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1971 DIGILAW 165 (KAR)

VENKATAPPA ALIAS CHINNAPPA v. S. N. VENKATESHATAH

1971-06-09

DATAR

body1971
( 1 ) PETITIONER in these revision petitions is the defendant. Plantiffs-Respondents filed two suits; OS. No. 152 of 1967 and OS. No. 130 of 1967, for recovery of certain amount due to them. The defendant is the same in both the suits. Two issues were raised as to whether the defendant was an agriculturist as defined by S. 2 of the Mysore Agriculturists Relief Act at the time of the suit transactions and whether the suit was in time. The learned trial Judge recorded the evidence and came to the conclusion that the defendant was an agriculturist as defined by S. 2 of the Mysore Agriculturists relief Act, and therefore, held that the suit was within time. It is the correctness of the findings an these issues that is challenged in these two revision petitions. ( 2 ) SRI N. Raghupathy, learned Counsel appearing for the petitioner in both the petitions, contended that the finding that the income of the petitioner was only Rs. 1500 per year was not justified by the evidence on record. Having regard to the material on record, I am of the view that this finding cannot be said to be erroneous and so it cannot be interfered with. ( 3 ) SRI Raghupathy raised another contention that the question of determination of the issues arising under the Mysore Agriculturists Relief act of 1928 does not arise for consideration as that Act was no more in operation. In support of that contention, reliance was placed upon the decision of this Court in P. V. Rangaswamy v. Shah Krishnaji Valaji and co. , 1971 Mys. L. J. 350. wherein Venkataswami, J. held as follows: "on the Mysore Agricultural Debtors' Relief Act, 1966 being held to be unconstitutional by the High Court, the earlier Mysore Agriculturists relief Act 1928 which was repealed by the 1966 Act, did not stand revived. " in my view, the view taken by Venkataswami, J. is not in accordance with the principle laid down in the judgment of the division Bench of this court in C. M. Gopala Setty v. Channarayapatna Town Municipality, 1970 1 Mys. L. J. 278. as also of the Supreme Court judgment in Shri Mulchand Odhavaji v. Rajkot Brorough Municipality, AIR. 1970 SC. 685. ( 4 ) IT is by S. 64 (2) of the Mys. L. J. 278. as also of the Supreme Court judgment in Shri Mulchand Odhavaji v. Rajkot Brorough Municipality, AIR. 1970 SC. 685. ( 4 ) IT is by S. 64 (2) of the Mys. Agricultural Debtors Relief Act, 1966 that the provisions of the Mysore Agriculturists Relief Act, 1928 were repealed. The constitutional validity of this Act was challenged and this Court in D. M. Thippeswamy v. State of Mysore, 1970 1 Mys. L. J. 43. struck down the previsions of the Mysore Agricultural Debtors Relief Act, 1966. If the provisions of the Mysore Agriculturists Debtors' Relief Act of 1966 are declared unconstitutional and struck down, there is no Act by which the provisions of the Mysore Agriculturists Relief Act, 1928 have been repealed. In that view, there is no question of the 1928 Act being revived, but the Act which repealed the 1928 Act enactment being held to be unconstitutional, it has to be held that the provisions of the Mysore Agriculturists Relief Act, 1928, have not been repealed at all. ( 5 ) IN the case in C. M. Gopala Setty's case (2) cited above, this is what has been laid down:"it is only when Rules and bye-laws are validly made under the 1964 Act, that the corresponding Rules and Bye-laws made under the old Act will be superseded, and if the Rules and Bye-laws made under the 1964 Act are invalid for any reason, the corresponding Rules and bye-laws under the old Act will not be superseded but will continue to be in force. Hence the octroi duty imposed by the Notification dt. 3-2-1966 of Channarayapatna Municipal Council is not ineffective or unenforceable because the octroi bye-laws have not been validly made or because octroi stations have not been specified by the Municipal council under the provisions of the present Act, as the octroi rules and the octroi stations specified under the 1951 Act continued to be effective by virtue of the proviso to S. 382 of the 1964 Act. "the Bench considered the case of Shri Mulchand Odhavji v. Rajkot borough Municipality (3) at page 285 and stated as under:"in 1948, when several States of then known Kathewar entered into a covenant and formed the State of Saurashtra, the Rajapramukh promulgated an Ordinance (which had the force of law as Acts passed by the legislature of the State) adopting and applying the Bombay municipal Boroughs Act, 1925, to the State of Saurashtra. The ordinance enabled the State Government to make bye-laws and rules enabling levy and collection of octroi duty. Those rules and bye-laws would be in force in every Municipality in the State until that Municipality made its own rules and bye-laws. Rajkot Borough Municipality made its own rules and bye-laws for levy and collection of octroi duty. Thereafter the Government issued a notification deleting the name of that Municipality from the schedule of Municipalities in which the rules and bye-laws made by the Government were in force. The result contemplated by that notification, the rules and bye-laws framed by that Municipality and not those framed by the Government would operate in relation to the octroi duty leviable by that Municipality. The rules and bye-laws framed by Rajkot Borough Municipality were found to be invalid. The appellant (in the appeal before the supreme Court) contended that the octroi duty demanded by that municipality, could not be enforced as the rules and bye-laws made by that Municipality, were invalid and that the rules and bye-laws made by the Government under that Ordinance no longer applied. Repelling that contention, the Supreme Court said that the Government rules would cease to apply from the time Rajkot Borough Municipality brought into force its own bye-laws and rules under which it could validly impose and recover octroi duty, that if the rules and bye-laws made by that Municipality, could not legally be in force for some reason or the other, the Government rules would continue to operate as it could not be said that the Municipality had "put into force its independent bye-laws". "it was then stated that if the purported octroi rules made by the Municipal council are invalid then the old octroi rules are not superseded but continue to operate. ( 6 ) IN my view, similar is the position here. "it was then stated that if the purported octroi rules made by the Municipal council are invalid then the old octroi rules are not superseded but continue to operate. ( 6 ) IN my view, similar is the position here. The 1966 Act which repealed the 1928 Act has been struck down, with the result, that there is no repeal of the 1928 Act. In that view, the contention raised by the petitioner's counsel that the provisions of Mysore Agriculturists Relief Act, 1928, are not in operation, and therefore, the question of determination of status does not arise, cannot be accepted. ( 7 ) IN the result, for the reasons stated above, these revision petitions fail and are dismissed. In the circumstances of the case, there will be no order as to costs. --- *** --- .