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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4241 OF 2008
Vithabai Bama Bhandari
Indian Inhabitant, residing at
Building No.1, 3rd Floor, Bombay
Housing Board Building, Bandra
Reclamation, Bandra (East),
Mumbai - 400 050. ..Petitioner
Versus
1. State of Maharashtra
2. Deputy Collector & Competent Authority
Ulhasnagar ig Urban Agglomeration,
having his office at Ulhasnagar
Civil Complex ..Respondents
Mr.Milind Sathe, Senior Advocate with Mr.Chirag
Balsara i/b.Kanga & Co. for petitioner.
Mr.V.A.Sonpal, AGP for respondents.
CORAM :- V.C.DAGA &
MRS.MRIDULA BHATKAR,JJ.
JUDGMENT RESERVED ON : 31ST MARCH, 2009
JUDGMENT PRONOUNCED ON : 16TH APRIL, 2009
JUDGMENT (PER : V.C.DAGA,J.)
1. The petitioner, in this petition filed under
Article 226 of the Constitution of India, is seeking
following declaration;
That it be declared that all
proceedings/notifications and notices issued
under Section 9 and 10 of the Urban Land
(Ceiling and Regulation) Act, 1976 in respect
of the land situated at bearing survey No.34/6
Koliwali, Taluka Kalyan District Thane
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admeasuring 2008.00 sq.mtrs. stand abated in
view of Section 4 of the Urban Land Ceiling
(Repeal) Act, 1999 and the respondents are now
not entitled to resort to the provisions of
the Urban Land (Ceiling and Regulation) Act
1976 in respect of the petitioners land;
FACTUAL BACKDROPS:
. In order to appreciate the grievance of the
petitioner, few relevant introductory facts needs to
be noticed at the outset.
2. Petitioner herein is a holder of land
admeasuring 16490 sq.mtrs. under Plot bearing No.33,
34(6) and 35/15 at village Koliwali, Taluka Kalyan,
District Thane.
3. On 3rd October, 1983, the Deputy Collector &
Competent Authority, Ulhasnagar passed an order under
Section 8(iv) of the Urban Land (Ceiling and
Regulation) Act, 1976 (for short “the said ULC Act”)
in Case No.ULC/ULN/SR-19 Koliwali and declared that
petitioner is holding surplus land as per the details
given below:
——————————————————
Sr.No. Area in Area to be Area to be
sq.mtrs. retained with acquired in
the declarant sq.mtrs.
——————————————————
33 2230 2230 --
35/15 900 900 --
34/6 13360 4370 8990
——————————————————
Total 16490 7500 8990
——————————————————
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4. On 10th July, 1989, petitioner has filed an
application for exemption under Section 20 of the said
Act offered the said excess land for providing sites
and services, construction of core and construction of
tenements governed by the Maharashtra Ownership Flats
Act,1963 or by the Maharashtra Cooperative Societies
Act,1960.
5. The Deputy Collector and Competent Authority,
Ulhasnagar after having considered the application has
passed an order under Section 20 of the ULC in
No.ULC/ULN/20-NEW/SR-138 and allowed the application
of the
applicant
of 40 sq.mtrs. each i.e. 1,180.04 sq.mtrs. to be
with the condition that 31 tenements
sold to Government nominees at fixed rate.
6. The petitioner, thereafter preferred an
application proposing to develop the land so as to
implement development scheme with the office of Kalyan
Dombivli Municipal Corporation (for short “the KDMC”).
The KDMC has informed the petitioner about the
reservation of Sy.No.34/6 for development as per the
development plan and rejected the proposal of the
applicant for development of the land.
7. Being aggrieved by the orders dated 3rd
October, 1983 and 31st July, 1989, petitioner has
filed an appeal under Section 33 of the ULCR before
the Additional Collector, Thane which was allowed on
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23rd May, 2001. The Deputy Collector and Competent
Authority, Ulhasnagar was directed to hold fresh
enquiry under Section 8(iv) of the ULC Act.
8. After fresh enquiry conducted by respondent
No.2 bearing No.ULC/ULN/6(1)SR-19, Koliwali, on 19th
September, 2001 it was declared by respondent No.2
that petitioner is holding 2008 sq.mtrs. surplus
land. On 30th September, 2003, the constituted
attorney of the petitioner vide letter dated 30th
June, 2003 sought for implementation of a scheme under
Section 20 of the Act.
9.
Pursuant to the application, the Additional
Collector and Ex-Officio, Deputy Secretary, Ulhasnagar
Urban Agglomeration, Thane issued the order
ULC/ULN/20-NEW/SR-138 dated 31st July, 1989, wherein
petitioner was directed to handover 7 tenements of 40
sq.mtrs. each i.e. 266.23 sq.mtrs. to Government
nominees at fixed rate. Thereafter on 17th October,
2003 petitioner had filed a proposal for IOD and
Commencement Certificate for construction work on the
plot of land and started the construction work and
also filed a proposal dated 17th October, 2003 for
development of scheme with KDMC, which the KDMC has
approved the proposed development vide its order
No.KDMC/DP/BP/Koliwali/473/194. The said
constructions was completed within the time prescribed
for the same.
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10. On 5th January, 2006, petitioner vide her
letter requested respondent No.2 to take possession of
the flats, along with affidavit mentioning description
of the lands to be handed over to the said authority.
During the submission of the letter dated 5th January,
2006, petitioner was informed by the department
through her constituted attorney that there was some
exchange of correspondence with regard to the said
property such as Show cause notice bearing
No.ULC/ULN/T-5/SR-138 dated 11th April, 2005 was
issued to the petitioner, which ultimately resulted in
an order
dated
exemption granted under Section 20 of the ULC Act vide
25th April, 2005 withdrawing the
order No.ULC/ULN/20-NEW/SR-138 dated 31st July, 1989.
11. The Petitioner, after having received the said
order through her constituted attorney vide letter
dated 23rd February, 2006 requested respondent No.2 to
carry out the site visit since the work was completed
and willingness was shown to hand over the requisite
flats but this request did not yield any result.
12. The Petitioner was served with the notice
dated 28th June, 2007 by the respondent No.2 under
Section 10(5) of the ULC Act calling upon the
petitioner to hand over possession of the surplus
vacant land to respondent No.2 due to non compliance
of the condition for exemption under Section 20 of the
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Act. The said notice is the subject matter of
challenge in the present petition filed under Article
226 of the Constitution of India.
RIVAL SUBMISSIONS
13. Mr.Milind Sathe, learned Senior Counsel
appearing on behalf of petitioner, in support of his
pleadings, contends that in pursuance of the order
given by Additional Commissioner vide its order dated
23rd April, 2001, the respondent No.2 conducted an
inquiry
accordingly
bearing
ig has
No.ULC/ULN/6(1)SR-19
passed an order dated
Kolivali
19th
and
September,
2001 wherein it was held that petitioner was holding
2008 sq.mtrs. surplus vacant land.
14. The learned Senior Counsel further contended
that the petitioner was surprised to receive a notice
dated 20th June, 2007 issued by respondent No.2 under
Section 10(5) of the said Act directing the petitioner
to handover possession of the surplus vacant land to
respondent No.2 due to non compliance of the
conditions for exemption under Section 20 of the said
Act.
15. Mr.Sathe also contends that the possession of
the said land has not been taken by respondent No.2
and the petitioner continues to remain in actual
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physical possession of the same. In the meanwhile by
Notification dated 29th November, 2007 published by
respondent No.1 the Urban Land (Ceiling and
Regulation) Repeal Act,1999 (in short “the Repeal
Act”) was brought into force in the State of
Maharashtra as such respondent No.2 is now not
entitled to take possession of the said land. The
petitioner since continues to be in possession of the
said land, the proceedings under Section 9 and the
notices and notifications under Section 10 of the said
Act stand abated in accordance of Section 4 in the
Repeal Act and that the respondent No.2 cannot resort
to
petitioner’s
the
land.
provisions of
In
the said
support
Act
of
with
his
respect to the
contention,
Mr.Sathe relied on the judgment of this Court in the
case of Voltas Ltd. & Anr. Vs. AdditionalCollector
& Competent Authority & Ors. 2008(5) Bom.C.R.746.
Bom.C.R.746
16. In reply, Mr.Sonpal submits that as per the
scheme of the ULC Act, Section 9 is the point upto
which all proceedings after filing of the return by
the land owner are travelled, a declaration of excess
land follows. Once excess land is determined, the
land owner has two options. The first option is; the
land owner can surrender surplus land which can be
taken over by the Government following procedure
prescribed under Section 10 of the ULC Act. Another
option is; the land owner can apply for exemption
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under Section 20 of the ULC Act which can be granted
subject to the provisions of the ULC Act.
17. According to Mr.Sonpal, these two different
options have different consequences. In his
submission in the first option, the proceedings are
required to go through the gamut of Section 10(1),
10(2), 10(3), 10(5) and 10(6) and the possession of
the surplus land is required to be taken over by the
Government. Once the possession is taken, the title
of the land unequivocally vests in the Government.
18.
exemption is
In the second option, where Section 20
required to be applied, it can be applied
once the stage of Section 9 is crossed and surplus
land is determined. The application for exemption
under Section 20(1) is required to be considered by
the State Government and if allowed, exemption is
granted subject to certain terms and conditions. The
breach thereof entails consequences provided under sub
section (2) of Section 20 of the ULC Act.
19. According to Mr.Sonpal, in case in hand , the
petitioner was granted exemption under Section 20(1)
of ULC Act vide order dated 31st July, 1989
(Exhbit-“B”). The relevant condition Nos.16 and 17
there of read as under:
“If at any time, the Deputy Collector &
Competent Authority is satisfied that there is
a breach of any of conditions, the Deputy::: Downloaded on – 09/06/2013 14:30:51 :::
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to withdraw by an order, the exemption order
from the date specified in the case. Provided
that before making any such order, the Deputy
Collector & Competent Authority shall give
reasonable opportunity to the person whose
lands are exempted making representationagainst the proposed withdrawal.
When any such exemption withdrawn or deemed to
be withdrawn under these conditions, the
provisions of Chapter-III of the said Act
shall apply to the lands as if the lands has
been exempted under this order.”
20. Mr.Sonpal submits that the above order dated
31st July, 1989 in general and conditions mentioned
therein are in the nature of contract between the
State Government and the petitioner. The violation of
conditions
contract.
of
In
exemption
his submission
order constituted
reference to
breach of
provisions
of Chapter-III with regard to the procedure for taking
possession constitutes integral part of contract (not
integral part of the statute) as such he submits that
the provisions of the Repealing Act shall not be
applicable so far the subject land is concerned. In
other words, the statutory requirement provided in
Chapter III of ULC Act to take possession of surplus
land is not applicable to the facts of case in hand.
In his submission the possession is to be taken
consequent upon breach of the terms and conditions of
the exemption order without going requiring to follow
the statutory provisions engrafted in section 10 of
the ULC Act.
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21. Mr.Sonpal relying upon the ULC Repeal Act,
1999 in general and Section 3 Sub Section (1)(b) in
particular to urge that the revocation of exemption as
well as action for taking possession of the land as
per Clause 17 of the exemption order dated 31st July,
1989 is saved and is not at all affected by Repeal
Act. He also tried to press into service Section 6 of
the General Clauses Act to buttress his submissions.
22. Mr.Sonpal further submits that the petitioner has
violated the conditions of exemption as per order
dated 31st July, 1989 he thus cannot take advantage of
his
retain
own
wrong.
possession of the
The
land.
petitioner is
He,
not
thus,
entitled
submits
to
that
the petition is liable to be dismissed leaving it open
for the State to take possession of the subject land.
23. Before proceeding to consider rival
submissions, it is necessary to turn to the statutory
provisions relevant for deciding the issue involved.
STATUTORY PROVISIONS
24. Before proceeding further with discussion, it
may be proper to notice the relevant provisions for
breach of statutory limbs:
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25. The Urban Land (Ceiling and Regulation) Repeal
Act, 1999 (for short “the Repeal Act”) came into force
on 18th March, 1999. Section 3 of the said Act deals
with the provisions of ULC Act which are saved and
reads thus:
Section 9 and 10 and 20 of the said Act read
as under:
9. Final Settlement:
After the disposal of the objections, if any,
received under sub-section (4) of section 8,
the competent authority shall make the
necessary alterations in the draft statementin accordance with the orders passed on the
objections aforesaid and shall determine the
vacant land held by the persons concerned inexcess of the ceiling limit and cause a copy
of the draft statement as so altered to be
served in the manner referred to in
sub-section (3) of section 8 on the personconcerned and where such vacant land is held
under a lease, or a mortgage, or a
hire-purchase agreement, or an irrevocable
power of attorney, also on the owner of such
vacant land.
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 to be acquired by the
concerned State Government; and
(ii) the claims of all person interested in
such vacant land may be made by them
personally or by their agents giving
particulars of the nature of their 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::: Downloaded on – 09/06/2013 14:30:51 :::
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notification published under sub-section (1),
the competent authority shall determine the
nature and extent of such claims and pass such
order as it deems fit.
(3) At any time after the publication of the
notification under sub-section(1) the
competent authority may, by notification
published in the Official Gazette of the State
concerned, declare that the excess vacant land
referred to 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 encumbrances with effect from the date so
specified.
(4) During the period commencing on the date
of publication of the notification under
sub-section
ig (1) and ending with the date
specified in the declaration made under
sub-section (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 sub-section (3), the
competent authority may by notice in writing,
order any person who may be in possession of
it to surrender or deliver 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 sub-section (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.
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Explanation:- In this section, in sub- section
(1) of Sec.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 the Union Territory
or within the local limits of a cantonment
declared as such under section 3 of the
Cantonments Act,1924, means that State
Government.”
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 ig 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 pubic interest
so to do, that Government may, by order,
exempt, subject to such conditions, if any, as
may be specified in order, such vacant land
from the provisions of this Chapter;
(b) where any person holds vacant land in
excess of 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.
3. Saving : (1) The repeal of the principal
Act shall not affect -
(a) the vesting of any vacant land under
sub-section (3) of Section 10, possession of
which has been taken over the State Government
or any person duly authorised by the State
Government in this behalf or by the competent
authority;
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(b) 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;
(c) any payment made to the State Government
as a condition for granting exemption under
sub-section (1) of Section 20.
(2) Where -
(a) 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 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.
CONSIDERATION :
26. Before considering the rival submissions, it
would be useful to go into the legislative background
of the subject Legislation giving rise to the present
legal controversy.
LEGISLATIVE BACKGROUND :
27. There was a demand for imposing a ceiling on
urban property, also especially, after the imposition
of a ceiling on agricultural lands by the State
Governments. With the growth of population and
increasing urbanization, a need for orderly
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development of urban area was also felt. It was,
therefore, considered necessary to take measures for
exercising social control over the scarce resource of
urban land with a view to ensuring its equitable
distribution amongst the various sections of society
and also avoiding speculative transactions relating to
land in urban agglomerations.
28. With a view to ensuring uniformity in
approach, Government of India addressed to all the
State Governments in this regard, eleven States could
pass resolutions under Article 252(1) of the
Constitution empowering Parliament to undertake
legislation in this behalf.
29. The Urban Land (Ceiling and Regulation) Bill
was passed by both the Houses of Parliament and the
statute came on the statute books as the Urban Land
(Ceiling and Regulation) Act, 1976 (33 of 1976) (the
ULC Act). In its application, State of Maharashtra
was one of the States which had adopted the ULC Act
under clause (1) of Article 252 of the Constitution.
On the date of such adoption, the said Act became
applicable in the State of Maharashtra.
Scheme of the ULC Act
30. Having seen the legislative background now, it
is necessary to examine Scheme of the ULC Act.
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Section 2 of the ULC Act provided for definitions,
whereas section 3 laid down that no person shall be
entitled to hold vacant land in excess of the ceiling
limit. Section 4 provided for the ceiling limit,
whereas section 5 provided for consequences for
transfer of vacant land. Sections 6 and 7 required
every person holding vacant land in excess of the
ceiling limit at the commencement of the Act to file
statement before the competent authority having
jurisdiction in prescribed form specifying location,
extent, value and such other particulars of every kind
of land held by him. Section 8 of the Act provided
for
land held
preparation
in
of
excess
draft
of
statement
the ceiling
as
limit
regards
so as
vacant
to
serve on the person concern to enable him to file
objections. Section 9 provided for consideration of
the objections and preparation of final statement
consequent on the decision of objections preferred by
the land holder with copy to the person concerned and
where such vacant land was held under lease, mortgage,
hire-purchase agreement or an irrevocable power of
attorney also to the owner of such vacant land.
31. Once the proceeding crosses the stage of
Section 9 and the land in excess of the ceiling limit
is determined, then the three options were given under
the ULC Act to the person holding excess vacant land
as enumerated hereinafter.
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32. On the above canvas one of such options was to
permit the State Government to acquire vacant land in
excess of the ceiling limit exercising powers under
section 10 and award compensation under section 11 of
the ULC Act. In other words, a notification acquiring
the excess vacant land by the State Government was
required to be issued under Section 10(1). All
persons interested in such vacant land were required
to file their claims at this stage and upon
determination of their claims, a declaration vesting
the property in the State free from all encumbrances
declaration
was to follow with effect from a date specified in
the as per Section 10(2) and (3) of the
ULC Act. Section 11 thereof laid down the principle
on which the amount payable for such acquisition was
to be determined.
33. The another option open to the person holding
vacant land in excess of the ceiling limit was to
apply under section 20(1) for exemption, which the
State Government was competent to consider and grant,
subject to such conditions as may be specified in the
order and exempt the land from the operation of
Chapter III of the ULC Act.
34. The third option was to apply to the Competent
Authority, under Section 21 to exclude excess land
from acquisition in certain cases, where the concerned
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person undertook to build dwelling units for the
accommodation of the weaker section of the society.
35. In the event, the State Government was
satisfied that any of the conditions, subject to which
any exemption was granted under clause (a) or clause
(b) of sub-section (1) of section 20, was not complied
with by any person, it was competent for the State
Government to withdraw, by order, such exemption after
giving a reasonable opportunity to the affected person
for making a representation against the proposed
withdrawal. In the event of withdrawal of exemption
under
to
Section
get
attracted.
20(2) the
So far
provisions
as
of
other
Chapter
provisions of
III were
the
ULC Act are concerned, it is not necessary for us to
dwell on those provisions since they are not relevant
for determination of the legal controversy involved
herein.
36. The Scheme of the ULC Act, unequivocally,
demonstrated that once the exemption was granted under
section 20(1) subject to certain terms and conditions
and if breach thereof was committed by the person
holding order of exemption, then such order was open
to withdrawal following principles of natural justice.
Once that order of exemption was withdrawn resulting
in cancellation of exemption, then the provisions of
Chapter III including section 10 thereof were to get
attracted. The proceedings were required to go
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through the gamut of section 10 leading to acquisition
of vacant land in excess of the ceiling limit and,
ultimately, possession thereof was required to be
taken under section 10(5) of the said Act.
Repeal Act, 1999
37. The Parliament has passed the Urban Land
(Ceiling and Regulation) Repeal Act, 1999 (No.15 of
1999) which received an assent from the President of
India on 22nd March, 1999 and was published in the
Gazette
dated 22nd
of
March,
ig India,
1999.
Extraordinary
Since
Part
then
II
this
– Section
Repeal Act
1
of
1999 is applicable. But that ordinance did not become
applicable in the State of Maharashtra since it was
not adopted under Article 252(2) of the Constitution
of India. Sub Section (3) of Section 1 of the Urban
Land (Ceiling & Regulation) Repeal Act,1999
((hereinafter referred to as “Repeal Act”) reads as
under :
“1.(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 dayof 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.”
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38. Perusal of the said provision shows that so
far as the State of Maharashtra is concerned, the
Repeal Act was to come into force on such date as the
legislature of State of Maharashtra would pass a
resolution adopting the Repeal Act under Clause(2) of
Article 252 of the Constitution of India. The
Maharashtra Legislative Assembly and the Maharashtra
Legislative Council passed a resolution for adopting
the Repeal Act in the State of Maharashtra with effect
from 29.11.2007.
Effect of Repealing the Urban Land (Ceiling and
Regulation) Act,1976 :-
39. Where certain land of a person was declared as
surplus under the Urban Land Ceiling Act,1976 but the
possession of the said surplus land was not taken over
by the prescribed authority under the Act the effect
of repeal of the ULCA, 1976 under the urban Land
(Ceiling and Regulation) Repeal Act, 1999 under
Section 4 would be that the legal proceedings would be
abated. However, if the possession was already taken
over by the prescribed authority, the same shall not
abate.
40. The Repeal Act, 1999 has two saving clauses in
Section 3 and 4. Section 3 of the Act provides that
the principal Act i.e., the original act of 1976 shall
not affect.
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(a) the vesting of any vacant land under
Section 10(3), possession of which has been
taken, over by the State Government or any
person duly authorised by the State Government
in this behalf or the competent authority.
(b) the validity of any order granting
exemption under Section 20(1) or any action
taken thereunder, not withstanding any
judgment of any Court to the contrary; and
(c) any payment made to the State Government,
as a condition for granting exemption under
Section 20(1) other related and like matters.
41. Section 4, provides for the abatement of all
proceedings relating to any order made or deemed to be
made under the principal Act pending immediately
before the Commencement of the repeal Act, before any
Court, tribunal or other authority.
. However, as per proviso to Section 4, Section
4 was not to apply in case of 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.
42. The factual matrix of the case in hand reveals
that with the withdrawal of the exemption under Sub
Section (2) of Section 20 the consequences provided
therein became operative and provisions of Chapter III
became applicable. The Competent Authority actually
acted upon and applied provisions of Chapter III to
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the facts of this case in hand and followed the
procedure laid down under Section 10 as indicated
hereinabove. In other words, the consequence of
passing of an order under Section 20(1) results in
exemption of surplus of vacant land from the
provisions of the Act. However, Section 20(2) of the
ULC Act does not provide that possession of surplus
land would automatically deemed to have been taken by
the Competent Authority. In fact, Section 20(2)
provides that the provisions of Chapter-III will
apply, once, the order is passed under Section 20(2).
In this case the order was passed on 25th April, 2005
and
the
from
Act
that
became
date, the
applicable
provisions
to the
of
land
Chapter
in
III of
question.
The Respondent themselves have resorted to the
provisions of Chapter III for taking possession and
passed an order and issued notice under Section 10 of
the Act. Section 10 does not provide for different
procedure to be adopted subsequent to the passing of
an order under Section 20(2) of the ULC Act. As seen
from the material available on record, the lands owned
by the Petitioner are concerned, the Notification
under Section 10(1) was published on 21st July, 2005;
whereas Notice issued under Section 10(3) was issued
on 16th December, 2005; and the same was published in
the Government Gazette on 2nd February, 2006 and,
therefore, Notice under Section 10(5) was issued on
2th June, 2007 directing petitioner to handover
possession of the surplus vacant land. It is, thus,
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clear that the submission advanced by the learned AGP
is just contrary to the action taken by the State.
43. Now so far as those lands which are owned by
the petitioner in relation to which a notification
under sub-section 3 of Section 10 of the Principal Act
was issued and the order under sub-section (5) of
Section 10 of the Principal Act was made are
concerned, it is the provision of Section 3 of the
Repeal Act which is relevant. Reading of Section 3 of
the Repeal Act shows that it is a saving clause and
sub-section 1(a) of Section 3 of the Repeal Act saves
vesting
Section
of
10
ig of
any
the
vacant
Principal
land under
Act,
sub-section
possession of
(3) of
which
has been taken over by the State Government. In other
words, vesting of vacant lands under sub- section (3)
of Section 10 of the Principal Act in the State
Government, possession of which has not been taken
over, is not saved.
44. In the case in hand, it is an admitted fact
that though declaration under sub-section (3) of
Section 10 of the Principal Act was made and notice
under Section 10(5) was issued but actual physical
possession of the land was not taken over by the State
Government or by the competent authority under the
Act. Therefore, on bare reading of the provisions, it
can be said that in view of repeal, vesting of the
land of the petitioner in the State by virtue of
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declaration made under sub-section (3) of Section 10
of the Principal Act, is not saved.
45. The purpose of enacting section 3(1)(a) of the
Repeal Act is to save or protect vesting of vacant
lands in the State Government from and out of the
vacant lands that might have vested in the State
Government by virtue of declarations made under
sub-section (3) of Section 10 of the Principal Act, of
which possession has been taken. Therefore, by
necessary implication it follows that vesting of those
lands in the State Government under sub-section (3) of
Section 10
has not been taken has been repealed or made
of the Principal Act of which possession
ineffective.
46. The above legal position is settled by the
Division Bench Judgment of this court in the case of
Voltas Ltd. & Anr. Vs. Additional Collector and
Competent Authority in Writ Petition No.8356 of 2006
decided on 25th July, 2008, to which one of us
(Daga,J.) is party and the said judgment found
approval of the Hon’ble Apex Court in view of the
dismissal of S.L.P.(Civil) No.25745 of 2008 vide order
dated 7th November, 2008 in the matter of Additional
Collector & Competent Authority & Ors. Vs. Voltas
Ltd. & Anr. (unreported).
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47. The submissions made by Mr.Sonpal that by
virtue of exemption under Section 20(1) and withdrawal
thereof under Section 20(2), the requirement of
section 10 partakes the nature of the terms of the
contract cannot be accepted. The said submission is
untenable. The reliance placed on the Division Bench
Judgment in the case of Mohan Vs. Principal
Secretary, U.D.D.Govt. of Maharashtra delivered in
W.P.No.5684 of 2007 dated 14th August, 2008
(unreported) is also misplaced. The reliance placed
by Mr.Sonpal on sub clause (b) of Section 3 of the
Repeal Act is also misconceived as the exemption under
Section 20(1)
ig stood
exemption under Section 20(2) of the Principal Act.
nullified in view of withdrawal of
The question of saving thereof did not arise.
48. Having said so, Mr.Sonpal also tried to rely
upon Section 6 of the General Clauses Act of 1897
which deals with the effect of repealing a Statute.
The said Section 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::: Downloaded on – 09/06/2013 14:30:51 :::
:26: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, penalty, forfeiture orpunishment 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 Regulationhad not been passed.
49. Thus, all the provisions of the (repealed) Act
would, under Section 6 continue in force for the
purpose of enforcing the liability incurred when the
Act
proceeding
was
or
ig in
remedy
force
may
and any
instituted
investigation,
continued
legal
or
enforced as if the Act has not expired. At common
law, the normal effect of repealing a statute is to
obliterate it from the statute book as completely as
if it had never been passed, and the statute must be
considered as a law that never existed. To this rule,
an exception is engrafted by the provisions of Section
6, and there may also be special savings in special
Acts dealing with the effect of repeal. Therefore the
effect of repeal is qualified by two words “unless a
different intention appears”, in Section 6 of the
General Clauses Act,1897.
50. Turning to the facts of the case in hand,
there is a clear indication that, the above provisions
makes it clear that section 6 of the General Clauses
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Act applies unless a different intention appears in
the Repeal Act. In our view, Section 6 of the General
Clauses Act would not apply because Article 252(2)
evidences an intention to the contrary.
51. Section 6 of the General Clauses Act is a
general provision in relation to saving in case of
repeal of Central enactment. But if the Parliament
while enacting the repeal enactment choses to make
provision in the repeal enactment in relation to the
saving of the thing done and action taken under the
repeal enactment, the saving clause in the repeal
enactment
therefore, if
will
ig be
the matter
the
is
special
covered by
provisions
that
and
special
provision, the general provision contained in Section
6 of the General Clauses Act will not apply or its
application will be excluded to the extent the matter
is specifically covered by the specific saving clause
enacted in that legislation. In our opinion,
therefore, as in the Repeal Act the provision, in
relation to the land which vested in the State
Government under sub-section (3) of Section 10 of the
Principal Act but of which possession has not been
taken, has been specifically made, to that extent
application of Section 6 of the General Clauses Act
will stand excluded.
52. The above legal position is also considered in
detail by us in the case of Voltas Ltd. (cited
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:28:
supra). The submissions advanced by Mr.Sonpal with
regard to Section 6 of the General Clauses Act thus
holds no water. Reliance placed by him on number of
Judgments is also misplaced.
53. In the aforesaid view of the matter, the
petitioner is liable to succeed and the petition is
liable to be allowed.
54. In the result, for the reasons recorded,
petition succeeds and is allowed. It is held and
declared that as a consequence of the Repeal Act,
further
State Government
proceedings pursuant
dated
to
28th
the
June,
order
2007
made by
withdrawing
the
exemption and all further actions taken under Section
10(3) shall stand abated and can no longer be
proceeded further. That all further proceedings under
the provisions of the Principal Act in relation to the
land of the petitioner mentioned in declaration made
under sub-Section (3) of Section 10 of the Principal
Act have lapsed and those lands no longer vests in the
State Government. Rule is made absolute accordingly.
No order as to costs.
55. At this stage, the learned AGP prayed for stay
of the judgment. The said prayer is strongly opposed
by the learned Senior Counsel for the petitioner. He,
however, makes a statement that, for a period of eight
weeks, the petitioner shall not deal with the said
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property in any manner whatsoever. The statement made
in this behalf takes care of the prayer made by the
learned AGP. The same is taken on record. Needless
to mention that after expiry of the period mentioned
herein, the petitioner would automatically stand
relieved of his statement made and recorded herein.
(MRIDULA BHATKAR,J.) (V.C.DAGA,J.)
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