2009 Supreme(Bom) 516

HIGH COURT OF JUDICATURE AT BOMBAY
THE HONOURABLE MR. JUSTICE V.C.DAGA & THE HONOURABLE MRS. JUSTICE MRIDULA BHATKAR
Vithabai Bama Bhandari - Appellant
Versus
State of Maharashtra & Another - Respondent
Writ Petition No.4241 of 2008
Date of Judgment : 16-04-2009

Headnote:United Commercial Bank Officers Employees’ (Discipline and Appeal) Regulations, 1976 - Sections 9, 10, 8(4), 20 and 33 - Urban Land Ceiling (Repeal) Act, 1999, Section 4 - Surplus land - Order by competent authority that petitioner having surplus land - Application for exemption allowed by Dy. Collector - Proposal for development of land rejected by KDMC - Appeal filed under Section 33 - Direction to petitioner to hand over surplus land to Government nominees - Requested to take possession of flats - Notice served to handover vacant land under Section 10(5) - Petitioner was declared as owning surplus land but possession of surplus land not taken by concerned authorities - Submission of respondent contrary to action taken by State - Application of Section 6 of General Clauses Act stands excluded - Stay granted for limited period. - By necessary implication it follows that vesting of those lands in the State Government under sub-section (3) of Section 10 of the Principal Act or which possession has not been taken has been repealed or made ineffective. 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 chooses 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 will be the special provisions and therefore, if the matter is covered by that special provision, the general provision contained in Section 6 of the General Clauses Act will not apply or its applications will be excluded to the extent the matter is specifically covered by the specific saving clause enacted in that legislation. Therefore, as in the Repeal Act the provision, in relation to the land 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. Petition succeeds and is allowed. It is held and declared that as consequence of the Repeal Act, further proceedings pursuant to the order made by the State Government dated 28th June, 2007 withdrawing 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 lapsed and those lands no longer vests in the State Government. Rule is made absolute accordingly.

       United Commercial Bank Officers Employees’ (Discipline and Appeal) Regulations, 1976 - Sections 10(3), 20(1)(2) - Urban Land (Ceiling and Regulation) Repeal Act, 1999, Sections 3 and 4 - Repeal and saving - Exemption - Granted under Section 20 of Act, 1976 - To surplus land subject to certain conditions - Non-compliance of - Consequential - Notice under Section 10(5) to hand over possession of surplus vacant land - Possession of surplus land not automatically deemed to be taken by competent authority - Actual physical possession not taken at time of coming into force of Repeal Act, 1999 - Vesting of land in State in view of declaration under Section 10(3) of Act, 1976 not saved - Proceedings initiated for taking possession stand abated. - Now so far as those land 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 of any vacant land under sub-section (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 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 declaration made under sub-section (3) of Section 10 of the Principal Act, is not saved.

       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 of the Principal Act of which possession as not taken has been repealed or made ineffective.

       United Commercial Bank Officers Employees’ (Discipline and Appeal) Regulations, 1976 - Sections 10(3) and 20(1)(2) - Urban Land (Ceiling and Regulation) Repeal Act, 1999, Sections 3 and 4 - General Clauses Act, 1897, Section 6 - Repeal - Effect of - Saving of thing done and action taken - Special provision provided for in Repeal Act - Prevail over general provisions of Section 6 of General Clauses Act - Land vested in State Government under Section 10(3) of Act, 1976 of which possession not taken - Specific provision provided for in Repeal Act, 1999 - Application of Section 6 of General Clauses Act stand excluded. - 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 chooses 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 will be the special provisions and therefore, if the matter is covered by that 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 Court’s 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.