Janardan Sahai, J. - (1.) sub-section (4) of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act creates a right of second appeal to the Board of Revenue on any of the grounds specified in Section 100 of the Code of Civil Procedure. Section 100 of the Civil Procedure Code was drastically amended in the year 1976 by Act No. 104 of 1976 whereby the grounds of appeal were restricted to those which involve a substantial question of law to be formulated by the High Court. After the amendment in Section 100 Civil Procedure Code doubts arose as to whether the amended Section 100 Civil Procedure Code would be applicable to second appeals in the Board of Revenue or the unamended one, which contained wider grounds for interference. In Ram Sanehi v. Board of Revenue, 1993 RD 208 , a single Judge of this Court held that it is Section 100 Civil Procedure Code as amended from time to time, which would govern second appeals in the Board of Revenue. In Sri Net Bharti and others v. Board of Revenue and others. 2001 (3) A.W.C. 2258 and in Ved Pal v. Board of Revenue, 2004 (9) R.D. 119 , the same view was taken. In fact not a single decision of this Court taking a different view has been cited at the Bar.
(2.) In a recent decision Baikunth Nath Kaushik v. Anand Swaroop Kaushik, 2006 RD 831 the Uttranchal High Court has taken the view that the reference to Section 100 Civil Procedure Code made in sub-section (4) of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act is legislation by incorporation and, therefore, the amendment in Section 100 Civil Procedure Code, would not apply to second appeals in the Board of Revenue. The Uttranchal High Court placed reliance upon the decision of the Apex Court in Mahindra v. Mahindra, 1979 SCC 529 , which was a case under the Monopolies and Restrictive Trade Practices Act. Section 55 of that Act refers to the grounds specified in Section 100 of the Civil Procedure Code as being the grounds on which an appeal would lie to the Supreme Court. The Supreme Court having examined the scheme of the Monopolies and Restrictive Trade Practices Act held that the reference to Section 100 Civil Procedure Code made in Section 55 of the Monopolies and Restrictive Trade Practices Act was by way of legislation by incorporation and therefore the subsequent amendment made in Section 100 Civil Procedure Code was not applicable to appeals under Section 55 of the Monopolies and Restrictive Trade Practices Act.
(3.) The difference between legislation by incorporation and legislation by reference is well known. In legislation by incorporation provisions of the Act to which reference is made are deemed to be bodily incorporated in the statute, which refers to them. The logical corollary of this fiction as we may call it is that an amendment subsequently made in the Act referred to would not affect the provisions deemed to have been incorporated in the Act, which refers. The rule, however, is not an inflexible one. In AIR 1975 SC (2) 1835, State of Madhya Pradesh v. M. V. Narasimhan , four exceptions to the rule have been carved out Two of them which may have some relevance to this case are - One: where the two Acts are supplemental to each other and two: where the amendment in the Act referred to by express or implied intendment applies to the incorporated provisions in the Act in which the reference is made. In this context it is necessary to examine the provisions of the U.P. Zamindari Abolition and Land Reforms Act.;