1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8356 OF 2006 1.Voltas Ltd. 2.Rajesh Laxmidas Bhatia. ...Petitioners. vs. 1.Additional Collector and Competent Authority, Thane Urban Agglomeration. 2.The State of Maharashtra. 3.The Hon'ble Chief Minister Maharashtra State. ...Respondents. --- Mr.F.Devitre with Mr.C.S.Balsara, Mr.H.N.Vakil i/b. M/s.Mulla and Mulla and Craigie Blunt and Caroe, for Petitioners. Mr.Walawalkar, Special Counsel with S.R.Nargolkar, A.H.Palekar & V.P.Malvankar, A.G.P. for Respondent nos.1 and 2. CORAM: D.K.DESHMUKH & V.C.DAGA, JJ. 2 DATED: 25th July, 2008. JUDGMENT: (PER D.K.DESHMUKH, J.) 1. The facts that are material and relevant for deciding this petition are that the first petitioner is a company incorporated pursuant to the provisions of the Indian Companies Act,1913 and now governed under the provisions of the Companies Act,1956. The second petitioner is a shareholder of the petitioner no.1 Company. 2. The First Petitioner is the owner of lands situated at Village Panchpakhadai, at Thane and Village Majiwade at Thane. On the commencement of the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as “the ULC Act”), pursuant to the First Petitioner’s Return dated 14th August, 1976 under Section 6(1) of the ULC Act, the Competent Authority passed an Order dated 28th September, 1984 under Section 8(4) of the ULC Act declaring a large area as surplus vacant land. The First Petitioner challenged the aforesaid Order before the Additional 3 Collector, Thane, who by his Order dated 29th April, 1985 stayed the operation of the Order dated 28th September, 1984 and eventually by Order dated 19th February, 1990 remanded the matter back to the Competent Authority for fresh adjudication. 3. The Competent Authority issued Corrigendums dated 2nd December, 2002 and dated 2nd January, 2003 to the said Order dated 28th September, 1984. Thereafter, a final Corrigendum dated 13th May, 2003 came to be issued under Section 8(4) of the ULC Act, whereby 77,630.63 square meters was declared as surplus vacant land under Section 8(4) of the ULC Act. This was confirmed in the final statement of the Competent Authority dated 17th June, 2003 under Section 9 of the ULC Act. The First Petitioner pointed out the discrepancies in the area of the land described as surplus vacant land in the Corrigendum dated 13th May, 2003 and also objected to the same, inter alia, on the ground that most of the land was already utilized for factory (pursuant to 1976 and 1980 Exemption Orders from the Director of Industries u/s 20 of the Act), a part was encroached 4 upon, some lands had been sanctioned for extension of HRD Centre, etc. Therefore, the same could not be declared as surplus vacant land. On 17th June, 2003 the Competent Authority issued a Notification under Sections 10(1) of the ULC Act. Thereafter the Competent Authority issued a Notification dated 3rd February, 2004 under Sections 10(3) of the ULC Act stating that the surplus vacant land is deemed to be acquired. On 24th August, 2004 the First Petitioner submitted a Scheme under Section 20 of the ULC Act for land admeasuring 22,885 square metres at Village Panchpakhadi. An earlier scheme submitted u/s 20 had not been decided upon. On 8th November, 2004 notice under Section 10(5) of the ULC Act came to be issued, whereby the First Petitioner was called upon to hand over possession of the aforesaid land stated to be surplus vacant land admeasuring 77,630.63 square meters under the Corrigendum dated 13th May, 2003. The First Petitioner made several representations seeking withdrawal of the S.10(3) and S.10(5) notifications, setting out inter alia that the aforesaid Scheme under Section 20 had been submitted and was pending and the reasons why the 5 aforesaid land could not be declared Surplus Vacant Land. The Petitioners also represented that an exemption Order dated 10th March, 1980 had been issued by the Directorate of Industries. The First Petitioner further submitted that there were plans sanctioned to construct a HRD Centre and Staff quarters, etc., due to which, the aforesaid land was not surplus vacant land. In response to the aforesaid representations by the First Petitioner, the Competent Authority by its letter dated 28th April, 2005 informed the First Petitioner that only the State Government could withdraw the S.10(3) and S.10(5) Notification and that its remedy was to file a Revision Application under Section 34 of the ULC Act. The said Revision Application was filed by the First Petitioner on 25th May, 2005. On 25th October, 2005 the Revisional Authority directed that as the matter was pending hearing, no further action should be taken in the matter. By Notice dated 8th November, 2005 the First Petitioner was given notice of hearing before the Revisional Authority on 11th November, 2005. Hearing took place on 11th November, 2005, when the First Petitioner filed its Written 6 Submissions. The Revisional Authority passed an oral Order, remanding the entire matter to the Competent Authority. As no written order was passed in accordance with the oral Order, the First Petitioner addressed a letter dated 3rd February, 2006 recording that no written order was passed. By a further letter dated 24th August, 2006 the First Petitioner placed on record that no written order of remand had been issued. The Petitioners filed a Writ Petition No. 6190 of 2006, which came to be disposed of by an Order dated 11th October, 2006, recording the statement of the Respondents that the said Revision Application would be disposed of within a period of three weeks and that in case an Order against the First Petitioner was made, the same shall not be given effect to for a period of three weeks thereafter. The Revisional Authority by its Order dated 30th October, 2006 remanded the matter back to the Competent Authority in regard to in claim of S. No. 68 in as part of Surplus Vacant Land and confirmed the S. 10(3) and 10(5) notification. It also directed that the Scheme submitted by the First Petitioner under Section 20 of the ULC Act be 7 considered on merits. The Revisional Authority by the aforesaid Order dated 30th October, 2006 upheld the notices of the Competent Authority under Section 10(3) and 10(5) of the ULC Act. The First Petitioner being aggrieved by the aforesaid Order dated 30th October, 2006 passed by the Revisional Authority filed the present Writ Petition No. 8356 of 2006 challenging the same. This Court by its Order dated 19th December 2006 granted interim relief in terms of prayer clause (c) and issued Notice to the Respondents. Prayer (c) of the Writ Petition inter alia, seeks an injunction restraining the Respondents from taking any further steps in pursuance of the aforesaid Order dated 30th October, 2006. The Petition was amended pursuant to order dated 18.1.2008 consequent upon the repeal of the ULC Act by the Repeal Act 1999 which was adopted by both Houses of the Maharashtra Legislature on 29-11-2007 as notified on 1.12.2007 4. After the amendment to the petition, the principal case of the petitioners is that as a result of repeal of the principal Act as possession of the 8 land which was declared surplus from the holdings of the petitioner no.1 was not taken by the respondents, all proceedings initiated against the petitioners under the Principal Act have lapsed. Therefore, the only factual aspect necessary to be determined for deciding the principal contention urged on behalf of the petitioners is 'as to whether the possession of the land declared as surplus was taken at any point of time by the respondents.' The respondents have filed affidavit and in the affidavit they have not contended that they have taken possession of the land. On the basis of the affidavit filed on behalf of the respondents, it can be taken as an admitted position that the possession of surplus land has not been taken. The question, therefore, that arises for consideration is “whether by reason of repeal of the Act, all proceedings under the principal Act in regard to the petitioners' land declared as surplus vacant land, have abated and whether the land of the petitioner has reverted to the petitioners.” It was also submitted that pursuant to the order passed by the State Government remanding the proceedings back, fresh notices for further hearing were to be issued 9 and fresh order under Section 8(4) of the Principal Act were to be passed. It was submitted that as a result of the Repeal Act, now it is not possible to continue the proceedings that are to be taken pursuant to the remand order. 5. It was submitted that it is an undisputed position that the Respondents had not taken possession of the Petitioners’ land declared as surplus vacant land as on the date of the coming into force of the Repeal Act. It was submitted that the Petitioners are and have been in possession of the land at all times. It was submitted that the declaration under section 10 (3) of the Principal Act was notified on 03-02-2004 and the Order/Notice under section 10 (5) of the Principal Act is dated 08.11.2004. It was submitted that it is an admitted position that section 10 (6) of the Principal Act – for forcible possession, was not resorted to at any stage. It was submitted that in these circumstances, by reason of the Repeal Act, all proceedings under the Principal Act in regard to the Petitioners’ land declared as surplus vacant land have abated and that 10 the Petitioners’ said land has reverted to the Petitioners. It was further submitted that in the Respondents’ Affidavit in Reply dated 22nd February 2007, the Respondents contend that after remand, fresh notices for further hearing were issued to the Petitioners and that fresh Orders under section 8 (4) of the Principal Act will be passed by them. It was submitted that in any event, after the Repeal Act, this cannot be done by the Respondents as the underlying proceedings under the Act have abated by reason of the Repeal Act. It was submitted that the Principal Act was passed with the objects, inter alia, to prevent the concentration of urban properties in the hands of few persons and to ensure equitable distribution and utilization of urban properties. It was further submitted that the Objects and Reasons of the Repeal Act record that public opinion was nearly unanimous that the Principal Act had failed to achieve what was expected of it and that on the contrary, the Principal Act had pushed up land prices to unconscionable levels, practically brought the housing industry to a stop and provided copious opportunities for corruption and had become a 11 potent clog on housing. It was submitted that the Repeal Act brings about a simpliciter repeal of the Principal Act and there is no “re-enactment” of the Principal Act. It was submitted that accordingly, except to the extent saved by the Repeal Act, the Principal Act has been obliterated in its entirety. It was submitted that the saving provisions of the Repeal Act – viz sections 3(1), 3(2) and 4 thereof – manifest an express legislative intent to save the Respondents’ rights only in regard to that land which vested in the State under the deeming provisions of section 10 (3) of the Principal Act and of which possession was taken over by the State. It was submitted that this legislative intent is clear from the provisions of section 3 (1) (a) of the Repeal Act which in terms provides that the Repeal of the Principal Act shall not affect the vesting of any vacant land under section 10 (3) of the Principal Act only where possession of such land has been taken. It was submitted that had the legislative intent been to save the vesting of all land once a section 10 (3) notification was issued, the words “possession of which has been taken over by …. competent authority” 12 would not have found place in section 3 (1) of the Repeal Act. It was submitted that the said words cannot be ignored as mere surplusage and must be given full effect to. It was submitted that had the legislative intent been otherwise, the Legislature would have stopped at the words “the vesting of any vacant land under sub-section (3) of section 10”, thus, the addition of the words “possession of which has been taken over by …… competent authority” is critical in determining the effect of the savings clause in the Repeal Act. It was submitted that this legislative intention is re-enforced by the provisions of section 3 (2) of the Repeal Act, which provides that where any land is deemed to have vested in the State under section 10 (3) of the Principal Act but possession has not been taken and payment has been made in respect of such land, then such land shall not be restored unless the amount paid has been refunded to the State Government. It was submitted that the “restoration” contemplated under section 3 (2) of the Repeal Act is of the ownership rights which are deemed to have vested in the State. It was further submitted that under the Principal Act, it is 13 open to the State to make payment of compensation under section 11 of the Act once the land is deemed to have vested under section 10 (3), even where possession has not been surrendered or delivered or taken under sections 10 (5) or 10 (6) of the Principal Act. It was submitted that section 3 (2) of the Repeal Act manifests a clear legislative intent to restore ownership of surplus land otherwise deemed to have vested in the State (of which possession has not been taken), to the land holders on refund of amounts paid by the State Government to them. It was submitted that Section 2 of the Repeal Act expressly and unequivocally repealed the Principal Act in its entirety. It was submitted that the “savings” provisions in the Repeal Act expressly are made applicable only to that land which satisfies a dual requirement i.e. deemed vesting under section10 (3) of the Principal Act and possession of which has been taken over under sections 10 (5) or (6) of the Principal Act. It was submitted that the addition of the words “possession of which has been taken over…..” in section (3) (1) (a) and the exclusion of proceedings under section 10 in the 14 proviso to section 4 of the Repeal Act are crucial indicators of the legislative intention. It was submitted that the Supreme Court in several matters has noted the effect of Section 4 of the Repeal Act on proceedings under the Principal Act where possession has not been taken of the land and has allowed the writ petitions challenging orders passed under the Principal Act on the basis that the proceedings under the Principal Act have abated. Reliance was placed on the following orders of the Supreme Court:- (a) Ghasiteylal Sahu & anr. Vs. Competent Authority, (2004) 13 SCC 452; (b) Mukarram Ali Khan Vs. State of U.P. & ors., AIR 2007 SCW 6286; (c) Pandit Madan Swaroop Shrotiya Public Charitable Trust Vs. State of U.P., AIR 2000 SC 3415; (d) Shanti Bhardwaj (Smt( Vs. State of U.P. & anr, (2004) 10 SCC 130. It was submitted that Several High Courts in India have also construed the Repeal Act and held as submitted above i.e. that where possession of land 15 has not been taken over by the State Government under the Principal Act on the coming into force of the Repeal Act, the land re-vest in the land holder and all underlying proceedings under the Act abate. Reliance was placed on the following citations: (a) Indrajitsing P. Geel Vs. Competent Authority & Deputy Collector, Ahmedabad & Anr., 2007 1 GLR 677; (b) M/s.B.T.L.Education Trust, Bangalore Vs. State of Karnataka & ors., AIR 2006 Karnataka 12; (c) V.Gurunathan Vs. Assistant Commissioner of Urban Land, Tax & Ceiling, (2007) 5 MLJ 103; (d) Chabi Nath V. State of U.P. - 2005(2) AWC 1405; (e) Kailash and anr. Vs. State of U.P. & ors, 2006(I) AWC 497; (f) Bal Krishna Vs. State of U.P., 207(3) AWC 2715.” Reliance was also placed on behalf of the petitioners on the judgment of the Supreme Court in the case of “Udai Singh Dagar & others Vs. Union of India & others, (2007)10 Supreme Court Cases 306”. 16 6. On behalf of the respondents, it was contended that repealing statute is not exhaustive of saving and destruction of the vested rights and liabilities incurred, and there are several judgments of the Hon'ble Supreme Court, which have taken a view that the rights saved by the repealing statute are not only those rights mentioned to have been saved and it certainly does not mean rights which are not saved expressly are destroyed but the destruction of the vested rights by the Act of Repeal must be clear and express or by necessary implication. Reliance is placed on the observations made by the Supreme Court in the following judgments:- (a) (2001) 5 SCC 101, Her Highness Maharani Shantidevi P. Gaikwad Vs. Savjibhai Haribhai Patel and others; (b) (1989)2 Supreme Court Cases 557, Bansidhar & ors. Vs. State of Rajasthan & others; (c) (1987)3 Supreme Court Cases 516, Commissioner of Income Tax, U.P. Vs. M/s.Shah Sadiq and sons. 17 Then it was submitted that the Supreme Court has held that to find out the effect of the Repeal Act Section 6 of the General Clauses Act can be relied on. Then it was contended that the Supreme court has held in Bansidhar's Case that rights had accrued in favour of the State Government to take over the lands declared as excess under the Ceiling Act and the holder of the land had incurred liability to surrender that land which was declared to be excess on the relevant date. It was submitted that in the present case on declaration under Section 10(3) of the Principal Act, the land had vested with the State Government and there is no provision in the Repeal Act for divesting of the title of the State Government in the land. It was further submitted that vesting of ownership into Government under Section 10(3) of the Principal Act must be seen having regard to the laudable object of the Principal Act to acquire land and re-distribute it for housing the poor. The Act provided for vesting of ownership of the excess lands in State Government by operation of statute by providing deemed vesting in Government and such deemed vesting 18 was to precede by the competent authority publishing a Notification in the official gazette that the excess vacant land referred to in the Notification shall be deemed to have been acquired by the State Government and upon publication of such declaration, such lands shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the dates so specified. It was further submitted that in view of such vesting by such clear and strong language of the statute, which was intended to achieve the object of the said Principal Act during its operation, the holder/owner of the land was divested of his ownership and he had no right to the said land. It was further submitted that the possession to be taken over by the State Government under Section 10(5) of the Principal Act was to enable the Government to utilise such land for the purpose of housing the poor but the vesting of ownership of the excess land was not kept dependent on Government taking over such land under Section 10 (5), the vesting become complete the moment the Notification under Section 10(3) was issued by Government. It was further submitted that the 19 petitioners argument that now in view of the provisions of the Repeal Act, the provisions of Section 10 & 11 do not to apply to the lands of which possession has not been take and the State will not be able to take possession of the lands, so vested in Government under Section 10(3) of the Principal Act is not sound, because non-availability of mechanism of Section 10(5) of the Principal Act for taking over possession will not preclude the Government from taking possession of the lands so vested in Government as owner thereof free from all encumbrances by following due process of law even if it is assumed for the sake of arguments that the mechanism of Section 10(5) is no longer available because of the Act of Repeal. It was submitted that even if it is assumed for the sake of arguments that the benefit of Section 10(5) and Section 10(6) of the Principal Act are not now available to the State Government by the reasons of the Repeal of the Act in case of the land, possession of which has not been taken so far, the Repeal of the Act will not divest the Government of its ownership and as the owner of the land, the Government will have right to take 20 possession by resorting due process of law and deal with the land so vested in it under Section 10(3) as owner on such terms and conditions which are valid in law, within constitution and which will be to achieve the purposes of the Principal Act of 1976. It was submitted that the petitioners' arguments that the objects and reasons of the Repeal Act will clearly show that now the government will not be able to take possession of the lands under the Principal Act is not correct because as stated in Maxwell on interpretation of statute, the objects and reasons of the Repeal Act can also be referred to for the purpose of interpretation of Statute. It was submitted that the objects and reasons of the Principal Act do not cease to exist in relation to the lands vested in Government under the Principal Act and Government will be entitled to utilise the said lands for the said purposes and only restriction which at the highest can be put on the State Government in relation to such lands is that Government must utilise it for the purposes of Principal Act now repealed viz. Re-distribution of the acquired lands for the purpose of housing the 21 poor. It was submitted that in any event, the original owners have lost their title, they will not have any locus standi to make any grievance about the lands which have stood vested in the Government by ownership, even if the possession of the said lands has not been taken under Section 10(5) of the Principal act. It was submitted that in view of this, by deeming provisions of Section 10(3), the State ownership of the excess land is vested in it by the said provisions of Section 10(3) cannot be divested except by clear provision, which is absent in the Repeal Act and as held in Laxminarayan Deepchand's Case, such divesting cannot be inferred by reference to some other provisions of the Act, if clear provisions are absent. It was submitted that there are three categories of lands dealt with by the Competent Authority under the relevant provisions of the Principal Act as covered now by the Repeal Act (i) Section 3(1)(a) relates to lands which have vested in Government under Section 10(3) of the Principal Act, possession of which has been taken over by the Government, (ii) The lands deemed to have vested in the State Government under Section 10(3) of 22 the Principal Act but possession of which had not been taken over by the State Government and any amount has been paid by the Government with respect to such lands, (iii) lands vested in the Government under Section 10(3) and in respect to which no amount has been paid by the State Government with respect to such land and possession of which has not been taken over by State Government. It was further submitted that in case of the first category, the repeal of Principal Act shall not