MAKNNDA NAYAKO v. SUNA OMANATYA — 1972 DIGILAW 193 (ORI)

JUDGMENT : R.N. Misra, J. - The Petitioner has asked for a writ of certiorari for quashing the orders passed by the, "competent -authority" under Orissa Regulation No. 2 of 1956 (hereinafter referred to as the Regulation) in O.S.A.T. I.P.R. Case No. 128 of 1968. 2. On 18.9.1968, the opposite party No. 1 made an application in the Court of the Special Officer, Nowrangpur on the allegation that he was a member of the schedule tribe and in breach of the provisions of the Regulation a sale deed was taken from him in regard to the lands in question and, therefore, the sale was void; he should be put in possession of the property and given other ancillary reliefs. The vendee, according to the opposite party No. 1, was the opposite party No. 2 who does not belong to the scheduled tribe. The opposite party No. 2 filed a written statement alleging that he was not the vendee; the property bad been purchased by one Trinath Naik. (brother of the Petitioner) and had been leased out to him on bhag basis. The said Trinath Naik, the vendee, is a member of the scheduled tribe and, therefore, no permission was necessary for the transfer and the petition for being put in possession under the provisions of Orissa Regulation No. 2 of 1956 was thus not maintainable. In 1967, Trinath Naik died and on his behalf his brother Makunda Naik received the bhag paddy representing the widow of Trinath. On 13-2-1969, Makunda Naik, brother of Trinath Naik, applied for being added 808 a party and contended that he and his deceased brother Trinath were joint. Trinath had purchased the property in question and had let it out to the opposite party No. 2 on bhag basis. The opposite party No. 2 had no right, title or interest in the lands apart from being a mere bhag-chasi. In the proceeding witnesses were examined for both sides. The competent authority ultimately came to hold that the real transferee was Trinath Bisoi, the opposite party No. 2. The consideration money came from him and he being not a member of the scheduled tribe the sale deed was taken in the name of Trinath Naik, a friend of his, so as to avoid the provisions of the Regulation. The competent authority ultimately came to hold that the real transferee was Trinath Bisoi, the opposite party No. 2. The consideration money came from him and he being not a member of the scheduled tribe the sale deed was taken in the name of Trinath Naik, a friend of his, so as to avoid the provisions of the Regulation. He, therefore, held that it was a benami transaction; the actual purchaser being not a member of the scheduled tribe the sale was in violation of the provisions of the Regulation and accordingly he declared the sale to be void and ordered possession to be restored to the opposite party No. 1. He also levied a penalty of Rs. 500/- as provided u/s 3(1) of the Regulation. 3. u/s 3(3) of the Regulation an appeal is provided. In the instant case the appeal would have been before the Collector of the district. The Petitioner did not avail of the statutory remedy and came before this Court. 4. The opposite parties have appeared, bot have not filed any counter. Several contentions have been raised in the writ petition, but two of them have been mainly pressed at the time of hearing of the application. They are: (1) The real purchaser was the brother of the Petitioner. The sale deed is in his name. The question of benami is not a matter within the jurisdiction of the competent authority to decide. Therefore, it was not open to the competent authority, the opposite party No. 8, to have held that the sale was in favour of the opposite party No. 2. (2) The opposite party No. 1 belongs to the Omanatya caste. This casts was not included in the Constitution (Scheduled Tribes) Order, 1950 and for the first time came to be so included by the provisions of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956, (63 of 1956)(hereinafter referred to As the Central Act). This Central Act (63 of 1956) received Presidential absent on 25-9-1956. Orissa Regulation 2 of 1956 was assented to by the President on 21-9-1956. The Central Act became effective then it received Presidential assent as per Section 5(1)(b) of the General Clauses Act, 1897. This Central Act (63 of 1956) received Presidential absent on 25-9-1956. Orissa Regulation 2 of 1956 was assented to by the President on 21-9-1956. The Central Act became effective then it received Presidential assent as per Section 5(1)(b) of the General Clauses Act, 1897. Orissa Regulation 2 of 1956 came into force with effect from 4-10-1956 as per the provisions of Section 3(1)(ii) of the Orissa General Clauses Act, 1937; yet the Presidential assent given on 21-9-1956 was with reference to the scheduled tribes as provided for in the Constitution (Scheduled Tribes) Order, 1950, and not under the amending Central Act. As the opposite party No. 1 was not a member of the Scheduled tribe within the Regulation, his application was not tenable under the Regulation and the opposite party No. 3 exercised jurisdiction which was not vested in him when he entertained such application and decided the same in favour of the opposite party No. 1. 5. A preliminary objection was raised against the maintainability of the petition on account of the fact that the Petitioner did not avail of the statutory remedy provided under the Regulation. It is well settled that such a position does not bar the jurisdiction of this Court under Articles 226 and 227 of the Constitution. While it is expedient that statutory remedies should be exhausted before this Court's extra-ordinary jurisdiction is invoked, an application made invoking the extra ordinary jurisdiction of the High Court cannot be thrown out as being not maintainable as a rule because the statutory remedy has not been availed. An interesting question has been raised for examination and in the circumstances we do not propose to throw out the petition on that technical ground. The preliminary objection is, therefore, overruled. 6. The first question raised on behalf of the Petitioner has been concluded by this Court. It has been found that the competent authority has been vested with the jurisdiction to decide whether an alienation is contrary to the provisions of the Regulation. Such power must include the authority to decide as to who are the real vendor and vendee, and keeping the intention of the Regulation in view this Court his decided that if the power to decide whether the alienation is benami or not is held not to have been given to the competent authority by the Regulation, the real purpose of the Regulation would be frustrated. We humbly agree with the view expressed in this Court and, therefore, the first question must be taken to have been concluded. The objection to the decision of the opposite party No. 3 on such score must, therefore, be rejected. 7. The next question was argued at great length by the learned Counsel for the parties. It is not disputed that the Omanatya casts was for the first time included in the Schedule of Scheduled Tribes for the State of Orissa under the Central Act 63 of 1956. The argument on behalf of the Petitioner has been built up. on the footing that with reference to Orissa Regulation 2 of 1956 scheduled tribes shall be understood as provided for in the original order of the President made in 1950 in exercise of the powers vested under Articles 342 of the Constitution and the amending Act which came into force after the Presidential assent was given to the Orissa Regulation cannot be taken into account. The Central Act has been made by Parliament in terms of the provisions of Article 342(2) of the Constitution. The original order had been made in exercise of powers vested in the first sub-article. The learned Additional Government Advocate appearing for the opposite party No. 3 contends that the provision of Section 8(1) of the General Clauses Act applies and, therefore, after the amendment of the Presidential Order of 1950 by the Central Act 63 of 1956, reference to scheduled tribes shall be as provided for under the Central Act. Section 8(1) of the General Clauses Act (10 of 1897) provides: Where this Act, or any Central Act or Regulation made after the commencement of this act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. For the opposite parties 1 and 3 it is contented that in terms of therefore said provision in the General Clauses Act the reference in Section 2(e) of the Regulation to the words "Constitution, (Schedule Tribes) Order, 1950" must be with reference also to the Central Act. For the opposite parties 1 and 3 it is contented that in terms of therefore said provision in the General Clauses Act the reference in Section 2(e) of the Regulation to the words "Constitution, (Schedule Tribes) Order, 1950" must be with reference also to the Central Act. An inclusive definition is provided for the term "enactment" in Section 3(19) of the General Clauses Act and it is to the following effect: "enactment" shall include a regulation (as herein after defined) and any regulation of the Bengal, Madras or Bombay Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid. A definition of the word "regulation" occurs in Section 3(50) of the General Clauses Act thus: Regulation' shall mean a Regulation made by the President under Article 240 of the Constitution and shall include a Regulation made by the President under Article 243 thereof and a Regulation made by the Central Government under the Government of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act, 1919, or the Government of India Act, 1935. The learned Counsel for the Petitioner contends-that the Orissa Regulation is not covered u/s 8(1) of the General -Clauses of because it is neither an enactment nor a regulation as defined in the General Clauses Act. We shall advert to this aspect of the matter a little later. 8. It is not contended that a different intention appears in the repealing enactment, that is, the Central Act. Though there was some argument at one stage of the hearing that the Central Act is not a repealing and re-enacting enactment, we have gathered the Impression that such a question was not later on pressed. Law on the question seems to been settled that even If without a complete repeal and a complete re-enactment some provision of the statute is repealed and replaced by a new enactment, such a situation would be covered by Section 8(1) of the General Clauses Act. See Emperor v. Rayangouda Lingangouda AIR 1944 Bom. 259. 9. Reliance is placed in support of the Petitioner's contention that the provision of Section 8(1) of the General Clauses Act would not be attracted in the present case, on a decision of the Privy Council in AIR 1931 149 (Privy Council) . See Emperor v. Rayangouda Lingangouda AIR 1944 Bom. 259. 9. Reliance is placed in support of the Petitioner's contention that the provision of Section 8(1) of the General Clauses Act would not be attracted in the present case, on a decision of the Privy Council in AIR 1931 149 (Privy Council) . The Judicial committee was called upon to decide whether an amendment to the Land Acquisition Act of 1894 brought in 1921 could be read for the purposes of the Calcutta Improvement Act (Bengal Act 5 of 1911) where reference had been made to the Ltd Acquisition Act of 1894. The point for consideration was as to whether the subsequent amendment to the Land Acquisition Act of 1894 could be taken into account. Dealing with this aspect of the matter at page 152 of the Reporter Sir George Lowndes spoke for the Judicial Committee thus: But their Lordships think that there are other and perhaps more cogent objections to this contention of the Secretary of States, and their Lordships are not prepared to hold that the sub-section in question which was not enacted till 1921, can be regarded as Incorporated in the Local Act of 1911. It was not part of the Land Acquisition Act when the Local Act was passed, nor in adopting the provisions of the Land Acquisition Act is there any thing to suggest that the Bengal Legislature intended to bind themselves to any future addition which might be made to that Act. It is at least conceivable that new provisions might have been added to the Land Acquisition Act which would be wholly unsuitable to the local Code. Nor, again, does Act 19 of 1921 contain any provision that the amendments enacted by it are to be treated as in any way retrospective, or are to be regarded as affecting any other enactment than the Land Acquisition Act itself. Their Lordships regard the local Act as doing nothing more than incorporating certain provisions from an existing Act, and for convenience of drafting doing so by reference to that Act, Instead of setting out for itself at length the provisions which It wall desired; for adopt. Their Lordships have not been referred to anything In the General Rules of Construction embodied in the General Clauses Act 1897, which supports the contention of the Secretary of State, nor to any authority which favoure it. Their Lordships have not been referred to anything In the General Rules of Construction embodied in the General Clauses Act 1897, which supports the contention of the Secretary of State, nor to any authority which favoure it. In this country, it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first Statute does not affect the second see the cases collected in "Craies on Statute Law" Edn. 3, pp. 349-50. This doctrine finds expression in a common-form section 'which regularly appears in the Amending and Repealing Acts which are passed from time to time In India. The section runs: The repeal by this Act of any enactment shall not affect any Act... in which such enactment has been applied, incorporated, or referred to. The Independent existence of the two Acts is therefore recognised; despite the death of the parent Act, its offspring survives in the incorporating Act. Though such saving clause appears in the General Clauses Act, their Lordships think that the principle involved is as applicable in India as it is in this country. It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be Incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition. This decision of the Judicial Committee came to be dealt with at great length by their Lordships of the Supreme Court in Collector of Customs v. Sampathu Chelly AIR 1952 S.C. 315. In Paragraph 37 of the judgment it was said thus: In support of this conclusion the learned Judges of the High Court have relied largely on the decision of the Privy Council in AIR 1931 149 (Privy Council) . We consider that the legislation regarding which the Privy Council rendered the decision bears no resemblance, whatever for the matter now on hand and that the ruling in AIR 1931 149 (Privy Council), cannot therefore furnish any guidance or authority applicable to the integration of Section 23-A of the Foreign Exchange Regulation Act. We consider that the legislation regarding which the Privy Council rendered the decision bears no resemblance, whatever for the matter now on hand and that the ruling in AIR 1931 149 (Privy Council), cannot therefore furnish any guidance or authority applicable to the integration of Section 23-A of the Foreign Exchange Regulation Act. To consider that the decision of the Privy Council has any relevance to the construction of the legal effect of the terms of Section 23-A of the Foreign Exchange Regulation Act is to ignore the distinction between a mere reference to or a citation of one statute in another and an incorporation which in effect means the bodily, lifting of the provisions of one enactment and making it part of another as much as that the repeal of the former leaves the latter wholly untouched. In the case, however, of a reference or a citation of one enactment by another without incorporation, the effect of a repeal of the one 'referred to' is that set out in Section 8(1) of the General Classes Act. Several instances of incorporation and citation were placed before us keeping the test laid down In such cases we have no doubts in our mind that the reference in Section 2(e) of the Regulation was a citation and not in corporation. Thus the provision of Section 8(1) of the General Clauses Act would be applicable. The effect thereof would be that in place of the Presidential Order of 1950 the Central Act can be read provided the other conditions are satisfied. 10. There remains, however, another question which is of considerable importance for decision before the question can be taken to be closed. We have already indicated the definition of "enactment" as also "regulation" given in the General Clauses Act. If the Presidential Order would not amount to an enactment, then application of Section 8(1) of the General Clauses Act would not be attracted. In the instant case a Central Act does repeal and re-enact (see Central Act 63 of 1956). The question to answer is-does it do so with reference to any provision of a former enactment? If the Presidential Order would not amount to an enactment, then application of Section 8(1) of the General Clauses Act would not be attracted. In the instant case a Central Act does repeal and re-enact (see Central Act 63 of 1956). The question to answer is-does it do so with reference to any provision of a former enactment? Otherwise put, the question is - "Is the Presidential Order of 1950 a former enactment?" As already indicated, the Central Act is in exercise of powers conferred on Parliament under Article 342(2) of the Constitution, and the Presidential Order of 1950 was made in exercise of powers vested under the first sub-article. The Presidential Order, therefore, enacted under the authority of the Constitution. Though strictly speaking with reference to the definition of "enactment" and "regulation", the Presidential Order may not be either an enactment or a regulation, the principle embodied in Section 8(1) of the General Clauses Act can be applied. 11. National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee) Mahajan J., as his Lordship then was, stated thus: The canon of construction of statutes enunciated in Section 33, Interpretation Act and reiterated with some modifications in Section 8, General Clauses Act is one of general application where statutes or Acts have to be construed and there is no reasonable ground for holding that rule of construction should not be applied in construing the character of the different High Courts. These characters were granted under statutory powers and are subject to the legislative power of the Indian Legislature. Assuming however but not conceding, that strictly speaking the pro visions of the interpretation Act and the General Clauses Act do not for any reason apply, we see no Justification for holding that the principles of construction enunciated in those provisions have no application for construing these characters. These observations of their Lordships of the Supreme Court directly support the contention of the learned Additional Government Advocate. The Presidential Order has the authority of the Constitution itself and is subject to Parliamentary legislation. Therefore, the situation is similar to what was before the Supreme Court. In Mistra Nand Kaushik Vs. State of Uttar Pradesh and Another the principles laid) down in the aforesaid case were applied. In Management of the Advance Insurance Co. Ltd. Vs. Gurudasmal, Supdt. The Presidential Order has the authority of the Constitution itself and is subject to Parliamentary legislation. Therefore, the situation is similar to what was before the Supreme Court. In Mistra Nand Kaushik Vs. State of Uttar Pradesh and Another the principles laid) down in the aforesaid case were applied. In Management of the Advance Insurance Co. Ltd. Vs. Gurudasmal, Supdt. of Police and Others applioation of Section 8(1) of the General Clauses Act was extended to a notification under an Act. Once it is found that the principle In Section 8(1) of the General Clauses Act is applicable, the reference to the Presidential Order in Section 2(e) of the Regulation shall be with reference to the law brought about by the Central Act. Therefore, the alienation in question which came long after the Central Act would be within the purview of the Regulation and the competent authority under the Regulation had thus full jurisdiction to deal with the situation. His order, therefore, is not open to challenge on the ground that jurisdiction did not vest in the competent authority to deal with the application made by the opposite party No. 1. The opposite party No. 1 was a member of the schedule tribe. The disputed alienation was a benami transaction. The real owner was not a member of the schedule tribe and, therefore, the alienation has been rightly found to be void. The levy of penalty is in terms of the Regulation. 12. We would accordingly uphold the order and dismiss the writ application. We shall, however, leave the parties to bear their own costs. B.K. Ray, J. 13. I agree.