Delhi High Court

Tej Pratap Singh vs U.O.I. & Ors. on 16 July, 2009

Author: Badar Durrez Ahmed

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Judgment delivered on: 16.07.2009

+      W.P.(C) No. 2455/1992

TEJ PRATAP SINGH                                                 ..... Petitioner


                             -Versus-


U.O.I. & ORS.                                                    ..... Respondent

Advocates who appeared in this case:-

For the Petitioner : Mr. Ravi Gupta and Mr. Ankit Jain, Advocates. For the Respondent : Mr. Sanjay Pathak, Advocate for respondent nos. 2 to 4.

CORAM:-

HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether Reporters of local papers may be allowed Yes to see the judgment ?

2.     To be referred to the Reporter or not?                             Yes

3.     Whether the judgment should be reported in Digest?                 Yes


BADAR DURREZ AHMED, J (oral)

This writ petition is directed against the order passed by the

competent authority under the erstwhile Urban Land (Ceiling and

Regulation) Act, 1976 (hereinafter referred to as the ULCR Act). By virtue

of the impugned order dated 02.07.1992, the petitioner was granted

exemption in respect of the excess vacant land at 23, Barakhamba Road,

New Delhi under Section 20 (1) (a) and 22 of the ULCR Act subject to, inter

alia, the condition that the petitioner would make a payment of

Rs.18,37,74,528/- to the Land and Building Department, Delhi

Administration within 45 days. Aggrieved by this condition, the petitioner

filed this writ petition. In the meanwhile, the ULCR Act has been repealed

by virtue of the Urban Land (Ceiling and Regulation) Repeal Act, 1999

(hereinafter referred to as the Repealing Act).

2. The facts leading up to the present petition are as under:-

3. On 13.08.1976, the petitioner filed a statement/return under Section 6

of the ULCR Act which included the property at 23, Barakhamba Road,

New Delhi. On 13.08.1976, the petitioner applied for construction upon the

said land. On 10.03.1988, the order was passed by the competent authority

under Section 8(4) of the ULCR Act and along with it the final statement

under Section 9 of the said Act was also enclosed. The total excess vacant

land of the petitioner after considering all the properties of the petitioner was

found to be to the extent of 4373.6 sq. mts. However, the said order dated

10.03.1988 also indicated that so far as the property at 23, Barakhamba

Road, New Delhi was concerned, the total permissible area was 3909.5 sq.

mts. and as the permissible land was more than the net area of the plot over

which building activities were allowed, there was no excess land in respect

of this property.

4. On 25.03.1988, the petitioner made an application under Sections 20

and 22 of the ULCR Act for construction of a multi-storey building. On

02.11.1989, the Delhi Administration issued a letter which pertained to the

grant of exemption under Sections 20 and 22 of the ULCR Act. In this

regard, the Delhi Administration indicated that they have been unable to

process the case of the petitioner for want of, inter alia, a certificate from the

L&DO (the lessor) saying that they had no objection to the said exemption

under Sections 20 and 22 of the ULCR Act. Since the exemption sought by

the petitioner was not forthcoming, the petitioner filed a writ petition

(W.P.(C) No. 3274/1991 entitled Tej Pratap Singh vs. U.O.I. & Ors. In that

petition, the main direction sought for was that the respondents be directed

to consider the application of the petitioner for grant of exemption under

Sections 20 and 22 of the ULCR Act for the purpose of re-development of

the property bearing no. 23, Barakhamba Road, New Delhi. On 16.01.1992,

the Division Bench hearing the said writ petition (W.P.(C) No. 3274/1991)

took the view that as the uniform Building Bye-Laws, 1983 were silent on

the authority of imposing a condition while granting sanction to a building

plan, vis-à-vis the ULCR Act, such a condition as was sought to be imposed

by the NDMC prior to sanctioning of the plans could not be imposed.

According to the Division Bench, which was taking a prima facie view of

the matter at that stage, such a condition appeared to be without authority of

law or any bye-law. The said Division Bench also noted that the petitioner

was willing to proceed with the construction at the site according to the

sanctioned plan at his own risk subject to the final outcome of the writ

petition. The petitioner was permitted to do so.

5. Being aggrieved by this interim order, the NDMC preferred a Special

Leave Petition being SLP(C) No. 6608/1992 before the Supreme Court. The

Supreme Court passed an order on 14.05.1992 whereby it directed the

competent authority to decide the application of the petitioner under

Sections 20 and 22 of the ULCR Act within five weeks. It was also directed

that during the period of five weeks, the petitioner would not construct

above the plinth level and that in case the competent authority declined to

grant permission then no construction would be permitted till further orders.

6. On 02.07.1992, the Lieutenant Governor being the competent

authority passed the impugned order granting exemption to the petitioner but

subject to the condition of payment of Rs.18,37,74,528/- within a period of

45 days. Being aggrieved by the condition which was imposed, by the

impugned order dated 02.07.1992, the petitioner filed the present petition.

7. During the pendency of the present petition as well as the earlier

petition being W.P.(C) No. 3274/1991, the ULCR Act was repealed by the

Repealing Act.

8. W.P.(C) No. 3274/1991 came up for hearing before a learned Single

Judge on 14.10.2004 when the following order was passed:-

"Petitioner was being denied the benefits to construct under the sanctioned building plans as sanctioned by the NDMC, since there was a rider requiring exemption to be obtained under Section 20 & 22 of the Urban Land (Ceiling and Regulation) Act, 1976.

By an interim order dated 16.1.92, petitioner was permitted to construct at his own risk and peril.

Urban Land (Ceiling and Regulation) Act, 1976 has since been repealed. Issue raised requires no adjudication because with repealing of the Ceiling Act, rider put while sanctioned (sic) the plan automatically comes to an end.

Noting the legal position aforesaid, writ petition stands disposed of."

9. According to the learned counsel for the petitioner after the repeal of

the ULCR Act, there is no question of grant of exemption or imposition of

any condition in respect of the grant of exemption inasmuch as the ceiling

limits are no longer applicable. The learned counsel also submitted that the

order dated 14.10.2004 passed in W.P.(C) No. 3274/1991 categorically held

that the issue raised requires no adjudication because, with the repeal of the

ULCR Act, the rider put while sanctioning the plan automatically came to an

end. The learned counsel submitted that this order has attained finality as no

appeal therefrom has been preferred. Apart from this, the learned counsel

also submitted that the ULCR Act having been repealed, there is no question

of any exemption being sought any further and therefore the question of any

conditional exemption also does not arise. He also submitted that in any

event, at the highest, if the condition of payment is not satisfied, then the

State Government could, by virtue of Section 20 (2) of the ULCR Act, when

the said Act was in force, have withdrawn the exemption so granted which

meant that the excess vacant land would now have to be acquired under the

provisions of the Chapter III and proceedings thereunder would have to be

undertaken. But since the ULCR Act has been repealed, that is no longer

possible. Thus, according to the learned counsel for the petitioner,

whichever way the matter is looked at, the petitioner has to be absolved of

the condition of payment.

10. The learned counsel for the respondent, on the other hand, contended

that although the ULCR Act has been repealed by the Repealing Act,

Section 3 thereof specifically saves various actions under the repealed act.

Sections 3 and 4 of the Repealing Act are material and they read as under:-

"3. Savings. - (1) The repeal of the principal Act shall not affect -

(a) the vesting of any vacant land under sub-

section (3) of section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;

(b) the validity of any order granting exemption under sub-section (1) of section 20 or any action taken thereunder, notwithstanding any judgment, of any court to the contrary;

(c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of section 20.

2. Where -

(a) any land is deemed to have vested in the State Government under sub-section (3) of section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land,

then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

4. Abatement of legal proceedings. - All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate :

Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the

land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority."

(underlining added)

11. The learned counsel for the respondent nos. 2 to 4 submitted that

Section 3 (1) (b) of the Repealing Act would apply in this case whereby the

exemption order has been specifically saved. Therefore, according to the

learned counsel, the repeal of the ULCR Act would not affect the conditional

exemption granted by virtue of the order dated 02.07.1992. The learned

counsel for the respondent nos. 2 to 4 also submitted that the repeal is

prospective and not retrospective. He also referred to Section 6 of the

General Clauses Act, 1897 which deals with the effect of repeal. The said

Section stipulates that repeal of an enactment by a Repealing Act, unless a

different intention appears, shall not, inter alia, affect any right, privilege,

obligation or liability acquired, accrued or incurred under any enactment so

repealed. Consequently, it was submitted that the right of the petitioner to

get an exemption under Section 20 (1) (a) was subject to the liability of

making the said payment and other conditions which were imposed by the

exemption order. According to him, by virtue of Section 6 of the General

Clauses Act, 1897, the said liability, which had been incurred by the

petitioner to make the said payment and to comply with the other conditions

for the grant of exemption, was specifically saved by the Repealing Act.

12. We have considered the arguments advanced by the counsel for the

parties. One thing is clear that the ULCR Act has been repealed by the said

Repealing Act. We have already quoted Sections 3 and 4 of the Repealing

Act. Section 4 deals with abatement of legal proceedings and stipulates that

all proceedings leading to any order made or purported to be made under the

principal Act pending immediately before the commencement of the

Repealing Act before any court, tribunal or other authority shall abate. In

other words, all such proceedings shall abate on and from the coming into

force of the Repealing Act. There is a proviso to this Section which

stipulates that it would not apply to proceedings relating to Sections 11, 12,

13 and 14 of the ULCR Act insofar as such proceedings are relatable to the

land, possession of which has been taken over by the State Government or

any person duly authorized by the State Government in this behalf or by the

competent authority. From a reading of the entire Section 4 of the Repealing

Act, it is clear that all proceedings for declaring excess vacant land and

acquisition of the said excess vacant land come to a halt except the

proceedings pertaining to Sections 11, 12, 13 and 14 of the ULCR Act

provided possession of the land in question has not been taken over by the

State Government. In other words, those lands which had not been taken

into possession by the State Government are excluded even in respect of the

proceedings relating to Sections 11, 12, 13 and 14. It is clear that the intent

of the Legislature was not to implement the provisions of the ULCR Act any

further if they had not already resulted in the taking over of possession of the

lands in question. This is the general intent which is discernable from a

plain reading of Section 4 of the Repealing Act. In the present case, it is an

admitted position that the land in question, which is situated at 23,

Barakhamba Road, New Delhi, has not been taken into possession by the

State Government. In fact, the stage of the present case is that an order

under Section 8(4) of the ULCR Act has been passed and a final statement

has also been prepared under Section 9 of the same Act. The matter has not

proceeded to the stage of Section 10 which relates to acquisition of excess

land and vesting of the said excess land in the State Government. There is,

therefore, no question of the case having proceeded to any stage beyond

Section 9 of the ULCR Act.

13. This takes us to the consideration of the Savings Clause provided in

Section 3 of the Repealing Act. Section 3 (1) (a) clearly stipulates that the

repeal of the ULCR Act shall not affect the vesting of any vacant land under

sub section (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 by the competent authority. We have noted

above that the possession of the property in question is still with the

petitioners and, therefore, this Clause is clearly inapplicable. Section 3 (1)

(b) stipulates that the repeal shall not affect the validity of any order granting

exemption under sub-section (1) of Section 20 or any action taken

thereunder, notwithstanding any judgment of any court to the contrary.

Section 3 (1) (c) provides that the repeal shall not affect any payment made

to the State Government as a condition for granting exemption under sub-

section (1) of Section 20. Reading sub-sections 3 (1) (a), (b) and (c)

together, it appears to us that the intention of the Legislature is that where an

exemption has been granted in favour of a land holder, that is not to be

disturbed notwithstanding any judgment of any court to the contrary. The

further intention that can be discerned from the said provisions is that the

payment made to the State Government as a part of a condition for granting

exemption under Section 20 (1) is also saved. From this, it can be

understood that had it not been specifically provided that the payment made

to the State Government as a condition for grant of exemption will not be

affected by the repeal, the same would have been affected by the repeal. In

other words, what this provision intends to save is the actual payment, if

any, made to the State Government as a condition for granting exemption

under Section 20 (1) of ULCR Act and not the condition itself. In the context

of section 6 of the General Clauses Act, 1897, the petitioner‟s right to

exemption under section 20(1) of the ULCR Act is specifically saved, but,

not the „liability‟ to make the payment, unless the payment had already been

made prior to the repeal. The General Clauses Act, 1897 would, therefore,

apply subject to this intention. And, the intention of Parliament appears to

be that: (1) if any payments are made to the State Government, that is not to

be disturbed and (2) if any exemption has been granted, that is also not to be

disturbed. It does appear to us that after the repeal, the conditions of

exemption which remain unimplemented cannot now be implemented

because they are not specifically saved. The reason behind this being that

ceiling in respect of urban lands by itself has been repealed altogether.

14. It would be instructive to also have a look at the Statement of Objects

and Reasons behind the Repealing Act. The relevant portion is extracted

below:-

"4. The proposed repeal, along with some other incentives and simplification of administrative procedures, is expected to revive the stagnant housing industry. The repeal will

facilitate construction of dwelling units both in the public and private sector and help achievement of targets contemplated under National Agenda for Governance. The repeal will not, however, affect vesting of any vacant land under sub-section (3) of section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 the possession of which has been taken over by the State Governments. It will not affect payments made to the State Governments for exemptions. The exemptions granted under section 20 of the Act will continue to be operative. The amounts paid out by the State Governments will become refundable before restoration of the land to the former owners."

This also makes it clear that the repeal will not affect payments already

made to the State Governments. The exemptions granted under section 20

of the repealed Act would also continue to be operative. So, while the

exemptions granted under the ULCR Act are saved, only those conditions

for payment survive where payments have, in fact, been made to the

concerned Government. It follows that where the condition for payment has

not materialised into payment, such a condition would cease to be operative

after the repeal.

15. We also note that the learned Single Judge dealing with W.P.(C) No.

3274/1991 passed the said order dated 14.10.2004 in which he had

specifically indicated that the issue with regard to the Urban Land (Ceiling

and Regulation) Act, 1976 required no adjudication because, with the