Andhra HC (Pre-Telangana)
M.A. Sultan Mohiuddin And Etc. vs Govt. Of A.P. And Ors. on 16 November, 2001
Equivalent citations: AIR2002AP105, AIR 2002 ANDHRA PRADESH 105, (2002) 1 LACC 365
Author: Bilal Nazki
Bench: Bilal Nazki
JUDGMENT
L. Narasimha Reddy. J.
1. The question that falls for consideration In these two writ petitions is as to whether in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act 15 of 1999) of the Parliament repealing the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), the provisions of the latter Act are no longer in force in the State of Andhra Pradesh. Since this question arises in both the writ petitions, they are disposed of through a common judgment.
2. The relevant facts may be stated as under :-- The petitioner in W.F. No. 12781/ 99 filed declaration under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Ceiling Act') in respect of the lands held by him in the Vijayawada Urban Agglomeration. The competent authority under the Ceiling Act declared the petitioner as holding 900 sq. mts. of land in excess of ceiling limits. The petitioner filed an application under Section 20(1)(a) and (1)(b) of the Ceiling Act seeking exemption from the provisions of the Ceiling Act in respect of 900 sq. mts. in NTS 141 of Patamatalanka, Vijayawada. The application was rejected through orders dated 24-3-1998. Challenging that order, he filed W.P. No. 24895/98 and the same is pending.
3. The petitioner in W. P. No. 11579/99 is Vijayawada Wholesale Commercial Complex Members Welfare Society. It is stated in the affidavit that the members of the Society, about 400 in number, are doing business in pulses, edible oils, etc., in Vijayawada town. Their business premises are located in narrow streets and lanes. On account of the traffic congestion in the 'narrow streets, they as well as their customers are facing hardships. With a view to shift their premises and relieve the congestion, the Society had purchased an extent of 24 acres of land in Gollapudl village, which is within the Vijayawada Urban Agglomeration. Development of the said land was not possible without exemption of the sale from the provisions of the Ceiling Act. Accordingly, the petitioner submitted an application to the Government for grant of exemption. The same was rejected without assigning any reasons. They filed W. P. No. 3362/99 challenging the same. When the writ petition was dismissed on the ground of laches, they preferred W-A. No. 364/99, which was allowed on 24-3-1999 directing the Government to consider and dispose of the application of the petitioner within six months. When the petitioner was required to file declaration under Section 6 of the Ceiling Act, they filed an appeal before the Commissioner of Urban Land Ceilings being Appeal No. 98/ 95 under Section 33 of the Ceiling Act and the same is pending.
4. When the W.P. No. 24895/98 filed by the petitioner in W.P. No. 12781/99 and the appeal filed by the petitioner in W.P. No. 11579/99 were pending, the Parliament enacted the Urban Land (Ceiling and Regulation) Repeal Act, 1999 being Act 15of 1999 (hereinafter referred to as the 'Repealing Act') repealing the Ceiling Act. The petitioners filed the present writs claiming that in view of the repeal of the Ceiling Act through the Repealing Act, the provisions of the Ceiling Act can no longer be in force in the State of Andhra Pradesh. Seeking a declaration to that effect, the present writ petitions are filed, (sic) arising under the Repealed Act have to be worked out in accordance with the saving provisions contained in the repealing Act or the General Clauses Act. However, since the Ceiling Act was enacted under Article 252(1) of the Constitution of India, a different set of consequences will ensue.
5. The Constitution of India contemplated and brought about federal form of functioning with the Union at the national level and the States constituting the Units therein. It had reserved legislative powers on certain subjects exclusively for the Parliament and certain others for the Legislatures of the States. It had also enlisted certain subjects on which both the Parliament as well as the State Legislatures have the power to make laws. Article 246 mandates that Parliament shall have the exclusive powers to make laws in respect of the matters in List I of the VII Schedule and the Legislatures of the State shall have the exclusive powers to make laws for the States in respect of any matters enumerated in List II. It further provides for exercise of concurrent powers by the Parliament and the State Legislatures in respect of the matters in List III. As long as respective Legislatures undertake legislations in their respective subjects in the concerned list, there does not occur any overlapping. The scheme of the distribution of powers under the Constitution of India is radically different from what is contained in the American Constitution. The distribution of the powers between the federal and the provincial Governments was provided under the Government of India Act, 1935 (hereinafter referred to as 'GOI Act') also. Referring to the scheme of distribution of powers, Sulaiman Justice, in re. Central Provinces and Berar Sales of Motor Spirit and Lubricants, AIR 1939 FC 1 observed as under :
"This peculiarity is a unique feature of the Indian Constitution (referring to the GOI Act. 1935)".
6. However, contemplating a situation or desirability of bringing about a uniform legislation at the national level on a subject which is exclusively reserved for Legislatures of the State that Is falling in List-II, provision is made and procedure is prescribed under Article 252 of the Constitution of India, which reads as under :
"252. Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State :--(1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regularised in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other States by which it is adopted afterwards by resolution passed in that behalf by the House or where there are two Houses, by each of the Houses of the Legislature of that State. (2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State."
It is evident from a reading of Article 252 that for bringing about a legislation at the national level on a subject occurring in List II, it is necessary that the Legislatures of at least two States have to pass resolutions requesting or enabling the Parliament to enact laws on such subjects. It shall be then competent for the Parliament to enact laws on the subjects, which it was otherwise not competent to do. Once the Parliament enacts the law, it shall become enforceable in such States, the Legislatures of which have passed resolutions requesting the Parliament to enact the same as well as those States whose Legislatures adopt resolutions in this behalf.
7. The competence to legislate on the subject of land, rights in or over land, land tenures and other allied matters occurs in item 18 of List II. The Legislature of the State of Andhra Pradesh passed a resolution on 7/8-4-1972 authorising the Parliament to regulate by law.
"the imposition of a ceiling on urban immoveable property and acquisition of such property in excess of the ceiling and all matters connected therewith or ancillary or incidental thereto."
8. Similar resolutions were passed by the Legislatures of the other States such as Gujarat, Haryana, Himachal Pradesh , Karnataka etc. In pursuance of these resolutions, the Parliament enacted the Ceiling Act being Act 33 of 1976. The Act became applicable in those States, the Legislatures of which passed resolutions anterior to the enactment of the Ceiling Act. States, such as, Madhya Pradesh, adopted the same subsequently. The validity of the Ceiling Act visa-vis the respective powers of the Parliament and State Legislations, which became the subject-matters of the cases before the Hon'ble Supreme Court such as Bheem Singhji v. Union of India, ; T. Venkaiah v. State of A. P.. and a larger Bench of five Judges of this Court in T. Rangayya v. State of A. P., to mention a few, had been upheld.
9. The procedure prescribed for amending or repealing any Act of Parliament which has been enacted under Article 252(1) of the Constitution of India is rather peculiar. In this regard, reference may be made to Section 103 of the GOI Act. which is almost a pre cursor to Article 252 of the Constitution of India:
"103. If it appears to the Legislature of two or more Provinces to be desirable that any of the matters enumerated in the Provincial Legislative List should be regulated in those Provinces by Act of the Federal Legislature, to pass an Act for regulating that matter accordingly, but any Act so passed may, as respects any Province to which it applies, be amended or repealed by an Act of the Legislature of that Province."
A reading of Section 103 of the GOI Act reveals that once the Federal Legislature enacts a law on the request or authorisation made by two or more Provincial Legislatures, the power to amend or repeal is exclusively vested in the Legislatures of the Province. However, Article 252 (2) of the Constitution of India mandates that to amend or repeal an Act of Parliament passed under Article 252(1), the procedure that was adopted for enacting it has to be followed. In other words, the Parliament can undertake amendment or repeal an Act passed by it under Article 252 (1) only when the Legislatures of two or more States, through resolutions passed by them, request it (the Parliament) to amend or repeal. It is axiomatic that it is the Legislatures of only those States, which have passed resolutions requesting the Parliament to enact law under Article 252(1) or those, which have adopted it later can initiate action for amendment or repeal. Till such resolutions are passed, the Parliament is virtually helpless in the matter of amendment or repeal. Just as an Act passed under Article 252(1) becomes applicable only in those States which had adopted it later, the amendments repeal would also be operative only in those States which have adopted such amending or repealing Act by resolutions of the respective State Legislatures. Till that is done, such law would continue to be in force despite the repeal of the enactment by the Parliament. Similarly, once the Legislature of a State passes a resolution as contemplated under Article 252(1), and the Parliament enacts a law, it (the State Legislature) loses its power to amend or repeal that law. It is only the combined action of the Parliament and the State Legislature that can bring about an amendment or repeal. This is the peculiar situation that emerges on account of operation of Articles 252 (1) and (2) of the Constitution of India. It Is apt to refer to the observation of the Hon'ble Supreme Court in RMDC (Mys) Pvt. Ltd. v. State of Mysore, . After referring to the decision of the Federal Court, (AIR 1939 FC 1) (supra), the Hon'ble Supreme Court held as under (at p. 507, para 2 of AIR) :
The result of the passing of a resolution under Art. 252(1) is that any matter with respect to which Parliament has no power to enact laws becomes a matter for the regulation of which Parliament becomes empowered to pass any Act, and such Act, if passed by the Parliament becomes applicable to the States passing the resolution or adopting that Act. Sub-clause (2) of that Article provides that any such Act may be amended or repealed by an Act of Parliament in the like manner i.e., in the manner provided In Clause (1) and it cannot be amended or repealed by the Legislature of the State or States passing the resolution."
10. Coming to the facts of the case, the Legislatures of the State of Punjab and Haryana have passed resolutions requesting the Parliament to repeal the Ceiling Act. In response thereto, the Parliament enacted the Repealing Act being Act 15 of 1999 in exercise of its power under Article 252(2) of the Constitution of India. It is necessary to refer to Sections 1 and 2 of the Repealing Act, which deals with the operation of the Act.
Sections 1 and 2 of the Repealing Act reads as under :
" 1. Short title and application and commencement :--
(1) This Act may be called the Urban Land (Ceiling and Regulation) Repeal Act, 1999.
(2) It applies in the first instance to the whole of the States of Haryana and Punjab and to all the Union territories, and It shall apply to such other State which adopts this Act by resolution passed in that behalf under Clause (2) of Article 252 of the Constitution.
(3) It shall be deemed to have came into force in the States of Haryana and Punjab and in all the Union territories on the 11th day of January, 1999 and in any other State which adopts this Act under Clause (2) of Article 252 of the Constitution on the date of such adoption; and the reference to repeal of the Urban Land (Ceiling and Regulation) Act , 1976 shall, in relation to any State or Union territory, mean the date on which this Act comes into force in such State or Union territory.
(2) Repeal of Act 33 of 1976, -- The Urban Land (Ceiling and Regulation) Act. 1976 (hereinafter referred to as the principal Act)' is hereby repealed."
The Repealing Act was later adopted by the States of Gujarat and Uttar Pradesh. However, as far as the State of Andhra Pradesh is concerned, its Legislature had neither passed a resolution requesting the Parliament to repeal the Ceiling Act, nor did it adopt the Repealing Act. Therefore, the Repealing Act by itself cannot put an end to the operation and applicability of the Ceiling Act as far as the State of Andhra Pradesh is concerned.
11. The learned counsel for the petitioner Sri G. V. R. Chowdary submits that Section 2 of the Repealing Act is unequivocal and once the main Act has been repealed, it cannot be said to be in force. He placed reliance upon the Judgment of the Hon'ble Supreme Court in Madan Swaroop Shrotlya Public Charitable Trust v. State of U. P., .
12. On the other hand, the learned Advocate General submits that the Ceiling Act having been enacted under Article 252(1) of the Constitution of India and the Repealing Act having been enacted under Article 252(2), the normal consequences flowing out of enactments and repeals would not ensue. He relied upon the judgment of the Hon'ble Supreme Court in HHM Shantldevi p. Gaikwad v. Savjibhal Haribhai Patel, and the judgment of a learned single Judge of this Court in Silent Valley Co-op. Housing Society Ltd. v. State of A. P. 12000) 1 Andh LT 590 : (2000 AIHC 2683).
13. Sri Chowdary would, have been right In his submissions if It was a legislation in normal parlance. Section 2 of the Repealing Act is subject to and has to be read along with Section 1. Having regard to the scheme under Article 252 and Sections 1 and 2 of the Repealing Act, his submissions cannot be accepted. The Judgment relied upon by him in MSSP Charitable Trusts case (supra) reveals that the Repealing Act has been adopted by the Legislation of the State of Uttar Pradesh and it came into force in that State from 18-3-1999. Therefore, it will not be of any help to him.
14. The Supreme Court in Gaikwad's case (supra) was dealing with a case from Gujarat, the legislation of which has also adopted the Repealing Act. In Silent Valley Co-operative Housing Society's case (2000 AIHC 2683) (supra), the learned single Judge of this Court has taken the view that since the Legislation of the State of Andhra Pradesh has not adopted the Repealing Act. It has no application to the State of Andhra Pradesh. We agree with that view.
15. In the foregoing circumstances, we do not find any merit in the writ petitions and accordingly dismiss the same. No costs.