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1999 Supreme(All) 1321
IN THE HIGH COURT OF ALLAHABAD
Yatindra Singh, J.
STATE OF UTTAR PRADESH - Appellant
Versus
DOON YDYOG (P.) LTD., DEHRADUN - Respondents
C. M. W. P. 571 Of 1981
Decided On : 09/01/1999
M.S.Negi, V.D.Singh
The repeal of a statute does not affect the legality of the orders passed under the repealed statute unless the repealing statute provides otherwise.
Headnote:
WRIT PETITIONS - ABATEMENT - URBAN LAND (CEILING AND REGULATION) ACT, 1976 - REPEAL - EFFECT - WRIT PETITIONS ARISING OUT OF ORDERS PASSED UNDER THE ACT - WHETHER ABATE - SECTION 4 OF THE REPEALING ACT - INTERPRETATION - WRITS NOT COVERED BY EXCEPTION - WHETHER ABATE - DECISION ON MERITS - SCHEME OF THE PRINCIPAL ACT - EFFECT OF THE REPEALING ACT - FOUR GROUPS OF WRIT PETITIONS - DISPOSAL.
Fact of the Case:
The Urban Land (Ceiling and Regulation) Act, 1976 (the Principal Act) was repealed by the Ordinance No. 5 of 1999, later replaced by the Central Act No. 15 of 1999 (the repealing Act). The issue arose as to the effect of the repeal on the writ petitions arising out of the order passed under the Principal Act.
Finding of the Court:
1. The writ petitions and special appeals do not abate due to Section 4 of the Repealing Act. 2. It is unnecessary to decide these writ petitions on merits in view of the Repeating Act. 3. The repeal of the Principal Act does not affect those cases where possession has been taken. But the State Government or duly authorised person could not take possession unless the orders in the proceedings were legal. Their legality will have to be seen. The writ petitions in the cases, where possession has been taken, may have to be decided on merits.
Issues: 1. Whether the writ petitions abate in view of Section 4 of the repealing Act? 2. Should these writ petitions be decided on merits?
Ratio Decidendi: 1. Section 4 of the Repealing Act provides that all proceedings (except under few sections) relating to any order made or purported to be made under the Principal Act pending at the time of enforcement of the repealing Act will abate. These writ petitions arise out of order passed under the Principal Act. They are not covered by the exception. 2. A decision in a writ petition is not a decision about the merits of the parties in issue in the proceedings giving rise to it. A proceeding under Article 226 of the Constitution is not a continuation of the suit or proceeding giving rise to it and there exists a clear distinction between an appeal or revision and a writ petition. The orders passed in the original suit or proceeding do not merge in the orders passed in such petition. 3. The Principal Act stands repealed under Section 2 of the Repealing Act but it does not affect the vesting of land in the State government under Section 10 (3) of the Principal Act where possession is taken over by the state Government or by any authorised person. In case the land has not vested in the State government, as the required declaration has not been published under Section 10 (3) of the principal Act, then nothing can be done.
Final Decision: 1. The writ petitions at Serial Nos. 1 to 16 are dismissed as infructuous. 2. The rest of the writ petitions are disposed of with the observation that now the State government is not entitled to take possession over the land in pursuance of any orders passed under the Principal Act and in case the declaration under Section 10 (3) of the Principal Act has been published, the persons concerned would be at liberty to take proceedings for restoration or divesting the land in accordance with law.
( 1 ) THE Urban Land (Ceiling and Regulation) Act, 1976 (the Principal Act for short) has been repealed by the Ordinance No. 5 of 1999, later replaced by the Central Act No. 15 of 1999 (the repealing Act for short ). What is the effect of the repeal on the writ petitions arising out of the order passed under the Principal Act.
(i) Do these writ petitions abate, in view of Section 4 of the repealing Act? (ii) Should these writ petitions be decided on merits? 1st Question : Writ Petitions --Abatement?
The Principal Act--Not in Force
( 2 ) THE repealing Act, in view of Section 1 (3) applies to a State from the date the resolution in this behalf is passed under Article 252 (2) of the Constitution of India, The standing counsel has brought to my notice a Government Order dated 31-3. 1999, which states that the requisite resolution has been passed on 18. 3. 1999. Thus, the Repealing Act has come into force in the state of Uttar Pradesh on 18. 3. 1999. The Principal Act is no longer in force. Writ Petition--Is not continuation
( 3 ) THE Section 4 of the Repealing Act provides that all proceedings (except under few sections)relating to any order made or purported to be made under the Principal Act pending at the time of enforcement of the repealing Act will abate. These writ petitions arise out of order passed under the Principal Act. They are not covered by the exception. Should they be abated on this ground?
( 4 ) (A) decision in a writ petition is not a decision about the merits of the parties in issue in the proceedings giving rise to it. . . . . (A) Proceeding under Article 226 of the Constitution is not a continuation of the suit or proceeding giving rise to it and there exists a clear distinction between an appeal or revision and a writ petition. . . . . (The) orders passed in the original suit or proceeding do not merge in the orders passed in such petition. Since a special appeal, directed against an order passed in a writ petition, is merely a rehearing of the petition, it has. . . . . . . . the characteristics of a petition under Article 226 of the Constitution. (the U. B. Singh case ). This was the reason that the full bench in the U. B. Singh case held, Section 5 (2) (a) of the U. P. Consolidation of holdings Act has no impact on the writ petitions or special appeals arising out of them. And the writ petitions and special appeals do not abate in view of notification under Section 5 (2) of the u. P. Consolidation of Holdings Act ; though all other proceedings do.
( 5 ) I see no reason why these observations will not apply in the present case. Neither the writ petitions nor the special appeals arising out of them abate under Section 4 of the repealing Act. 2nd Question : Writ Petition--Decision on merits the Scheme of The Principal Act
( 6 ) ALL persons holding vacant land in excess were required to file statement under Section 6 of the Principal Act. The competent authority could also require such persons to file statements. Thereafter a draft statement was prepared under Section 8 of the Principal Act and was served on the persons concerned under Section 8 (3) of the Act, requiring them to file their objections. These objections were decided under Section 8 (4) of the Principal Act. This order was subject to an appeal or a revision under Section 33 or 34 of the Principal Act. The competent authority was to make necessary amendment in the draft, determining vacant land, and prepare the final draft under Section 9 of the Principal Act. This draft was published under Section 10 (1) of the principal Act. Any other person (not served with the notice) could file his objection under section 10 (2) of the Principal Act. After decision on objection, if any, under Section 10 (2) of the Principal Act, the competent authority was required to publish a declaration under Section 10 (3) of the Principal Act vesting the excess vacant land in the State. The excess vacant land vested absolutely (without any encumbrances) in
