Full Judgment Text
2009:BHC-OS:3963-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PIL WRIT PETITION NO. 59 OF 2007
1. P.B. Samant, )
Meghdoot, Opp. Railway Station, )
Goregaon East, Mumbai – 400 063. )
2. Mrinal Gore, )
3/25, Navjyoti CHS Ltd., )
Unnat Nagar II, Goregaon 400 063. )
3. Vasant Shirali, )
26/C, Kshipra CHS Ltd., )
Arya Chanakya Nagar, )
Akurli Cross Road o.1, )
Kadivali (E), Mumbai 400 101. )
4. Kamal Desai, )
Vasant, 1, J.P. Nagar, )
Goregaon East, Mumbai 400 063. ).. Petitioners
Vs
1. Union of India, )
C/o. Ministry of Urban Development,)
Nirman Bhavan, Moulana Azad )
Road, New Delhi – 110 011. )
2. The State of Maharashtra, )
Ministry of Urban Development, )
Mantralaya, Mumbai – 400 032. )
3. Jawaharlal Nehru National Urban )
Renewal Mission, )
C/o. Ministry of Urban Development,)
Nirman Bhavan, Maulaa Azad Road,)
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New Delhi – 110 011. )
4. The Municipal Corporation of )
Greater Mumbai, a body Corporate )
Constituted uder the provisions of )
The Bombay Municipal Corporation,)
Act, 1888 with its Head Quarters )
at Mahapalika Marg, )
Mumbai – 400 001. ).. Respondents
--
Shri S.H. Aney alog with Shri D.G. Bagwe for the Petitioners.
Shri N.P. Pandit, AGP for State.
--
CORAM : SWATANTER KUMAR, C.J. &
DR. D.Y. CHANDRACHUD, J
JUDGMENT RESERVED ON : 26TH FEBRUARY, 2009.
JUDGMENT PRONOUNCED ON : 17TH MARCH, 2009.
JUDGMENT : ( PER SWATANTER KUMAR, CJ )
1. The Petitioners who claim that they are social workers and
except Petitioner No.3, all other Petitioners have been Members of
Legislative Assembly of Maharashtra in the past. It is averred that
Respondent No.3 is a body set up by Respondent No.1 - Union of
India which had published a booklet/brochure in the name of
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“JAWAHARLAL NEHRU NATIONAL RENEWAL MISSION”. Being
interested in the welfare of the people of Maharashtra, the Petitioners
have filed this Petition. According to the Petitioners, the action of the
Respondents in adopting resolution of repealing the Urban Land
(Ceiling and Regulation ) Act, 1976 ( hereinafter referred to as the
“said Act”) is in violation of the constitutional rights vested in the
people of Maharashtra, more particularly as enumerated in Articles
14, 19(1) (g), 21, 3 and 39 of the Constitution of India and
Respondent Nos.1 to 4 are failing to perform their public duties. The
State Government, in the Assembly agreed to repeal the said Act with
respect to Greater Mumbai Pune and Thane within 1 and ½ years and
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signed a Memorandum dated 7 October, 2006 under the scheme of
“Jawaharlal Nehru National Urban Renewal Mission” (JNNURM).
The resolution adopting repealment is primarily without legislative
intent and without serving public purpose and is adopted only on the
consideration that the installments agreed under the memorandum
would be released by the Central Government in favour of State. The
Resolution besides being unobjective also suffers from infirmities that
the State Legislature had to pass the resolution in compliance with
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the provisions of the said Act and the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 which has not been passed in
accordance with law and the rules of business of the Assembly and is
stated to be a mere automatic consequences of a tripartite
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memorandum of agreement dated 7 October, 2006 wherein the
State had given a solemn assurance that it would repeal the Act of
1976 before December, 2007. The challenge of the Petitioners to the
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resolution of the State Government dated 16 April, 2007 is founded
on the ground that the Central Government has power to give
directions to the State Government as it may have power necessarily
for carrying out the purpose of the Act or the rules framed thereunder
but it cannot direct the State Government to repeal an enactment
merely because the Central Government can offer to and make a
condition for giving monies upon compliance of such understanding.
It is also averred by the Petitioners that nearly 1221 acres of vacant
land was acquired in the year 2006.
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2. The Petitioners had also filed a Writ Petition earlier being
Writ Petition No.4 of 2006 wherein the Petitioners prayed for the
following reliefs:-
“(a) this Hon'ble Court be pleased to issue a Writ of
Mandamus, or any other Writ, Order or Direction in
st nd
the nature of Mandamus, directing the 1 and 2
Respondents to place before this Hon'ble Court a
list of land holders holding vacant lands of 10 acres
and above in Greater Mumbai and disclose the
steps taken under the said Urban Land (Ceiling and
Regulation) Act, 1976 in respect thereof;
(b) this Hon'ble Court be pleased to issue a Writ of
Mandamus or any other Writ, Order or Direction in
the nature of Mandamus, directing the Respondent
Nos.1 ad 2 to forthwith implement and invoke the
provisions of the Urban Land ( Ceiling and
Regulation) Act, 1976 and acquire the excess
vacant land which is available in Greater Mumbai,
including excess vacant land set out in EXHIBIT “F”
hereto, and utilise the same as best to subserve
the common good;
(c ) that pending the hearing and final disposal of this
Petition, this Hon'ble Court be pleased to direct the
st nd
1 and 2 Respondents to forthwith initiate
acquisition proceedings under the said Urban Land
(Ceiling and Regulation ) Act, 1976 in respect of
the excess vacant lands mentioned in EXHIBIT “F”
hereto;
(d) that pending the hearing and final disposal of this
Petition, this Hon'ble Court be pleased to pass an
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order and injunction restraining the Respondent
No.1 from taking any executive decision to place a
resolution before both the House of the State
Legislative to adopt the said Urban Land (Ceiling
and Regulation ) Repeal Act, 1999;
(e) ad-interim relief in terms of prayer © and (d)
hereinabove;
(f) for costs and
(g) for such other and further reliefs as the nature and
circumstances of the case may require;
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3. In the said Writ Petition, an order dated 17 August, 2006
was passed, which reads as under:-
“1. We heard Senior Counsel and
counsel for the parties and also perused
the affidavit of Mr. Tarunkumar Dhanraj
Khatri, Deputy Collector and Competent
Authority (ULC), Greater Mumbai.
2. Insofar as prayer (a) of the Writ Petition is
concerned, we are of the view that exh.3
discloses the names of land holders
holding vacant lands of 10 acres and above
i Greater Mumbai. As per the said list,
there are 338 declarants holding vacant
lads in excess of 10 acres.
3. To our query to th Government pleader as
to the present status of proceedings under
the Urban Land (Ceiling and Regulation)
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Act ( for short the “Act of 1976”), in respect
of the said land holders, the Government
Pleader submitted that before 31.12.2007,
the Competent Authority shall be able to
pass orders under section 8(4) of the Act of
1976, pursuant to the statements filed
under section 6(1). He also submitted that
as on date, acquisition of 1009.75 acres
(403.90 hectares) of declared surplus
vacant land is under process under section
10 of the Act of 1976 and that the said
process shall be completed within six
months from today.
4. In the light of these submissions of the
Government Pleader, for the present, we
pass the following order:-
O R D E R
(i) The Competent Authority (ULC),
Greater Mumbai, shall proceed with
the statements filed under section 6
(1) of the Act of 1976 expeditiously
and pass order under section 8(4) as
early as possible and in no case
later than 31.12.2007.
(ii) The Competent Authority (ULC),
Greater Mumbai, is also directed to
act quickly for acquisition of 1009.75
acres (403.90 hectares) declared as
surplus vacant land and complete
the process within six months from
today as the land has already vested
in the State Government, by virtue of
section 10(3) of the Act of 1976.
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5. Needless to say that our order shall not
impede any legislative process of the Act of
1976.
6. For further directions, as adjourn the matter
to 14.2.2007.”
4. To the present petition, the Petitioners also sought leave to
amend the petition. Earlier it was suggested in the budget speech of
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the Finance Minister on 28 February, 2005 which reads as under:-
“The demographic trends in the country indicate a
rapid increase in urbanization. India needs urban
facilities of satisfactory standards to cope with the
challenge. If our cities are not renewed, they will
die. The National Urban Renewal Mission is
designed to meet this challenge. It will cover the
seven mega cities, all cities with a population of
over a million, and some other towns.”
5. The allegation was that the Union of India had proposed to
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spend Rs.50,000/- crores through the said Mission during the next
seven years beginning with 2006-2007 which resulted in execution of
the tripartite agreement. The intention of the Repealing Act which
was adopted by Government of Maharashtra was contrary to the
business rules and is to encourage builders. The Petitioners claim
that they constructed 6000 tenements for the benefit of weaker
sections on “no profit no loss” basis. The land which was placed at
nd
the disposal is as a result of excessive land. In the affidavit dated 2
August, 2006 filed by the Competent Authority, it was stated that 62
acres of land was allotted to Nagari Nivara Parishad, 70 acres of land
was allotted to MHADA and 66.42 acres were alloted to various
institutions, societies and some Government bodies like Municipal
Corporation of Greater Mumbai for better purpose and to ensure
proper growth. However, thereafter, the Repealing Act of 1999 and
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the Resolution by the Legislative Assembly was passed on 29
November, 2007 to defeat the very purpose of the social justice. The
Repealing Act, besides not having been passed by the Competent
Legislative Authority, also destroyed the constitutional objective of
justice, social and economic, and a large number of public who could
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avail benefit of under Section 23 of the Urban Land (Ceiling and
Regulation) Act were deprived as a result of Repealing Act. On this
premises and particularly keeping in view even the orders passed by
the Division Bench in the earlier writ petition, the Petitioners pray for
declaring the Repealing Act of 1999 as ultra vires the Constitution of
India.
6. The State of Maharashtra filed a reply denying that the
Repealing Act was not passed by the Competent Authority in the
prescribed manner and it had violated the provisions of rules. The
Act was enacted by the Parliament in exercise of its legislative
powers under sub-section (1) of Article 252 of the Constitution
pursuant to resolutions passed by the House of Legislature of various
States. In terms of Sub-sections (2) and (3) of Section 1 of the
Repeal Act provided that the Repeal Act of 1999 should apply to such
States which adopt the same by resolution passed in that regard.
Both the Houses of the Legislature in the State of Maharashtra, after
following due process of law, passed the Repeal Act, 1999 and the
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State Cabinet approved the said decision on 12 April, 2007 and was
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placed before the State Legislative Assembly and the Legislative
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Council on 16 April, 2007. The resolution was ultimately passed vide
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Resolution dated 29 November, 2007. There is no legislative or
procedural incompetence. It is further stated that the Petitioners had
earlier filed a writ petition restraining the State Authorities from
placing the Resolution seeking to adopt the ULC and the Repeal Act,
1999 before both the Houses of State Legislature. The Court, while
issuing rule directed the State to take steps for acquisition of certain
land declared as surplus in the said writ petition but no interim relief
was granted. Thus, the Petitioners have filed the present Writ
Petition.
7. In the affidavit filed on behalf of the Government, it is stated
that the Repeal Act of 1999 has already been adopted by the State
Legislative Assembly. In respect of Greater Mumbai Urban
Agglomeration, it has been clarified by the Respondents and stated
that the statistics given by the Petitioners are incorrect. It is stated
that in respect of 338 pending cases involving above 10 acres of
holding, statements filed under Section 6(1) of the Act, the Competent
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Authority had already decided 213 cases by issuing orders under
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Section 8(4) upto 29 November, 2007 i.e. Date of adoption of Repeal
Act of 1999 wherein 2896.50 acres i.e. 1158.60 hectares had been
declared as surplus vacant land and 125 cases were pending. It is
further stated that in view of the Repeal Act being adopted, there was
no question of passing further orders in that regard. It is further
stated in the said affidavit that the Principal Act of 1976 is an Act
enacted by Parliament and the Parliament has repealed the said Act
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by Repeal Act of 1999 on 23 March, 1999. As per the provisions of
Article 252(2) of the Constitution, the powers to repeal an Act in the
State are vested in State Legislature. The said resolution was
considered and passed by both the Houses of the Legislature. The
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said proposal was first approved by the State Cabinet on 12 April,
2007 and thereafter the State Government had proposed the said
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resolution for consideration of the State Legislature on 16 April, 2007
and the same was ultimately passed by both the Houses of the State
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Legislature on 29 November, 2007. It is further stated in the said
affidavit that the Petitioners, while referring to certain provisions of the
rules in the Petition, has averred and contended that the resolution
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moved by the Chief Minister to adopt the Central Repeal Act, 1999
was a constitutional/statutory resolution which could be moved only
by member of Maharashtra Legislative Assembly under Rule 290 of
the Maharashtra Legislative Assembly Rules and not by Chief
Minister under Rule 110 and that all matters referred to in the Second
Schedule under Government Rules of business must be brought
before the Council of Ministers, which had not been done. It is also
stated in the affidavit that it was the contention of the Petitioners that
since according to Section 60(c) of the General Clauses Act, the
State Government in respect of anything done shall mean the
Governor and the Resolution moved by Governor and the Governor
has no power to move a Constitutional/Statutory resolution in
Legislative Assembly under Article 368 and 252 of the Constitution.
It is stated that all the contentions raised by the Petitioners in the
petition are totally misconceived and are not tenable and disentitle
them to raise the said issues in the present petition as the said issues
relate to proceedings of the State Legislature and there is a
Constitutional bar under Article 212 to the proceedings of the State
Legislature being called in question and therefore the Petitioners are
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precluded from raising the said grounds relating to repeal of the said
Act. Reiterating the Legislative Competence and validity of Repeal
Act of 1999, it is submitted that the writ petition should be dismissed.
8. It is a settled principle of law that the executive actions are
tested under the judicial review on the touch stone of arbitrariness but
the criteria for examining the arbitrariness in administrative or
executive actions are not pari materia the same for examining
arbitrariness in legislative act. The scope of judicial review for
examining arbitrariness in legislative act is much narrower. The
arbitrariness is to be of an absolute nature and it must be shown by
the applicant that there was reasonable and manifest arbitrariness to
the extent that the law enacted had no necessity, relevance and was
with mala fide intent. There are very few cases where the Courts have
interfered with enacted law on the ground of arbitrariness. Of couse,
it is not entirely beyond the scope of judicial review.
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Khoday Distilleries Ltd and others vs State of
9. In the case of
Karnataka and others (1996) 10 SCC 304
, , the Supreme Court held
as under :-
“13. It is next submitted before us that the
amended Rules are arbitrary, unreasonable and
cause undue hardship and, therefore, violate
Article 14 of the Constitution. Although the
protection of Article 19(1)(g) may not be
available to the appellants, the rules must,
undoubtedly, satisfy the test of Article 14, which
is a guarantee against arbitrary action.
However, one just bear in mind that what is
being challenged here under Article 14 is not
executive action but delegated legislation. The
tests of arbitrary action which apply to executive
actions do not necessarily apply to delegated
legislation. In order that delegated legislation
can be struck down, such legislation must be
manifestly arbitary; a law which could not be
reasonably expected to emanate from an
authority delegated with the law-making power.
In the case of Indian Express Newspapers
(Bombay) (P) Ltd. v. Union of India (1985)1
SCC 641 (SCR at p.243) this Court said that a
piece of subordinate legislation does not carry
the same degree of immunity which is enjoyed
by a statute passed by a competent legislature.
A subordinate legislation may be questioned
under Article 14 on the ground that it is
unreasonable; “unreasonable not in the sense
of not being reasonable, but in the sense that it
is manifestly arbitrary”. Drawing a comparison
between the law in England and in India, the
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court further observed that in England the
Judges would say, “Parliament never intended
the authority to make such Rules; they are
unreasonable and ultra vires”. In India,
arbitrariness is not a separate ground since it
will come within the embargo of Article 14 of the
Constitution. But subordinate legislation must
be so arbitrary that it could not be said to be in
conformity with the statute or that it offends
Article 14 of the Constitution.”
10. The above stated principles were reiterated by the Supreme
Court in the case of Sharma Transport vs Government of A.P. And
others , (2002) 2 SCC 188 , where the Court was concerned with the
plea of arbitrariness taken in relation to a subordinate legislation that
the Court declined to accept the contention that the agreement and
directive of the Government was not a directive under Article 73(b) or
Articles 256 or 257 of the Constitution and was thus violative. There
the Court held as under :
“25. It has been pleaded as noted above
that withdrawal is without any rational or relevant
consideration. In this context, it has to be noted
that the operators in the State of Andhra
Pradesh are required to pay the same tax as
those registered in other states. Therefore,
there cannot be any question of irrationality.
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The tests of arbitrary action applicable to
executive action do not necessarily apply to
delegated legislation. In order to strike down a
delegated legislation as arbitrary it has to be
established that there is manifest arbitrariness.
In order to be described as arbitrary, it must be
shown that it was not reasonable and manifestly
arbitrary. The expression “arbitrarily” means; in
an unreasonable manner, as fixed or done
capriciously or at pleasure, without adequate
determining principle, not founded in the nature
of things, non-rational, not done or acting
according to reason or judgment, depending on
the will alone. In the present cases all persons
who are similarly situated are similarly affected
by the change. That being so, there is no
question of any discrimination. That plea aslo
fails.”
11. Reference can also usefully be made to the case of
Bombay Dyeing & Mfg. Co. Ltd. Vs Bombay Environmental Action Group
and others , (2006) 3 SCC 434, where the Court, while reiterating the
decisions in the case of Khoday Distilleries Ltd. (supra) and Sharma
Transport (supra) , held that arbitrariness on the part of the legislature
so as to make the legislation violative of Article 14 of the Constitution
should ordinarily be manifest arbitrariness. What would be arbitrary
exercise of legislative power would depend upon the provisions of the
statute vis-a-vis the purpose and object thereof.
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12. In light of these principles, now we will examine the merit of
the contention raised on behalf of the Petitioners that the Repealing
Act suffers from the vice of arbitrariness and is simply in furtherance
to an agreement to receive money from the Central Government is,
therefore, unsustainable. We are unable to find any merit in this
contention inasmuch as the Central Government has not exercised
any undue influence over the State legislature and both have
operated and acted in sphere of their own legislative competence.
There was an agreement entered into between the State and the
Centre in exercise of its respective powers but the object was a
national object. It is really far fetched to argue that payment of
monies as provided in the agreement and realisation of the first
instalment, pressurised the State legislature to pass the resolution
and adopt the Repealing Act. The State legislature has acted in its
own wisdom and not on the dictates of the Centre. There is no
material before us which even can even remotely substantiate this
argument. The onus to prove arbitrariness lies entirely upon the
Petitioners and the Petitioners have not been able to substantiate
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their plea by any cogent reason or appropriate admissible judicial
material on record. The policies of the Central Government can
always be applied to the State Government with its consent. The
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statement of the Finance Minister in his budget speech on 28
February 2005 had indicated sufficiently in regard to the demographic
trends in the country to indicate a rapid increase in urbanization and
the National Urban Renewal Mission was designed to meet this
challenge. When the Act was introduced in 1976, it was stated and
intended to provide for imposition of a ceiling on a vacant land in
urban agglomeration and for acquisition of such lands in excess of
ceiling limits. The purpose being an equitable distribution of land to
subserve the common good. The Object and Reasons of the
Repealing Act specifically mentions that though the Act was passed
with a laudable social object in mind, but the public opinion was
unanimous that the Act had failed to achieve what was expected of it
and the land prices had been pushed to unconscionable levels which
had brought the housing industry to halt. Thus, the Legislature
intended to revoke the most potent clog on housing.
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13. No doubt that the agreement had been entered into in
furtherance to the policy decision taken and a scheme which had
already been sanctioned by the Union of India being Jawaharlal
Nehru National Urban Renewal Mission (JNNURM). Execution of
such an agreement and receiving of financial aid and assistance
per se
thereunder would not render the Repealing Act of 1999
suffering from vice of arbitrariness. Therefore, we have no hesitation
in rejecting the contention of the Petitioners that this Court should
interfere on the ground of arbitrariness.
14. Other argument raised on behalf of the Petitioners that a
attempt of the Union of India in directing or pressurising the State
Government and the State Legislative Assembly to adopt the
Resolution in view of financial/aid offered besides being arbitrary is
also opposed to the basic structure of the Constitution. This action of
the Central Government in issuing the dicta to the State is opposed to
the constitutional scheme of State and Centre functioning in their
respective fields. Ours is a Federal Constitution and the Supreme
Court in the case of Kuldip Nayar & Ors. v. Union of India & Ors.,
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(2006)7 SCC 1, clearly stated that though the federal principle is
dominant in our Constitution that principle is one of its basic features,
but, it is also equally true that federalism under the Indian Constitution
leans in favour of a strong Centre, a feature that militates against the
concept of strong federalism. Some of the provisions that can be
referred to in this context include the power of the union to deal with
extraordinary situations such as during an emergency and Article 251
when read with Article 249 in effect permits the Rajya Sabha to
encroach upon the specified legislative competence of a State
Legislature by declaring a matter to be of national importance. In
addition to these principles, it is a settled cannon of constitutional law
that the law enacted by Union Parliament will have precedence over
the State laws wherever they operate in the same field. This being
the constitutional scheme and Jawaharlal Nehru National Urban
Renewal Mission having been considered as national policy, it can
hardly be contended that it was a temptation offered by the union
which tantamounts to exercising of undue influence or arbitrariness in
relation to the affairs of the State Government and the State
Legislative Assembly.
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State of West Bengal v. Kesoram Industries
15. In the case of
Ltd. & Ors.,
(2004)10 SCC 201, the Supreme Court reiterated this
principle and held that federal structure of Constitution as a factor in
dealing with purported conflict between taxation powers of the Union
and the States with historical bias in favour of strong Centre and it is
best interpreted of flexible provisions of Constitution in respect of
taxation powers to strike a balance or to remove imbalance resulting
in conflict between the States and the Central Laws. It was also
stated that Union List – I will have precedence over the State Laws
under List-II of Schedule VII.
16. In our considered opinion, the Petitioners have not been
able to make out a case either of patent arbitrariness or even legal
bias much less exercise of undue pressure, influence in exercise of
State Legislative powers. It was open to the State to take recourse to
such legislative approach as the members of the Assembly
considered it appropriate and in the interest of the State. We have
already discussed that entering into tripartite agreement and receiving
financial help from the Central for urbanization does not even ex facie
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appear to be opposed to public interest or public policy. It is a settled
principles of law that the Courts would be very reluctant to invalidate
the statute, and particularly, on the ground of arbitrariness. It will be
useful to make a reference of a recent judgment of this Court in the
Peninsula Land Ltd. v. Brihan Mumbai Mahanagarpalika &
case of
Ors.,
2009(1) MhLJ 710 where the Court held as under:-
“19. It will be useful to refer to a judgment of
the Supreme Court in the case of Government of
Andhra Pradesh & Ors. Vs P. Laxmi Devi (Smt.)
(2008) 4 SCC 720, where the Supreme Court held
that the Court should be reluctant to invalidate a
statute. The step to invalidate a statute should be
taken in very rare and exceptional circumstances.
The Supreme Court held as under: -
“37.
Since, according to the above reasoning,
the power in the courts to declare a statute
unconstitutional has to be accepted, the
question which then arises is how and
when should such power be exercised.
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38. This is a very important question because
invalidating an Act of the legislature is a
grave step and should never be lightly
taken. As observed by the American Jurist
Alexander Bickel “judicial review is a
counter-majoritarian force in our system,
since when the Supreme Court declares
unconstitutional a legislative Act or the Act
of an elected executive, it thus thwarts the
will of the representatives of the people; it
exercises control, not on behalf of the
A.
prevailing majority, but against it.” (See
Bickel’s The Least Dangerous Branch .)
39. ..... ..... .....
40. The court must always remember that
invalidating a statute is a grave step, and
must therefore be taken in very rare and
exceptional circumstances.
41. We have observed above that while the
court has power to declare a statute to be
unconstitutional, it should exercise great
judicial restraint in this connection. This
requires clarification, since, sometimes
courts are perplexed as to whether they
should declare a statute to be
constitutional or unconstitutional.
42. ..... ..... .....
43. Thus, according to Prof. Thayer, a court
can declare a statute to be unconstitutional
not merely because it is possible to hold
but only when that is the only
this view,
possible view not open to rational question
.
In other words, the court can declare a
statute to be unconstitutional only when
there can be no manner of doubt that it is
flagrantly unconstitutional, and there is no
way of avoiding such decision . The
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philosophy behind this view is that there is
broad separation of powers under the
Constitution, and the three organs of the
State—the legislature, the executive and
the judiciary, must respect each other and
must not ordinarily encroach into each
other’s domain. Also the judiciary must
realise that the legislature is a
democratically elected
body which
expresses the will of the people, and in a
democracy this will is not to be lightly
frustrated or obstructed.
44. ..... ..... .....
45. ..... ..... .....
46. In our opinion, there is one and only one
ground for declaring an Act of the
legislature (or a provision in the Act) to be
invalid, and that is if it clearly violates some
provision of the Constitution in so evident a
manner as to leave no manner of doubt.
This violation can, of course, be in different
ways e.g. if a State Legislature makes a
law which only Parliament can make under
List I to the Seventh Schedule, in which
case it will violate Article 246(1) of the
Constitution, or the law violates some
specific provision of the Constitution (other
than the directive principles). But before
declaring the statute to be unconstitutional,
the court must be absolutely sure that
there can be no manner of doubt that it
violates a provision of the Constitution. If
two views are possible, one making the
statute constitutional and the other making
it unconstitutional, the former view must
always be preferred. Also, the court must
make every effort to uphold the
constitutional validity of a statute, even if
that requires giving a strained construction
or narrowing down its scope vide Rt. Rev.
13
Msgr. Mark Netto State of Kerala
v. SCC
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26
para 6 : AIR para 6. Also, it is none of the
concern of the court whether the legislation
in its opinion is wise or unwise.
47. ..... ..... .....
48.
The court certainly has the power to decide
about the constitutional validity of a statute.
However, as observed by Frankfurter, J. in
15
West Virginia v. Barnette , since this
power prevents the full play of the
democratic process it is vital that it should
be exercised with rigorous self-restraint.
49. ..... .... .....
50. ..... ..... .....
51. In our opinion the legislature must be given
freedom to do experimentations in
exercising its powers, provided of course it
does not clearly and flagrantly violate its
constitutional limits.
52. ..... ..... .....
53. ..... ..... .....
54. ..... ..... .....
55. ..... ..... .....
56. In our opinion adjudication must be done
within the system of historically validated
restraints and conscious minimisation of
the judges’ personal preferences. The
court must not invalidate a statute lightly,
for, as observed above, invalidation of a
statute made by the legislature elected by
the people is a grave step. As observed
by this Court in State of Bihar v. Kameshwar
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27
18
Singh : (AIR p. 274, para 52)
“ 52 . … The legislature is the best judge of
what is good for the community, by whose
suffrage it comes into existence.…”
57. In our opinion, the court should, therefore,
ordinarily defer to the wisdom of the
legislature unless it enacts a law about
which there can be no manner of doubt
about its unconstitutionality.
58. ..... ..... .....
59.
In the light of the above observations, the
impugned amendment is clearly
constitutional. The amendment was
obviously made to plug a loophole in the
Stamp Act so as to prevent evasion of
stamp duty, and for quick collection of the
duty. There are other statutes e.g. the
Income Tax Act in which there are
provisions for deduction at source,
advance tax, etc. which aim at quick
collection of tax, and the constitutional
validity of these provisions have always
been upheld.”
17. The learned Assistant Government Pleader appearing for
the State while referring to the judgment of the Supreme Court in the
M S M Sharma vs Dr. Shree Krishna Sinha and others AIR
case of ,
1960 SC 1186 , contended that the present Writ Petition is hit by the
principles of res judicata inasmuch as the prayer in that case was for
issuance of a direction or order to the Respondents to prepare and
submit a list of holders holding vacant land of 10 acres and above in
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28
terms of the Act of 1976 and invoke provisions of the Act of 1976 and
to restrain the Respondents from taking any executive decision to
place a Resolution before both the Houses of the State Legislative
Assembly to adopt the Repeal Act of 1999. This Writ Petition is
th
pending till today. However, vide the order dated 17 August, 2006,
no injunction was granted and the Resolution was actually placed
before the Houses of the State Legislative Assembly which adopted
th
on 29 November, 2007. To that extent, that Writ Petition itself
became infructuous and remaining reliefs would hardly be subsisting
as of now for the reason that the Repealing Act of 1999 has already
been repealed the Act of 1976 and even steps in furtherance thereto
have already taken by the State as well as the Central Government.
In order to attract the principle of res judicata, the matter in
controversy has to be decided fully and finally in the previous litigation
and it is not an interim order which will determine the fate of the
subsequent proceedings more so when subsequent proceedings are
based upon an independent cause of action and even the facts for
institution of such a petition are different. Thus, we see no merit in
the objection raised by the Respondents that the present Writ petition
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29
res judicata.
is not maintainable and is hit by the principles of
18. It was also contended on behalf of the Respondents that
the grounds urged have not been specifically raised in the writ petition
and in any case the grounds claiming invalidation of the Statute are
without any basis. It may be to some extent true that the exact
grounds have not been spelt out in the writ petition but after the
amendment of the writ petition in the year 2007, in our opinion, the
grounds taken up by the Petitioners by and large are relatable to the
writ petition and in any case to the rejoinder filed thereafter. The
other main contention raised on behalf of the Petitioners is that the
Repeal Act of 1999 has not been lawfully adopted by the State
Legislature and it was placed only before the Cabinet of the Ministers
and not before the Council Ministers as contemplated under the
Maharashtra Government Rules of Business General Administration
Department. According to them, in terms of Rule 9 of the
Maharashtra Government Rules of Business General Administration
Department, all cases referred to in the Second Schedule shall be
brought before the Council of Ministers. This process having not
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30
been adopted, the Resolution itself suffers from legal infirmities and
thus the Resolution would be ineffective and resultantly the Repealing
Act of 1999 cannot be said to be in force. This argument is again
without any merit inasmuch as it has been made clear on record that
the same process which was adopted by the State while enacting the
1976 Act has also been adopted in the present case. In terms of
Rule 15 of the Maharashtra Government Rules of Business,
instructions can be issued which would supplement the Rules and the
said instructions as issued would have the force of law once they are
th
approved by the Government. Vide the Notification dated 7 May,
1964 and as amended from time to time, in terms of Instruction 2,
matters to be brought before such Ministers as the Chief Minister
directs under Rule (9)(ii) shall be brought before the Cabinet which
shall consist of all the Ministers, but shall not include Ministers of
State and Deputy Ministers. In face of these statutory instructions,
the objections taken up by the Petitioners loses all its significance.
Furthermore, these are the matters of State policy and the State has
to be provided with sufficient leverage to formulate the law relating to
its policy and governance. Unless and until such laws were
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31
unconstitutional or suffer from the vice of patent arbitrariness and/or
manifestly intended to subserve the public interest, the Court would
not interfere in exercise of such power. Reference can also be made
Prof. Krishnaraj Goswami v.
to a judgment of this Court in the case of
The Reserve Bank of India & Ors.,
2007(6) Bom. C.R. 565 where the
Balco
Court, while referring to the judgments of the Supreme Court in
Employees' Union (Regd.) v. Union of India & Ors.,
(2002)2 SCC 333
Federation of Railway Officers Association & Ors. v. Union of India,
and
(2003)4 SCC 289, observed that policy decisions which fall within the
domain of the authorities concerned, the effects and repercussions of
such policy decision can hardly be subject matter of judicial review.
Policy decisions, unless and until are reversed or are inconsistent
with the constitutional mandate or are patently abuse of power,
judicial intervention would normally be not necessitated.
19. In view of our above discussion, we do not find any merit in
any of the contentions raised by the Petitioners. It is noteworthy that
th
in the order of the Court dated 17 August, 2006, the Court has
specifically observed that the order shall not impede any legislative
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32
process for repealing the Act of 1976. In other words, it had been
specifically permitted by the Court, obviously if the State and
Competent Legislature intended to do so. Thus, we hardly find any
merit in this Writ Petition.
20. In the result, the Writ Petition is dismissed, leaving the
parties to bear their own costs.
CHIEF JUSTICE
DR. D.Y. CHANDRACHUD,
J
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PIL WRIT PETITION NO. 59 OF 2007
1. P.B. Samant, )
Meghdoot, Opp. Railway Station, )
Goregaon East, Mumbai – 400 063. )
2. Mrinal Gore, )
3/25, Navjyoti CHS Ltd., )
Unnat Nagar II, Goregaon 400 063. )
3. Vasant Shirali, )
26/C, Kshipra CHS Ltd., )
Arya Chanakya Nagar, )
Akurli Cross Road o.1, )
Kadivali (E), Mumbai 400 101. )
4. Kamal Desai, )
Vasant, 1, J.P. Nagar, )
Goregaon East, Mumbai 400 063. ).. Petitioners
Vs
1. Union of India, )
C/o. Ministry of Urban Development,)
Nirman Bhavan, Moulana Azad )
Road, New Delhi – 110 011. )
2. The State of Maharashtra, )
Ministry of Urban Development, )
Mantralaya, Mumbai – 400 032. )
3. Jawaharlal Nehru National Urban )
Renewal Mission, )
C/o. Ministry of Urban Development,)
Nirman Bhavan, Maulaa Azad Road,)
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2
New Delhi – 110 011. )
4. The Municipal Corporation of )
Greater Mumbai, a body Corporate )
Constituted uder the provisions of )
The Bombay Municipal Corporation,)
Act, 1888 with its Head Quarters )
at Mahapalika Marg, )
Mumbai – 400 001. ).. Respondents
--
Shri S.H. Aney alog with Shri D.G. Bagwe for the Petitioners.
Shri N.P. Pandit, AGP for State.
--
CORAM : SWATANTER KUMAR, C.J. &
DR. D.Y. CHANDRACHUD, J
JUDGMENT RESERVED ON : 26TH FEBRUARY, 2009.
JUDGMENT PRONOUNCED ON : 17TH MARCH, 2009.
JUDGMENT : ( PER SWATANTER KUMAR, CJ )
1. The Petitioners who claim that they are social workers and
except Petitioner No.3, all other Petitioners have been Members of
Legislative Assembly of Maharashtra in the past. It is averred that
Respondent No.3 is a body set up by Respondent No.1 - Union of
India which had published a booklet/brochure in the name of
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3
“JAWAHARLAL NEHRU NATIONAL RENEWAL MISSION”. Being
interested in the welfare of the people of Maharashtra, the Petitioners
have filed this Petition. According to the Petitioners, the action of the
Respondents in adopting resolution of repealing the Urban Land
(Ceiling and Regulation ) Act, 1976 ( hereinafter referred to as the
“said Act”) is in violation of the constitutional rights vested in the
people of Maharashtra, more particularly as enumerated in Articles
14, 19(1) (g), 21, 3 and 39 of the Constitution of India and
Respondent Nos.1 to 4 are failing to perform their public duties. The
State Government, in the Assembly agreed to repeal the said Act with
respect to Greater Mumbai Pune and Thane within 1 and ½ years and
th
signed a Memorandum dated 7 October, 2006 under the scheme of
“Jawaharlal Nehru National Urban Renewal Mission” (JNNURM).
The resolution adopting repealment is primarily without legislative
intent and without serving public purpose and is adopted only on the
consideration that the installments agreed under the memorandum
would be released by the Central Government in favour of State. The
Resolution besides being unobjective also suffers from infirmities that
the State Legislature had to pass the resolution in compliance with
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4
the provisions of the said Act and the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 which has not been passed in
accordance with law and the rules of business of the Assembly and is
stated to be a mere automatic consequences of a tripartite
th
memorandum of agreement dated 7 October, 2006 wherein the
State had given a solemn assurance that it would repeal the Act of
1976 before December, 2007. The challenge of the Petitioners to the
th
resolution of the State Government dated 16 April, 2007 is founded
on the ground that the Central Government has power to give
directions to the State Government as it may have power necessarily
for carrying out the purpose of the Act or the rules framed thereunder
but it cannot direct the State Government to repeal an enactment
merely because the Central Government can offer to and make a
condition for giving monies upon compliance of such understanding.
It is also averred by the Petitioners that nearly 1221 acres of vacant
land was acquired in the year 2006.
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5
2. The Petitioners had also filed a Writ Petition earlier being
Writ Petition No.4 of 2006 wherein the Petitioners prayed for the
following reliefs:-
“(a) this Hon'ble Court be pleased to issue a Writ of
Mandamus, or any other Writ, Order or Direction in
st nd
the nature of Mandamus, directing the 1 and 2
Respondents to place before this Hon'ble Court a
list of land holders holding vacant lands of 10 acres
and above in Greater Mumbai and disclose the
steps taken under the said Urban Land (Ceiling and
Regulation) Act, 1976 in respect thereof;
(b) this Hon'ble Court be pleased to issue a Writ of
Mandamus or any other Writ, Order or Direction in
the nature of Mandamus, directing the Respondent
Nos.1 ad 2 to forthwith implement and invoke the
provisions of the Urban Land ( Ceiling and
Regulation) Act, 1976 and acquire the excess
vacant land which is available in Greater Mumbai,
including excess vacant land set out in EXHIBIT “F”
hereto, and utilise the same as best to subserve
the common good;
(c ) that pending the hearing and final disposal of this
Petition, this Hon'ble Court be pleased to direct the
st nd
1 and 2 Respondents to forthwith initiate
acquisition proceedings under the said Urban Land
(Ceiling and Regulation ) Act, 1976 in respect of
the excess vacant lands mentioned in EXHIBIT “F”
hereto;
(d) that pending the hearing and final disposal of this
Petition, this Hon'ble Court be pleased to pass an
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6
order and injunction restraining the Respondent
No.1 from taking any executive decision to place a
resolution before both the House of the State
Legislative to adopt the said Urban Land (Ceiling
and Regulation ) Repeal Act, 1999;
(e) ad-interim relief in terms of prayer © and (d)
hereinabove;
(f) for costs and
(g) for such other and further reliefs as the nature and
circumstances of the case may require;
th
3. In the said Writ Petition, an order dated 17 August, 2006
was passed, which reads as under:-
“1. We heard Senior Counsel and
counsel for the parties and also perused
the affidavit of Mr. Tarunkumar Dhanraj
Khatri, Deputy Collector and Competent
Authority (ULC), Greater Mumbai.
2. Insofar as prayer (a) of the Writ Petition is
concerned, we are of the view that exh.3
discloses the names of land holders
holding vacant lands of 10 acres and above
i Greater Mumbai. As per the said list,
there are 338 declarants holding vacant
lads in excess of 10 acres.
3. To our query to th Government pleader as
to the present status of proceedings under
the Urban Land (Ceiling and Regulation)
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7
Act ( for short the “Act of 1976”), in respect
of the said land holders, the Government
Pleader submitted that before 31.12.2007,
the Competent Authority shall be able to
pass orders under section 8(4) of the Act of
1976, pursuant to the statements filed
under section 6(1). He also submitted that
as on date, acquisition of 1009.75 acres
(403.90 hectares) of declared surplus
vacant land is under process under section
10 of the Act of 1976 and that the said
process shall be completed within six
months from today.
4. In the light of these submissions of the
Government Pleader, for the present, we
pass the following order:-
O R D E R
(i) The Competent Authority (ULC),
Greater Mumbai, shall proceed with
the statements filed under section 6
(1) of the Act of 1976 expeditiously
and pass order under section 8(4) as
early as possible and in no case
later than 31.12.2007.
(ii) The Competent Authority (ULC),
Greater Mumbai, is also directed to
act quickly for acquisition of 1009.75
acres (403.90 hectares) declared as
surplus vacant land and complete
the process within six months from
today as the land has already vested
in the State Government, by virtue of
section 10(3) of the Act of 1976.
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8
5. Needless to say that our order shall not
impede any legislative process of the Act of
1976.
6. For further directions, as adjourn the matter
to 14.2.2007.”
4. To the present petition, the Petitioners also sought leave to
amend the petition. Earlier it was suggested in the budget speech of
th
the Finance Minister on 28 February, 2005 which reads as under:-
“The demographic trends in the country indicate a
rapid increase in urbanization. India needs urban
facilities of satisfactory standards to cope with the
challenge. If our cities are not renewed, they will
die. The National Urban Renewal Mission is
designed to meet this challenge. It will cover the
seven mega cities, all cities with a population of
over a million, and some other towns.”
5. The allegation was that the Union of India had proposed to
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9
spend Rs.50,000/- crores through the said Mission during the next
seven years beginning with 2006-2007 which resulted in execution of
the tripartite agreement. The intention of the Repealing Act which
was adopted by Government of Maharashtra was contrary to the
business rules and is to encourage builders. The Petitioners claim
that they constructed 6000 tenements for the benefit of weaker
sections on “no profit no loss” basis. The land which was placed at
nd
the disposal is as a result of excessive land. In the affidavit dated 2
August, 2006 filed by the Competent Authority, it was stated that 62
acres of land was allotted to Nagari Nivara Parishad, 70 acres of land
was allotted to MHADA and 66.42 acres were alloted to various
institutions, societies and some Government bodies like Municipal
Corporation of Greater Mumbai for better purpose and to ensure
proper growth. However, thereafter, the Repealing Act of 1999 and
th
the Resolution by the Legislative Assembly was passed on 29
November, 2007 to defeat the very purpose of the social justice. The
Repealing Act, besides not having been passed by the Competent
Legislative Authority, also destroyed the constitutional objective of
justice, social and economic, and a large number of public who could
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10
avail benefit of under Section 23 of the Urban Land (Ceiling and
Regulation) Act were deprived as a result of Repealing Act. On this
premises and particularly keeping in view even the orders passed by
the Division Bench in the earlier writ petition, the Petitioners pray for
declaring the Repealing Act of 1999 as ultra vires the Constitution of
India.
6. The State of Maharashtra filed a reply denying that the
Repealing Act was not passed by the Competent Authority in the
prescribed manner and it had violated the provisions of rules. The
Act was enacted by the Parliament in exercise of its legislative
powers under sub-section (1) of Article 252 of the Constitution
pursuant to resolutions passed by the House of Legislature of various
States. In terms of Sub-sections (2) and (3) of Section 1 of the
Repeal Act provided that the Repeal Act of 1999 should apply to such
States which adopt the same by resolution passed in that regard.
Both the Houses of the Legislature in the State of Maharashtra, after
following due process of law, passed the Repeal Act, 1999 and the
th
State Cabinet approved the said decision on 12 April, 2007 and was
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11
placed before the State Legislative Assembly and the Legislative
th
Council on 16 April, 2007. The resolution was ultimately passed vide
th
Resolution dated 29 November, 2007. There is no legislative or
procedural incompetence. It is further stated that the Petitioners had
earlier filed a writ petition restraining the State Authorities from
placing the Resolution seeking to adopt the ULC and the Repeal Act,
1999 before both the Houses of State Legislature. The Court, while
issuing rule directed the State to take steps for acquisition of certain
land declared as surplus in the said writ petition but no interim relief
was granted. Thus, the Petitioners have filed the present Writ
Petition.
7. In the affidavit filed on behalf of the Government, it is stated
that the Repeal Act of 1999 has already been adopted by the State
Legislative Assembly. In respect of Greater Mumbai Urban
Agglomeration, it has been clarified by the Respondents and stated
that the statistics given by the Petitioners are incorrect. It is stated
that in respect of 338 pending cases involving above 10 acres of
holding, statements filed under Section 6(1) of the Act, the Competent
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12
Authority had already decided 213 cases by issuing orders under
th
Section 8(4) upto 29 November, 2007 i.e. Date of adoption of Repeal
Act of 1999 wherein 2896.50 acres i.e. 1158.60 hectares had been
declared as surplus vacant land and 125 cases were pending. It is
further stated that in view of the Repeal Act being adopted, there was
no question of passing further orders in that regard. It is further
stated in the said affidavit that the Principal Act of 1976 is an Act
enacted by Parliament and the Parliament has repealed the said Act
rd
by Repeal Act of 1999 on 23 March, 1999. As per the provisions of
Article 252(2) of the Constitution, the powers to repeal an Act in the
State are vested in State Legislature. The said resolution was
considered and passed by both the Houses of the Legislature. The
th
said proposal was first approved by the State Cabinet on 12 April,
2007 and thereafter the State Government had proposed the said
th
resolution for consideration of the State Legislature on 16 April, 2007
and the same was ultimately passed by both the Houses of the State
th
Legislature on 29 November, 2007. It is further stated in the said
affidavit that the Petitioners, while referring to certain provisions of the
rules in the Petition, has averred and contended that the resolution
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13
moved by the Chief Minister to adopt the Central Repeal Act, 1999
was a constitutional/statutory resolution which could be moved only
by member of Maharashtra Legislative Assembly under Rule 290 of
the Maharashtra Legislative Assembly Rules and not by Chief
Minister under Rule 110 and that all matters referred to in the Second
Schedule under Government Rules of business must be brought
before the Council of Ministers, which had not been done. It is also
stated in the affidavit that it was the contention of the Petitioners that
since according to Section 60(c) of the General Clauses Act, the
State Government in respect of anything done shall mean the
Governor and the Resolution moved by Governor and the Governor
has no power to move a Constitutional/Statutory resolution in
Legislative Assembly under Article 368 and 252 of the Constitution.
It is stated that all the contentions raised by the Petitioners in the
petition are totally misconceived and are not tenable and disentitle
them to raise the said issues in the present petition as the said issues
relate to proceedings of the State Legislature and there is a
Constitutional bar under Article 212 to the proceedings of the State
Legislature being called in question and therefore the Petitioners are
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14
precluded from raising the said grounds relating to repeal of the said
Act. Reiterating the Legislative Competence and validity of Repeal
Act of 1999, it is submitted that the writ petition should be dismissed.
8. It is a settled principle of law that the executive actions are
tested under the judicial review on the touch stone of arbitrariness but
the criteria for examining the arbitrariness in administrative or
executive actions are not pari materia the same for examining
arbitrariness in legislative act. The scope of judicial review for
examining arbitrariness in legislative act is much narrower. The
arbitrariness is to be of an absolute nature and it must be shown by
the applicant that there was reasonable and manifest arbitrariness to
the extent that the law enacted had no necessity, relevance and was
with mala fide intent. There are very few cases where the Courts have
interfered with enacted law on the ground of arbitrariness. Of couse,
it is not entirely beyond the scope of judicial review.
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15
Khoday Distilleries Ltd and others vs State of
9. In the case of
Karnataka and others (1996) 10 SCC 304
, , the Supreme Court held
as under :-
“13. It is next submitted before us that the
amended Rules are arbitrary, unreasonable and
cause undue hardship and, therefore, violate
Article 14 of the Constitution. Although the
protection of Article 19(1)(g) may not be
available to the appellants, the rules must,
undoubtedly, satisfy the test of Article 14, which
is a guarantee against arbitrary action.
However, one just bear in mind that what is
being challenged here under Article 14 is not
executive action but delegated legislation. The
tests of arbitrary action which apply to executive
actions do not necessarily apply to delegated
legislation. In order that delegated legislation
can be struck down, such legislation must be
manifestly arbitary; a law which could not be
reasonably expected to emanate from an
authority delegated with the law-making power.
In the case of Indian Express Newspapers
(Bombay) (P) Ltd. v. Union of India (1985)1
SCC 641 (SCR at p.243) this Court said that a
piece of subordinate legislation does not carry
the same degree of immunity which is enjoyed
by a statute passed by a competent legislature.
A subordinate legislation may be questioned
under Article 14 on the ground that it is
unreasonable; “unreasonable not in the sense
of not being reasonable, but in the sense that it
is manifestly arbitrary”. Drawing a comparison
between the law in England and in India, the
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16
court further observed that in England the
Judges would say, “Parliament never intended
the authority to make such Rules; they are
unreasonable and ultra vires”. In India,
arbitrariness is not a separate ground since it
will come within the embargo of Article 14 of the
Constitution. But subordinate legislation must
be so arbitrary that it could not be said to be in
conformity with the statute or that it offends
Article 14 of the Constitution.”
10. The above stated principles were reiterated by the Supreme
Court in the case of Sharma Transport vs Government of A.P. And
others , (2002) 2 SCC 188 , where the Court was concerned with the
plea of arbitrariness taken in relation to a subordinate legislation that
the Court declined to accept the contention that the agreement and
directive of the Government was not a directive under Article 73(b) or
Articles 256 or 257 of the Constitution and was thus violative. There
the Court held as under :
“25. It has been pleaded as noted above
that withdrawal is without any rational or relevant
consideration. In this context, it has to be noted
that the operators in the State of Andhra
Pradesh are required to pay the same tax as
those registered in other states. Therefore,
there cannot be any question of irrationality.
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17
The tests of arbitrary action applicable to
executive action do not necessarily apply to
delegated legislation. In order to strike down a
delegated legislation as arbitrary it has to be
established that there is manifest arbitrariness.
In order to be described as arbitrary, it must be
shown that it was not reasonable and manifestly
arbitrary. The expression “arbitrarily” means; in
an unreasonable manner, as fixed or done
capriciously or at pleasure, without adequate
determining principle, not founded in the nature
of things, non-rational, not done or acting
according to reason or judgment, depending on
the will alone. In the present cases all persons
who are similarly situated are similarly affected
by the change. That being so, there is no
question of any discrimination. That plea aslo
fails.”
11. Reference can also usefully be made to the case of
Bombay Dyeing & Mfg. Co. Ltd. Vs Bombay Environmental Action Group
and others , (2006) 3 SCC 434, where the Court, while reiterating the
decisions in the case of Khoday Distilleries Ltd. (supra) and Sharma
Transport (supra) , held that arbitrariness on the part of the legislature
so as to make the legislation violative of Article 14 of the Constitution
should ordinarily be manifest arbitrariness. What would be arbitrary
exercise of legislative power would depend upon the provisions of the
statute vis-a-vis the purpose and object thereof.
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18
12. In light of these principles, now we will examine the merit of
the contention raised on behalf of the Petitioners that the Repealing
Act suffers from the vice of arbitrariness and is simply in furtherance
to an agreement to receive money from the Central Government is,
therefore, unsustainable. We are unable to find any merit in this
contention inasmuch as the Central Government has not exercised
any undue influence over the State legislature and both have
operated and acted in sphere of their own legislative competence.
There was an agreement entered into between the State and the
Centre in exercise of its respective powers but the object was a
national object. It is really far fetched to argue that payment of
monies as provided in the agreement and realisation of the first
instalment, pressurised the State legislature to pass the resolution
and adopt the Repealing Act. The State legislature has acted in its
own wisdom and not on the dictates of the Centre. There is no
material before us which even can even remotely substantiate this
argument. The onus to prove arbitrariness lies entirely upon the
Petitioners and the Petitioners have not been able to substantiate
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19
their plea by any cogent reason or appropriate admissible judicial
material on record. The policies of the Central Government can
always be applied to the State Government with its consent. The
th
statement of the Finance Minister in his budget speech on 28
February 2005 had indicated sufficiently in regard to the demographic
trends in the country to indicate a rapid increase in urbanization and
the National Urban Renewal Mission was designed to meet this
challenge. When the Act was introduced in 1976, it was stated and
intended to provide for imposition of a ceiling on a vacant land in
urban agglomeration and for acquisition of such lands in excess of
ceiling limits. The purpose being an equitable distribution of land to
subserve the common good. The Object and Reasons of the
Repealing Act specifically mentions that though the Act was passed
with a laudable social object in mind, but the public opinion was
unanimous that the Act had failed to achieve what was expected of it
and the land prices had been pushed to unconscionable levels which
had brought the housing industry to halt. Thus, the Legislature
intended to revoke the most potent clog on housing.
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20
13. No doubt that the agreement had been entered into in
furtherance to the policy decision taken and a scheme which had
already been sanctioned by the Union of India being Jawaharlal
Nehru National Urban Renewal Mission (JNNURM). Execution of
such an agreement and receiving of financial aid and assistance
per se
thereunder would not render the Repealing Act of 1999
suffering from vice of arbitrariness. Therefore, we have no hesitation
in rejecting the contention of the Petitioners that this Court should
interfere on the ground of arbitrariness.
14. Other argument raised on behalf of the Petitioners that a
attempt of the Union of India in directing or pressurising the State
Government and the State Legislative Assembly to adopt the
Resolution in view of financial/aid offered besides being arbitrary is
also opposed to the basic structure of the Constitution. This action of
the Central Government in issuing the dicta to the State is opposed to
the constitutional scheme of State and Centre functioning in their
respective fields. Ours is a Federal Constitution and the Supreme
Court in the case of Kuldip Nayar & Ors. v. Union of India & Ors.,
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21
(2006)7 SCC 1, clearly stated that though the federal principle is
dominant in our Constitution that principle is one of its basic features,
but, it is also equally true that federalism under the Indian Constitution
leans in favour of a strong Centre, a feature that militates against the
concept of strong federalism. Some of the provisions that can be
referred to in this context include the power of the union to deal with
extraordinary situations such as during an emergency and Article 251
when read with Article 249 in effect permits the Rajya Sabha to
encroach upon the specified legislative competence of a State
Legislature by declaring a matter to be of national importance. In
addition to these principles, it is a settled cannon of constitutional law
that the law enacted by Union Parliament will have precedence over
the State laws wherever they operate in the same field. This being
the constitutional scheme and Jawaharlal Nehru National Urban
Renewal Mission having been considered as national policy, it can
hardly be contended that it was a temptation offered by the union
which tantamounts to exercising of undue influence or arbitrariness in
relation to the affairs of the State Government and the State
Legislative Assembly.
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22
State of West Bengal v. Kesoram Industries
15. In the case of
Ltd. & Ors.,
(2004)10 SCC 201, the Supreme Court reiterated this
principle and held that federal structure of Constitution as a factor in
dealing with purported conflict between taxation powers of the Union
and the States with historical bias in favour of strong Centre and it is
best interpreted of flexible provisions of Constitution in respect of
taxation powers to strike a balance or to remove imbalance resulting
in conflict between the States and the Central Laws. It was also
stated that Union List – I will have precedence over the State Laws
under List-II of Schedule VII.
16. In our considered opinion, the Petitioners have not been
able to make out a case either of patent arbitrariness or even legal
bias much less exercise of undue pressure, influence in exercise of
State Legislative powers. It was open to the State to take recourse to
such legislative approach as the members of the Assembly
considered it appropriate and in the interest of the State. We have
already discussed that entering into tripartite agreement and receiving
financial help from the Central for urbanization does not even ex facie
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23
appear to be opposed to public interest or public policy. It is a settled
principles of law that the Courts would be very reluctant to invalidate
the statute, and particularly, on the ground of arbitrariness. It will be
useful to make a reference of a recent judgment of this Court in the
Peninsula Land Ltd. v. Brihan Mumbai Mahanagarpalika &
case of
Ors.,
2009(1) MhLJ 710 where the Court held as under:-
“19. It will be useful to refer to a judgment of
the Supreme Court in the case of Government of
Andhra Pradesh & Ors. Vs P. Laxmi Devi (Smt.)
(2008) 4 SCC 720, where the Supreme Court held
that the Court should be reluctant to invalidate a
statute. The step to invalidate a statute should be
taken in very rare and exceptional circumstances.
The Supreme Court held as under: -
“37.
Since, according to the above reasoning,
the power in the courts to declare a statute
unconstitutional has to be accepted, the
question which then arises is how and
when should such power be exercised.
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24
38. This is a very important question because
invalidating an Act of the legislature is a
grave step and should never be lightly
taken. As observed by the American Jurist
Alexander Bickel “judicial review is a
counter-majoritarian force in our system,
since when the Supreme Court declares
unconstitutional a legislative Act or the Act
of an elected executive, it thus thwarts the
will of the representatives of the people; it
exercises control, not on behalf of the
A.
prevailing majority, but against it.” (See
Bickel’s The Least Dangerous Branch .)
39. ..... ..... .....
40. The court must always remember that
invalidating a statute is a grave step, and
must therefore be taken in very rare and
exceptional circumstances.
41. We have observed above that while the
court has power to declare a statute to be
unconstitutional, it should exercise great
judicial restraint in this connection. This
requires clarification, since, sometimes
courts are perplexed as to whether they
should declare a statute to be
constitutional or unconstitutional.
42. ..... ..... .....
43. Thus, according to Prof. Thayer, a court
can declare a statute to be unconstitutional
not merely because it is possible to hold
but only when that is the only
this view,
possible view not open to rational question
.
In other words, the court can declare a
statute to be unconstitutional only when
there can be no manner of doubt that it is
flagrantly unconstitutional, and there is no
way of avoiding such decision . The
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25
philosophy behind this view is that there is
broad separation of powers under the
Constitution, and the three organs of the
State—the legislature, the executive and
the judiciary, must respect each other and
must not ordinarily encroach into each
other’s domain. Also the judiciary must
realise that the legislature is a
democratically elected
body which
expresses the will of the people, and in a
democracy this will is not to be lightly
frustrated or obstructed.
44. ..... ..... .....
45. ..... ..... .....
46. In our opinion, there is one and only one
ground for declaring an Act of the
legislature (or a provision in the Act) to be
invalid, and that is if it clearly violates some
provision of the Constitution in so evident a
manner as to leave no manner of doubt.
This violation can, of course, be in different
ways e.g. if a State Legislature makes a
law which only Parliament can make under
List I to the Seventh Schedule, in which
case it will violate Article 246(1) of the
Constitution, or the law violates some
specific provision of the Constitution (other
than the directive principles). But before
declaring the statute to be unconstitutional,
the court must be absolutely sure that
there can be no manner of doubt that it
violates a provision of the Constitution. If
two views are possible, one making the
statute constitutional and the other making
it unconstitutional, the former view must
always be preferred. Also, the court must
make every effort to uphold the
constitutional validity of a statute, even if
that requires giving a strained construction
or narrowing down its scope vide Rt. Rev.
13
Msgr. Mark Netto State of Kerala
v. SCC
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26
para 6 : AIR para 6. Also, it is none of the
concern of the court whether the legislation
in its opinion is wise or unwise.
47. ..... ..... .....
48.
The court certainly has the power to decide
about the constitutional validity of a statute.
However, as observed by Frankfurter, J. in
15
West Virginia v. Barnette , since this
power prevents the full play of the
democratic process it is vital that it should
be exercised with rigorous self-restraint.
49. ..... .... .....
50. ..... ..... .....
51. In our opinion the legislature must be given
freedom to do experimentations in
exercising its powers, provided of course it
does not clearly and flagrantly violate its
constitutional limits.
52. ..... ..... .....
53. ..... ..... .....
54. ..... ..... .....
55. ..... ..... .....
56. In our opinion adjudication must be done
within the system of historically validated
restraints and conscious minimisation of
the judges’ personal preferences. The
court must not invalidate a statute lightly,
for, as observed above, invalidation of a
statute made by the legislature elected by
the people is a grave step. As observed
by this Court in State of Bihar v. Kameshwar
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27
18
Singh : (AIR p. 274, para 52)
“ 52 . … The legislature is the best judge of
what is good for the community, by whose
suffrage it comes into existence.…”
57. In our opinion, the court should, therefore,
ordinarily defer to the wisdom of the
legislature unless it enacts a law about
which there can be no manner of doubt
about its unconstitutionality.
58. ..... ..... .....
59.
In the light of the above observations, the
impugned amendment is clearly
constitutional. The amendment was
obviously made to plug a loophole in the
Stamp Act so as to prevent evasion of
stamp duty, and for quick collection of the
duty. There are other statutes e.g. the
Income Tax Act in which there are
provisions for deduction at source,
advance tax, etc. which aim at quick
collection of tax, and the constitutional
validity of these provisions have always
been upheld.”
17. The learned Assistant Government Pleader appearing for
the State while referring to the judgment of the Supreme Court in the
M S M Sharma vs Dr. Shree Krishna Sinha and others AIR
case of ,
1960 SC 1186 , contended that the present Writ Petition is hit by the
principles of res judicata inasmuch as the prayer in that case was for
issuance of a direction or order to the Respondents to prepare and
submit a list of holders holding vacant land of 10 acres and above in
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28
terms of the Act of 1976 and invoke provisions of the Act of 1976 and
to restrain the Respondents from taking any executive decision to
place a Resolution before both the Houses of the State Legislative
Assembly to adopt the Repeal Act of 1999. This Writ Petition is
th
pending till today. However, vide the order dated 17 August, 2006,
no injunction was granted and the Resolution was actually placed
before the Houses of the State Legislative Assembly which adopted
th
on 29 November, 2007. To that extent, that Writ Petition itself
became infructuous and remaining reliefs would hardly be subsisting
as of now for the reason that the Repealing Act of 1999 has already
been repealed the Act of 1976 and even steps in furtherance thereto
have already taken by the State as well as the Central Government.
In order to attract the principle of res judicata, the matter in
controversy has to be decided fully and finally in the previous litigation
and it is not an interim order which will determine the fate of the
subsequent proceedings more so when subsequent proceedings are
based upon an independent cause of action and even the facts for
institution of such a petition are different. Thus, we see no merit in
the objection raised by the Respondents that the present Writ petition
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29
res judicata.
is not maintainable and is hit by the principles of
18. It was also contended on behalf of the Respondents that
the grounds urged have not been specifically raised in the writ petition
and in any case the grounds claiming invalidation of the Statute are
without any basis. It may be to some extent true that the exact
grounds have not been spelt out in the writ petition but after the
amendment of the writ petition in the year 2007, in our opinion, the
grounds taken up by the Petitioners by and large are relatable to the
writ petition and in any case to the rejoinder filed thereafter. The
other main contention raised on behalf of the Petitioners is that the
Repeal Act of 1999 has not been lawfully adopted by the State
Legislature and it was placed only before the Cabinet of the Ministers
and not before the Council Ministers as contemplated under the
Maharashtra Government Rules of Business General Administration
Department. According to them, in terms of Rule 9 of the
Maharashtra Government Rules of Business General Administration
Department, all cases referred to in the Second Schedule shall be
brought before the Council of Ministers. This process having not
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30
been adopted, the Resolution itself suffers from legal infirmities and
thus the Resolution would be ineffective and resultantly the Repealing
Act of 1999 cannot be said to be in force. This argument is again
without any merit inasmuch as it has been made clear on record that
the same process which was adopted by the State while enacting the
1976 Act has also been adopted in the present case. In terms of
Rule 15 of the Maharashtra Government Rules of Business,
instructions can be issued which would supplement the Rules and the
said instructions as issued would have the force of law once they are
th
approved by the Government. Vide the Notification dated 7 May,
1964 and as amended from time to time, in terms of Instruction 2,
matters to be brought before such Ministers as the Chief Minister
directs under Rule (9)(ii) shall be brought before the Cabinet which
shall consist of all the Ministers, but shall not include Ministers of
State and Deputy Ministers. In face of these statutory instructions,
the objections taken up by the Petitioners loses all its significance.
Furthermore, these are the matters of State policy and the State has
to be provided with sufficient leverage to formulate the law relating to
its policy and governance. Unless and until such laws were
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31
unconstitutional or suffer from the vice of patent arbitrariness and/or
manifestly intended to subserve the public interest, the Court would
not interfere in exercise of such power. Reference can also be made
Prof. Krishnaraj Goswami v.
to a judgment of this Court in the case of
The Reserve Bank of India & Ors.,
2007(6) Bom. C.R. 565 where the
Balco
Court, while referring to the judgments of the Supreme Court in
Employees' Union (Regd.) v. Union of India & Ors.,
(2002)2 SCC 333
Federation of Railway Officers Association & Ors. v. Union of India,
and
(2003)4 SCC 289, observed that policy decisions which fall within the
domain of the authorities concerned, the effects and repercussions of
such policy decision can hardly be subject matter of judicial review.
Policy decisions, unless and until are reversed or are inconsistent
with the constitutional mandate or are patently abuse of power,
judicial intervention would normally be not necessitated.
19. In view of our above discussion, we do not find any merit in
any of the contentions raised by the Petitioners. It is noteworthy that
th
in the order of the Court dated 17 August, 2006, the Court has
specifically observed that the order shall not impede any legislative
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process for repealing the Act of 1976. In other words, it had been
specifically permitted by the Court, obviously if the State and
Competent Legislature intended to do so. Thus, we hardly find any
merit in this Writ Petition.
20. In the result, the Writ Petition is dismissed, leaving the
parties to bear their own costs.
CHIEF JUSTICE
DR. D.Y. CHANDRACHUD,
J
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