INTERPRETATION OF STATUTES

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Referential Legislation: Need For Fresh Look
by K.C. Jain*

Cite as : (2000) 2 SCC (Jour) 17

When a new legislation "refers" to an earlier enactment, the new legislation is termed a referential legislation. In modern legislative exercises, it is common practice to refer to an earlier existing law while making new law.

Such reference of an earlier law in the latter law can be of two categories: (i) a "simple reference" which merely contains a reference to or citation of the provisions of the earlier statute, as mentioned in Section 28(1) of the General Clauses Act, 18971 (in short "the GC Act"), and (ii) a reference where the earlier law is made as an integral part of the new law, known as "incorporation by reference"2.

In "incorporation by reference", the provisions of the former law are not copied but are merely referred to but fictionally made a part of the latter law. As stated by F.A.R. Bennion:

"It is a common device of draftsmen to incorporate earlier statutory provisions by reference, rather than setting out similar provisions in full. This device saves space, and also attracts the case-law and other learning attached to the earlier provisions. Its main advantage is a parliamentary one however, since it shortens Bill and cuts down the area for debate3."

Bennion further describes the practice of "incorporation by reference" as "archival drafting"4. This is in accordance with the maxim, namely, verba relata hoc maxime operantur per referentiam ut in eis inesse videntur5 - words to which reference is made in an instrument have the same operation as if they were inserted in the instrument referring to them.

LEGAL INCIDENTS OF REFERENTIAL LEGISLATIONS

When the latter law simply "cites" the former law, the legal incident attached thereto is that all amendments to the former law though made subsequent to the enactment of the latter law, would ipso facto apply. Even if the former law is repealed and re-enacted, with or without modifications, the re-enacted law is to apply, and this rule of construction is embodied in Section 8(1) of the GC Act6.

In contrast to simple reference, the legal incident of incorporating a law both actually and by reference is that such incorporated law becomes part of the latter law "which in effect means the bodily lifting of the provisions of one enactment and making them part of another"7 and, therefore,

"(s)ubsequent changes in the earlier Act or the incorporated provisions will have to be ignored because, for all practical purposes, the existing provisions of the earlier Act have been re-enacted by such reference into the latter one, rendering irrelevant what happens to the earlier statute thereafter".8

Even where the earlier law is repealed altogether, the incorporated provisions thereof remain in force as part of the latter law. In other words, despite the death of the parent Act, its offspring survives in the incorporated Act. It has been said that the "effect of incorporating one Act with another is presumably to make them parts of the same code".9 Lord Esher, M.R., said that the legal effect of incorporation by reference

"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".10

Brevity at the expense of lucidity

The principal reason for the legislative practice of referring former law, which is frequently resorted to by draftsmen, is to achieve brevity in drafting. But, since the practice creates avoidable difficulties and litigation, the practice has been widely criticised in the past by the courts. In this regard, Ranganathan, J. succinctly remarked: (SCC para 92)

"Legislatures sometimes take a short cut and try to reduce the length of statutes by omitting elaborate provisions where such provisions have already been enacted earlier and can be adopted for the purpose on hand. While, on the one hand, the prolixity of modern statutes and the necessity to have more legislations than one on the same or allied topics render such a course useful and desirable, the attempt to legislate by reference is sometimes overdone and brevity is achieved at the expense of lucidity."11

RULES OF CONSTRUCTION TO ASCERTAIN NATURE OF REFERENTIAL LEGISLATION

Courts are often confronted with the vexed question, namely, whether the former law, referred to in the latter law, is "merely by way of reference/citation" or "incorporation by way of reference"?

The answer of this question depends on the construction of the provision that refers to the legislation. In other words, it depends on the language used in the latter law and other relevant circumstances12. The judiciary from time to time evolved various salutary rules of construction which are analysed below with a view to evaluate their efficacy in dealing with the issues.

(a) Employment of well-known formulae for incorporation

Some of the modes adopted by the legislature for incorporating a legislation by reference, as identified by the courts, are as follows:

"... Shall, for that purpose, be deemed to form part of this Act in the same manner as if they were enacted in the body thereof;"13

"The provisions of Section ... of the said Act (set out in the Schedule) shall apply as if they were herein re-enacted"14.

Similarly, the Bombay Municipal Corporation Act, 1949, vide its Section 284-N postulated that "the LA Act ... shall for that purpose be deemed to form part of this chapter as if enacted in the body hereof"15.

Section 9 the Downing Street Public Offices Extension Act, 1875 also read that certain sections of Acts 3 and 4 Vict. Ch 87 "shall be deemed to be herein repeated with the alterations necessary to make to same applicable to the purposes of this Act"16.

The effectiveness of the formulae came to be analysed by Ayyangar, J. in Collector of Customs, Madras v. Nathella Sampathu Chetty17. The facts of the case were: the Foreign Exchange Regulation Act (FERA) was enacted in 1947. Section 23-A was introduced in FERA in 1952 applying Section 19 of the Sea Customs Act, 1878 (Sea Customs Act) thereto. In 1955, the Sea Customs Act was amended by way of insertion of Section 178-A therein. On 26-6-1956, certain quantity of gold was found in possession of an employee of the respondent and the Revenue invoked Section 178-A of the Sea Customs Act. Against this backdrop, the respondent contended that Section 178-A had no application as Section 23-A of FERA "referentially incorporated" the provisions of the Sea Customs Act as then existing in the year 1952 and the subsequently inserted Section 178-A was inapplicable. Upholding applicability of Section 178-A to FERA, Ayyangar, J. said:

"A comparison of the formulae with the text of Section 23-A shows that the reference in it to Section 19 of the Sea Customs Act is merely for rendering notifications under the named provisions of the Foreign Exchange Regulations Act to operate as notifications under the Sea Customs Act, and that it cannot have the effect of incorporating the relevant provisions of the earlier Act into the Act of 1947...."

New Central Jute Mills Co. Ltd. v. Assistant Controller of Central Excise18 involved the controversy about construction of Section 12 of the Central Excises and Salt Act, 1944, which also referred to the Sea Customs Act, 1878. In the year 1962, the Sea Customs Act was repealed and was followed by the enactment of the Customs Act of 1962. In the case in hand, the provisions of the newly enacted 1962 Act were sought to be applied by the Revenue while exercising the powers under Section 12 of the 1944 Act, which was opposed. While holding the re-enacted 1962 Act to be applicable, Grover, J. said: (SCC p. 824, para 7)

"A comparison of the recognised formulae with the text of Section 12 of the Act shows that the provisions of the Sea Customs Act, 1878, were not meant to be incorporated in the Act...."

(b) Use of express, explicit and positive language for incorporation

Examination of some decisions indicates that our judiciary often insisted on explicit and positive language to express the legislative desire for incorporation by reference. For example, in Rajputana Mining Agencies Ltd. v. Union of India19, while disposing of a controversy about incorporation by reference, Hidayatullah, J. (as his Lordship then was), said:

"The argument assumes the premise that the Income Tax Act was incorporated in the Indian Finance Act, 1950, but there is neither precedent nor warrant for the assumption that when one Act applies another Act to some territory, the latter Act must be taken to be incorporated in the former Act. It may be otherwise, if there were words to show that the earlier Act is to be deemed to be re-enacted by the new Act."

In Bajaya v. Gopikabai20 where Section 151 of the MP Land Revenue Code, 1954 was considered, the Court expressly stated that "(t)here are no words in that section or elsewhere in the Code, which limit the scope of the expression "personal law" to that prevailing on 5-2-1955."

Precisely stated, for incorporation by reference, an imperative need for positive language is essential to manifest that the former law is made an integral part of the latter law or that the legislature intends not to apply the future amendments to the former law. It is trite saying that "if the intendment is not in the words, it is nowhere else", and that "the language is the exponent of intention"21. Hence, for want of an intendment, express or implied, on the part of the draftsmen to make the former law as an integral part of the latter law, the presumption is against incorporation. Statutory provisions, wanting positive legislative desire, indicate "citation"/"mere reference" in terms of Section 28 of the GC Act.

The requirement, that there should be express, explicit and positive language for "incorporation by reference", is reinforced by Section 8, sub-section (1) of the GC Act. It postulates that where an Act is repealed, with or without modification, then its references in any other enactment shall, unless a different intention appears, be construed as references to the provisions so re-enacted. Section 8(1), aforesaid, is in line with the English statutes22. Thus, the need for a contrary intention whether express or by necessary intendment, is necessary to make the rule of construction outlined in Section 8(1) of the GC Act to be inapplicable.

There is another aspect also. When Section 8(1) of the GC Act applies for repeal followed by re-enactment, should it be not applicable, by analogy, to the cases of amendments also? In fact, a fortiori the rule of construction embodied in Section 8(1) should apply to amendments also. If a former Act is amended, its reference in the latter law should be construed as to the amended law (like re-enacted law) barring cases of contrary intention. The English Interpretation Acts contain specific rule in that regard.23

(c) Earlier law governing generally the particular subject

Another salutary principle of construction regarding referential legislations evolved by the courts is that where the former law governs a "particular subject" generally and is referred to in the latter law, it is an instance of simple reference without any intention to "bodily transpose" such former law therein.

Sutherland describes this principle thus:

"A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted."24

The above rule of construction was applied to in Bajaya v. Gopikabai20. The Supreme Court opined that the expression "personal law", referred to in Section 151 of the M.P. Land Revenue Code, comprehended the generic law, namely, the Hindu Succession Act, 1956, which would govern inheritance. Accordingly, it was found to be a case of "reference" and not that of "incorporation".

Ranganathan, J. also expressed similar views in his concurring judgment in Ujagar Prints8 when his Lordship succinctly stated: (SCC para 93)

"The latter statute may not incorporate the earlier provisions. It may only make a reference of a broad nature as to the law on a subject generally, as in Bajaya v. Gopikabai20, or contain a general reference to the terms of an earlier statute which are to be made applicable."25

The corollary of this rule of construction is that it implies that, where a former law is simply "referred" to or "cited" in the latter law, the words "for the time being in force" in regard to the former law are implicit. It implies that the former law that may be "in force" at the "relevant time" is applicable for the exercise of the power thereunder.

(d) Latter law having special provisions and also referring to general law

In a situation, where the latter law has some of its own special provisions, and at the same time also refers to former law governing a subject generally, it is again an instance of "mere reference". But, in that case, the provisions of the former law are applicable insofar as they are not inconsistent and irreconcilable with the special provisions of the latter law. In other words, all provisions of the former law are to apply, except to the extent of the special and inconsistent provisions of the latter law.

In Bhatinda Improvement Trust26 also, the Punjab Town Improvement Act, which was enacted in the year 1922, referred to the Land Acquisition Act as modified by the Schedule to the said Act. About reference, Kania, J. has said: (SCC para 8)

"The acquisition of such land for the purposes of the scheme is left to the general law of the land in that connection, namely, the Land Acquisition Act which has to be resorted to for the purposes of acquisition of land for the purposes of the schemes contemplated under the said Act. The only difference is that some of the provisions of the Land Acquisition Act, as referred to in the relevant sections of the said Act, are given effect to as amended by the relevant sections of the said Act. In these circumstances, it cannot be held that any provisions of the Land Acquisition Act have been incorporated into the said Act...."27

As a sequel to this rule, if the provisions of the former law are amended or modified, they are to apply unless the amended provisions result in a conflict with the existing provisions of the latter law. P. Govindan is an illustration of this proposition. It is worth examining the reasoning of this decision: the City of Mysore Improvement Act, 3 of 1903, was enacted in 1903; its Section 23 postulated acquisition of land to be regulated by the provisions, as far as they were applicable, of the Land Acquisition Act, 1894; it also made several amendments to the LA Act; an amendment to the LA Act was made in 1927. Against this factual backdrop, the issue arose whether the 1927 amendment was applicable to the acquisition of land under the 1903 Mysore Improvement Act. Beg, J. (as he then was), ruled thus: (SCC para 7)

"We think that the language of Section 23 of the Mysore Act applies the provisions of the Acquisition Act to acquisitions under the Mysore Act, except to the extent of express deviation by the Mysore Act from the general procedure in the Acquisition Act as amended from time to time. ... It was enough to lay down, as Section 23 of the Mysore Act does, that the general procedure found in the Acquisition Act will apply except to the extent it was inapplicable. This means that amendments of the procedure in the Acquisition Act will apply if it is capable of application."28

(e) Reference of "definitions" of former Act

One more rule of construction regarding referential legislations, deducible from a line of decisions, is this: if only a definition of an expression of the former law is referred to in the subsequent "self-contained code", it would be deemed that the definition has been "incorporated by reference". In Narottamdas v. State of M.P.29, K.C. Das Gupta, J., speaking for the Constitution Bench, best expressed thus:

"The definition of expressions used in an Act with reference to other Act is a well-known device in legislative practice generally adopted for the sake of brevity. The definition would remain effective even after the other Act with reference to which the definition was given ceases to exist. This fact of defining expressions in an Act with reference to some other Act cannot therefore have the effect of making this Act dependent on such other Act."

Ram Sarup v. Munshi30 also stated the above proposition. The facts therein were: Section 3(1) of the Punjab Pre-emption Act, 1913 defined "agricultural land" by saying that it meant "as defined in the Punjab Alienation of Land Act, 1900". Subsequently, the 1900 Act was repealed. Against these facts, Ayyangar, J., ruled that repeal had no consequence and "the expression 'agricultural land' in the later Act has to be read as the definition in the Alienation of Land Act had been bodily transposed into it."

Similarly, in Bolani Ores Ltd. v. State of Orissa31 the definition of "motor vehicle" came up for consideration. Vide Section 2(c) of the Orissa Motor Vehicles Taxation Act, the definition of "motor vehicle", given in Section 2(18) of the Motor Vehicles Act, 1939 was adopted. The definition was held to have been incorporated and was consequently held to have remained unaffected by the amendment of Section 2(18) of the Motor Vehicles Act, 1939 by the Motor Vehicles (Amendment) Act, 1956.32

This rule of construction has not been found to be inflexible. The Supreme Court took a contrary view in some of its decisions by holding that the definitions did not stand "incorporated" in the latter law, and re-enacted definitions were to govern those cases.

For instance, in State of Bihar v. S.K. Roy33 the Supreme Court was to construe the expression "employer". The Coal Mines Provident Fund and Bonus Schemes Act, 1948 defined the term "employer" as "the owner of a coal mine as defined in clause (g) of Section 3 of the Indian Mines Act, 1923". The Indian Mines Act, 1923 was thereafter repealed and was substituted by the Mines Act, 1952 that had a different definition of the said expression. The Supreme Court, by reason of Section 8 of the GC Act, construed the expression "employer" with reference to the re-enacted definition. Similarly, in STO v. Union of India34 the definition of "railways", as given in Section 28(8) of the U.P. Sales Tax Act, 1948, was construed with reference to the re-enacted Railways Act, 1989 instead of with reference to the repealed Indian Railways Act, 1890. This conflict shall have to be resolved by the Supreme Court.

(f) Referred law to include amendments till the date of adoption

If a latter law adopts an Act, it would mean that the amendments up to the date of such adoption are to be read therein. This rule was considered in Rajasthan SRTC v. Poonam Pahwa35. G.N. Ray, J., for the Court, held thus: (SCC p. 112, para 27)

"There is nothing to indicate that in Haryana, the Punjab Motor Accidents Claims Tribunal Rules, 1964 without the amendment effected in the said rules after 1964 were adopted. Hence, when Punjab Motor Accidents Claims Tribunal Rules were adopted by only referring the rules and not by expressly indicating that the said Punjab Rules of 1964 as it stood in 1964 were only adopted, it must be held that the Punjab Rules as stood amended on the date of adoption by Haryana are applicable in the State of Haryana."

In this context, the seven-Judge Bench decision of the Supreme Court in State of Maharashtra v. Madhavrao Damodar Patil36 is also germane. The Maharashtra State Agricultural Lands (Ceiling on Holdings) Act was enacted in 1961, which was amended by an Act of 1962. Thereafter, the Constitution (Seventeenth) Amendment Act, 1964 came in force on 20-6-1964 and it included the 1961 Act in the Ninth Schedule of the Constitution but did not mention the 1962 Amendment Act. Against these facts, the Supreme Court said that the amendments effected in the year 1962 in the 1961 Act would also get the protection for being included in the Ninth Schedule of the Constitution. Sikri, J. (as he then was) said for the Constitution Bench:

"It is true that for some purposes an amending Act retains its individuality. This, however, does not lead to the conclusion that when an Act is referred to by its title it is not intended to include the amendments made in it."

(g) Exceptions to the doctrine of incorporation by reference

The other significant rule of construction regarding referential legislation evolved by the Supreme Court is that the "doctrine of incorporation" has no application, if a given case falls in any of the four exceptions, carved out by the Supreme Court in a catena of decisions, which may be stated thus37:

(i) where the subsequent Act and the previous Act are supplemental to each other;

(ii) where the two Acts are in pari materia;

(iii) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and

(iv) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act.

Supplemental law

A "supplemental law", as the expression goes, is converse to a "self-contained enactment". Precisely stated, when the latter law depends on the former law for procedural/substantive provisions or is to draw its strength from the provisions of the former Act, the latter law is termed as "supplemental"38 to the former law.

The decision of Western Coalfields v. Development Authority7 significantly sheds light on this aspect. To recall its facts: the relevant M.P. Act was enacted in 1973. Thereafter, Section 69(d) was implanted therein which came in force on 27-2-1976, which provided that for the purpose of taxation, the Authority under the 1973 Act would have the powers which a Municipal Corporation or a Municipal Council had under the two Municipal Acts of 1956 and 1961. On 1-4-1976, Section 127-A and Section 135 of the 1956 and 1961 Acts respectively came in force. The applicability of the aforesaid Section 127-A and Section 135 for the purposes of the 1973 Act was disputed. Holding them to be applicable, Chandrachud, C.J., took the view that M.P. Act 23 of 1973 was supplemental to the 1956 and 1961 Acts for the reasoning thus: (SCC para 18)

"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."39

Ujagar Prints8 is also relevant in this context. Its fact were: the Central Excises and Salt Act was enacted in 1944 and defined the expression "manufacture". Later on, the Additional Duties of Excise Act was enacted in 1957 without defining the expression "manufacture". In 1980, the expression "manufacture", as defined in the 1944 Act, was enlarged. For the purpose of the 1957 Act, the enlarged definition was sought to be applied. Raganathan, J., in his concurring judgment held the 1957 Act to be supplemental to the 1944 Act and thereby applied the amended definition. His Lordship reasoned thus: (SCC para 95)

"While the 1944 Act imposes a general levy of excise duty on all goods manufactured and produced, the aim of the present Act is to supplement the levy by an additional duty of the same nature on certain goods."40

Of late, in Mariyappa v. State of Karnataka41 also, the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 was held not to be a "complete code", and it was ruled that "there being no detailed machinery whatsoever in the Karnataka Act, 1972, that Act cannot be treated as a self-contained or complete code".

Acts in pari materia

Another significant exception to the "doctrine of incorporation", carved out by the Supreme Court, is where the two Acts are in pari materia. This exception contemplates that though the latter law incorporates the former law, the amendments in the former law are to be read for the purposes of the latter law.

The expression "pari materia", means: "of the same matter; on the same subject; as laws pari materia must be construed with reference to each other"42. Sutherland explains it thus:

"Statutes are considered to be in pari materia - to pertain to the same subject-matter - when they relate to the same person or thing, or to the same class of persons or things, or have the same purpose or object."43

In State of Madras v. A. Vaidyanatha Iyer44, Section 4 of the Prevention of Corruption Act, 1947 was held to be "in pari materia with the Evidence Act because it deals with a branch of law of evidence, e.g., presumptions, and therefore should have the same meaning". The words "shall presume" used in the said 1947 Act were, therefore, given the same meaning as the Evidence Act. In J.K. Steel Ltd. v. Union of India45 the Central Excises and Salt Act, 1944 and the Indian Tariff Act, 1934 were considered, and it was held that

"(t)he Act and the Tariff Act are cognate legislations. In other words they are legislations which are pari materia. They form one code. They must be taken together as forming one system and as interpreting and enforcing each other".

In Sirsilk Ltd. v. Textiles Committee46 the Industries (Development and Regulation) Act, 1951 and the Textiles Committee Act were considered and the Supreme Court found them to be statutes in pari materia, as the object of both these two acts was to protect and to assist in the development of Textile Industry.

Jainul Islam case

Of late, the Supreme Court has handed down the decision in Jainul Islam47 touching upon various aspects of referential legislation. Having regard to the settled rules of construction of referential legislation, it is felt that Jainul Islam needs review.

The contentious issue involved in Jainul Islam was whether Section 5548 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (the 1965 Parishad Adhiniyam) "incorporated by reference" the Land Acquisition Act, 1894 (in brief "the LA Act") as it existed at the time of its enactment of 1965 Act49. The facts giving rise to the issue were: the 1965 Act came in force in U.P. in 1966. Its Section 55 postulated acquisition of land under the provisions of the LA Act. In 1984, the LA Act was drastically modified by the amending Act 68 of 1984, and the benefits of higher rate of solatium and interest etc. were extended. In this context, the concept of referential legislation was examined to find whether such benefits were available for acquisition of land under the Parishad Adhiniyam of 1965. S.C. Agarwal, J., for the three-Judge Bench, held that Section 55 incorporated by reference the then existing LA Act.

For arriving at this conclusion, the Bench in Jainul Islam heavily relied upon the ratio of Secy. of State v. Hindustan Coop. Insurance Society Ltd.50. In Jainul Islam, several pertinent aspects discussed below were unfortunately lost sight of:

(i) Section 55 of the Parishad Adhiniyam did not employ any known formulae or express language to incorporate the LA Act, which was a sine qua non for incorporating the LA Act referentially. No inherent evidence of incorporation was also present in Section 55 to manifest incorporation. As such, the ratio of Jainul Islam is contrary to the consistent thread of reasoning running through a line of decisions of the Supreme Court.

(ii) In Hindustan Coop.50, the limited issue involved before the Privy Council was the right to appeal, and it was resolved in view of the express and specific provisions of the Calcutta Improvement Act (Bengal Act 5 of 1911)51. It is settled law that a decision is an authority for what it actually decides52. Accordingly, Hindustan Coop.50 was an authority on non-applicability of Sections 26(2) and 54 of the LA Act to an acquisition under the Calcutta Act only.

(iii) The view taken in Hindustan Coop.50 that the Calcutta Act was a "special law for the acquisition of land by the trustees" and also the view in Jainul Islam47 that the Parishad "Adhiniyam contains provisions regarding acquisition of land, which are complete and self-contained", are contrary to the ratio of Land Acquisition Officer v. H. Narayanaiah53 and Patna Improvement Trust v. Laxmi Devi54. In H. Narayanaiah53 it was pertinently held by a three-Judge Bench about the City of Bangalore Improvement Act, 1945 that "(a)s an incident of this improvement and expansion it provides for acquisition of land also. It does not, however, contain a separate code of its own for such acquisitions".

(iv) Jainul Islam is per incuriam of the ratio of the earlier binding decisions55 of the coordinate/larger Benches of the Supreme Court on State Acts56, which were in pari materia to the Parishad Adhiniyam.

(v) The view taken in Jainul Islam47 that "the Adhiniyam and the LA Act cannot be regarded supplemental to each other" has ignored the test laid down by the Supreme Court in various decisions, referred to above, and in particular Western Coalfields Ltd. v. Special Area Development Authority7.57 Indisputably, the Parishad Adhiniyam does not contain its own independent machinery for either taking possession or for assessment of compensation or for reference to the Court and other allied matters. For that, it solely depends on the provisions of the LA Act. The Parishad Adhiniyam cannot, thus, function without drawing aid from the LA Act.

In view of the above, the decision of Jainul Islam47 needs reconsideration. It is true that Jainul Islam47, even after treating the Parishad Adhiniyam of 1965 to have referentially incorporated the LA Act extended the benefits of the amending Act 68 of 1984 to the acquisitions under the Adhiniyam. But, it was to give effect to the equality jurisprudence enshrined in Article 14 of the Constitution. Nevertheless Jainul Islam47 stands in the way of several other benevolent provisions of the said amending Act (e.g. Sections 11-A58, 28-A and 53-A etc.). Hence the need for reconsideration is rather more pressing as several other State Acts are in pari materia with the Parishad Adhiniyam and difficulty is bound to arise.

SUM-UP

The past experiences regarding the age-old practice of referential legislation were bitter. Several misgivings about the practice also crept in. In fact, the practice proved to be a potential source of contentious litigation travelling up to the highest court. The legislative attempts of brevity at the expense of lucidity were not countenanced, and the courts deprecated such attempts. It is high time to learn lessons from the past mistakes. Hence, the draftsmen must in future adopt a more practical approach while drafting a new law to make the legislature's intentions explicit. Such clarity is achievable by a categorical statement as to whether the future amendments to the former law are to apply or not qua the new law. It would go a long way if the draftsmen employ the phrase "as may be amended from time to time" or "as may be in force from time to time", while referring to the former law, to put things beyond the veil of controversy.

*   Advocate, Supreme Court of India, New Delhi Return to Text

1. Section 28 sub-section (1) of the General Clauses Act, 1897 reads thus: "28. (1) In any Central Act or Regulation, and in any rule, bye-law, instrument or document, made under, or with reference to, any such Act or Regulation, any enactment may be cited by reference to the title or short title (if any) conferred thereon or by reference to the number and year thereof, and any provision in an enactment may be cited by reference to the section or sub-section of the enactment in which the provision is contained." Return to Text
2. This is different from "actual incorporation" wherein the provisions of the former law are copied in the latter. In Black's Law Dictionary, 6th Edn., at pp. 766-67, the term "incorporation by reference" has been defined thus: "The method of making one document of any kind become a part of another separate document by referring to the former in the latter, and declaring that the former shall be taken and considered as a part of the latter the same as if it were fully set out therein. If the one document is copied at length in the other, it is called 'actual incorporation'." Return to Text
3. F.A.R. Bennion "Statutory Interpretation" (1984) at p. 600. Return to Text
4. See id. at pp. 601-02 where it is stated: "An enactment sometimes incorporates into the Act a whole body of law as it existed at a given time ('the relevant date'). This may include the practice prevailing on the relevant date, as well as the substantive law in force at that time. Often the provisions thus incorporated do not otherwise continue in force. The technique may be called archival drafting because it requires persons applying the Act after a considerable period has elapsed since the relevant date to engage in historical research in order to find out what the law thus imported amounts to." Return to Text
5. See Black's Law Dictionary, 6th Edn., at 1559. The other maxim is: verba relata inesse videntur - words to which reference is made seem to be incorporated. Return to Text
6. Section 8(1) of the General Clauses Act, 1887 states thus: "8. (1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted." Return to Text
7. See Western Coalfields Ltd. v. Special Area Development Authority, (1982) 1 SCC 125 Return to Text
8. See Ujagar Prints (II) v. Union of India, (1989) 3 SCC 488 at 529 Return to Text
9. Craies on Statute Law, 7th Edn., p. 360. Return to Text
10. Wood's Estate, Re, (1886) 31 Ch D 607 at p. 615. Similar views have been expressed in Clarke v. Bradlaugh, (1881) 8 QBD 63, 69. In Halsbury's Laws of England, 4th Edn., Vol. 44, it is stated at para 889 thus: "Where a statute incorporates by reference the whole or any part of an earlier statute, the provisions so incorporated must generally be construed as they would be if set out in full in the later statute." Return to Text
11. Ujagar Prints v. Union of India, (1989) 3 SCC 488 at 528. Lord Reid of the House of Lords in Minister of Housing and Local Govt. v. Hartnell, (1965) 1 All ER 490 (HL) at p. 494 in similar words deprecated ``the regrettable modern tendencies to overdo legislation by reference and to attempt brevity at the expense of lucidity". P.K. Goswami, J. in Farid Ahmed v. Municipal Corporation of Ahmedabad, (1976) 3 SCC 719 at 726 also remarked that "(t)o introduce provisions of another Act referentially in vital matters creates avoidable difficulties and litigation". See also observations in Knill v. Towse, (1889) 24 QBD 186, 195-6, wherein Mathew, J., also criticised the mode of legislation by incorporation in words as follows:

    "... Sometimes whole Acts of Parliament, sometimes groups of clauses of Acts of Parliament, entirely or partially, sometimes portions of clauses are incorporated into later Act, so that the interpreter has to keep under his eye, or, if he can, bear in his mind, large masses of bygone and not always consistent legislation in order to gather the meaning of recent legislation. There is very often the further provision that these earlier statutes are incorporated only so far as they are not inconsistent with the statute into which they incorporated; so that you have first to ascertain the meaning of a statute by reference to other statute, and then to ascertain whether the earlier Act qualify only or absolutely contradict the later ones, a task sometimes a great difficulty, always of great labour, a difficulty and labour generally speaking wholly unnecessary." Return to Text

12. In Ujagar Prints v. Union of India, Ranganathan, J. said at p. 529: "Whether a particular statute falls into the first or second category is always a question of construction." In Bhatinda Improvement Trust v. Balwant Singh, (1991) 4 SCC 368 at 373, M.H. Kania, J. opined: "Where one statute is referred to in another, it may be merely by way of reference or by way of incorporation of the same. This depends on the language used in the latter statute and other relevant circumstances." Return to Text
13. In Section 20 of 53 and 54 Vict. Ch 70 - Housing of the Working Classes Act, 1890. Return to Text
14. Section 1(3) of 54 and 55 Vict. Ch 19. Return to Text
15. See Farid Ahmed Abdul Samad v. Municipal Corpn. of the City of Ahmedabad, (1976) 3 SCC 719. Return to Text
16. 18 & 19 Vict. Ch 95 referred to in Wood's Estate, Re, (1886) 31 Ch D 607. Return to Text
17. (1962) 3 SCR 786 at 835. Return to Text
18. (1970) 2 SCC 820. Return to Text
19. (1961) 1 SCR 453 at 457. Return to Text
20. (1978) 2 SCC 542 at 549. Again, in Special Land Acquisition Officer v. P. Govindan, (1976) 4 SCC 697 it was observed (at SCC p. 700, para 6) that —

    "a departure from the generally accepted procedure which regulates acquisition and compensation for it under similar Acts in the State of Mysore as well as under Land Acquisition Act today has to be justified by something more explicit, express and substantial than the mere date of enactment of the Mysore Act".

    Likewise, in Partap Singh (Dr) v. Director of Enforcement, (1985) 3 SCC 72, it was succinctly said (at SCC p. 80, para 12) that "(i)f Section 165(1) was to be incorporated by pen and ink as sub-section (2) of Section 37, the legislative draftmanship will leave no room for doubt". In Mary Roy v. State of Kerala, (1986) 2 SCC 209 also, the Court opined (at SCC pp. 216-17, para 7) that "when the legislature intends to adopt this legislative device the language used by it is entirely distinct and different from the one employed in Section 29 sub-section (2) of the Indian Succession Act, 1925". In State of Kerala v. Attesee, 1989 Supp (1) SCC 733 at 742 also, it was remarked (at SCC para 5) that "(t)here are no express words used by the statute which will justify an inference that the intention was to incorporate those definitions, as standing on that date, into the 1963 Act". Return to Text

21. Index animi sermo. The other oft-quoted legal maxims are: "Absoluta sententia expositore non indiget" - an absolute sentence or proposition needs no expositor; "Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est" - when in the words there is no ambiguity, then no exposition contrary to the words is to be made. Also see Keshavji Ravji & Co. v. CIT, (1990) 2 SCC 231. Return to Text
22. Section 38(1) of the Interpretation Act, 1889 (52 and 53 Vict., Ch 63) reads thus:

    "38. Effect of repeal in future Acts.—(1) Where this Act or any Act passed after the commencement of this Act repeals and re-enacts, with or without modification, any provisions of a former Act, references in any other Act to the provisions so repealed, shall, unless the contrary intention appears, be construed as references to the provisions so re-enacted."
    Similarly, Section 17, sub-section (2) of the Interpretation Act, 1978 (1978 Ch 30) reads:

    "17. (2) Where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears, - any reference in any other enactment to the enactment so repealed shall be construed as a reference to the provisions re-enacted;" Return to Text

23. This rule has also been given statutory recognition in English statutes vide Section 35(2) of the Interpretation Act, 1889. See also: Section 19(1) of the Interpretation Act, 1978, which reads thus:

    "(2) Where any Act passed after the commencement of this Act contains such references as aforesaid, the reference shall, unless a contrary intention appears, be read as referring in the case of statutes included in any revised edition of the statutes purporting to be printed by authority to that edition and...." Return to Text

24. Sutherland Statutory Construction (3rd Edn.), Article 5208, p. 5208. It has been quoted with approval in Bajaya v. Gopikabai, (1978) 2 SCC 542. Corpus Juris Secundum also enunciates the same principle. Return to Text
25. Id. at p. 529. See also Spl. LAO v. P. Govindan, (1976) 4 SCC 697 Return to Text
26. (1991) 4 SCC 368 at 373-74. Return to Text
27. Id. at pp. 373-74. It may be recalled that R.M. Sahai, J. in Gauri Shankar Gaur, while dealing with Section 55 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965, also opined: (at p. 122-d and f)

    "The language indicates that the legislature intended to take proceedings for acquisition of land under the LA Act except to the extent it has been amended by the Schedule.... It is not bringing into effect a new legislation nor transposing provisions of LA Act to the Avas Vikas Act but applying the LA Act as modified to proceedings under the Act." Return to Text

28. (1976) 4 SCC 697 at 700. Return to Text
29. (1964) 7 SCR 820 at 824. Return to Text
30. (1963) 3 SCR 858 at 869. Return to Text
31. (1974) 2 SCC 777. Return to Text
32. Id. at p. 794. See also Mahindra & Mahindra Ltd. v. Union of India, (1979) 2 SCC 529, which is another case in this series. Its facts were: Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) came into force on 27-12-1969, which provided for an appeal to Supreme Court against the order made by the Commissioner "on one of more grounds specified in Section 100 of the Code of Civil Procedure, 1908". Subsequently, Section 100 of the Civil Procedure Code stood amended by the Civil Procedure (Amendment) Act, 1976 (w.e.f. 1-2-1977). Bhagwati, J., (as his Lordship then was) ruled that the MRTP Act was a self-contained code; the right to appeal was in a totally different context; and on a proper interpretation, the ground specified in the then existing Section 100 of the Civil Procedure Code was incorporated in Section 55 of the MRTP Act. Return to Text
33. 1966 Supp SCR 259 at 261 D-F. Return to Text
34. 1995 Supp (1) SCC 410. Return to Text
35. (1997) 6 SCC 100. Return to Text
36. AIR 1968 SC 1395 Return to Text
37. See State of M.P. v. M.V. Narasimhan, (1975) 2 SCC 377; State of Kerala v. Attesee (Agro Industrial Trading Corpn.), 1989 Supp (1) SCC 733 at pp. 739-40 and Ujagar Prints v. Union of India, (1989) 3 SCC 488 at pp. 529-30. Return to Text
38. See State of M.P. v. M.V. Narasimhan, (1975) 2 SCC 377 and State of Kerala v. Attesee (Agro Industrial Trading Corpn.), 1989 Supp (1) SCC 733 at 745. Return to Text
39. Id. at p. 135. Return to Text
40. Id. at p. 530. Return to Text
41. (1998) 3 SCC 276. Return to Text
42. Black's Law Dictionary (6th Edn.), at p. 1115. Return to Text
43. Sutherland's Statutory Construction (3rd Edn.), Vol. 2, at p. 535. It was quoted with approval in Shah & Co. v. State of Maharashtra, (1967) 3 SCR 466. Return to Text
44. 1958 SCR 580 at p. 590. Return to Text
45. (1969) 2 SCR 481 at 497 C-D. Return to Text
46. 1989 Supp (1) SCC 168 at 188. Return to Text
47. U.P. Avas Evam Vikas Parishad v. Jainul Islam, (1998) 2 SCC 467. Return to Text
48. Section 55 reads thus:

    "55. Power to acquire land.—(1) Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of the Land Acquisition Act, 1894 (1 of 1894), as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to this Act." Return to Text

49. Jainul Islam was the sequel of the judicial controversy as surfaced in Gauri Shankar Gaur v. State of U.P., (1994) 1 SCC 92, wherein K. Ramaswamy, J. and R.M. Sahai, J. expressed conflicting views. To resolve the controversy, the reference was made to a three-Judge Bench in Jainul Islam. Return to Text
50. AIR 1931 PC 149. Return to Text
51. Id. at p. 153.

    "Even if their Lordships had been forced to hold that the sub-section was incorporated in the local Act, they would, on the well-recognised principle of generalia specialibus non derogant, have come to the conclusion that the provision of the local code must prevail and that this appeal was barred." Return to Text

52. See Quinn v. Leathem, 1901 AC 495; State of Orissa v. Sudhanshu Sekhar Misra, (1968) 2 SCR 154; Prakash Amichand Shah v. State of Gujarat, (1986) 1 SCC 581 (para 26). Return to Text
53. (1976) 4 SCC 9. Return to Text
54. 1963 Supp (2) SCR 812. Return to Text
55. Special Land Acquisition Officer v. P. Govindan, (1976) 4 SCC 697; Bhatinda Improvement Trust v. Balwant Singh, (1991) 4 SCC 368; Patna Improvement Trust v. Lakshmi Devi, 1963 Supp (2) SCR 812 and LAO v. H. Narayanaiah, (1976) 4 SCC 9. Return to Text
56. City of Mysore Improvement Act, 3 of 1903; the Punjab Town Improvement Act, 1922; the Bihar Town Planning and Improvement Trust Act, 1951 (35 of 1951); and the City of Bangalore Improvement Act, 1945. Return to Text
57. (1982) 1 SCC 125 at 135, therein M.P. Act 23 of 1973 was found not to have provided
    "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". Return to Text
58. See Satya Pal v. State of U.P., (1997) 9 SCC 117 wherein Section 11-A of the LA Act was held inapplicable to an acquisition under the Parishad Adhiniyam. Return to Text