1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.877 OF 2008 Chandrakant Baburao @ Bhaurao Patil .... Petitioner V/s. The Addl. Collector and Competent Authority, Urban Agglomeration, Thane and Ors. ..... Respondents Mr.S.G.Karandikar, for the petitioner. Mr.V.S.Gokhale, AGP, for the respondents. CORAM :P.B.MAJMUDAR & R.G.KETKAR, JJ. DATE : 19th MARCH, 2010 P.C. 1. Rule. 2. Learned AGP for the State waives service of rule on behalf of the respondents. With the consent of both the sides, petition is taken up for hearing today. 3. The land of the petitioner was declared surplus under the Urban Land Ceiling Act. Petitioner had submitted a scheme under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976, which was initially approved. However, subsequently, it was cancelled and the land was treated as excess. A notification under section 10(3) of the act, was published in the official Gazette on 01­02­2007 and thereafter, notice 2 under Section 10(5) was issued on 18­06­2007. This aspect has been highlighted by the Government in Para No.1 of the affidavit­in­reply. However, in para No.1 it is stated that possession of excess land admeasuring 3260 sq.mtrs., has not been taken. 4. During the course of hearing, learned AGP submitted that there is nothing to show that any physical possession was taken, nor any panchanama was made. It is therefore, an indubitable fact that the aforesaid area remained in the possession of the petitioner all through out till today. Learned counsel for the petitioner relied upon the provisions of Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, which provides that “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 authorized by the State Government in this behalf or the competent authority”. Learned counsel for the petitioner submitted that the petitioner has not received any compensation in any manner and therefore, there is no question of any amount which is required to be paid back to the State Government as per sub­Section 2 of Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. 5. It is required to be noted that in the case of Voltas Ltd. & Anr., V/s. Additional Collector & Competent Authority and Ors., 2008(5) 3 Bom.C.R. 746, the Division Bench of this Court has held that : 11. Now so far as those lands which are owned by the petitioners in relation to which a notification under sub­section 3 of Section 10 of the Principal Act was issued and the order under sub­section (5) of Section 10 of the Principal Act was made are concerned, it is the provisions of Section 3 of the Repeal Act which are 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 of any vacant land under sub­section (3) of Section 10 of the Principal Act, possession 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. In the present case, it is an admitted position that though declaration under sub­ section (3) of Section 10 of the Principal Act was made, the possession of the land was not taken over by the Government or by the competent authority. Therefore, on bare reading of the provisions, it can be said that by virtue of repeal, vesting of the land of the first petitioner in the State by virtue of declaration made under sub­section (3) of Section 10 of the Principal Act, is not saved. A submission on behalf of the State Government was made that by virtue of declaration made sub­section (3) of Section 10 of the Principal Act in relation to the petitioners' land, the land has vested in the Government, but there is no provision in the Repeal Act which divest the State Government of the ownership of the land. In our opinion, this submission has no substance. Firstly, because 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 and out of the vacant lands that might have vested in the State Government by virtue of declarations made under sub­section (3) of Section 10 of the Principal Act, only vesting of those lands in the State 4 Government of which possession has been taken has been saved. Therefore, by necessary implication it follows that vesting of those lands in the State Government under sub­section (3) of Section 10 of the Principal Act of which possession has not been taken has been repealed or made ineffective. Vesting of the lands in the State Government had occurred because of the Principal Act which has been repealed. The Supreme Court in its judgment in the case of “India Tobacco Co.Ltd. Vs. The Commercial Tax Officer, Bhavanipore & others, (1975)3 Supreme Court Cases 512” has observed that “Repeal” connotes abrogation or obliteration of one statute by another, from the statute book as completely “as if it had never been passed”. Therefore, the effect of the repeal is to wipe out the statute from existence. Therefore, the normal effect of repeal is to wipe out everything done under the repealed statute except that which is saved either expressly or by necessary implication. In the same judgment i.e. “India Tobacco Co.Ltd.” the Supreme Court has observed that the repeal is not a matter of mere form but one of substance, depending upon the intention of the Legislature. If the intention of the legislature in repealing the enactment was to abrogate or wipe off the former enactment, wholly or in part, then that enactment will cease and would be deemed to have never exist at all, in so far as the part which the Legislature wants to wipe out totally is concerned. The principal submission of the State Government is that as the land of the petitioners has vested in the State Government because of the declaration made sub­ section 3 of Section 10 of the Principal Act and as there is no express provision made in the Repeal Act wiping out vesting of the land in the State Government, the State Government will continue to be the owner of the land. In our opinion, the submission has no substance. As indicated above, if it is assumed that there was no saving clause contained in the Repeal Act or had there been no section 6 of the General Clauses Act in existence then mere repeal of 5 the enactment will wipe out the enactment out of existence and everything done under the enactment will also go away, and in this situation, therefore, to avoid that effect, the legislature enacts saving clause and the Parliamen t has also enacted section 6 of the General Clauses Act to save certain things from the effect of repeal. Therefore, it follows that except for that which is saved by the legislature by making specific provision or in the absence of specific provision by Section 6 of the General Clauses Act, everything else under the Repeal Act is wiped out. In the present case by the saving clause contained in Section 3(1)(a) of the Repeal Act what is saved is vesting of the land in the State Government under sub­section (3) of Section 10 of the Principal Act possession of which was already taken over by the Government. In other words, therefore, vesting of land in the State Government in relation to those lands of which possession was not taken is wiped out. This position also becomes clear from the provisions of sub­section (2) of Section 3 of the Repeal Act. Sub­section 2 of Section 3 of the Repeal Act is in the nature of a proviso or exception to section 3(1)(a) of the Repeal Act. If sub­section (2) of Section 3 of the Repeal Act had not been enacted, vesting of even those lands in the State Government in relation to which the amount has been paid by the State Government to the land owner but possession has not been taken, will also stand wiped out. Because of sub­section (2) of Section 3 of the Repeal Act, now the land continues to be vested in the State Government though the possession of the land was not taken till the owner pays back the amount received by him. Had sub­section (2) not been enacted because of the operation of section 3(1)(a) of the Repeal Act, the vesting of the land in the State Government would have been wiped out because the possession is not taken and the land owner would be entitled to retain the amount received by him from the State Government as also the land. Sub­section (2) of Section 3 of the Repeal Act was enacted by the 6 legislature to ensure that the Government gets back the amount which is paid by it before the land reverts to the land owner. In other words the effect of the provision of Section 3(2) of the Repeal Act is to postpone cancellation of vesting of the land in the State Government till the land owner pays back the amount received by him. In the case covered by Section 3(2) of the Repeal Act, the land owner gets back title of the land only on payment of the amount that he had received under the Act from the government. In our opinion, what is contained in Section 4 of the Repeal Act also indicate that vesting of those lands possession of which has not been taken over by the State Government will revert back to the land owner. It is to be seen that the land is, by operation of the provisions of sub­ section (3) of Section 10 of the Principal Act, vested in the State Government, so that the State Government can deal with that land under the Principal Act. Perusal of Section (4) of the Repeal Act shows that only the provisions of Section 11, 12, 13 and 14 of the Principal Act continue to operate even after the repeal in relation to the land of which possession has been taken. In other words, after 29.11.2007 the provisions of Section 11,12,13 and 14 of the Principal Act are not available to the State Government in relation to the land of which possession has not been taken. Thus, if it is held that even after the Repeal Act, the State Government continues to have title of the land of which it has not taken possession, then it will mean that the Government has become title holder of the land without paying any amount to the land owner and with no possibility of amount being determined and paid under Section 11 of the Principal Act because those provisions do not continue to apply after the repeal in relation to the lands possession of which has not been taken. At this juncture, it becomes necessary to refer to the scheme of Section 10 of the Principal Act. Section 10 of the Principal Act reads as under:­ “10. Acquisition of vacant land in excess of ceiling limit:­ (1) As soon as may be after the 7 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 the competent authority in pursuance of the notification published under sub­section (1), the competent authority shall determine the nature and extent of such claims and pass such others 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 8 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 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 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.” Perusal of the above provisions shows that vesting of the land in the State Government occurs on publication of notification in the official Gazette under sub­section (3) of Section 10 of the Principal Act. Thereafter, the competent authority gets power to make order directing the person who is in possession of the land to surrender or deliver the possession of the land to the State Government, and if that person does not deliver the possession then the Competent authority becomes competent to take possession under sub­ section (6) of Section 10 of the Principal Act. Thus, after 29.11.2007, the provisions of sub­ section (5) and sub­section (6) of Section 10 of the Principal Act are not available to the State Government, therefore, in relation to that land with 9 respect to which declaration under sub­ section (3) of Section 10 of the Principal Act has been made but possession has not been taken, the Competent authority will not be entitled to make an order directing the person in possession of the land to deliver the possession to the Government nor the Competent authority would be entitled to take possession under sub­section (6) of Section 10 of the Principal Act on failure of the person in possession to deliver the possession. Thus, the State Government will not be in a position to take possession of the land under the provisions of the Principal Act, it will also not be in a position to to determine the compensation of the land under Section 11 of the Principal Act and make payment to that compensation to the interested persons under Section 14 of the Principal Act. Section 4 of the Repeal Act keeps the provisions of Sections 11, 12, 13 and 14 relating to determination of amount and payment of amount alive only in relation to the land possession of which has been taken by the Government. In our opinion, therefore, it is clear from the provisions of the Repeal Act that as a result of the Repeal Act neither any proceedings can continue nor the State Government can claim that the land continued to vest in it if possession of the land in relation to which declaration under sub­section (3) of Section 10 of the Principal Act has been made, has not been taken before 29.11.2007. In other words to claim that vesting of the land in the State Government is saved, it will have to be shown by the State Government that the possession of the land in accordance with the provisions of the Principal Act has been taken by the Government before 29.11.2007. 6. Considering the aforesaid aspect of the matter and the fact that physical possession all through out remained with the petitioner, 10 especially when the Government has not taken paper possession, nor any panchanama was made in view of Section 3 of the Repeal Act, the proceedings abate and now the petitioner cannot be ask for recovering possession and now there is no question of taking possession. The writ petition is allowed in the aforesaid terms. Rule is made absolute. ( R.G.KETKAR, J. ) ( P.B.MAJMUDAR, J.)