the letters read above, the Government hereby permit the District Collector, Guntur to acquire the land measuring Ac. 123-31 cents in S. Nos. …….of Koritipadu village, Guntur taluk, Guntur district, for town expansion scheme.”

15. So, on the basis of this approval also, it can be said that the scheme has received the approval of the Government within the meaning of section 18 of the Urban Areas Act. Consequently, the contention of the petitioners, which has no foundation, has been rejected.

16. The second contention is that there is an element of profit motive in the acquisition of the land. It is true that on acquisition, the compensation, based on the market value of the land, will be paid over to the owners of the land and thereafter the land will be developed and organised into plots; the same will be sold and in the process it may exceed the compensation amount, which would be retained by the Urban Development Authority. Whether this activity could be said to be ‘profit making activity’ and, therefore, the same has to be held as invalid and illegal, has been considered in a recent judgment of the Supreme Court in Bharat Singh v. State of Haryana (4) (1988) 4 SCC 534 : AIR 1988 SC 2181 wherein it is held:

“The “public purpose” in question’ already noticed, is development and industrialisation of the acquired land. The appellants have not challenged the said “public purpose”. In the absence of any such challenge, it does not lie in the mouth of the appellants to contend that the requisition was merely a profiteering venture by the State Government through HUDA. The appellants will be awarded the market value of the land as compensation by the Collector. If they are dissatisfied with the award they may ask for references to the District Judge under section 18 of the Act. If they are still aggrieved, they can file appeals to the High Court and, ultimately, may also come to this Court regarding the amount of compensation. The appellants cannot claim compensation beyond the market value of the land. In such circumstances, we fail to understand how does the question of profiteering come in. Even assuming that HUDA has made some profit, that will not in any way affect the public purpose for which the land was acquired and the acquisition will not be liable for any challenge on that ground”.

17. The allegation of the petitioners that the acquisition is not for public purpose, is very rightly controverted in para 10 of the counter-affidavit stating as under:

“The allegations in ground No. (e) & (g) is that it is not a public purpose and the 3rd respondent cannot acquire the lands for the commercial activities etc., are all incorrect and untenable. I submit the main object of the Urban Development Authority is to develop the areas in accordance with the statutory plans and statutory itself empowers them to acquire the lands for a public purpose. I submit it is the duty of the State and its instrumentalities to provide basic amenities to the citizens of India basing upon its economic capacity for the persons who cannot afford to purchase the house sites in the open market by paying an exorbitant rates and to save the middle and economically backward class families, the Urban Development Authorities taken up these schemes which are admittedly a public purpose and the Town Expansion Schemes are taken up on scientific lines. The allegations in ground No. (f) that the purpose of acquisition as set out is totally a vague and lacking in details etc., are untenable. I submit the purpose mentioned in the notification is clear and it is not necessary to mention which particular survey number is going to be used for which purpose and it is sufficient to mention the purpose in a comprehensive manner.”

ln the notification it is stated that the land is acquired for “public purpose” and the purpose also is that after acquisition it has to be developed into plots and the same be allotted to the needy public on consideration being paid by them. The purpose for which the land is acquired is not alleged to be not for public purpose.

18. If that be so, even assuming that there is an element of profit motive, in the sense that the Urban Development Authority in question has made some profit, will not in any way affect the public purpose if the land is acquired. Hence, the contention is rejected as without any substance.

19. The third contention is that wholesale acquisition of land is unnecessary. True, originally there was a proposal to acquire Ac. 123-31 cents of land, not by issue of any draft notification. But long before the issue of section 4(1) notification, after due survey being conducted and also hearing the objections of some of the land owners, about 20 acres of land has been deleted and eventually the notification was issued to acquire Ac. 102-63 cents of land. So, after due consideration as per the scheme, the land which was suitable and necessary was proposed to be acquired. This Court cannot, as has been held by the Supreme Court more than once, go into the adequacy or inadequacy of the scheme while scrutinising the report of the Collector. Hence, the contention, which has no merit, is rejected.

20. The fourth contention is that there is Government land comprising about 100 acres available for acquisition which was leased out to a church and lease since expired, the same can as well be acquired. So far as the lease is concerned, it is stated by the learned counsel for the respondent-Authority that the period is not yet expired and after due expiry to the extent of the land that is necessary will also be acquired for development of the same into plots. To the extent of the scheme that is now contemplated, private lands also will have to be acquired and, therefore, acquisition has been effected.

21. Under the above circumstances I do not find that acquisition of private land is in anyway either discriminatory or deliberate in order to cause detriment to the owners. Hence, the contention of the petitioners is rejected.

22. As regards the next contention that the original extent of Ac. 123-31 cents of land has been reduced to Ac. 102-63 cents, with reference to point No. 3 it has been already stated that after due survey and enquiry and also due to certain exigencies, certain land has been excluded, thereby the original proposal which was meant for 123-31 acres was reduced to Ac. 102-63 cents. After looking into the plan, prepared in this behalf, this Court feels that there is nothing to indicate that deletion from the proposed acquisition before the issue of section 4(1) notification is in any way to show any favour to the owners. This has been examined with reference to the feasibility and also from the stand point of contiguity and so forth.

23. Adverting to the similar contention, the Supreme Court in Bharat Singh's case (4) (supra) held:

“Lastly, it is argued by Mr. Goburdhan for the writ petitioners that the petitioners have been discriminated inasmuch as the land of other persons in the village has not been acquired. This contention is without any substance whatsoever. The Government will acquire only that amount of land which is necessary and suitable for the public purpose in question. The land belonging to the petitioners have been acquired obviously considering the same as suitable for the public purpose. The petitioners cannot complain of any discrimination because the land of other persons has not been acquired by the Government. The contention is devoid of any merit whatsoever.”

24. In view of the above, the allegation is highly misplaced and baseless. Therefore, the same is rejected. This allegation also has to be rejected on the ground that necessary parties have not been impleaded to the writ petitions. The allegation made in ground No. 3 by the petitioners has been very effectively controverted in the counter stating that the deletion has been on account of certain representation made and, therefore, after due consideration the same was deleted, which, in my view, based on the perusal of the plan, is reasonable.

25. The next contention that section 5-A enquiry report has not been sent to the Government, could be disposed of by merely stating that as per the delegation contemplated under section 3-A of the L-A Act, it is needless to be sent to the Government for its approval, as the Collector under the delegated powers is competent to approve the same.

26. Point No. 7: The allegation in para 6 of the affidavit in WP No. 14200/87 is as under:

“Notice U/s 5-A have been issued to some of the persons asking them to appear on 2-12-1986 at 10.30 am at Mandal Revenue Office, Guntur. We engaged Sri A. Sanjiva Reddy, Advocate. When he went there, the officer was absent. The officer came only after 1 p.m when the advocate wanted to give the statements of objections, the officer refused to receive them and asked him to send the representations by post. Subsequently as per his directions, we sent our representations along with the documents. No enquiry has been subsequently conducted. No notice of any report on the said enquiry was sent to any one of us. No local inspection was made.”

27. In the counter it is averred:

“I submit the section 5-A enquiry notices were issued to all the registered pattadars and enjoyers as per the revenue records fixing the date of enquiry on 2-12-86. The 5-A enquiry notice was also affixed on the respective survey numbers intimating the persons who are interested in the lands to file their objections on or before 2-12-86 and they were also informed that the enquiry will be taken up on 2-12-86 and the persons interested may also appear before the Land Acquisition Officer to submit their objections for the proposed acquisition. The 5-A enquiry has been conducted on 2-12-86. This respondent after considering the objections filed and raised by the interested persons and also the remarks submitted by the 3rd respondent herein submitted the 5-A enquiry report dated 10-3-87 with DD proposals to the 1st respondent herein. This respondent overruled the objections of the petitioners and various other persons that they are small farmers and their lands cannot be acquired on the ground that the proposed acquisition is for a public purpose and the lands cannot be deleted from acquisition so as not to affect the continuance and contiguity of the lands. I also submit to implement the scheme of Town Expansion a seizable block of lands are necessary and the lands of some people cannot be deleted from the proposed acquisition on the ground of their being small farmers. Further the lands notified are within the master plan of Guntur Municipality and classified as for residential purpose as per the certificate issued by Special Officer and Competent Authority, Urban Land Ceilings, Guntur vide his L. Dis. 1190/84, dt. 26-9-84. Hence their lands cannot legally be put to a different area like agriculture.”

28. Under these circumstances, I am not persuaded to hold that the enquiry was a mere farce and was not in accordance with the provisions laid down under section 5-A of the LA Act. Due notice and opportunity was given to the petitioners and, therefore, there is nothing to hold that the enquiry is improper. Consequently, the contention is rejected. Lastly, the argument was that the petitioners are small farmers and their lands once are allowed to be acquired, they become landless and almost they are uprooted. It is however stated by the learned counsel for the respondent-Authority that as and when plots are made, the benefit of section 19(2) of the Urban Areas Act will be accorded to the petitioners. Section 19(2) and its proviso read:

“19(2) The powers of the Authority, or as the case may be, of the local authority concerned with respect to the disposal of land under sub-section (1) shall be so exercised as to secure, so far as practicable, that persons who are living or carrying on business or other activities on the land shall, if they desire to obtain accommodation on land belonging to the Authority or the local authority concerned and are willing to comply with any requirements of the Authority or the local authority concerned as to its development and use, have an opportunity to obtain thereon accommodation suitable to their reasonable requirements on terms settled with due regard to the price at which any such land has been acquired from them;

Provided that where the Authority or the local authority concerned proposes to dispose of by sale any land without any development having been undertaken or carried out thereon, it shall offer the land in the first instance to the persons from whom it was acquired, if they desire to purchase it subject to such requirements as to its development and use as the Authority or the local authority concerned may think fit to impose.”

29. Therefore, I am sure the authority concerned will implement the statutory provisions laid down under the proviso to section 19(2) of the Urban Areas Act.

30. In the result, the writ petitions are dismissed.

31. No costs.