Urban Land Ceiling Judgment Analysis
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9872 OF 2010
1 Maharashtra Chamber of Housing
Industry, having its office at
Maker BhavanII, 4th Floor,
18, [Link] Marg,
New Marine Lines, Mumbai400020.
2 Maharashtra Chamber of Housing
Industry, Kalyan Dombivali Unit,
having its office at Gandhare,
[Link] Nagar Tower,
Radha Nagar, Khadak Pada,
Kalyan (West), 421301.
3 Maharashtra Chamber of Housing
Industry, Thane Unit,
having its office at
Ashar IT Park, Ground Floor,
South Wing Road No.16Z,
Wagle Estate, Bradma,
Thane (West), 400604.
4 Maharashtra Chamber of Housing
Industry, Mira Road to Virar Unit,
having its office at
Rustomjee Evershine Global City,
Shop No.68, AvenueM,
Building No.8, Narangi Bypass Road,
Virar (West), 401103.
5 Maharashtra Chamber of Housing
Industry, Raigad Unit,
having its office at Prajapati House,
1st Floor, Plot No.13B,
Panvel Matheran Road,
Sector 19, New Panvel.
..PETITIONERS
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Versus
1 State of Maharashtra.
Through Urban Development Department,
Mantralaya, Mumbai.
Copy to be served through Government
Pleader, High Court, Appellate Side,
Bombay.
2 The Deputy Collector and
Competent Authority (ULC),
Thane Urban Complex, at Thane.
having his office at 2nd floor,
Collectorate Building, Thane.
..RESPONDENTS
ALONG WITH
WRIT PETITION NOS.84/2009, 91/2009, 346/2011, 556/2010,
1113/2010, 1256/2009, 2130/2009, 2201/2009, 2243/2011,
2244/2011, 2582/2010, 3815/2010, 5024/2013, 5161/2010,
5166/2010, 5984/2010, 7198/2008, 8535/2007, 9703/2010,
9812/2009, 10055/2009 AND 10480/2009
ALONG WITH
ORIGINAL SIDE WRIT PETITION NO.37 OF 2010
.............
[Link] Naphade, Senior Advocate a/w [Link] Joshi, [Link]
Mandevia, [Link] Gogri, [Link] Naphade, [Link] Ingale i/by
[Link] Srivastava, Advocates for the Petitioners in Writ Petition
No.9872/2010.
[Link] Sathe, Senior Advocate a/w [Link] Seksaria, [Link]
Mandevia, [Link] Gogri, [Link] Ingale i/by [Link] Srivastava,
Advocates for the Petitioners in Writ Petition No.9703/2010.
[Link] Sathe, Senior Advocate a/w [Link] Narula i/by Jhangiani
Narula & Associates, for the Petitioners in Writ Petition No.3815/2010.
[Link] Sathe, Senior Advocate i/by [Link] & Company, for the
Petitioners in Writ Petition No.2201/2009.
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[Link] Sathe, Senior Advocate a/w [Link] Bhatia i/by [Link] &
Company, for the Petitioners in Writ Petition No.9812/2009.
[Link] Samdani, Senior Advocate a/w [Link] Seksaria, [Link]
Gogri, [Link] Ingale i/by [Link] Srivastava, Advocates for the
Petitioners in Writ Petition No.346/2011.
[Link], Senior Advocate a/w [Link], [Link] and
[Link] Jain i/by Mulla & Mulla, for the Petitioners in Writ Petition
Nos.2243/2011 and 2244/2011.
[Link], Senior Advocate with [Link] Saraf, [Link] Jain,
[Link] Nabar, [Link] Dastur i/by Hariani & Company, for the
Petitioners in Writ Petition No.37/2010 (Original Side).
[Link], Senior Advocate a/w [Link], [Link] and
[Link] i/by Doijode & Associates, for the Petitioners in Writ
Petition No.8535/2007.
[Link], for the Petitioners in Writ Petition No.84/2009.
[Link] Palwe, for the Petitioners in Writ Petition No.91/2009.
[Link] GadreRajyadhyaksha i/by [Link], for the
Petitioners in Writ Petition No.556/2010.
[Link], for the Petitioners in Writ Petition Nos.1113/2010 and
1256/2009.
[Link] Mahadeshwar with [Link] Todankar and [Link]
Janvekar, for the Petitioners in Writ Petition No.2130/2009.
[Link], for the Petitioners in Writ Petition Nos.2201/2009,
5161/2010 and 5166/2010.
[Link] and [Link] Deshmukh, for the Petitioners in Writ Petition
No.5024/2013.
[Link] Gawade i/by [Link] B. Anand, for the Petitioners in Writ
Petition No.5024/2013.
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[Link] Borkar, for the Petitioners in Writ Petition No.5984/2010.
[Link] Godse, for the Petitioners in Writ Petition No.10055/2009.
[Link] i/by Ram & Company, for the Petitioners in Writ Petition
No.10480/2009.
[Link], Advocate General and [Link], Senior
Advocate a/w [Link] Deshpande, AGP, [Link] Khan and [Link]
Raghuvanshi, for the Respondents/State in all petitions.
[Link], for the Respondent No.3 in Writ Petition
Nos.346/2011, 7198/2008, 9703/2010 and for Respondent No.7 in Writ
Petition No.2243/2011.
[Link] Deo, for the Respondent/ Government of India in Writ
Petition No.9872/2010.
[Link] with [Link] Singh, for the Respondent No.5 in Writ
Petition No.2244/2011 and for the Respondent Nos.1 and 2 in Writ
Petition No.9812/2009.
[Link] Limaye, for the Respondent No.6 in Writ Petition
No.2243/2011 and for Respondent No.4 in Writ Petition No.5166/2010.
............
CORAM : S.C. DHARMADHIKARI,
S.C. GUPTE &
G.S. KULKARNI, JJJ.
(FULL BENCH)
Reserved on : 23rd June, 2014
Pronounced on : 03rd September, 2014
Judgment (Per [Link], J.):
1 The Honourable the Chief Justice has constituted this Full
Bench in order to resolve a conflict between the conflicting views which
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have been expressed by two Division Benches of this Court. In our
detailed order dated 24th April, 2014 we noticed that conflict and by
consent of parties we formulated the questions which have to be
answered by us. They read as under:
(1) Does Section 3(1)(b) of the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 read with Section 6 of
the General Clauses Act, 1897 r/w Section 7 of the
Bombay General Clauses Act, 1904 save the orders of
exemption including all terms and conditions thereof
passed under Section 20(1) of the Principal Act,
namely, the Urban Land (Ceiling and Regulation) Act,
1976 and all actions taken thereunder?
(2) Whether, Section 6 of the General Clauses Act, 1897
r/w Section 7 of the Bombay General Clauses Act,
1904 apply to the repeal of the Principal Act by the
Repealing Act, 1999?
(3) Whether in view of Section 3(1)(b) of the Urban Land
(Ceiling and Regulation) Repeal Act, 1999 and the
Bombay General Clauses Act, 1904:
(a) the order of exemption including all its terms
and conditions under Section 20(1) of the Principal
Act, namely, the Urban Land (Ceiling and Regulation)
Act, 1976 can be continued and enforced in
accordance with the provisions of the Principal Act;
(b) all remedies and proceedings in respect of the
order of exemption including all its terms and
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conditions may be instituted, continued and
enforced?
(4) Whether in view of the repeal of the Principal Act by
the Repeal Act, the Government of Maharashtra can:
(a) recall/ cancel/ modify the exemption order
granted either under Section 20 of the Principal Act;
(b) enforce circulars for implementation of
exemption orders issued under Section 20 of the
Principal Act prior to the repeal of the Principal Act;
(c) acquire the land by issuing notification under
Section 10(3) of the Principal Act; and
(d) take any action of whatsoever nature on
account of noncompliance/ breach of exemption
order issued under Section 20(1) of the Principal
Act?
(5) Whether, the view taken by a Division Bench of this
Court in the case of Vithabai Bama Bhandari v/s State
of Maharashtra and another reported in 2009(3)
Bombay Cases Reporter 663 (Writ Petition
No.4241/2008 decided on 31st March/ 16th April,
2009) and Damodar Laxman Navare and others v/s
State of Maharashtra and others in Writ Petition
th
No.6300/2009 dated 08
July, 2010 sets out the
correct legal position as regards the ambit and scope
of Section 3(1)(b) of the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 or whether, the view
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taken in Mira Bhayandar Builders and Developers
Welfare Association v/s the Deputy Collector and
Competent Authority, Thane Urban Agglomeration and
others in Writ
th
Petition No.5745/2009 dated 27
August, 2009 to the contrary should be held to be
laying down the correct principle of law?
2 Since both sides have canvassed arguments on legal issues, in
order to appreciate them a few facts are required to be noted. We take the
facts from a lead case, namely, Writ Petition No.9872/2010. That is a Writ
Petition which has been filed by the Maharashtra Chamber of Housing
Industry and its various Units. These are associations established to
promote the housing and real estate industry. The Writ Petition is filed in
the interest of members of these Associations and real estate industry and
in the circumstances which are set out in paragraph 4 of the memo of
Writ Petition.
3 It is the case of the Petitioners that the State of Maharashtra
and Competent Authorities under the Urban Land (Ceiling and
Regulation) Act, 1976 (hereinafter referred to as “THE PRINCIPAL ACT”)
continue to enforce and apply the provisions thereof despite enactment of
the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter
referred to as “THE REPEAL ACT”). The Repeal Act has been brought into
effect and is in force in the State of Maharashtra from 29.11.2007.
4 The grievance of the Petitioners is that there is a circular
dated 18.03.2009 issued by the State Government, copy of which is at
AnnexureA. That circular states that the Repeal Act has been brought into
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force in the State of Maharashtra w.e.f. 29.11.2007. The same expressly
saves the vesting of excess vacant land in the State as also validity of an
exemption order passed under Section 20(1) of the Principal Act.
Meaning thereby, the repeal of the Principal Act does not affect the
vesting of excess vacant land in the State provided its possession has been
taken, so also, validity of an exemption order passed under Section 20(1)
of the Principal Act. Therefore, such excess vacant lands of which
possession has not been taken, but which are subjected to certain
concessions under the order of exemption passed in terms of Section
20(1) of the Principal Act and which are particularly to utilize the lands
for residential purpose, for implementing residential housing scheme, for
industry and it's expansion, shall not be transferred without prior
permission of the State and there are restrictions placed on change of user
thereof. The permission for change of user will not be granted unless
premium is paid to the Government.
5 A reference is made in this circular and the steps taken to
implement the Repeal Act. The steps include two communications from
the Government dated 01.03.2008 and 03.03.2008 which outline the
scheme for development of these lands or their transfer.
6 It has been revealed that the exempted lands are being dealt
with and for the purpose of implementation of the Slum Rehabilitation
Scheme, Rental Housing Scheme, etc.. Further, the reservations in respect
of these lands have been changed or altered from industry/ agriculture
without any reference to the Government/ Competent Authority. The
permissions in that regard have been granted without any prior approval
from the competent authorities under the Principal Act. Therefore, the
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Government has directed that the exempted lands cannot be used for any
other purpose nor their reservation can be changed unless the approvals/
remarks are called for from the competent authority under the Principal
Act. Any violation of such requirement would visit the persons concerned
with all consequences and at their costs.
7 Prior to this circular there are certain Government
Resolutions and which enable utilization of Transferable Development
Rights (TDR) so as to use the lands for construction of houses for weaker
sections and equally to grant development permissions in relation thereto.
This is a Government Resolution dated 30.06.2007.
8 There is also an order and which has been referred to
because it is the case of the Petitioners that their members had to obtain
several permissions from the Respondent Nos.1 and 2 for carrying out the
development. It is contended that the Government Resolutions referred by
us including dated 30.06.2007 and emphasis by the authorities on
compliance of the same continues despite the Repeal Act brought into
force with effect from 29.11.2007. There are several instances which have
been given and copies of the exemption orders passed under Section
20(1) of the Principal Act are referred to in paragraph 7 of the memo of
Writ Petition No.9872/2010.
9 The grievance is that though the order of exemption was
passed exempting the excess vacant land from the purview of ChapterIII
of the Principal Act, when that Act was in force, but now after it's repeal
the exemption order would not survive. In other words, the steps taken by
the Authorities to give effect to the order of exemption even after repeal
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of the Principal Act in the State of Maharashtra are wholly illegal. The
Authorities cannot compel parties like the Petitioners to seek any
extension of time to complete the scheme or to comply with the
conditions on which the order of exemption under Section 20(1) of the
Principal Act has been passed. The stand taken is that the Respondents
have no powers to enforce the Principal Act directly or indirectly. Several
instances of such alleged attempts are set out. There is reference made to
the legal provisions and finally what is prayed is that this Court must
restrain by an appropriate writ, order or direction under Article 226 of the
Constitution of India, the Respondents from enforcing the provisions of
the Principal Act insofar as such exemption orders and their terms and
conditions.
10 From the record, what transpires is that a Writ Petition being
Writ Petition No.3815/2010 from this group or batch of petitions,
appeared before a Division Bench of this Court and it pronounced its
judgment on 22.12.2010 noting that two Division Benches in the cases of
Sundersons and others v/s State of Maharashtra and others reported in
2008 (5) Bombay Cases Reporter 85 and Damodar Laxman Navre v/s
State of Maharashtra in Writ
th
Petition No.6300/2009 dated 08
July,
2010, take a view that certain steps in pursuance of the order of
exemption or seeking to enforce the terms and conditions thereof cannot
be taken, whereas a conflicting view has been rendered by another
Division Bench of this Court in Mira Bhayandar Builders and Developers
Welfare Association v/s the Deputy Collector and Competent Authority,
Thane Urban Agglomeration and others in Writ Petition No.5745/2009
th
dated 27 August, 2009.
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11 The attention of the Division Bench in Writ Petition
No.3815/2010 (Jayesh Tokarshi Shah v/s Deputy Collector and Competent
Authority, Thane Urban Agglomeration) was invited to all these judgments
and orders and stated to be conflicting. The Division Bench, therefore, in
its judgment dated 22nd December, 2010 in the aforesaid matter observed
as under:
15. This prompts an answer in favour of a premise that the
Additional District Collector, Thane and Competent
Authority was not competent to issue the said Circular,
and as such the efficacy of the said Circular
commanding the Registering Officer to refuse the
registration of the documents referred to therein remains
questionable. A view congenial to the said premise is
found expressed in some of the judgments Sunderson &
Ors Vs. State of Maharashtra & Ors. 2008(5) Bombay
Cases Reporter 85, Damodar Laxman Navre & 4 others
Vs. State of Maharashtra & 4 others Writ Petition No.
6300 of 2009, delivered previously by the Division
Bench of this Court. However, there is a conflicting view
expressed in the judgments delivered by the Division
Bench of this Court in Writ Petition No.5745 of 2009
Mira Bhayander Builders & Developers Welfare
Association Vs. Dy. Collector & Competent Authority,
Thane and 3 others. The Circular dated 23.6.2008 was
the epicentre of controversy in Mira Bhayander Builders
& Developers Welfare Association (Supra). The State
contended as in the present case that the scheme holders
were trying to wriggle out of their obligations under the
scheme sanctioned under Section 20 of U.L.C. Act, and
therefore, the said Circular came to be issued to protect
the schemes meant for economically weaker sections,
and also the government . The Division Bench after
considering the rival contentions observed thus:
“In our view, if the members of the petitioners’
association have taken benefit of the schemes under
Section 20 of the said Act by constructing buildings, they
now cannot wiggle out of their obligations to surrender
flats to the government which the government could sell
at fixed rate. The entire tenor of the above petitioners
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appears to be that the petitioners do not want to fulfil
their obligations under the said Schemes viz.
surrendering the flats to the State Government and
taking advantage of the repeal of the said Act want to
contend that their obligations under the said schemes do
not survive. In our view the impugned letter as rightly
contended by the learned AGP has been issued to protect
the public interest and government revenue. It does not
befit the Petitioners who have taken advantage of the
said scheme now contend that their obligations do not
survive, and therefore, there is no need for them to
surrender flats to the government. We, therefore, do not
find any merit in the challenge raised in the above
petition which is accordingly dismissed.”
16. In the instant case similar situation is portrayed in the
affidavit in reply filed by the State. Referring to the
Mohan Gopal Mate case (Supra) reported in 2008(6)
ALL MR 41, the learned Advocate for the Petitioner
submitted that a pertinent question regarding the extent
of power of the State under Sections 20 and 21 of U.L.C.
Act in the case of breach of conditions of the scheme by
the scheme holder has been clearly answered as follows:
“Powers of the State under Section 20 in case of
breach of condition of the order of exemption is limited
to withdraw exemption order only and so far as Section
21 is concerned, declare the land which is not to be
treated as excess land in view of the SubSection (1) in
case of breach of condition State can declare such land
to be excess in view of SubSection (2) of Section 21.
Thereupon, the provisions of Chapter III will apply to
the said land.”
17. Going by strict interpretation of the Sections 20 and 21
of the ULC Act, the power of the State in case of
contravention of any of the conditions of the scheme by
scheme holder remains limited to withdrawal of the
exemption and declaring the exempted land as excess
land and to application of the provisions of the Chapter
III of the said Act for acquisition of the said land as
contemplated under SubSection (2) of Section 21
therein.
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18. This view is in conflict with the view expressed by the
Division Bench in Mira Bhayander Builders &
Developers Welfare Association (Supra), and as such the
controversy raised by such conflict deserves to be
resolved by the Full Bench of this Court.
19. This Petition is, therefore, referred to the Hon’ble the
Chief Justice for passing appropriate directions in the
matter.”
12 It is in view of these events that a Full Bench was constituted
and the above formulated questions await an answer from us.
13 At the outset we must clarify that we would be only
answering the question/s formulated and reproduced hereinabove. We
would not be expressing any opinion on the rival contentions insofar as
merits of individual petitions. Each of these petitions thereafter would be
placed before the appropriate Division Benches and for a decision on
merits and in accordance with law. Our observations and findings,
therefore, shall not be construed as expression of any opinion on the
merits of the Writ Petitions referred above or pending in this Court.
14 The Petitioners' counsel have made an attempt to show us as
to how the Division Bench judgment in the case of Mira Bhayander
Builders and Developers Welfare Association v/s Deputy Collector and
Competent Authority, Thane (supra) does not lay down the correct law.
They have all, more or less, urged that repeal of the Principal Act in the
State of Maharashtra on 29.11.2007 results in the State and competent
authorities being prevented from withdrawing the order of exemption
passed under Section 20(1) of the Principal Act. Assuming that the order
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of exemption or any action taken thereunder is valid notwithstanding
anything contrary held in any judgment or order of the competent court,
yet the Repeal Act saves only validity of the order of exemption and
nothing more. Such saving would not permit the State Government or
competent authority to withdraw the order of exemption or enforce the
terms and conditions thereof or to subject the excess vacant land to the
consequences under the Principal Act. The saving is thus not absolute, but
restricted in nature. Thirdly, it is urged that there being a Repealing Act
containing such restricted saving clause, the same rules out applicability
of Section 6 of the General Clauses Act, 1897 or its parimateria provision
in the Bombay General Clauses Act, 1904.
15 We shall now elaborate these contentions as articulated by
[Link], learned Senior Counsel and adopted with some additions by
[Link], [Link], [Link], [Link], learned Senior Counsel
and [Link], [Link] and [Link]Rajyadhyaksha, learned counsel
appearing for the Petitioners.
16 [Link] firstly submitted that for understanding the
Repeal Act we must have a look at the Principal Act. The Principal Act,
according to [Link], contains several provisions, but material
therefrom are Sections 3, 5, 6, 8, 10 and 38. [Link] also took us
through Section 11 of the Principal Act before coming to Section 20. In
his submission the scheme of the Principal Act is that no one shall hold
the vacant land in excess of the ceiling limit. The return or statement has
to be filed so as to determine the extent of excess vacant land. In other
words, [Link] submits that except as otherwise provided in the
Principal Act, on and from the commencement of the Act, no person shall
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be entitled to hold any vacant land in excess of ceiling limit in the
territories to which the Principal Act applies. [Link] submits that
Section 4 sets out the ceiling limit. He submits that the transfer of vacant
land is also an aspect which is taken care of by Section 5. The persons
holding the vacant land in excess of ceiling limit have to file the
statement. He submits that further provisions enable scrutiny of
particulars, preparing a draft statement as regards the vacant land in
excess of ceiling limit and the final statement. [Link] submits that
Section 10 is entitled “Acquisition of vacant land in excess of ceiling
limit”. The extent of the vacant land held by a person in excess of ceiling
limit has to be specified by subsection (1) of Section 10 and the purpose
of same is to enable acquisition of the same eventually. That is an aspect
dealt with by subsections (2) and (3) of Section 10. The vesting of such
excess vacant land free from all encumbrances and with effect from the
date of publication of a notification under subsection (3) results in
enabling the Government to take possession of the land. In these
circumstances, according to [Link], only consequence of not filing a
return or statement, but which is not accepted in totality is provided by
Section 10. There is also a provision, namely, Section 38 which makes
such act a punishable offence and [Link] invites our attention to
subsections (1) to (4) of Section 38 in that regard. [Link]'s attempt
was to show that even if the vacant land is in excess of ceiling limit and
there is no compliance with the provisions requiring filing a statement of
such vacant land, still the owner is not deprived of his rights in the same.
[Link] in that regard invites our attention to Section 15 of the
Principal Act and submits that it reflects the legislative intent. There is no
loss of ownership on promulgation of the Principal Act. In these
circumstances all that the Principal Act does is to create some sort of clog
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or cloud on the rights of a person to hold the land. His ownership rights
therein are not affected.
17 [Link], therefore, submits that the power to exempt the
excess vacant land from applicability of ChapterIII of the Principal Act is
exercised by the Government either on its own motion or otherwise and
that is also clear by Sections 21 and 22 which permits the excess vacant
land not to be treated as such in certain cases and it's retention under
certain circumstances. Therefore, merely because a holder of the excess
vacant land seeks exemption from applicability of ChapterIII or the State
exempts such vacant land from applicability thereof will not mean that
the right and particularly ownership therein is surrendered much less
waived. [Link]'s attempt was to show that the State seeks to put the
excess vacant land beyond application of ChapterIII, but keeping all his
rights and options intact. The reference, therefore, will have to be
answered by us bearing in mind this vital aspect, is the submission of
[Link].
18 [Link] elaborated this aspect by submitting that once
the land is exempted, it is out of the purview of the Principal Act. The
right to hold it conditionally remains unaffected. The power to exempt is
limited in nature. It is legislative in character. By no stretch of imagination
it is a right conferred in the Government nor exercise of powers to exempt
creates any right in the Government in respect of such excess vacant land.
In these circumstances and if Sections 20(2) and 21(2) are read together
it would be apparent that neither any action under subsection (1) of
Section 21 or the power under subsection (2) is saved by repeal of the
Principal Act. In fact the Repeal Act does not save Section 21 at all.
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Hence, when the Repeal Act in Section 3(1)(b) refers to the validity of
exemption order, it deliberately omits to include or refer subsection (2)
of Section 20. Hence, there is no power to withdraw the exemption order
under Section 20(1) after repeal of the Principal Act. Hence, even breach
or violation of the condition in the exemption order will not result in its
cancellation or withdrawal. Apart therefrom any breach or violation of
the condition on which the exemption order was granted does not result
in automatic withdrawal or cancellation thereof. That is apparent from
Section 20(2). It is, therefore, clear that the Repeal Act does not save this
power and by omitting subsection (2) of Section 20 from clause (b) of
subsection (1) of Section 3 of the Repeal Act. The legislature was aware
that the power to withdraw the exemption order will have to be exercised
only after giving a reasonable opportunity to such person who has
violated the conditions subject to which the exemption under clause (a)
and (b) of subsection (1) of Section 20 is granted. That reasonable
opportunity is to make representation against the proposed withdrawal. It
is the only consequence of either not complying with the conditions
subject to which the exemption is granted or not being able to satisfy the
Government that such exemption should not be withdrawn or from
applicability of ChapterIII to the excess vacant land. Meaning thereby
same is capable of being acquired and thereafter, vested in the
Government. Once that power cannot be exercised post repeal of the
Principal Act, then, we would be in complete error if we hold that the
repeal of the Principal Act does not affect the power to withdraw the
exemption or to enforce the terms and conditions thereof.
19 In that regard, [Link] has taken us through Sections
20(2), 21(2) and 22(2) of the Principal Act. He submits that subsection
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(2) of Section 20 confers discretion in the Government and it may not
withdraw the exemption order despite the conditions subject to which the
same is granted are not complied with by any person. Whereas, sub
section (2) of Section 21 mandates declaring the vacant land to be excess.
It is submitted that there are distinct consequences and which are taken
care of by subsection (2) of Section 22. Thus, the power of exemption
has different parameters and the legislature was aware that such power
cannot survive the repeal of the Principal Act. Hence, in the teeth of this
clear language of the Repeal Act recourse to Section 6 of the General
Clauses Act, 1897 is impermissible. Once a different intention appears
from the provisions contained in the Repeal Act, then, Section 6 of the
General Clauses Act, 1897 would not apply. The question of liberal
construction of Section 3 of the Repeal Act, therefore, does not arise at
all.
20 [Link] thereafter took us extensively through the
Repeal Act to submit that what is saved is specific. By clause (a) of sub
section (1) of Section 3 of the Repeal Act the vesting of land of which
possession has been taken by the State is saved. Meaning thereby, any
vacant land which is subject matter of declaration under Section 10(3) of
which possession has not been taken by the State Government, then its
vesting is not saved by the Repeal Act. Such land of which possession has
not been taken will have to be restored post repeal after the requirement
stipulated in subsection (2) of Section 3 of the Repeal Act is complied
with. Therefore, there is no collision between clause (a) and clause (b).
What clause (b) saves is only validity of the order granting exemption
under Section 20(1) or any action taken thereunder. The power to
withdraw the exemption is not saved. If it is held to be saved, then, clause
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(a) of subsection (1) of Section 3 of the Repeal Act would be rendered
redundant. Only consequence of exemption being withdrawn is to subject
the land to applicability of ChapterIII of the Principal Act and particularly
Section 10(3) thereof. If possession of such excess vacant land cannot be
taken even after withdrawal of exemption in terms of subsection (2) of
Section 20 of the Principal Act, then, there was no point in saving its
validity. Therefore, the validity of the order of exemption is saved, but
neither that saving will enable the State to withdraw the exemption post
repeal nor will the State be in a position to give effect to the order of
withdrawal of the exemption if cannot take possession of the excess
vacant land. That is the reason why the power to withdraw the exemption
has not been saved. Section 4 of the Repeal Act, therefore, would throw
light on the interpretation of clauses (b) and (c) of subsection (1) of
Section 3 of the Repeal Act. That Section 4 provides for abatement of
legal proceedings. If the legal proceedings abate on the date on which the
Repeal Act came into force, then, the intent could never be to save the
power to withdraw the exemption. Therefore, the words, appearing in
clause (b) of subsection (1) of Section 3, after Section 20 should be read
accordingly and that would be consistent with the object and purpose
sought to be achieved in enacting the Repeal Act. None of the proceedings
relating to any order made or purported to be made under the Principal
Act pending immediately before commencement of the Repeal Act are
saved. Even if they are pending before any court or tribunal or any other
authority they shall abate. In these circumstances the Legislature clearly
intended that any past or closed or conclusive action alone is saved.
Anything in the pipeline or inchoate is affected and not saved. This is
because the Principal Act is a self contained code. It contains substantive
and procedural provisions and even creates a forum for the purpose of
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enforcing and exercising substantive rights and powers and equally
procedural one. A forum is created so as to make and enact a complete
code. Nothing beyond the Principal Act can be seen. If the Repeal Act is
construed in this manner, then, it envisages complete destruction of the
rights under the Principal Act. Any right which is crystallized and which is
not a mere hope or chance is alone saved.
21 [Link] also submits that Section 6 of the General
Clauses Act cannot be imported into and read when the Repeal Act is so
specific and clear. Alternatively and without prejudice to this submission
[Link] submits that if Section 6 of the General Clauses Act, 1897 is
analyzed, it by clauses (a) to (e) saves something which is in force or
existing at the time at which the repeal takes effect. It does not affect
previous operation of the Act so repealed or anything duly done or
suffered thereunder. The repeal does not affect any right, privilege,
obligation or liability acquired, accrued or incurred under the repealed
enactment. [Link] submits that clause (b) would, therefore, refer to
past or complete act and not something which is intended and
incomplete. The liabilities that are crystallized under the enactment which
is repealed alone are unaffected by repeal of the original or Principal Act
and that is clarified by clause (c). This clause cannot be imported in the
present Repealing Act for the simple reason that it would create
inconsistency. [Link] submits that clause (e) of Section 6 of the
General Clauses Act would have saved Section 20(2) of the Principal Act
had Sections 3 and 4 been not enacted in the Repeal Act. That being
clearly enacted there will be inconsistency if one imports clause (e) of
Section 6 of the General Clauses Act in Section 3(1)(b) of the Repeal Act.
For all these reasons [Link] would submit that the view taken by the
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Andhra Pradesh High Court, Delhi High Court and Madras High Court
follows the Division Bench judgments of this Court from which Mira
Bhayander (supra) differs. That is the only view possible in the present
legal backdrop and we must, therefore, hold that Mira Bhayander (supra)
does not lay down the correct law and should be overruled. [Link]
submits that when three or four High Courts in the country have taken a
consistent view of the provision contained in a Central Act, then, that
view ought to be followed so as to bring comity and consistency in
interpretation of a Parliamentary statute. The reference, therefore, be
answered accordingly.
22 [Link] in support of the above submissions, has placed
heavy reliance on the following decisions:
1 Mohamed Ashref Noor v/s State of Tamil Nadu, in
Writ Petition No.6856/2003 decided on 16.12.2009
by the Madras High Court.
2 Surendra Raj Jaiswal v/s Government of Andhra
Pradesh, in Writ Petition No.26474/2009 decided
on 24.08.2011 by a Single Judge of Andhra Pradesh
High Court.
3 The Principal Secretary to Government, Hyderabad
v/s Surendra, in Writ Petition No.951/2012 decided
on 25.07.2012 by the Division Bench of Andhra
Pradesh High Court.
4 M/s Suri Industries v/s State of Tamil Nadu, in Writ
Petition No.8610/2013 decided on 06.09.2010 by
the Madras High Court.
5 Manik M. Ragit v/s State of Maharashtra reported
in 2013 (2) Mh.L.J. 224. (WP No.1290/2012
decided on 30.07.2012 Nagpur Bench).
6 M/s Nile Limited v/s State of Andhra Pradesh, in
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Writ Petition No.23846/2008 decided on
06.11.2013 by the Andhra Pradesh High Court.
7 State of Uttar Pradesh v/s Hari Ram reported in
(2013) 4 SCC 280.
8 M/s Tata Coffee Limited v/s Government of Andhra
Pradesh, in Writ Petition No.11929/2013 decided
on 22.07.2013 by the Andhra Pradesh High Court.
9 Gajanan Kamlya Patil v/s Additional Collector and
Competent Authority, in Civil Appeal Nos.2070
2071/2014 arising out of SLP (C) Nos.1490414905
of 2011 decided on 14.02.2014 by the Honourable
Supreme Court.
10 M/s L.G. Polymers India Private Limited v/s State of
Andhra Pradesh, in Writ Petition No.21934/2013
decided on 28.03.2014 by the Andhra Pradesh High
Court.
11 Synco Industries Limited v/s Assessing Officer,
Income Tax, Mumbai reported in (2008) 4 SCC 22.
12 Tej Pratap Singh v/s Union of India, in Writ Petition
(C) No.2455/1992 decided on 16.07.2009 by the
Delhi High Court.
23 The submissions of [Link] have been adopted by
[Link] Sathe, learned Senior Counsel appearing for the Writ
Petitioners in Writ Petition Nos.2201/2009, 3815/2010 and 9703/2010.
In addition, [Link] submits that the Preamble of the Principal Act
provides for imposition of a ceiling on vacant land in urban
agglomeration, for acquisition of such land in excess of the ceiling limit
and to regulate the construction of buildings on such land. It is also to
distribute the excess vacant land after it vests in the State. In these
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circumstances if the construction placed by the State on the provisions of
the Repeal Act is accepted that would result in saving of the consequences
following withdrawal of exemption. Section 20(2) of the Principal Act
envisages withdrawal of exemption and after such withdrawal what
follows is the vesting of the land in terms of Section 10(3) and its
possession as envisaged by Section 10(5) and (6). This is specifically not
saved by Section 3(1)(a) of the Repeal Act. Having regard to the clear
language of the Principal Act this is the only consequence which follows
on withdrawal of exemption. If it is not expressly saved, then, by an
indirect or oblique method the Court cannot save it. [Link]'s
contention is that what is specifically saved is the validity of the order of
exemption and the crucial words are to be found in clause (b) of sub
section (1) of Section 3 of the Repeal Act to this effect that the validity of
any order granting exemption under Section 20(1) or any action taken
thereunder is saved notwithstanding any judgment of any court to the
contrary. Therefore, even if the Court declares the order of exemption or
any action taken thereunder to be bad or invalid that is unaffected by
repeal of the Principal Act. Beyond this nothing more can be read in the
saving clause or the Repeal Act as a whole. The Reference, therefore, be
answered accordingly. [Link] relies upon the following judgments:
1 Mukarram Ali Khan v/s State of Uttar Pradesh
reported in (2007) 11 SCC 90.
2 Voltas Limited v/s Additional Collector and
Competent Authority, reported in 2008 (5) Bom.
C.R. 746.
3 Shanti Bhardwaj v/s State of U.P., reported in
(2004) 10 SCC 130.
4 Vinayak Kashinath Shilkar v/s Deputy Collector and
Competent Authority, reported in (2012) 4 SCC
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718.
5 Ritesh Tewari v/s State of Uttar Pradesh, reported in
(2010) 10 SCC 677.
6 Simpson and General Finance Company Limited v/s
State of State of Tamil Nadu, reported in (2006) 4
MLJ 1807 (Madras High Court).
7 Mohan Gopalrao Mate v/s Principal Secretary,
reported in 2009 (1) Bom. C.R. 275.
8 Vithabai Bama Bhandari v/s State of Maharashtra,
reported in 2009 (3) Bom. C.R. 663.
9 Tej Pratap Singh v/s Union of India, in Writ Petition
(C) No.2455/1992 decided on 16.07.2009 by the
Delhi High Court.
10 Mira Bhyandar Builders and Developers Welfare
Association v/s The Deputy Collector and
Competent Authority, Thane Urban Agglomeration,
in Writ Petition No.5745/2009 decided on
27.08.2009 by the Bombay High Court.
11 Kabbur Industries Private Limited v/s State of
Maharashtra, in Writ Petition No.9890/2009
decided on 05.05.2010 by the Bombay High Court.
12 Damodar Laxman Navare v/s State of Maharashtra,
in Writ Petition No.6300/2009 decided on
08.07.2010 by the Bombay High Court : Reported in
2010(6) Bom. C.R. 611.
13 Waman Bandu Bhoir v/s State of Maharashtra, in
Writ Petition No.4141/2010 decided on 11.10.2010
by the Bombay High Court.
14 Jayesh Tokarshi Shah v/s Deputy Collector and
Competent Authority, Thane, in Writ Petition
No.3815/2010 decided on 26.10.2010 by the
Bombay High Court.
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15 Maharaj Singh v/s State of Uttar Pradesh, reported
in (1977) 1 SCC 155.
16 Union of India v/s Somasundaram Viswanath,
reported in (1989) 1 SCC 175.
17 John Thomas v/s The Government of Tamil Nadu,
in Writ Petition No.38507/2002 decided on
29.01.2007 by the Madras High Court.
18 L. Kannappan and L. Thirunavukarasu v/s The
Government of Tamil Nadu, in Writ Petition
No.46091/2002 decided on 29.01.2007 by the
Madras High Court.
19 Anil Nemichand Bafna v/s State of Maharashtra, in
Writ Petition No.153/2008 decided on 06.05.2010
by the Bombay High Court.
20 Surendra Raj Jaiswal v/s Government of Andhra
Pradesh, in Writ Petition No.26474/2009 decided
on 24.08.2011 by a Single Judge of Andhra Pradesh
High Court.
21 Manik M. Ragit v/s State of Maharashtra reported
in 2013 (2) Mh.L.J. 224. (WP No.1290/2012
decided on 30.07.2012 Nagpur Bench).
22 State of Uttar Pradesh v/s Hari Ram reported in
(2013) 4 SCC 280.
24 [Link]'s submissions then have been adopted by
[Link], learned Counsel appearing for the Petitioners in Writ Petition
No.5024/2013. He went further to contend that what is saved by virtue of
Section 3(1)(b) of the Repeal Act is the validity of the order of exemption,
but not the conditions subject to which such exemption is granted. In that
regard [Link] relied upon the following judgments:
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1 Shanti Bhardwaj v/s State of U.P., reported in
(2004) 10 SCC 130.
2 L. Kannappan and L. Thirunavukarasu v/s The
Government of Tamil Nadu, in Writ Petition
No.46091/2002 decided on 29.01.2007 by the
Madras High Court.
3 Surendra Raj Jaiswal v/s Government of Andhra
Pradesh, in Writ Petition No.26474/2009 decided
on 24.08.2011 by a Single Judge of Andhra Pradesh
High Court.
25 Then [Link], learned Senior Counsel appearing for the
Petitioners in Writ Petition Nos.2243/2011 and 2244/2011, argued that
the Repeal Act envisages application of same in the first instance to the
whole of the State of Haryana and Punjab and to all the Union territories.
This is envisaged by Section 1(2) of the Repeal Act. The Repeal Act comes
into force in other States after other States adopt the Repeal Act by
resolution passed in that behalf under Article 252(2) of the Constitution
of India. [Link], therefore, submits that this aspect must be borne
in mind while considering the submission or stand of the State regarding
applicability of Section 6 of the General Clauses Act. [Link]
submits that Section 6 of the General Clauses Act applies only when
either the General Clauses Act or any Central Act or Regulation made
after commencement of the General Clauses Act repeals any enactment
made prior to the General Clauses Act coming into force or thereafter. In
the present case the State Government has adopted by resolution passed
under Article 252 of the Constitution of India the Repeal Act in the State
of Maharashtra with effect from 29.11.2007. In the light of such adoption
by resolution of the State Assembly the Section 6 of the General Clauses
Act cannot be resorted to or applied. That applies only when either the
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General Clauses Act or any Central Act or Regulation made after
commencement of the General Clauses Act repeals any enactment made
or to be made by the Parliament. Both are Parliamentary Statues and in
such circumstances by virtue of Article 252(2) of the Constitution of India
the applicability of Section 6 of the General Clauses Act is ruled out.
26 Alternatively, [Link] submits that Section 3(1)(b) of
the Repeal Act is a special saving clause demonstrating a clear different
intention. Therefore, Section 3 of the Repeal Act saves only what is
specifically mentioned therein. There is no room for applying Section 6 of
the General Clauses Act, 1897 by implication or impliedly. [Link]
also submits that in true sense we are not construing a validating statute
or clause. What is saved by clause (b) of subsection (1) of Section 3 is an
order under Section 20(1) of the Principal Act and the exemptions which
are subject matter of the same. All actions under the same are saved, but
that does not mean that the power to take action under Section 20(2) is
also saved. The saving in the present case is only to protect the rights of
innocent third parties. Even the actions under the exemption are saved
with a view to ensure such protection. This is not a substantive provision
and therefore, it cannot be construed with reference to the Principal Act.
By no stretch of imagination it revives the Principal Act. This is apparent
from reading of Section 4 of the Repeal Act because even the proceedings
as initiated abate on Principal Act coming into force. By clause (c) of sub
section (1) of Section 3 the liability incurred under the exemption order is
not saved, but only the payment made to the State Government as a
condition for granting exemption under Section 20(1) is unaffected and
thus, saved. Beyond all this we should not read anything into the Repeal
Act. [Link] relied upon the following decisions in support of the
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above contentions:
1 Kolhapur Canesugar Works Limited v/s Union of
India, reported in (2000) 2 SCC 536.
2 Air India v/s Union of India, reported in (1995) 4
SCC 734.
3 Union of India v/s West Coast Paper Mills Limited,
reported in 2004 (164) E.L.T. 375 (SC).
4 Shri Prithvi Cotton Mills Limited v/s Broach
Borough Municipality, reported in 2000 (123) ELT 3
(SC).
27 It is pertinent to note that [Link]'s main argument has
not been supported or adopted by any counsel. It is clear that
[Link]'s contentions and submissions as adopted by [Link] are
further adopted and elaborated by [Link], learned Senior Counsel
appearing in the Original Side Writ Petition No.37/2010 and [Link],
learned Senior Counsel appearing in Writ Petition No.346/2011. Both of
them have urged that a different intention appears in clause (b) of sub
section (1) of Section 3 of the Repeal Act and therefore, Section 6 of the
General Clauses Act has no application. The specific saving is for the
benefit of the land holders and therefore, there is no scope for construing
clause (b) of subsection (1) of Section 3 of the Repeal Act on equitable
principles. Once there is no room for equitable considerations and
particularly as [Link] urges because of the Principal Act being
expropriatory in nature and providing for compulsory acquisition, then,
all the more any liberal construction is ruled out. [Link] submits
that even the saving clause has to be strictly construed in this case and
the repeal of the Principal Act wipes out the same and obliterates it from
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the statute book completely. For all these reasons the Reference should be
answered accordingly.
28 [Link] and [Link] relied upon the following
decisions:
1 Mohan Gopalrao Mate v/s Principal Secretary,
reported in 2009 (1) Bom. C.R. 275.
2 Parripati Chandrasekharrao and Sons v/s Alapati
Jalaiah, reported in (1995) 3 SCC 709.
3 Khub Chand v/s State of Rajasthan, reported in AIR
1967 SC 1074.
4 Gujarat Electricity Board v/s Girdharlal Motilal,
reported in AIR 1969 SC 267.
5 State of Maharashtra v/s B.E. Billimoria, reported in
(2003) 7 SCC 336.
6 Corporation of the City of Victoria v/s Bishop of
Vancouver Island, reported in AIR 1921 PC 240.
7 T.R. Thandur v/s Union of India, reported in (1996)
3 SCC 690.
29 [Link] Joshi, learned Counsel appearing for the
Petitioners in Writ Petition No.9872/2010 invites our attention to the
judgment of the Division Bench of this Court in the case of Vithabai Bama
Bhandari v/s State of Maharashtra (supra) and submits that there is
nothing sacrosanct about Section 20 of the Principal Act. By indirect
process we cannot, therefore, save what is not expressly saved by the
Repeal Act. Once the power to exempt cannot be exercised and not
available after the Repeal Act, then, merely because such power is
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exercised during the subsistence of the Principal Act and prior to the
Repeal Act coming into force does not mean that further or incidental
power envisaged by the primary power to exempt is saved. Even this
incidental or ancillary power is unavailable after repeal of the Principal
Act. This argument is built more or less on the wording of Section 21 of
the General Clauses Act, 1897.
30 [Link]Rajyadhyaksha, learned counsel appearing for the
Petitioners in Writ Petition No.556/2010, while adopting all arguments of
all the Senior Counsel only submitted that when more than one High
Court in this country have placed an interpretation on the Parliamentary
Statute or construed its provisions in a particular way, then, for the sake
of consistency and certainty this Court must follow the reasoning of the
Delhi High Court, Madras High Court and Andhra Pradesh High Court.
31 [Link] and [Link]Rajyadhyaksha relied upon the
following judgments in support of the above submissions:
1 Damodar Laxman Navare v/s State of Maharashtra,
in Writ Petition No.6300/2009 decided on
08.07.2010 by the Bombay High Court : Reported in
2010(6) Bom. C.R. 611.
2 Commissioner of Income Tax, Bombay v/s Alcock
Ashdown & Company Limited, reported in 1979 ITR
page 164 : in Income Tax Reference No.40/1969
decided on 07.07.1978 by the Bombay High Court.
3 Commissioner of Income Tax, Bombay v/s T.
Maneklal Mfg. Co. Ltd., reported in 1978 ITR
Vol.115 page 725.
4 Bhagwat Dharmaraj Radke v/s State of
Maharashtra, in Special Leave to Appeal (Civil)
No.35883/2012 decided on 31.03.2014 by the
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Honourable Supreme Court.
5 Government of Karnataka v/s Gowramma and
others, reported in AIR 2008 SC 863.
32 On the other hand, [Link], learned Advocate General
appearing on behalf of the State submits that it is fallacious to assume
that the State or other Respondents, namely, Authorities under the
Principal Act are requesting this Court to go by any equitable
consideration or liberal principle. The State has throughout maintained
that in terms of the Preamble of the Principal Act and Constitutional
philosophy as enshrined by Articles 21 and 39(b) and (c) of the
Constitution of India a ceiling has been placed by the Principal Act on the
holding of vacant land within the urban agglomeration. This ceiling limit,
as is reflected from the Principal Act and which cannot be disputed, is
placed by a statutory prescription that is to be found in Section 4 of the
Principal Act. ChapterIII of the Principal Act is titled as “ceiling on vacant
land”. Except as otherwise provided in the Principal Act on and from the
commencement of the Principal Act no person shall be entitled to hold
any vacant land in excess of the ceiling limit in the territories to which
this Act applies under subsection (2) of Section 1. The obligation under
the statute is, therefore, clear and absolute. It relates and dates back to
the commencement of the Principal Act. None can dispute that what is
exempted from the purview of ChapterIII and by a overriding power
conferred in the State Government is the applicability of ChapterIII to the
vacant land in excess of ceiling limit. Therefore, when the excess vacant
land is exempted in exceptional circumstances and which have been also
specified by the statute, then, all that happens is that the excess vacant
land is exempted from the provisions of ChapterIII either conditionally or
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unconditionally and in terms of the satisfaction in clauses (a) and (b) of
subsection (1) of Section 20 of the Principal Act. The power to exempt is
exercised by the State suomotu or otherwise meaning thereby on the
Application of the person holding the excess vacant land. The request is
not to apply the Chapter in the light of the factors and circumstances
specified therein. This request is made and granted only on the
satisfaction reached and not as a matter of course. Thus, application of
the chapter is a rule and its nonapplication is an exception. Despite
repeal of the Principal Act if the validity of the order granting exemption
under subsection (1) of Section 20 is saved by Section 3 of the Repeal
Act and such validity remains unaffected notwithstanding anything to the
contrary contained in the order of the competent court, then, full effect
will have to be given to the language of the Repeal Act. Once the Repeal
Act is so clear and does not evince anything contrary to the principles
enshrined in Section 6 of the General Clauses Act, then, on the strength of
the wording of the Repeal Act and in any event with the assistance of
Section 6 of the General Clauses Act it can safely be held that there is no
intention to destroy the rights and liabilities or consequences which flow
from a valid exemption order. In fact the language of Section 3 of the
Repeal Act supplements Section 6 of the General Clauses Act. Nothing in
Section 3 of the Repeal Act takes away applicability of the Principal Act to
the extent of enforcing the obligations in terms of the conditions imposed
in the order of exemption. The learned Advocate General submits that the
arguments of the Petitioners revolve around the saving clause enacted by
Section 3 of the Repeal Act. The submissions are that the Repeal Act
shows intention contrary to the applicability of Section 6 of the General
Clauses Act inasmuch as neither the exemption order nor any of the terms
and conditions therein can be enforced post repeal.
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33 The learned Advocate General submitted that the provisions
of the Repeal Act and particularly Section 3(1) clauses (b) and (c) require
a harmonious interpretation. By reading these clauses together what is
apparent is that by clause (a) of subsection (1) of Section 3 of the Repeal
Act it is clarified that repeal of the Principal Act shall not affect the
vesting of any vacant land under Section 10(3) of the Principal Act,
possession of which has been taken over by the State Government or any
person duly authorized by the State in this behalf or by the competent
authority. Thus, if the steps as contemplated by subsection (3) of Section
10 of the Principal Act and equally by subsections (5) and (6) thereof are
taken, then, the vesting of excess vacant land referred to in a Notification
published under Section 10(1) in terms of subsection (3) thereof is not
affected by repeal of the Principal Act. No person then can claim that the
excess vacant land to which the Principal Act admittedly applies and
which is deemed to have been acquired by the State does not belong to it
or the State is not entitled to it because the Principal Act has been
repealed and the vesting comes to an end. The vesting is of vacant land in
excess of ceiling limit. Undisputedly, if the land in excess of ceiling limit
can vest after the notification in terms of Section 10(1) is published in the
official Gazette, then, the declaration which is postulated or contemplated
by subsection (3) is in relation to such excess vacant land. What sub
section (3) of Section 10 really contemplates and envisages is that the
State can declare that the excess vacant land is deemed to have been
acquired by it upon publication of the declaration and particularly with
effect from the dates specified therein. By such deemed acquisition the
land is further deemed to have vested absolutely in the State free from all
encumbrances with effect from the date specified in the declaration. By
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the repeal what has been clarified is that unless the State has taken over
possession of such excess vacant land and as referred to in the
Notification under Section 10(1) either by itself or through any person
duly authorized by it in this behalf or by the competent authority, its plain
and simple vesting will not enable the Government to take over
possession of the excess vacant land after coming into force of the Repeal
Act. This coming into force or commencing is reckoned in terms of sub
sections (2) and (3) of Section 1 of the Repeal Act. Thus, the State is
disabled from taking possession of the excess vacant land which has
already vested in it if it has failed to take possession. Thereupon the land
can be restored and that is how subsection (2) of Section 3 of the Repeal
Act would read. Therefore, this is not a restricted or limited saving clause
in any sense of the term. Though Section 3 is titled “saving” it contains
the substantive provisions. The Legislature or the Parliament did not
intend a vacuum. It did not stop by only stating that if possession of the
land vested in the State in terms of Section 10(3) is not taken, then, that
cannot be taken or the land cannot be made over to the Government after
repeal of the Principal Act. It enacts a further provision by which it is
possible for the State to restore the land to the holder and that is why
restoration is contemplated by virtue of Section 3(2). That restoration is
conditional upon repayment of an amount to the State Government by
the holder. Section 11 of the Principal Act talks of payment of amount for
the vacant land acquired under Section 10(3). That payment can be
claimed even without the land being handed over or without the
possession of the excess vacant land being taken. The deemed acquisition
by virtue of Section 10(3) enables the person or persons having interest in
the excess vacant land to claim the amount under Section 11. If any
payment has been made after such deemed acquisition, then, that amount
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has to be returned to the Government and only then the excess vacant
land of which possession has not been taken will be restored to any
person or the holder as the case may be. If this was a complete
obliteration or destruction of the rights and liabilities under the Principal
Act, then, such substantive provision enabling restoration would not have
been inserted or incorporated is the submission of the learned Advocate
General. The refund of such amount and which has been paid to the
person or persons interested in the excess vacant land in terms of Section
11 of the Principal Act alone entitles such person to claim restoration of
the land to him. If the repeal had been simplicitor and without such
substantive provision, then, it would not have been possible for the holder
or any person interested in the excess vacant land to claim its restoration.
It is, therefore, erroneous to urge that the Repeal Act evidences an
intention contrary to the applicability of Section 6 of the General Clauses
Act, 1897.
34 Inviting our attention to clauses (b) and (c) of subsection
(1) of Section 3 of the Repeal Act the learned Advocate General submits
that the true nature of the power to exempt under the Principal Act would
have to be properly and completely appreciated. He submits that the basis
on which the power to exempt is exercised is that the person is holding
the vacant land in excess of ceiling limit. It is in case of such vacant land
that the State Government must be satisfied either on its own motion or
otherwise that having regard to its location, purpose for which such land
is being or is proposed to be used and such other relevant factors as the
circumstances of the case may require, it is necessary or expedient in the
public interest so to do that the Government is conferred with discretion
to pass an order exempting such vacant land from the provisions of
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ChapterIII either conditionally or otherwise. The learned Advocate
General submits that it is not just having regard to location of the land,
purpose for which the excess vacant land is being or is proposed to be
used and such other relevant factors as the circumstances of the case may
require, but it is necessary and expedient in the public interest that the
discretion to exempt such land has to be exercised. That is in terms of
clause (a) of subsection (1) of Section 20. Whereas, in terms of clause
(b) of subsection (1) of Section 20, the State is satisfied either on its own
motion or otherwise that the application of the provisions of ChapterIII
would cause undue hardship to the persons holding the vacant land in
excess of ceiling limit that the Government may by order exempt
conditionally or unconditionally the vacant land from the provisions of
ChapterIII. Further the order under clause (b) cannot be made unless the
reasons for doing so are recorded in writing. That is because clause (b)
contemplates relieving the person holding the excess vacant land from
undue hardship. Clause (a) necessarily postulates an exercise of powers to
exempt the excess vacant land in public interest. When such is the ambit
and scope of the powers and it is vacant land in excess of ceiling limit
which is exempted from the provisions of ChapterIII that too in
exceptional circumstances, then, it is futile to contend that the State
Government despite validity of its Act or order being saved by the Repeal
Act, would not be able to do anything in relation to such land post repeal
of the Principal Act. The learned Advocate General submits that in this
case the power of exemption and which is to be exercised for public good
and in public interest is so exercised by making an order in that behalf.
That the validity of such an order is saved though the Principal Act is
repealed, but the legal consequences flowing from exercise of such clause
are not saved, would be an incorrect, improper and legally untenable
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reading of the saving clause and the Repeal Act itself. The true nature of
the power to exempt has not been appreciated in making such
submissions. The Petitioners' arguments proceed on an unsound and
erroneous basis and namely that the power to exempt in terms of Section
20(1) of the Principal Act is exercised by the State Government only to
benefit the holder. The argument is that it is to relieve the holder from the
consequences of applicability of ChapterIII that the State exercises such
power and therefore, nothing further can be done in pursuance of the
valid order of exemption post repeal of the Principal Act.
35 The learned Advocate General submits that implicit and
inherent in this is the assumption that even conditional order of
exemption, though valid after repeal, cannot be enforced in any manner
post such repeal or post commencement of the Repeal Act. Meaning
thereby the condition incorporated in the order of exemption though
valid or any action taken in pursuance of such valid exemption order or
condition gets saved still further acts and consequences would not ensue
post repeal of the Principal Act. This construction of such Section 3(1)
ignores clause (c) of the said subsection totally. In that clause any
payment made to the State Government as a condition for granting
exemption under subsection (1) of Section 20 is not affected. The
condition of payment and which is for granting exemption is not affected
post repeal of the Principal Act. Then that condition can be enforced,
would be the sequitur. If that logically follows and qua one condition one
fails to understand as to why the Parliament would enact a Repealing Act
not only to save the validity of any order granting exemption under
Section 20(1) of the Principal Act or any action taken thereunder
notwithstanding any judgment of any court to the contrary, but to save
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only conditional payment and leaving out all other conditions. It would
mean that a condition of payment incorporated in the order granting
exemption is valid and validity of such condition shall not be affected by
repeal, but the conditions other than payment are affected by repeal of
the Principal Act though Section 3(1)(b) saves the validity of the order
granting exemption. Such construction of the Repeal Act would lead to
absurdity and every interpretation which leads or results in such absurdity
must be avoided at all costs. Therefore, when the repeal of the Principal
Act shall not affect the validity of any order granting exemption under
Section 20(1) it means the order as whole including the conditions
incorporated therein is valid notwithstanding any judgment of any court
to the contrary. Equally any action taken thereunder is also valid
notwithstanding any judgment of any court to the contrary. The action
taken under the exemption order could be of enforcing it or any of its
conditions or withdrawing it. The repeal of the Principal Act shall not
affect the validity of all this notwithstanding any judgment of any court to
the contrary. The Parliament is presumed to be aware of the ambit and
scope of the power to exempt conferred by the Principal Act in the State
Government. It is further presumed to be aware of the fact that such
exemption orders are in force or were in force. Therefore, when the
repeal of the Principal Act is to take effect from the date of adoption of
the Repeal Act, then, the Parliament plainly intended that the repeal of
the Principal Act shall not affect the validity of any order granting
exemption under Section 20(1) or any action taken thereunder. The
Parliament was equally aware of the fact that such exemption order or
any action taken thereunder may have been declared as invalid by any
judgment of any court. Therefore, it did not stop at merely saving and not
affecting any order of exemption under subsection (1) of Section 20 or
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any action taken thereunder, but by a nonobstante clause declared that
the validity of any order granting exemption or any action taken
thereunder shall not be affected by repeal of the Principal Act
notwithstanding any judgment of any Court to the contrary. Far from
evincing or demonstrating any contrary intention the saving clause vide
Section 3 protects and saves not only the initial order of exemption or any
action taken thereunder, but the exemption order or any action taken
thereunder is declared valid and expressly saved notwithstanding any
judgment of any court to the contrary. Equally, any payment made to the
State Government as a condition for granting exemption under sub
section (1) of Section 20 is saved and shall not be affected. Thus, both the
condition and the payment under same shall not be affected by repeal of
the Principal Act.
36 The learned Advocate General submits that correct and true
understanding of the saving clause is what is the real issue. The
Petitioners' arguments are based on erroneous and incorrect
understanding of such clause. A saving clause is used to preserve from
destruction certain rights, remedies or privileges already existing. It
means that it saves all the rights the party previously had. It does not give
him any new rights. The saving clauses are introduced into the Acts which
repeal others to safeguard the rights which, but for the savings, would be
lost. The Legislature may have termed Section 3 as saving provision or
clause, but it is well settled that the description of the provision cannot be
decisive of its true meaning or interpretation which must depend on the
words used therein. But, when two interpretations are sought to be put
on a provision which fits the description and which the Legislature has
chosen to apply it, is according to sound canons of constructions, to be
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adopted, provided of course, it is consistent with the language employed.
That is to be preferred to the one which attributes to the provision a
different effect. (See: State of Bombay v/s United Motors (India) Limited
AIR 1953 SC 252). Therefore, it is not safe to hold that Section 3 of the
Repeal Act saves only limited rights or consequences.
37 Taking us through Section 4 of the Repeal Act and
particularly its proviso the learned Advocate General submitted that all
proceedings relating to Sections 11, 12, 13 and 14 of the Principal Act
insofar as such proceedings are relatable to the vacant land, possession of
which has been taken over by the State Government, do not abate. This is
not a total abatement of legal proceedings as is contended. If the
interpretation or construction placed on the Repeal Act by the Petitioners
is accepted that would mean that the vesting of any vacant land of which
possession is taken by the State Government is not affected and therefore,
that power or right of the Government is saved. The repeal of the
Principal Act shall not affect such vesting as is clear from clause (a) of
subsection (1) of Section 3 of the Repeal Act. However, because of such
deemed acquisition and vesting of excess vacant land of which possession
is taken by the State Government or competent authority the person
holding the vacant land would stand to lose completely. He would not be
entitled to claim any payment of the deemed acquisition and vesting of
the land in the State Government free from all encumbrances and which
is unaffected by the repeal of the Principal Act. He would be totally
remedyless. Since the Principal Act is repealed Sections 11 to 14 also
would be taken as obliterated from the statute book. If they stand
obliterated and removed, then, a person holding the vacant land in excess
of ceiling limit though entitled to payment or compensation under the
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Principal Act would not be so entitled because the Principal Act is
repealed. Without the proviso, the duty of the State to compensate for
such vesting, may not have been saved or survived the repeal. It could
have been urged that the right to seek compensation from the State is lost
as the Principal Act is repealed and all proceedings thereunder abate on
the Repeal Act taking effect. That is why the Legislature by proviso to
Section 4 of the Repeal Act clarified that such excess vacant land of which
possession has been taken and its vesting is saved despite repeal of the
Principal Act does not mean that a person holding such land need not be
or cannot be compensated. He can claim payment and the proceedings
relating to Sections 11 to 14 of the Principal Act insofar as they relate to
the vacant land of which possession has been taken, do not abate. This
proviso is completely overlooked while arguing in support of the principle
of total destruction or obliteration of the rights and liabilities under the
Principal Act so also the remedies. If this is demonstrative of a positive
legislative intent and which is duly reflected in the statement of objects
and reasons of the Repeal Act, then, it would not be proper to accept the
contentions of [Link] and other Senior Counsel. If the intent and
purpose is to save all rights and liabilities in relation to the excess vacant
land of which possession is taken, then, it would be safe to proceed and
hold that Section 6 of the General Clauses Act and its applicability is not
ruled out or that the saving section demonstrates a contrary intention and
of non applicability of Section 6 of the General Clauses Act.
38 The learned Advocate General also submitted that when the
rights, obligations and liabilities are intended to be saved it is not the
saving of only vested rights, but those of the nature specified in Section 6
of the General Clauses Act, 1897. He, therefore, submits that understood
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thus and in the context of the power to exempt the excess vacant land
from applicability of ChapterIII of the Principal Act, then, the only
conclusion that can be reached is that not only Section 20(1) of the
Principal Act, but subsection (2) thereof is also saved and remains
unaffected by repeal of the Principal Act. He submits that an order of
exemption does not take the vacant land out of the purview of the
Principal Act or rules out its applicability to it totally. All that results after
such power is exercised is that, but for the duration of the exemption, the
vacant land in excess of ceiling limit continues to be treated and dealt
with as such. Its nature continues to be the same. It also continues to be
subject to the Principal Act. All that happens is that such an order of
exemption keeps in abeyance the operation of ChapterIII of the Principal
Act. As a result of such abeyance and by exercise of a statutory power the
rights and liabilities attached to the excess vacant land remain unaffected.
In that regard it must not be lost sight that none can hold the excess
vacant land beyond the ceiling limit on and from the commencement of
the Principal Act. If that is the statutory position and which is recognized
even by the Repeal Act, so also, the exemption order only keeping in
abeyance the operation or applicability of ChapterIII to such lands, then,
all original rights, liabilities in relation thereto remain unaffected. The
Repeal Act saves such rights and liabilities and which are accrued and
incurred on commencement of the Principal Act. That is why by clause (a)
of subsection (1) of Section 3 it was declared by the Parliament that the
repeal of the Principal Act shall not affect the vesting of any vacant land
under Section 10(3) the possession of which has been taken over by the
State Government otherwise, but for such express declaration it could
have been asserted that the Principal Act having been repealed the
vesting comes to an end or is obliterated. By clause (b) which cannot be
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termed as merely a validating clause or saving theoretically the validity of
the exemption order, the Legislature declares that the said order is saved
with all legal consequences. This is in consonance with the object and
purpose in enacting the Repeal Act and saving from such repeal or leaving
unaffected by the repeal the exercise of some of the vital powers
conferred by the Principal Act and the actions taken thereunder.
39 The learned Advocate General then submitted that it is not
correct to urge that the power to exempt is legislative in character. In that
behalf he took us once again through Sections 20(1) and (2), Sections 21
and 22 of the Principal Act, so also, the scheme of the Principal Act to
urge that it is an administrative order passed in the case of a excess
vacant land. Equally, the conditions imposed are inextricably linked to the
said exemption order. The public interest is paramount in imposing such
conditions and equally the Preamble of the Principal Act acts as a guide in
passing the orders of exemption under clauses (a) and (b) of subsection
(1) of Section 20. In such circumstances and when the order must contain
the reasons when it is made under clause (b) of subsection (1) of Section
20, that order can be made on reaching the requisite satisfaction alone
and that withdrawal of the order of this nature is only after compliance
with the principles of natural justice, then, that rules out the possibility of
the power being termed as legislative in character, that submission of
[Link] has no substance. In these circumstances and when the point
is concluded by the judgment of the Constitution Bench of the
Honourable Supreme Court in the case of Bansidhar v/s State of Rajasthan
reported in (1989) 2 SCC 557, then, the reference cannot be answered,
but by holding that both subsections (1) and (2) of Section 20 of the
Principal Act are saved and not affected by repeal of the Principal Act. It is
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fallacious to contend that withdrawal of the exemption order is axiomatic
or automatic on the satisfaction in terms of Section 20(2) being reached.
On the other hand what subsection (2) of Section 20 states is that it shall
be competent for the State Government to withdraw by order the
exemption if it is satisfied that any of the condition subject to which any
exemption under clause (a) or clause (b) of subsection (1) is not
complied with by any person. Further part of subsection (2) is that the
exemption can be withdrawn by an order, but after giving reasonable
opportunity to such person of making representation against the proposed
withdrawal. This means that the said person can make a representation
against the proposed withdrawal and the Government is obliged to
consider it. If the State Government is so obliged and it may withdraw the
order of exemption though fully competent to do so that would falsify all
the contentions to the contrary. If the withdrawal is not automatic or
axiomatic or only outcome or result upon the satisfaction under sub
section (2) being reached, then, it is further fallacious to contend that if
there is non compliance with any of the conditions subject to which
exemption has been granted, then, the only consequence of such non
compliance or breach would be applicability of Section 10(3) of the
Principal Act. That is not the only consequence because the State
Government may or may not withdraw the exemption, but by an order
under subsection (2) of Section 20 stipulate that if the condition is not
complied with within the time extended or provided in the further order
the exemption may be withdrawn. The Government can also in the order
state that some of the terms and conditions have been complied with
whereas others are not and since the order of exemption is not complied
with in its totality, additional time is being granted for such compliance
failing which the State may proceed to withdraw the order and take all
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such and further actions as are permissible in law. Therefore, it is not as if
subsection (2) of Section 20 being not referred in the saving clause
enacted by Section 3 of the Repeal Act would mean the Legislature never
intended to save it. Rather it was not necessary to be mentioned because
if the validity of the order of exemption or any action taken thereunder is
saved that means the exemption order is valid, but not its conditions and
they cannot be enforced or only the exemption order is valid or any action
taken thereunder, but other consequences flowing from such valid
exemption order or any valid action taken thereunder are ruled out, that
is an erroneous submission. Relying on Bansidhar's case (supra) it is
submitted that intention contrary to the applicability of Section 6 of the
General Clauses Act is not to be assumed only with reference to what is
expressly saved and it cannot be further assumed that what is not
expressly saved stands destroyed or obliterated. An express saving clause
necessarily does not reflect intention contrary to the applicability of
Section 6 of the General Clauses Act. Therefore, the reference needs to be
answered accordingly.
40 The learned Advocate General while ending his submissions
urged that the decisions in the case of Voltas Limited v/s Additional
Collector & Competent Authority reported in 2008(5) Bom.C.R. 746,
Vithabai Bama Bhandari v/s State of Maharashtra reported in 2009(3)
Bom. C.R. 663 and Sundersons and others v/s State of Maharashtra and
others reported in 2008 (5) Bombay Cases Reporter 85 or any
observations therein are not binding on construction and interpretation of
Section 3(1)(b) and (c) of the Repeal Act. At best, the observations and
findings in these decisions can be applied to a case falling under Section
3(1)(a) of the Repeal Act. In that regard as well some further conclusions
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rendered in Voltas Case (supra) and all above decisions contrary to what
is held in Bansidhar's Case (supra) do not lay down the correct law. In
fact Bansidhar's case (supra) was cited before the Division Bench in Votlas
Case (supra), but the Division Bench completely omitted it from
consideration and made some sweeping observations. These observations,
findings and conclusions in Voltas (supra) have been followed in Vithabai
(supra), Sundersons (supra) and in Mohan Gopalrao Mate v/s Principal
Secretary and others reported in 2009(1) Bom. C.R. 275, all of which,
therefore and to the extent indicated above must be held to be not laying
down the correct law.
41 These submissions of the learned Advocate General are fully
adopted by [Link], learned Senior Counsel appearing in
some of the petitions for the State. He has take us through the scheme of
Section 6 of the General Clauses Act and particularly the words of clause
(b) thereof to urge that the exemption order including the conditions
thereunder and all legal consequences survive the repeal of the Principal
Act. That is the only construction which can be placed on Section 3 of the
Repeal Act.
42 The learned Advocate General and [Link] have
relied upon the following decisions:
1 State of Punjab v/s Mohar Singh Pratap Singh,
reported in AIR 1955 SC 84.
2 Brihan Maharashtra Sugar Syndicate v/s Janardan
Ramchandra Kulkarni, reported in AIR 1960 SC
794.
3 Her Highness Maharani Shantidevi P. Gaikwad v/s
Savjibhai Haribhai Patel, reported in (2001) 5 SCC
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101.
4 Commissioner of Income Tax v/s M/s Shah Sadiq
and Sons, reported in (1987) 3 SCC 516.
5 Kalawati Devi Harlalka v/s Commissioner of Income
Tax, reported in AIR 1968 SC 162.
6 The III Income Tax Officer, Mangalore v/s
[Link] Bhat, reported in AIR 1969 SC 408.
7 M/s Gurcharan Singh Baldev Singh v/s Yashwant
Singh, reported in AIR 1992 SC 180.
8 D.C. Oswal v/s [Link], reported in AIR 1992
SC 184.
9 Udai Singh Dagar v/s Union of India, reported in
(2007) 10 SCC 306.
10 Bhikoba Shankar Dhumal v/s Mohan Lal Punchand
Tathed, reported in (1982) 1 SCC 680.
11 State of Maharashtra v/s Annapurnabai, reported in
1985 (Supp.) SCC 273.
12 State of A.P. v/s N. Audikesava Reddy, reported in
(2002) 1 SCC 227.
13 Atia Mohammadi Begum v/s State of U.P., reported
in (1993) 2 SCC 546.
14 Government of A.P. v/s [Link], reported in (2002)
5 SCC 37.
15 State of U.P. v/s Renusagar Power Company,
reported in (1988) 4 SCC 59.
16 Bhagwant Dharmaraj Radke v/s State of
Maharashtra, reported in 2012(6) ALL MR 560.
17 Pradip J. Mehta v/s Commissioner of Income Tax,
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reported in (2008) 14 SCC 283.
18 Rajendra Kumar v/s State of Madhya Pradesh,
reported in AIR 1979 Madhya Pradesh 108.
19 S.N. Rao v/s State of Maharashtra, reported in
(1988) 1 SCC 586.
20 TCI Industries Limited v/s Municipal Corporation of
Greater Bombay, reported in 2012(5) Bom. C.R.
353.
21 Bansidhar and others v/s State of Rajasthan,
reported in (1989) 2 SCC 557.
22 Hasan Nurani Malak v/s [Link], Assistant
Charity Commissioner, reported in AIR 1967 SC
1742.
23 M/s Universal Imports Agency v/s Chief Controller
of Imports and Exports, reported in AIR 1961 SC 41.
24 State of Punjab v/s Harnek Singh, reported in
(2002) 3 SCC 481.
25 Deep Chand v/s State of U.P., reported in AIR 1959
SC 648.
43 A brief rejoinder was given by [Link] to these
contentions and he urged that each of the judgments cited by the learned
Advocate General are with reference to the statutes which are not
parimateria with the Principal Act or the Repeal Act. Therefore,
Bansidhar's case (supra) and other judgments are distinguishable. Even
otherwise the judgments are not to be read like statutes. One cannot
construe the Repeal Act and as clear in the present case to mean reviving
the Principal Act. In Bansidhar (supra) and other cases cited there was no
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plain and express repeal, but a reenactment of the earlier legislation or
law. The Rajasthan Ceiling Act of 1955 was replaced or repealed by a
later Ceiling Act. That is, therefore, a case of reenactment. In the
reenacted statute there was a saving clause, namely, Section 15 of the
Rajasthan Act [Link] of 1976. That indicated that earlier Ceiling Law,
namely, Act of 1955 was still on the statute book albeit for a limited
purpose. That is how paragraph 24 of Bansidhar's judgment (supra)
would read. Thus, the factual matrix was different. In the present case,
the Repeal Act destroys many provisions of the Principal Act. Sections 21
and 22 of the Principal Act are not saved and therefore, parimateria
provision like Section 20(2) cannot be held to be saved. Similarly all cases
which have been cited by the learned Advocate General on the law
enacting ceiling on agricultural lands are inapplicable because firstly
those Acts are not parimateria. Secondly, interpretation on the provisions
of those Acts was placed by the Honourable Supreme Court when the said
Acts were existing on the statute book and not repealed. That is why
these judgments cannot be cited as precedent for applicability of Section 6
of the General Clauses Act to the present case. Lastly, [Link] would
submit that the learned Advocate General was in error in placing reliance
on the decision of the Honourable Supreme Court in the case of [Link]
Mohammadi Begum v/s State of U.P. reported in AIR 1993 SC 2465
because this decision is expressly dissented from in a later decision of the
Honourable Supreme Court in Her Highness Maharani Shantidevi P.
Gaikwad vs. Savjibhai Haribhai Patel and Others reported in (2001) 5 SCC
101. It is overruled. Thus, if ChapterIII of the Principal Act is the heart of
the said law and its applicability is ruled out completely and not
temporarily as urged, then, the said ChapterIII does not survive repeal of
the Principal Act. For these reasons the Reference must be answered in
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terms urged by the Petitioners.
44 For properly appreciating the rival contentions a reference
firstly to the Principal Act and thereafter, the Repeal Act is necessary. In
AIR 1979 SC 1415 (Union of India v/s Valluri Basavaiah Chouwdhary),
the Honourable Supreme Court outlined the object and purpose of the
Principal Act in the following words:
“6. The primary object and the purpose of the Urban
Land (Ceiling and Regulation) Act, 1976, 'the Act', as
the long title and the preamble show, is to provide for
the imposition of a ceiling on vacant land in urban
agglomerations, for the acquisition of such land in
excess of the ceiling limit, to regulate the construction
of buildings on such land and for matters connected
therewith, with a view to preventing the
concentration of urban land in the hands of a few
persons and speculation and profiteering therein, and
with a view to bringing about an equitable
distribution of land in urban agglomerations to
subserve the common good, in furtherance of the
directive principles of Art.39(b) and (c).”
45 ChapterI of the Principal Act contains preliminary
provisions. Firstly, by Section 1 short title, application and
commencement is set out and by virtue of subsection (2) thereof the
Principal Act becomes applicable to the State of Maharashtra in the first
instance. Then, in Section 2 there are certain definitions. For our purpose
the definitions of the term “appointed day” appearing in Section 2(a),
“ceiling limit” in Section 2(c), “to hold” in Section 2(l), “urban land” as
defined in Section 2(o) and “vacant land” appearing in Section 2(q) are
relevant. On perusal of these definitions further provisions of the Principal
Act can be properly appreciated. The Principal Act, therefore, must be
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seen as applicable to the vacant land and within an urban agglomeration.
A person holding such land or possessing it in any of the capacities
referred to in Section 2(l) shall be bound by the ceiling limit as specified
in Section 4(1) and further subsections of that Section. By Section 3 it is
mandated that on and from the commencement of the Principal Act
except as otherwise provided therein no person shall be entitled to hold
any vacant land in excess of the ceiling limit in the territories to which the
Principal Act applies under subsection (2) of Section 1. Further
provision, namely, Section 5 sets out as to what are the consequences on
such vacant land being transferred at any time during the period
commencing on the appointed day and ending with the commencement
of the Principal Act. Then, Section 6 requires the persons holding vacant
land in excess of ceiling limit to file a statement. Section 6 of the Principal
Act reads as under:
“6. Persons holding vacant land in excess of ceiling limit
to file statement:
(1) Every person holding vacant land in excess of the
ceiling limit at the commencement of this Act shall,
within such period as may be prescribed, file a
statement before the competent authority having
jurisdiction specifying the location, extent, value and
such other particulars as may be prescribed of all
vacant lands and of any other land on which there is
a building, whether or not with a dwelling unit
therein, held by him (including the nature of his
right, title or interest therein) and also specifying the
vacant lands within the ceiling limit which he desires
to retain:
Provided that in relation to any State to which this
Act applies in the first instance, the provisions of this
subsection shall have effect as if for the words "Every
person holding vacant land in excess of the ceiling
limit and the commencement of this Act", the words,
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figures and letters "Every person who held vacant
land in excess of the ceiling limit on or after the 17th
day of February, 1975 and before the commencement
of this Act and every person holding vacant land in
excess of the ceiling limit at such commencement" had
been substituted.
Explanation. – In this section, "commencement of this Act"
means, –
(i) the date on which this Act comes into force in
any State;
(ii) where any land, not being vacant land,
situated in a State in which this Act is in force has
become vacant land by any reason whatsoever, the
date on which such land becomes vacant land;
(iii) where any notification has been issued under
clause (n) of section 2 in respect of any area in a
State in which this Act is in force; the date of
publication of such notification.
(2) If the competent authority is of opinion that –
(a) in any State to which this Act applies in the
first instance, any person held on or after the 17th
day of February, 1975 and before the commencement
of this Act or holds at such commencement; or
(b) in any State which adopts this Act under clause
(1) of Article 252 of the Constitution, any person
holds at the commencement of this Act,
vacant land in excess of the ceiling limit, then,
notwithstanding anything contained in subsection
(1), it may serve a notice upon such person requiring
him to file, within such period as may be specified in
the notice, the statement referred to in subsection
(1).
(3) The competent authority may, if it is satisfied that it
is necessary so to do, extend the date for filing the
statement under this section by such further period or
periods as it may think fit; so, however, that the
period or the aggregate of the periods of such
extension shall not exceed three months.
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(4) The statement under this section shall be filed, –
(a) in the case of an individual, by the individual
himself; where the individual is absent from India, by
the Individual concerned or by some person duly
authorised by him in this behalf; and where the
individual is mentally incapacitated from attending
to his affairs, by his guardian or any other person
competent to act on his behalf;
(b) in the case of a family, by the husband or wife
and where the husband or wife is absent from India
or is mentally incapacitated from attending to his or
her affairs, by the husband or wife who is not so
absent or mentally incapacitated and where both the
husband and the wife are absent from India or are
mentally incapacitated from attending to their
affairs, by any other person competent to act on
behalf of the husband or wife or both;
(c) in the case of a company, by the principal
officer thereof;
(d) in the case of a firm, by any partner thereof;
(e) in the case of any other association, by any
member of the association or the principal officer
thereof; and
(f) in the case of any other person, by that person
or by a person competent to act on his behalf.
Explanation. – For the purposes of this subsection, "principal
officer", –
(i) in relation to a company, means the secretary,
manager or managingdirector of the company;
(ii) in relation to any association, means the
secretary, treasurer, manager or agent of the
association,
and includes any person connected with the
management of the affairs of the company or the
association, as the case may be, upon whom the
competent authority has served a notice of his
intention of treating him as the principal officer
thereof.”
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46 A bare perusal thereof would indicate as to how the filing of
statement is compulsory and by a person holding vacant land in excess of
ceiling limit at the commencement of the Principal Act. He being required
to file within the prescribed period a statement before the competent
authority having jurisdiction specifying the location, extent, value and
such other particulars as may be prescribed of all vacant land and of any
other land on which there is a building, whether or not with a dwelling
unit therein held by him including the nature of his right, title and
interest therein and also specifying the vacant land within the ceiling limit
which he desires to retain, that we are of the view that such statement is
contemplated by law so as not to allow the holder of excess vacant land to
escape the consequence of law. This aspect would become clear if one
peruses Sections 7, 8 and 9 of the Principal Act. It is not as if the
competent authority does not make any inquiry on the statement filed
under Section 6. That such an inquiry has to be made because it is the
competent authority who has to prepare the draft statement. The
statement gets finality by virtue of Section 9 and thereafter, the
consequences follow and those are to be found in Section 10. Much
emphasis has been laid on the said provision, namely, Section 10. It is
reproduced herein below:
“10. Acquisition of vacant land in excess of ceiling limit:
(1) As soon as may be after the service of the statement
under section 9 on the person concerned, the
competent authority shall cause a notification giving
the particulars of the vacant land held by such person
in excess of the ceiling limit and stating that –
(i) such vacant land is so be acquired by the
concerned State Government; and
(ii) the claims of all persons interested in such
vacant land may be made by them personally or by
their agents giving particulars of the nature of their
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interests in such land,
to be published for the information of the general
public in the Official Gazette of the State concerned
and in such other manner as may be prescribed.
(2) After considering the claims of the persons interested
in the vacant land, made to the competent authority
in pursuance of the notification published under sub
section (1), the competent authority shall determine
the nature and extent of such claims and pass such
orders as it deems fit.
(3) At any time after the publication of the notification
under subsection (1), the competent authority may,
by notification published in the Official Gazette of the
State concerned, declare that the excess vacant land
referred to in the notification published under sub
section (1) shall, with effect from such date as may be
specified in the declaration, be deemed to have been
acquired by the State Government and upon the
publication of such declaration, such land shall be
deemed to have vested absolutely in the State
Government free from all encumbrances with effect
from the date so specified.
(4) During the period commencing on the date of
publication of the notification under subsection (1)
and ending with the date specified in the declaration
made under subsection (3) –
(i) no person shall transfer by way of sale,
mortgage, gift, lease or otherwise any excess vacant
land (including any part thereof) specified in the
notification aforesaid and any such transfer made in
contravention of this provision shall be deemed to be
null and void; and
(ii) no person shall alter or cause to be altered the
use of such excess vacant land.
(5) Where any vacant land is vested in the State
Government under subsection (3), the competent
authority may, by notice in writing, order any person
who may be in possession of it to surrender or deliver
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possession thereof to the State Government or to any
person duly authorised by the State Government in
this behalf within thirty days of the service of the
notice.
(6) If any person refuses or fails to comply with an order
made under subsection (5), the competent authority
may take possession of the vacant land or cause it to
be given to the concerned State Government or to any
person duly authorised by such State Government in
this behalf and may for that purpose use such force as
may be necessary.
Explanation. – In this section, in subsection (1) of section 11
and in sections 14 and 23, "State Government", in
relation to –
(a) any vacant land owned by the Central
Government, means the Central Government;
(b) any vacant land owned by any State
Government and situated in a Union territory or
within the local limits of a cantonment declared as
such under section 3 of the Cantonments Act, 1924,
(2 of 1924), means that State Government.”
47 A bare perusal thereof would indicate that it is providing for
acquisition of vacant land in excess of ceiling limit. Sections 11 to 14
create a mechanism for the purpose of payment of amount for vacant
lands acquired in terms of Section 10. By Section 15 there is a ceiling
limit on future acquisition by inheritance, bequest or by sale in execution
of decrees, etc. Then, there are other consequences which are to be found
when the Principal Act is adopted subsequently by any State. Then the
persons can file the statement and in relation to such State within the
time specified by Section 16. By Section 17 the power is given to enter
upon any vacant land. By Section 18 there are penalties provided for
concealment etc. of particulars or furnishing inaccurate particulars of
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vacant land. Section 19 states that the Chapter will not apply to certain
vacant lands and those are specified in subsection (1) of Section 19. By
subsection (2) of Section 19 the intent of the legislature is further
clarified inasmuch as there is distinction between the Chapter not
applying to certain vacant lands and exemption to vacant lands from the
provisions of the Chapter. By subsection (2) of Section 19 it is clarified
that the provisions of subsection (1) of Section 19 shall not be construed
as granting any exemption in favour of any person other than an
authority, institution or organization specified in subsection (1). Such
persons may be possessing any vacant land which is owned by such
authority, institution or organization. In other words, the Chapter is not
applicable to vacant lands which are owned by an authority, institution or
organization. Similarly, if any such authority, institution or organization
possesses any vacant land belonging to a person, then, that person/
owner does not derive any benefit or advantage merely because the
Chapter is not applicable since the vacant land is in possession of the
authority, institution or organization. By Section 20 the power to exempt
is conferred. Section 20 is reproduced herein below:
“20. Power to exempt:
(1) Notwithstanding anything contained in any of the
foregoing provisions of this Chapter. –
(a) where any person holds vacant land in excess of
the ceiling limit and the State Government is satisfied,
either on its own motion or otherwise, that, having
regard to the location of such land, the purpose for
which such land is being or is proposed to be used and
such other relevant factors as the circumstances of the
case may require, it is necessary or expedient in the
public interest so to do, that Government may, by
order, exempt, subject to such conditions, if any, as
may be specified in the order, such vacant land from
the provisions of this Chapter.
(b) where any person holds vacant land in excess of
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the ceiling limit and the State Government, either on
its own motion or otherwise, is satisfied that the
application of the provisions of this Chapter would
cause undue hardship to such person, that
Government may by order, exempt subject to such
conditions, if any, as may be specified in the order,
such vacant land from the provisions of this Chapter:
Provided that no order under this clause shall be made unless
the reasons for doing so are recorded in writing.
(2) If at any time the State Government is satisfied that
any of the conditions subject to which any exemption
under clause (a) or clause (b) of subsection (1) is
granted is not complied with by any person, it shall
be competent for the State Government to withdraw,
by order, such exemption after giving a reasonable
opportunity to such person for making a
representation against the proposed withdrawal and
thereupon the provisions of this Chapter shall apply
accordingly.”
48 A bare perusal of Section 20 would indicate that the power
thereunder is conferred in the State. The State can exempt the vacant
land in excess of ceiling limit from the provisions of the ChapterIII if it is
satisfied in terms of clause (a) or (b) of subsection (1) that the
exemption is required because of the location of land, the purpose for
which such land is being used or proposed to be used and such other
relevant factors as the circumstances of the case may require and that it is
necessary and expedient in the public interest so to do. By clause (b) of
subsection (1) of Section 20 to relieve undue hardship to a person
holding the vacant land in excess of ceiling limit that the power to exempt
is to be exercised. However, the power to exempt is exercised in relation
to the excess vacant land. Therefore, such exemption being granted does
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not mean that the excess vacant land is out of the purview of the Principal
Act. That it is subject to the Principal Act is clear and is undisputed. That
it being so subject to the Principal Act is, therefore, empowering the
Government to exempt it from the provisions of ChapterIII thereof. That
it is the excess vacant land and therefore, ChapterIII would govern the
same, is not disputed before us. The question is whether such exemption
being granted and after it being granted subject to any conditions will
that exemption order survive the repeal of the Principal Act with all
consequences or not? The Repeal Act reads thus:
“The Urban Land (Ceiling and Regulation) Repeal
Act, 1999. (15 of 1999).
An Act to repeal the Urban Land (Ceiling and
Regulation) Act, 1976.
BE it enacted by Parliament in the Fiftieth Year of the
Republic of India as follows: –
1. Short title and application commencement: –
(1) This Act may be called the Urban Land (Ceiling
and Regulation) Repeal Act, 1999.
(2) It applies in the first instance to the whole of
the States of Haryana and Punjab and to all the
Union territories; and it shall apply to such other
State which adopts this Act by resolution passed in
that behalf under clause (2) of article 252 of the
Constitution.
(3) It shall be deemed to have come into force in
the States of Haryana and Punjab and in all the
Union territories on the 11th day of January, 1999
and in any other State which adopts this Act under
clause (2) of article 252 of the Constitution on the
date of such adoption; and the reference to repeal of
the Urban Land (Ceiling and Regulation) Act, 1976
shall, in relation to any State or Union territory,
mean the date on which this Act comes into force in
such State or Union territory.
2. Repeal of Act 33 of 1976: – The Urban Land (Ceiling
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and Regulation) Act, 1976 (hereinafter referred to as
the principal Act) is hereby repealed.
3. Savings: –
(1) The repeal of the principal Act shall not affect
(a) the vesting of any vacant land under
subsection (3) of section 10, possession of which has
been taken over by the State Government or any
person duly authorised by the State Government in
this behalf or by the competent authority;
(b) the validity of any order granting
exemption under subsection (1) of section 20 or any
action taken thereunder, notwithstanding any
judgment of any court to the contrary;
(c) any payment made to the State
Government as a condition for granting exemption
under subsection (1) of section 20.
(2) Where—
(a) any land is deemed to have vested in the
State Government under subsection (3) of section 10
of the principal Act but possession of which has not
been taken over by the State Government or any
person duly authorised by the State Government in
this behalf or by the competent authority; and
(b) any amount has been paid by the State
Government with respect to such land,
then, such land shall not be restored unless the
amount paid, if any, has been refunded to the State
Government.
4. Abatement of legal proceedings : –
All proceedings relating to any order made or
purported to be made under the principal Act pending
immediately before the commencement of this Act,
before any court, tribunal or other authority shall
abate:
Provided that this section shall not apply to the
proceedings relating to sections 11, 12, 13 and 14 of
the principal Act in so far as such proceedings are
relatable to the land, possession of which has been
taken over by the State Government or any person
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duly authorised by the State Government in this
behalf or by the competent authority.
5. Repeal and saving : –
(1) The Urban Land (Ceiling and Regulation)
Repeal Ordinance, 1999 (Ord. 5 of 1999) is hereby
repealed.
(2) Notwithstanding such repeal, anything done or
any action taken under the said Ordinance shall be
deemed to have been done or taken under the
corresponding provisions of this Act.”
49 To our mind if the intent and purpose was not to save the
order of exemption with the attendant legal consequences, then, the
Legislature was not required to mention or specify anything about its
validity in the Repeal Act. The Legislature was then not required to save
its validity as well. The argument is that the validity of exemption order is
saved because vesting of excess vacant land of which possession alone is
taken is saved and that has been specified in clause (a) of Section 3(1) of
the Repeal Act. The vesting of such excess vacant lands cannot be
questioned because, at one time they may be exempted from applicability
of the provisions of ChapterIII, but that exemption was withdrawn and
later they were subjected to the consequences specified by Section 10 and
particularly subsections (3), (5) and (6) thereof, that the validity of the
order exempting them has been saved. We do not think that this will be a
sound and proper reading of the Repeal Act. Just as the Principal Act
would have to be read as a whole, equally the Repeal Act as well. We
cannot read the Repeal Act by omitting or leaving out therefrom anything
which the Legislature has specifically incorporated or inserted. We,
therefore, cannot hold that clause (a) of subsection (1) of Section 3 of
the Repeal Act which is a saving clause having saved the vesting of the
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excess vacant land of which possession has been taken over and these
vacant lands may be at one time exempted, that the Legislature inserted
by way of abundant caution clauses (b) and (c) in subsection (1) of
Section 3 of the Repeal Act. The argument of [Link] and other
Senior Counsel is that this is by way of abundant caution and nothing
more.
50 We are unable to agree with them because the excess vacant
lands being at one time exempted, but such exemption being withdrawn
later would equate such excess vacant lands with those in relation to
which the power of exemption was never exercised and the Chapter was
throughout applicable. Their status would be on par with those excess
vacant lands in relation to which no attempt was made to seek an
exemption or such attempt was made, exemption granted, but later on
withdrawn and withdrawal never questioned by the affected parties. If in
relation to such lands as well the necessary steps and in pursuance of
Section 10(1) could have been taken and prior to the repeal had the
possession of such lands been taken over, they would have vested in the
State and that vesting is saved or survives the repeal of the Principal Act,
then, there was absolutely no necessity of saving the exemption order and
which has already been acted upon or in relation to which the
consequences including those provided by Section 20(2) and ensuing the
same have already followed.
51 Then, why is the validity of any order granting exemption
under subsection (1) of Section 20 or any action taken thereunder
notwithstanding any judgment of any court to the contrary, saved? That is
saved and with a purpose. That is because the power to exempt the land
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and which could be exercised in a given case in public interest and not for
any private purpose or benefit should be allowed to be pursued to its
logical end. If the power is conferred and its exercise is contemplated for
public good and in public interest, then, the consequences of the same
ought to follow and equally in public interest and for public good. The
Legislature while repealing the Principal Act was aware of the
consequences that may follow the repeal. It was aware of the fact that if
certain steps taken or the powers exercised under the Principal Act do not
survive the repeal thereof, then, public good and public interest would be
adversely affected. The power to exempt is coupled with a duty. If that is
coupled with a duty and not an absolute power and is in the nature of a
trust and is expected to be exercised in that manner, then, the Legislature
was aware that the power having once exercised it must be allowed to
take its full course. That is why whatever may be its fate in terms of the
order of the Court, but notwithstanding that the validity of exemption
order is saved and that is not to allow a person who may be a beneficiary
thereof to escape the legal consequences ensuing the same. If that were
not to be saved and was not to survive the repeal, then, clauses (b) and
(c) of subsection (1) of Section 3 of the Repeal Act were not required to
be inserted. They are not surplusage or superfluous or inserted as and by
way of abundant caution. The law in this regard is very clear and in the
words of the Honourable Mr. Justice Patanjali Shastri, Chief Justice of
India (as His Lordship then was) in the case of Aswini Kumar Ghose v/s
Arabinda Bose reported in AIR 1952 SC 369, “it is not a sound principle
of construction to brush aside words in a statute as being inapposite
surplusage, if they can have appropriate application in circumstances
conceivably within the contemplation of the statute.” The Honourable
Supreme Court has also held that it is incumbent on the court to avoid a
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construction, if reasonably permissible on the language, which would
render a part of the statute devoid of any meaning or application. In other
decision reported in AIR 1961 SC 1170 ([Link] Spinning & Weaving
Mills Co. Ltd. v/s State of U.P.), it is held that “To harmonise is not to
destroy. The courts always presume that the Legislature inserted every
part thereof for a purpose and the legislative intention is that every part
of the statute should have effect” (see para 7 at page 1174). The
Legislature is deemed not to waste its words or to say anything in vain.
Hence, it is not possible to easily attribute to the Legislature that a
provision has been made or the words have been inserted just as a matter
of caution or to chart a safe course. If the vesting of the land of which
possession has been taken is saved and repeal of the Principal Act was not
to affect it, then, nothing more was required to be stated or saved as the
law has taken its course. If vesting of the vacant land under Section
10(3), possession of which has been taken over by the State alone, is to
be saved, then, making further provisions and incorporating them in the
Repeal Act was unnecessary.
52 The above aspect becomes clear if we peruse the statement of
objects and reasons to the Repeal Bill, 1999. That reads as under:
“Statement of Objects and Reasons:
The Urban Land (Ceiling and Regulation) Act, 1976
was passed with a laudable social objective. The main
purpose was to prevent concentration of urban land
in a few hands and to provide affordable housing to
the Economically Weaker Sections. It has on the
contrary pushed up land prices, practically brought
the housing industry to a stop and provided
opportunities for corruption. There is a widespread
demand for removing this irritant to land assembly
and construction activity. During the implementation
of the Urban Land (Ceiling and Regulation) Act,
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1976, there have been a spate of litigations giving rise
to serious hurdles in taking over possession of land,
by the State Governments. Public opinion is nearly
unanimous that the Act has failed to achieve its
objectives as expected.
2. Parliament has no power to repeal or amend the Act
unless resolutions are passed by two or more State
Legislatures as required under clause (2) of Article
252. The Legislatures of Haryana and Punjab have
passed resolutions empowering Parliament to repeal
the Act in those States. The Act stands repealed in
those States and in the Union territories immediately
after promulgation of the repeal Ordinance and
subsequently if State Legislatures adopt this Repeal
Act by resolution, then the Urban Land (Ceiling and
Regulation) Act, 1976 will stand repealed in those
States, from the date of its adoption.
3. The Urban Land (Ceiling and Regulation) Repeal Bill,
1998 was examined by the Standing Committee on
Urban and Rural Development. The Committee felt
that the land which is yet to be put to use for the
original purposes stated in the Act, under possession
of the Government should not be restored to previous
owners as such restoration may lead to avoidable
discrimination. The Committee also suggested that the
repeal Bill should contain a provision for abatement
of proceedings in the different courts. Keeping in view
the recommendations of the Committee, this Bill is
being introduced to replace the Urban Land (Ceiling
and Regulation) Repeal Ordinance, 1999 (Ord.5 of
1999) notified on 11.01.1999 so that the State
Governments would be free to have their own
legislation commensurate with their needs and
experiences. Till this Act is repealed, States have no
power to legislate on this subject.
4. The proposed repeal, along with some other incentives
and simplification of administrative procedures, is
expected to revive the stagnant housing industry. The
repeal will facilitate construction of dwelling units
both in the public and private sector and help
achievement of targets contemplated under National
Agenda for Governance. The repeal will not, however,
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affect vesting of any vacant land under subsection
(3) of Section 10 of the Urban Land (Ceiling and
Regulation) Act, 1976 the possession of which has
been taken over by the State Governments. It will not
affect payments made to the State Governments for
exemptions. The exemptions granted under Section 20
of the Act will continue to be operative. The amounts
paid out by the State Governments will become
refundable before restoration of the land to the
former owners.
5. The Bill also seeks to facilitate land assembly and a
flexible regime for administering urban land to suit
the varying local conditions based on State level
legislations or requirements.”
53 If one peruses clause 4 of the Statement of objects and
reasons carefully and particularly the part where the intent is not to affect
by repeal the exemption under Section 20 of the Principal Act will and
that continues to be operative. After adopting the Repeal Act, the States
have a freedom to legislate on the same subject as is clear from Clause 3
of the Statement of Objects and Reasons to the Repeal Act. That intent
and purpose is not achieved or served by a mere insertion of clause (a) of
subsection (1) of Section 3 of the Repeal Act. It is, therefore, that the
Legislature did not exhaust itself and added clause (b) and that too to
subsection (1) of Section 3 of the Repeal Act and by inserting the words
of wide import. It is with an intent of not affecting the exemptions
granted, but continuing them so also preserving their validity that clause
(b) has been so worded. In clause (b) not only the Legislature has saved
the validity of exemption order or any action taken thereunder, but has
protected or saved this validity notwithstanding anything to the contrary
held by a court of competent jurisdiction. The Legislature was aware that
the exemptions have been granted under Section 20 across the country by
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several State Governments in exercise of their powers to exempt the
excess vacant lands from applicability of ChapterIII of the Principal Act.
These exemption orders have been passed bearing in mind the location of
excess vacant land, the purpose for which it is used or intended to be
used and such other relevant factors as the circumstances of the case may
require. The power to exempt has been exercised after the Government
reached this satisfaction and further that it is necessary and expedient in
the public interest so to do. Under clause (a) of subsection (1) of Section
20, therefore, exemption to the excess vacant lands from the provisions of
ChapterIII is not to benefit the land holder as is urged before us. It is to
uphold and promote the larger public interest particularly of providing
affordable living accommodation and for those who are in a poor state
and entitled to public assistance. The Legislature was aware that
exemption orders have also been passed in some cases to relieve the
hardship to the persons holding excess vacant land on the requisite
satisfaction reached by the Government. That satisfaction is that unless
the vacant land in excess of ceiling limit held by such person is not
exempted from the provisions of ChapterIII undue hardship would be
caused to such person. The Legislature was equally aware while enacting
the Repeal Act that several exemption orders under clauses (a) and (b)
have been passed with conditions attached to them. The conditions may
be of imposition of penalties for delay in completion and implementation
of a housing project or scheme. The conditions imposed may interalia
visit the person or holder with the consequence of withdrawal of the
exemption and forfeiture of the amounts paid or deposited. Such
conditional orders of exemption are in force and not withdrawn because
the Government was of the opinion that the lands were being put to such
use as would serve the object and purpose in enacting the Principal Act.
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That the State Governments were aware that the schemes of housing for
weaker sections in the society were promulgated and such excess vacant
lands were to be utilized to provide cheap and affordable housing to the
economically backward section or class of the society. The schemes of this
nature were under several stages of implementation. The houses or
tenements in such schemes or in housing projects earmarked for these
sections of the society, were to be handed over or were to be taken over so
as to reach the ultimate beneficiaries. It is with these objects and peculiar
facts and circumstances of each case that the State allowed the exemption
to remain in force. That at appropriate stages the extensions to the
exemption orders have been granted. Therefore, if the exemption is
granted firstly in public interest and secondly to relieve the undue
hardship, then, such exemption orders being interfered with by the courts
or struck down or quashed would cause serious prejudice and loss to the
deprived sections of the society. When these states of affairs are to the
knowledge of the Legislature, then, it is not possible to accept the
contentions of [Link] that clauses (b) and (c) of subsection (1) of
Section 3 of the Repeal Act are only added as and by way of abundant
caution. We cannot attribute to the Legislature such surplusage.
54 The validity of exemption order is saved so as to ensure that
the same serves the purpose for which it is granted. If that is what the
Legislature had in mind, then, it is futile to suggest that the Legislature
has left unaffected by repeal only the validity of the exemption order, but
not its conditions. The argument that the conditions on which the
exemption order is based or passed are no longer valid, but it is only the
exemption order whose validity is saved, is required to be stated only for
being rejected. While canvassing such an argument the counsel lost sight
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of clause (c) of subsection (1) of Section 3 of the Repeal Act. If as a
condition for grant of exemption any payment has to be made to the State
Government, then, the repeal of the Principal Act was not to affect such
payment or condition under which the same is made. The insertion of the
words “as a condition for granting exemption” in clause (c) of subsection
(1) of Section 3 would demonstrate the legislative intent. If the payment
made to the State Government as a condition for granting exemption and
which may be incorporated in the exemption order is saved, then, there is
no warrant to exclude from the provision in question the validity of other
conditions in the exemption order. The entire order of exemption together
with the conditions subject to which it has been granted is thus saved.
That is because the Legislature was aware that the Principal Act was a
social legislation. That its misuse and abuse by some sectors resulting in
laudable social objective being not achieved that its repeal was
necessitated. However, despite the repeal the validity of the exemption
order or any action taken thereunder and notwithstanding anything to the
contrary in any order of the court has been expressly saved. That could
never have been inserted and merely to save the validity of the exemption
order on paper. The validity of the order is saved so as not to affect the
legal consequences of such valid order. To save them and the order as a
whole together with the conditions incorporated therein that Section 3(1)
(b) and (c) has been inserted in the Repeal Act. By that the State's powers
incidental and ancillary to the power to exempt can thus, be exercised
and despite the repeal. The exemption order, validity of which has been
saved, can, therefore, be enforced, so also, its terms and conditions. These
terms and conditions may have been incorporated simply to reaffirm that
the power to exempt which is conferred in the highest executive
functionary in the State, namely, Government is presumed to be exercised
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for public good and in public interest. The exercise of such powers is,
therefore, presumed to be bonafide and for achieving the object and
purpose for which it is conferred. It is with these presumptions and which
were always present to the Legislature that the validity of exemption
order has been saved. Having said that and also saving the payment or
monetary aspect related to the exemption, it was not necessary for the
Parliament to then spell out separately all the legal consequences flowing
from such valid order. Even otherwise, that there is no intention contrary
to what is spelled out by Section 6 of the General Clauses Act is,
therefore, apparent. There is no substance in the argument of the
Petitioners that only the exemption order is saved, but not its terms and
conditions and further by not referring to subsection (2) of Section 20
the State's power to withdraw the exemption is taken away by repeal of
the Principal Act. The argument is that the power to withdraw the
exemption in terms of Section 20(2) of the Principal Act conferred in the
State cannot be exercised because of repeal of the Principal Act. This
argument is premised on the fact that once the State Government
withdraws the exemption order the only consequence could be that the
excess vacant land vests in the State under Section 10(3) of the Principal
Act and that vesting cannot take place after repeal of the Principal Act.
55 In that regard if one notices Section 4 of the Repeal Act, that
would denote that the proceedings under Sections 11 to 14 of the
Principal Act are not affected by the abatement or the section in the
Repeal Act causing abatement of pending proceedings or proceedings
purported to be taken under the Principal Act. This itself throws light on
the intent of the Parliament in not completely and totally obliterating the
Principal Act. This itself shows that the Principal Act is not wiped out
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from the statute book totally. Thus, after the deemed acquisition and
vesting of the vacant land in the State if possession thereof is taken,
recourse to these sections is permissible despite the Repeal of the
Principal Act.
56 The fallacy in the above arguments can be demonstrated by
perusing Section 20 of the Principal Act. The difference in the language
in Section 19 and Section 20 is that Section 19 says that ChapterIII will
not apply to certain vacant lands whereas what Section 20 sets out is the
power to exempt the vacant land in excess of ceiling limit and which
power can be exercised by the State Government in cases covered by
clauses (a) and (b). That the said exemption can be withdrawn provided
the Government records a satisfaction that any condition subject to which
the exemption order is granted is not complied with by any person.
Therefore, a conditional order of exemption can be withdrawn on
reaching this satisfaction and conclusion. However, Section 20 does not
mandate withdrawal, but confers a discretion in the Government to
withdraw the exemption order after giving a reasonable opportunity to
such person of making a representation against the proposed withdrawal.
It is only when the power of withdrawal is exercised that the provisions of
ChapterIII will apply. The language of section is, therefore, clear
inasmuch as it is only when the exemption order is withdrawn that the
ChapterIII of the Principal Act applies to the excess vacant land. So long
as the exemption order is in force to protect its validity despite a contrary
court order a saving provision in the Repeal Act will have to be inserted.
The Legislature was aware that not only the terms and conditions of the
exemption order need to be enforced, but if that order is acted upon by
parties the validity as a whole must be saved. That needs to be saved so as
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to enable the State Government to apply the provisions of ChapterIII to
the excess vacant land covered by the exemption order and the terms and
conditions after it is noticed that the exemption is either misused or
misutilized or not acted upon so as to subserve the larger public interest.
A breach or violation of some of its vital conditions may result in its
withdrawal and cancellation. If one way of applying ChapterIII is by
withdrawing the exemption order, then, the power to withdraw the same
which is implicit and inherent in the power to grant exemption is also
saved and not affected by repeal of the Principal Act. That is because the
vacant land held by a person is undisputedly in excess of ceiling limit. The
power to exempt is exercised when a person holds the vacant land in
excess of ceiling limit. That such power can be exercised even after
declaration under Section 10(3) of the Principal Act is further undisputed.
57 In this backdrop if Section 20 is perused that confers a power
to exempt and it opens with a nonobstante clause, namely,
notwithstanding anything contained in any of the foregoing provisions of
this Chapter, namely, ChapterIII. The clause (a) of subsection (1) of
Section 20 refers to a person holding the vacant land in excess of ceiling
limit. If the State Government is satisfied suo motu or otherwise that
having regard to the location of such land, the purpose for which such
land is used or is proposed to be used and such other relevant factors as
the circumstances of the case may require and it is necessary or expedient
in the public interest to do so, then, the Government may, by order,
exempt, subject to such conditions as may be specified in the order, such
vacant land from the provisions of ChapterIII. Thus, what is required for
exemption firstly is that a person holds the vacant land in excess of ceiling
limit, satisfaction of the State Government suo motu or otherwise that
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having regard to the location of such land, purpose for which such land is
being or is proposed to be used and such other relevant factors as the
circumstances of the case may require, it is necessary or expedient in
public interest so to do. Upon such satisfaction the Government may by
order, exempt the vacant land from the provisions of ChapterIII by
making an order and which could be conditional. The word “Exemption”
means free from an obligation or liability. In Advanced Law Lexicon by
[Link] Iyer, 3rd Reprint 2007, the word “exempt” shows that a
person is put beyond the application of law. It means to give freedom
from liability, tax or duty like any exception. It is a privilege.
58 The argument of [Link] overlooks the position that
when the power of exemption has to be exercised notwithstanding
anything contained in any of the foregoing provisions of this Chapter,
namely, ChapterIII, then, even Section 10 is included therein. Therefore,
the land may have been notified in terms of subsection (3) of Section 10,
yet the holder of such vacant land and which is in excess of ceiling limit
can seek the Government’s intervention and invoke the powers conferred
in the State Government vide Section 20(1). Similarly, by clause (b) of
subsection (1) of Section 20 where any person holds the vacant land in
excess of ceiling limit and the State Government on its own motion or
otherwise is satisfied that the application of the provisions of Chapter III
would cause undue hardship to such person, that the Government may by
an order, exempt, subject to such conditions as may be specified in the
order, such vacant land from the provisions of this Chapter. However, the
proviso clarifies that no orders under this clause, namely, clause (b) shall
be made unless the reasons for the same are recorded in writing.
59 If the argument of [Link] is accepted, that would mean
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that the powers to exempt cannot be exercised when the land is already
vested in the State in terms of Section 10. That the power under Section
20(2) for withdrawal of exemption cannot be exercised after repeal of the
Principal Act, presupposes that exemption itself cannot be granted after
vesting takes place. [Link] and other counsel contend that effect of
withdrawal of exemption is to vest the vacant land in the State in terms of
Section 10 and after repeal that vesting is not possible or that even if the
land is vested the further steps cannot be taken. Thus, the argument is
premised on the basis that no application for exemption under Section 20
can be filed by a person who holds the vacant land in excess of ceiling
limit once it vests in the State. Precisely such an argument was canvassed
before the Honourable Supreme Court and rejected in the case of Special
Officer & Competent Authority, Urban Land Ceilings, Hyderabad v/s P.S. Rao
reported in AIR 2000 SC 843 (see paragraphs 6 to 10).
60 Therefore, once the power of exemption can be exercised
after the excess vacant land has vested in the State, then, equally the
power to withdraw the exemption can also be exercised in case of such
vacant land.
61 In the case of [Link] Clare Parreira v/s State of
Maharashtra reported in AIR 1996 SC 2553 this is what is held by the
Honourable Supreme Court:
“5. Having considered the respective contentions, the
question that arises for consideration is : Whether
publication of the notification under Section 10(3) of
the Act in the Gazette is in accordance with law? No
doubt, this question was not squarely put in issue before
the High Court in the manner in which Shri Naik and
Shri Bobde have posed before us. Having considered the
scheme of the Act, we find that there is no force in their
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contentions. It is true that Section 3 postulates that
except as otherwise provided in the Act, on and from the
commencement of the Act, no person shall be entitled to
hold any vacant land in excess of the ceiling limit in the
territories to which the Act applies under subsection (2)
of Section 3. Sections 6 to 10 prescribe the procedure for
determination of the excess urban land. Admittedly after
filing of statement, opportunity had been given they had
been heard and excess land over the ceiling limit had
been determined. Pursuant to the decision taken under
Section 10(1) of the Act, objections came to be filed
under Section 10(2) and objections also were considered
and an opportunity was given before their consideration
and objections came to be rejected. The question then is :
whether the competent authority has to await the
decision under Sections 20 and 21 before declaring and
publishing the excess land under Section 10(3) by a
notification in the Gazette. The scheme of the Act does
indicate that until the date of the publication in the
Gazette prescribing a date on and from which the excess
land stands vested in the State, the owner continues to
be the owner of the excess land and entitled to remain in
possession thereof. On publication of the notification
under Section 10(3) and after putting a date from
which the land stands vested in the State and after
publication of the notification in the Gazette and on and
from the date mentioned therein, the excess vacant land
stands vested in the State free from all encumbrances,
subject to the decision in appeal, if any, filed according
to law.
6. The previous owner stands divested of right, title
and interest in the land subject to the right to make
application provided under Sections 20 and 21. It is
difficult to accept the contention of the learned Counsel
for the appellants that the competent authority has no
power to have the notification under Section 10(3)
published in the Gazette until the application either
under Section 20 or 21 is disposed of. The very language
of Sections 20 and 21 and the exercise of the power
thereunder would arise only when the land stands vested
in the Government. The power of examination and
exemption would arise only when the Government
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becomes the owner and the erstwhile owner seeks to
obviate the hardships under Section 20 or to subserve
the housing scheme for weaker sections under Section 21
as envisaged thereunder. Thereat, the Government is
required to consider whether the proposals made by the
erstwhile owner for undertaking the scheme as envisaged
under Section 21 or hardships as envisaged under
Section 20 for exemption would merit consideration. In
this case, admittedly, the application under Section 20
came to be filed though that was suppressed before the
High Court and this Court and came to be dismissed
before notification under Section 10(3) of the Act was
published. It also appears, as stated earlier, that
application under Section 21 was filed on March 29,
1979, the date on which the appellants had filed the
writ petition in the High Court. It would, therefore, be
seen that the application came to be filed much after the
date of the vesting and publication of the notification
under Section 10(3) of the Act. The effect of the vesting
is not contingent upon filing an application for disposal
under either Section 20 or 21. We do not go into the
correctness of the order passed by the Government under
Section 21 for the reason that it would be open to the
Government and the Government have stated in their
order that they have already decided to allot the land for
another equally efficacious public purpose. Therefore, we
cannot sit over the decision taken by the Government
holding it illegal.”
62 Following this view and principle in a later decision reported
in Special Officer & Competent Authority, Urban Land Ceilings, Hyderabad
and others v/s P.S. Rao reported in AIR 2000 SC 843, the Honourable
Supreme Court held as under:
“6. In our view, it is only after the excess land is actually
determined under Section 10 that a person can know
the exact extent of excess land in his holding and
think of asking for exemption. There may, of course,
be some cases where the extent is so large that a
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claimant may be able to seek exemption even at the
time of filing the declaration but even in those cases,
he cannot be definite about the actual extent of excess
land.
7. Learned Counsel, however, relied upon the definition
of the words "to hold" in Subsection (1) of Section
(2) to contend that once the final declaration is made
and the excess vacant land has vested in the State, the
person does not 'hold' the excess land and no
application for exemption under Section 20 can be
filed since Section 20 contemplates filing an
application by a person who "holds vacant land in
excess of the ceiling area". Section 2(1) states:
“unless the context otherwise
requires,........ 'to hold' with its grammatical
variations, in relation to any vacant land means:
(i) to own such land; or
(ii) to possess such land as owner or as
tenant or as mortgagee or under an irrevocable power
of attorney or under a hire purchase agreement or
partly in one of the said capacities and partly in any
other of the said capacity or capacities.
8. The definition of the words "to hold" in Section 2(1)
is relevant at the time of computation of the ceiling
area and at the stage of the preliminary
determination of excess and the final determination,
under Sections 8 and 9 of the Act, the excess is to be
determined on the basis of the land permitted by the
Act to be held by a person.
9. But, the word "hold" in Section 20(1)(a) or Section
20(1)(b) cannot, in our opinion, have the same
meaning that can be attributed to it as in Section
2(1). The very definition in Section 2(1) states that
the subsection applies unless there is anything in the
context which suggests a different meaning to be
given. In our view, in the context of Section 20(1)(a)
and Section 20(1)(b), the definition given in Section
2(1) cannot be applied. The reason is that such a
construction will make Section 20 unworkable and
otiose. We have pointed out above that it is not
possible to make any meaningful application for
exemption under Section 20(1)(a) or (b) unless the
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exact quantum of excess is determined under Section
10 after following the various provisions of the Act
relating to statutory deductions and mode of
computation. If the contention of the State referred to
above is to be accepted, then the peculiar position will
be as follows. As stated by us, before the excess is
determined, a person will not able to seek exemption
because he does not know what is the actual excess
land held and once the excess is determined, he
cannot apply because he is not holding the excess
land. Thus, the entire object of Section 20 will be
frustrated. That is why we say that the definition of
the words to hold in Section 2(1) cannot be applied
in the context of Section 20(1)(a) or Section 20(1)
(b).
10. We are, therefore, unable to accept the contention of
the learned Counsel for the State that an application
for exemption can be maintained only before the
excess is determined under Section 10. In our view,
the scheme of the Act is to the contrary. The view
taken by the High Court following the decision of this
Court in T.R. Thandur v. Union of India, (1996) 3
SCC 690 : (1996 AIR SCW 1700 : AIR 1996 SC
1643), Darothi Clare Parreira (Smt.) v. State of
Maharashtra, (1996) 9 SCC 633 : (1996 AIR SCW
3179 : AIR 1996 SC 2553) and State of A. P.
represented by Secretary to Govt., Revenue
Department, Hyderabad v. Valluru Venkateswara
Rao, (1997) 3 Andh. LT 417 does not call for any
interference.”
63 Once this legal position is noticed we do not see as to how
absence of subsection (2) of Section 20 of the Principal Act in clause (b)
of subsection (1) of Section 3 of the Repeal Act would enable us to hold
that the power to withdraw the exemption is not saved. It is possible that
the power to withdraw the exemption may not be exercised in every case.
However, when the State exercises the power to exempt the vacant land
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in excess of ceiling limit and which has already vested in it, then, there is
no impediment in withdrawing the exemption from applicability of
ChapterIII of the Principal Act in the case of such lands. The legal
position, therefore, cannot be otherwise than what is held in the decisions
of the Honourable Supreme Court and referred by us above and both of
which have been rendered after the judgment in the case of [Link]
v/s Union of India reported in (1996) 3 SCC 690. The argument of the
learned Senior Counsel is that it would be inconsistent and contrary to
the legislative intent if we hold that the power to withdraw the exemption
conferred vide Section 20(2) of the Principal Act is saved despite the
repeal. That would mean that possession of such lands can be taken post
vesting and that is permissible even after repeal of the Principal Act. The
argument is that it would be incongruous and even absurd to hold that
the power to take possession conferred vide Section 10(5) and 10(6) of
the Principal Act is saved despite repeal of the Principal Act. It is urged
that same would make clause (a) of subsection (1) of Section 3 of the
Repeal Act wholly redundant and even meaningless. We must at once
clarify that clause (a) of subsection (1) of Section 3 of the Repeal Act is
not dealing with only exempted lands. It is dealing with all excess vacant
lands and which are subject matter of the declaration under Section 10(3)
of the Principal Act. Their vesting will not be affected only if possession
thereof is taken. Thus, clause (a) itself clarifies that the vesting of such
lands would not be affected by repeal if their possession is taken. That
only means that the Legislature was fully aware of the legal consequences
of declaration under Section 10(3) of the Principal Act. That provides for
deemed acquisition of the excess vacant land and their vesting in the
State free from all encumbrances. They vest accordingly, but since
possession thereof has not been taken that the Repeal Act enacts a
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provision whereunder these lands can be restored to any person provided
he complies with subsection (2) of Section 3 of the Repeal Act. In the
case of the lands which are subject matter of a valid exemption order and
validity of which is not affected even by any court's order to the contrary
and equally any action taken thereunder is not affected by repeal of the
Principal Act and is saved though the same may not have been upheld by
the Court, then, the intent and purpose is not to allow any person holding
the excess vacant land and which is already vested in the State to escape
the legal consequences resulting from the order of exemption. If that
order is passed in order to subserve public interest and to uphold it and to
relieve undue hardship, then, such an order of exemption which may be
conditional visits the person with consequences. It is not an absolute right
or privilege as is claimed. It may be a conditional exemption. It may allow
the person to use the land for the stated purpose, but that is not relieving
him or the land from the condition or obligation imposed by Law and
equally any liability. It is not an advantage or benefit, if at all, which could
be enjoyed absolutely. It is to fulfill the object or purpose of the user and
to act in public interest or to avoid undue hardship. The applicability of
Chapter III being expressly admitted, but seeking to avert the
consequences of such applicability in exceptional circumstances that the
request to exempt is considered and granted. The power in that behalf is
to be exercised sparingly and as an exception. It is not a rule. It is a
corresponding right of the State and to be exercised to uphold larger
Public Interest. Thus, it is not a one sided right or privilege. It is not
relieving the person from the legal consequences of the power to exempt
and more so, if it is a conditional order. It is to safeguard public interest
that such power is exercised and in a given case conditionally. If relieving
somebody on account of his hardship or exempting the vacant land for a
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specific purpose by holding in abeyance the applicability of provisions of
ChapterIII is the aim, then, that person cannot claim benefit or
advantage in himself much less in absolute terms. It is a relief granted to
relieve him from undue hardship caused by applicability of the provisions
of ChapterIII. If that power under clause (b) of subsection (1) of Section
20 is exercised subject to such conditions, as can be imposed by the State
bearing in mind the object and purpose of the Principal Act and if they
are specified in the order, then, that can hardly be said to be an absolute
right or privilege. That is a relief together with or appended with an
obligation and liability. If that is incurred at the time of exercise of power
of exemption, then, the Government can very well enforce the power to
exempt by withdrawing the said order and equally without withdrawing it
enforce the terms and conditions therein despite the repeal. It is for that
purpose that clause (b) of subsection (1) of Section 3 is enacted. That is
also recognition of the legal position that by exempting something from
the provisions of an Act it is always understood that one is subjected to
the Act or law. It is applicable but the exemption means one does not
suffer the legal consequences so long as the exemption is operative.
64 The Legislature was aware that the excess vacant land may
have been exempted bearing in mind its location and the purpose for
which it is being used or proposed to be used. Clause (a) of subsection
(1) of Section 20 is the power to exempt the excess vacant land from
applicability of the provisions of ChapterIII and same is exercised
because it is necessary and expedient in public interest to do so.
Therefore, it is futile to urge that a person holding any vacant land in
excess of ceiling limit derives advantage or benefit when such power is
exercised by the State qua the excess vacant land or vacant land in excess
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of the ceiling limit, more so conditionally. Once the nature of the power is
borne in mind, then, we do not see how repeal of the Principal Act will
not save, but will affect the exercise of all powers and as we have held
above which are incidental and ancillary to the main power of granting
exemption. Thus, the conclusion can be reached and safely that the State
exempts the vacant land in excess of ceiling limit from applicability of
ChapterIII of the Principal Act in public interest in terms of clause (a) or
bearing in mind the undue hardship caused to the person holding it
exempts it from applicability of the same Chapter and in both events if
the power is exercised also to pass a conditional order or grant
conditional exemption, then, the right, if any, created in relation to such
land in favour of the person holding it is not absolute and it is conditional
upon fulfillment of the obligations and liabilities attached to it. If these
conditions are not satisfied, but rather breached and violated, then, the
State's power to withdraw the exemption survives the repeal of the
Principal Act in all cases including where the power to exempt under
Section 20(1) of the Principal Act is exercised post vesting of the lands in
the State. It will also survive in those cases where the power is exercised
so as to exempt the excess vacant land in terms of the same provision, but
in relation to which the unconditional or conditional exemption order is
still in force and not withdrawn. In either events the State can proceed
despite repeal of the Principal Act because that power of the State
survives the repeal. That power survives because despite the repeal the
State can enforce the exemption orders as the persons holding such lands
do not derive or get an absolute right or advantage or benefit and that is
subject to the liabilities and obligations incurred by them. These survive
the repeal of the Principal Act because had the intent was not to so
protect or save, the Parliament would not have saved the validity of the
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exemption order or any action taken thereunder. Any action taken
thereunder is also valid together with the exemption order more so if the
action contemplates ensuring compliance with certain terms and
conditions of the exemption order such as obtaining open spaces and
amenities for the public, dwelling units so as to subserve larger public
interest. We cannot and do not intend to exhaust the power of the State
to enforce its order passed under Section 20(1)(a) and (b) of the
Principal Act in the light of the Repeal Act. Further, the nature and ambit
of the conditions may be such that their noncompliance and breach,
beyond a certain period and intentionally would visit the person with
either withdrawal of the exemption itself or any other penalty/ damages
in addition to complying with the terms and obligations. Such obligations,
liabilities and conditions voluntarily incurred and invited cannot be said
to be invalid or inoperative. They bind the parties. If the State can call
upon the person concerned to handover the tenements and units meant
for either weaker section or its nominees to it or to comply with other
such obligation and liability by legally permissible modes of compliance,
then, all such steps and measures survive the repeal and can be initiated
and taken to their logical end.
65 The order of exemption under Section 20(1) remains valid
would mean that a person continues to hold the vacant land in excess of
ceiling limit and to which none of the provisions in ChapterIII apply.
ChapterIII confers some rights in the holder of excess vacant land as well.
Those also cannot be exercised because the exemption order is valid and
continues to be so despite the repeal. Nothing is gained by such a
situation where the excess vacant land being exempted from the
provisions of ChapterIII so as to permit the usage of the land by the
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holder or retain it as an exception, but neither the State being able to
enforce the conditions if any subject to which exemption is granted or to
withdraw the said exemption. Equally, the effect of the repeal being to
save the validity of the order granting exemption under Section 20(1) or
any action taken thereunder, the person in whose favour such exemption
is granted will not be able to do anything in relation to such vacant land
which except for the exemption may have vested already in the State by
virtue of Section 10(3). He then cannot move the State and seek any
payment for acquisition and vesting. Hence, when the Legislature had in
mind the saving clause as is carved out by section 3(1)(b) and (c), its
intent was not to take away any of the powers conferred in the State nor
exclude applicability of the provisions of ChapterIII of the ULC Act to
such an extent as would make it impossible for the person to seek
payment in terms of Sections 11 to 14 or to seek enforcement of such
conditions which are reciprocal and which are to be performed by both.
Just as the State would be unable to enforce the conditions on which
exemption is granted, equally the members of the public or person
holding the excess vacant land would not be able to enforce the
conditions which are incorporated therein so as to protect their interest.
Such situation can never be envisaged by the Parliament. Such situation
being created would render all the provisions of the Repeal Act
redundant. The intent as is clear from a harmonious reading of the Repeal
Act and in the backdrop of the aims and objects of the Principal Act is to
save the applicability of the provisions contained in ChapterIII to the
excess vacant lands which are subject matter of exemption under Section
20(1). Section 3(1)(a) covers a situation where there is no exemption
order passed under Section 20(1)(a) and (b). That covers the vacant
lands which are not subject matter of any order of exemption or such
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order being not in force on the date of the Repeal Act and in regard to
which the provisions contained in ChapterIII were always applicable.
Therefore, if the State does not complete the action in relation to these
lands by taking possession thereof, their mere vesting and deemed
acquisition by virtue of Section 10(3) is not saved. Section 3(1)(b) deals
with a separate and distinct situation and that is applicable to the lands
which are vacant and in excess of ceiling limit and in relation to which
the order of exemption under Section 20(1) has been passed. The
applicability of ChapterIII in relation to such lands is, thus, ruled out and
so long as the exemption order is in force. If the order of exemption is
withdrawn the ChapterIII becomes applicable and all consequences
would follow.
66 We must at once note that way back in the year 1990 in the
decision in the case of M/s Shantistar Builders v/s Narayan Khimalal
Totame reported in AIR 1990 SC 630, a Three Judge Bench of the
Honourable Supreme Court had framed the guidelines so as to enable
construction over the exempted lands covered under Section 20 of the
Principal Act. That is to ensure compliance with the constitutional
mandate of shelter and guaranteed vide Article 21 of the Constitution of
India. In that decision, the Honourable Supreme Court held as under:
“5. Both Subsections 20 and 21 contain provisions that
if Government or the competent authority, as the case
may be, is satisfied that any of the conditions subject
to which exemption was granted is not complied with,
it shall be competent for it to withdraw the order
under Section 20 or declare such land to be excess
land under Section 21 and bring it within the
mischief of the statute.
6. In the instant case on January 11, 1978, on the basis
of an application made on 24th October, 1987, the
State Government made an order of exemption, the
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salient portions of which are extracted for
convenience:
GOVERNMENT OF MAHARASHTRA
NO. HWE1077/XXXV
GENERAL ADMINISTRATION DEPARTMENT,
MANTRALAYA, BOMBAY400032.
11TH JANUARY, 1978.
ORDER
WHEREAS (1) Shri Kumarpal Vadilal Shah (2)
Shri Navinchandra Vadilal Shah (3) Smt.
Champaben w/o Vadilal Shah (4) Shri Vasantlal
Vadilal Shah (5) Shri Babulal Vadilal Shah (6) Smt.
Pushpa Mangaldas Shah (7) Smt. Nirmala Hiralal
Shah (8) Smt. Shakuntala Tansukhlal Parekh and
(9) Smt. Madhuabala Vadilal Shah (persons at Sr.
Nos.2 to 9 by their Constituted Attorney Shri
Kumarpal Vadilal Shah), 26, Suneel Shopping center,
Opp. Navrang Talkies, Andheri (West), Bombay
400058, hold vacant lands in excess of the Ceiling
Limit in the Greater Bombay Urban Agglomeration,
details of which are given in the Schedule 'A' herein:
AND WHEREAS the said persons have applied
for exemption under Section 20 of the Urban Land
(C.& R. ) Act, (33 of 1976).
AND WHEREAS, the said persons have
mentioned in their application, that their Scheme of
construction of houses for Weaker Section will be
executed by them, through Messers STAR BUILDERS,
302, Sharda Chambers, 15 New Marine Lines,
Bombay 20.
NOW THEREFORE, in exercise of the powers
conferred by Subsection (1) of Section 20 of the said
Act, after having recorded in writing the reasons for
making this Order, the Government of Maharashtra
hereby exempts the said vacant lands, from the
provisions of Chapter III of the said Act, subject to the
following conditions viz.:
1) The lands exempted under this exemption order
shall be used by the said persons for the purpose of
housing for weaker section comprising 1700
(seventeen thousand) tenements consisting of 3,000
(three thousand) tenements of plinth area, not
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exceeding 20.00 sq. metrs., 10,000 (ten thousand)
tenements of plinth area, not exceeding 30.00 sq.
metrs., 3,000 (three thousand) tenements of plinth
area, not exceeding 44.00 sq. mtrs. and 1,000 (one
thousand) tenements of plinth area, not exceeding
57.00 sq. mtrs. Any change made in the user of the
land shall amount to a breach of this condition.
2) The said persons shall make full utilization of the
land so exempted for the purpose aforesaid, by
constructing on the land the 17,000 tenements as
specified in the condition No. 2 above. The said
persons shall commence construction of the tenements
within a period of one year from the date of this
exemption order and shall complete the construction
work within a period of five years from that date,
failing which the exemption shall stand withdrawn. If
only a part of land is utilized and a part remains
vacant at the end of period of five years, exemption
shall be deemed to have been withdrawn.
3) The final selling price, all inclusive of each of the
dwelling units shall not exceed Rs.50/ (Rs. fifty only)
per sq. ft. of plinth area. Each tenement is to be
provided with all the amenities as mentioned in the
Schedule 'B' attached to this Order and as mentioned
in the State Government Scheme, announced on 2nd
October, 1977 for construction of houses for Weaker
Sections of Society on surplus vacant land by the land
holder. The details of construction shall not be
inferior to those already mentioned in the
application. The actual construction and the quality
of construction, will be subject to the building
regulations of the local authorities, and subject to
such other conditions as may be imposed, by the
Collector of Thane, Town Planning Authority and the
B.M.R.D.A and other Statutory Regulation.
4) to 6) ....
7) The said persons shall not transfer the exempted
lands (with or without buildings thereon) or any part
thereof to any other persons, except for the purpose of
mortgage in favour of any financial institution,
specified in Subsection (1) of Section 19 of the said
Act, for raising finances for the purposes of
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construction or any one of the tenements mentioned
above. Breach of this condition shall mean that the
exemption granted under this Order stands
withdrawn.
8) & 9) ....
10) The construction work under the scheme, will be
further subject to all other conditions incorporated in
the Scheme of Weaker Section Housing announced by
the State Government on 2nd October, 1977 and
subject to such other conditions as may be imposed by
the local authorities, Collector of Thane, Town
Planning Authorities and the B.M.R.D.A.
11) If at any time, the State Government is satisfied
that there is a breach of any of the condition
mentioned in this Order, it shall be competent for the
State Government by order to withdraw the
exemption from the date specified in the Order:
7. ….....
8. ….....
9. Basic needs of man have traditionally been accepted
to be threefood, clothing and shelter. The right to life
is guaranteed in any civilized society. That would take
within its sweep the right to food, the right to
clothing, the right to decent environment and a
reasonable accommodation to live in. The difference
between the need of an animal and a human being
for shelter has to be kept in view. For the animal it is
the bare protection of the body; for a human being it
has to be a suitable accommodation which would
allow him to grow in every aspect physical, mental
and intellectual. The Constitution aims at ensuring
fuller development of every child. That would be
possible only if the child is in a proper home. It is not
necessary that every citizen must be ensured of living
in a well built comfortable house but a reasonable
home particularly for people in India can even be
mudbuilt thatched house or a mud built fireproof
accommodation.
10. With the increase of population and the shift of the
rural masses to urban areas over the decades the
ratio of poor people without houses in the urban
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areas has rapidly increased. This is a feature which
has become more perceptible after independence.
Apart from the fact that people in search of work
move to urban agglomerations, availability of
amenities and living conveniences also attract people
to move from rural areas to cities. Industrialisation is
equally responsible for concentration of population
around industries. These are feature which are
mainly responsible for increase in the homeless urban
population. Millions of people today live on the
pavements of different cities of India and a greater
number live animal like existence in jhuggis.
11. The Planning Commission took note of this situation
and was struck by the fact that there was no
corresponding rise in accommodation with the growth
of population and the shift of the rural people to the
cities. The growing realisation of this disparity led to
the passing of the Act and acquisition of vacant sites
for purposes of housing. Considerable attention has
been given in recent years to increasing
accommodation though whatever has been done is
not at all adequate. The quick growth of urban
population overshadows all attempts of increasing
accommodation. Sections 20 and 21 of the Act vest
power in the State Governments to exempt vacant
sites from vesting under the Act for purposes of being
taken over if housing schemes are undertaken by
owners of vacant urban lands. Section 21 specifically
emphasis upon weaker sections of the people. That
term finds place in Article 46 of the Constitution and
Section 21 uses the same language. 'Weaker sections'
have, however, not been defined either in the
Constitution or in the Act itself. An attempt was made
in the Constitution Assembly to provide a definition
but was given up. Attempts have thereafter been
made from time to time to provide such definition but
on account of controversies which arise once the
exercise is undertaken, there has been no success. A
suggestion for introducing economic criterion for
explaining the term was made in the approach to the
Seventh Five Year Plan (19851990) brought out by
the Planning Commission and approved by the
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National Development Council and the Union
Government. A lot of controversy was raised in
Parliament and the attempt, was dropped. In the
absence of a definition perhaps a proper guideline
could be indicated but no serious attention has been
devoted to this aspect.
12. Members of the Scheduled Castes and Scheduled
Tribes have ordinarily been accepted as belonging to
the weaker section. Attempt to bring in the test of
economic means has often been tried but no guideline
has been evolved. Undoubtedly, apart from the
members of the Scheduled Castes and Scheduled
Tribes, there would be millions of other citizens who
would also belong to the weaker sections. The
Constitution maker intended all citizens of India
belonging to the weaker sections to be benefited when
Article 46 was incorporated in the Constitution.
Parliament in adopting the same language in Section
21 of the Act also intended people of all weaker
sections to have the advantage. It is, therefore,
appropriate that the Central Government should
come forward with an appropriate guideline to
indicate who would be included within weaker
sections of the society.
13. In recent years on account of erosion of the value of
the rupee, rampant prevalence of black money and
dearth of urban land, the value of such land has gone
up skyhigh. It has become impossible for any
member of the weaker sections to have residential
accommodation anywhere and much less in urban
areas. Since a reasonable residence is an
indispensable necessity for fulfilling the Constitutional
goal in the matter of development of man and should
be taken as included in 'life' in Article 21, greater
social control is called for and exemptions granted
under Sections 20 and 21 should have to be
appropriately monitored to have the fullest benefit of
the beneficial legislation. We, therefore, command to
the Central Government to prescribe appropriate
guidelines laying down the true scope of the term
'weaker sections of the society' so that everyone
charged with administering the statute would find it
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convenient to implement the same.
14. Respondents who claim to belong to weaker sections
of the society maintain that they are entitled to
allotment of 262 plus 558 flats. It is true that
initially the claim was for a smaller number but the
number has gone up when further petitions were filed
before the High Court. There is, perhaps, some basis
in the objection of the builders as also the stand taken
by the State Government before us that the
respondents' claim should undergo in depth scrutiny.
We direct that the genuineness of the claim should be
scrutinised in accordance with the guidelines which
shall now be indicated but in the event of the claims
being found tenable, the builders shall have a
direction to provide accommodation in terms of the
scheme for those who are found to be acceptable. To
ensure implementation of this direction the builders
are called upon not to make any commitment or
allotments for flats until the claims of the 1420
applicants are scrutinised and allotment of
accommodation for such number of persons as are
found entitled is provided.
15. We shall now proceed to deal with the guidelines. The
Government of Maharashtra by the Resolution No.
WLC1090/3422 (D XIII) in the Housing and
Special Assistance Department have laid down the
guidelines. We shall refer to the preamble and some of
the provisions thereof. The preamble indicates:
“Close and effective monitoring of the
implementation of weaker sections housing schemes
sanctioned under Sections 20 and 21 of the Urban
Land (Ceiling & Regulation) Act, 1976, is one of the
most important duties of the competent authorities
who have been entrusted with the task of
implementing the Urban Land Ceiling Act, 1976, in
the nine urban agglomerations in Maharashtra, viz.
Bombay, Pune, Thane, Ulhasnagar, Kolhapur,
Solapur, Sangli, Nasik and Nagpur. Competent
authorities are required to ensure that construction of
flats for the weaker sections of the society on land
exempted under Sections 20 and 21 is completed
within the timeframe stipulated in the exemption
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order. They are also required to ensure that the terms
and conditions of the exemption order such as issue of
advertisements, giving particulars of the schemes, sale
of fiats at the prices approved by government, sizes of
flats, noneligibility of persons who already own a
dwelling unit in the same urban agglomeration to
purchase a flat from such schemes, handing over of
land affected by development plan, reservations to the
planning authority etc. are all complied with.
Physical implementation of Weaker sections housing
schemes in Maharashtra is one of the important
issues on the agenda at the meetings of competent
authorities convened by the Housing Department
periodically. General and special instructions
regarding effective monitoring of implementation of
the housing schemes are given to competent
authorities in such meetings. Government of
Maharashtra have carefully considered the
importance attaching to close and effective
monitoring of the implementation of weaker sections
housing schemes and is now pleased to direct by way
of codification of earlier instructions on the subject
that competent authorities should ensure that the
following instructions are scrupulously complied
with....”
16. After this preamble, 16 paragraphs in what has been
named as the Code and a copy of this Code is
appended to the judgment as annexure for
convenience indicate the guidelines.
17. We are of the view that allotment shall be on the
basis of 'one family one flat' and the family shall
include husband, wife and dependent children. A
family which has one flat in any urban
agglomeration within the State shall not be entitled
to allotment or acquisition by transfer of a flat under
this Code.
18. Government nominees contemplated under the Code
must belong to weaker sections of the society and
shall also be subjected to the rule of one family one
flat. The number of Government nominees should not
exceed 5% of the total accommodation available in
any scheme.
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19. Every builder shall maintain a register of applicants
chronologically registering them on the basis of the
date of receipt of the applications. The register should
be uptodate and available for inspection by the
authorities. As and when an application is received by
the builder an appropriate receipt acknowledging
acceptance of such application shall be issued to the
applicant and in such receipt, the number in the
Application Register shall be clearly indicated.
Simultaneously, a copy of the application with its
number shall be sent by the builder to the Committee
for its record.
20. As a working guideline we direct that a 'means test'
for identifying 'weaker sections of the society shall be
adopted and for the present income of the family of
the applicant must not exceed Rs. 18,000/ (eighteen
thousand) to come within the meaning of the term to
qualify for allotment. The applicant shall be called
upon to satisfy the Committee about the limit of
income and the present prescription of Rs. 18,000/
may be varied from time to time by the State
Government taking into consideration the fall of the
value of the rupee, general improvement in the
income of the people now within the annual income
limit of Rs. 18,000/ and other relevant factors. It
shall be open to the State Government to prescribe
appropriate guideline in the matter of identifying the
'weaker sections of the society'.
21. 'Competent authority' has been defined in Section
2(9) of the Act. From the Code it appears that he is
an officer subordinate to the Collector of the District
so far as the State of Maharashtra is concerned as an
appeal is contemplated from his orders to the
Collector. The duties and responsibilities and powers
vested in the competent authority under the Code are
wide and considerable. We are of the opinion
(without in any way casting any aspersion) that it
would be difficult for the competent authority to
exercise efficiently and to the satisfaction of everyone
the duties cast upon him under the Code. In the
matter of implementation of the scheme and with a
view to providing satisfactory execution thereof and
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fulfilling the laudable purpose stipulated under the
Act and undertaken by the scheme, it is necessary that
there should be a committee in respect of the schemes
in every urban agglomeration for weaker sections
sanctioned under Sections 20 and 21 of the Act for
overseeing the implementation of every scheme,
particularly in the matter of due compliance of the
conditions under which exemption is granted, timely
construction of the flats, appropriate advertisement as
contemplated, registration of the applications in
response to advertisements in a systematic manner,
appropriate allotment of flats including priorities on
the basis of registration, ensuring legitimate charges
only being demanded and monitoring strict
compliance to avoid underhand dealing or any unjust
treatment. It should be handled by the competent
authority in a committee consisting of himself, a
judicial officer not below the rank of an Additional
District Judge and a Government engineer not below
the rank of Superintending Engineer. In the
committee, the judicial officer shall function as the
Chairman.
22. This Committee shall have powers to scrutinise all
relevant documents and give appropriate directions to
the builders and applicants keeping the requirements
of the schemes and the Code in view. To the extent we
have indicated the powers conferred on the competent
authority in terms of the State Code shall stand
vested in the committee. The Bombay High Court
shall take steps to ensure that in respect of schemes in
every agglomeration undertaken and which the State
Government may in future undertake, the services of
an efficient judicial officer not below the rank of an
Additional District Judge on such terms as the State
Government and the High Court consider appropriate
shall be made available for discharging the duties
indicated and/or as may be provided. We would like
to impress upon every Committee that fulfilment of
the laudable purpose of the providing a home to the
poor homeless depends upon its commitment to the
goal and every effort should be made by it to ensure
that the builder does not succeed in frustrating the
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purpose. The State Government shall suitably modify
its Code in the light of this judgment and recirculate
the same to all concerned within four weeks from
today.”
67 A further order in terms of the guidelines formulated above
has been passed by the Honourable Supreme Court in the year 1995 and
to be precise on 17.11.1995. That order is reported in (1996) 1 SCC 233
(Shantistar Builders v/s Narayan Khimalal Totame). Therefore, the Scheme
formulated by the Honourable Supreme Court is in place. This order reads
thus:
“1. This Court by its judgment in Shantistar Builders v.
Narayan Khimalal Totame, while disposing of the
matter directed in paragraphs 21 and 22 the State
Government to constitute a committee for monitoring
allotment of the houses to the weaker sections, as per
the scheme sanctioned while exempting the Urban
land under Section 21 of the Urban Land (Ceiling &
Regulation) Act, 1976 (for short "the Act"). One of the
members of the committee suggested was Additional
District Judge. The Bombay High Court was requested
to ensure that an Additional District Judge be made
available for enforcing the schemes in every
agglomeration, so that the Committee constituted by
the State Government would effectively implement the
schemes. This Court also impressed upon every
Committee to ensure fulfilment of the laudable
purpose of providing a home to the poor homeless to
effectuate its commitment to the constitutional goal
and that every effort should be made by it to ensure
that the builder does not succeed in frustrating the
purpose. The State Government should suitably
modify its scheme in the light of the judgment
rendered in Shantistar Builders case and recirculate
the same to all concerned within four weeks from the
date of the judgment.
2. The State had filed an affidavit on March 30, 1990,
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seeking certain modification or clarifications of the
order. One of the modifications sought was that under
the Act, the Deputy Commissioner is the competent
authority and an appeal was provided under the Act,
except for Bombay and Pune, to the Additional
Commissioner. For Pune and Bombay, the
Commissioner would deal with the same. If the
Additional District Judge was to supervise the
functioning of the allotment as per the scheme
sanctioned under Section 21 of the Act, it would be
inconvenient to the appellate authority to consider the
scheme under the Act.
3. The entire thinking of the Government is wholly
misconceived. The Committee had nothing to do with
the provisions of the Urban Ceiling Act. After the
exemption under Section 20 or 21 is granted, the
Committee is required to implement the scheme in
terms of the sanction made by the Government for
construction of buildings by the builders and
allotment to weaker section people. This Court
intended to ensure that the builders would abide by
the guidelines laid down by this Court in the light of
the judgment. The Committee would supervise the
allotment of the houses to the homeless weaker
section people in the light of the guidelines laid down
therein. The State Government was also directed to
recirculate the revised schemes in the light of the
above judgment. In the circumstances, the question of
the Commissioner sitting in an appeal over the
working of the Committee does not arise.
4. It is submitted that the taking away of the
discretionary power of the Government in allotment
of the houses is not justified. We do not propose to
modify our earlier direction. The Government is
directed to comply with the Constitution of the
Committee within 30 days from the date of the receipt
of this order, since the same has already been delayed
for more than five years from the date of the
judgment constituting the committee.”
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68 We have not been shown anything which would counter to
this, but the attempt is to orally demonstrate that all this does not survive
the repeal.
69 We have already referred to as to how the schemes devised
for the purposes of ensuring compliance with the exemption orders may
be at various stages of implementation. There are several conditions and
which may have been varied from time to time so as to achieve the object
of exemption. Since the exemption under clause (a) of subsection (1) of
Section 20 of the Principal Act is to be granted bearing in mind the
location of land, the purpose for which it is being used or proposed to be
used and such other relevant factors so also it is necessary and expedient
in public interest that the Government devised several schemes and
embodied in the circulars and Government Resolutions. Some of the
clauses in such schemes presented difficulties and which were resolved by
the Honourable Supreme Court. Now the schemes have become part of
the orders of the Honourable Supreme Court. These are not orders to the
contrary as envisaged by Section 3(1)(b) of the Repeal Act rather they are
in consonance with the power to exempt and carry it further. If such
orders are in place and the scheme is under various stages of
implementation, then, the repeal of the Principal Act will not in any
manner prevent the Government from enforcing the conditions and
ensuring compliance with the obligations undertaken by the Developers
and Builders.
70 The arguments of the Petitioners to the contrary do not take
note of any of the above aspects. Even if one proceeds on the footing that
the intent of the Parliament was not to save several other provisions, but
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that does not mean that what is saved by the Repeal Act or what will not
be affected by repeal of the Principal Act is exhaustive. [Link] places
reliance upon Sections 21 and 22 of the Principal Act and submits that
these provisions have not been saved, but his argument overlooks the fact
that Section 21 is a provision whereunder a person holding the vacant
land in excess of ceiling limit comes forward and declares in the
prescribed manner before the competent authority that such land is to be
utilized for construction of dwelling units of the size specified therein and
for accommodation of weaker sections of the society in accordance with
the scheme approved by such authority and then that land on inquiry is
not to be treated as excess for the purpose of the Chapter. That is
permission to such holder to continue to hold such land for the purpose
aforesaid. That is also conditional upon interalia time to complete the
construction. However, merely because this provision is not inserted in
the Repeal Act ipsofacto will not mean that subsection (2) of Section 20
of the Principal Act is not saved. Section 20 is a power to exempt and
while exercising that power the Government cannot declare that the
excess vacant land will not be treated as excess. Rather the foundation on
which the power to exempt is exercised is that the land is vacant and in
excess of the ceiling limit and the holder is aware and admits this
position. Therefore, Sections 20 and 21 of the Principal Act operate in
separate fields. Similar is the case with Section 22 where the vacant land
is allowed to be retained under certain circumstances. Therefore, if
retention for specified purpose as contemplated by Section 22(1) is where
there is a building on the land held by the holder of the vacant land, but
that building is demolished by him or demolished or destroyed solely due
to natural causes and beyond the control of human agency and as a
consequence thereof, then, in the circumstances set out in subsection (1)
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of Section 22 the vacant land can be retained. Once again this provision
cannot be equated with Section 20 and would operate in a different field.
We need not repeat that the purpose to exempt the excess vacant land is
for the reason that the land is located in a peculiar place or location and
that the purpose for which it is being or is proposed to be used and such
other relevant factors may make it necessary or expedient in public
interest that the Government can exercise its discretionary power to
exempt and not otherwise. One of the user or proposed user could be
construction of tenements for the weaker or deprived sections of the
society or handing over of constructed tenements or units to the
Government nominees so as to enable the Government to mitigate
hardship caused to such nominees. The Totame's case (supra) dealt with
such nominees as well. Therefore, the laudable object and purpose being
borne in mind it is apparent that in exceptional cases and in public
interest the power to exempt is exercised and not as a matter of course.
71 The arguments of the Petitioners' counsel overlook the
fundamental aspect that the vacant land in excess of ceiling limit has to
be reckoned with effect from the date of commencement of the Act and as
far as the State of Maharashtra is concerned that is 17.02.1976. In a Full
Bench decision of this Court reported in AIR 1984 Bombay 122
Prabhakar Narhar Pawar v/s State of Maharashtra, the Full Bench held as
under:
“11. There is no dispute that the vacant land has to be
determined with reference to the date of
commencement of the Act and the relevant date is
17th February, 1976. So far as Subclause (I) is
concerned, the question as to whether construction of
a building is or is not permissible according to the
building Regulations has to be determined with
reference to 17th February, 1976. We have already
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referred to the definitions of the words "building
Regulations", which mean Regulations contained in
the master plan, and the meaning of the expression
"master plan" is also given in the Act itself in S. 2(h)
and it means, in relation to an area within an urban
agglomeration or any part thereof, the plan prepared
under any law for the time being in force or in
pursuance of an order made by the State Government
for the development of such area or part thereof and
providing for the stages by which such development
shall be carried out. Now, when a question arises as to
whether construction of a building is not permissible
under the building Regulations in force, it is possible
that there may be an absolute ban or prohibition
under the relevant master plan where under no
circumstances construction of building is possible on a
given piece of land. Such piece of land may have been
reserved for a purpose and on such reservation
construction of a building would not at all be
permissible. But, when we come to an instance like
the present one in which there is an open plot of land
which is admittedly a house site on which a building
could be constructed, it is difficult to see how any part
of the land can be excluded under Subclause. (I) of S.
2(q) on hypothetical considerations. Section 3 of the
Act and the procedural provisions thereof which are
intended to implement the provisions of the said
section contemplate the determination of the quantum
of vacant land on facts as they exist on the date of
commencement of the Act. Therefore, in a given case
where the owners of a land claims that certain land
which is owned by him should be excluded on the
ground that construction of a building is not
permissible under the building Regulations in force, it
is obvious that he will have to show that the building
regulations are attracted in his case. For a person,
who, on the commencement date, never even intended
to construct any building on his land or for a person
who has not even submitted a plan for construction of
any building, the relevant building Regulations are
wholly irrelevant and he is not affected by the
building Regulations. It appears to us that when sub
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clause (I) refers to land on which construction of a
building is not permissible under the building
Regulations, it was contemplated that on the date of
commencement of the Act, that is, 17th February,
1976, the owner intended to construct a building on
the plot in question and the plan of the building was
either already sanctioned or he had submitted the
plan for sanction. Where a building plan is already
sanctioned and such sanctioned plan is operative on
17th February, 1976 or a plan has already been
submitted for sanction, it could be ascertained with
certainty as to how much land could be identified as
land on which construction of a building is not
possible. Subclause (I) of S. 2(q) does not, in our
view, contemplate a general exclusion of land from the
purview of the Act to the extent of twothirds or one
half or whatever may be the extent of land on which
no building can be constructed under the relevant
building Regulations in force in the area under
consideration irrespective of whether a building is
proposed to be constructed or not on the date of
commencement of the Act. …........”
72 This decision in Prabhakar Pawar's case (supra) has been
specifically approved by the Honourable Supreme Court in the case of
State of Gujarat v/s Parshottamdas Ramdas Patel reported in AIR 1988 SC
220. The arguments of the learned Senior Counsel appearing for the
Petitioners in this case overlook the fact that when there is ceiling placed
on holding of vacant lands and such lands which are vacant, but in excess
of ceiling limit vest in the State, then, it would be futile to urge that the
exemption confers an absolute right or privilege. If the exemption is a
privilege as is held in the case of Southern Petrochemical Industries
Company Limited v/s Electricity Inspector and E.T.I.O. reported in AIR
2007 SC 1984 and it is further held by the Honourable Supreme Court
that the right of exemption with a valid notification gives the right to
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approve the rates, it is vested right and the word “privilege” has wider
meaning, then, the right is, therefore, protected even after repeal of the
Principal Act. It goes without saying that if such right is conditional the
conditions attached are not wiped out or destroyed if the right or
privilege is saved. In this regard, the Honourable Supreme Court holds
that when such is the nature of the claim, then, the Court is obliged to
consider as to whether the intention of the Legislature is to the contrary
meaning thereby there is a different intention than what is spelled out by
Section 6 of the General Clauses Act. In that regard this is what the
Honourable Supreme Court has held:
“108. We are also unable to agree with Mr. Andhyarujina
that exemption from tax is a mere concession
defeasible by Government and does not confer any
accrued right to the recipient. Right of exemption
with a valid notification issued gives rise to an
accrued right. It is a vested right. Such right had been
granted to them permanently. 'Permanence' would
mean unless altered by statute.
109. Thus, when a right is accrued or vested, the same can
be taken away only by reason of a statute and not
otherwise. Thus, a notification which was duly issued
would continue to govern unless the same is repealed.
110. [Link], however, would submit that
reference to the words "anything duly done" should be
given a restrictive meaning. He referred to "Statutory
Interpretation A Code" by F.A.R. Bennion, Third
Edition, page 229, wherein it was stated:
“Paragraph (ii) This derives from
Interpretation Act 1978 Section 16(1)(b). The
reference to 'anything duly done' avoids the need for
procedural matters, such as the giving of notices, to
be done over again.
Example 89.3 The Interpretation Act 1978
Section preserved the effect of a noise nuisance notice
served under the Control of Pollution Act, 1974,
Section 58(1) before its repeal and replacement by
the Environmental Protection Act, 1990, Sections 162
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and 164(2) and Schedule 16 Pt. III.”
111. The treatment of the law, in our opinion, is not
exhaustive as different consequences are required to
be taken into consideration and applied having
regard to the nature of the statutory provision.
112. [Link] also relied upon Maxwell on the
Interpretation of Statutes, 12th edition, page 18,
wherein it was stated:
“When an Act is repealed, any delegated
legislation made under the Act falls to the ground
with the statute unless it is expressly preserved. Where
the subordinate legislation is continued in force,
however, the general rule is that its scope and
construction are determined according to the repealed
Act under which it was made.”
113. The statement of law therein does not militate against
our findings aforementioned. Construction would
vary from statute to statute.
114. It is profitable to notice at this stage a decision of this
Court in M/s. Universal Imports Agency (supra). In
that case under the IndoFrench Agreement entered
into by and between the two nations on 1st
November, 1954, the entire Administration of French
Settlement vested in the Government of India. The
territory of Pondicherry, thus, became a free port
without any restriction in case of most imports.
However, by reason of a notification dated 30th
October, 1954, the importers in Pondicherry were
required to obtain validation of licences held by them
to import goods as petitioners thereof did not have
any merchandise imported by them stood confiscated.
115. Clause 6 of the Agreement reads, thus:
“Unless otherwise specifically provided in the
Schedule, all laws in force in the French
Establishments immediately before the
commencement of the Order, which correspond to
enactments specified in the Schedule, shall cease to
have effect, save as respect things done or omitted to
be done before such commencement.”
116. Analyzing the said provision, this Court held:
“...The words things done in para 6 must be
reasonably interpreted and, if so interpreted, they can
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mean not only things done but also the legal
consequences flowing therefrom. If the interpretation
suggested by the learned Counsel for the respondents
be accepted, the saving clause would become
unnecessary. If what it saves is only the executed
contracts i.e. the contracts whereunder the goods have
been imported and received by the buyer before the
merger, no further protection is necessary as
ordinarily no question of enforcement of the contracts
under the preexisting law would arise. The
phraseology used is not an innovation but is copied
from other statutory clauses. Section 6 of the General
clauses Act (10 of 1897) says that unless a different
intention appears, the repeal of an Act shall not affect
anything duly done or suffered thereunder....”
117. Thus, a liberal and extensive construction was given
by this Court.
118. To the same effect is also a decision of this Court in
Shri Ram Prasad (supra) wherein power to make rule
was held to be a thing done within the meaning of
Article 357(2) of the Constitution of India.
119. In Harnek Singh (supra), this Court held:
“16. The words anything duly done or suffered
thereunder used in Clause (b) of Section 6 are often
used by the legislature in saving clause which is
intended to provide that unless a different intention
appears, the repeal of an Act would not affect
anything duly done or suffered thereunder. This Court
in Hasan Nurani Malak v. S.M. Ismail, Asstt. Charity
Commr., Nagpur has held that the object of such a
saving clause is to save what has been previously done
under the statute repealed. The result of such a saving
clause is that the preexisting law continues to govern
the things done before a particular date from which
the repeal of such a preexisting law takes effect. In
Universal Imports Agency v. Chief Controller of
Imports and Exports this Court while construing the
words things done held that a proper interpretation
of the expression things done was comprehensive
enough to take in not only the things done but also
the effect of the legal consequence flowing therefrom.”
120. Furthermore, exemption from payment of tax in
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favour of the appellants herein would also constitute
a right or privilege. The expression "privilege" has a
wider meaning than right. A right may be a vested
right or an accrued right or an acquired right. Nature
of such a right would depend upon and also vary
from statute to statute. It has been so held by this
Court, while construing Section 6 of the General
Clauses Act, in M/s Gurcharan Singh Baldev Singh v.
Yashwant Singh and Ors. [(1992) 1 SCC 428] in the
following terms:
“...The objective of the provision is to ensure
protection of any right or privilege acquired under the
repealed Act. The only exception to it is legislative
intention to the contrary. That is, the repealing Act
may expressly provide or it may impliedly provide
against continuance of such right, obligation or
liability....””
73 Hence, Section 20(1) of the Principal Act and Section 3(1)(b)
and (c) of the Repeal Act have to be read together and harmoneously.
That would also save and protect the right of person to move under
Sections 11 to 14 of the Principal Act. That is why there is a proviso
which has been inserted in Section 4 of the Repeal Act. Equally, by clause
(c) of subsection (1) of Section 3 of the Repeal Act the intent was also to
allow the State Government to retain the money/sum paid to it as
condition for granting exemption under Section 20(1). All this shows that
the excess vacant land continues to be subject to the Principal Act and its
repeal does not affect applicability of the provisions of ChapterIII albeit
to a limited extent with which we are concerned. The intent is not to
allow recourse to Sections 21 and 22 of the Principal Act and that is
clearly affected by the repeal of the Principal Act. However, a saving
clause enacted in the Repeal Act and construed as above does not
manifest an intent to destroy all rights and obligations. Therefore, Section
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6 of the General Clauses Act, 1897 can be taken assistance of.
74 While construing a repeal clause or Repeal Act or saving
clause therein the application of Section 6 of the General Clauses Act
would have to be considered in the light of the afore laid down principles.
Therefore, if having found that when the order of exemption is passed, it
is in force and conditional, then, the right or privilege created thereunder
cannot partake a different character. It would then fall squarely within
Section 6 of the General Clauses Act and in the present case we have not
found a contrary intention.
75 We find that reliance placed by the learned Advocate General
on the decision in the case of Bansidhar (supra) is apposite. There, the
Honourable Supreme Court held that a saving provision in the repealing
statute is not exhaustive of the rights and obligations so saved and they
survive the repeal.
76 In Bansidhar's case (supra) the contentions of the Appellants
before the Supreme Court were regarding the legality of certain
proceedings for fixation of ceiling on agricultural holdings initiated and
continued under the provisions of Chapter IIIB of the Rajasthan Tenancy
Act, 1955. That Act particularly Section 5(6A) and Chapter IIIB
thereunder was repealed by the Rajasthan Imposition of Ceiling on
Agricultural Holdings Act, 1973 (11 of 1973). The question was whether
the proceedings under the 1955 Act survive the repeal and reenactment
of the same in 1973. In that regard the Honourable Supreme Court held
as under:
“3. Chapter IIIB, pertaining to imposition of ceiling on
agricultural holdings, in the State of Rajasthan, was
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introduced into the '1955 Act' by the Rajasthan
Tenancy (Amendment) Act, 1960. As a sequential
necessity Section was amended by the introduction in
it of Clause (6A) which defined "ceilingarea". The
notifieddate, as originally fixed, was 1.4.1965; but
owing to the uncertainties imparted to the
implementation of the law by the challenged made to
the provisions of Chapter IIIB before the High Court
and the interimorders of the High Court staying the
operation of the law, Government had had to re
notify 1.4.1966 as the fresh notifieddate, after the
challenge to the validity of Chapter IIIB had been
repelled by the High Court.
4. By the time, the '1973 Act' was brought into force
disputes touching the determination of the ceiling
areas in 33, 471 cases had come to be decided in
accordance with the provisions of Chapter IIIB of the
earlier '1955 Act'. After the '1973 Act' came into force
on 1.1.1973, some 8,494 cases for the determination
of 'ceilingareas' under IIIB of the '1955 Act. came to
be initiated and were sought to be continued under
said Chapter IIIB of the repealed '1955 Act' on the
view that the repeal of Chapter IIIB of the 1955 Act
by the '1973 Act' did not affect the rights accrued and
liabilities incurred under the old law. Appellants'
principal contention is that after the coming into
force of the 1973 Act which, by its 40th Section,
repealed Chapter IIIB of the '1955 Act', recourse
could not be had to the repealedlaw for purposes of
commencement, conduct and conclusion of any
proceedings for fixation of ceiling as prescribed under
the old law. This contention has been repelled by the
full bench of the High Court in the judgment under
appeal. The correctness of view of the full bench arises
for consideration in these appeals.
5. The factual antecedents in which the controversy
arose before the High Court may be illustrated by the
facts of one of the appeals. In CA 1003 [N] of 1977,
the appellants' claim to have entered into possession
and cultivation of certain parcels of land pursuant to
alleged agreements to sell dated 28.4.1957 said to
have been executed in their favour by the then land
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holder, a certain Sri Had Singh. The sale deeds were
passed only on 22,8.1966, after the notified date.
Proceedings for the fixation of ceiling area in the
hands of Sri Hari Singh were commenced under the
Repealed Chapter IIIB of the '1955 Act'. Appellants'
purchases were held to be hit by Section DD of the
said Chapter IIIB, which prescribed certain
residential qualifications, which appellants did not
possess, for the eligibility for recognition of such
transfers. Appellants' contention is that if the new law
had been applied to the case of the vendor, the
transfers in their favour would have been held valid
and that 'invoking of Chapter IIIB of the repealed
law was impermissible. Apart from the facts of
individual cases and their particularities the basic
question is one of construction whether the
provisions of the old law are saved and survive to
govern pending cases.
6. We have heard Sri A.K. Sen, Sri Tarkunde and Sri
Shanti Shushan, learned Senior Advocates for the
appellants and Sri Lodha, learned Senior Advocate
for the State of Rajasthan and its authorities. The
appellants' principal contentionwhich we perceive as
one of construction of statutesis that the later law
made manifest, expressly and by necessary
implication, an intention inconsistent with the
continuance of the rights and obligations under the
repealed law and that, accordingly after 1.1.1973,
the date of coming into force of the '1973 Act', no
proceedings under the old law could be initiated or
continued.
7. The points that fall for consideration in these appeals
are whether:
(a) the scheme contemplated by and the
different criteria and standards for the determination
of "ceilingarea" envisaged in the '1973 Act' and, in
particular, having regard to the limited scope of the
savingprovision of Section thereof which, quite
significantly, omits to invoke and attract Section of
the Rajasthan General Clauses Act 1955 to the Repeal
of Section and Chapter IIIB of the '1955 Act' must be
construed and held to manifest an intention contrary
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to and inconsistent with the keeping alive or saving of
the repealed law so as to be invoked in relation to
and applied for the pending cases which had not been
concluded under the old law before the repeal; and
(b) that, at all events even if Section of the
Rajasthan General Clauses Act 1955 was attracted
and the old law was saved for the purpose, provisions
of the oldlaw could not be invoked as no right had
been "accrued" in favour of the State in relation to the
surplus area determinable under the old law nor any
liability "incurred" by the landholders under the old
law so as to support the initiation of the proceedings
for fixation of 'Ceilingarea' under the oldlaw after
its repeal.
Re : Contention (a)
8. In order that this contention, which is presented with
some perspicuity, is apprehended in its proper
prospective a conspectus of the essential provisions of
the earlier law and later law pertaining to
prescription of ceiling on agricultural holdings is
necessary.
9. In 1955, The Rajasthan Tenancy Act 1955 was
enacted. By the Rajasthan Tenancy (Amendment) Act,
for the first time, provisions in Chapter IIIB
prescribing a ceilings on holdings of agricultural
lands got introduced into the '1955 Act', This
amending Act of 1960 received Presidential assent on
12th March 1960. The Chapter IIIB was, by an
appropriate notification, brought into force with
effect from 15th December, 1963. The notifieddate,
under the '1955 Act' as stated earlier, was 1.4.1966.
10. Section (6A) of the '1955 Act' defined 'Ceilingarea':
"Ceiling area" in relation to land held
anywhere throughout the State by a person in any
capacity whatsoever shall mean the maximum area of
land that may be fixed as ceiling area under Section C
in relation to such person:
11. Section B in Chapter IIIB provided:
30B. DefinitionsFor the purposes of this
Chapter
(a) "family" shall mean a family consisting of a
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husband and wife their children and grandchildren
being dependent on them and the widowed mother of
the husband so dependent and
(b) "person" in the case of an individual, shall
include the family of such individual.
Section 30C providing for the extent of ceiling area
said:
30C. Extent of ceiling areaThe ceiling area for
a family consisting of five or less than five members
shall be thirty standard acres of land :
Provided that, where the members of a family
exceed five, the ceiling area in relation thereto shall
be increased for each additional member by five
standard acres, so however that it does not exceed
sixty standard acres of land.
ExplanationA 'standard acre' shall mean the
area of land which, with reference to its productive
capacity, situation, soil classification and other
prescribed particulars is found in the prescribed
manner to be likely to yield ten maunds of wheat
yearly ; and in case of land not capable of producing
wheat, the other likely produce thereof shall, for the
purpose of calculating a standard acre, be determined
according to the prescribed scale so as to be
equivalent in terms of money value to ten maunds of
wheat:
Provided that, in determining a ceiling area in
terms of standard acres the money value of the
produce of wellirrigated (chahi) land shall be taken
is being equivalent to the money value of the produce
of an equal area of unirrigated (barani) land.
In exercise of the Rule making powers under the
'1955 Act', the State Government framed and
promulgated. The Rajasthan Tenancy (Fixation of
Ceiling of Land) Government Rules, 1963, which
came into force on and with effect from 15.12.1963.
Rule 9 required that in order to enable the Sub
Divisional Officer to determine the ceiling area
applicable to every person under Section C of the Act
and to enforce the provision of Sections E, every land
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holder and tenant in possession of lands, in excess of
the ceiling area applicable to him, shall file a
declaration within six months from the notifieddate.
The law fixed 30 standard acres as the ceiling area.
Thereafter, successive amendments were made to
Chapter IIIB of the '1955 Act' which, while
maintaining the ceiling at 30 standard acres,
however, recognised certain transfers effected after
1958, which were not originally so recognised in
fixing the ceiling. Again (by an amendment) of the
year 1970, Section was deleted. The 1955 Act itself
came to be included in the IX Schedule to the
Constitution by a Parliamentary law. The challenge to
said inclusion was repelled by this Court.
12. On 1.1.1973, the Governor of the State of Rajasthan
promulgated The Rajasthan Imposition of Ceiling on
Agricultural Holdings Ordinance, 1973 under Article
213 of the Constitution of India. The Ordinance
repealed the corresponding provisions relating to
ceiling on agricultural holdings contained in Section
and Chapter IIIB of the '1955 Act' except to the
extent indicated in the Second Proviso to Section and
Section of the said Ordinance. The Ordinance brought
in to existence a new concept of and standards for
the" ceilingarea". Certain transfers made by the land
holders even during the operation of the old law were
recognised as valid transfers for purposes of
computation of ceiling area under the new
dispensation brought about by the Ordinance. This
Ordinance was replaced by the 1973 Act which was
made operative retrospectively from 1.1.1973 being
the date of promulgation of the Ordinance. Section of
the '1973 Act' repealed as did the predecessor
Ordinance, both the old law in Chapter IIIB of the
'1955 Act' and the earlier Ordinance for which it
substituted.
13. Section Section 4(1), Second Proviso and Section of
the 1973 Act require particular notice.
14. Section 3 provides :
"3. Act to override other laws, contracts, etc.
The provisions of this Act shall have effect
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notwithstanding anything inconsistent contained in
any other law for the time being in force, on any
custom, usage or contract or decree or order of a
court or other authority.
15. The Second Proviso to the Explanation appended to
Section 4(1) of the Act says:
Provided further that if the ceiling area
applicable to any person or family in accordance with
this section exceeds the ceiling area applicable to such
person or family according to the provisions of law
repealed by Section in that case the ceiling area
applicable to such person or family will be the same
as was under the provisions of the said repealed law.
16. Section 40 provides ;
40. Repeal and savings(1) Except as provided
in second proviso to Subsection (1) of Section and in
Subsection (2) of Section of this Act, the provisions
of Clause (6A) of Section and Chapter IIIB of the
Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of
1955) are hereby repealed except in the Rajasthan
Canal Project area wherein such provisions shall
stand repealed on the date on which this Act comes
into force in that area.
(2) The Rajasthan Imposition of Ceiling on
Agricultural Holdings Ordinance, 1973 Rajasthan
(OrdinanceI of 1973) is hereby repealed.
(3) Notwithstanding the repeal of the said
Ordinance under Subsection (2), anything done or
any action taken or any rules made under the said
Ordinance shall be deemed to have been done taken
or made under this Act and section of the Rajasthan
General Clauses Act, 1955 (Rajasthan Act 8 of 1955)
shall apply to such repeal and reenactment.
17. Section contains a statutory declaration that the 'Act'
is for giving effect to the directive principles of State
policy towards securing the principles specified in
Article 39(b) and (c) of the Constitution of India.
18. Appellants' learned Counsel contend that when there
is a repeal of a statute followed by a reenactment of
a new law on the same subject with or without
modifications Section 6 of the General Clauses Act is
not attracted and the question as to the extent to
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which the repealed law is saved would be dependent
upon the express provisions of the later statute or
what must be held to be its necessary and compelling
implications. It was urged that where the repeal is
accompanied by a afresh Legislation on the same
subject, the new law alone will determine if, and how
far the old law is saved and that in the absence of an
express appeal to Section 6 of the Genera Clauses Act
or of express provisions similar effect in the new law
itself, the provisions of the old law must be held to
have been effaced except whatever had been done, or
having effect as if done. This argument has the
familiar ring of what Sulaiman, CJ. had said on the
matter in [Link] v. Emperor. But, it must now
be taken to be settled that the mere absence of an
express reference to Section 6 of the General Clauses
Act is not conclusive, unless such omission to invoke
Section 6 of the General Clauses Act is attended with
the circumstance that the provisions of the newlaw
evince and make manifest an intention contrary to
what would, otherwise, follow by the operation of
Section 6 of the General Clauses Act, the incidents
and consequences of Section 6 would follow.
19. Appellants' learned Counsel submitted that the
legislation in question pertaining, as it did, to the
topic of agrarian reform was attendant with the
difficulties naturally besetting a task so inextricably
intermixed with complex and diverse and, indeed,
often conflicting socioeconomic interests had to go
through stages of empirical evolution and that having
regard to the widediversity of policyoptions manifest
between the earlier and the later legislations, the
conclusion becomes inescapable that the later
legislation, made manifest an intention inconsistent
with and contrary to the continuance of the rights
and obligations under the repealed law. It was agreed
that with the experience gained in the
implementation of the policy of agrarian reforms
embodied in the repealed law, the new policy
considerations – reflected in the new and basically
different thinking on some of the vital components of
the newpolicy – were evolved and incorporated in the
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new law, so much so that the repealed and repealing
laws represented two entirely different systems and
approaches to the policy of agrarian reforms and the
two systems, with their marked differences on
basically and essential criteria underlying their
policies, could not coexist. it was urged that the
statement of objects and reasons appended to the
1973 Bill recognised that the legislative policy and
technique underlying the old law were ineffective in
removing the great disparity that persisted in the
holdings of agricultural lands or in diluting the
concentration of agricultural wealth in the hands of a
few and recognised the necessity "to reduce such
disparity and to refix the ceiling area on the
agricultural holdings so that agricultural land may be
available for distribution to land less persons". It was
pointed out that material criteria relevant to the
effectuation of the newpolicy made manifest an
intention contrary to the survival of the policy under
the old law. The wide changes in the policy of the
later law which reflected a new and basically different
approach to the matter, included [i] a fundamental
rethinking on the concept of the "ceilingarea" by
reducing the 30 standard acres prescribed in the old
law to 18 standard acres; [ii] the redefinition of the
very concept of 'family' and 'separate unit'; [iii] the
point of time with reference to which the composition
and strength of the family would require to be
ascertained; [vi] a rethinking, and a fresh policy as
to the recognition of transfers made by landholders
including even those transfers made during the period
of operation of the old law; [v] the point of time of
the vesting of the surplus land in Government; [vi]
the redefining of the principles and priorities guiding
the distribution of the surplus land to landless
persons; and [vii] the amount to be paid to the land
holders for the excess land vesting in the State under
the new law.
20. It was submitted that the two laws – the old and the
new – envisaged two totally different sets of values
and policies and were so disparate in their context
and effect as to yield the inevitable inference that the
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policy and the scheme of the later law, by reason
alone of the peculiarities and distinction of its
prescriptions, should be held to manifest an intention
contrary to the saving of the old law even respecting
pending cases. The ceiling laws, it was submitted,
envisage and provide an integrated and inter
connected set of provisions and the marked
distinctions in the vital provisions in the two sets of
laws rendered the continued applicability of the old
law to any case, not already finally concluded
thereunder, as impermissible in law as unreasonable
in its consequences if permitted. It was urged that
Section of the 1973 Act was a clinching indicator in
this behalf when it provided that the provisions of the
later law "shall have effect notwithstanding anything
inconsistent contained in any other law for the time
being in force, or any custom, usage, or contract or
decree or order of a Court or other authority"
(underlining supplied) and that the old Act, even if it
was, otherwise, held to be in force in relation to
pending cases, was clearly overborne by Section of
the new law.
21. When there is a repeal of a statute accompanied by
reenactment of a law on the same subject, the
provisions of the new enactment would have to be
looked into not for the purpose of ascertaining
whether the consequences envisaged by Section 6 of
the General Clauses Act ensued or not – Section 6
would indeed be attracted unless the new legislation
manifests a contrary intention but only for the
purpose of determining whether the provisions in the
new statute indicate a different intention. Referring to
the way in which such incompatibility with the
preservation of old rights and liabilities is to be
ascertained this Court in State of Punjab v. Mohar
Singh said:
...Such incompatibility would have to be
ascertained from a consideration of all the relevant
provisions of the new Law and the mere absence of a
saving clause is by itself not material. The provisions
of Section 6 of the General Clauses Act will apply to a
case of repeal even if there is simultaneous enactment
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unless a contrary intention can be gathered from the
new enactment. Of course, the consequences laid
down in Section 6 of the Act will apply only when a
statute or regulation having the force of a statute is
actually repealed.
22. Addressing itself to the question whether, having
regard to the particular provisions of the 1973 Act,
the inference that the new law manifests such
contrary intention could justifiably be drawn, the
High Court observed:
We have, therefore, to examine whether the
new law expressly or otherwise manifests an intention
to wipe out or sweep away those rights and liabilities
which had accrued and incurred under the old Law...
Having carefully gone through all the
authorities cited by the parties as referred to above,
we are of opinion that the new Act of 1973 does not
have the sweeping effect of destroying all the rights
accrued and liabilities incurred under the old law...
23. One of the indicia that the old law was not effaced is
in Section [2] of the new Act. It provides that if the
State Government was satisfied that the 'ceilingarea'
in relation to a person as fixed under the oldlaw had
been determined in contravention of that law, a
decided case could be reopened and inquired into it
and the 'ceilingarea' and the 'surplus area'
determined afresh in accordance with the provisions
of the old law. Another indicium is in Section [1]
read with the Second proviso to Section [1] of '1973
Act' which provides that if the ceiling area applicable
to a person or a family in accordance with the said
Section [1] exceeds the 'ceilingarea' applicable to
such person or family, under the old law, then, the
'ceilingarea' applicable to such person or family
would be the same as was provided under the
provisions of the old law.
24. The High Court relied upon and drew sustenance for
its conclusion from, what it called, the internal
evidence in the Act which, according to the High
Court, indicated that pendingcases were governed
only by the old law. The High Court referred to
Section [2] inserted by Act No. 8 of 1976 and what,
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according to it, necessarily flowed from it in support
of its conclusion, Section [2] inserted by Act NO. 8 of
1976 runs thus:
15(2) Without prejudice to any other remedy
that may be available to it under the Rajasthan
Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if the
State Government, after calling for the record or
otherwise, is satisfied that any final order passed in
any matter arising under the provisions repealed by
Section is in contravention of such repealed provisions
and that such order is prejudicial to the State
Government or that on account of the discovery of
new and important matter or evidence which has
since come to its notice, such order is required to be
reopened, it may, at any time within five years of the
commencement of this Act, direct any officer
subordinate to it to reopen such decided matter and
to decide it afresh in accordance with such repealed
provisions.
25. The High Court referring to the opening words of the
above provision observed:
The opening words of the section “without
prejudice to any other remedy that may be available
to it under the Rajasthan Tenancy Act, 1955 (Act No.
3 of 1955)", clearly show that the pending cases have
to be governed by the old law. If transactions past and
closed have to be reopened and decided afresh under
the provisions of the repealed law, and the ceiling
area under Chapter III of the Rajasthan Tenancy Act,
1955, has to be fixed under its repealed provisions,
then it must follow as a necessary corollary, that the
pending cases must be decided under the old law.
26. Sri Lodha, learned Counsel for the State of Rajasthan
submitted that the 'ceilingarea' had to be fixed with
reference to the notified date i.e. 1,4.1966 by the
statutory standards prescribed under the Chapter III
B of the '1955 Act'. The two legislations are
complementary to each other and constitute two tier
provisions. So far as the cases that attracted and fell
within Chapter IIIB of 1955 Act, as on 1.4.1966,
would continue to be governed by that law as the
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rights and obligations created by the said Chapter III
B amounted to create rights and incur liabilities. Sri
Lodha submitted that the view taken by the High
Court was unexceptionable.
27. On a careful consideration of the matter, we are
inclined to agree with the view taken by the High
Court on the point. The reliance placed by appellants'
learned Counsel on the provisions of Section of 1973
Act as detracting from the tenability of the conclusion
reached by the High Court on the point is, in our
opinion, somewhat tenuous. The contention of the
learned Counsel is that the expression
"notwithstanding anything inconsistent contained in
any other law for the time being in force" in Section
of the 1973 Act would exclude the operation of
Chapter IIIB of the '1955 Act' which, according to the
contention, even if kept alive would yet be a 'law for
the time being in force' and, therefore, be excluded by
virtue of Section This contention has been negatived
by the High Court ...and in our opinion rightly ..by
placing reliance on the pronouncements of this Court
in Rao Shiv Bahadur Singh and Anr. v. The State of
Vindhya Pradesh and Chief Inspector of Mines v. K.C.
Thapar. The High Court held that the expression "law
for the time being in force" does not take within its
sweep a law 'deemed to be in force' and that,
accordingly, the opening words of Section relied ,
upon by the Appellants' learned Counsel will not have
an overriding effect so as to exclude the old law.
28. A saving provision in a repealing statute is not
exhaustive of the rights and obligations so saved or
the rights that survive the repeal. It is observed by
this Court in I.T. Commissioner v. Shah Sadiq & Sons
: (SCC p. 524, para 15)
...In other words whatever rights are expressly
saved by the 'savings' provision stand saved. But, that
does not mean that rights which are not saved by the
'savings' provision are extinguished or stand ipso facto
terminated by the mere fact that a new statute
repealing the old statute is enacted. Rights which
have accrued are saved unless they are taken away
expressly. This is the principle behind Section 6[c],
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General Clauses Act, 1897...
We agree with the High Court that the scheme of the
1973 Act does not manifest an intention contrary to,
and inconsistent with, the saving of the repealed
provisions of Section [6A] and Chapter IIIB of '1955
Act' so far as pending cases are concerned and that
the rights accrued and liabilities incurred under the
old law are not effaced. Appellant's contention [a] is,
in our opinion, insubstantial.
Re : Contention (b):
29. This takes us to the next question whether in the
present cases even if the provisions of Section of the
Rajasthan General Clauses Act, 1955. are attracted,
the present cases did not involve any rights "accrued"
or obligations "incurred" so as to attract the old law
to them to support initiation or continuation of the
proceedings against the landholders after the repeal.
It was contended that even if the provisions of the old
Act were held to have been saved it could not be said
that there was any right accrued in favour of the
State or any liability incurred by the land holders in
the matter of determination of the 'ceilingarea' so as
to attract to their cases the provisions of the old law.
The point emphasised by the learned Counsel is that
the excessland would vest in the State only after the
completion of the proceedings and upon the land
holder signifying his choice as to the identify of the
land to be surrendered. Clauses [c] and [e] of Section
of the Rajasthan General Clauses Act, 1955, provide,
respectively, that the repeal of an enactment shall not,
unless a different intention appears, "affect any right
privilege, obligation, or liability, acquired, accrued, or
incurred under any enactment so repealed" or "affect
any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation,
liability, fine, penalty, forfeiture or punishment as
aforesaid".
30. For purposes of these clauses the "right" must be
"accrued" and not merely an inchoate one. The
distinction between what is and what is not a right
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preserved by Section 6 of the General Clauses Act, it is
said, is often one of great fineness. What is unaffected
by the repeal is a right 'acquired' or 'accrued' under
the repealed statute and not "a mere hope or
expectation" of acquiring a right or liberty to apply
for a right.
31. In Lalji Raja v. Firm Hansraj Nathuram this Court
dealing with the distinction between the "abstract
rights" and "specificrights" for the purpose of the
operation of Section 6 of General Clauses Act said:
(SCC p. 728, para 16)
That a provision to preserve the right accrued
under a repealed Act 'was not intended to preserve the
abstract rights conferred by the repealed Act...It only
applies to specific rights given to an individual upon
happening of one or the other of the events specified
in statute' – See Lord Atkin's observations in
Hamilton Gell v. White. The mere right, existed at the
date of repealing statute, to take advantage of
provisions of the statute repealed is not a 'right
accrued' within the meaning of the usual saving
clausesee Abbot v. Minister for Lands and G. Ogden
Industries pty. Ltd. v. Lucas.
32. ….....
33. …....
34. The rights and obligations under this provision had
had to be determined with reference to the notified
date i.e. 1.4.1966. Referring to analogous provision
of the Maharashtra Agricultural Lands [Ceiling on
Holdings] Act, 1961, this Court in Raghunath v.
Maharashtra observed: (SCC p. 397, para 17)
The scheme of the Act seems to be to determine
the ceiling area of each person [including a family]
with reference to the appointed day. The policy of the
Act appears to be that on and after the appointed day
no person in the State should be permitted to hold
any land in excess of the ceiling area as determined
under the Act and that ceiling area would be that
which is determined as on the appointed day.
35. Again in Bhikoba Shankar Dhumal v. Mohan Lal
Punchand Thathed, it was observed: (SCC p.687,
para 13)
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A close reading of the aforesaid provisions of
the Act shows that the determination of the extent of
surplus land of a holder has to be made as on the
appointed day. If any person has at any time after the
fourth day of August, 1959, but before the appointed
day held any land [including any exempted land] in
excess of the ceiling area, such person should file a
return within the prescribed period from the
appointed day furnishing to each of the Collectors
within whose jurisdiction any land in his holding is
situated, in the form prescribed containing the
particulars of all land held by him. If any person
acquires, holds or comes into possession of any land
including any exempted land in excess of the ceiling
area on or after the appointed day, such person has to
furnish a return as stated above within the prescribed
period from the date of taking possession of any land
in excess of the ceiling area.
36. A contention similar to the one urged for the
appellants here that the title respecting the surplus
land would vest in the Government upon such land
being taken possession of by Government after the
declaration regarding the surplus was noticed in that
case. But, it was held that the liability to surrender
the surplus land would date back to the appointed
day. This Court said: (SCC p.688, para 13)
Any other construction would make the Act
unworkable and the determination of the extent of
surplus land of a holder ambulatory and indefinite.
This was again reiterated in State of Maharashtra v.
Annapurnabai. This Court said: (SCC p.275, para 4)
Section 21 of the Act no doubt states that the
title of the holder of the surplus land would become
vested in the State Government only on such land
being taken possession of after a declaration
regarding the surplus land is published in Official
Gazette. But the liability to surrender the surplus
land relates back to the appointed day in case of those
who held land in excess of the ceiling on the
appointed day. Therefore, even if the holder dies
before declaration of any part of his land as surplus
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land, the surplus land is liable to be determined with
reference to his holding on the appointed day...
37. It is, therefore, seen that the right of the State to take
over excess land vested in it as on the appointed day
and only the quantification remained to be worked
out. As observed by Lord Morris, in Director of Public
Works v. Ho Po Sang : (ALL ER p.731)
It may be, therefore, that under some repealed
enactment, a right has been given, but that, in respect
of it, some investigation or legal proceeding is
necessary. The right is then unaffected and preserved,
It will be preserved even if a process of quantification
is necessary. But there is a manifest distinction
between an investigation in respect of a right and an
investigation which is to a decide whether some right
should be or should not be given. On repeal the
former is preserved by the Interpretation Act. The
latter is not.
38. The above passage was referred to with approval in
M.S. Shivananda v. K.S.R.T.C..
39. We agree with the High Court that the right of the
State to the excess land was not merely an inchoate
right under the Act, but a right "accrued" within the
meaning of Section [c] of the Rajasthan General
Clauses Act, 1955, and the liability of the landowner
to surrender the excess land as on 1.4.1966 was a
liability "incurred" also within the meaning of the
said provision. There is no substance in contention
[b] either.”
77 [Link] would urge that this judgment is distinguishable
because it pertains to a ceiling on agricultural lands. Secondly, the
judgment deals with a case where earlier law was repealed, but reenacted
in a different form. Yet the Legislature retained the earlier law, namely,
the Act of 1955. The factual matrix was, therefore, different. This
judgment would have no application to the point before us.
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78 We are unable to agree with [Link] and for more than
one reason. The judgment of the Honourable Supreme Court and laying
down such principles cannot be brushed aside on a spacious plea that the
statute which was subject matter of the judgment was repealed, but
reenacted later. This is a judgment on Section 6 of the Rajasthan General
Clauses Act, 1955 and which is identical to Section 6 of the General
Clauses Act, 1897. Section 6 of the General Clauses Act, 1897 reads as
under:
“6. Effect of repeal: – Where this Act, or any [Central Act]
or Regulation made after the commencement of this
Act, repeals any enactment hitherto made or hereafter
to be made, then, unless a different intention appears,
the repeal shall not –
(a) revive anything not in force or existing at the
time at which the repeal takes effect; or
(b) affect the previous operation of any enactment
so repealed or anything duly done or suffered
thereunder; or
(c) affect any right, privilege, obligation or liability
acquired, accrued or incurred under any enactment so
repealed; or
(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed against
any enactment so repealed; or
(e) affect any investigation, legal proceeding or
remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment
as aforesaid;
and any such investigation, legal proceeding or
remedy may be instituted, continued or enforced, and
any such penalty, forfeiture or punishment may be
imposed as if the repealing Act or Regulation had not
been passed.”
79 A perusal of the judgment and effect of repeal enacted by
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Section 6 of the General Clauses Act would show that the Honourable
Supreme Court emphasized that a saving provision in the repealing
statute is not exhaustive of the rights and obligations so saved or the
rights that survive the repeal. The line of inquiry as has been repeatedly
pointed out by the Honourable Supreme Court would be not whether the
new Act expressly keeps alive the old rights and liabilities, but whether it
manifests an intention to destroy them. Unless such an intention is
manifested by the new Act, the rights and liabilities under the repealed
Act will continue to exist by force of Section 6 of the General Clauses Act.
It is the repealing Act and not the Act repealed which is to manifest the
contrary intention so as to exclude the operation of Section 6 of the
General Clauses Act. The silence of the repealing Act is consistent and not
inconsistent with Section 6 applying. That is how we are of the opinion
that if this line of inquiry is carried forward it would show that the Repeal
Act did not manifest an intention contrary to Section 6 of the General
Clauses Act. The nature of right that is claimed or in other words the
privilege being not absolute that all the more we are unable to accept
[Link]'s arguments. The Honourable Supreme Court holds that the
scheme of the Act seems to be to determine the ceiling area of each
person with reference to the appointed day. Hence, the rights and
obligations under the provision had to be determined with reference to
the notified date. If that is so and in this case if the lands are in excess of
ceiling limit and some of them may have vested in the State already, then,
the exemption claimed from applicability of ChapterIII would not mean
that the character of the lands is in any way altered or their status is
changed. The date with reference to which the lands have become excess,
thus cannot be ignored while determining the nature of the rights and
privilege. All the more if such privilege or right is conditional as noted
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above. In these circumstances we see no reason to deviate from the
principles in the case of Bansidhar (supra).
80 We are of the clear opinion that clauses (b) and (c) of Section
6 of the General Clauses Act are thus, clearly attracted. Therefore, the
repeal will not affect the previous operation of the Principal Act or
anything duly done or suffered thereunder.
81 In that regard, assistance can be taken of the judgment of the
Honourable Supreme Court in the case of M/s Universal Imports Agency
v/s Chief Controller of Imports and Exports reported in AIR 1961 SC 41.
In paragraphs 16 to 18 of this decision this is what is held:
“16. What were the "things done" by the petitioners under
the Pondicherry law ? The petitioners in the course of
their import trade, having obtained authorization for
the foreign exchange through their bankers, entered
into firm contracts with foreign dealers on C.I.F.
terms. In some cases irrevocable Letters of Credit were
opened and in others bank drafts were sent towards
the contracts. Under the terms of the contracts the
sellers had to ship the goods from various foreign
ports and the buyers were to have physical delivery of
the goods after they had crossed the customs barrier
in India. Pursuant to the terms of the contracts, the
sellers placed the goods on board the various ships,
some before and others after the merger, and the
goods arrived at Pondicherry port after its merger
with India. The prices for the goods were paid in full
to the foreign sellers and the goods were taken
delivery of by the buyers after examining them on
arrival. Before the merger if the Customs Authorities
had imposed any restrictions not authorized by law,
the affected parties could have enforced the free entry
of the goods in a court of law. On the said facts a
short question arises whether paragraph 6 of the
Order protects the petitioners. While learned counsel
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for the petitioners contends that "things done" take in
not only things done but also their legal consequences,
learned counsel for the State contends that, as the
goods were not brought into India before the merger,
it was not a thing done before the merger and,
therefore, would be governed by the enactments
specified in the Schedule. It is not necessary to
consider in this case whether the concept of import
not only takes in the factual bringing of goods into
India, but also the entire process of import
commencing from the date of the application for
permission to import and ending with the crossing of
the customs barrier in India. The word "things done"
in paragraph 6 must be reasonably interpreted and, if
so interpreted, they can mean no only things done but
also the legal consequences flowing there from. If the
interpretation suggested by the learned counsel for the
respondents be accepted, the saving clause would
become unnecessary. If what it saves is only the
executed contracts, i.e., the contracts whereunder the
goods have been imported and received by the buyer
before the merger, no further protection is necessary
as ordinarily no question of enforcement of the
contracts under the preexisting law would arise. The
phraseology used is not an innovation but is copied
from other statutory clauses. Section 6 of the General
Clauses Act (X of 1897) says that unless a different
intention appears, the repeal of an Act shall not affect
anything duly done or suffered there under So too, the
Public Health Act of 1875 (38 & 39 Vict. c. 55) which
repealed the Public Health Act of 1848 contained a
proviso to s. to the effect that the repeal "shall not
affect anything duly done or suffered under the
enactment hereby repealed". This proviso came under
judicial scrutiny in The Queen v. Justices of the West
Riding of Yorkshire There notice was given by a local
board of health of intention to make a rate under the
Public Health Act, 1848, and amending Acts. Before
the notice had expired these Acts were repealed by the
Public Health Act, 1875, which contained a saving of
"anything duly done" under the repealed enactments
and gave power to make a similar rate upon giving a
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similar notice. The board, in ignorance of the repeal,
made a rate purporting to be made under the
repealed Acts. It was contended that as the rate was
made after the repealing Act, the notice given under
the repealed Act was not valid. The learned Judges
held that as the notice was given before the Act, the
making of the rate was also saved by the words
"anything duly done" under the repealed enactments.
This case illustrates the point that it is not necessary
that an impugned thing in itself should have been
done before the Act was repealed, but it would be
enough if it was integrally connected with and was a
legal consequence of a thing done before the said
repeal. Under similar circumstances Lindley, L.J., in
Heston and Isleworth Urban district Council v. Grout
confirmed the validity of the rate made pursuant to a
notice issued prior to the repeal. Adverting to the
saving clause, the learned Judge tersely states the
principle thus at p. 313 : "That to my mind preserves
that notice and the effect of it". On that principle the
Court of Appeal held that the rate which was the
effect of the notice was good.
17. It is suggested that the phraseology of the saving
clause of the English Statutes and of the General
Clauses Act of 1897 are of wider import than that of
paragraph 6 of the Order and, therefore, the English
decisions are not of any assistance in considering the
scope of the saving clause of the Order. It is further
stated that the English decisions apply only to a
saving clause of an Act which repeals another but
preserves the right created by the latter. We do not see
any reason why the same construction cannot be
placed upon the wording of paragraph 6 of the Order
which is practically similar in terms as those found in
the relevant saving clause of the English Statute and
that of the General Clauses Act.
18. Nor can we find any justification for the second
criticism. In the instant case the legal position is
exactly the same. By reason of the IndoFrench
Agreement the Government of India made the Order
under the Foreign Jurisdiction Act applying the Indian
laws to Pondicherry. The effect of that Order was that
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the French laws were repealed by the application of
the Indian laws in the same field occupied by the
French laws subject to a saving clause. The position is
analogous to that of a statute repealing another with
a saving clause. If the English decisions apply to the
latter situation, we do not see how they do not apply
to the former. In both the cases the preexisting law
continues to govern the things done before a
particular date. We, therefore, hold that the words
"things done" in paragraph 6 of the Order are
comprehensive enough to take in a transaction
effected before the merger, though some of its legal
effects and consequences projected into the post
merger period.”
82 Further in the case of Amadalavasa Cooperative Agricultural
and Industrial Society Limited v/s Union of India reported in AIR 1976 SC
958 in the context of compulsory insurance scheme and whether that
survives with all attendant conditions upon repeal of the Principal Act,
namely, the Emergency Risks (Factories) Insurance Act, 1962 the
Honourable Supreme Court held as under:
“18. The appellants challenged the finding of the High
Court that the liability to pay the evaded premia
arose during the currency of the Acts and contended
that the liability itself was dependent on the
ascertainment by the authorised officer of the
insurable value of the factory or goods in accordance
with the Third Schedule and that until the extent of
the liability was so ascertained, there could be no
liability and so, Section 6 of the General Clauses Act,
was not attracted. In other words, the contention was
that until the liability of the insured was determined
by the authorized officer by ascertaining the correct
insurable value in accordance with the provisions of
the Third Schedule, no liability to pay the evaded
premia arose and therefore, no liability was incurred
before the expiry of the Acts which could be enforced
under the provisions of Section 6 of the General
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Clauses Act after their expiry.
19. It is clear from the provisions of the Acts that the duty
to take out insurance policy for the full insurable
value of the factory or goods was mandatory and that
the failure to do so was an offence. Be sides, in the
case of failure to insure for the full insurable value,
provisions were made for recovery of the relative
premia. To effectuate this purpose, the procedure for
determination of the insurable value of the factory or
goods and of the premia evaded was also provided.
20. There is no compulsion in a voluntary insurance that
the cover should be made for the entire insurable
value of the property. The premium collected in a
voluntary insurance is related to the quantum of the
risk undertaken in the light of the insurable value
suggested by the insured. Generally, in a voluntary
insurance the premium is paid in consideration of the
cover provided. In other words, premium is paid in
order to enable the insurer to indemnify the insured
against loss or damage on account of the risk
specified. The scheme of insurance envisaged by the
Acts was different. There was no element of consensus
on the fundamental terms of insurance in the scheme.
The liability to take insurance policy for the full
insurable value of the factory or goods was
compulsory. The terms and conditions of the policy to
be taken were governed solely by the provisions of the
Acts and the Schemes. It is a mistake to assume that
the rights and liabilities of the parties in this
statutory scheme were similar, to those of a voluntary
contract of insurance, If the liability to take the
insurance policy for the full insurable value was
absolute, and if the terms and conditions of insurance
were settled by the terms of the statutes and the
Schemes read with the Schedules, there is no merit in
the contention of counsel for the appellants that the
obligation of the President as insurer was same as
that of an insurer in a contract of voluntary
insurance. The liability to pay premia in case of
undervaluation was not dependent upon the
subsequent determination of the full insurable value
of the factory or goods insured. If the factory or goods
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was undervalued, when the insurance policy was
taken, the liability to pay premia on the basis of the
full insurable value arose at the time when the policy
was taken. That liability was not dependent upon the
ascertainment of the full insurable value by the
authorised officer in accordance with the Third
Schedule.”
83 Once the repeal of the Principal Act has been understood not
to affect any right, privilege, obligation or liability accrued or incurred
under the Repealed Act, then, we do not find that the Repeal Act in this
case has manifested an intention contrary to applicability of Section 6 of
the General Clauses Act.
84 When the word and expression used is “obligation or liability
incurred under any Repealed Act”, then, the term “liability” is understood
to be of large and comprehensive significance and when construed in its
usual and ordinary sense in which it is commonly employed it expresses
the state of being under obligation in law or in justice [see AIR 1959
Punjab 328 (First National Bank Limited v/s Seth Sant Lal)].
85 A Full Bench of Delhi High Court in the case of Mohd. Yaqub
v/s Union of India reported in AIR 1971 Delhi 45 followed the above
Punjab High Court's view and held that the liability is the state of being
bound or obliged in law or justice. In Black's Law Dictionary the word
“liability” is defined to mean “the state of being bound or obliged in law
or justice to do, pay or make good something; legal responsibility”. It is,
therefore, a word of widest import meaning an obligation or duty to do
something or to refrain from doing something. [see paras 13 to 16 of AIR
1971 Delhi 45].
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86 We cannot, therefore, be unmindful of the fact that the words
“liability incurred” have been construed as very general and
comprehensive and ordinarily taking both civil and criminal liability. [See
Kapur Chand Pokhraj v/s State of Bombay AIR 1958 SC 993].
87 Such being the position in law we cannot accept
[Link]'s contentions that the judgment of the Honourable Supreme
Court in the case of Bansidhar (supra) would not apply.
88 We are further not in agreement with [Link] that
Bansidhar's case (supra) was confined to agricultural ceiling law and
reenactment thereof. Even with regard to the Principal Act before us it has
been held by our Court in Sadashiv Durgaji Ambhore v/s State of
Maharashtra reported in 1992 Mh.L.J. 1300 as under:
“8. Coming to the scheme of the U.L.C. Act it is crystal
clear that no person can retain vacant land in urban
area more than the prescribed ceiling limit. The excess
or better still the surplus land has to vest in the State.
There can thus be no question of escaping the
prohibition imposed by the statute, the validity of
which is already tested before. Therefore, once the
surplus land is determined by the Competent
Authority the original owner has no right over such
land and in due course those lands must vest in the
State.
9. Looking to the aforestated objectives as well as the
scheme of the U.L.C. Act, the lands which are found to
be in excess of the prescribed limit can never revert
back to the owner under any of the circumstances. It
must end with the vesting of such surplus lands with
the State Government. Otherwise the very object and
purpose for which the Act has been enacted would
frustrate and the holder of excess land would
contravene the provisions of Section 3 exposing him
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to prosecution for offence under Section 38 of the Act.
10. One more aspect that falls for consideration is the use
of the word "may" in Subsection (3) of Section 10 of
the U.L.C. Act. The said section reads as under:
“10(3) At any time after the publication of the
notification under Subsection (1) the competent
authority may, by notification published in the
Official Gazette of the State concerned declare that
the excess: and referred to in the notification
published under Subsection (1) shall, with effect
from such date as may be specified in the declaration,
be deemed to have been acquired by the State
Government and upon the publication of such
declaration, such land shall be deemed to have vested
absolutely in the State Government free from all
encumbrances with effect from the date so specified.”
The use of word "may" after the words "the competent
authority" and before the words "by notification
published in Official Gazette …......" will have to be
construed as "shall" if the object and purpose of the
U.L.C. Act as discussed above have to be achieved. The
word "may" though primarily permissive is in certain
circumstances to be treated as mandatory and those
circumstances are available looking to the scheme of
the Act.”
89 Therefore, the land which is vacant and in excess of ceiling
limit on the date of commencement of the Act is subject to ChapterIII of
the Principal Act and its application thereto is undisputed. If such
undisputed absolute application is the position emerging from the statute
and because of an exceptional circumstance the applicability is held in
abeyance, then, it is not open to those persons holding such lands to
contend that the Principal Act has been repealed, therefore, it's
applicability to the lands in question will not survive the repeal. If as
contended by the learned Advocate General the exemption keeps in
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abeyance the applicability of ChapterIII till such exemption order is in
force and does not rule out the applicability of the Principal Act, then, we
cannot accept the arguments of the learned Senior Counsel for the
Petitioners to the contrary. Realizing this position, [Link] and other
Senior Counsel toned down their submissions to some extent. They urged
that Section 10 of the Principal Act is the heart of the Principal Act and
once the consequences of subsection (3) of Section 10 of the Principal
Act cannot be visited on the Petitioners after repeal of the Principal Act,
then, a contrary intention is manifested. If we hold that such contrary
intention is not manifested and Section 6 of the General Clauses Act
applies to the repeal in question, then, that would result in inconsistency
and absurdity. This argument is premised on the fact that subsection (2)
of Section 20 of the Principal Act is not saved and that is not specifically
referred in clause (b) of subsection (1) of Section 3 of the Repeal Act and
hence, the above result will follow.
90 For the reasons that we have set out hereinabove it will not
be possible to accept any of these contentions. Firstly, as understood in
the case of clause (a) of Section 20(1) of the Principal Act the exemption
is granted qua the excess vacant land and bearing in mind the factors and
circumstances indicated therein. Secondly, it is an exemption granted in
public interest and to subserve it. Thirdly, even if the exemption is
granted under clause (b) of Section 20(1) that is to relieve the undue
hardship. Under both clauses the exemption order could be conditional. If
the validity of the exemption order together with the conditions is saved
and equally any action taken thereunder, then, it will not be proper to
hold that the exemption order and conditions therein cannot be enforced
by recourse to the Principal Act. That is because if the exemption is a right
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as is claimed, then, it is conditional. It is a right accrued, but the
conditions subject to which that right accrues cannot be ignored. Those
conditions are linked to the right and privilege acquired or accrued. If
that condition is in the nature of obligation or liability attached to the
privilege or right, then, a different intention not being spelled out that is
saved despite the repeal. The reasons, therefore, indicated above would
take care of these submissions of the learned Senior Counsel appearing
for the Petitioners and are enough to reject them.
91 If an intention was to the contrary as urged by the learned
Senior Counsel for the Petitioners, then, there was no need for the
Parliament to have save the validity of any exemption order under sub
section (1) of Section 20 of the Principal Act or any action taken
thereunder and declare the same to be not affected by repeal of the
Principal Act notwithstanding any judgment of any court to the contrary.
There may have been cases before repeal of the Principal Act in which
there was challenge to the exemption orders or to the conditions
thereunder. Some of these challenges may have succeeded. The validity of
the exemption order may have been put in issue and even such
pronouncements of the court may affect the order granting exemption or
any action taken thereunder. Now, because of Section 3(1)(b) of the
Repeal Act, it is apparent that the order or condition or action is not
invalid. It is declared to be valid by the Repeal Act and, therefore, the
repeal of the Principal Act was not to affect the validity of such an order.
In other words during subsistence of the Principal Act and when it was in
force the exemption order or condition thereunder or any action taken
thereunder may have been declared invalid by a court of law. Now,
notwithstanding any judgment of any court to the contrary the validity of
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exemption order is saved. That is saved expressly so as to not take away
its legal effects. The intent is not to affect adversely the legal
consequences flowing from such valid order. Hence, far from manifesting
or demonstrating a contrary intention, Section 3 of the Repeal Act is
consistent and in consonance with the applicability of Section 6 of the
General Clauses Act. In these circumstances we are of the view that the
principle laid down in the afore noted cases including Bansidhar (supra)
would squarely apply.
92 That leaves us with only one argument of [Link] and
he submits that Section 6 of the General Clauses Act will not apply
because the Repeal Act has to be adopted in terms of subsection (3) of
Section 1 of the Repeal Act by the States other than the States of Haryana
and Punjab. He relied upon Article 252 of the Constitution of India and
particularly clause (2) thereof.
93 We are unable to accept his contentions and for obvious
reasons. Article 252 of the Constitution of India confers power in the
Parliament to legislate for two or more States by consent and adoption of
such legislation by any other State. Clause (2) thereof states that any Act
passed by the Parliament may be amended or repealed by an Act of
Parliament passed or adopted in like manner, namely, as set out in clause
(1) of Article 252 of the Constitution of India by any State to which it
applies, but the State Legislature of that State cannot amend or repeal
any Act of the Parliament on its own. That it has to adopt it by resolution
passed in that behalf is clear by clause (1) of Article 252. However, we do
not find anything in the language of Section 6 of the General Clauses Act
which would enable us to hold that the same does not apply in the
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situation with which we are concerned. It will have to be clarified that the
Principal Act in the case is the Central Act. It has been made after
commencement of the General Clauses Act, 1897. Equally, the Repeal Act
is an Act of Parliament made after the General Clauses Act. Just as the
Principal Act had the section of applicability and applied at once to some
States, but had to be adopted by other States and a resolution had to be
passed in that behalf, similarly, the Repeal Act also contains identical
provisions. Merely because the Repeal Act has to be adopted and comes
into force in the State which it adopts upon passing of the resolution by
the House of that State will not mean that Section 6 of the General
Clauses Act does not apply. The applicability of Section 6 of the General
Clauses Act has to be seen qua the Repeal Act. [Link] does not
dispute that it applies to the Repeal Act. His argument is that because of
adoption of the Repeal Act by resolution of the House of the State of
Maharashtra, Section 6 of the General Clauses Act will not apply. The
resolution merely adopts the Repeal Act made by the Parliament in the
State. If Section 6 of the General Clauses Act applies to the Repeal Act
and that is how its applicability is being tested, then, the argument of
[Link] need not detain us.
94 Reliance that [Link] placed upon the judgment in the
case of Kolhapur Canesugar Works Limited v/s Union of India reported in
(2000) 2 SCC 536 is entirely misplaced. There, the Honourable Supreme
Court was concerned with a situation as to whether Section 6 of the
General Clauses Act, which is applicable to repeal of enactments by a
Central Act or Regulation, would apply in the case of either omission or
rule. The Constitution Bench held that this Section 6 cannot apply in case
of omission of a rule and the term regulation in Section 6 of the General
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Clauses Act has specific legal connotation. That has been defined legally
and in that regard the definitions of the terms “enactment”, “regulation”
and “Central Act” have been noted in paragraphs 18 and 19. These
definitions are to be found in the General Clauses Act itself. Since a mere
rule would not be covered by the term “regulation” as defined that the
Constitution Bench held that going by Section 3(51) of the General
Clauses Act Section 6 has no applicability in the case of omission of a rule.
We do not see how this judgment can have any applicability in our case.
Rather the observations in paragraph 32 of this judgment clarify the
position that so long as a “Rule” takes its colour from the definition of the
terms in the General Clauses Act the repeal of the same cannot be
construed in the light of Section 6 of the General Clauses Act.
95 In that regard, reliance placed by the learned Advocate
General on the judgment of the Division Bench of the Madhya Pradesh
High Court reported in AIR 1979 Madhya Pradesh 108 (Rajendra Kumar
v/s State of Madhya Pradesh) is appropriate. In paragraph 7 of this
decision the Division Bench clarified the legal position that when the
Parliament passes an Act with the consent of States the Act so passed
cannot be classified as a State Act. Further, the Division Bench clarified
the legal position in the context of Article 252 of the Constitution of India
as well. (See paras 4 and 8). [Link]'s arguments overlook the fact
that the Repeal Act has merely been adopted by the State of Maharashtra
by passing a resolution by the Legislature of that State and therefore, it is
not the resolution of the State Assembly with regard to which we are
looking at the applicability of Section 6 of the General Clauses Act.
[Link], therefore, rightly canvassed alternate arguments and which
are more or less on the same lines as that of [Link] and other Senior
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Counsel. Additionally, [Link] submitted that Section 3 of the
Repeal Act and particularly clause (b) of subsection (1) thereof is a
special saving and saves only that which is specifically mentioned. There
is no room for any implication or reading into it something which is not
specifically mentioned therein. It is his argument that it is not a validating
statute or clause. It saves a subordinate legislation according to him.
96 None of these arguments are sound in law. We are concerned
with Section 3 of the Repeal Act which is titled “saving”, but subsection
(1) thereof states that the repeal of the Principal Act shall not affect and
what it is not affected thereby is set out in clauses (a), (b) and (c) of sub
section (1) of Section 3. By clause (a) the repeal will not affect the vesting
of any vacant land under Section 10(3), possession of which has been
taken over by the State Government. If the intention was to obliterate and
wipe out everything, then, there was no need to insert clause (a) as well.
Clause (a) has been inserted so as to save the vesting of the land under
Section 10(3) and which is in possession of the State Government. The
Legislature was aware that in the light of the repeal of the Principal Act it
would be necessary to save the vesting inasmuch as subsection (3) of
Section 10 of the Principal Act itself speaks of vesting of the excess vacant
land in the State absolutely free from all encumbrances upon its deemed
acquisition. That deemed acquisition results after a declaration is
published in the official Gazette in terms of Section 10(3). The Parliament
stepped into to save only such vesting which has resulted in the land
being taken over by the State Government and not otherwise. By a mere
declaration in terms of Section 10(3) the vesting which otherwise takes
place would not be saved if in pursuance thereof the land is not taken
over by the State. Therefore, it is incorrect to urge that Section 3 of the
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Repeal Act saves a subordinate legislation. Clause (a) of subsection (1) of
Section 3 of the Repeal Act is a substantive provision and the repeal
clearly affects the vesting of land of which possession has not been taken
because by subsection (2) of Section 3 such land can be restored. Hence,
a situation where there is a declaration issued and contained in the
notification contemplated by Section 10(3) of the Principal Act, but the
State failed to act in pursuance thereof and has not exercised it's power
under subsections (5) and (6) of Section 10 of the Principal Act, is dealt
with by Section 3(1)(a) of the Repeal Act. By clause (b) a substantive
provision has been made and to deal with a different situation, namely,
the excess vacant land and which may or may not be covered by
declaration under Section 10(3), but which is exempted in exercise of the
statutory power conferred vide Section 20(1) of the Principal Act. It is the
exercise of that power to exempt and all consequences which follow a
valid exemption order that are saved by clause (b). This is as set out
above not only saving the validity of order granting exemption, but any
action taken thereunder and notwithstanding anything in any judgment
of any court to the contrary. One more aspect or matter is dealt with by
clause (c) of subsection (1) of Section 3 of the Repeal Act inasmuch as if
for granting exemption under Section 20(1) of the Principal Act there is a
condition to make payment to the State Government and if the payment
is made in compliance thereof, then, that payment made to the State
Government is also saved. Therefore, on reading Sections 3 and 4 of the
Repeal Act it is not possible to accept the arguments of [Link] that
only a subordinate legislation is saved either by Repeal Act or Section 3.
Had it not been so [Link] would not have further alternatively
argued and adopted the contentions of [Link] and others that the
power to withdraw the exemption or initiate an action under Section
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20(2) of the Principal Act is not saved or does not survive the repeal.
97 We have already dealt with that argument and rejected it for
the reasons set out above. A faint attempt was made by [Link] to
show that clause (b) has been inserted in subsection (1) of Section 3 of
the Repeal Act to protect the rights of innocent third parties or action
under the exemption orders which may affect them. It is not a substantive
provision and by no stretch of imagination revives the Principal Act is his
argument. We fail to see as to how in the absence of clause (b) a power of
exemption once exercised and when the Principal Act was in force, but
that order or any action taken thereunder being declared invalid that
could have survived the repeal even with the aid of Section 6 of the
General Clauses Act, 1897. In other words, it could have been argued that
not only there should be a power of exemption exercised, but the order in
that behalf or any action taken thereunder should have been valid, lawful
and subsisting on the date of the Repeal Act or at least when it came into
force. It could have been then said that only in such a situation that the
order would survive the repeal even without insertion of clause (b) in
subsection (1) of Section 3 of the Repeal Act with the aid of Section 6 of
the General Clauses Act. To get over this situation and position a
substantive provision has been made in the Repeal Act which says that the
repeal of the Principal Act shall not affect the validity of any order
granting exemption under Section 20(1) of the Principal Act or any action
taken thereunder notwithstanding any judgment of any court to the
contrary. This is a substantive provision and read together with other
clauses of subsections (1) and (2) of Section 3 and Section 4 of the
Repeal Act, so also, Section 6 of the General Clauses Act and
harmoniously does not revive the Principal Act as is urged, but saves the
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exemption order in exercise of the powers conferred by the Principal Act
or any action taken thereunder by declaring it to be valid notwithstanding
any judgment of any court to the contrary. That would be the correct
reading of the provisions or else [Link] would not have still further
argued that clause (c) of subsection (1) of Section 3 of the Repeal Act
does not save the liability incurred under the exemption order, but only
saves the payment made to the State Government. This further alternate
argument itself would show that [Link] is not on a strong and
sound legal footing in urging that Section 3 of the Repeal Act is not a
substantive provision. That it is titled as “savings”, but contains the
substantive provisions which do not show any contrary intention to
applicability of Section 6 of the General Clauses Act is what is held by us
hereinabove. A correct and proper reading of clause (c) of Section 3(1) of
the Repeal Act would be that the Legislature had in mind a conditional
exemption order. One of the conditions could have been of making
payment to the State Government for granting exemption under Section
20(1) of the Principal Act. If the power to exempt does not survive the
repeal, but the intent was to save the power to exempt already exercised
conditionally or otherwise that the Legislature stepped in to save even
payment made to the State Government for grant of such exemption. That
is because a beneficiary of the exercise of power of exemption should not,
post repeal of the Principal Act, urge that the State has no right to retain
the amount paid by him, but must refund it. That he has already made
payment and the power to exempt having been exercised when the
Principal Act was in force that it is clarified that the payment made to the
Government as a condition for granting exemption would survive the
Repeal. That is to take care of the plea that such payment will no longer
be valid as the exemption comes to an end post repeal. Therefore, in
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order to declare that the power of exemption once exercised would
survive the repeal and equally the condition of payment thereunder that
clauses (b) and (c) have been inserted.
98 We find that [Link] is not right in placing reliance on
the judgments of the Honourable Supreme Court firstly in the case of Shri
Prithvi Cotton Mills Limited v/s Broach Borough Municipality reported in
2000 (123) ELT page 3 (SC). There, the Honourable Supreme Court was
considering a case of the rate on the lands and buildings imposed under
the Bombay Municipal Boroughs Act, 1925. Certain Assessees challenged
the imposition of these rates and filed the Writ Petitions to question it and
get the assessment cancelled. During the pendency of the Writ Petitions
the Legislature of Gujarat passed the Gujarat Imposition of Taxes by
Municipalities (Validation) Act, 1963. The Writ Petitions were, therefore,
amended and the Validation Act was questioned. The Honourable
Supreme Court, therefore, was considering the validity and legality of
Section 3 of this Validation Act. It is in that context that the observations
regarding a Validating Statute have been made. We do not see as to how
this judgment can have any application in the light of our conclusions
recorded hereinabove. This judgment is, therefore, clearly distinguishable.
99 Equally, misplaced is the reliance on the judgment of the
Honourable Supreme Court in the case of Union of India v/s West Coast
Paper Mills Limited reported in 2004 (164) ELT 375 (SC). There, the
question was as to whether the appeal can be considered as continuation
of the suit. We do not find how this judgment can assist [Link] in
his arguments on the Reference before us.
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100 Once we have held that neither the power to exempt can be
said to be legislative nor can it be held that the Repeal Act saves the
subordinate legislation, then, no assistance can be derived from the
judgment in the case of Air India V/s Union of India reported in (1995) 4
SCC 734. Rather some of the observations therein and particularly
reference to Bennion on Statutory Interpretation in paragraph 7 of this
judgment would assist us and reinforce our above conclusions.
101 We are not in agreement with [Link] that the power to
exempt conferred by Section 20 of the Principal Act is legislative in
nature. We are of the clear opinion that this power is QuasiJudicial in
nature. The nature of this power is to exempt the excess vacant lands. In
other words, they are vacant lands in excess of ceiling limit. They are
exempted from the provisions or applicability of ChapterIII on the
satisfaction reached and which is to be found in clause (a) and clause (b)
of subsection (1) of this provision. In a decision reported in AIR 1982
Madhya Pradesh 33 (Nandakishore v/s State of M.P.), the Division Bench
of Madhya Pradesh High Court held as under:
“5. …..... Clause (a) of Subsection (1) of Section 20 of
the Act empowers the State Government to exempt
any vacant land in public interest; whereas Clause (b)
thereof empowers the State Government to grant
exemption to any person who holds vacant land in
excess of the ceiling limit, where such exemption is
considered necessary to avoid undue hardship to such
person. The second schedule to the Act inter alia
prescribes Rs.10/ as courtfees stamp to be paid on
an application for exemption of vacant land under
Section 20 of the Act. The power to exempt so
conferred on the State Government carries with it an
obligation to exercise that power on a case being
made out for the purpose. Of course, the power to
exempt is exercisable by the State Government on its
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own motion, but the same can be exercised otherwise
also. This is what flows from the use of the expression
"either on its own motion or otherwise" used in
Clauses (a) and (b) of Section 20(1) of the Act. The
words "or otherwise" cannot be construed ejusdem
generis and are indicative of the fact that the power is
exercisable on being invoked in any other manner. The
natural corollary of this position of law is that the
petitioners have right to submit a petition invoking
the exercise of the power of exemption so conferred on
the State Government. This Legislative intendment is
also clear from the provision of courtfee on an
application for exemption of vacant land under
Section 20 of the Act made in Schedule as stated
above. The power to exempt by its very nature in cases
to which Clause (a) of Section 20(1) of the Act is
applicable, appears to be exercisable in public interest;
whereas so far as Clause (b) of Section 20(1) of the
Act is concerned, the power is exercisable for the
benefit of the holders so that undue hardship on
account of operation of the Act may be avoided. In
present case the petitioners appear to invoke the
power vested in the State Government under Section
20(1)(b) of the Act. Now, in order that the power to
exempt may be exercised under the aforesaid Clause
(b), it is necessary that the State Government should
be satisfied that the application of the provisions of
the Chapter III (in which Section 20 is placed) would
cause undue hardship to the person who holds the
vacant land in excess of the ceiling limit. On a case of
undue hardship being made out, the State
Government may by order exempt subject to such
conditions, if any, as may be specified in the order,
such vacant land from the provisions of the said
Chapter. Thus in essence the provision is for the
benefit of the holder and its object appears to be to
grant exemption so as to avert causing of undue
hardship to him by operation of the law. If the State
Government feels satisfied that a case has been made
out for grant of exemption claimed, then an order of
exemption may be passed even without hearing the
claimant. An order in favour of a party can be passed
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behind his back even. But the question is whether an
order affecting the interests of the claimant adversely
can be passed without hearing him. Having regard to
the object which the provisions placed in Section
20(1)(b) of the Act have to achieve and also having
regard to the serious consequences which will ensue in
case the claim for exemption is rejected without
hearing the claimant, it has to be held that the
claimant has to be heard before refusal of his claim
for exemption, so that he may show that there will be
undue hardship to him in case exemption is not
granted. Section 20(1)(b) of the Act does not negate
natural justice and in absence of express exclusion of
the rule of audi alteram partem, it is fair, indeed
fundamental, that the person claiming exemption
should not be prejudiced by action without
opportunity to show the contrary.
6. The power of exemption has the effect of restoring the
applicability of the general law by taking away the
exemption to it created by the special law,
Accordingly, the power to claim exemption is a
valuable right. Where under the provisions of an Act
an authority is empowered to grant exemption and a
person has a right to claim it on fulfilment of
statutory conditions, the authority is bound to hear
him and pass a speaking order giving reasons in
support of its finding that he is not entitled to the
exemption.
7. Faced with this situation Shri Kulshreshtra contended
that the satisfaction postulated by the aforesaid
provision is subjective satisfaction merely and that in
absence of a corresponding provision in Clause (b) of
Section 20(1) for giving an opportunity of hearing, as
placed in Subsection (2) of Section 20 of the Act,
hearing of the petitioners prior to passing of the
impugned order was not necessary.
8. Satisfaction of the State Government contemplated by
cl. (b) of Section 20(1) of the Act has to be with
regard to the nature of hardship, which would be
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caused to the claimant. Accordingly, the satisfaction
envisaged has to be objective in its character and
cannot be subjective satisfaction merely, the
touchstone for testing the validity or otherwise of the
satisfaction having been provided by the law. The
function of the State Government accordingly is of a
quasijudicial character.
9. It is true that unlike Subsection (2) of Section 20 in
Clause (b) there is no specific provision for giving a
reasonable opportunity to the person concerned, but
from the language employed therein and in view of
the object which the provision has to achieve it has to
be regarded that acting upon the principle of natural
justice regarding hearing of the claimant is necessary
while deciding his claim for exemption thereunder. A
bare perusal of the impugned order will show that it
has been passed in accordance with the order passed
by the State Government in the department of Land
Records and Settlement on 2311980 rejecting the
application of the petitioners for grant of exemption.
It is not shown that the petitioners were either heard
by the State Government prior to passing of the order
conveyed vide Annexure R/5, to the Deputy
Commissioner of Land Records and Settlement, who
passed the order contained in Annexure P/2, in
pursuance thereof .
10. …...
11. Another contention put forth by Shri Kulshrestra was
that in view of the proviso to Clause (b), recording of
reasons is necessary only in case of grant of
exemption. This contention does not merit acceptance.
The expression "no order under this clause" is wide
enough to cover the order of grant as well as refusal.
Even otherwise, if in case of granting exemption
reasons are required to be stated it beats ones
imagination how in cases of rejection a claim for
exemption recording of reasons can be regarded to be
unnecessary.
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12. Lastly, it was contended by Shri Kulshrestra that the
use of the word "may" in Clause (b) of Section 20(1)
of the Act does show that the power is discretionary
and if in its discretion the State Government have
rejected the application no challenge can be
entertained against the order of rejection. The
contention advanced by Shri Kulshrestra on the point
overlook the principle of law that when power is given
to a public authority, there may be circumstances
which couple with the power a duty to exercise it.
Where a power is deposited with a public officer for
this purpose of being used for the benefit of persons
specifically pointed out with regard to whom a
definition is supplied by the legislature of the
conditions upon which they are entitled to call for its
exercise, that power ought to be exercised. See
Jullius v. Lord Bishon of Oxford, ((187480) ALL ER
Rep. 43 (HL) at p.47. Viewed from this angle, it
appears that the provisions placed in Section 20(1)(b)
of the Act are for the benefit of holders and the power
conferred thereby is exercisable for their benefit for
averting undue hardship that would be caused to
them if the land in respect of which exemption is
claimed is not exempted from the operation of the Act.
Accordingly, on case being made out, exemption has
to be granted and the State Government cannot
withhold the exemption claimed. As such, the word
"may'' cannot be construed in a manner to clothe the
State Government with arbitrary power to reject an
application for exemption, even if the conditions for
grant thereof stand made out.”
102 This judgment has been followed by another Division Bench
of Gujarat High Court in AIR 1985 Gujarat 47 (Manilal Hiralal Doshi v/s
State of Gujarat). We are not concerned with other findings and
conclusions of the Division Bench of Gujarat High Court, but in paragraph
4 of this judgment the observations of the Madhya Pradesh High Court
are referred and followed and in paragraphs 3 and 5 this is what is held:
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“3. …....... The Government's satisfaction about granting
or not granting the exemption under that provision
obviously rests on objective facts. The factors which
are required to be taken into account by the
Government are (1) the location of the land, (2) the
purpose for which such land was used at the time the
application comes to be made or (3) the purpose for
which such land is proposed to be used in future and
(4) such other relevant factors as make the
Government decide that it is necessary or expedient
and that too in the public interest to grant the
exemption. What is public interest is a matter difficult
to be defined, but not difficult to be understood by
description. A good deal of factors would be required
to be examined by the Government under this head it
is well said that in a complex spectrum of facts like
the one required to be examined by the Government
for the purpose of exercising its powers under S.
20(1)(a) which powers are not absolute powers but
are powers coupled with a duty. The Government
must have proper presentation of materials before it
More often than not if such a complex issue is taken
on hand by the Government ex parte, incorrect or
improper decision is likely to arise. It is, therefore, in
the fitness of the things that the Government should
ordinarily hear the applicant if the Government is
prima facie and ex parte inclined to take a view that
the exemption was not to be granted. If an applicant
has specifically sought for an opportunity to present
the case personally or through an agent in a situation
like the one arising under S. 20(1)(a) of the Act it is
all the more necessary for the State Government to
hear the applicant. …........ When a citizen applies for
exemption say for example, for establishing any
industry and such proposed future user of the land is
one of the relevant factors to be counted while dealing
with an application under S. 20(1)(a) of the Act, the
citizen in such a situation would be able to explain his
difficulties more effectively if personal hearing is
granted. It is because of this far reaching effect of the
Governments decision on his prospects that we say
that the hearing is required to be read as the implicit
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requirement of the provisions of the S. 20(1)(a)(b) of
the Act.
5. It is no doubt true that the judgment of the Madhya
Pradesh High Court was one relating to an
application for exemption under sub cl (b) of sub s.
(2) of S. 20 of the Act but the underlying principles
remain the same. As a matter of fact some petitions in
this group are the petitions for exemption under S.
20(1)(b) itself. To our mind the underlying principles
remain the same when the Government has to
consider an application for exemption either under Cl
(a) or Cl (b) of sub s. (1) of S. 20 of the Act. In this
view of the matter these nine petitions beginning with
the Special Civil Application No.2181/83 are required
to be allowedby setting aside the orders of refusal to
grant exemption. The outcome will he that the
Government will afford a reasonable opportunity of
audience to all these petitioners and then decide their
applications afresh in accordance with the provisions
of the Act. The extension of opportunity of audience
can be best proved to have been given by the necessary
corollary of giving reasons if the vigorous submission's
of the applicants are dealt with by a reasonably
reasoned order, It is in the interest of the Government
also to give a reasoned order in order to escape the
charge of non application of mind. We accordingly
direct to give personal hearing to these petitioners and
decide the matters by a reasonably reasoned order.”
103 The above quoted observations of the Division Bench of the
Gujarat High Court and prior thereto of the Madhya Pradesh High Court
have our respectful concurrence.
104 Similar view has been taken by the learned Single Judge of
Karnataka High Court in the judgment reported in AIR 1987 Karnataka 5
([Link] Bhat v/s Special Deputy Commissioner and Competent
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Authority, Mangalore). In paragraph 16 this is what is held:
“16. It is true that unlike subsection (2) of Section 20, in
clauses (a) and (b), there is no specific provision for
giving a reasonable opportunity to the person
concerned. But it seems to me from the language
employed therein and also in view of the object sought
to be achieved, it is to be regarded that acting upon
the principles of natural justice regarding hearing of
the claimant is necessary while deciding his claim for
exemption thereunder. Satisfaction of the State
Government contemplated under clauses (a) and (b)
of subsection (1) of Section 20 of the Act has to, be
with regard to the question of public interest or the
nature of hard ship, which would be caused to the
claimant. Having regard to these objects to be
achieved, it must be reasonable to hold that the
satisfaction envisaged has to be objective in its
character and cannot be merely subjective satisfaction
the touchstone for testing the validity or otherwise of
the satisfaction having been provided by the law. In
this view, the function of the State Government,
appears to me, is of a quasijudicial character. The
view I take gains support from a decision of the
Madhya Pradesh High Court in Nandakishore v.
State, AIR 1982 Madh. Pra. 33.”
105 The above observations have been followed in a Division
Bench judgment of this Court reported in 1988 Mh.L.J. 773 (Janardhan
Gadekar v/s Assistant Collector and Competent Authority). (see para 13).
106 The above conclusions are enough to show that the power to
exempt cannot be said to be legislative, but is held to be quasijudicial in
nature. It is, therefore, clear that the said power can be invoked by the
applicant/ individual also. Secondly, it requires an order to be passed in
either event and which should be communicated to the party/ person.
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This would outline the nature of the power and which surely cannot be
said to be legislative in character. We need not, therefore, refer to any
further decisions and which would set out the difference between the
powers, namely, legislative and quasijudicial.
107 The judgments that have been cited by [Link] must
now be noted. He strenuously urged that he is supported in his argument
by the judgment of the learned Single Judge of Andhra Pradesh High
Court in Writ Petition No.26474 of 2009 (Surendra Raj Jaiswal v/s
Government of Andhra Pradesh) decided on 24.08.2011. There, the Writ
Petition was filed challenging the rejection by the Government of the
claim of the Petitioners and permission sought by them to construct a
multiplex theatrecumshopping complex in the place of existing cinema
theatre. It was their case that they had filed declaration declaring various
extents of land held by them along with their father on the
commencement of the Principal Act. They also filed an application before
the Government seeking exemption from ChapterIII of the Principal Act
so as to run an existing cinema theatre on their property called Deepak
Mahal Cinema situate at Narayanguda in Hyderabad Urban
Agglomeration. The order of exemption was passed and with a condition
that the said land should be utilized only for running a cinema theatre
and subject to further conditions which are incorporated in the order of
exemption. It was by virtue of exemption order that cinema theatre was
being run. Thereafter, the Principal Act was repealed in the State of
Andhra Pradesh after adoption of the Repeal Act with effect from
27.03.2008. It is in these circumstances that the Petitioners argued that
they are entitled to use the property for construction of Multiplex Theatre
cum shopping complex. We find that from paragraphs 2 to 6 the facts
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are noted. Thereafter, in paragraph 8 reference is made to the Principal
Act and the power to exempt. Then in paragraph 9 reference is made to
the Repeal Act. In paragraphs 10 and 11 the learned Single Judge held as
under:
“10. From a perusal of the aforesaid provisions under
Sections 3 and 4 of the Urban Land (Ceiling and
Regulation) Repeal Act of 1999, it is clear that the
orders granting exemption under subsection (1) of
Section 20 of the principal Act are saved. It is also
clear from a perusal of the provision under Section
3(1)(c) of the Repealing Act that repeal of the
principal Act shall not affect any payments made to
the State Government as a condition for granting
exemption under subsection (1) of Section 20 of the
principal Act. But, at the same time, the provision
under subsection (2) of Section 20 is not saved.
Section 20(1) of the principal Act empowers the
Government to exempt any land subject to certain
conditions, but under subsection (2) of Section 20 of
the principal Act, the Government was empowered to
withdraw such exemption in cases where conditions
are violated. A harmonious reading of the provisions
under Sections 20(1) and 20(2) of the principal Act,
coupled with Section 3 of the Repealing Act, makes it
clear that the order granting exemption is saved only
with a view to avoid repayment of any amounts
collected by the State Government, while granting
exemptions. When the principal Act itself is repealed
on the ground that it has failed to achieve the
objective expected of it, it is not open for the 1 st
respondentGovernment to refuse permission in the
instant case, only on the ground that the conditions
imposed in the order granting exemption shall
continue to operate. In the absence of any saving
clause, saving subsection (2) of Section 20 of the
principal Act, even in cases where conditions are
violated, Government is not empowered to withdraw
the exemptions granted under Section 20(1) of the
principal Act, after coming into force of the Urban
Land (Ceiling and Regulation) Repeal Act, 1999. In
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the absence of such power, and further, in view of the
Repealing Act itself, the conditions imposed in the
order granting exemption, have become un
enforceable and are nonest. In the absence of
initiation of proceedings or withdrawal of exemption
granted under Section 20(1) of the Principal Act
before the enforcement of the Urban Land (Ceiling
and Regulation) Repeal Act, 1999, the land, which is
exempted, will become a freehold land, and hence, the
stand of the respondents that even after coming into
force of the Repealing Act, 1999, the conditions
imposed in the order granting exemption under
Section 20(1) of the principal Act shall continue to
operate, cannot be accepted. The said interpretation
will run contra to the very objective of the Urban
Land (Ceiling and Regulation) Repeal Act, 1999. Said
view also gains support from the other provisions of
the Repealing Act, particularly Section 4, which states
that all proceedings relating to any order made or
purported to be made under the principal Act,
pending immediately before the commencement of the
Urban Land (Ceiling and Regulation) Repeal Act of
1999, shall stand abate, except in cases where
possession is taken by the State Government or any
person duly authorized by the State Government on
behalf of the competent authority.
11. Having regard to the provisions under Section 20(1)
and (2) of the Urban Land (Ceiling and Regulation)
Act, 1976 and the provisions under Sections 3 and 4
of the Urban Land (Ceiling and Regulation) Repeal
Act, 1999, it is to be held that in cases where the
vacant land is exempted under Section 20 of the
principal Act and where such exemption is not
withdrawn before the enforcement of the Repealing
Act, 1999, such land will become the freehold land
irrespective of any conditions with regard to usage of
the exempted land. As held above, as the land in
question has become the freehold land in view of the
Repealing Act, 1999, there appears no reason or
justification for not granting permission to use the
land covered by exemption proceedings, for the
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purpose of multiplex theatrecum shopping complex.
In a strict sense, no such permission is necessary, but,
when the competent authority under the Greater
Hyderabad Municipal Corporation Act has not
received the application, petitioner had to approach
the Government, and as permission is denied by
misconstruing the various provisions of the Repealing
Act, 1999, the impugned order is liable to be set
aside.”
108 We do not see how firstly in the teeth of the factual position
where apart from the controversy with regard to survival of the order of
exemption and conditions thereunder post repeal, could the permission to
construct a multiplex theatrecumshopping complex in place of the
existing cinema theatre have been refused by the State Government. The
user was more or less similar with the original one. Apart therefrom the
learned Single Judge of Andhra Pradesh has not referred to any of the
judgments of the Honourable Supreme Court on the point and
particularly the decision in the case of Bansidhar (supra). The learned
Single Judge's attention was not invited to several aspects of the
controversy and which we have extensively noted above. The learned
Single Judge, therefore, with greatest respect, was not right in holding
that in the absence of any reference to subsection (2) of Section 20 of the
Principal Act in clause (b) of subsection (1) of Section 3 of the Repeal
Act the conditions imposed in the order granting exemption do not
continue to operate. We do not find any reference made to Section 6 of
the General Clauses Act either. With greatest respect, we are unable to
agree with the view taken by the learned Single Judge of Andhra Pradesh
High Court in the decision referred above.
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109 While on this point we also do not agree with [Link]
when he relies on the view taken by another Single Judge of Madras High
Court in Writ Petition No.46091 of 2002 and W.P.M.P. No.30655 of
2004 decided on 29.01.2007 ([Link] and L. Thirunavukarasu v/s
The Government of Tamil Nadu). There, the arguments were with regard
to acquisition of agricultural lands. Therein the Petitioners represented by
their father purchased the agricultural lands. After the property was
purchased the same was cultivated. The land was always agricultural
land. In relation to such an agricultural land the proceedings under the
Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 were initiated
and were sought to be continued. The Petitioners sought to make
payment for obtaining extract from the records of right at which point of
time it was informed that the lands have been acquired in the name of
[Link]. In these circumstances and by holding that the acquisition
under the said Ceiling Act when it was in force itself was invalid that the
Writ Petition was allowed. Apart therefrom it was urged that since the
Petitioners are in possession and enjoyment of the lands as reflected in
the revenue records and possession was not taken from them the
proceedings in that regard abate by virtue of the Repeal Act. This decision
more or less is on applicability of Section 3(1)(a) of the Repeal Act and
not an authority on the point in the present case. It is, therefore, clearly
distinguishable.
110 [Link]'s reliance upon a judgment of the Delhi High
Court in the case of Tej Pratap Singh v/s Union of India in Writ Petition
(Civil) No.2455/1992 decided on 16.07.2009 must now be noted.
There, a Division Bench of the Delhi High Court had before it a situation
where the exemption was granted in terms of Section 20(1)(a) and
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Section 22 of the Principal Act on 02.07.1992 subject to the condition
that the Petitioners before the Delhi High Court would make payment of
Rs.18,37,74,528/ to the Land & Building Department, Delhi
Administration within 45 days. Aggrieved and dissatisfied with this
condition the Writ Petition was filed in the Delhi High Court in 1992 itself
which was styled as Writ Petition (Civil) No.2455/1992. During the
pendency thereof the Repeal Act came into force. The facts have been
noted and particularly that the Petitioner was pursuing his claim for
exemption for the purpose of redevelopment of the property. He rather
invited a decision from the Authorities on his application. That was
because his building plans were not sanctioned. A Division Bench of Delhi
High Court passed the interim order in another Civil Writ Petition which
is referred to in paragraph 4 of the judgment. That interim order was
challenged before the Honourable Supreme Court and the Honourable
Supreme Court passed an order directing the competent authority under
the Principal Act to decide the Petitioner's application. That is how the
order impugned in the subject Writ Petition was passed. The earlier Writ
Petition was disposed of as infructuous in the light of the Repeal Act being
brought into force.
111 The argument was that the conditional exemption granted
would not survive the repeal of the Principal Act. At best and at the
highest if a condition of payment is not satisfied, then, the State
Government could have withdrawn the exemption order when the
Principal Act was in force. But, now same having been repealed that is no
longer possible. We find that this was an alternate argument, but the
main argument was that because the Principal Act is repealed there is no
question of any exemption sought being granted or the question of grant
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of any exemption does not arise. Therefore, understood in the above
perspective the controversy was whether the claim for exemption made
by the Petitioner and the conditional order of exemption would survive
post repeal. The Petitioner had challenged the condition imposed in the
order of exemption and he had not abided by the condition admittedly.
There was thus no exemption order in force. Yet in such a matter a
Division Bench of Delhi High Court made the following observations:
“11. The learned counsel for the respondent nos. 2 to 4
submitted that Section 3(1)(b) of the Repealing Act
would apply in this case whereby the exemption order
has been specifically saved. Therefore, according to the
learned counsel, the repeal of the ULCR Act would not
affect the conditional exemption granted by virtue of the
order dated 02.07.1992. The learned counsel for the
respondent nos. 2 to 4 also submitted that the repeal is
prospective and not retrospective. He also referred to
Section 6 of the General Clauses Act, 1897 which deals
with the effect of repeal. The said Section stipulates that
repeal of an enactment by a Repealing Act, unless a
different intention appears, shall not, inter alia, affect
any right, privilege, obligation or liability acquired,
accrued or incurred under any enactment so repealed.
Consequently, it was submitted that the right of the
petitioner to get an exemption under Section 20 (1) (a)
was subject to the liability of making the said payment
and other conditions which were imposed by the
exemption order. According to him, by virtue of Section
6 of the General Clauses Act, 1897, the said liability,
which had been incurred by the petitioner to make the
said payment and to comply with the other conditions
for the grant of exemption, was specifically saved by the
Repealing Act.
12. We have considered the arguments advanced by the
counsel for the parties. One thing is clear that the ULCR
Act has been repealed by the said Repealing Act. We have
already quoted Sections 3 and 4 of the Repealing Act.
Section 4 deals with abatement of legal proceedings and
stipulates that all proceedings leading to any order made
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or purported to be made under the principal Act pending
immediately before the commencement of the Repealing
Act before any court, tribunal or other authority shall
abate. In other words, all such proceedings shall abate
on and from the coming into force of the Repealing Act.
There is a proviso to this Section which stipulates that it
would not apply to proceedings relating to Sections 11,
12, 13 and 14 of the ULCR Act insofar as such
proceedings are relatable to the land, possession of
which has been taken over by the State Government or
any person duly authorized by the State Government in
this behalf or by the competent authority. From a
reading of the entire Section 4 of the Repealing Act, it is
clear that all proceedings for declaring excess vacant
land and acquisition of the said excess vacant land come
to a halt except the proceedings pertaining to Sections
11, 12, 13 and 14 of the ULCR Act provided possession
of the land in question has not been taken over by the
State Government. In other words, those lands which
had not been taken into possession by the State
Government are excluded even in respect of the
proceedings relating to Sections 11, 12, 13 and 14. It is
clear that the intent of the Legislature was not to
implement the provisions of the ULCR Act any further if
they had not already resulted in the taking over of
possession of the lands in question. This is the general
intent which is discernable from a plain reading of
Section 4 of the Repealing Act. In the present case, it is
an admitted position that the land in question, which is
situated at 23, Barakhamba Road, New Delhi, has not
been taken into possession by the State Government. In
fact, the stage of the present case is that an order under
Section 8(4) of the ULCR Act has been passed and a
final statement has also been prepared under Section 9
of the same Act. The matter has not proceeded to the
stage of Section 10 which relates to acquisition of excess
land and vesting of the said excess land in the State
Government. There is, therefore, no question of the case
having proceeded to any stage beyond Section 9 of the
ULCR Act.
13. This takes us to the consideration of the Savings Clause
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provided in Section 3 of the Repealing Act. Section 3 (1)
(a) clearly stipulates that the repeal of the ULCR Act
shall not affect the vesting of any vacant land under sub
section (3) of Section 10, possession of which has been
taken over by the State Government or any person duly
authorized by the State Government in this behalf or by
the competent authority. We have noted above that the
possession of the property in question is still with the
petitioners and, therefore, this Clause is clearly
inapplicable. Section 3 (1) (b) stipulates that the repeal
shall not affect the validity of any order granting
exemption under subsection (1) of Section 20 or any
action taken thereunder, notwithstanding any judgment
of any court to the contrary. Section 3 (1) (c) provides
that the repeal shall not affect any payment made to the
State Government as a condition for granting exemption
under sub section (1) of Section 20. Reading sub
sections 3 (1) (a), (b) and (c) together, it appears to us
that the intention of the Legislature is that where an
exemption has been granted in favour of a land holder,
that is not to be disturbed notwithstanding any
judgment of any court to the contrary. The further
intention that can be discerned from the said provisions
is that the payment made to the State Government as a
part of a condition for granting exemption under Section
20 (1) is also saved. From this, it can be understood
that had it not been specifically provided that the
payment made to the State Government as a condition
for grant of exemption will not be affected by the repeal,
the same would have been affected by the repeal. In
other words, what this provision intends to save is the
actual payment, if any, made to the State Government
as a condition for granting exemption under Section 20
(1) of ULCR Act and not the condition itself. In the
context of section 6 of the General Clauses Act, 1897,
the petitioner‟s right to exemption under section 20(1)
of the ULCR Act is specifically saved, but, not the
„liability‟ to make the payment, unless the payment had
already been made prior to the repeal. The General
Clauses Act, 1897 would, therefore, apply subject to this
intention. And, the intention of Parliament appears to
be that: (1) if any payments are made to the State
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Government, that is not to be disturbed and (2) if any
exemption has been granted, that is also not to be
disturbed. It does appear to us that after the repeal, the
conditions of exemption which remain unimplemented
cannot now be implemented because they are not
specifically saved. The reason behind this being that
ceiling in respect of urban lands by itself has been
repealed altogether.”
112 For the reasons that we have recorded hereinabove, with
greatest respect, we are unable to agree with the Division Bench of Delhi
High Court. What has been held is that Section 3(1)(c) of the Repeal Act
saves is the payment made to the State Government as a condition for
granting exemption and not the condition itself. These observations are
contrary to the further observations that by virtue of Section 6 of the
General Clauses Act the Petitioner's right to exemption under Section
20(1) of the Principal Act is specifically saved, but not the liability to
make the payment unless payment had already been made prior to the
repeal. We do not see how such conclusion can be reached by the Division
Bench after holding that Section 6 of the General Clauses Act, 1897
applies to the repeal. To the extent that we have held to the contrary, with
greatest respect, we are unable to agree with the Delhi High Court's
judgment.
113 Equally, [Link]'s reliance upon the judgments of the
Honourable Supreme Court in the case of State of U.P. v/s Hari Ram
reported in (2013) 4 SCC 280, M/s Tata Coffee Limited v/s Government of
Andhra Pradesh in Writ Petition No.11929 of 2013 decided on
22.07.2013 (Andhra Pradesh High Court) and Gajanan Kamlya Patil v/s
Additional Collector & Competent Authority in Civil Appeal
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No.2069/2014 decided on 14.02.2014 by the Honourable Supreme
Court, is misplaced. Hari Ram's case (supra) was directly concerned when
the State fails to take possession of the excess vacant land pursuant to the
notification under Section 10(3) of the Principal Act. This is a decision on
applicability of Section 3(1)(a) of the Repeal Act. True it is that the
Honourable Supreme Court held that the word “vesting” or “vested” may
or may not include transfer of possession, but all such observations must
be seen in the context of the controversy, namely, the land being not taken
over physically. At the same time, the Honourable Supreme Court has
clarified in paragraph 41 of this judgment that the question whether a
right has been acquired or liability incurred under a statute before it is
repealed will in each case depend on the construction of the statute and
the facts of a particular case.
114 Similar is the situation with the judgment in the case of
Gajanan Kamlya Patil (supra). There, the question was whether this Court
was justified in relegating the parties to file a civil suit to recover the
lands so as to get benefit of the Repeal Act. On facts it was found that the
Government failed to take actual possession of the surplus land before
29.11.2007. In this backdrop and following the judgment in Hari Ram
(supra) that the order passed by the High Court was set aside and the
Appeals were allowed.
115 M/s Tata Coffee Limited judgment (supra) is once again by
the learned Single Judge of Andhra Pradesh High Court and there, the
controversy was more or less identical inasmuch as the application for
exemption was filed. The exemption was granted and the land was to be
put to a user as specified in the order. That was done by the predecessor
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intitle of M/s Tata Coffee. Thereafter, the successor M/s Tata Coffee
sought permission/ no objection certificate from the Joint Collector,
Ranga Reddy district for utilization of the subject land for the purpose of
development of housing scheme including providing of shelter to the
weaker sections of the society. The Collector informed that the NOC
cannot be granted unless the State Government accorded permission.
That is how the representation was made to the State Government and
which was rejected. For the reasons that we have recorded above, with
greatest respect, we are unable to agree with the view taken by the
learned Single Judge of Andhra Pradesh High Court.
116 [Link] then placed reliance on the judgment of the
Honourable Supreme Court in Synco Industries Limited v/s Assessing
Officer, Income Tax, Mumbai reported in (2008) 4 SCC 22 wherein in the
context of interpretation placed on the Income Tax Act and some of it's
provisions, the Honourable Supreme Court held that where the
predominant majority of High Courts have taken a particular view of the
legal provision and interpreted it, the Supreme Court would lean in
favour of this predominant view, but exceptions to this principle are also
set out. Once we have set out the reasons for disagreeing with the views
taken by other High Courts, we do not see how this principle can be of
any assistance.
117 For the reasons that we have recorded above we do not find
that the judgments relied upon by [Link] carry his submissions any
further.
118 Now we are left with reliance placed by [Link],
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[Link] and [Link] on the judgments of this Court.
119 Before that we would refer to some of the judgments which
have been relied upon by the learned Advocate General. Apart from
Bansidhar (supra) and the State of Punjab v/s Mohar Singh Pratap Singh
reported in AIR 1955 SC 84, the learned Advocate General relied upon
the judgment of the Honourable Supreme Court in the case of Her
Highness Maharani Shantidevi P. Gaikwad vs. Savjibhai Haribhai Patel and
Others reported in (2001) 5 SCC 101. We at once clarify that for our
purposes we are not required to decide as to whether the judgment of the
Honourable Supreme Court in the case of [Link] Mohammadi Begum
v/s State of U.P. (supra) stands overruled and to what extent. What we
find is that irrespective of whether Atia Begum (supra) is partially
overruled or not, the fact remains that compliance with the provisions of
the Principal Act is with reference to the date of it's commencement. The
land will have to be determined with reference to this date and that is
how it is treated and dealt with in the further provisions of the Principal
Act. The extent of the excess vacant land may be a matter for
determination and computation, but the time and period, so also, the date
on which it is so reckoned is not in any way affected. Hence, reliance on
the judgment in the case of Atia Begum (supra) and other judgments by
[Link] and equally by the learned Advocate General need not detain
us.
120 The learned Advocate General relied upon the judgment in
Shantidevi Gaikwad (supra) to show that Bansidhar (supra) is followed
and applied. That we find to be accurate on perusal of paragraphs 43 to
45 of this judgment. [Link] also relied upon these paragraphs to
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urge that a different intention appears in the Repeal Act involved in the
present case. However, we find that the Honourable Supreme Court has
reiterated the principle that a repealing statute is not exhaustive and does
not automatically extinguish the accrued rights unless taken away
expressly.
121 There is substance in the arguments of the learned Advocate
General that if the Petitioners are claiming that the exemption confers in
them a right or privilege, then, they cannot turn around and say that if it
is conditional then the rights or privilege survive the repeal, but the
conditions do not. If their arguments are accepted, then, even the right or
privilege claimed would not survive. That would lead to absurd
consequences. If relying upon the exemption order the excess vacant land
is retained and put to use in accordance with the terms and conditions of
the exemption order, then, the repeal of the Principal Act would mean the
exemption order even if treated as valid would not survive. However, the
exemption order is expressly saved and therefore, arriving at a conclusion
that the exemption order is treated valid for all purposes, namely, the
right that it creates and the obligation that it imposes on parties. It is only
such an interpretation which would subserve the object of the Repeal Act
and read as a whole.
122 For the reasons that we have recorded above and since this is
the principle which can be culled out from the decisions relied upon by
the learned Advocate General that reference to any further judgments on
the same point is unnecessary. Suffice it to reiterate that reliance placed
by the learned Advocate General on these judgments is well placed.
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123 We are also in agreement with the learned Advocate General
when he relies on the judgments of the Honourable Supreme Court which
have been referred to and followed the view taken in Bansidhar's case
(supra). We have already reproduced the paragraphs of those judgments
and as extracted in Bansidhar (supra). We agree with the emphasis by
[Link] on the principle that the liability to handover the excess
vacant land relates back to the appointed day or the date of
commencement of the Principal Act in any event. Therefore, it is clear
that these judgments and which are extensively referred in Bansidhar's
case (supra) cannot be brushed aside by us.
124 Reliance has been further placed on the judgment in the case
of Voltas Limited v/s Additional Collector & Competent Authority reported
in 2008 (5) Bombay Cases Reporter 746. While it is true that the
judgment of the Honourable Supreme Court in Bansidhar's case (supra)
was cited before the Division Bench deciding Voltas, but we do not find
any reference being made to the same. First of all this judgment is not
interpreting Section 3(1)(b) of the Repeal Act. It is a judgment and it
remains a judgment analyzing and interpreting Section 3(1)(a) of the
Repeal Act. [Link] heavily relies upon this judgment and to urge
that this judgment supports his submission that the only consequence
which would follow withdrawal of exemption order by exercising the
powers under Section 20(2) of the Principal Act is to apply ChapterIII of
the Principal Act and particularly the Section enabling vesting of the same
free from all encumbrances in the State of Maharashtra. His submission
presupposes that withdrawal is mandatory or that unless the exemption is
withdrawn the terms and conditions, if any, in the exemption order
cannot be enforced. We do not see how such absolute proposition
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emerges from reading of the judgment in Voltas Limited (supra). If
paragraph 11 of this judgment is carefully perused the Division Bench
while analyzing Section 3(1)(a) of the Repeal Act, so also, Section 3(2)
thereof holds that the land owner will get back title of the land only on
payment of the amount that he has received under the Principal Act from
the Government. It is in these circumstances that we are of the opinion
that this judgment must be seen as confined to this part of the Repeal Act
and cannot, therefore, be said to be construing other provisions of the
Repeal Act. The observations in paragraph 12 of this judgment in the
context of Section 6 of the General Clauses Act must be also seen as being
made so as to reinforce the conclusion with regard to applicability of
Section 3(1)(a) of the Repeal Act.
125 Then, there is reliance placed on the judgment in the case of
Vithabai Bama Bhandari v/s State of Maharashtra reported in 2009 (3)
BCR 663. There, the facts are to be found from paragraphs 2 to 12. They
would reveal that the essential relief was that the notice issued under
Sections 9 and 10 of the Principal Act be declared as abated. The petition
was by the holder of the land and more particularly described in the
judgment. The Petitioner was declared as holding surplus land. She
sought an exemption and the power under Section 20 was exercised with
a condition that 31 tenements of 40 [Link]. each i.e. 1180.04 [Link]. to
be sold to the Government nominees at fixed rate. The Petitioner,
therefore, made an application proposing to develop the land so as to
implement the scheme, but that proposal for development was rejected.
The Appeals were filed under the Principal Act, namely, under Section 33
and a fresh inquiry under Section 8(4) of the Principal Act was directed.
In pursuance thereof the holding of the Petitioner was determined afresh.
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An application was made for implementation of the scheme under Section
20 and in accordance with which the construction permission was
granted, construction was commenced and was completed within the
time frame prescribed for the same. It appears that the Petitioner
requested the Government/ competent authority to take possession of the
flats meant for the Government nominees, but before any further steps
could be taken, the Petitioner was informed that the exemption granted
under Section 20 itself was withdrawn. The Petitioner was served with a
notice under Section 10(5) calling upon her to handover possession of
surplus land due to non compliance of the conditions of exemption under
Section 20 of the Principal Act. That notice was challenged in the petition.
That is how the Petitioner relied upon the Repeal Act and in order to
avoid the consequences which would flow from cancellation or
withdrawal of the exemption order. The discussion in paragraphs 42, 43,
44, 45 and 46 of the judgment would reveal that the Division Bench was
only concerned with Section 3(1)(a) of the Repeal Act. Nothing else from
the Repeal Act has been noticed far from any larger controversy. In such
circumstances we do not think that this judgment is on the point and
particularly which has been referred to us. Apart therefrom what we find
is that the Division Bench did not allow the State to rely upon Section
3(1)(a) of the Repeal Act because the exemption order had already been
withdrawn. The question of saving such an order and when the State
desired to take possession of the land despite repeal of the Principal Act
and in the teeth of Section 3(1)(a) thereof, therefore, rightly did not
arise. However, we find that the observations made by the Division Bench
in paragraphs 38 to 51 to the extent of applicability of Section 6 of the
General Clauses Act insofar as contrary to what we have held above, do
not lay down the correct law.
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126 In the case of Mohan Gopalrao Mate v/s Principal Secretary
reported in 2009 (1) Bom.C.R. 275, once again it must be noted that the
Petitioner therein is an exMLA. He had challenged certain Government
Resolutions which impact large number of housing schemes and affect
large number of individual flat owners. That was in relation to handing
over and sale to the Government nominees at the prescribed or
predetermined rates for the Government quota flats. It was general
grievance and projected in public interest which was dealt with by the
Division Bench. Paragraphs 3, 4 and 5 of this judgment read as under:
“3. Counsel for the petitioner has further submitted that
the petitioner has filed the present petition in the
interest of Public as the Government Resolutions
dated 8.11.2007 and 12.4.2007 are against the
Public Policy and would affect the citizens who are the
original owners of the lands and were legally granted
exemption to hold vacant lands in excess of the ceiling
limit U/s. 20 of the Urban Land (Ceiling and
Regulation) Act, 1976 (hereinafter referred to as “the
ULC Act”, which has been repealed w.e.f. 29.11.2007
by the Government by adopting the Urban Land
(Ceiling And Regulation) Repeal Act, 1999
(hereinafter referred to as “the Repeal Act”). Though
the ULC Act has been repealed intentionally and
malafidely, Government has issued the aforesaid
resolutions which are impugned in this petition. As a
result, the Government, instead of ruling out
manipulation, is giving opportunity to the respondent
Nos. 2 and 3 to take arbitrary and malafide decision
so as to harass the original land owners/scheme
holders as well as a common man who has purchased
the flats in the said Scheme. It is submitted that, after
granting exemption to hold vacant land in excess of
the ceiling limit under section 20 of the ULC Act, the
land owners have to surrender certain portion of the
vacant land to the Government free of cost. The
Government, prior to adoption of Repeal Act, allowed
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to utilize such lands by the original land owners
under the provisions of section 23 of the said Act, if it
was not possible to use such a land for any public
purpose and was likely to be encroached. It is further
submitted that considering inability of Government to
protect the possession of said land, it was permissible
to the land owners to buyback such lands vide
Government Resolution [Link] 10 (2004)/C
No.93/ULCA2 dated 14.07.2004. However, for no
cogent reason, Government has issued the impugned
Resolution dated 8.11.2007 which is primafacie
arbitrary, unjust and not in the public interest and
therefore, the same is liable to be quashed and set
aside. This decision of the Government is arbitrary
and that would give rise to the respondent Nos. 2 and
3 to allot such lands (surrendered lands) to the men
of their choice. This has happened on a large scale, as
has been specifically observed and pointed out by the
“JUSTICE BATTA COMMISSION” and therefore,
revoking the earlier decision i.e. buyback of
surrendered land, again there would be accumulation
of huge lands with the respondent Nos. 2 and 3 and
there would be repetition of the malafide acts by the
respondent Nos. 2 and 3. As a result of which, the
main aim and object of the Special Act would be
defeated.
4. It is submitted by the learned counsel for the
petitioner that Government has issued a G.R. dated
31.07.2006, however, the effect and operation of said
Government Resolution has been stayed by this Court
in Writ Petition No.4966 of 2006 by passing the
following orders:
Order dt.4.10.2006 :
“Heard Mr. [Link], Adv. for the petitioner.
Notice returnable in three weeks.
[Link], AGP waives notice on behalf of
respondent nos. 1 to 3.
In the meanwhile, the parties to maintain
statusquo”.
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Order dt. 7.11.2006 :
“We grant adinterim relief in terms of prayer
clause (ii) of the petition during the pendency of the
petition. With this observation, the application is
disposed of.
Order dt. 8.12.2006 :
“In the meantime, the authorities need not pass
orders on the applications made under the scheme
until further orders.“
5. However, the Government has issued a fresh G.R. dt.
12.4.2007 flouting the aforesaid orders passed by
this Court in Writ Petition No.4966 of 2006 and
therefore, the Govt Resolution dt. 12.4.2007 is liable
to be quashed and set aside.”
127 Thereafter, the arguments of the Petitioner have been noted
and which we find from paragraphs 8 to 21. From paragraph 22 onwards
the Additional Government Pleader's arguments have been noted and
from paragraph 37 onwards the rival contentions are analyzed. In
paragraphs 40 to 42 the necessity to enact the Principal Act and its
objectives have been discussed. Thereafter, reference is made to Sections
20 and 21 of the Principal Act in paragraphs 43 to 46. In paragraph 47
the Division Bench held that if there was breach of or violation of the
terms and conditions of the Development Permission or Commencement
Certificate issued under the Planning Law, then, the Government cannot
cancel these permission/ sanction/ building permit in the garb of
exercising the powers to withdraw the exemption. That is how paragraphs
47 and 48 would read. We do not find anything in paragraph 48 which
would enable us to hold that the Division Bench has decided any
controversy and which is subject matter of the present reference. The
whole issue was whether for breach of the terms and conditions on which
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the order of exemption has been passed and one of which related to the
permission to construct or develop the land, can the State while
withdrawing the exemption under Section 20(1) also set aside or
interfere with the permission under the Maharashtra Regional Town
Planning Act, 1966 or related laws. Far from anything which would touch
the issues involved in the present Reference we do not think that this
judgment lays down or holds that the validity of the order of exemption
under Section 20 or any action taken thereunder would not survive with
all consequences despite the repeal.
128 The only reference then made to the Repeal Act is to be
found in paragraphs 63 and 64. Paragraph 64 of the judgment reads as
under:
“64. In the case in hand, we are concerned with Subclause
(b) of Section (3) of Repeal Act which contemplates that
repeal of the principal Act shall not affect validity of any
order granting exemption under subsection (1) of
Section 20 or any action taken thereunder, not
withstanding any judgment of any Court to the counter.
It is, therefore, evident that validity of order granting
exemption under subsection (1) of Section 20 of the ULC
Act though passed prior to Repeal Act came into force,
would continue in view of the said saving clause.
Similarly, any action taken by the State Government
under subsection (2) of Section 20 prior to the Repeal
Act came into force is also continued to be valid even
after the Repeal Act came into force. Perusal of
provisions of Section 3 (1)(b) makes it evident that
repeal of Principal Act shall not affect validity of any
order granting exemption under subsection (1) of
Section 20 or any action taken thereunder. Hence, to
grant exemption in respect of land which was in excess
of the ceiling limit as well as action, if any taken by the
State Government thereunder in view of Section 20 (1)
is saved. Similarly, any action taken by the State
Government against the scheme holder under subclause
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(2) of Section 20 prior to coming into force of the
Repeal Act, is also saved. However, the power of the
State Government to alter, change or modify the terms
and conditions of any of the Schemes formulated prior
to coming into force of the Repeal Act and on the basis
thereof, sanction was granted by the Planning Authority
is not saved by the saving clause.”
129 We do not think that in the light of these conclusions on
Section 3(1)(b) of the Repeal Act, any assistance could be derived from
this judgment and to answer the issues and questions posed before us.
Rather, the same support our conclusion.
130 Then, we are left with the judgment on which reliance is
placed by the Petitioners, namely, Sundersons and others v/s State of
Maharashtra and others reported in 2008 (5) Bombay Cases Reporter
85 : 2008(6) Mh.L.J. 332. We do not find that the said judgment dealt
with the controversy which has been raised before us. Apart therefrom we
find that not only in the said judgment, but in the further judgment of this
Court in the case of Damodar Laxman Navare v/s State of Maharashtra in
Writ Petition No.6300/2009 decided on 08.07.2010 the same Division
Bench clarified in paragraph 10 that it is not inclined to look into the
question and aspect of applicability of Section 3(1)(b) of the Repeal Act.
131 Reference is then made to the judgment to which one of us is
a party ([Link], J.), reported in 2013(2) Mh.L.J. 224 (Manik
M. Ragit v/s State of Maharashtra). There, the Division Bench was
concerned with the issue post repeal of the Principal Act and particularly
about changes in the revenue record. The prayer was to restore the name
of the Petitioner in the revenue record pertaining to the land. Paragraph 2
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of this judgment would show that the vacant land in excess of ceiling
limit was identified. The Petitioner before this Court sought an order of
exemption under Section 20(1) of the Principal Act. He presented the
scheme in relation to half portion of the excess vacant land that scheme
was sanctioned by the competent authority. However, the scheme was not
implemented at all. Later on an attempt was made to proceed against this
excess vacant land, physical possession of which was always with the
Petitioner. He, therefore, argued that Section 3(1)(b) of the Repeal Act
would not come into play and the fact situation is fully covered by Section
3(1)(a) of the Repeal Act. If the Respondent/ State cannot take physical
possession of the excess vacant land because the scheme has failed in
view of this express provision in the Repeal Act, then, the Petitioner's
name deserves to be restored to the revenue record was the essential
prayer. That has been granted and because there was no opposition from
the State. It is in this context that the Division Bench in paragraph 7
relied upon the Repeal Act and essentially Section 3(1)(a) of the same.
Paragraph 7 of the judgment reads as under:
“7. With the assistance of the learned counsel appearing
for parties we have perused the Writ Petition and also
the Division Bench judgment. Facts in our case are not
disputed. There has been no step or action taken in
pursuance of the order of exemption passed in favour
of the petitioner. Thus, the scheme was not
implemented. If it was not implemented, then, the
Division Bench judgment in Vithabai’s case takes the
view that the consequence of passing an order under
Section 20(1) results in exemption of surplus vacant
land from the provisions of the Act. However, on
withdrawal of the exemption under Section 20(2) of
the Urban Land Ceiling Act, that does not provide that
possession of surplus land would automatically or is
deemed to have been taken by the Competent
Authority. If the State of Maharashtra is required to
resort to provisions of Chapter III of Urban Land
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Ceiling Act for taking possession and issue notice
under Section 10 of the Act, then, they cannot urge
that possession was not taken prior to the Repealing
Act coming into force. In other words, if possession is
not taken prior to Repeal Act coming into force, then,
it will be restored to owner. The view taken is that
Section 10, does not provide for different procedure to
be adopted subsequent to the passing of an order
under Section 20(2) of the Urban land Ceiling Act.
Therefore, looking at the matter this way, even if the
scheme has not been implemented or the exemption
has been withdrawn, this judgment holds that the
respondent could resort to Section 10 of the Un
repealed Act. That having not been done in the case
before us we are of the view that, the controversy is
covered by the judgment of this Court in the judgment
of Vithabai’s case.”
132 We are of the opinion that this judgment cannot be a
precedent for answering the questions posed before us. We have already
held that the observations in Vithabai's case (supra) to the extent they are
contrary to what we have held hereinabove do not lay down the correct
law. Therefore, firstly these observations must be seen as restricted to the
facts of that case and to which only Section 3(1)(a) of the Repeal Act
applies. Secondly, this Court was not called upon to decide the ambit and
scope of Section 3(1)(b) of the Repeal Act in that judgment as the scheme
never took off and was not acted upon. Once the exemption order was
not acted upon by the Petitioner, but the State attempted to take
possession of the surplus vacant land and after repeal that relief as prayed
by the Petitioner was granted. This judgment, therefore, cannot be seen as
answering the controversy.
133 Finally, in Mira Bhayander Developers and Welfare
Association (supra) the controversy was with regard to the letter dated
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23.06.2008 addressed by the State Government to the SubRegistrar of
Assurances, Thane City. That letter directed the said Authority to ascertain
at the time when the scheme holder presents a document for registration
as to whether he has sought extension for implementation of the scheme
meant for economically weaker sections of the society under Section 20 of
the Principal Act and not to register the document otherwise. That was
the letter impugned in the Writ Petition and the Division Bench in a short
judgment held as under:
“1. The above Petition is filed on behalf of the members of
the Petitioner Association. The members of the Petitioner
Association who are the builders and developers have
taken benefit of the schemes meant for the Economically
Weaker Section of the society under Section 20 of the
Urban Land (Ceiling and Regulation) Act, 1976
[hereinafter referred to as “the said Act” for short]. The
said Act was repealed by the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 which came into force in
the State of Maharashtra on 29.11.2007. Since a large
number of schemes were sanctioned under Section 20 of
the said Act, the State Government, with a view to see
that the schemes are fully implemented, if partly
implemented, after the repeal of the said Act, issued a
letter dated 23.06.2008 to the SubRegistrar of
Assurances, Thane City directing him to ascertain at the
time when the scheme holder presents a document for
registration, whether the scheme holder has sought for
extension for implementation of the scheme or not; as
otherwise not to register the documents in question.
2. It is the said letter dated 23.06.2008, which is impugned
in the present Petition. The principal ground on which
the said letter is assailed is that such a condition cannot
be imposed by the Registering Authority and that the
registration cannot be refused on the said ground.
3. On the other hand it is contended on behalf of the State
by the learned AGP that on the repeal of the said Act,
the scheme holders who may be builders/developers are
trying to wriggle out of their obligations under the said
sanctioned schemes, and therefore the impugned letter
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came to be issued which has been issued to protect the
schemes meant for the Economically Weaker Section,
and also the Government revenue.
4. We have considered the rival contentions. In our view, if
the members of the Petitioners Association have taken
benefit of the schemes under Section 20 of the said Act
by constructing buildings, they now cannot wriggle out
of their obligations to surrender flats to the Government
which the Government could sell at a fixed rate. The
entire tenor of the above Petition appears to be that the
Petitioners do not want to fulfil their obligations under
the said schemes viz surrendering the flats to the State
Government and taking advantage of the repeal of the
said Act want to contend that their obligations under the
said schemes do not survive. In our view the impugned
letter, as rightly contended by the learned AGP, has been
issued to protect the public interest and Government
revenue. It does not befit the Petitioners who have taken
advantage of the said schemes now to contend that their
obligations do not survive, and therefore there is no need
for them to surrender the flats to the Government. We,
therefore, do not find any merit in the challenge raised
in the above Petition which is accordingly dismissed.”
134 Though this judgment is based on the broad principles of
equity and that no one can take advantage of his own wrong, yet we are
of the opinion that the conclusion therein for the reasons recorded above
is correct. The same is in consonance with the conclusions reached by us
hereinabove.
135 As a result of the above discussion the questions referred to
us are answered as under:
(a) That the repeal of the Principal Act shall not affect the
validity of the order of exemption under Section 20(1) of the
Principal Act and all consequences following the same
including keeping intact the power to withdraw the said
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exemption by recourse to Section 20(2) of the Principal Act.
Further, merely because Section 20(2) is not specifically
mentioned in the saving clause enacted by Section 3(1)(b) of
the Repeal Act that does not mean that the power is not
saved. The said power is also saved by virtue of applicability
of Section 6 of the General Clauses Act, 1897. That Section of
the General Clauses Act, 1897 applies to Section 3(1)(b) of
the Repeal Act.
(b) Once having held that the power to withdraw the exemption
also survives the repeal of the Principal Act, then, all
consequences must follow and the said power can be
exercised by the State Government in accordance with law.
That power and equally all ancillary and incidental powers to
the main power to impose conditions are also saved and
survive the repeal. Meaning thereby the terms and conditions
of the order of exemption can be enforced in accordance with
law.
(c) Question Nos.1 and 2 in the AFFIRMATIVE, by holding that
Section 6 of the General Clauses Act, 1897 applies to the
savings of the exemption order including all terms and
conditions thereof, validity of which or any action taken
thereunder has been saved by Section 3(1)(b)
notwithstanding any judgment of any court to the contrary.
(d) Question Nos.3 and 4 will have to be answered as above, but
by clarifying that though it would be open for the State to
enforce the exemption order and terms and conditions
thereof, validity of which is saved by the Repeal Act, but
having regard to the language of Section 20(2) of the
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Principal Act it cannot be held that same can be enforced
only by withdrawal of the order of exemption in terms of sub
section (2) of Section 20, which power also survives the
repeal of the Principal Act. In other words, though Section
3(1)(b) of the Repeal Act read with Section 6 of the General
Clauses Act, 1897 states that repeal of the Principal Act shall
not affect the validity of the exemption order passed under
Section 20(1) of the Principal Act or any action taken
thereunder notwithstanding any judgment of any court to the
contrary, still the obligations and liabilities incurred
voluntarily under the exemption order by the person holding
the vacant land in excess of ceiling limit need not be enforced
only by exercise of powers under subsection (2) of Section
20 of the Principal Act, but by all other legally permissible
means.
(e) We also clarify that though our answers to Questions 3 and 4
would be as aforesaid, still whether any of these powers
could be exercised and to what extent are all matters which
must be decided in the facts and circumstances of each case.
In the event the State desires to take any action in terms of
Section 20(2) of the Principal Act it would be open for the
aggrieved parties to urge that such an action is not
permissible in the given facts and circumstances particularly
because of enormous and unexplained delay, the parties
having altered their position to their detriment, the
proceedings as also the orders in that behalf are grossly
unfair, unjust, arbitrary, high handed, malafide and violative
of the principles of natural justice and of the Constitutional
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mandate enshrined in Articles 14, 19(1)(g), 21 and 300A of
the Constitution of India. These and other contentions can
always be raised and irrespective of our conclusions,
individual orders can always be challenged and action
thereunder impugned in appropriate legal proceedings
including under Article 226 of the Constitution of India.
(f) The aggrieved parties can also urge that while seeking to
enforce the terms and conditions of the exemption order or
recalling or withdrawing the exemption itself the competent
authorities/ State has not adhered to the provisions of law
applicable for such exercise. Meaning thereby there has to be
a specific order in that behalf and mere issuance of
administrative instructions or circulars will not suffice. All
such objections can as well be raised and in individual cases.
(g) By our answers to Questions 1 to 4 above, we should not be
taken to have held that there is a mandate under the Repeal
Act to withdraw the order of exemption passed under Section
20(1) of the Principal Act and the Government is obliged to
withdraw it in the event the said order or any terms or
conditions thereof have not been satisfied rather violated or
breached. In the light of the wording of Section 20(2) of the
Principal Act the State is competent to withdraw, but only
after giving a reasonable opportunity to the persons
concerned for making representation against the proposed
withdrawal. The Government is obliged to pass an order
withdrawing any exemption and needless to clarify that in
the event such an order is passed it can be impugned and
challenged by the aggrieved parties in appropriate
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proceedings on the grounds that it is unreasoned and/or in
the given facts and circumstances such an order could not
have been passed or need not be passed and the Government
could have granted time to comply with the terms and
conditions or that the terms and conditions relying on which
and for breach of which the exemption order is withdrawn
are not violated or breached, they were not mandatory and
have been substantially complied with or were incapable of
being complied with because of several factors, obstacles and
hurdles each of which cannot be enumerated or termed as
exhaustive in any manner. Therefore, if the Government is
not mandated to withdraw the exemption order, but can
ensure compliance of the terms and conditions without
withdrawal of the exemption order or without recourse to
Section 20(2) of the Principal Act, then, needless to clarify
that all liabilities, obligations and equally the remedies
available to the parties are unaffected by repeal and can be
resorted to in the afore stated events.
(h) In the light of our conclusions as enumerated in paragraph
No.125 above we hold that the view taken by the Division
Bench in Vithabai Bama Bhandari v/s State of Maharashtra
and another reported in 2009(3) Bombay Cases Reporter
663 (Writ Petition No.4241/2008 decided on 31st March/ 16th
April, 2009) does not lay down the correct law and to the
extent indicated hereinabove.
(i) The Reference is answered accordingly. Each of these Writ
Petitions shall now be placed before appropriate Division
Benches for disposal in the light of the above principles and
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on merits, so also, in accordance with law. We clarify that all
contentions of both sides on merits of the said Writ Petitions
are kept open.
(j) We are thankful for the able assistance rendered by all the
learned counsel for deciding this Reference.
(S.C. Dharmadhikari, J.)
(G.S. Kulkarni, J.)
********
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Judgment (Per S.C. Gupte, J.) :
1 I have gone through the judgement prepared by my brother
Dharmadhikari J. With greatest respect, I am afraid I am unable to agree
with some of the key conclusions and reasons discussed in it. I have in
the following judgment dealt with the conclusions in respect of which I
differ from the views expressed by brother Dharmadhikari J.
2 The questions referred to the Full Bench and the submissions
made by learned Counsel appearing on either sides have been elaborately
set out by my brother Dharmadhikari J and need not be repeated here. I
shall, wherever necessary, refer to these submissions in the context of my
conclusions and reasons for the same.
3 Let me briefly dwell at the outset with the conflict in the
decisions of Division Benches of our court, which led to the present Full
Bench reference, so as to put the whole controversy in a proper
perspective and make its context clear. What led to the conflict of the
Division Bench decisions of this court were the circulars issued by various
Competent Authorities under the Urban Land (Ceiling and Regulation)
Act, 1976 (“the Principal Act”) after repeal by the Urban Land (Ceiling
and Regulation) Repeal Act, 1999 (“the Repeal Act”) to SubRegistrars of
Assurances and planning authorities not to register documents presented
by landholders for registration or sanction plans filed for development of
lands unless no objection certificates were issued by these Competent
Authorities. These directives were purportedly issued with a view to
implement schemes sanctioned by Competent Authorities whilst granting
exemptions to the concerned lands under Section 20 of the Principal Act.
In some cases, the landholders would have breached the provisions of
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these schemes, for example, by not completing the schemes within the
stipulated periods, in which cases the concerned Competent Authorities
would not issue no objection certificates, thereby ensuring compliance on
the part of the landholders with the sanctioned schemes. These circulars
were challenged before this Court in a number of petitions.
4 In Sundersons & Ors. Vs. State of Maharashtra & Ors.1, the
Collector had issued instructions to Subregistrars of Assurances to insist
upon an NOC from the competent authority, namely, the Collector before
registering any document. A Division Bench of this Court held that
persual of the circular did not disclose the source of the power under
which it had been issued and that it was not open to the Collector to issue
such instructions.
5 In Damodar Laxman Navare Vs. State of Maharashtra 2, the
Court was concerned with two letters – one by which authorities such as
the Municipal Corporation and SubRegistrar were directed not to
sanction plans or register documents presented by landholders and the
other directing the petitioner landholder in that case to pay penalty for
extension of time for completion of a scheme sanctioned under Section 20
of the Principal Act. Both these letters were issued after the repeal of the
Principal Act. The Division Bench hearing the petitioners' challenge to the
two letters struck down these directions, holding them to be illegal and
ultra vires the powers of the authorities under the Principal Act. The
challenge to these circulars on the grounds of repeal of the Principal Act
and the effect of the saving clause on the exemption orders passed under
Section 20 or actions taken thereunder, was, however, not considered by
1 2008 (5) Bombay Cases Reporter 85
2 Writ Petition No.6300/2009 dated 08th July, 2010
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the Division Bench in Damodar Laxman Navare (supra).
6 Then came the decision of another Division Bench of our
Court in Mira Bhayandar Builders and Developers Welfare Association
Vs. Deputy Collector and Competent Authority. 1 In that case, members
of the Petitioner Association, who were builders and developers, had
taken benefit of the schemes meant for economically weaker sections of
the society sanctioned under Section 20 of the Principal Act. The schemes
were partly implemented on the date of the repeal of the Principal Act.
The State Government issued a circular after the repeal, with a view to
see that the schemes were fully implemented, to the SubRegistrar of
Assurances. The circular directed the SubRegistrar to ascertain whether
the scheme holder had sought extension of time for implementation of the
scheme when the scheme holder presented a document for registration
and not to register the document in question if such extension was not
sought. The scheme holders challenged the circular inter alia on the
ground that the obligations under the scheme did not survive the repeal.
The Division Bench accepted the contention of the learned AGP that the
impugned circular had been issued to protect the public interest by
ensuring implementation of schemes meant for economically weaker
sections. The Division Bench held that if the members of the Petitioner
Association had taken benefit of the schemes under Section 20 by
constructing buildings, they could not now wriggle out of their obligations
to surrender flats to the Government which the Government could sell at
fixed rates. The Division Bench accordingly rejected the Petitioners'
challenge to the circular.
7 These were then the rulings on the subject, when another
1 Writ Petition No.5745/2009 dated 27th August, 2009
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Division Bench of our Court – in Jayesh Tokarshi Shah Vs. Deputy
Collector and Competent Authority1 considered similar circulars issued
by the Competent Authority after the repeal of the Principal Act,
prohibiting registration of conveyances in respect of flats constructed
under schemes sanctioned under Section 20 and sold without obtaining
extension of periods of completion of the schemes or obtaining no
objection certificates from the Competent Authority under the Principal
Act. According to the Petitioners in that case, the circulars issued after the
repeal of the Principal Act were without authority of law and also that the
conditions of the exemption orders under Section 20 did not survive the
repeal. On the other hand, the State contended that the circulars were
issued for meaningful implementation of sanctions granted under Section
20, as validity of such sanction orders remained saved from the rigours of
the Repeal Act. According to the State, the Petitioners had yet to discharge
their obligations under the schemes by handing over specified number of
tenements to the Government and paying penalty for extension of time to
complete the schemes. Based on the decision of our Court in Mira
Bhayandar Builders' case (supra) it was contended by the State that it
was not open to a party, who had taken advantage of a scheme sanctioned
under Section 20 of the Principal Act, to contend that the obligations of
the scheme did not survive the repeal of the Principal Act. The Division
Bench in Jayesh Tokarshi Shah (supra) felt that the view expressed by
our Court in Sundersons & Ors (supra) and Damodar Laxman Navare
(supra) led to the premise that the Competent Authority under the
Principal Act was not competent to issue such circulars, but that there was
a conflict with such premise in the view expressed by our Court in Mira
Bhayandar Builders' case (supra) where challenge to a similar circular
was dispelled on the ground that the circular was issued to protect public
1 Writ Petition No.3815/2010 decided on 26.10.2010
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interest and having taken advantage of a scheme under Section 20 of the
Principal Act, the Petitioners could not wriggle out of their obligations.
The Court in Jayesh Tokarshi Shah (supra) referred to another decision
of our Court in Mohal Gopal Mate Vs. Principal Secretary 1, which held
that the powers of the State under Section 20 in case of breach of a
condition of an exemption order were limited to withdrawal of the
exemption order only, whereupon provisions of Chapter III would apply to
such land. The Court in Jayesh Tokarshi Shah (supra) also felt that going
by strict interpretation of Sections 20 and 21 of the Principal Act, the
power of the State in case of contravention of any of the conditions of the
schemes sanctioned under these Sections by the scheme holders was
limited to withdrawal of exemption, declaring such land to be excess
vacant land and applying the provisions of Chapter III of the Principal Act
for acquisition of the same. The Court, however, felt that such view would
be in conflict with the view expressed by the Court in Mira Bhayander
Builders' case (supra) and that therefore the controversy deserved to be
resolved by a Full Bench of this Court.
8 That is how this reference has come before us. The principal
controversy before us concerns the effect of the Repeal Act on the
schemes sanctioned whilst granting exemptions under Section 20 of the
Principal Act to excess vacant lands. Do the conditions of exemption
orders survive the repeal and if so, can these conditions be enforced by
the State after the date of the repeal, if necessary by withdrawing the
exemption and applying the provisions of Chapter III to the lands which
were the subject matter of such exemption orders and schemes.
9 At the outset, a brief overview of the Principal Act and the
1 2009 1) BCR 275
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Repeal Act may be necessary to understand the impact and reach of the
Repeal Act and whatever is left untouched by it from the provisions of the
Principal Act or actions taken thereunder.
10 The Principal Act was enacted for (i) imposition of a ceiling
on vacant land in urban agglomerations, (ii) acquisition of land in excess
of the ceiling limit, and (iii) regulation of construction of buildings on
such land and for matters connected therewith. The declared objective of
these provisions in the Principal Act was to (i) prevent concentration of
urban land in the hands of a few persons and speculation and
profiteering therein and (ii) bring about an equitable distribution of land
in urban agglomerations to subserve the common good.
11 Chapter III of the Principal Act contains the key provisions
for accomplishment of the aforesaid objectives. The Chapter consists of
three sets of provisions, namely, (1) Sections 3 to 18 which provide for
the ceiling limit, and ascertainment and acquisition of vacant land in
excess of such ceiling limit, (2) Sections 19 to 22 dealing with non
application or exemption from application of Chapter III to certain lands
and (3) Sections 23 and 24 which deal with disposal of vacant land
acquired under Chapter III.
12 Section 3, which is the pivotal section in the Chapter,
proscribes any person from holding vacant land in excess of the ceiling
limit in the territories covered by the Principal Act. The ceiling limits for
various classes of agglomerations and the manner of calculating them for
various classes of persons are provided in Section 4. Section 5 provides
for a subsidiary rule for calculating the extent of vacant land in cases of
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certain transfers (i.e. transfers between the appointed day and the date of
commencement of the Principal Act) and also prohibits transfers after the
date of commencement without furnishing a statement under Section 6
and publication of a notification of excess land under Section 10(1). The
machinery provisions for arriving at the extent of excess vacant land are
contained in Sections 6 to 9. The entire determination process starts with
a statement to be compulsorily filed by every person holding vacant land
in excess of ceiling limit as on the date of commencement of the Principal
Act, specifying the requisite particulars of such land. Section 7 contains
subsidiary provisions concerning filing of such statement in case such land
is situated within the jurisdiction of two or more competent authorities,
whether in the same state or in two or more states to which the Principal
Act applies. Section 8 provides for preparation of a draft statement by
the competent authority. It also requires service of such draft statement
on, and consideration of objections, if any, by, the concerned landholder.
Section 9 provides for determination of excess vacant land and
preparation and service of a final statement concerning such excess
vacant land. Section 10 contains provisions concerning acquisition of
such excess vacant land by the State Government. Under the scheme of
Section 10, the competent authority has to first issue and publish a
notification giving particulars of excess vacant land, proposing its
acquisition and inviting claims of all persons interested in such land,
under Subsection (1) of Section 10. Subsection (2) requires the
competent authority to determine the nature and extent of such claims.
Subsection (3) empowers the competent authority to declare by
notification the acquisition of such excess vacant land with effect from a
date specified in that behalf. Upon publication of such notification the
land is deemed to be vested absolutely in the State Government with
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effect from the date so specified. Subsection (4) of Section 10 provides
for an embargo on transfer of land between the dates of the publication of
the respective notifications under Subsections (1) and (3). Subsections
(5) and (6) deal with taking over of possession of the land thus vesting in
the State Government. Subsection (5) authorizes the competent
authority to require by notice surrender or delivery of such land to the
State Government. Subsection (6) empowers the competent authority to
take possession by use of force in case of failure of the landholder to so
surrender or deliver possession. Sections 11 to 14 contain provisions
regarding payment of compensation by the State Government to the
landholder whose land is so acquired by the State Government. Section
11 contains provisions for determination of such compensation, Section
12 provides for appeals to a tribunal from any determination under
Section 11 and Section 13 provides for an appeal to the High Court from
the decision of the tribunal. Section 14 provides for the mode of payment
of such compensation. Sections 15 to 18 provide for subsidiary matters
such as ceiling limit on future acquisition by inheritance, etc., filing of
statement when the Principal Act is subsequently adopted by any State,
the competent authority's power to enter upon any vacant land for
carrying out the purposes of the Principal Act and penalty for
concealment of particulars of vacant land, etc.
13 Section 19 provides cases in which the provisions of Chapter
III do not apply to certain vacant lands, e.g. lands held by the Central or
State Governments, banks, etc. Section 20 provides for the power of the
State Government to exempt any vacant land on conditions and to
withdraw such exemption on noncompliance of the conditions. (This
Section will be dealt with in detail in the following order.) Section 21
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provides for circumstances in which excess vacant land may not be
treated as excess in certain cases. Section 22 provides for cases where a
landholder under certain conditions may be permitted to retain excess
vacant land.
14 Sections 23 and 24, as noted above, provide for disposal of
vacant lands acquired by the State Government under the Principal Act.
These Sections inter alia serve the objective of equitable distribution of
land in public interest.
15 Chapter IV enacts provisions concerning regulations of
transfers of land and use of urban property. Section 25 defines “plinth
area”. Section 26 provides for a notice to be given of any intended
transfer of vacant land to the competent authority, which has the first
option to purchase such land on behalf of the State Government. The
section also contains machinery provisions for completing such sale in
case the option is exercised by the competent authority. Section 27 enacts
a prohibition on transfer of urban property. Section 28 makes subsidiary
provisions for regulating registration of documents so as to effectively
implement the provisions of Sections 26 and 27. Section 29 contains
regulatory provisions for construction of buildings with dwelling units.
Demolition and stoppage of buildings constructed / being constructed in
contravention of the provisions of Section 29 is provided under Section
30.
16 Chapter V contains miscellaneous provisions providing for
powers of the competent authority (Section 31), jurisdiction of authorities
and tribunals (Section 32), appeal (Section 33), Revision (Section 34),
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power of the State Government to issue directions (Section 35), power of
the Central Government to give directions (Section 36), returns and
reports, offences and penalties, etc. Section 42 in this chapter provides for
the overriding effect of the provisions of the Principal Act.
17 After the Principal Act came into force in the State of
Maharashtra, statements under Section 6 thereof were filed by
landholders. In some cases the land acquisition was completed and excess
vacant lands were taken possession of after following the procedure laid
down in Sections 8 to 10; whilst in other cases proceedings were pending
at various stages provided under Sections 8 to 10 or the appellate and
revisional stages under Sections 33 and 34 of the Principal Act. In respect
of some lands orders were passed under Sections 20 and 21 sanctioning
schemes presented by landholders and accordingly exemptions were
granted on conditions or excess vacant land was directed not to be treated
as excess, respectively, under Sections 20 and 21; and these schemes were
either completed or were at different stages of completion. In some cases,
where the conditions of exemption orders were breached, the exemptions
were withdrawn and the procedure under Sections 8 to 10 of the Principal
Act for acquisition of land thus rendered excess vacant land was being
applied to such lands and was at varying stages of completion. This was
the position in 1999, when the Parliament passed the Repeal Act.
18 On 11 January 1999, an ordinance to repeal the Principal Act
was promulgated by the President. This was followed by a bill to repeal
the Principal Act tabled in the Parliament, being Bill No.17/1999. The bill
proposed repeal of the Principal Act in the same terms as the ordinance.
The statement of objects and reasons contained in the bill is in the
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following terms :
“ The Urban Land (Ceiling and Regulation) Act, 1976
was passed with a laudable social objective. The main
purpose was to prevent concentration of urban land
in a few hands and to provide affordable housing to
the Economically Weaker Sections. It has on the
contrary pushed up land prices, practically brought
the housing industry to a stop and provided
opportunities for corruption. There is a widespread
demand for removing this irritant to land assembly
and construction activity. During the implementation
of the Urban Land (Ceiling and Regulation) Act,
1976, there have been a spate of litigations giving rise
to serious hurdles in taking over possession of land,
by the State Governments. Public opinion is nearly
unanimous that the Act has failed to achieve its
objectives as expected.
2. Parliament has no power to repeal or amend the Act
unless resolutions are passed by two or more State
Legislatures as required under clause (2) of Article
252. The Legislatures of Haryana and Punjab have
passed resolutions empowering Parliament to repeal
the Act in those States. The Act stands repealed in
those States and in the Union territories immediately
after promulgation of the repeal Ordinance and
subsequently if State Legislatures adopt this Repeal
Act by resolution, then the Urban Land (Ceiling and
Regulation) Act, 1976 will stand repealed in those
States, from the date of its adoption.
3. The Urban Land (Ceiling and Regulation) Repeal Bill,
1998 was examined by the Standing Committee on
Urban and Rural Development. The Committee felt
that the land which is yet to be put to use for the
original purposes stated in the Act, under possession
of the Government should not be restored to previous
owners as such restoration may lead to avoidable
discrimination. The Committee also suggested that the
repeal Bill should contain a provision for abatement
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of proceedings in the different courts. Keeping in view
the recommendations of the Committee, this Bill is
being introduced to replace the Urban Land (Ceiling
and Regulation) Repeal Ordinance, 1999 (Ord.5 of
1999) notified on 11.01.1999 so that the State
Governments would be free to have their own
legislation commensurate with their needs and
experiences. Till this Act is repealed, States have no
power to legislate on this subject.
4. The proposed repeal, along with some other incentives
and simplification of administrative procedures, is
expected to revive the stagnant housing industry. The
repeal will facilitate construction of dwelling units
both in the public and private sector and help
achievement of targets contemplated under National
Agenda for Governance. The repeal will not, however,
affect vesting of any vacant land under subsection
(3) of Section 10 of the Urban Land (Ceiling and
Regulation) Act, 1976 the possession of which has
been taken over by the State Governments. It will not
affect payments made to the State Governments for
exemptions. The exemptions granted under Section 20
of the Act will continue to be operative. The amounts
paid out by the State Governments will become
refundable before restoration of the land to the
former owners.
5. The Bill also seeks to facilitate land assembly and a
flexible regime for administering urban land to suit
the varying local conditions based on State level
legislations or requirements.”
The bill was passed by the Parliament and the Repeal Act was enacted.
The Repeal Act contains the following provisions :
“1. Short title and application commencement: –
(1) This Act may be called the Urban Land (Ceiling
and Regulation) Repeal Act, 1999.
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(2) It applies in the first instance to the whole of the
States of Haryana and Punjab and to all the Union
territories; and it shall apply to such other State
which adopts this Act by resolution passed in that
behalf under clause (2) of article 252 of the
Constitution.
(3) It shall be deemed to have come into force in
the States of Haryana and Punjab and in all the
Union territories on the 11th day of January, 1999
and in any other State which adopts this Act under
clause (2) of article 252 of the Constitution on the
date of such adoption; and the reference to repeal of
the Urban Land (Ceiling and Regulation) Act, 1976
shall, in relation to any State or Union territory,
mean the date on which this Act comes into force in
such State or Union territory.
2. Repeal of Act 33 of 1976: – The Urban Land (Ceiling
and Regulation) Act, 1976 (hereinafter referred to as
the principal Act) is hereby repealed.
3. Savings: –
(1) The repeal of the principal Act shall not affect
(a) the vesting of any vacant land under
subsection (3) of section 10, possession of which has
been taken over by the State Government or any
person duly authorised by the State Government in
this behalf or by the competent authority;
(b) the validity of any order granting
exemption under subsection (1) of section 20 or any
action taken thereunder, notwithstanding any
judgment of any court to the contrary;
(c) any payment made to the State
Government as a condition for granting exemption
under subsection (1) of section 20.
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(2) Where—
(a) any land is deemed to have vested in the
State Government under subsection (3) of section 10
of the principal Act but possession of which has not
been taken over by the State Government or any
person duly authorised by the State Government in
this behalf or by the competent authority; and
(b) any amount has been paid by the State
Government with respect to such land,
then, such land shall not be restored unless the
amount paid, if any, has been refunded to the State
Government.
4. Abatement of legal proceedings : –
All proceedings relating to any order made or
purported to be made under the principal Act pending
immediately before the commencement of this Act,
before any court, tribunal or other authority shall
abate:
Provided that this section shall not apply to the
proceedings relating to sections 11, 12, 13 and 14 of
the principal Act in so far as such proceedings are
relatable to the land, possession of which has been
taken over by the State Government or any person
duly authorised by the State Government in this
behalf or by the competent authority.
5. Repeal and saving : –
(1) The Urban Land (Ceiling and Regulation)
Repeal Ordinance, 1999 (Ord. 5 of 1999) is hereby
repealed.
(2) Notwithstanding such repeal, anything done or
any action taken under the said Ordinance shall be
deemed to have been done or taken under the
corresponding provisions of this Act.”
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19 The State of Maharashtra adopted the Repeal Act by a
resolution passed and adopted by both houses of State Legislature under
Article 252(2) of the Constitution of India on 29 November 2007. The
resolution adopted by the State of Maharashtra is in the following terms :
“MAHARASTHRA LEGISLATIVE ASSEMBLY
RESOLUTION
Whereas, the Maharashtra Legislative
Assembly on 5th October 1971 and the Maharashtra
Legislative Council on the 7th October 1971 had, in
pursuance of clause (1) of article 252 of the
Constitution of India, resolved that the imposition of
ceiling on urban immovable property and acquisition
of such property in excess of the ceiling and all
matters connected therewith or ancillary and
incidental thereto should be regulated in the State of
Maharashtra by Parliament by law :
And Whereas, the Parliament had
thereafter enacted the Urban Land (Ceiling and
Regulation) Act, 1976 (Central Act No. 33 of 1976);
And Whereas, consequent upon the
resolutions passed by the Houses of the Legislatures of
the States of Haryana and Punjab, under article
252(2) of the Constitution, that the Urban Land
(Ceiling and Regulation) Act, 1976, in its application
to those States, be repealed by Parliament by law, the
Parliament has enacted the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 (Act No. 15 of 1999);
And Whereas, subsection (2) of section
1 of the Urban Land (Ceiling and Regulation) Repeal
Act, 1999, provides that the said Act shall apply to
such other State which adopts the said Act by
resolution passed in that behalf under clause (2) of
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article 252 of the Constitution;
And Whereas, the Government of
Maharashtra is of the opinion that the Urban Land
(Ceiling and Regulation) Act, 1976 should be
repealed, in its application to the State of
Maharashtra, so that land in urban area may be
available for housing;
Now, therefore, in pursuance of clause
(2) of article 252 of the Constitution of India, the
Maharashtra Legislative Assembly hereby resolves
that the Urban Land (Ceiling and Regulation) Repeal
Act, 1999, passed by the Parliament be adopted for
this State.”
Accordingly, the Repeal Act was brought into force in the
State of Maharashtra on 29 November 2007.
20 Under the common law rule, the consequence of repeal of a
statute is that the statute is as completely obliterated as if it had never
been enacted except of course as to transactions past and closed. The
clearest statement of this law is contained in the judgment of Tindal J. in
the case of Kay vs. Goodwin1 to the following effect :
'The effect of repealing a statute is to obliterate it as
completely from the records of the parliament as if it had
never been passed; and, it must be considered as a law that
never existed, except for the purpose of those actions which
were commenced, prosecuted, and concluded whilst it was an
existing law.'
The march of law since those days is noted by the Supreme
Court in one of its oldest judgments on the point, in the case of State of
1 1830 English Reports (Volume 130) at page 1403, Chief Justice Tindal
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Punjab vs. Mohar Singh1, in the following words :
“ (6) Under the law of England, as it stood prior to the
Interpretation Act of 1889, the effect of repealing a statute
was said to be to obliterate it as completely from the
records of Parliament as if it had never been passed, except
for the purpose of those actions, which were commenced,
prosecuted and concluded while it was an existing law :Vide
Craies on Statute Law, 5th edn. page 323. A repeal
therefore without any saving clause would destroy any
proceeding whether not yet begun or whether pending at
the time of the enactment of the Repealing Act and not
already prosecuted to a final judgment so as to create a
vested right: Vide Crawford on Statutory Constitution, pp.
599600. To obviate such results a practice came into
existence in England to insert a saving clause in the
repealing statute with a view to preserve rights and
liabilities already accrued or incurred under the repealed
enactment.
Later on, to dispense with the necessity of having to
insert a saving clause on each occasion, section 38(2) was
inserted in the Interpretation Act of 1889 which provides
that a repeal, unless the contrary intention appears, does
not affect the previous operation of the repealed enactment
or anything duly done or suffered under it and any
investigation, legal proceeding or remedy may be instituted,
continued or enforced in respect of any right, liability and
penalty under the repealed Act as if the Repealing Act had
not been passed. Section 6 of the General Clauses Act, as is
well known, is on the same lines as section 38(2) of the
Interpretation Act of England. ”
The net result then would be that though the repealed statute
is obliterated from the statute book, to see what is saved despite the
repeal, one has to go by the saving clause, if any, of the repealing statute
and the provisions of Section 6 of the General Clauses Act insofar as they
apply.
1 AIR 1955 S.C. 84 (Vol. 42 C.N. 20)
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21 The savings clause of the Repeal Act, in our case, saves firstly
the vesting of any vacant land under subsection (3) of Section 10 of the
Principal Act, but with a caveat. Such vesting is saved only if possession of
such vacant land has already been taken over by the State Government or
any person duly authorized by the State Government in this behalf or by
the competent authority (Section 3(1)(a) of the Repeal Act). Secondly, it
saves the validity of any order granting exemption under subsection (1)
of Section 20 or any action taken thereunder, and it saves such validity
notwithstanding a judgment of any court to the contrary (Section 3(1)(b)
of the Repeal Act). Thirdly, the savings clause saves any payment made to
the State Government as a condition for granting exemption under Sub
Section (1) of Section 20 (Section 3(1)(c) of the Repeal Act). A further
saving provision is contained in subsection (2) of Section 3, which does
not require restoration of any land which is deemed to have vested in the
State Government under subsection (3) of Section 10 of the Principal
Act, but possession of which has not been taken over, subject to two
conditions – one, any amount has been paid by the State government with
respect to such land and two, such amount has not been refunded to the
State Government. In other words, if these two conditions are fulfilled,
the vesting of such land continues and is saved from the effects of the
repeal. Lastly, the savings clause saves proceedings relating to Sections 11,
12, 13 and 14 of the Principal Act in so far as such proceedings are
relatable to the land, possession of which has been taken over by the State
Government or any person authorized by the State Government or any
person authorized by the State Government or by the competent
authority. This is a necessary corollary of saving the vesting of such land.
If the land is vested and the vesting saved by the Repeal Act, the
proceedings relating to such land for (I) determination of compensation
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(Section 11), appeals to a tribunal from such determinations (Section 12),
appeals to the High Court from the appellate orders of tribunals (Section
13) and (ii) determination of mode of payment of compensation (Section
14), are also saved.
22 The scheme of the Repeal Act is thus absolutely clear and
there are unambiguous indications in this scheme that the Repeal Act was
meant to completely do away with the Principal Act except in cases of
actions taken under the Principal Act which had achieved a finality. In the
first place, we may note the principal Section in the Repeal Act, i.e.
Section 2, which repeals the Principal Act as a whole without any
reservation. Secondly, the saving clause in Section 3(2) read with Section
3(1) shows that any land which is deemed to be vested in the State
Government under Section 10(3) of the Principal Act will stand restored
to the owner of such land except in two cases. One, where the vesting is
accompanied by taking over of possession of the land (i.e. where
possession is surrendered to the State Government by the owner in
pursuance of a notice under Section 10(5) or where possession is taken by
the competent authority under Section 10(6) of the Principal Act). And
the other, where possession is not taken but any amount has been paid by
the State Government with respect to such land. In the latter case, such
land shall not be restored unless the amount paid by the State
Government is refunded to it. No vesting order except in the two
contingencies noted above is saved by the Repeal Act. Thirdly, it may be
noted that Section 3(1)(b) saves the validity of an order granting
exemption under Section 20(1) of the Principal Act or any action taken
thereunder. It does not in terms save any action to be taken thereunder,
but saves validity of any action already taken thereunder. Fourthly,
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Section 3(1)(c) saves only the payment made to the State Government as
a condition for granting exemption under Section 20(1) of the Principal
Act. It must be noted that in clause 3(1) (c) it is not the condition of
payment per se that is saved, but actual payment which is saved. The next
important consequence provided by the Repeal Act is the abatement of all
legal proceedings relating to any order made or purported to be made
under the Principal Act. There is, however, an exception in case of
proceedings relating to Sections 11, 12, 13 and 14 of the Principal Act –
but it is made clear that this saving applies only to proceedings relatable
to the land, possession of which is taken over under the Principal Act after
the vesting thereof in the State Government.
23 From these provisions, it is clear that apart from saving the
validity of an exemption order under Section 20(1) of the Principal Act
(the effect of which will be considered later), the scheme of the Repeal
Act is that every consequence of a person holding excess land under the
Principal Act is done away with except in these cases:
(i) Where the land is not only vested in, but taken
possession of by, the State Government under the
Principal Act;
(ii) Where the land is vested, though possession is
not taken, but payment is made by the State
Government in respect of such land;
(iii) Where there is a payment made to the State
Government or an action taken under an
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exemption order under Section 20(1) of the
Principal Act.
In case (i), the Repeal Act has no effect whatsoever. It is to be
treated as a transaction past and closed. It is fully saved despite the
repeal. In case of (ii), the Repeal Act shall have an effect subject to refund
being made to the State Government of the amount paid by it. If such
refund is made, the Repeal Act will have its full effect and the vesting will
not be saved at all. In case of (iii), the payment made or action taken, as
the case may be, will be saved.
24 These provisions are clear and loud. They imply a complete
repeal or obliteration of the law except in cases particularly provided for.
But if and to the extent there is any ambiguity (thereby permitting
external aids for interpretation of the repealing statute), we may have
reference to the Statement of Objects and Reasons of the repealing
statute. The Statement of Objects, as noted above, shows that whereas the
main purpose of the Principal Act was to prevent concentration of urban
land in a few hands and provide affordable housing to economically
weaker sections, the Act actually resulted in pushing up land prices,
practically brought the housing industry to a stop and provided
opportunities for corruption. The Objects and Reasons acknowledge a
near unanimous public opinion that the Act has failed to achieve its
objectives as expected. In these premises, the Repeal Act proposes a
complete repeal without any reservation, saving only the consequences
specially provided for.
25 In the backdrop of what is stated above, we may now discuss
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the effect of the saving clause insofar as it saves the validity of an
exemption order. At the outset, we may note that the very idea of saving
from the effect of a repeal is to save something that is accrued or
incurred under the repealed statute. It is the right or liability which is
crystallized before the repeal. The effect of saving of an exemption order
must be considered in that light. At the same time, it may be noted that it
is the exemption order as a whole which is saved. The exemption order, as
rightly noted by brother Dharmadhikari J, grants a privilege, but such
privilege is granted on certain conditions. The entire exemption order
would be valid, that is to say, both the privilege and the conditions would
be valid. In the absence of any valid reasons, it cannot possibly be
suggested that only the privilege is valid and not the conditions on which
it is granted.
26 Now the question is, what are the consequences of such
validity. The obvious consequences, which are provided in the Repeal Act
itself, are (a) all actions taken under the exemption order are valid and
(b) payment made thereunder to the State Government is valid. But what
are the other consequences. Could it be that the breach of the conditions
of a valid exemption order would attract the provisions of Section 20(2)
and all provisions of Chapter III including those relating to vesting of the
land would thereupon apply to such land (i.e. land becoming excess
vacant land as a result of withdrawal of exemption under Section 20(2)).
27 There are clear indications in the Repeal Act that these
consequences are not contemplated. In the first place, withdrawal of an
exemption order renders the land 'excess vacant land' just as any other
vacant land which is in excess of the ceiling limit and which is not subject
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to an exemption order under Section 20(1). If such other vacant land
could not continue to be vested in the State Government even after the
provisions of Section 10(3) applied to it, if possession of the land was not
already taken by the Government on the date of the repeal, there is no
reason why the provisions of Section 20(2) and consequences of
withdrawal of exemption thereunder should apply to a land which is
exempted under Section 20(1), but conditions of such exemption are
breached as on, or after, the date of the repeal.
28 If Chapter III were to apply to such land, which has become
excess vacant land by reason of withdrawal of the exemption order in
connection therewith, but not to other excess vacant lands, anomalous
and incongruent consequences would follow. Take for example, the case
of two pieces of land one where the exemption order has already been
withdrawn before the repeal and a statement under Section 6 is filed in
connection with such land, but no further steps have been taken and the
other land, which had no exemption order at any time and therefore, was
excess vacant land ever since the appointed day. In the case of this latter
land, not only is a statement under Section 6 filed, but further
proceedings have culminated into a declaration under Section 10(3) and
this has resulted in deemed vesting of the land in the State Government.
Yet the latter land stands restored to the land owner upon repeal , but the
proceedings under Sections 8, 9 and 10 would have to continue in respect
of the former land despite the repeal and that land at the conclusion of
these proceedings could vest in, and would have to be surrendered to,
and if not surrendered, forcibly taken possession of by, the State
Government. It is difficult to see the rationale behind such anomalous and
incongruent treatment to the two lands in our example.
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29 There has never been any controversy so far on the point that
once the exemption order was withdrawn under Section 20(2), the land
would count as excess vacant land and the provisions of Chapter III would
apply to it. If in a given case, such land, upon withdrawal of exemption,
was under acquisition under chapter III on the date of the repeal but
possession of the same was not taken over under subsection (5) or (6) of
Section 10 on that date, such land could not vest in the State Government
after the date of the repeal. The case of Vithabai Bama Bhandari vs.
State of Maharashtra1 is one of the cases in point. In the case of
Vithabai Bama Bhandari, the landholders had been granted exemption
under Section 20 of the Principal Act on condition of a certain number of
tenements having to be sold to Government nominees at a fixed rate. The
Landholder completed the construction after the stipulated period for
completion of the scheme was over and thereafter offered the possession
of the flats to the Government. At that stage, the landholder was informed
that the exemption granted under Section 20(1) had been withdrawn.
Thereafter, further steps under Section 10 of the Principal Act were taken
and finally the landholder was issued a notice under Section 10(5) to
surrender possession of the excess vacant land. That notice was
challenged before this Court in a writ petition. No physical possession
was, however, taken of the excess vacant land by then. In the meanwhile,
the Principal Act had been repealed by the Repeal Act. A Division Bench
of this Court, after analyzing the scheme of the Principal Act and the
Repeal Act, held that with the withdrawal of the exemption under Section
20(2) of the Principal Act, provisions of Chapter III became applicable to
the land; that the Competent Authority thereupon actually applied the
provisions of Chapter III to the land and followed the procedure under
1 2009 (3) BCR 663
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Section 10; that it was an admitted position that though a declaration was
made under Section 10(3) followed by a notice under Section 10(5),
actual physical possession was not taken over by the State Government or
the Competent Authority under the Principal Act by the time the Repeal
Act was brought in force; and that accordingly, the vesting of the land in
the Government was not saved. The Division Bench relied upon a
judgment of another Division Bench of our Court in Voltas Ltd. Vs.
Additional Collector and Competent Authority1 in this behalf.
30 The law stated in Vithabai Bama Bhandari (supra) in this
behalf has not been contested by the State. The learned Advocate
General, in his submissions, accepts that any land, earlier exempted under
Section 20(1), but exemption of which was already withdrawn under
Section 20(2) before the repeal of the Principal Act, cannot vest in the
State Government after the repeal if possession of such land was not
taken over by the State before the date of repeal. That indeed would be
the effect of Section 3(1)(a) of the Repeal Act. Once this position is
accepted, there is possibly no logic or justification for not applying this
law to the land exempted under Section 20(1) but exemption of which is
withdrawn after the date of repeal. If the power of the Government to
acquire the land in the event of withdrawal of exemption before the
repeal is not saved by the Repeal Act except in a case where the exercise
of such power is completed by not just deemed vesting under Section
10(3) but by taking over of physical possession under Section 10(5) or
10(6), there is no reason why such power is saved for a land, the
exemption of which is withdrawn after the repeal.
31 Even Section 4 of the Repeal Act is a pointer to show that
1 2008(5) Bom.C.R. 746
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applicability of SubSection(2) of Section 20 of the Principal Act as also
applicability of the provisions of Chapter III to lands earlier subject to
exemptions under SubSection(1) of Section 20, but which exemptions
were withdrawn either before or after the repeal, is not saved. Section 4
makes it clear that all proceedings relating to any order made or
purported to be made under the Principal Act shall lapse save and except
proceedings under Section 11 to 14 in relation to land, possession of
which has been taken over by the State Government under the Act.
Section 4 does not make any distinction in respect of proceedings in
relation to (i) land which has become excess vacant land by reason of
withdrawal of exemption order Section 20(2) and (ii) all other excess
vacant lands. Just as in the case of all other lands, where possession is not
taken over, even in the case of lands, to which Chapter III is being applied
by reason of withdrawal of the exemption order, the proceedings would
clearly abate. Any other interpretation would be clearly contrary to the
plain reading of Section 4.
32 The Repeal Act, thus, does not save any order passed or to be
passed under Section 20(2) withdrawing exemption under Section 20(1)
of the Principal Act and thereby applying Chapter III to the land in
question. If anything, the repealing statute would have expressly provided
so. It does not provide for saving of either Section 20(2) or any order
passed under Section 20(2). When the applicability of the whole of
Chapter III is done away with in relation to all excess vacant land other
than land of which possession is taken by the State under that chapter,
there is no discernible reason why that Chapter should apply to land
exemption of which has been withdrawn under Section 20(2) of the
Principal Act. Upon withdrawal of exemption, such land is like any other
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excess vacant land and the provisions of the Principal Act including
Chapter III will cease to apply to it unless the vesting of such land in the
State Government is followed by taking over of possession. Thus, it is
clear that the saving clause of the Repeal Act does not save the land once
exempted under Section 20(1) of the Principal Act from the application of
the repeal.
33 Let us now consider if it is saved by the provisions of Section
6 of the General Clauses Act. Learned Advocate General relied upon the
judgment of the Supreme Court in Bansidhar Vs. State of Rajasthan 1
and submitted that a saving provision in a repealing statute is not
exhaustive of the rights and liabilities which are saved or which survive
the repeal, and Section 6 of the General Clauses Act can still be invoked
so as to save other rights, privileges, obligations and liabilities which have
been acquired or accrued or incurred under the repealed statute before
the date of the repeal. The Court in that case reiterated the law laid
down in I.T. Commissioner Vs. Shah Sadiq & Sons 2, to the following
effect: (SCC P. 524, para 15)
“ ...In other words whatever rights are expressly
saved by the 'savings' provision stand saved. But that does not
mean that rights which are not saved by the 'savings' provision
are extinguished or stand ipso facto terminated by the mere
fact that a new statute repealing the old statute is enacted.
Rights which have accrued are saved unless they are taken
away expressly. This is the principle behind Section 6(c),
General Clauses Act, 1897.... ”
But then as the Supreme Court has held in Bansidhar's case
itself, as also in a numerous other cases, what we have to also see is,
1 (1989) 2 Supreme Court Cases 557
2 (1987) 3 SCC 516
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whether the repealing statute exhibits a contrary intention. Section 6 of
the General Clauses Act provides the various contingencies which a repeal
does not affect, but prefaces that by providing: “unless a different
intention appears”. In Kalawati Devi Harlake Vs. The Commissioner of
Income Tax, West Bengal1, the Supreme Court was concerned with the
Income Tax Act, 1922, which was repealed by the Income Tax Act, 1961.
The Commissioner of Income Tax in that case had issued a notice
regarding incometax assessments of the assessee for the years 195253 to
196061, which, according to the Commissioner, were erroneous and
prejudicial to the interest of the revenue, and for which the Commissioner
proposed to issue proceedings under Section 33 B of the Income Tax Act,
1922. The assessee claimed that the Income Tax Act, 1922 was repealed
by the Income Tax Act, 1961 which came into force on April 1, 1962, and
that powers under the repealed Act under Section 33 B could not any
longer be exercised. Section 297 of the Income Tax Act, 1961 provided for
the repeal of the 1922 Act and also provided savings therefrom. Section
297 did not cover saving of the proceedings under Section 33B of the
repealed Act after the repeal. The Department, however, relied upon
Section 6 of the General Clauses Act. The Supreme Court noted that
Section 297 of the Income Tax Act, 1961 provided for various
'proceedings' which may be initiated and prosecuted or continued in
respect of any past matter or assessment. The Court observed that Section
297 was meant to provide as far as possible for all contingencies which
may arise out of the repeal of the 1922 Act and that Section 297 did not
provide for saving of provisions regarding appeals, revisions etc. in
respect of assessment orders already made or which were authorized to
be made under that Section. The Income Tax department, however,
argued that the Parliament had Section 6 of the General Clauses Act in
1 AIR 1968 SC 162
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view and therefore no express provision was made dealing with appeals
and revisions, etc. This contention was rejected the Supreme Court in the
following words: (Pg 168 of AIR 1968 SC 162)
“ (15) The learned counsel for the appellant submits
that Parliament had S. 6 of the General Clauses Act in
view, and therefore no express provision was made
dealing with appeals and revisions, etc. In our view
Section 6 of the General Clauses Act would not apply
because Section 297(2) evidences an intention to the
contrary. In Union of India v. Madan Gopal Kabra,
(1954) 24 ITR 58 = (AIR 1954 SC 158) while interpreting
Section 13 of the Finance Act, 1950, already extracted
above, this Court observed at p. 68 (of ITR) = (at p. 162 of
AIR) :
"Nor can section 6 of the General Clauses Act
1897, serve to keep alive the liability to pay tax on the
income of the year 194950 assuming it to have accrued
under the repealed State law, for a "different intention"
clearly appears in sections 2 and 13 of the Finance Act
read together as indicated above."
It is true that whether a different intention appears or not
must depend on the language and content of Section
297(2). It seems to us, however, that by providing for so
many matters mentioned above some in accord with what
would have been the result under Section 6 of the General
Clauses Act and some contrary to what have been the result
under Section 6, Parliament has clearly evidenced an
intention to the contrary. ”
34 The repealing statute in our case, as noted above, exhibits a
contrary intention to not to save anything which is not expressly saved by
the saving clauses contained in Sections 3 and 4 thereof.
35 Even otherwise, assuming that Clauses (a) to (e) of Section 6
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of the General Clauses Act were to apply to acts, or rights and liabilities,
or proceedings under the Principal Act after the repeal, it is difficult to see
how the exemption order can be withdrawn or provisions of Chapter III
can be applied to such land upon withdrawal of exemption. The argument
of the State is that by virtue of Clause (c) of Section 6, rights, privileges,
obligations or liabilities under the repealed Principal Act, are saved.
Clause (c) talks about any right, privilege, obligation or liability “acquired,
accrued or incurred” under the repealed enactment. Mere existence of a
right, which has not been “acquired” or “accrued” on the date of the
repeal, would not get protection under Clause (c) of Section 6. So also a
liability cannot be enforced under the provisions of the repealed statute
unless the same is “incurred”.
36 In the case of Ambalal Sarabhai Enterprises Ltd. Vs. Amrit
Lal & Co.1, the Supreme Court explained the provision thus:
“ 25. The opening words of Section 6 specify the field over
which it is operative. It is operative over all the enactments
under the General Clauses Act, Central Act or regulations
made after the commencement of General Clauses Act. It
also clarifies in case of repeal of any provision under the
aforesaid Act or regulation, unless a different intention
appears from such repeal, it would have no effect over the
matters covered in its clauses viz. (a) to (e). It clearly
specifies that the repeal shall not revive anything not in
force or in existence or affect the previous operation of any
enactment so repealed or anything duly done or suffered or
affect any right, privilege, obligation or liability acquired,
accrued or incurred under the repealed statute, affect any
1 (2001) 8 SCC 397
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penalty, forfeiture or punishment incurred in respect of any
offence committed under the repealed statute and also does
not affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid. Thus the
central theme which spells out is that any investigation or
legal proceeding pending may be continued and enforced as
if the repealing Act or regulation had not come into force.
26. As a general rule, in view of Section 6, the repeal of a
statute, which is not retrospective in operation, does not
prima facie affect the pending proceedings which may be
continued as if the repealed enactment were still in force. In
other words, such repeal does not effect the pending cases
which would continue to be concluded as if the enactment
has not been repealed. In fact when a lis commences, all
rights and obligations of the parties gets crystalised on that
date. The mandate of Section 6 of the General Clauses Act is
simply to leave the pending proceedings unaffected which
commenced under the unrepealed provisions unless
contrary intention is expressed. We find clause (c) of
Section 6, refers the words “any right, privilege, obligation...
acquired or accrued” under the repealed statute would not
be affected by the repealing statute. We may hasten to
clarify here, mere existence of a right not being “acquired”
or “accrued”, on the date of the repeal, would not get
protection of Section 6 of the General Clauses Act. ”
In Ambalal Sarabhai Enterprises (supra), the Supreme
Court quoted its decision in M. S. Shivananda Vs. Karnataka SRTC 1 in
this connection, which in turn quoted the eloquent observations of the
Privy Council in the case of Director of Public Works Vs. Ho Po Sang 2 in
this behalf, as follows:
'It may be, therefore, that under some repealed
enactment, a right has been given but that, in respect of it,
some investigation or legal proceeding is necessary. The
right is then unaffected and preserved. It will be preserved
even if a process of quantification is necessary. But there
is a manifest distinction between an investigation in respect
of a right and an investigation which is to decide whether
1(1980) 1 SCC 149
2[1961] A.C. 901 (P.C.)
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some right should be or should not be given. On a repeal,
the former is preserved by the Interpretation Act. The latter
is not.'
(emphasis supplied)
Even in Bansidhar's case the Supreme Court, whilst
construing Clauses (c) and (e) of Section 6 of the General Clauses Act,
had said this:
“ 30. For purposes of these clauses the 'right'
must be 'accrued' and not merely an inchoate
one. The distinction between what is and what
is not a right preserved by Section 6 of the
General Clauses Act, it is said, if often one of
great fineness. What is unaffected by the repeal
is a right 'acquired' or 'accrued' under the
repealed statute and not 'a mere hope or
expectation' of acquiring a right or liberty to
apply for a right.' ”
37 Now let us see, how the provisions of the Principal Act with
which we are concerned in the present case, namely, Section 20(2) and
generally the provisions of Chapter III, fare in the context of an order
under Section 20(2), in this behalf. What is argued is that the landholder
holding an exemption under Section 20(1) attracts the liability to have
the exemption withdrawn and Chapter III of the Principal Act applied to
the land. This may certainly be called an existing liability and the
Government can be said to have a corresponding right to withdraw the
exemption and apply Chapter III to the land in question. But the question
is, is it an “incurred” or “accrued” right, as understood by law in the
context of application of Section 6. The consequence of a purported non
compliance with any of the conditions of an exemption order under
Section 20(1) of the Principal Act is that “it shall be competent for the
State Government to withdraw, by order, such exemption.” Such order can
be passed if “the State Government is satisfied” that any condition is not
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complied with, and such satisfaction can be reached only “after giving a
reasonable opportunity to such person for making a representation
against the proposed withdrawal”. And only after all this is done and an
order of withdrawal of exemption is passed that “the provisions of this
Chapter shall apply”. Even application of Chapter III itself does not ispso
facto imply vesting of the land in the State Government. It only means
that the elaborate machinery of Section 6, 8, 9 and 10, including the
hearings at each of these stages, will have to be gone through before the
vesting can take place. It is not as if the exemption stands ispso facto
withdrawn and the land is deemed to be vested in the State Government
upon breach of a condition of exemption.
38 In the first place, whether there is a breach and therefore, a
corresponding right to the State to acquire excess vacant land, will itself
have to be ascertained. An investigation and a proceeding involving an
opportunity to show cause to the defaulting landholder are required to
enable the Government to pass an order withdrawing the exemption.
Thereafter, further investigation and proceedings will have to be
undertaken to ascertain if the land is excess vacant land and whether the
land is to be acquired. During these proceedings, the landowner may even
apply that the excess vacant land may not be treated as excess under the
provisions of Section 21 or even present another Scheme under Section
20 for exemption. In other words, before an “accrued” or “acquired”
vesting right can be claimed by the State, a whole of gamut of
investigation and proceedings will have to be gone through. Thus, neither
is any divesting of the land to the State “incurred” by the landholder nor
is the vesting “accrued” to, or “acquired” by, the State.
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39 Thus, in the first place, there is no “withdrawal of exemption”
under Section 20(2) “incurred” nor any right to withdraw exemption and
apply Chapter III is “accrued” or “acquired” by the State. And as for
'vesting' of the land in the State, there is not even a statable case that the
'vesting' is in any way “acquired” or “accrued” in favour of the State at the
stage of breach of a condition or even at the stage of withdrawal of the
exemption. There is, in that case, no question of application of Section
6(c) of the General Clauses Act to the breach of a condition of an
exemption order and saving of the Government's power to withdraw the
exemption or apply Chapter III or acquire the land thereunder.
40 Thus, neither the savings clause of the Repeal Act nor Section
6 of the General Clauses Act saves the provisions of Section 20(2) or the
applicability of Chapter III of the Principal Act in relation to an exemption
order passed under Section 20(1). If the conditions of exemption granted
under Section 20(1) are breached, neither can the exemption be
withdrawn after the repeal nor could Chapter III be applied to the land
upon withdrawal of such exemption after the repeal. There is no question
of the State Government seeking to acquire such land any time after the
repeal.
41 That still leaves the question: Are there any consequences
(apart from the ones discussed above) of the validity of the exemption
order saved under Section 3(1) (b) of the Repeal Act. We have noted that
the validity of an exemption order covers both the privilege, namely, the
exemption, and the conditions attached to that privilege. But we have also
noted that breach of these conditions cannot be visited with the
consequence of either withdrawal of exemption under Section 20(2) or
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application of the other provisions of Chapter III after such withdrawal. If,
however, the exemption order together with its conditions could be
implemented or enforced by the State or any beneficiary of a scheme
sanctioned under Section 20(1), otherwise than by recourse to Section
20(2) or other provisions of Chapter III of the Principal Act, when the
Principal Act was in force, there is no reason why such implementation or
enforcement is not possible after the repeal. Take the case of an
exemption order under Section 20(1) for a housing scheme with an
express condition of handing over a specified number of tenements to the
State Government. If the scheme is not implemented at all, the State has
no means of implementing the condition except by recourse to Section
20(2) by withdrawing the exemption and applying the provisions of
Chapter III to the land. The Principal Act not being in force, this course is
not available to the State after the repeal. But if the scheme is
implemented, and a housing project is actually brought up on the land,
but the tenements have not been handed over to the State Government,
can the State Government not require the land owner to hand over the
tenements to the State Government, without withdrawing the exemption
under Section 20(2). The answer is yes. The State may go to a court of
law or devise any other means, legislative or executive, acceptable to law
to recover the possession of the tenements due to it. If the State could do
it when the principal statute was in force, there is no reason why it cannot
do so after the repeal, especially if the repealing statute expressly saves
the validity of both the exemption and the conditions on which it is based.
Take another case. An exemption order is issued under Section 20(1) in
respect of a land on a condition that such land shall be used only for
industrial purpose. This condition could have been implemented by the
State otherwise than by recourse to Section 20(2) of the Principal Act, say
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by not sanctioning any plans for a non – industrial user. If the State could
do it before the repeal, it can do so even after the repeal. After all the
exemption order and its conditions are valid even after the repeal.
42 In a sense, these are actions taken under the Principal Act
which have achieved a finality. In the case of the housing scheme referred
to in the example above, the housing scheme is completed. (It may even
be substantially completed.) The liability to hand over the tenements to
the Government has crystalized and has been incurred. The Government
in turn has acquired an enforceable right to get the tenements. In the
second case, namely, exemption on the condition of industrial user, the
exemption is a completed act. The land has been exempted under the
provisions of Section 20(1) on the condition that the only permissible user
would be the industrial user. No further act is required either on the part
of the landholder or the Government to make the condition enforceable.
The liability to not to use the land for a nonindustrial user is incurred by
the landholder and can be enforced by the Government in any manner
known to law.
43 This, then, is the answer to the main question posed to the
Full Bench. What is saved by the saving clause of the repealing statute is
the validity of an exemption order, and it means the validity of both the
exemption and the conditions on which it is granted. But that does not
mean that the breach of any condition of the exemption order can be
visited with the consequence of either withdrawal of exemption under
Section 20(2) or application of Chapter III of the Principal Act to the land.
At the same time, if it were permissible to implement or enforce the
exemption order in any manner acceptable to law otherwise than by
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recourse to Section 20(2) or Chapter III of the Principal Act, such
implementation or enforcement is permissible even after the repeal.
44 To this extent, I am not in agreement with the view expressed
by the Andhra Pradesh and Delhi High Courts, respectively, in Surendra
Raj Jaiswal vs. Government of Andhra Pradesh 1 and Tej Pratap Singh
vs. Union of India2. I am in respectful agreement with the view of the
learned Single Judge of Andhra Pradesh High Court in the case of
Surendra Raj Jaiswal (supra) that on noncompliance of conditions of an
exemption order, the State Government after the repeal of the Principal
Act was not empowered to withdraw the exemption granted under
Section 20(1). With respect, however, I do not agree with his view that in
the absence of the power to withdraw the exemption, the conditions have
become unenforceable and are nonest or that such land has become
freehold land irrespective of any conditions with regard to the usage of
the exempted land. So also, for the reasons discussed above, I am in
respectful disagreement with the statement of law by the Delhi High
Court in the case of Tej Pratap Singh (supra) that after the repeal, the
conditions of exemption, which remain unimplemented, cannot be
implemented because they are not specifically saved. The conditions are
saved because the exemption order as a whole is saved. They can even be
enforced, if the liability created thereby has been incurred, as discussed
above. One of the reasons cited by the Delhi High Court whilst arriving at
this conclusion was the provision of Section 3(1) (c) of the Repeal Act. In
Tej Pratap Singh's case (supra) the exemption under Section 20(1) was
granted on a condition requiring certain payment to be made to the State
Government. The Delhi High Court held that under Section 3(1) (c) the
1 2011 (6) ALD 198
2 46 (1992) DLT 303
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actual payment was saved, but not the condition of payment. The Court
felt that had it not been specifically provided that the payment made to
the State Government was saved despite the repeal, the same would have
been affected by the repeal. From this, the Court deduced that in the
context of Section 6 of the General Clauses Act, the landholder's right to
exemption under Section 20(1) is specifically saved, but not the 'liability'
to make the payment, unless the payment had already been made prior to
the repeal. I am afraid that would not be a correct way of dealing with the
question of validity of a condition or any liability created thereunder. As
discussed by me above, and explained in the judgment of my brother
Dharmadhikari J, the exemption order and its conditions are both valid.
That is the consequence of Section 3(1) (b) itself. One need not have
recourse to Section 3(1) (c) for that validity. Just as any other condition is
valid, so is the condition requiring payment is valid. The question only is
whether, and to what extent, this valid condition can be enforced. As
explained by me above, if the scheme under which exemption was
granted was not implemented or acted upon at all (or even
substantially), the only consequence of noncompliance of such condition
(say, of payment) would be to withdraw the exemption and apply Chapter
III to the land. That is, as explained above, not permissible. But if it is
implemented or substantially acted upon, then surely in a given case the
condition can be enforced without withdrawal of exemption in a manner
known to law, i.e. by any acceptable judicial, legislative or executive
device.
45. The only question is, why is then the provision of Section
3(1) (c) at all necessary, for a completed payment, it may be argued, may
be saved on the above logic under Section 3(1) (b) itself. The answer, to
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my mind, is twofold. Firstly, one does not know whether in all cases of
actual payment already made before the repeal, the scheme itself
providing amongst other things payment to the Government is
implemented or even substantially acted upon (other than making of such
payment). It may be that only payment to the Government is made, but
nothing else is acted upon. In that case, the payment may not be saved
under the general clause, namely, Section 3(1) (b) and a special provision
may be necessary to save such payment. Secondly, making a special
provision by way of abundant caution despite application of the general
provision, is a well known legislative device, which the legislature many a
time adopts. In a case which is covered by reason of the general provision
of Section 3(1) (b), the provision of Section 3(1) (c) acts ex majori
cautela. Thus, the existence of Section 3(1) (c) can be justified in the face
of Section 3(1) (b).
46. In the light of the above discussion, my answers to the
questions referred to the Full Bench are as follows :
(a) Question No.(1) in the Affirmative. Section 3(1)(b) of the
Urban Land (Ceiling and Regulation) Repeal Act, 1999 saves the validity
of the orders of exemption under Section 20(1) of the Urban Land
(Ceiling and Regulation) Act, 1976 including the validity of all terms and
conditions thereof and all actions taken thereunder. Section 6 of the
General Clauses Act, 1897 and Section 7 of the Bombay General Clauses
Act, 1904 have no application in this behalf.
(b) Question No.(2) in the Negative. Section 6 of the General
Clauses Act, 1897 read with or without Section 7 of the Bombay General
Clauses Act, 1904 does not apply to the repeal of the Urban Land (Ceiling
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and Regulation) Act, 1976 by the Repealing Act, 1999. The application of
these sections is excluded by the contrary intention expressed in the
provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999.
(c) Question (3) (a) in the Negative. There is no question of
enforcement of the order of exemption under Section 20(1) or its terms
and conditions, in accordance with the provisions of the Urban Land
(Ceiling and Regulation) Act, 1976. Neither can the exemption granted
under Section 20(1) of the Urban Land (Ceiling and Regulation) Act,
1976 be withdrawn for breach of conditions under Section 20(2) nor can
Chapter III be applied to the land exempted under Section 20(1) after
withdrawal of the exemption under Section 20(2) of the Urban Land
(Ceiling and Regulation) Act, 1976.
(d) Question (3)(b) in the Affirmative, with a clarification that
the order of exemption can be implemented or enforced in any manner
acceptable to law, if, and to the extent, such order could be implemented
or enforced otherwise than by recourse to the Urban Land (Ceiling and
Regulation) Act, 1976. The State may enforce the order together with
its conditions through a Court of law or devise any legislative or
executive means to implement the order of exemption and its
conditions. The enforceability of the order, and legality of the measure
adopted for its implementation will, however, have to be decided in the
facts and circumstances of each individual case.
(e) Question No.(4) (a) in the Negative. The State cannot
recall/cancel/modify any exemption order granted under Section 20 of
the Principal Act at any time after the coming into force of the Repeal Act.
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(f) Question No.(4)(b) in the Affirmative, subject to a
clarification that though enforceability of any circular issued for
implementation of an order of exemption issued under Section 20 of the
Principal Act is not affected by the repeal, whether, and to what extent,
such circular is valid will have to be decided in the facts and
circumstances of each case. It is not possible to lay down any general
proposition with respect to its validity.
(g) Question No.(4)(c) in the Negative. The State Government
cannot acquire the land which was exempted under Section 20(1) of the
Principal Act by issuing notification under Section 10(3) of the Principal
Act.
(h) Question No.(4)(d) in the Affirmative, but with a clarification
that no action is possible at any time after the repeal of the Principal Act
in respect of noncompliance/breach of an exemption order issued under
Section 20(1) of the Principal Act under the provisions of either Section
20(2) of the Principal Act or under Chapter III of the Principal Act in any
manner whatsoever.
(i) Answer to Question No.(5) as follows. The view taken in the
case of Vithabai Bama Bhandari vs. State of Maharashtra sets out the
correct legal position as regards the ambit and scope of Section 3(1)(b) of
the Urban Land (Ceiling and Regulation) Repeal Act, 1999. It has no
conflict with the view taken by this Court in the case of Mira Bhayandar
Builders and Developers Welfare Association vs. The Deputy Collector
and Competent Authority, Thane Urban Agglomeration and others.
The case of Damodar Laxman Navare and others vs. State of
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Maharashtra and others deals with the question as to whether it was
open to the Collector and Competent Authority in that case to issue
instructions to the SubRegistrar of Assurances to not to register any
document. The view taken in that case that it was not open to the
Collector to issue such instructions as he had no Appellate, Supervisory
or Revisional powers over the Registering Officer, is correct and in
consonance with the law laid down by our Court in the case of
Sundersons & Ors. Vs. State of Maharashtra & Ors. The judgment in
Damodar Laxman Navare and others Vs. State of Maharashtra and
others does not deal with the question as to whether any order passed
before the repeal of the Principal Act under Section 10(1) or (3) in
respect of a land, after its exemption under Section 20(1) was withdrawn
under Section 20(2), is saved after the repeal. As held by me above, such
order does not survive the repeal of the Principal Act. In so far as the
judgment of our Court in Mira Bhayandar Builders and Developers
Welfare Association vs. The Deputy Collector and Competent
Authority is concerned, the view expressed therein that the landholders,
who have taken the benefit of the schemes under Section 20 of the
Principal Act by constructing buildings, cannot after the repeal of the
Principal Act wriggle out of their obligations to surrender flats to the
Government, is correct, but for the reasons discussed above. The legality
of the means adopted by the State Government or any other person for
holding the landholders to their respective obligations under such
schemes will, however, have to be decided in each case having regard to
the facts and circumstances of the individual case.
(S.C. Gupte, J.)
*********
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(Per [Link], J): I have gone through the erudite judgment of my
learned brother [Link], J. While I am fully in agreement with the
reasoning and conclusions as arrived by my learned brother, I wish to pen down
few thoughts.
1. The principal question is as to whether after the repeal of the Urban
Land (Ceiling and Regulation) Act 1976 (for short the 'Principal Act') what
would be the legal position of an order granting exemption under sub-section (1)
of section 20. To what extent Section 3 sub-section (1) (b) of the Urban Land
(Ceiling and Regulation) Repeal Act 1999 (for short Repeal Act) saves the
validity of such an exemption order or any action taken thereunder? This
position is required to be ascertained from the examination of the provisions of
the Repeal Act and mainly the provisions of Section 3 and 4 of the Repeal Act
and the application of section 6 of the General Clauses Act vis-a-vis the
Principal Act.
2. The Repeal Act was brought into effect by the State Legislature w.e.f.
29.11.2007. Section 3 is the saving clause which provides that the repeal of the
principal Act shall not affect the following:
(i) Vesting of any vacant land under sub-section (3) of section 10
possession of which has been taken over by the State government or any
person duly authorized by the State government in this behalf or by the
competent authority;
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(ii) the validity of any order granting exemption under sub-section (1) of
section 20 or any action taken thereunder notwithstanding any judgment
of any Court to the contrary;
(iii) any payment made to the State Government as a condition for
granting exemption under sub-section (1) of section 20,
Sub-section (2) postulates that where any land is deemed to have vested
in the State Government under sub section (3) of section 10 of the principal Act,
but possession of which has not been taken over by the State Government, AND
Any amount has been paid by the State Government with respect to such
land then such land shall not be restored unless the amount paid if any has been
refunded to the State Government.
3. Section 4 of the Repeal Act provides for abatement of the legal
proceedings and provides that all proceedings relating to any order or purporting
to be made under the principal Act pending immediately before the
commencement of the repeal Act before any Court, tribunal shall abate.
The proviso to this section, stipulates that the section shall not apply to
the provisions relating to section 11 to 14, of the principal Act in so far as such
provisions are relatable to the land possession of which has been taken over by
the State Government.
4. The intention of the legislature in regard to the repeal of the principal
Act is required to be gathered from the provisions of sections 1 to 4 of the
Repeal Act. The Repeal Act is required to be seen in its entirety so as to find out
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as to what is the true nature of the repeal as contemplated by the legislation. The
intention of the legislature which can be gathered from these provisions is as
under:-.
(i) That the principal Act stands repealed. (Section 2)
(ii) The repeal of the principal Act shall not affect the vesting of any vacant
land under Sub-section (3) of Section 10, possession of which has been taken
over by the State Government . (Section 3(1)(a))
(iii) The repeal of the principal Act shall not affect the validity of any order
granting exemption under sub-section (1) of section 20 or any action taken
thereunder, notwithstanding any judgment of any Court to the contrary. (Section
3(1)(b))
(iv) The repeal of the principal Act shall not affect any payment made to the
State Government as a condition for granting exemption under sub-section (1) of
section 20. (Section 3(1)(c))
(v) The repeal of the principal Act shall not affect any land which is deemed
to have been vested in the State Government under sub-section (3) of Section 10
of the principal Act but possession of which has not been taken over by the State
Government and any amount which has been paid by the State Government
with respect to such land, then, such land shall not be restored unless the amount
paid, if any, has been refunded to the State Government.
(Section 3(2)(a) & (b))
(vi) That on the repeal of the principal Act all proceedings relating to any
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order made or purported to be made under the principal Act pending
immediately before the commencement of this Act, before any Court, tribunal or
any other authority shall stand abated and that abatement shall not apply to the
proceedings relating to Section 11 to 14 of the principal Act, insofar as such
proceedings are relatable to the land, possession of which has been taken over by
the State Government. (Section 4)
7. The aforesaid consequences of the Repeal Act if seen in the context
of Section 3 of the Repeal Act, it becomes apparent that firstly the Repeal Act in
no uncertain terms saves vesting of any vacant land, possession of which has
been taken over by the State Government; secondly, the validity of any order
granting exemption under sub-section (1) of Section 20 or any action taken
thereunder is also saved.
8. The plain wordings of sub-clause (b) of Section 3(1) of the Repeal
Act are required to be given due meaning as they deserve. The interpretation of
sub-clause (b) of Section 3(1) is required to be meaningful so as to protect the
object which the provision intends to achieve. What is sought to be achieved is
the validity of an exemption order issued under sub-section (1) of Section 20 or
any action taken thereunder. Not only the validity of Section 20(1) is saved but
also any action taken thereunder notwithstanding any judgment of any Court to
the contrary.
9. To appreciate the meaning which needs to be attributed to Section
3(1)(b) of the Repeal Act, an exemption order issued under Section 20(1) is
required to be kept in mind. A sample copy of the exemption order has been
tendered to the Court on behalf of the petitioners. A perusal of this exemption
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order shows the following attributes:-
(i) That the beneficiary of an exemption order admittedly holds vacant land
in excess of ceiling limit. This is by virtue of the application of the Principal Act
more particularly Chapter III.
(ii) The beneficiary applies for exemption under Section 20 of the Act in
regard to the excess land for providing sites and services, core, house and
construction of tenements as per the guidelines issued under the Government
Resolutions, Housing & Special Assistance Department dated 22.8.1988.
(iii) The beneficiary undertakes that the construction of tenements would be
governed under the MOFA Act or the MCS Act,1960.
(iv) On such application the Government takes an action of being satisfied
that having regard to the location of the land the purpose for which the land is
being proposed to be used and other relevant factors it is necessary in public
interest to grant exemption and thus exempts the vacant land from the provisions
of Chapter III of the ULC Act.
(v) The exemption is granted by the State Government on several conditions
inter alia being:-
(a) the land exempted shall be for the purpose of construction of tenements;
(b) any change made in the user of the land would amount to breach of the
conditions;
(c) tenements to be constructed are required to be of a particular
specification;
(d) the beneficiary shall get the lay out of the building plan approved from
the concerned planning authority;
(e) that the construction is required to be commenced and completed as per
the time limit as specified;
(f) in case buildings are incomplete and/or construction is not completed, the
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exemption shall be deemed to have been withdrawn and vacant land and such
land with structures and the land appurtenant shall be acquired as per Chapter III
of ULC Act,1976.
(g) that the exempted land with or without building shall not be transferred
except for the purpose of mortgage (in favour of financial institutions) failing
which the exemption granted shall stand withdrawn. Necessary returns are
required to be filed to the State Government in a prescribed form to show the
progress of the work done by the beneficiary. In case of breach of the order, it
shall be competent for the State Government to withdraw by an order exemption
from the date specified in the order.
(h) The beneficiary will advertise the entire scheme within six months from
the date of sanction order of the State Government.
An exemption order issued under Section 20(1) of the Principal
Act stipulates these different conditions, and it is on these conditions the vacant
land would cease to be out of the purview of Chapter III of the Principal Act.
These conditions include the condition on the part of the beneficiary to subject
himself
to the provision of Chapter III in case there is breach of any conditions of the
exemption order on his part.
It is significant that the power to exempt as provided under section 20 of
the principal Act begins with a non-obstante clause and reads thus:
“ 20. Power to exempt: (1) Notwithstanding anything contained in any of
the foregoing provisions of this Chapter,................”.(Emphasis
supplied)
It is therefore clear that power under section 20 is an independent power
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notwithstanding the other provisions as contained in Chapter III namely section
3 to section 19 and Section 21 to section 24. If the Government exercises
powers under section 20 sub-section (1) such an exercise would be an
independent exercise, irrespective of the applicability of other provisions of the
provisions of chapter III. It certainly cannot be construed that once an
exemption order under section 20 sub-section (1) was issued, the land which is
otherwise subject to the provision of section 3 to section 19 of the Principal Act,
for the exemption becomes immune from the applicability of the said provisions,
the consequences of which are deemed to have taken place the moment of the
Act became applicable to such vacant land. Further once an exemption is granted
under section 20 (1) it is an admitted position that the land is a vacant land and
the beneficiary by his volition subjects himself to the terms and conditions of the
exemption order. Once this position is established a beneficiary of section 20 (1)
order cannot contend that everything under the exemption order has become
redundant due to the repeal of the Act. Such contention in my opinion is wholly
against the express provisions of section 3 (1) (b) of the Repeal Act which saves
the validity of an exemption order. It is therefore seen that Section 20 is in the
nature of an exception to the general rules as contained in Chapter III of the
principal Act which deal with the ceiling on vacant land and the manner in which
such lands would be dealt under the provisions of chapter III of the Act.
The intention of the Legislature which is apparent from the
wordings of Section 3(1)(b) of the Repeal Act is to save in totality the validity of
an order granting exemption under sub-section (1) of Section 20 of the Act or
any action taken thereunder. When the legislature saves the validity of a Section
20(1) order which includes all the conditions including the condition that in case
of breach of any of the conditions provisions of Chapter III would become
applicable, then it will not be possible to read into the provisions of Section 3(1)
(b) of the Repeal Act that the legislature intended otherwise. In other words, the
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validity of an exemption order as saved by Section 3(1)(b) of the Repeal Act
cannot be read de hors its conditions inasmuch as the said provision mandates
that an order granting exemption under Sub-section (1) of Section 20 is valid
wholesomely. It would be an absurdity to say that such an exemption order
would remain valid de hors the conditions on which it is issued. The word
“validity” as used in Section 3(1)(b) is of considerable significance. Black Law
Dictionary (8th Edition) would refer the word “valid” to mean as under:-
“legally sufficient, binding, a valid contract”
If this is what the Legislature intended then necessarily the validity
of an exemption order under Section 20(1) would include all attributes necessary
to keep an exemption order valid and therefore would also include the
applicability of Chapter III of the Principal Act. De hors the applicability of
Chapter III which is one of the prime conditions of a Section 20(1) exemption
order, the validity of such exemption order as saved by the provisions of Section
3(1)(b) of the Repeal Act would be rendered meaningless. In any event the
beneficiary of an exemption order can be the last person to quarrel about this
proposition as he has accepted the exemption order in totality which includes
acceptance to the applicability of Chapter III of the Principal Act.
It is well settled that if the words used by the legislature in framing the
legislation have a necessary meaning, it is the duty of the Court to construe the
clause accordingly irrespective of the inconvenience that may be caused
(Argumentum Ab Inconvenienti Plurimum Valet In Lege). In the context of a
Section 20 exemption order and considering the plain reading of section 3 (1) (b)
of the Repeal Act the interpretation as suggested by the petitioners would lead to
extravagant results, away from the object which the saving provision intends to
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*232* [Link]
achieve.
It is settled that a saving provision in a repeal statute is not
exhaustive of the rights, obligations so saved or rights that survives the repeal as
is clear from the judgment of the Constitution Bench in the case of “Bansidhar
& Ors. Vs. State of Rajasthan & ors” reported in (1998) 2 SCC 557 It is,
therefore, imperative that Section 6 of the General Clauses Act which provides
for the effect of a repeal, stands completely attracted. Section 6(c) of the
General Clauses Act provides that the repeal shall not affect any right, privilege,
obligation or liability acquired, accrued or incurred under any enactment was
repealed unless a different intention appears.
A proper examination of the provisions of the Repeal Act and more
particularly the provisions of Sections 3 and 4 do not indicate that it would be
the intention of the Legislature to save the validity of a Section 20(1) Exemption
Order to exclude the enforcing power being applicability of Chapter III of the
Principal Act being one of the conditions under the exemption order. It cannot
be said that the rights accrued and the liabilities incurred under Section 20(1)
exemption order stands completely effaced when the validity of such an
exemption order has been saved by the provisions of Section 3(1)(b) of the
Repeal Act. As no such contrary intention can be gathered from the provisions
of the Repeal Act, the petitioner's contentions that the validity of the exemption
order as saved by Section 3(1)(b) of the Repeal Act is valid de hors the
conditions of the exemption order cannot be accepted on the basis of the plain
wordings of Section 3(1)(b) of the Repeal Act. In the decision of the Supreme
Court in the case of “Shantibai Gaikwad Vs. Shivajibhai Haribhai” reported in
“2005(5) SCC 101”, the Supreme Court has once again recognized the principle
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*233* [Link]
that a repealing statute is not exhaustive and does not automatically extinguish
accrued rights unless they are taken away completely. The Repeal Act in no
manner expressly takes away the applicability of the conditions under Section
20(1) exemption order. In fact the intention of the legislature is to wholesomely
save the validity of an exemption order which ipso facto include the teeth
namely to take action under Chapter III of the Principal Act in case of breach of
the condition under which an exemption has been granted for the beneficiary of
the Section 20(1) of the order.
The petitioners contention that for some reason the scheme under a
section 20 (1) order could not be completed and hence the exemption order
cannot be enforced due to the repeal of the Principal Act, cannot be accepted.
Once the legislature holds an exemption order issued under section 20 (1) to be
valid, all incidental powers which are necessary to preserve its validity would be
available to the State. This would be firstly by virtue of the clear provisions of
section 3 (1) (b) of the Repeal Act and secondly by virtue of the provisions of
section 6 of the General Clauses Act. Any other interpretation would be nothing
short of doing a violence to the solemn intention of the legislature in saving the
validity of an exception order by in view of the express provisions of section 3
(1) (b) of the Repeal Act.
In view of the aforesaid discussion, the legal position as would
emerge can be summarized as under:-
(a) Section 3(1)(b) of the Repeal Act saves the validity of an order
granting exemption under sub-section (1) of Section 20 or any action taken
thereunder, notwithstanding any judgment of any Court to the contrary.
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*234* [Link]
(b) this would mean that the validity of Section 20(1) exemption order
is saved in every regard so as to hold the same valid for all the purposes.
(c) the phrase “validity” would mean that an exemption order would
be construed to be valid in regard to all the rights and liability attached to such
an exemption order. These rights and liabilities may be either of the beneficiary
of the exemption order or the Government.
(d) As Section 3(1)(b) of the Repeal Act does not expressly bar or take
away the rights and liabilities under an exemption order, Section 6 of the General
Clauses Act becomes applicable with all its force, and hence, the repeal of the
Principal Act, would not affect the rights, privileges, obligation or liability,
acquired, accrued, or incurred under the Principal Act qua a Section 20(1)
exemption order.
(e) Any other interpretation would render Section 3(1)(b) of the
Repeal Act to the extent it saves the validity of a Section 20(1) exemption order
meaningless, as Section 3(1)(b) of the Repeal Act not only saves the validity of
Section 20(1) exemption order but also any action taken thereunder
notwithstanding any judgment of any Court to the contrary.
(f) If the Legislature in so many words has saved the validity of a
section 20 (I) exemption order then it would be absurdity to say that on one hand
the legislature has saved its validity and on the other hand such a validity would
be required to be read as meaningless in view of repeal of the Principal Act.
(g) The arguments of the petitioners that what is saved under Section
3(1)(b) of the Repeal Act are only actions which stand completed and closed, is
per se not acceptable for the reason that such interpretation would only be
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*235* [Link]
possible when there is no saving clause in the repealing statute. More
particularly it is also unacceptable in view of a saving clause of the nature
section 3 (1) (b) of the Repeal Act provides. A plain reading of Section 3(1)(b)
definitely cannot be construed to attribute such a meaning to Section 3(1)(b).
(h) The Repeal Act, if construed in its entirety, manifest a clear
intention of the Legislature to save the validity of a Section 20 (1) exemption
order in totality including its enforceability as observed by my learned brother
[Link], J.
([Link], J)
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