Brajdeo Narain Singh v. Dominion Of India — 1949 DIGILAW 56 (PAT)

Judgment Reuben, J. 1. This petition is directed against an order of the Additional Subordinate Judge, Palamau, on what he describes as an application for substitution. It arises out of a title suit pending in the Court of the Subordinate Judge, the petitioner being one of the defendants in the suit. The suit was filed by the Government in 1933 with regard to certain underground rights. As provided by Section 79, Civil P. C., as it then stood, the plaintiff was described as the Secretary of State for India in Council. Under the provisions of the Government of India Act, 1935, Sec.179, the Secretary of State for India must be deemed to have been substituted since 1937 for the Secretary of State for India in Council. A further change in the description of the plaintiff was necessitated by the Indian Independence Act, 1947 , the relevant provisions of Sec.15 of which are as follows : "(1) Notwithstanding anything in this Act, and in particular, notwithstanding any of the provisions of the last preceding section, any provision of any enactment which, but for the passing of this Act, would authorize legal proceedings to be taken in India or elsewhere by or against the Secretary of State in respect of any right or liability of India or any part of India shall cease to have effect on the appointed day, and any legal proceedings pending by virtue of any such provision on the appointed day shall, by virtue of this Act, abate on the appointed day, so far as the Secretary of State is concerned. 2. Subject to the provisions of this sub-section, any legal proceedings which, but for the passing of this Act, could have been brought by or against the Secretary of State in respect of any right or liability of India, or any part of India, shall instead be brought. 2. Subject to the provisions of this sub-section, any legal proceedings which, but for the passing of this Act, could have been brought by or against the Secretary of State in respect of any right or liability of India, or any part of India, shall instead be brought. (a) in the case of proceedings in United Kingdom, by or against the High Commissioner, (b) in the case of other proceedings, by or against such person as may be designated by order of the Governor-General under the preceding provisions of this Act or otherwise by the law of the new Dominion concerned ; (c) and any legal proceedings by or against the Secretary of State in respect of any such right or liability as aforesaid which are pending immediately before the appointed day shall be continued by or against the High Commissioner, or, as the case may be, the person designated as aforesaid: Provided that, at any time after the appointed day, the right conferred by this sub-section to bring or continue proceedings may, whether the proceedings are by or against, the High Commissioner or person designated aa aforesaid, be withdrawn by a law of the Legislature of either of the new Dominions so far as that Dominion is concerned, and any such law may operate as respects proceedings pending at the date of the passing of the law." 2. "The preceding provisions" referred to are contained in Section 9, which empowered the Governor-General to pass orders necessary or expedient for giving effect to the Indian Independence Act. Under Sub-sections (3) and (5) of that section the period within which such an order could be passed was from 3rd June 1947, to 31st March 1948. The order necessary for giving effect to Sub-section (2) of Sec.15 with respect to pending proceedings was incorporated in Sub-clause 3 of Clause 12, Indian Independence (Rights, Property and Liabilities) Orders 1947, [G. G. O. 18 dated 14th August 1947]. For some obscure reason the provision was confined to proceedings "in respect of any liability of the Governor-General in Council or a Province." Therefore it did not cover the present suit, which is in respect of a right and not a liability. For some obscure reason the provision was confined to proceedings "in respect of any liability of the Governor-General in Council or a Province." Therefore it did not cover the present suit, which is in respect of a right and not a liability. The omission was brought to the notice of the Governor-General by the Bihar Government (vide the Statement of Objects and Reasons of Bill No. 44 of 1948 published at P. 464 of the Gazette of India dated 3rd July 1948, part v) and an Ordinance, entitled the Continuance of Legal Proceedings Ordinance 1948, (ordinance No. XII [12] of 1948), was promulgated in exercise of the Governor-Generals powers under Section 42, Government of India Act, 1935, by a notification dated 28th May 1948. The relevant provision of this Ordinance is: "3. Continuance of proceedings:- -Any legal proceedings which, immediately before the appointed day, (a) were pending by or against he Secretary of State in any Court within the territories which as from the appointed day became the territorie a of India by virtue of Sub-section (1) of Sec.2, Independence Act, 1947 (10 and 11 Geo. VI c. 30), and (b) were in respect of any light of India or any part of India, shall (i) if the right in question wag that of the Governor-General in Council, be continued by or against the Do-minion of India; * * * . * * (iii) if the right in question was that of any Governors Province other than Bengal, the Punjab, the North-West Frontier Province or find, be continued by or against that Province." The District of Palamau lies in a partially excluded area. The Ordinance was applied to this area by a notification of the Governor of Bihar under Section 92, Government of India Act, published in the Bihar Gazette of 30th June 1948, Part II at p. 1839. This was followed by the filing on 14th August 1948, of the application out of which the present petition has arisen. It is an application on behalf of the Dominion of India and the Province of Bihar. This was followed by the filing on 14th August 1948, of the application out of which the present petition has arisen. It is an application on behalf of the Dominion of India and the Province of Bihar. It asserts that under Sec.3 of the Ordinance the applicants have the right to continue the suit, and that, "although it is not necessary to apply for setting aside the abatement or for substitution of the names of the petitioners in place of the Secretary of State for India or for permission to continue the suit by the petitioners, this petition is filed to avoid technical objection." Apparently, at the time when the application was made the applicants were not certain whether the right in question was of the Governor-General in Council or of the Province of Bihar. Hence, the application was filed on behalf of both of them. The application wag allowed by the Additional Subordinate Judge on 4th November 1948. In the meantime the Ordinance bad been replaced by an Act of the Central Legislature entitled the Continuance of Legal Proceedings Act 1948, (ACt NO XXXVIII [38] of 1948), which received the Governor Generals assent on 3rd September 1948. Sec.3 of this Act is substantially in the same terms as Section 8 of the Ordinance, and Sub-section (2) of Sec. 5 provides that anything done or any action taken in exercise of powers conferred by or under the Ordinance shall be deemed to have been done or taken in exercise of powers conferred by or under this Act "as if this Act had commenced on 28th day of May 1948." The Act was applied to the partially excluded areas by a notification under Section 92, Government of India Act dated 29th October 1948, appearing at p. 2515 of Part II of the Bihar Gazette dated 10th November 1948. Taking the Act to be a valid enactment effective under Sec.15, Indian Independence Act (this has been questioned by Mr. Saran who appears for the petitioner), application of the Dominion of India and the Province of Bihar must be taken to be one under the Act. 3. Mr. Sarans first contention is that Ordinance No. XII [12] of 1948 is ultra vires of the Governor-General under Sec. 42, Government of India Act. Saran who appears for the petitioner), application of the Dominion of India and the Province of Bihar must be taken to be one under the Act. 3. Mr. Sarans first contention is that Ordinance No. XII [12] of 1948 is ultra vires of the Governor-General under Sec. 42, Government of India Act. This section, as it stands subsequent to adaptations made in pursuance of the Governor-Generals powers under Section 9, Indian Independence Act, 1947 , is as follows: "The Governor General may, in cases of Emergency, make and promulgate Ordinances for the peace and good government of the Dominion or any pact thereof, and any Ordinance so made shall, for the space of not more than six months from its promulgation have the like force of law as an Act passed by the Dominion Legislature; but the power of making Ordinances under this section is subject to the like restrictions as the power of the Dominion Legislature under this Act to make laws: and any Ordinance made this under section may be controlled or superseded by any such Act." Mr. Saran challenges the validity of this Ordinance on two grounds, first of all, that it is not "for the peace and good government of the Dominion or any part thereof," and secondly, that it is in contravention of Sections 15 and 9, Indian Independence Act, which contemplate that, if the Governor-General designates the person who is to carry on the proceedings, he will do so by an order passed not later than 31st March 1948. I am not impressed with the second ground, but was at first inclined to accept the first contention. It is difficult to see how the making of a provision for the continuance of legal proceedings affecting rights of the nature of private property is connected with the preservation of peace and good government. It is clear from the section that the existence of an emergency is a matter for the Governor General to decide, and that the Court cannot go behind his statement that there is an emergency. This is not as clear as regards the requirement that the Ordinance should be for peace and good government, and some support for Mr. Sarans contention that ordinance no. This is not as clear as regards the requirement that the Ordinance should be for peace and good government, and some support for Mr. Sarans contention that ordinance no. XII [12] is not for peace and good government is to be found in the preamble to the Ordinance, which omits to say so and merely states : "Whereas an emergency has arisen which makes it necessary to provide that the continuance of certain legal proceedings, etc." The matter is, however, not so simple as it appears, for their Lordships of the Judicial Committee in Bhagat Singh V/s. Emperor, 58 I. A. 169 : (A. I. R. (18) 1931 P. C. 111 : 32 Cr. L. J. 727) considered a provision of the Government of India Act, 1915, which is almost identical in terms, and came to the conclusion that it was for the Governor-General and the Governor-General alone to decide whether an emergency existed and whether the proposed Ordinance conduced to peace and good Government or not. As a decision on this point is not necessary in view of Act No. xXXVIII [38] of 1948 which has replaced the Ordinance, I do not think it would be right on my part to enter on the long investigation which would be necessary before I could accept or reject the contention of Mr. Saran. 4. On the other side, Mr. Ranajit Sinha goes even further than is indicated by this decision. He points out that under Sec. 42 the Ordinance of the Governor-General is given the force of an Act passed by the Dominion Legislature, that under Sec.18, Government of India Act, 1935, the Constituent Assembly which enacted Act No. xxxviii [38] is the Dominion Legislature, and that under Sec. 6, Indian Independence Act, 1947 , "the Legislature of the Dominion" has plenary powers to make laws for the Dominion, which shall not be void or inoperative on the ground that they are repugnant to the law of England or to the provisions of any existing or future Act of the Parliament of the United Kingdom, etc. It is necessary to deal with this argument, as the meaning of the expression "Legislature of the Dominion" has to be considered in connection with another point raised by Mr. Saran. This point arises in connection with Act NO. XXXVIII [38] of 1949. Mr. It is necessary to deal with this argument, as the meaning of the expression "Legislature of the Dominion" has to be considered in connection with another point raised by Mr. Saran. This point arises in connection with Act NO. XXXVIII [38] of 1949. Mr. Sarans argument is as follows : Sub-section (2) of Sec.15, Indian Independence Act provides for the designation in one of two ways of the person who is to continue the legal proceedings; he may be designated either by an order of the Governor-General under the preceding provisions of the Act, or "by the law of the new Dominion concerned." Then there is a proviso that, after the appointed day, that is, 15th August 1947, the right conferred by Sub-section (2) to bring or continue proceedings may be withdrawn by "a law of the Legislature of either of the new Dominions" so far as that Dominion is concerned. There is evidently a distinction drawn between "the law of the new Dominion" and "the law of the Legislature of the new Dominion." Mr. Saran contends that Act XXXVIII [38] is a law of the Legislature of the new Dominion and not "a law of the new Dominion" by which alone the designation could be made. 5. I have referred to Sec. 6, Independence Act, which provides that the Legislature of the new Dominion shall have plenary powers of Legislation uncurbed by any existing legislation or by any future Act of the Parliament of the United Kingdom. Its powers are not even limited by the Indian Independence Act, that is, the Act designed to bring the legislature of the Dominion into existence. This legislature, however, is the Legislature to be set up after the new Constitution comes into operation. The arrangements for what is to happen in the meantime are contained in Section 8, Indian Independence Act. I reproduce below the relevant portions of this section ; "(1) In the ease of each of the new Dominions, the powers of the Legislature of the Dominion shall, for the purpose of making provision as to the constitution of the Dominion, be exercisable in the first instance by the Consistnent Assembly of that Dominion, and references in this Act to the Legislature of the Dominion shall be construed accordingly. (2) Except in as far a3 other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion under Sub-section (1) of this section, each of the new Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935; and the provisions of that Act, and of the Orders in Council, rules and other instruments made thereunder, shall, so far as applicable, and subject to any express provisions of this Act, and with such omissions, additions, adaptations and modifications as may be specified in orders of the Governor-General under the next succeeding section, have effect accordingly : Provided that- ***** (e) the powers of the Federal Legislature or Indian Legislature under that Act, as in force in relation to each Dominion, shall, in the first instance, be exercisable by the Constituent Assembly of the Dominion, in addition to the powers exercisable by that Assembly under Sub-section (1) of this section. (3) Any provision of the Government of India Act, 1935, which as applied to either of the new Dominions by Sub-section (2) of this section and the orders therein refer red to, operates to limit the power of the Legislature of that Dominion shall, unless and until other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion in accordance with the provisions of Sub-section (1) of this section, have the like effect as a law of the Legislature of the Dominion limiting for the future the powers of that Legislature." 6. Under Sub-section (1), the Constituent Assembly which has been in existence since December 1946 (vide Sub-section (3) of Sec.19 of the Act) will, for the purpose of making provisions regarding the constitution of the Dominion, exercise "the powers of the Legislature of the Dominion" it is not the legislature of the Dominion and references in the Act to the "Legislature of the Dominion" are to be construed accordingly. As regards ordinary legislation, the Constituent Assembly is to exercise "the powers of the Federal Legislature or the Indian Legislature" under the Government of India Act, 1935 (vide proviso (e) to Sub-section (2)) and is to remain subject to the limitations on the powers of the Legislature imposed by the Government of India Act of 1935, subject to any modification therein made by the Constituent Assembly in exercise of its constitution-making power under Sub-section (1) (vide Sub-section (3).) Under Section 8, therefore, the Government of India Act as modified by adaptations is to remain in force and the Constituent Assembly functioning for the purpose of ordinary legislation is to remain subject to the limits imposed on the powers of the Legislature by that Act. The use of the expression Dominion Legislature in Sec.18, Government of India Act makes no difference It was substituted by an adaptation made by the Governor-General under Section 9, Indian Independence Act and takes the place of "the Federal Legislature or Indian Legislature" whose powers the Constituent Assembly is to exercise under proviso (e) to Sub-section (2) of Section 8, Indian Independence. Act. Under the Indian Independence Act the Constituent Assembly in this capacity is to be subject to the limits prescribed by the Government of India Act. Similarly, under the Government of India Act, the Dominion Legislature spoken of in Sec.18 is to function within the provisions of the Act, It follows that when the Government of India Act speaks of the Dominion Legislature, the expression connotes something quite different from the expression "Legislature of the new Dominion" occurring in Sec. 6, Indian Independence Act. 7. Similarly, under the Government of India Act, the Dominion Legislature spoken of in Sec.18 is to function within the provisions of the Act, It follows that when the Government of India Act speaks of the Dominion Legislature, the expression connotes something quite different from the expression "Legislature of the new Dominion" occurring in Sec. 6, Indian Independence Act. 7. The meaning of the expression "the law of the new Dominion" is to be found in Sub-section (3) of Sec.18, Indian Independence Act, the terms of which are as follows: "Save as otherwise expressly provided in this act, the law of British India and of the several parts thereof existing immediately before the appointed day shall, so fat as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf." Under this provision, the existing law of British India became the law of the new Dominion subject to modifications by laws of "the Legislature of the Dominion" or by "any other Legislature or other authority having power in that behalf." The conception is that of a body of law, liable to modification from time to time by several lawfully authorised agencies. The modifications might be of several kinds. Existing legislation may be repealed or it may be altered in some particular or it may be added to. The resultant body of law will still be the law of the Dominion, and it would contain laws of the Legislature of the Dominion as well as those of other legally empowered authorities That the expression is to include new laws is clear from Sub-section (2) of Sec.15, Indian Independence Act which provides that the law of the new Dominion may designate the person who is to continue legal proceedings. Evidently this must refer to legislation made subsequent to the coming into operation of the Indian Independence Act. Evidently this must refer to legislation made subsequent to the coming into operation of the Indian Independence Act. That the expression includes laws affecting the constitution as well as ordinary laws appears from Sub-section (2) of Sec. 6 which says: "No law and no provision of any law made by the Legislature of either of the new Dominions shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of this or any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Legislature of each Dominion include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion," The term "the law of the Dominion" occurring at the end of this sub-section evidently includes the Indian Independence Act, which is of the nature of the law of constitution. 8 Coming now to the terms of Sub-section (2) of Sec.15, according to my interpretation, the law of the new Dominion would include Act XXXVIII [38] of 1948, which is a statute enacted by a Legislature lawfully authorised to legislate for the Dominion, and the reference to the law of the Legislature of the Dominion in the proviso is to a law by the Legislature of the new Dominion or of the Constituent Assembly acting under Sub-section (1) of Section 8. It appears that Sub-section (2) contemplated that the power to designate the person to continue legal proceedings will be exercised either by the Governor-General or by an authority empowered to legislate for the Dominion, and that once the designation had been made the right conferred thereby can only be withdrawn by a law of the constitution. It follows that Act no. xXXVIII [38] is a law of the new Dominion within the meaning of this section, and there is no substance in the contention of Mr. Saran. 9. Mr. Sarans next contention is that, even if Act no. xxxviii [38] be a law of the new Dominion within the meaning of Sub-section (2) of Sec.15, the application of the opposite party must be held to be barred by limitation. Saran. 9. Mr. Sarans next contention is that, even if Act no. xxxviii [38] be a law of the new Dominion within the meaning of Sub-section (2) of Sec.15, the application of the opposite party must be held to be barred by limitation. He urges that the abatement which has occurred under Sub-section (1) of Sec.15 has the effect of a decree Naimuddin Biswas V/s. Maniraddin Laskar, 32 C. W. N. 299 : (A. I. R. (15) 1928 Cal. 184), Ramphal Sahu V/s. Satdeo Jha, 21 P. L. T. 597 : (A. I. R. (27) 1940 pat. 346 F: B.), that the opposite party cannot be allowed to continue the suit until the abatement is set aside: Mt. Bibi Khozaima V/s. Official Liquidator of the Kayestha Trading and Banking Corporation, Ltd., 2 pat 168 : (A I. R. (10) 1923 Pat. 417), and that the period within which an application for setting aside the abatement could be filed had expired before the filing of the present application. In this connection Mr. Saran has drawn our attention to the provision of Sec. 4 of the Ordinance, repeated in Section 4 of Act No. xxxviii [38] providing that, in computing the period of limitation prescribed for an appeal or application to Court in respect of the proceedings in question, the period from 15th day of August 1947 to 28th day of May 1948 shall be excluded. The answer to Mr. Sarans contention is that the question of setting aside an abatement does not arise at all. Under Sub-section (1) of Sec.15, Indian Independence Act, there wag an abatement, but it was not an abatement of the suit as a whole; the suit abated only against the Secretary of State. Ordinarily, when a suit abates against a party, the Court has to consider what is the effect of the abatement and, if the abatement has occurred against a single plaintiff, the suit abates as a whole. Here, however, the suit was kept alive by Sub-section (2) which provided that, in spite of the abatement, the suit "shall be continued" by a person designated in the manner provided by that sub section. The abatement is an abatement by statute and there is no provision for setting it aside. Here, however, the suit was kept alive by Sub-section (2) which provided that, in spite of the abatement, the suit "shall be continued" by a person designated in the manner provided by that sub section. The abatement is an abatement by statute and there is no provision for setting it aside. The procedure under Order 22, Civil P. C., by which an abatement is set aside and the legal representatives of the deceased party are substituted in his place, is entirely foreign to the case before us. Neither the Dominion of India nor the Province of Bihar is a legal representative of the Secretary of State. All of them are the representatives of the Crown who is the real plaintiff in the suit, vide United Provinces V/s. Atiga Begum, (1940) F. C. R. 110 at p. 171: (A. I, R, (28) 1941 F. C. 16). As soon as the designation was duly made, it was open to the person designated to appear before the Court and to ask to be permitted to continue the proceedings. As he was by statute entitled to continue the proceedings, the request to Court to be allowed to do so would be of a formal nature. Sec.15 is in marked contrast to Order 22, Rule 10, Civil P. C., which allows an assignee to continue a suit "by leave of the Court". The provisions in Sec. 4 of the Ordinance and of Act xxxviii [38] do not help the petitioner. They relate to applications and appeals which it may be necessary to file in respect of the " pending legal proceedings", for instance, if such a suit has been disposed of and an appeal has to be filed. Further, even if an application to the Court was necessary, the Article of the Limitation not applicable would be the residuary Article 181 and not Article 171. As the period given by Article 161 is three years, the application was well within time. 10. Finally, it is contended that both the Dominion of India and the Province of Bihar cannot be allowed to continue the suit. This is not a matter which we need go into in a petition in civil revision. At the most, that is an irregularity not affecting the jurisdiction of the Court. Farther, we are informed by Mr. 10. Finally, it is contended that both the Dominion of India and the Province of Bihar cannot be allowed to continue the suit. This is not a matter which we need go into in a petition in civil revision. At the most, that is an irregularity not affecting the jurisdiction of the Court. Farther, we are informed by Mr. Sinha that he has instructions not to press the suit on behalf of the Dominion of India and will take the necessary steps in the Court of the Subordinate Judge. 11. On the above grounds, I would dismiss this petition With costs. The hearing-fee will be assessed at three gold mohars. 12. The suit has been pending for a very long time. We are told that it is now ready for bearing. The Judicial Commissioner of Chota Nagpur should see that it is taken up without further delay. Narayan, J. 13 I agree and have nothing to add to the exhaustive judgment of my learn-ed brother. The suit did not abate as a whole and was kept alive by Sub-section (2) of Sec.15, and the question, therefore, whether the application for setting aside the abatement was made within time or not did not really arise. The procedure will be governed by the carefully drafted provision of Sec.15.