2014 Supreme(Bom) 1704

High Court of Judicature at Bombay
S.C. DHARMADHIKARI, S.C. GUPTE & G.S. KULKARNI, JJ.
Maharashtra Chamber of Housing Industry & Others
Versus
State of Maharashtra, through Urban Development Department & Others
Writ Petition Nos. 9872 of 2010 Along With 84 of 2009, 91 of 2009, 346 of 2011, 556 of 2010, 1113 of 2010, 1256 of 2009, 2130 of 2009, 2201 of 2009, 2243 of 2011, 2244 of 2011, 2582 of 2010, 3815 of 2010, 5024 of 2013, 5161 of 2010, 5166 of 2010, 5984 of 2010, 7198 of 2008, 8535 of 2007, 9703 of 2010, 9812 of 2009, 10055 of 2009 & 10480 of 2009 Along With Original Side Writ Petition No. 37 of 2010
Decided On : 03-09-2014

Headnote:Urban Land (Ceiling and Regulation) Act, 1976 - Section 20(1) - Urban Land (C&R) Repeal Act, 1999, Section 3(1)(b) - Exemption order. - Since power to grant exemption under Section 20(1) of Principal Act is exercised in public interest hence said power is saved by clause (b) under Section 3(1) of Repeal Act. - 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 to enable the State Government to apply the provisions of Chapter III 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 sub-serve 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 Chapter-III 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. 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.

       Absence of sub-section (2) of Section 20 of the Principal Act in clause (b) of sub- section (1) of Section 3 of the Repeal Act would 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 in excess of ceiling limit and which has already vested in it, then, there is no impediment in withdrawing the exemption from applicability of Chapter-ill of the Principal Act in the case of such lands.

       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 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.

       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.

       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.

       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)].

       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 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.

       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.

       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 recourse to Section 20(2) or Chapter III of the Principal Act, such implementation or enforcement is permissible even after the repeal.