Chandmal v. Chhoga — 1961 DIGILAW 134 (RAJ)

This revision against the order of the Additional Collector, Ajmer dated 7.10.59, is bound to succeed, as has been conceded by the learned counsel for the opposite party as well. The applicants moved the Tehsildar Ajmer on 7.5.57 under the provisions of sec. 100 of the Ajmer Tenancy and Land Records Act 1950 (hereinafter referred to as the Act) for the ejectment of the opp. party an the ground that he had not returned the possession of the disputed land on the expiry of the period of lease of three years on 18.6.56, despite service of notice; that he had not paid Banta for Fasli Year 1363 and Kharif 1364; that he had willfully and deliberately acted contrary to the term of lease, inasmuch as he had neither cultivated the entire lands nor put manure therein;that he had also caused damage to the disputed land by allowing the Nala water to enter it, and that he had cut the branches of the trees standing thereon. The opposite party contested it both on facts and law. The case was transferred as such to the S.D.O. Ajmer. After framing necessary issues and recording the evidence of the parties the learned S.D.O. decreed the ejectment of the opposite party on 30.5.59. The Addl. Collector Ajmer was moved for the confirmation thereof under the appropriate provisions of the Act. After hearing the parties he reversed the findings of the learned trial court, and ordered the dismissal of the suit; hence this revision. Admittedly and obviously the case was dealt with and decided by both the learned lower courts under the provisions of the Act unmindful of the fact that on 15.6.58 itself, long before the decision by the trial court, the Act had been repealed and the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955) (hereinafter referred to as the Tenancy Act) had been extended to the Ajmer area with the promulgation of the Rajasthan Revenue Laws (Extension Act, 1957 (No. 2 of 1958) referred hereinafter as the Act No. 2 of 1958). With the commencement of the Tenancy Act, vide sec. 206 (1). thereof, all the pending suits relating to matters dealt with therein become liable to be treated as having been commenced there under to be heard, tried and determined in the manner prescribed by or under it. With the commencement of the Tenancy Act, vide sec. 206 (1). thereof, all the pending suits relating to matters dealt with therein become liable to be treated as having been commenced there under to be heard, tried and determined in the manner prescribed by or under it. The present case admittedly relates to the matter dealt with in the Tenancy Act, and should therefore have been on and from 15.6.58 taken to have been commenced under the Act, and heard, tried and determined thereunder. Both the learned counsel for the parties concede this point. This very view has been taken by the majority of the Members of the Board in Sarva Shri Dhola, Govinda and others Vs. Sarva Shri Bhagwana, Hainan and others, case No. 19 (Jnunjhunu) 1960 decided on 15.11.60, one of us being a party thereto. The points for determination therein were, whether the proceedings started and decided under sec. 7 Rajasthan Protection of Tenants Ordinance, but remanded on revision by the Board for re-determination when the Tenancy Act had come in force in the meantime, (before the re-decision after remand) would be deemed to have been commenced, heard, tried and determined under the provisions of the Tenancy Act or not, and whether an appeal would lie to the Commissioner against the order of the trial court or not. One of the learned Members held that sec. 206 of the Tenancy Act had no reference to the forum for appeal or revision and the same shall be governed by the law prevailing on the date of the starting of the action. The other learned Members dissented from it, and held that "sec. 3 of the Act (the Tenancy Act) deals with the repeal of the ordinance. It does not envisage any savings. The repeal is therefore complete. Sec. 6(e) General clauses lays down that unless a different intention appears from the context, the repeal shall not affect any legal proceedings.........and any such......legal proceedings may be....continued......as if the repealing Act......had not been passed. The application of sec. 6(e) General Clauses Act and continuation of legal proceedings commenced under a repealed enactment thus depends upon the intention of repealing enactment. If nothing contrary has been provided in the repealing Act, a legal proceeding started under the repealed law would continue unaffected as if the enactment has not been repealed. The application of sec. 6(e) General Clauses Act and continuation of legal proceedings commenced under a repealed enactment thus depends upon the intention of repealing enactment. If nothing contrary has been provided in the repealing Act, a legal proceeding started under the repealed law would continue unaffected as if the enactment has not been repealed. In case, however, any qualifications have been introduced in the new law, these conditions would effect such a proceeding. This brings us to sec. 206 of the Act (the Tenancy Act) which deals with the provision of the pending cases, etc. Sub-sec. (1) thereof enjoins that all proceedings relating to matters dealt with in this Act and pending before a revenue court on the coming into force of the Act......shall be deemed to have been commenced under this Act. If, therefore, a proceeding relating to a matter provided by the Act (the Tenancy Act) also is found to be pending at the time of the commencement of the Act, it shall be deemed to have been commenced under the Act. Only condition is, and that is a very important condition too, that the substantive law under which the lis started should be provided in the Act (the Tenancy Act) also", On the point of appeal it was held that it would be the right attached to and available for" the lis deemed to have been concerned under the Tenancy Act. On reference to the third Member under the provision of sec. 13(2) of the Rajasthan Land Revenue Act, 1956, the learned Chairman who heard the case held that "a very important legal fiction has been created by this important provision (meaning thereby sec. 206(1) of the Tenancy Act). Even if the original application commenced under sec. 7 of the repealed ordinance, it shall nevertheless be deemed to have been commenced under the provisions of the Rajasthan Tenancy Act as it was pending on the date when the Act came into fore. If it is deemed to have been commenced under this Act and is to be determined in the manner laid down in this Act it is obvious that the presentation of appeals by the aggrieved person will also be governed by the provisions of this Act. There can be no justification for any discrimination as regards appeals between application filed before and after the commencement of the Act. There can be no justification for any discrimination as regards appeals between application filed before and after the commencement of the Act. Sec. 206(1) placed both of them at par and sec. 225 shall therefore have application to both of them". Not exactly this very point but a similar one, and having a bearing on the effect of sec. 206 of the Tenancy Act came in S. B. Civil Reference No. 37 of 1959 decided on 23.2.60, Bharun Vs. Har Das (1960 RLW 357) before Chhangani J. of the Rajasthan High Court. The point for determination was which court (revenue or civil) would hear and try the suit for the grant of an injunction restraining the defendant from ejecting the plaintiffs from an agricultural land pending before the sub-judge Beawar on the date of the extension to the Ajmer area of the Tenancy Act as a result of the promulgation of the Act No. 2, 1958. The learned judge was pleased to observe : "On the general question, it will be pertinent to bear in mind a distinction between substantive laws. The principle against giving retrospective effect to an enactment is generally speaking true of substantive laws only and cannot be extended to adjective or procedural laws or to be more precise to provisions in statutes relating to procedural matters. Procedural provisions generally speaking are retrospective; the reason being that no one can have a vested right in procedure. However, sec. 6 of the General Clauses Act embodies a rule that pending procedure should continue to be regulated by the old procedure. The position stated generally may not admit of any serious contention. The real question however, is whether with the extension of the Rajasthan Tenancy Act, 1955 to Ajmer area and on the language of sec. 206(3) of the Rajasthan Tenancy Act, it is necessary to give them a retrospective effect so as to affect the forum of cases pending on the date of the extension of the Rajasthan Tenancy Act to Ajmer area. For answering this question it is not necessary to decide whether the Act No. 2 of 1958 applies retrospectively as in my opinion, the answer depends upon the proper effect to be given to the language of sec. 3 of the Rajasthan Tenancy Act". For answering this question it is not necessary to decide whether the Act No. 2 of 1958 applies retrospectively as in my opinion, the answer depends upon the proper effect to be given to the language of sec. 3 of the Rajasthan Tenancy Act". Thus, it is the language of the repealing law that has been taken to be the determining factor of deciding whether the pending cases would be affected by it, or would be continued to be governed by the repealed enactment. The language of sec. 206(1) of the Tenancy Act leaves no doubt, as has been held by the Board in case No. 19 ( Jhunjhunu) 1960 referred to above, that the present suit though commenced under the provisions of the Act should have, with the promulgation of the Act No. 2 of 1958, been deemed to have been commenced under the Tenancy Act, and heard, tried and determined thereunder. The remedy to the party aggrieved thereby also would be available under the Tenancy Act and not the Act. The reason is obvious when the suit is to be deemed to have been commenced under the Tenancy Act, it would be the right of appeal provided under this Act that would vest in the parties and not the one of confirmation etc. available to them before the promulgation of the Act No. 2 of 1958. This does not even affect adversely the right of the parties in any way. They get right of two appeals as against one of confirmation and revision alone thereafter under the Act. As held, following the authority of 1960 RLW 617— Shodayal vs. Brijalal by the Board in Appeal No. 4(Kota) 1960 decided on 25.1.1961 to which one of us also was a party, if the repealing enactment improves and not deteriorates the right of the parties, in matter of appeal, no vested right of theirs can be called to have been affected. Another aspect of law bearing on the decision of this appeal may also be referred to here. It is whether the applicants will be entitled, after the promulgation of the Act No. 2 of 1958, to the rights available to them under the Act or to those available under the Tenancy Act. The reply would be found to this point also under sec. 3 of the Tenancy Act which deals with repeal. It is whether the applicants will be entitled, after the promulgation of the Act No. 2 of 1958, to the rights available to them under the Act or to those available under the Tenancy Act. The reply would be found to this point also under sec. 3 of the Tenancy Act which deals with repeal. As stated above the repeal is complete, and it does not save anything from the repealed act. On the other hand sub-secs. (3) and (4) of this section very clearly lay down that any custom or usage relating to agricultural tenancies prevailing at the commencement of this Act in any part of the pre-reorganisation State of Rajasthan or at the commencement of the Act No. 2 of the 1958 in Abu, Ajmer and Sunel areas, having the force of law shall if such custom or usage is repugnant to or inconsistent with the provision of this Act, cease to be operative to the extent of such repugnancy or inconsistency; and so also the provision of any agreement relating to agricultural tenancies existing and operative at such commencement repugnant or inconsistent with the provision of such Act shall subject to such savings as may be elsewhere provided in this Act No. 2 of 1958 become void and cease to be operative to the extent of such repugnancy or inconsistency. The Act No. 2 of 1958 also clearly lays down that the provisions of secs. 6 and 9 General Clauses Act shall apply to such repeal and supersession. Sec. 6(c) of the General Clauses Act very clearly lays down that it is only when a different intention did not appear from the language of the repealing Act that the repeal shall not affect any right, privilege etc. acquired or accrued under any repealed enactment. Section 3 of the Tenancy Act declaring no such intention, expressly or by implication, and on the other hand sec. 161 thereof very clearly laying down that all ejectments after the enforcement of the Act were to be in accordance with the provisions thereof alone, it would be the provisions of the Tenancy Act and this Act alone that would govern the lis found pending and therefore deemed to have been commenced under this Act vide sec. 2o(i) thereof. 161 thereof very clearly laying down that all ejectments after the enforcement of the Act were to be in accordance with the provisions thereof alone, it would be the provisions of the Tenancy Act and this Act alone that would govern the lis found pending and therefore deemed to have been commenced under this Act vide sec. 2o(i) thereof. This application will have, therefore, to be decided under the provision of Chapter XI of the Tenancy Act and not those of the Act, repealed by the Act No. 2 of 1958. To conclude: we accept this revision, set aside the judgment and decree of both the learned courts below and remand the case back to the learned S.D.O. Ajmer with the direction that it would be heard and tried and decided afresh in accordance with the provisions of the Rajasthan Tenancy Act, 1955 keeping in view the observations made above. Any party aggrieved thereby would prefer an appeal, instead of moving for confirmation under sec. 223 thereof.