Is repealed the urban land (c & r) act, 1976 have retrospective effect under the general clauses ac
Sadanand B. Panchal
(Querist) 11 October 2013
This query is : Resolved
Respected Experts,
Section 19 of the Urban Land (C & R) Act, 1976 relates for the Chapter III of the Act not to apply for certain entities like Public Trusts, Banks, Co-operative Housing Societies.
Section 20 of the Urban Land (C & R) Act, 1976 relates for Power of the Government to exempt the vacant land from provisions of the Urban Land (C & R) Act, 1976.
In my area where I am residing, the Government without applying Section 20 granted exemption order directly under Section 19(1) (v) and declared that the Co-operative Housing Society was became the absolute owner holder of the land. No Scheme formulated. Developer supressed existence of other holders.While passing the order the Competent Authority overlooked existence of other holders other than the Co-operative Housing Society and exempted whole area of land from the said Act with the effect the Society is developing property by utilizing the quantum of TDR of whole land. The other holders excluded from the said development.
Kindly advice me whether Exemption order passed under Section 19(1) (v) of the Act by the Additional Collector, C.A. without passing order under Section 20 of the Act was wrong?
If it was wrong, can the said order (under Section 19 (1) (v)) be challenged under the provisions of present Repealed Urban Land (C & R)Act, 1976?
Regards,
Sadanand Panchal
Dr V. Nageswara Rao
(Expert) 12 October 2013
1. In my opinion, S. 19 and S.20 operate in different domains.
2. If a land comes under the exemption clause (1) (v) of S. 19, it is exempt and it applies only to the charitable institution and not to others, as stated by Cl.2.
3. The repealing Act says in S. 4 that all proceedings under the old act abate.
Dr V. Nageswara Rao
(Expert) 12 October 2013
1. In my opinion, S. 19 and S.20 operate in different domains.
2. If a land comes under the exemption clause (1) (v) of S. 19, it is exempt and it applies only to the charitable institution and not to others, as stated by Cl.2.
3. The repealing Act says in S. 4 that all proceedings under the old act abate.
prabhakar singh
(Expert) 12 October 2013
Section 19 lays exemptions of operation of the Act and it's clause(v)encampasses a registered cooperating housing society but section 20 of the Act opens with a clause to read "Notwithstanding anything contained in any of the foregoing provisions of this Chapter ",hence unless an exemption order is passed under section 20,exemption u/s 19(1)(v)would not come in force simply it is so laid.
But in my opinion order posing threat before you would be construed to have been passed under section 20.
Since the Act is repealed now as per your statement in your area, nothing was pending before any court or state or tribunal or any other authority to get abated under section 4 of the repealing Act.
Acts and proceedings already finalized under the Act can not be construed to have been illegally done as you wish by stretching General clauses provisions too much.
But the silverline you have for your problem is that YOU WERE NOT A PARTY to proceedings of exemption,the very order passed is NOT BINDING ON YOU and you can always challenge it,when you come to know about it,but limitation provisions would apply.
vijay poonia
(Expert) 12 October 2013
if any proceeding initiated under an Act after its repeal, the same is not sustainable. you may consider the option to file a writ petition before the high court if do not want to be under the peril of limitation. even otherwise the limitation clause does not apply to the orders which are dehorse the law and are void ab initio.
Sadanand B. Panchal
(Querist) 12 October 2013
Thanks for your advice Mr. Prabhakar Singh,
I appreciated your say. One more point which I always could not understand. I read from various Judgments of Hon’ble Courts – “All the provisions of the (repealed) Act would, under Section 6 continue in force for the purpose of enforcing the liability incurred when the Act was in force and any investigation, legal proceeding or remedy may instituted continued or enforced as if the Act has not expired. At common law, the normal effect of repealing a statute is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6, and there may also be special savings in special Acts dealing with the effect of repeal. Therefore the effect of repeal is qualified by two words "unless a different intention appears", in Section 6 of the General Clauses Act,1897”
In my matter the The Additional Collector, C.A. deliberately resorted Section 19(1) (v) to grant exemption for the Housing CHS without passing order under Section 20 or 21 of the Urban Land (C & R)Act, 1976 where the Indian Government had already passed guidelines for granting exemption under the Act for the Co-operative Housing Societies ‘which’ registered prior to Commencement of the ULC Act as follows:
In pursuance of the directions of the Government of India, the State Government re-examined the whole matter and issued G.O. Ms. No. 4270 Revenue (UC II) Department dt. 10-9-1980 amending G.O. Ms. No. 186 dt 2-3-1977 and issued revised guidelines for the grant of xemption under S.20 (1) of the Act.
Under the said G.O. Government laid down the following revised guidelines:
Exemption to the surplus land holders may be considered in cases where they propose to transfer the excess lands to the registered housing co-operative societies or the Group Housing Cooperative Societies for the purpose of constructing dwelling units subject to the following conditions:
1. The holder of the land should not receive directly or indirectly by way of consideration for the transfer of such land to the Housing Society an amount exceeding the amount that he would be entitled to receive as the price of such land under para 4(2) of Sch. 1-A of Urban land (Ceiling and Regulation) Rules 1976, if a transfer of the land takes place in pursuance of a scheme under S.21 of the Act (which at present is either ten times the net average annual income actually derived from the land for the period of five consecutive years referred to in Cl. (a) sub-sec. (1) of S.11 or five times the amount admissible under Cl. (b) of sub-sec. (1) of S.11 whichever is higher; and the holder of the land shall not claim or receive any sum in addition to or in excess of such price, provided however, that the stamp duty and registration fees payable in respect of the deed of transfer shall be paid by the transferee.
2. The housing society have been in existence and registered under the law relating to the registration of such societies before the commencement of the Act, namely 17th Feb. 1976.
3. No member of the housing society or the wife or husband as the case may be or minor unmarried children of such member should own any other vacant land or dwelling unit in the same urban agglomeration or in any other urban agglomeration to which the Act applies
4. The area of the land sold to the housing society should not if equally divided among the members of the society exceed 300 square metres per each member.
5. The housing society and its members should undertake to complete the construction of the
dwelling units in accordance with the building regulations and the master plan if any in force in the area wherein the land is situated within a period not exceeding three years.
6. Where the vacant land is transferred to the housing society along with any building or land with building the price charged in respect of such building or built up property should not exceed the price the seller would have obtained under the prevailing market price in the area, for similar building or land.
7. The housing society should not transfer the land to any other person including another housing society, but the housing society may transfer the share of each member of that society in such land, such share not exceeding 300 square metres, to such member. The member of the housing society to whom any land and/or dwelling unit has been transferred by such housing society, shall not transfer such land and/or dwelling unit or the dwelling unit constructed by such member on such land to any other person, including another housing society for a period of ten years. The housing society or such member may however mortgage such land or dwelling unit to a financial institution for obtaining a loan from it for constructing dwelling unit/units or such land.
8. The land holder and an authorised agent of the housing society concerned should file affidavit before the State Government and the concerned competent authority to the effect that they fulfil and will comply with the conditions herein specified. If at any time the State Government is satisfied that the exemption has been obtained by misrepresentation or fraud or that any of the conditions subject to which the exemption is granted is not complied with by any person it shall be competent for the State Government to withdraw the exemption and thereupon the provisions of Chap. III will apply in relation to such land as if such land was vacant land notwithstanding that any dwelling units or other structures have been constructed on such land.
9. The provisions of Ss. 26 and 27 of the Act should be complied with wherever necessary.
(These guidelines are reflected in Judgement of Hon’ble Andhra High Court in Katya Co-Operative Building ... vs Government Of Andhra Pradesh And ... on 18 September, 1984)
If after reading the above guidelines, while passing of order under Section 19(1) (v) of the ULC Act is violation of Section 20(1) of the Act and I think that there is ‘different intention appears by the Additional Collector, C.A. to pass exemption under Section 19 (1) (v).
Can General clauses Act Section 6 be applied for retrospective effect of Repealed ULC Act?
Kindly Explain me.
Regards,
Sadanand Panchal
Dr V. Nageswara Rao
(Expert) 12 October 2013
1. S. 20 applies to land not covered by S. 19.
2. That is, even if there is land that is NOT exempt under S. 19, still, an exemption order can be passed under S. 20 if any of the conditions are satisfied under S. 20.
3. Exemptions under S. 19 are mandatory and exemptions under S. 20 are purely discretionary. "Not withstanding clause" (non obstante clause) in S. 20 only means that even if the land is not exempt under S. 19.
4. That was why the Govt did not expressly mention S. 20 as cases coming under S. 19 do not come under S. 20. S. 19 provides ADDITIONAL CATEGORIES OF EXEMPTION.
5. Where the Govt passes an order under S. 20 in cases not covered by S. 19, the Govt may prescribe the conditions that must be fulfilled.
6. The repealing statute is very clear and repeals the earlier statute and obliterates it from the statute book and the proceedings under the 1976 just abate.
6. There is no way by which the repealed statute can rule from its grave.
prabhakar singh
(Expert) 13 October 2013
The meaning of a non obstante clause is so simple but yet complex and always opens a great deal of arguments in courts and can never be settled as it changes context with various references it may have otherwise it means:ignoring,in opposition to, or in spite of, what has been stated, or is to be stated or admitted.
As history,it's origin is traced in old English statutes and letters patent, importing a license from the crown to do a thing notwithstanding any statute to the contrary. This dispensing power was abolished by the Bill of Rights.
As regards to section 6 of general Clauses
that is crystal clear and too simple to understand.The repealing Act can not undone
things already and finally done under the Act
when that was in force unless the Repealing Act especially proposes and provides for.
A judgement at http://indiankanoon.org/doc/1481885/
may be gone through to see how much complexity this simple clause may some time attain with various references we attach it.
Sadanand B. Panchal
(Querist) 13 October 2013
Respected Experts,
1) The Competent Authority had no jurisdiction to exempt vacant land for “the Co-operative Societies registered prior to commencement of the ULC Act” other than any Section except under Section 20(1) specially as per guidelines imposed by the Indian Government under G.O.
2) My query relates to a question whether the Competent Authority had a Power to exempt vacant land U/s.19(1) (v) directly without imposing conditions to provide such dwelling units for the weaker sections of the society. I made a diligent search to find out if there was any case where the Competent Authority had passed any order under Section 19(1)(v) to grant exemption directly to transfer the vacant land to the society, I could not found and I confirmed that such order cannot be in existence as the Section 19(1) is a section showing which entities can be exempted under the Act under section 20 (1) of the Act.
Section 20: Power to exempt :- (1) Notwithstanding anything contained in any of the foregoing provisions of this Chapter:-
(a)….
(b)….
clearly interprets that excluding foregoing provisions and including Section 3 to 19(1) of the Chapter III of the Act. No Power is conferred to the Competent Authority to grant exemption wrongly supposing that the Section 19(1) is equivalent to Section 20(1) of the Act.
My case is rare case where the exemption was granted by fraudulently passing order without specifying 20(1) of the Act to exempt entity approved U/s.19 (1)(v).
There is no provision in the present Repeal ULC Act to save such fraudulent order of exemption which passed without specifying Section 20(1) of the Act. Kindly explain me How to get withdrawn such order?
Regards,
Sadanand Panchal
Sadanand B. Panchal
(Querist) 13 October 2013
Respected Experts,
1) The Competent Authority had no jurisdiction to exempt vacant land for “the Co-operative Societies registered prior to commencement of the ULC Act” other than any Section except under Section 20(1) specially as per guidelines imposed by the Indian Government under G.O.
2) My query relates to a question whether the Competent Authority had a Power to exempt vacant land U/s.19(1) (v) directly without imposing conditions to provide such dwelling units for the weaker sections of the society. I made a diligent search to find out if there was any case where the Competent Authority had passed any order under Section 19(1)(v) to grant exemption directly to transfer the vacant land to the society, I could not found and I confirmed that such order cannot be in existence as the Section 19(1) is a section showing which entities can be exempted under the Act under section 20 (1) of the Act.
Section 20: Power to exempt :- (1) Notwithstanding anything contained in any of the foregoing provisions of this Chapter:-
(a)….
(b)….
clearly interprets that excluding foregoing provisions and including Section 3 to 19(1) of the Chapter III of the Act. No Power is conferred to the Competent Authority to grant exemption wrongly supposing that the Section 19(1) is equivalent to Section 20(1) of the Act.
My case is rare case where the exemption was granted by fraudulently passing order without specifying 20(1) of the Act to exempt entity approved U/s.19 (1)(v).
There is no provision in the present Repeal ULC Act to save such fraudulent order of exemption which passed without specifying Section 20(1) of the Act. Kindly explain me How to get withdrawn such order?
Regards,
Sadanand Panchal
Dr V. Nageswara Rao
(Expert) 13 October 2013
1. Unless the Repealing statute expressly says so, normally matters settled / finalized before coming into force of the new Act will not be undone. So also in the present case. In that sense the repealing act is not retrospective.
2. But matters pending under the repealed act will abate after the repealing act has come into force. As the whole concept of land ceiling has been done away with, there is no question bringing pending proceedings under the new act.
3. As to your point No. 2, it is no surprise that you did not find any precedent for your proposition of imposing conditions. S. 19 is an independent source of power. Such conditions can be imposed under S. 20 and not at all under S 19.
4.We need not drag S. 6 of the General Clauses Act as the LCA 1976 is very clear. Power to exempt u/S. 20 is discretionary and can be subjected to conditions but not u/S.19.
Raj Kumar Makkad
(Expert) 13 October 2013
Very well advised by Ld. experts in detail so no more to add.
Sadanand B. Panchal
(Querist) 14 October 2013
Respected Experts,
Thanks to all.
Regards,
Sadanand Panchal
