1. The order in this Special Civil Application shall also decide the connected matters in which common questions of law have been raised.

2. The petitioners question the constitutional validity of Section 3(1)(a) and Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Hereinafter referred to as `the Repealing Act, 1999').

3. The Repealing Act, 1999 is enacted by the Parliament on 22-3-1999 wherein by Section 2, the Urban Land (Ceiling and Regulation) Act, 1976 has been repealed.

4. The Urban Land (Ceiling and Regulation) Act, 1976 shall hereinafter be referred to as the `Repealed Act, 1976'.

5. For the purpose of considering the several grounds urged on behalf of the petitioners in assailing the provisions of the Repealing Act, 1999, it is necessary to examine the scheme of the relevant provisions of the Repealed Act, 1976.

6. The preamble contains the Objects and Reasons for enacting and enforcing the Repealed Act, 1976 and the said preamble reads as under:-

"An Act to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculations and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good."

The Repealed Act, 1976 was brought into force to give effect to the directive principles of State Policy contained in Article 39(b) and (c) of the Constitution. The said Article contains a mandate to the State that "the State shall, in particular, direct its policy towards securing--

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment."

7. The purpose of the Repealed Act, 1976 was with laudable object, to prevent concentration of urban lands in the hands of wealthy and to make available the land in urban areas for providing shelter to the poor and needy. Section 4 of the Act of 1976 prescribes different ceiling limits for holding land in urban agglomeration categorised as A to D in Sch. I of the Act. Section 6 of the Act of 1976 requires every person holding vacant land in excess of ceiling limit to file a statement before the competent authority within a prescribed time. Under Section 8, the competent authority on the basis of statements filed has to prepare a draft statement as regards vacant land held by each person in excess of ceiling limit. Under Section 9, after considering various objections received, the competent authority has to make a final statement to determine the extent of vacant land held by a person in excess of ceiling limit. Section 10 provides acquisition of vacant land in excess of ceiling limit. subsection (3) of section 10 provides that the excess land determined by the competent authority shall be deemed to have been acquired by the State and such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date specified. Subsection (5) and (6) of Section 10 contain the provisions laying down the procedure for taking possession of the vacant land which has vested in the State Government. The said subsections of Section 10 are relevant for the purpose of considering the ground urged against the Repealed Act, 1976 and the said provisions therefore need reproduction in full:

"10(5) Where any vacant land is vested in the State Government under sub-section (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 sub-section (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 - x x x x x x"

8. Under Section 11, the State Government is required to pay to the person or persons an amount for the vacant land which is deemed to have been acquired by the State Government. The amount is required to be calculated in accordance with the procedure indicated in the said Section. The other relevant provision is Section 23 of the Act of 1976, which contains the procedure for disposal of vacant land acquired under the Act. Under Section (1) of Section 23, the vacant land can be allotted by the State Government irrespective of the ceiling limit under the Act, for any purpose relating to, or in connection with, any industry and for providing residential accommodation of such type as may be approved by the State Government to the employees of the industry. The allotment for the above purpose to the industry or for employees of the industry could be on the conditions to be imposed by the State Government. Under sub-section 3, if the condition imposed in an order of allotment in a vacant land is breached, the State Government is given a right to cancel the allotment and thereupon the allotted land shall revest in the State Government. Subsection (4) and subsection (5) of Section 23 need full reproduction as the said provisions contain the general power of the State Government to deal with, retain or dispose of the vacant land acquired and vested in the State Government, for public good or public benefit. That the said two sub-sections (4) and (5) of Section 23 read as under:-

"23(4) Subject to the provisions of sub-sections (1), (2) and (3), all vacant lands deemed to have been acquired by the State Government under this Act shall be disposed of by the State Government to subserve the common good on such terms and conditions as the State Government may deem fit to impose.

(5) Notwithstanding anything contained in sub-sections (1) to (4), where the State Government is satisfied that it is necessary to retain or reserve any vacant land, deemed to have been acquired by that Government under this Act, for the benefit of the public, it shall be competent for the State Government to retain or reserve such land for the same."

9. In the year 1998, a bill was introduced in the Parliament proposing the repeal of the Act of 1976. Along with the bill, a Statement of Objects and Reasons were also placed on the floor of the Parliament explaining the desirability of the repeal of the Act of 1976. The relevant part of the Statement of Objects and Reasons placed in the Parliament along with the bill read as under:-

"The Urban Land (Ceiling and Regulation) Act, 1976 was passed with a laudable social objective. The main purpose was to prevent concentration of urban land in a few hands and to provide affordable housing to the Economically Weaker Sections. It has on the contrary pushed up land prices, practically brought the housing industry to stop and provided opportunities for corruption. There is a widespread demand for removing this irritant to land assembly and construction activity. During the implementation of the Urban Land (Ceiling and Regulation) Act, 1976, there have been a spate of litigations giving rise to serious hurdles in taking over possession of land, by the State Government. Public opinion is nearly unanimous that the Act has failed to achieve its objectives as expected.

2. Parliament has no power to repeal or amend the Act unless resolutions are passed by two or more State Legislatures as required under clause (2) of article 252. The Legislatures of Haryana and Punjab have passed resolutions empowering Parliament to repeal the Act in those States. The Act stands repealed in those States and in the Union territories immediately after promulgation of the repeal ordinance and subsequently if State Legislatures adopt this Repeal Act by resolution, then the Urban Land (Ceiling and Regulation) Act, 1976 will stand repealed in those States, from the date of its adoptions.

3. The Urban Land (Ceiling and Regulation) Repeal Bill, 1998 was examined by the Standing Committee on Urban and Rural Development. "The Committee felt that the land which is yet to be put to use for the original purpose stated in the Act, under possession of the Government should not be restored to previous owners as such restoration may lead to avoidable discrimination." The Committee also suggested that the repeal Bill should contain a provision for abatement of proceedings in the different courts. Keeping in view the recommendation of the Committee, this Bill is being introduced to replace the Urban land (Ceiling and Regulation) Repeal Ordinance, 1999 (Order 5 of 1999) notified on 11.01.1999 so that the State Governments would be free to have their own legislation commensurate with their needs and experiences. Till this Act is repeal, States have no power to legislate on this subject.

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.

5.The Bill also seeks to facilitate land assembly and a flexible regime for administering Urban Land to suit the varying local conditions based on State Level legislations or requirements.

New Delhi The 17th February 1999"

10. The above Statement of Objects and Reasons disclose that the Parliament felt that the Act of 1976 failed to achieve the object which was expected of it. On the contrary the land prices were pushed up to unconscious levels resulting in over all stoppage of housing industry and leading to copious opportunities for corruption. A clog was found on housing and there was widespread clamour for removing such clogs. It was found necessary to repeal the Act of 1976 `to revive the stagnant housing industry and provide affordable living accommodation for those who are in a state of undeserved want and are entitled to public assistance'. It was made clear that the repeal is not to affect the land on which building activity has already commenced.

11. It is to be noticed that in the Bill introduced of the year 1998, the proposed Section 3 containing the savings intended to leave unaffected by the repeal such lands of which possession has already been taken by the State and whereas the use of such land under the Repealed Act has already commenced. The proviso to Section 3 of the Bill also clearly intended that where the use of the land has not commenced of which possession had been taken by the State Government, such land shall be restored to the person from whom it was taken over and the amount paid was liable to be refunded to the State Government.

12. On the introduction of the above mentioned Bill of 1998, first an Ordinance was promulgated (No. 5 of 1999) on 11-1-1999 which later became an Act impugned in this batch of petitions shortly described as the Repealing Act of 1999. The Urban Land (Ceiling and Regulation) Repeal Act, 1999 of which provisions contained in Section 3(1)(a) and Section 4 are under challenge needs reproduction in full:-

"The following Act of Parliament received the assent of the President on the 22nd March, 1999 and is hereby published for general information:-

The Urban Land (Ceiling and Regulation) Repeal Act, 1999 No. 15 of 1999.

(22nd March, 1999) An Act to repeal the Urban Land (Ceiling and Regulation) Act, 1976.

Be it enacted by Parliament in the Fiftieth Year of the Republic of India as follows:-

1.(1) This Act may be called the Urban Land (Ceiling and Regulation) Repeal Act, 1999.

(2) It applies in the first instances to the whole of the States of Haryana and Punjab and to all the Union territories; and it shall apply to other State, which adopts this Act by resolution passed on that behalf under clause (2) of Article 252 of the Constitution.

(3) It shall be deemed to have come into force in the States of Haryana and Punjab and in all the Union territories on the 11th day of January, 1999 and in any other State which adopts this Act under clause (2) of Article 252 of the Constitution on the date of such adoption; and the reference to repeal of the Urban Land (Ceiling and Regulation) Act, 1976 shall, in relation to any State or Union Territory, mean the date on which this Act comes into force in such State or Union territory.

2. The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter refer to as the principal Act) is hereby repealed.

3.(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 the competent authority.

(b) the validity of any order granting exemption under sub-section (1) of section 20 or any action taken there under, not withstanding any judgement or 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 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. 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.

5. (1) The Urban Land (Ceiling and Regulation) Repeal Ordinance, 1999 is hereby repealed.

(2) Not withstanding such repeal, anything done or any action taken under the said ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act."

13. What is noticeable from the impugned provisions contained in Section 3(1)(a) (supra) is that the provisions proposed in the Bill dated 4-6-1998 were for leaving only such land unaffected by repeal of which use under principal Act has commenced. That proposal was changed in the subsequent Bill dated 17-2-1999. The Repealing Act under clause (a) of subsection (1) of Section 3 provides that the repeal shall not affect vesting of any vacant land under the Repeal Act, possession of which has been taken over by the State Government, irrespective of the fact whether use of such land under the principal Act had commenced or not.

14. As provided in subsection (2) of Section 1 of the Repealing Act, 1999, it was made applicable at the first instance to the whole of the States of Haryana and Punjab and to all the union territories, and it is to apply to other States, which adopt this Act by passing a resolution in that behalf under clause (2) of Article 252 of the Constitution. Sub-section (3) of Section 1 of the Repealing Act of 1999 was to come into force in relation to such State from the date of its adoption. The State of Gujarat in its Legislature passed the resolution and adopted the Act and notified it in Gazette of Gujarat Extraordinary dated 23-4-1999. The contents of the said resolution of the State Legislature of Gujarat are also important and relevant for considering the merits of grounds urged in assailing the Repealing Act. The contents of the resolution of the State Legislature read as under :-

"AND WHEREAS the Government is committed to provide housing to the economically weaker sections and low income group of the society and for developing infrastructural facilities such as water supply, drainage, sanitation, roads etc;

AND WHEREAS Government of India has laid down guidelines of a recommendatory nature for achieving social objectives after repeal of the Act of 1976;

AND WHEREAS in pursuance of the said guidelines, the Government is considering taking steps to provide affordable living accommodation for those who are without shelter and especially the people belonging to economically weaker sections of the society and to low income groups in the State;

AND WHEREAS in pursuance of the said guidelines, Government is also considering imposition of tax on vacant in urban area within a period of three months so as to persuade the land holders to put their land to use and also to provide financial assistance for housing schemes of economically weaker section of the society and of low income groups and for developing infrastructural facilities such as water supply, drainage, sanitation, roads etc. in the urban areas;

NOW, THEREFORE, in pursuance of clause (2) of article 252 of the Constitution of India, read with clause (1) thereof, this Assembly hereby resolves that the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act No. 15 of 1999) be adopted for this State." (underlining for inviting pointed attention)

15. The underlined portion of the resolution (supra) contains the Objects and Reasons for which the State Legislature of Gujarat agreed with the House of the Parliament and the Statement of Objects and Reasons mentioned in the Bill for repeal of the Act of 1976. In the said underlined portion of the resolution the Government of State of Gujarat is said to be committed to provide housing to economically weaker sections and low income group of the society and for developing infrastructural facilities such as water supply, drainage, sanitation, roads etc. The other underlined portion of the resolution refers to certain Guidelines of the Government of India of a recommendatory nature. In the said Guidelines the steps in contemplation are mentioned that it intends `to provide affordable living accommodation for those who are without shelter and specially the people belonging to economically weaker sections of the society and low income groups in the State'. The last part of the underlined portion clearly indicates that in order to give effect to the statements and objects of the Repealing Act, 1999 and in pursuance to the said Guidelines of the Government, the State Legislature decided to adopt the Repealing Act in the State of Gujarat. The Guidelines of recommendatory nature issued by the Government of India and referred to in the resolution of the State of Gujarat in its Notification dated 23-4-1999 also need reproduction:

"GUIDELINES FOR ACHIEVING SOCIAL OBJECTIVE AFTER REPEAL OF URBAN LAND (CEILING & Regulation) Act, 1976.

**** Urban Land (Ceiling & Regulation) Act, 1976 has been repealed by promulgation of an Ordinance. The Bill for the repeal of the Act was referred to the Standing Committee of the Parliament. While recommending the repeal of the Act, the Committee noted that the people belonging to the ESW/LIG categories should not be left at the mercy of the market forces for the supply of shelter for them and therefore, recommended that Central Government, after the repeal of the Act, must impress upon the State Governments the need to take necessary steps to protect the interests of the people belonging to EWS/LIG categories. While promulgating the above said Ordinance, the Cabinet in its decision directed this Ministry to formulate suitable Guidelines to achieve the above mentioned objective. This Ministry, after careful examination, recommends the following Guidelines. These Guidelines will be applicable for the land released as a consequence of repeal of ULC Act.

1. Vacant Land Tax :

Land values in many cities have gone up phenomenally but the municipalities are not able to tap even a small fraction of the increment in land values. After the repeal of the Urban Land (Ceiling & Regulation) Act, 1976, there will be surplus land available in the municipalities. To ensure that this surplus land due to repeal of ULC Act is not used for speculative purposes, it is recommended that Vacant Land Tax on such land be imposed in such a manner that it becomes detrimental for land owners to keep land vacant. This Tax could be progressive. There may not be any Tax for the first year because th eland owner in the first year may make up his mind whether he wants to go for housing construction or not and thereafter for every year if the land is kept vacant, Vacant Land Tax could be progressively higher. To determine the Vacant Land Tax base, declared land value data available with the Registration Departments for the purpose of Stamp Duty, may be gathered/used. If land values are not notified by the Registration Department in any city, the Government may notify Zonal values for the purpose of land value from time to time. It is also suggested that Vacant Land Tax so collected may be earmarked exclusively for EWS/LIG housing or infrastructure facilities such as water supply, sanitation, roads etc which may help the housing sector.

2. Builders may be asked to subsidise the EWS/LIG housing through incentives in the from of increased FAR/FSI for their projects within the cities. The State Government, as an additional incentive, may permit mixed land use for projects wherein EWS/LIG housing is a part. The Mixed Land Use should promote employment generation for the poor. It should be environmentally compatible.

3. Building bye-laws may be suitably amended so that a developer may contribute a fixed percentage of the gross area for construction of EWS/LIG houses. If the developer so likes, in lieu of the same, a fixed percentage of the market value of the land could also be collected and kept in a specially constituted Fund set up by the Government. This Fund may be used for EWS/LIG housing.

4. In case the land use plan for the land released after the repeal of Urban Land (Ceiling & Regulation) Act, 1976 has not been indicated by local plan or such land is for a use other than housing activity, then, subject to assessment of State Governments/Local authorities and subject to availability of infrastructure facility and environmental clearance the case may be considered for change in the land use for housing purposes to enable increase in the housing stock.

It logically follows the provision of specially constituted fund and therefore housing for EWS/LIG would be an essential requirement for modified land use.

5. Land in the city centres will be expensive. Therefore, the States should build up a Land Bank.

a) by earmarking Government land already available and

b) by acquiring land which may not be very expensive at present The Land Bank may be used to allot land at cost price to builders or any other agencies such as State Housing Boards, State Development Authorities, Cooperative Societies and such NGOs which the State Governments feel will help in achieving the social objective of building houses for economically weaker sections and low income groups.

6. The colonising scheme for mixed housing and construction of EWS/LIG housing has been successfully experimented in some of the States/cities. State Government may consider permitting the commercial use and in lieu of that, colonisers may construct EWS/LIG houses. Successful models such as those in Haryana and Maharashtra etc., may be taken into consideration while making such schemes.

These Guidelines are recommendatory in nature and it would be the prerogative of the State Governments to make suitable amendments and additions as per their requirements. The ultimate objective would be social equality."

16. GROUNDS URGED TO ASSAIL THE provisions contained in Section 3(1)(a) of the Repealing Act OF 1999 ON THE GROUND OF DISCRIMINATION AND VIOLATION OF Article 14 of the Constitution OF INDIA The impugned provision 3(1)(a) reads as under:-

"(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 the competent authority"

17. On behalf of the petitioners arguments were advanced by Sr. Advocates Shri J.R. Nanavaty and Shri M.C. Bhatt. The main attack to the provision in Section 3(1)(a) of the Act is that the Legislature having realised that the object of the Repealed Act of 1976 had completely failed, there is no apparent justification to discriminate between the land owners in urban areas who continue to be in possession of the alleged excess land and others from whom, due to of the fortuitous circumstance, possession of the land had been taken by the State Government. It is submitted that under the Repealed Act of 1976 there was one and only one homogenous class of land owners having (i) urban land in urban agglomeration; (ii) they were entitled to hold the land up to the ceiling limit; (iii) on enquiry if they are found having land in excess of ceiling limit, they were liable to surrender the land to the State; (iv) The State was entitled to take possession of such land; (v) on acquisition of surplus land it could be disposed of under Section 23 of the Act.

18. It is contended that land owners had common characteristics referred to above and constituted one homogenous class. The object of Act of 1976 was common, that is acquisition of land in urban areas was for the common good and to implement the directive principles contained in Article 39(b) and (c) of the Constitution. As has been stated in the Objects and Reasons for bringing on the statute book the Repealed Act it has been declared that the public opinion is nearly unanimous that Act of 1976 has failed to achieve what was expected of it. The said Act on the contrary pushed up prices of lands to unconscious levels and practically brought the housing industry to a stop and provided copious opportunities for corruption. The objects state that there is widespread clamour for removing this most potent clog of housing. In the object it is stated that the proposed repeal along with other incentives and simplification of administrative procedures is expected to revive the stagnant housing industry and provide affordable living accommodation for those who are in a state of undeserved want and are entitled to public assistance. The Act of 1976 was passed, as its preamble shows, with the object of preventing concentration of urban land in the hands of a few persons and with a view to bring about an equitable distribution of land in urban agglomeration to subserve the common good.

19. By highlighting the legislative intention contained in the Objects and Reasons for enacting the Repealing Act of 1999 the learned Counsel appearing argued that the object and the scheme of the Act having failed, it is arbitrary, unfair and inequitable to retain the land vested with possession under sections 10(3), (4) and (5) of the Act by taking recourse to the saving clauses provided in impugned Section 3(1)(a) of the Repealing Act of 1999 (quoted above). By reading the provisions of Section 10 of the Repealed Act of 1976, it is pointed out that land owners of different classes existed at the time when the Repealing Act was passed and they are described as under:-

1. The land owners whose lands had vested with possession taken by the State Government under Section 10(3).

2. Land owners whose lands have vested in the State Government under Section 10(3) but the State did not take possession from the land owner due to fortuitous circumstances such as no urgency for taking possession or there were stay orders by the appellate authorities under the Act or by the Civil Court or the High Court.

3. Land owners whose lands had vested in the State and compensation is paid to them although the possession is not taken by the State.

4. Land owners whose lands have been vested in the State the land was allotted under the Act for housing to third parties but its use has not commenced.

5. Land owners whose land has vested in the State the allotments were made on conditions under Section 23 of the Act and there is a breach of such condition consequent whereupon the action is taken for revesting of the land under Section 23(3) of the Act.

20. It is contended that all land owners of various categories whose lands had vested on the legal effect of the operation of the provisions of Act of 1976, whether in possession of those lands or deprived of the same and whether compensation was paid or was not paid to them, deserve a fair and uniform treatment by returning the alleged excess land to them because the Legislature itself realised that the Object of the Repealed Act of 1976 has completed failed. It is argued that on failure of the Act of 1976, it is the constitutional obligation of the State not to retain the vacant land vested in it. It should hand over the same back to the land owners. It is submitted that the alleged excess land under the Act of 1976 was acquired for the purpose of allotment and disposal, as per the directions contained in subsection (3), (4) and (5) of Section 10 read with Section 23 of the Repealed Act. After the repeal of that Act, the State is holding such surplus land acquired by it as a trustee with obligation to use it and dispose it of for common good, to fulfil the purposes mentioned in Section 23 of the Act. If the purpose for which the lands were utilised has completely failed, the State Government is duty bound to restore the possession to the land owners and have no legal or moral justification to retain such land. Very strong reliance has been placed on the minority opinion of Justice Tuljapurkar, J in the case of Maharao Saheb Bhimsinhji v. Union of India AIR 1981 SC 1191 in which by the majority opinion all the provisions of the repealed act of 1976 were held constitutionally valid except Section 27(1) of the Act only to the extent it imposed a restriction on transfer of any urban or urbanised land with a building or of such a portion of such building within the area. By reading the minority opinion of Justice Tuljapurkar, it is pointed out that all the vices and apprehensions pointed out in the Repealed Act by the learned Judge have proved to be true with a long passage of the operation of the Act. Wisdom has dawned on the Legislature after complete failure of the object of the Act of 1976 and it decided to repeal it because instead of making available the land in urban areas to poor and needy it led to concentration of lands in the hands of wealthy and gave opportunities for all round corruption.

21. The main contention advanced is that all the land owners whether in possession or deprived of possession of the land deserve uniform fair treatment as a class. The object of the Act of 1976 under which the lands have vested and possession taken or not taken from the land owners having completely failed, the land owners whose lands had vested in the State could not be further classified and divided in two classes that is those from whose possession is taken and from those possession is not taken. The provisions of Section 3(1)(a) deny the benefit of return of land to the land owners from whom, under fortuitous circumstances, possession was taken. The land owners who had voluntarily surrendered possession or from whom possession was taken, could not be meted out a discriminatory treatment. It is the duty of the State to justify the action on the touchstone of Article 14 and to show that such a classification of land owners on the basis of possession or dispossession is reasonable and has a nexus or connection with the object of the Repealed Act. It is submitted that the doctrine of classification recognised by Article 14 of the Constitution is that there should be a reasonable classification and that it should have a reasonable nexus or connection with the object or purpose sought to be achieved by such classification. On behalf of the petitioners it is further argued that in the reply affidavit of the State no justification has been shown to classify the land owners whose lands have vested in the State under the Act of 1976 on the basis of possession or deprivation of possession. Criticism is levelled to the language employed in the Statement of Objects and Reasons that it is an attempt `to avoid discrimination'. Learned counsel argues that the State has tried to justify the provisions of Section 3(1)(a) on the ground that it intends to `avoid discrimination' between land owners whose lands were acquired and put to use by the State and land owners from whom possession was taken but the use had not commenced in the hands of the State. It is submitted that such argument advanced on behalf of the State for avoiding discrimination between two aforesaid categories of land owners is no answer to the charge of discrimination canvassed on behalf of the petitioners between the land owners who had been deprived of the possession of the vested land and land owners who due to fortuitous circumstances, still retain possession of the vested land. It is submitted that to avoid discrimination between the two different categories of land owners discrimination cannot be held justified between the land owners, whose lands have vested. Such land owners constitute one homogenous class for equal treatment, as a result of realisation by the Legislature that the Act of 1976 completely failed to achieve its object. Host of case law was cited in support of contention advanced on the alleged ground of discrimination under Article 14 of the Constitution. A few cases relevant and relied are:

(1) Malpe Vishwanath Acharya and others v. State of Maharashtra and another AIR 1998 SC 602 (2) Rattan Arya etc. etc. V. State of Tamil Nadu and another AIR 1986 SC 1444 (3) Jaila Singh and Another V. State of Rajasthan and others 1976(1) SCC 602 (4) All India Federation of Tax Practitioners V. Union of India 1998(104) Excise Law Times 595

22. On behalf of State, learned Additional Advocate General Shri S.N. Shelat tried to meet each and every contention and argument advanced on behalf of the petitioners in attacking Section 3(1)(a) of the Repealing Act of 1999 on the ground based on Article 14 of the Constitution. It is submitted that the Repealing Act is prospective in operation for future acts. The past acts and events prior to the repeal would be governed by the law that was in force when the Repealing Act was passed because the acts and events, when they took place should be governed by the law then in force. It is submitted that the acts and events that have taken place and are saved under the Repealing Act of 1999 continue to be governed by the Repealed Act. Recourse is taken to the provisions of Section 6 of the General Clauses Act.

23. In answer to the charge of discrimination on alleged arbitrary classification of land owners on basis of possession and deprivation of possession, on behalf of the State, learned Addl. Advocate General submits that there can be a valid classification in respect of the acts, events and transactions which have taken place and those which are yet to take place in future. It is submitted that whenever a Repealing act or an Amending Act is passed there is bound to be some difference in treatment between the transactions which have already taken place and those which are to take place in future. The Repealing Act contains saving provision in respect of those lands which had been declared

"excess and which were deemed to have been vested in the Government and of which possession has been received by the Government under the Repealed Act"

. The classification is based on whether possession under the Repealed Act has been received by the Government or not. The object is that the lands which have been in possession of the Government are put to use as indicated in the Repealed act and as intended in the Repealing Act. Alternatively it is submitted that such excess vacant land vested in the state and taken possession of by the State is an accretion to its public property and is available for utilisation by the State for public purposes. Such lands of which possession has already taken deserve separate treatment and classification of the land owners on the basis of possession or no possession has reasonable nexus to the object of the Repealing Act, namely, to make available land in the urban areas to the poor and the needy. On behalf of the State, reliance is placed on (1) Chandragauda Ramgonda Patil and Another V. State of Maharashtra and others 1996(6) SCC 405 (2) Union of India and others v. M.V. Valliappan and others AIR 1999 SC 2526 (3) R.K. Garg V. Union of India and others AIR 1981(4) SCC 675 (4) Kandige Sham Bhat and Ors. Vs. The Agricultural Income Tax Officer AIR 1963 SC 591 (5) Udairam Shah and Ors. Vs. Union of India and Ors. AIR 1968 SC 1138 (6) Shashikant Laxman Kale and another Vs. Union of India AIR 1990 SC 2114 (7) M/s. Larsen and Toubro Ltd. etc. State of Gujarat and others. AIR 1998 SC 1608

24. The argument built on alleged discrimination under Article 14 between the land owners affected by the Repealing Act of 1999 seemingly appears attractive but on scrutiny of the scheme and provisions of the two enactments in depth is found to be without substance.

25. The doctrine of classification as part of fundamental right of equality under Article 14 requires consideration of two aspects, firstly, whether the classification of persons or things is reasonable and fair, and secondly, whether such classification has nexus or connection with the object and purpose of the enactment. The object and purpose of enactment may be ascertained from internal as well as external sources. The internal source is Preamble of the Act and the intention expressed of the Legislature in its various provisions. The external aid can be taken from the statement of Objects and Reasons for bringing the enactment into force. Learned counsel for the petitioners objected to taking aid of Guidelines or executive instructions issued by the Central Government, for construing or understanding the provisions of the two enactments. What is to be noted is that mention to the Guidelines of the Central Government is made in the resolution of the Legislature of Gujarat, which decided to adopt and enforce the Repealing Act of 1999 to the urban land in the State of Gujarat. We find no objection to taking external aid from Objects and Reasons of the Bill and the Act, as also the Guidelines issued by the Central Government immediately after the enforcement of the Repealing Act.

26. It is not seriously disputed that the land owners affected by two enactments can be classified on the basis of possession. One class is of those who still continued to be in possession of the alleged excess vacant land and the other is of those whose lands have been acquired and taken possession of. The latter class has two mini classes i.e., those from whom possession has been taken by the State and the use of the land had commenced and those from whom possession is taken but the use has not commenced. The only serious objection taken on behalf of the petitioner is that the classification or grouping of land owners in such categories based on possession or no possession or commencement of its use or no such commencement, has no reasonable nexus with the object and purpose of the Repealing Act. The main plank of the argument is that the purpose of Repealed Act of 1976 having completely failed, the land affected by that Act should receive equal treatment and the land should be returned to all the land owners. No discrimination can be made between the holders of lands from whom possession has been taken but their use has not commenced and those, under fortuitous circumstances still continue to be in possession of such lands although it is deemed to have been acquired and vested in the State.

27. On closer examination of the various provisions of the two enactments in the light of the `Objects and Reasons' and the `Guidelines' issued by the Central Government, we find that the entire edifice of argument built on charge of discrimination under Article 14 rests on a very slippery foundation. There appears to be a misconception and fallacy in the argument that the Repealed Act of 1976 has completely failed in achieving the objectives. The Objects and Reasons leading to the introduction of the Repealing Act of 1999 cannot be construed literally and unreasonably. We find that the statement made in the Objects and Reasons is that `public opinion is nearly unanimous that the Act has failed to achieve its objectives as expected'. The above language used in the Statement of Objects and Reasons only conveys that the Repealed Act has not been able to achieve its objectives to the extent expected. The language cannot be read to mean that the Repealed Act of 1976, so long as it was in operation, has utterly and completely failed. In the course of hearing, statistics and data was placed before us from Saklikar's book on The Urban Land (Ceiling and Regulation) Repeal Act, 1999 to show that while considering the Bill No. 56 of 1998, a Committee was appointed by the Parliament to consider the Bill. The Committee considered various aspects about the performance of the Act of 1976 and its shortcomings which were brought to their notice in the form of information collected from various records of various States which were made available by the Union of India. The information is submitted and made public by the Union of India in a tabular form. The information supplied and considered by the Committee in recommending repeal of 1976 Act does not show that the Act of 1976 had completely failed in achieving the objective of acquiring excess vacant land in urban agglomerations in various States for putting it to use for the needy and the homeless. The information considered by the Committee after introduction of the Bill is prepared in tabular form indicating the total extent of land in various States in India, in which the excess land is taken possession of, put to use and where its use has commenced or not commenced. The said information in Tabular Form does not show a very happy situation but none the less the information in the tabular form negatives the argument advanced on behalf of the petitioner, that the Act of 1976 has failed in toto and therefore the entire lands affected by the Act of 1976 which is not allotted and utilised should be returned to the land owners, whether such lands are in possession of the land owners or not. The entire process leading to the repeal of the Act of 1976 is based on information furnished by the Union of India. The relevant part be quoted hereunder showing the grand total of various categories of land taken possession of and utilisedea implementation of the Act of 1976. The relevant extract of that table is as under:-

----------------------------------------------------------------------------------

28. In order to ascertain the object and purpose of the Repealing Act of 1999, the information collected through the Committee constituted by the Parliament becomes relevant. What is worth noticing is that in the initial Bill introduced on 4th of June 1998 under Section 3 only such land acquired and taken possession of on which use had not commenced under the Principal Act alone was intended to be left unaffected by the Repealing Act. The Bill of 1998 and the Statement of Objects and Reasons dated 4-6-1998 attached to the same in its relevant parts read as under:-

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

(a) The vesting of any vacant land under sub-section (3) of section 10 with respect to which the competent authority has :-

(i) by notice in writing under sub-section (5) of that section ordered any person to surrender or deliver possession of such land to the State Government or to any person duly authorised by the State Government in this behalf, or

(ii) taken possession of such vacant land under sub-section (6) of that section, and the use of such land for the purposes of the principal Act has commenced; Provided that where such use for the purposes of the principal Act has not commenced, then the State Government shall restore such land to the person from whom it was taken over and the amount paid shall be liable to be refunded:"

(underlining for emphasis) STATEMENT OF OBJECTS AND REASONS "4. The proposed repeal, along with some other incentives and simplification of administrative procedures is expected to revive the stagnant housing industry and provide affordable living accommodation for those who are in a state of undeserved want and are entitled to public assistance. The repeal will not, however affect land on which building activity has already commenced. For that limited purpose, exemptions granted under Section 20 of the Act will continue to be operative. Amounts paid out by the State Government will become refundable.

5. The Bill seeks to achieve the above purpose.

New Delhi The 4th June, 1998"

29. The original proposal in the Bill as stated in the objectives and reasons dated 4-6-1998, quoted above were not adhered to after receipt of the report of the Committee containing the necessary information with regard to the availability of land in urban areas in various States in India. In the Statement of Objects and Reasons dated 17-2-1999 (quoted in para 9) which ultimately led to the promulgation of the Ordinance No. 5 of 1999 and subsequently to the passing of the impugned Repealing Act of 1999 to include for non operation of the Repealed Act lands vested and taken possession of irrespective of the fact whether use in relation thereto after vesting, has commenced or not.

30. The Statement of Objects and Reasons dated 17-2-1999 in paragraph 3 in its relevant part reads as under:

"The Committee felt that the land which is yet to be put to use for the original purpose stated in the Act, under possession of the Government should not be restored to previous owners as such restoration may lead to avoidable discrimination."

The above reading of the Statement of Objects and Reasons dated 4-6-1998 accompanying the Bill of 1998 and the provisions proposed therein in clause (3) of the Statement of Objects and Reasons dated 4-2-1999 which were prepared after the report and information supplied by the Standing Committee, clearly goes to show that the Legislature intended to retain all the lands vested and of which possession is taken irrespective of fact whether their use in the hands of State had commenced or not. The intention expressed in the Statement of Objects and Reasons by use of the expression such classification was made `to avoid discrimination' has been severally criticised by the learned counsel for the petitioners. It is argued that to avoid discrimination between land owners whose lands are taken possession of and use has commenced, and those whose lands are taken possession of but use has not commenced, a further classification of land owners whose lands are taken possession of and others who still continue in possession, cannot be justified.

31. We find no substance in the said argument. It may be that as the Statement of Objects and Reasons read, the Legislature attempted to avoid discrimination between land owners from whom possession of the land is taken and its use commenced and those deprived of possession but use of the State in them has not commenced. We further find that in the Statement of Objects and Reasons for Repealing Act of 1999, the purpose of enactment is clearly spelt out, namely, `to prevent concentration of urban land in a few hands and to provide affordable housing to the economically weaker sections'. The relevant part of the Guidelines also read that the Act of 1976 was proposed to be repealed as the Committee felt that `the people belonging to economically and socially weaker sections/low income group categories should not be left at the mercy of the market forces, for the supply of shelter for them'. The Guidelines indicate that the recommendations of the Committee were that `vacant land tax' should be imposed on the land so that concentration of land wealth and trading in the same should not deprive the needy and the homeless from getting the land for shelter. The Guidelines also provide that the State should built up land bank (1) by earmarking Government land already available, and (2) by acquiring land which may not be very expensive at present. The land bank is directed to be used to allot land at cost price to builders or any other agencies such as State Housing Boards, State Development authorities, Cooperative Societies and such N.G.Os. which the State Government feel will help in achieving the social objective of building houses for economically weaker sections and low income groups'.

32. The Guidelines issued subsequently by the Central Government, which are recommendatory in nature, to the State Governments to propose to apply the Act of 1999 to urban land in their respective States, may be inadmissible for the purpose of interpreting the provisions of the Act. Such Guidelines undoubtedly represent the views of the persons charged with the Administration of the Act. They possess the special knowledge of its provisions. The argument that no reliance can be placed on such subsequently issued Guidelines, therefore, cannot be accepted, as such Guidelines can certainly be taken aid of as explanatory to or an elaboration of the Objects and Reasons which impelled the Parliament to pass the impugned Legislation for repealing the Act of 1976.

33. From the Objects and Reasons as also the Guidelines and the background in which the initial provisions proposed in the Bill were not adhered to and changed, it is undoubtedly made clear to all that the lands already taken possession of and available with the State as a result of operation of the Act of 1976 were required to be reserved for use for providing shelter to economically and socially weak sections of the society and those in the low income group category. There is therefore no merit in the contention advanced on behalf of the petitioners that the classification of the land owners from whom possession of their lands is taken and those who continue to be in possession of the lands, has no nexus with the object and purpose of the Repealing Act. As has been pointed above the object and purpose of repeal of Act of 1976 was to remove the constraints and lift the clog, which appeared to have been put by operation of 1976 Act and make accessible and available vacant land in urban areas in the States to the needy and the homeless. To fulfil that object and purpose, the initial proposal only to leave unaffected such vacant land in possession of the State of which use has commenced, was revised. On the recommendations of the Committee and the factual information supplied even such vacant lands taken possession of in which use of the State has not commenced, was kept unaffected by the Repealing Act so as to ensure that the lands are made available to the poor and needy.

34. The second limb of the argument advanced on behalf of the petitioners is that by provisions of Section 2 of Repealing Act of 1999, the Act of 1976 having been totally repealed, the alleged excess vacant land taken possession of from the land owners and in which use has not commenced cannot be retained by the State for its being put to use in accordance with the provisions of the repealed act of 1976 which after repeal does not remain on the statute book and cannot be brought into operation in future. Such argument does not hold any water if the language of Section 3(1)(a) of the Repealing Act of 1999 is reasonably construed with the aid of Section 6 of the General Clauses Act. The impugned Section 3(1) opens with the sentence

"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 authorised by the State Government in this behalf or by the competent authority"

.

35. The use of the expression `the repeal of the principal Act shall not affect' clearly conveys the intention of the Legislature that to the extent of vacant land taken possession of by the State Government under the Repealed act, the repealing act would have no application and therefore with the aid of Section 6 of the General Clauses Act, such available land in possession of the State can be put to use in accordance with the provisions contained in the Repealed Act of 1976. Section 6 of the General Clauses Act in its relevant part reads as under:

"Effect of repeal - Where this Act, or any, Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -

(a) x x x x x

(b) x x x x x

(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) x x x x x

(e) x x x x x and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, liability or punishment may be imposed as if the repealing Act or Regulation had not been passed."

36. It is very clear from the provisions of 1976 act that the land taken possession of by the State is to be retained by the State for its utilisation for different purposes as directed in Section 23 of the Act of 1976, In relation to such land, the State, on its acquisition and taking possession, had incurred a liability or obligation of disposal under Section 23 of the Act. The Repealing Act, by use of language in Section 3(1) that the principal Act shall not affect such land vested and taken possession of, with the aid of Section 6 of the General Clauses Act, clearly intends that such vested lands in possession of State has to be used for the purposes mentioned in Section 23 of the 1976 Act. Under subsection (4) and (5) of Section 23 of 1976, the land so acquired, vested and possessed by the State is required to be used for public purpose and common good. As per the Guidelines it is to be retained in the `Land Bank' for utilisation for poor and homeless. Section 23(4) and (5) read as under:-

"23(4) Subject to the provisions of sub-sections (1), (2) and (3), all vacant lands deemed to have been acquired by the State Government under this Act shall be disposed of by the State Government to subserve the common good on such terms and conditions as the State Government may deem fit to impose.

(4)Notwithstanding anything contained in sub-sections (1) to (4), where the State Government is satisfied that it is necessary to retain or reserve any vacant land, deemed to have been acquired by that Government under this Act, for the benefit of the public, it shall be competent for the State Government to retain or reserve such land for the same."

37. The alternative submission made on behalf of the State that the land acquired and taken possession of by the State would be an accretion to the public property to be used by the State like any other property with it for public good also appears acceptable.

38. We also consider it necessary to observe that it would have been possible for the Legislature to have adopted any other alternative mode of classification, to retain the land vested, possessed of, allotted and already put to use and to release after repeal to the land owners the lands deemed to be acquired and vested but of which possession is or is not taken from the land owners. That such a classification would have been more wise and just would not be a ground to hold the present provision to be discriminatory. If the classification inter se between the land vested and taken possession of and vested but not taken possession of, is found to be reasonable and not unfair, having nexus with the main purpose and object of the Repealing Act, the wisdom of Legislature cannot be questioned as to why it released free and returned to the land owners the lands deemed to be acquired and vested but of which possession was not taken. Such vested lands which continue to be in possession of land owners is considered to be kept unhindered and free for being dealt with or disposed of in the hands of land owners themselves, as constraints on its disposal and use put by the principal Act had been found to be not conducive to making accessible the lands to the needy and homeless. The free market in land-dealings to that extent seems to have been found desirable for making vacant land available in cities for housing of the needy and the poor. The other option to the Legislature of treating similarly all lands vested in it whether in its possession or not, cannot be urged as a ground to contend that its dissimilar treatment to vested land based on possession or no possession with the land owners is unreasonable, unfair and irrational. We have already found above that the provisions of the two enactments, when compared in the light of Objects and Reasons and the subsequent Guidelines issued, clearly show that classification of vested lands based on possession or no possession has nexus with the object and purpose of the Repealing Act to lift the clog or constraints on the availability of excess land in urban areas for the needy and the poor.

39. The argument therefore advanced on behalf of the petitioners cannot be accepted that the land vested, acquired and taken possession of from the land owners under 1976 Act, after repeal of that Act, cannot be put to use in accordance with section 23 of the former act. By virtue of provisions in Section 3(1) of the Repealing Act, 1999 r.w. Section 6 of the General Clauses Act, such use or disposal of said vacant land acquired and possessed by the State is permissible in law. The classification of vested lands and the land owners into two categories, i.e., those from whom possession is taken and others from whom possession is not taken is reasonable. It has nexus with the object and purpose of the Repealing Act of 1999. The purpose is very clearly spelled out from its provisions, the Statement of Objects and Reasons and the Guidelines issued subsequently. The charge of discrimination based on Article 14 levelled by the petitioners therefore has to be negatived.

CHALLENGE TO THE VALIDITY OF THE PROVISIONS UNDER SECTION 4 OF THE REPEALING ACT OF 1999

40. The impugned part of Section 4 reads :-

"4. 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."

41. The attention of this Court is invited to decision of learned Single Judge of this Court (Justice Y.B. Bhatt) in the case of Maganlal Patel Vs. The Competent Authority and Anr. 40(3) 1999(3) GLR 2105. In the decision (supra) the learned Single Judge has tried to construe the provisions of Section 4 of the Repealing Act to ascertain its legal effect on the pending proceedings under the Repealed Act before any Court, Tribunal or other Authority. In repelling the contention advanced that the proceedings under Article 226 pending before the constitutional court, i.e. High Court, cannot be held to have been abated under ordinary law by provision like Section 14 contained therein - the learned Single Judge observed as under:-

"In the context of the aforesaid submission, I am of the opinion that it makes no difference whether the jurisdiction of this Court is derived from the statute or is derived from a specific provision of the Constitution. The fact remains that even while exercising jurisdiction under Art. 226 of the Constitution of India, this Court can exercise whatever jurisdiction it has under this Article, while remaining bound by the parameters of the statute. In other words, even the High Court's jurisdiction under Article 226 of the Constitution of India, whether we call it a constitutional jurisdiction or a discretionary jurisdiction or a writ jurisdiction, is not beyond the statute. Thus, if Sec. 4 creates the mandate in respect of abatement of all pending proceedings, I am of the opinion that such mandate would apply even to the High Court exercising its writ jurisdiction under Art. 226. Even otherwise, the phrase "before any Court, tribunal, or other authority" is sufficiently wide to indicate the intention of Parliament so as to cover all pending proceedings, irrespective of the forum where they were pending and irrespective of the nature of jurisdiction which that forum would be exercising"

42. Learned counsel appearing for the petitioners question the correctness of the view taken by the learned Single Judge in so far as it holds that there would be absolutely no judicial scrutiny of the actions taken by the authorities, tribunals or courts in proceedings pending before it under the Repealed Act at the time of passing of the Repealing Act.

43. We have given our thoughtful consideration to the points urged and carefully examined the ratio of the decision of the learned Single Judge in the case of Maganlal Patel (supra). On a bare reading of the provision and particularly the language used in opening part of Section 4 "all proceedings relating to any order made or purported to be made ...... shall abate" only means that such proceedings pending before any court, tribunal or authority shall not be continued and would come to an end. The language used aforesaid can never mean that the power of the court, tribunal or authority to examine whether the order passed or purported to have been passed under the principal Act, while it was in operation, was valid or not, has been taken away. Any other interpretation on the language of Section 4 would be unconstitutional, because the Legislature by no provision can completely take away the power of judicial review. The learned Single Judge, in the portion of his judgment quoted above, has taken a view that as an effect of Section 4 of the Act of 1999, even writ proceedings before the High Court would abate. We find no ground to take a contrary view and overrule his judgment on the interpretation of Section 4 but we consider it necessary to add a rider or explanation so as to construe the provision in a manner to make it constitutionally valid. In the impugned provision of section 4, the word "abate" if construed harmoniously in the light of the constitutional provisions, would mean that the proceedings under the Repealed Act would not be continued on the repeal because as a result of repeal of the principal Act, the proceedings thereunder are rendered infructuous. In our considered opinion, provisions of section 4 cannot be read and construed to infer that the effect of abatement would be that even validity of actions taken under the Repealed Act and examination of its provisions for the purpose of ascertaining whether any rights and liabilities thereunder are saved, would be outside the scrutiny of courts, tribunals or authorities. The inference of such effect of Section 4, as to take away completely power of judicial scrutiny, would be a clear negation of the legal and constitutional powers of the courts, tribunals and authorities under the two enactments. Such interpretation would militate against the theory of basic structure of the Constitution as propounded by the Constitution Bench of the Supreme Court in the case of his His Holiness Kesavananda Bharati Sripadagalvaru and others V. State of Kerala AIR 1973 SC 1461 which is followed and reiterated by recognising the power of superintendence of the High Court under Article 227 of the Constitution over Administrative Tribunals in case of L. Chandra Kumar Vs. Union of India and others AIR 19987 SC 1125. In the case of Chandra Kumar, the Supreme Court has reiterated that the power of judicial review under Article 226 of the High Court and Article 32 of the Supreme Court is an integral and essential feature of the Constitution, constituting part of its basic structure. The independence of judiciary is also a basic part of the Constitution. The provisions of section 4 having an effect of abatement of pending proceedings in relation to an `order made or purported to be made' under the Repealed Act, cannot be construed to completely take away the power of the courts, tribunals and authorities as judicial and quasi-judicial bodies to examine the validity of the order or action taken under the Repealed Act and to find out the impact of repealing Act on the rights and liabilities of the land owners and the State. An example will make the legal position clear. Under Repealed Act, suppose an agricultural land which is not covered by the definition of `urban land' under Section 2(o) of the Repealed Act of 1976 is clubbed with other urban land of an owner and declared excess to be deemed to have been acquired and vested in the State. Thereafter it is taken possession of. It would be saved and retained by the State as an effect of Section 3(1)(a) of the Repealing Act of 1999. Construction as sought to be put on Section 4 would result in abatement of case of such owner pending before any authority, court or tribunal and would deprive the land owner from contending that he did not hold any excess urban land, such land was not governed by the Repealed Act of 1976, and was wrongly treated to have been acquired and vested in the State and its possession was wrongly taken from him by force and coercive methods. Such unjust result cannot be intended to have been provided in Section 4 of the Act of 1999.

44. The provisions of section 4 providing for abatement of all proceedings under the Repealed Act, can only mean that on repeal of the principal Act, all proceedings under it, to the extent they are not saved and left unaffected by the Repealing Act, would not be proceeded with as having been rendered infructuous. All such pending proceedings in which previous operation of the Repealed Act is challenged can never be deemed to have been abated, as the pending cases would require some adjudication and decision on the question of legal effect of the abatement provided in Section 4 of the Act. "Purport" is a well known word in legal usage and has many shades of meaning to be ascertained in the context of the provisions under construction. In the present context, it cannot be construed to mean that proceedings found to be de hors the Repealed Act, or beyond jurisdiction of the concerned authorities, who had undertaken it, although prima facie invalid, would be beyond the scope of judicial scrutiny. The use of word "purport" in Section 4 is to be read down in the manner not to render it unconstitutional. The Legislature can never be presumed to have intended that even an order passed de hors the Act or beyond jurisdiction of the authorities under the Repealed Act would be outside judicial scrutiny. Every law is presumed to be prospective in operation unless a contrary intention is expressed in that law. By repeal of principal Act, its previous operation cannot be held to be beyond judicial scrutiny where such previous orders and proceedings are found to have adversely and prejudicially affected the parties. The right of land owners to challenge the validity of such proceedings cannot be intended to have been taken away by providing abatement of such proceedings. As observed by us above, "the basic structure" theory of the Constitution in Kesavananda Bharati's case (supra) and reiterated in L. Chandra Kumar's case (supra) does not countenance such an unconstitutional and unjust situation. An interpretation of the provisions, therefore, that such law does not deprive the power of independent judiciary has to be preferred.

45. The judgment of the learned Single Judge in the case of Maganlal Patel (supra) does not appear to us to have laid down anything contrary to the constitutional scheme. As held by the learned Single Judge, the word `proceedings' as used in Section 4 of 1999 Act may include writ proceedings in the High Court and the law can be made to render them infructuous but the power of the constitutional court of judicial scrutiny cannot be held to have been taken away by such Legislation. The constitutional power of High Court or Supreme Court to decide whether, on the facts and legal position in a given case, the proceedings before it would abate or not, can never be taken away by ordinary law. We also do not find any such intention of the Legislature in enacting Section 4 in the Act of 1999. Judicial scrutiny of actions taken and order passed under Repealed or Repealing Act would always be permissible and the court, tribunals and authorities can decide whether on the facts and law in a given case, the proceedings before it had abated or been rendered infructuous or not. To the above extent, the provision under Section 4 have to be read down. The judgment of the learned Single Judge (supra) has to be understood and the provisions construed in a reasonable manner accordingly.

46. As a result of the discussion aforesaid of various grounds urged before us, our conclusions are --

(1) Section 3(1)(a) of the Repealing Act of 1999 is a constitutionally valid piece of legislation and the challenge made to it by the petitioner fails.

(2) The provisions in Sections 4 of the Repealing Act of 1999 are also valid. Construed reasonably, as discussed above, they mean that the question whether, on the facts and law, in a given case, the pending proceedings before a court, tribunal or authority under the two enactments, would abate or not, is a question open to judicial scrutiny.

47. In the end we record our appreciation for the illuminating arguments advanced by the Senior Counsel on both sides to assist the court in coming to the above conclusions, which appear to us to be just and fair.

48. The questions of vires of constitutional validity of the provisions of the Act of 1999 having been answered thus, the cases may now be placed before appropriate Single Bench/Benches for their disposal on merits in the light of our judgment and observations made herein.

The costs in these cases shall abide the final result of each case.