Narain Singh v. State of Rajasthan — 1973 DIGILAW 112 (RAJ)

K.S. Ujwal, Member—The learned Member of the Board who heard the petition in these two revision matters, referred the following question for the opinion of this Bench:— "In land ceiling cases which were pending on the day the Rajasthan Imposition of Ceiling on Agricultural Holdings Ordinance 1973 was promulgated, is the Board competent to continue to hear and to decide revisions in accordance with the law repealed by sec. 40 of the Ordinance and, if not, how are such cases to be disposed of?" Before we proceed to discuss the arguments advanced by the learned counsel for the parties and other members of the Bar who appeared for assisting the Bench in deciding the important question of law arising out of this reference, we propose to narrate, the circumstances leading to these revisions. The petitioners are tenant and in proceedings under chapter III B of the Rajasthan Tenancy Act as it was in force, at the time of the institution of the proceedings and the rules framed under the said Act, the concerned S..D.O. proceeded to determine the area of the land that the petitioners could be allowed to retain. In other words proceedings for fixing the ceiling area applicable to the petitioner were started in accordance with the law as in force at the commencement of the proceedings. Appeals were preferred against the orders made by the learned S.D.O. in the court of the Revenue Appellate Authority, Udaipur, who decided the appeals against the petitioners. Aggrieved by the orders of the first appellate court, the petitioners filed applications under sec. 230 Rajasthan Tenancy Act. All these proceedings were taken while chapter III B of the Rajasthan Tenancy Act was on the statute book. After filing of these applications under sec. 230 Rajasthan Tenancy Act, the Governor of Rajasthan promulgated on the first day of January, 73, the Rajasthan Imposition of Ceiling on Agricultural Holdings Ordinance, 1973, to be hereafter called the Ordinance. Sec. 40 of the Ordinance which is reproduced below for ready reference, provides for the repeal of chapter III-B subject to two exceptions and for the repeal of clause 6-A of sec. 5 of the said Act. "40-Repeal—Except as otherwise provided in second proviso to sub-sec. (1) of sec. 4 and in sub-sec. (2) of sec. 15 Chapter III-B of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) and clause (6-A) of sec. 5 of the said Act. "40-Repeal—Except as otherwise provided in second proviso to sub-sec. (1) of sec. 4 and in sub-sec. (2) of sec. 15 Chapter III-B of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) and clause (6-A) of sec. 5 of the said Act are hereby repealed." When the two revisions, from which the present reference arises came up for hearing before a single Member Bench of this Board after the promulgation of the Ordinance, it was urged by the learned counsel for the petitioner that on account of the repeal of Chapter III-B in the manner described in the previous paragraph and its replacement by the Ordinance, applications under sec. 230 Rajasthan Tenancy Act, for revising orders made in ceiling cases, cannot proceed. Some time before these revisions came for hearing before the learned single Member, objection against the maintainability of the revisions in ceiling cases after the promulgation of the Ordinance was taken in the case of Devilal vs. State (1973 RRD 264) and another Member of the Board sitting in single Bench held that sec. 6 of the Rajasthan General Clauses Act permitted the continuance of revision proceeding arising out of the repealed Act. It was contended before the learned Member making the reference that the learned single Member who decided Devilals case did not consider the effect of Sec. 3 of the Ordinance, that this sec. 3 indicated the existence of a different intention within the meaning of sec. 6 of the Rajasthan General Clauses Act and that moreover the Ordinance has other provisions in indication of the intention of the legislature to deprive revision proceedings under the repealed law of the protection given by sec. 6(e) of the Rajasthan General Clauses Act. The learned single Member who made this reference finding that an important question of law arose out of this objection and noticing that the decision in the Devilals case did not show that sec. 3 was considered, referred the matter for decision by a Division Bench. We have heard the learned counsel who appeared before us on behalf of the parties and those who came forward to give their opinion on this important question and we are thankful to them for the assistance that they rendered. 3 was considered, referred the matter for decision by a Division Bench. We have heard the learned counsel who appeared before us on behalf of the parties and those who came forward to give their opinion on this important question and we are thankful to them for the assistance that they rendered. It would be proper here to say that since the pronouncement of the order making this reference the Ordinance has been replaced by Act No. 11 of 1973 (The Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973). The learned counsel who appeared before us were requested to keep this change, namely the replacement of the Ordinance by the Act, in view while discussing the matter and though this change has been kept in view, it would be pertinent to record that the change does not have a material effect upon the question posed by the present reference in as much as the law contained in sec. 3, the second proviso to sec. 4 sub-sec. (1), sec. 15(2) and sec. 40 of the Ordinance is contained in the corresponding provisions of the Act also. As the determination of the question posed by the reference depends upon the provisions of the above sections and pari materia provisions exist in the Act, the view taken by us would, it is admitted on all hands, apply to the effect of the provisions of the Act on revision cases pending from before the promulgation of the Ordinance. We have carefully read the decision in Devilals case. Shri G. P. Sharma appearing for the petitioner argued that sec. 6(e) of the General Clauses Act cannot authorise the continuance of revision proceedings, because sec. 3 of the Ordinance shows the existence of a different intention within the meaning of sec. 6 of the General Clauses Act and as such the repealing Act would completely replace the repealed provisions and govern not only the rights and liabilities of the party in respect of the matters covered by the two enactments, but also take away the right of revision given by the Tenancy Act by necessary implication because the repealing Act does not provide for the remedy of revision. He further contended that the second proviso of sec. 4(1) and sec. 15(2) of the Ordinance support the view that the legislature did not intend that pending proceedings would be governed by the repealed law. He further contended that the second proviso of sec. 4(1) and sec. 15(2) of the Ordinance support the view that the legislature did not intend that pending proceedings would be governed by the repealed law. It was argued that need for this proviso and sec. 15(2) would not have arisen if the legislature had intended that the protection of sec. sec. 6(e) would be available to proceedings under the old provision. Shri Dharmchand Jain argued that the Ordinance and the Act affected the rights of the parties. He referred to sec. 4(2) and sec 6 which, according to him, give the tenant certain rights over and above those given by the repealed law. Galling the Ordinance a substantive law he argued on the authority of AIR 1973 Supreme Court 12 (The Central Bank of India vs. Workmen etc.), 1970 RRD 387 (Shri Uma vs. Shri Kajor) AIR 1965 Supreme Court 1076 (Regional Provident Fund Commissioner, Punjab vs. Shibu Metal Works), that the right of revision given by the repealed provisions cannot be exercised after the repeal. It was further contended that the purpose of the present legislation was to remove the defects and short-comings of Chapter III-B of the Rajasthan Tenancy Act, that it is a remedial measure and according to accepted rules of interpretation, remedial laws should be interpreted to advance the remedy and suppress the mischief. Shri Shiv Narain Singh said that no one has a vested right in procedure and as such laws governing procedure have a retrospective effect while substantive laws even when repealed, determine the right of the parties as they existed before the repeal unless the repealing Act takes away such rights. Shri Jyoti Swaroop contended that sec. 3 and sec. 40 of the Ordinance convey a different intention within the meaning of sec. 6 of the General Clauses Act and hence the result of the repeal is that the old Act ceased to exist for all purposes. He further contended that the Ordinance and the new Act were promulgated because the Government considered the repealed provision inadequate for the achievement of its social objectives and the very purpose of this change would be defeated if the old case are governed by the old Act. He further contended that the Ordinance and the new Act were promulgated because the Government considered the repealed provision inadequate for the achievement of its social objectives and the very purpose of this change would be defeated if the old case are governed by the old Act. Shri Yagya Dutt referred to A.I.R. 1958 Bombay 507 (Sadaseo vs. Hemaji Hiraman Bakde), I.L.R. 1960 M.P. 124, A.I.R. 1965 Saurashtra 77 (Shah Himmat Amulkh vs. The State) and argued that the provisions of Chapter III B of the Rajasthan Tenancy Act ceased to have effect from the date of the promulgation of the Ordinance and hence the new Act would apply. Shri S.N. Parikh emphasised the difference between clause c) and clause (e) of sec. 6 of the Rajasthan General Clauses Act and stated that the legislature has by making a change in the right of the parties, conveyed its intention of repealing the old provision and sec. 3 of the Ordinance shows the existence of a different intention within the meaning of sec. 6 of the Act so far as the substantive right of the parties are concerned. He observed that the reference requires the determination of forum for hearing the revision and that since this question would be covered by clause (e) of sec. 6 of the General Clauses Act, the forum provided in the repealed Act will continue as held in 1962 R.R.D. 95 (Gulia vs. Abdul Shakoor). He further urged that it has been held by the Supreme Court in A.I.R. 1957 S. C. 540 (Carikapati Veeraya vs. Subish Choudhry) that the right of appeal and revision will not be affected by repeal unless a different forum is provided by the repealing Act. Shri N.S. Chordiya argued that the revisions cannot be heard, that the matter will be governed by the New Act and since a party cannot be deprived of his right to appeal or revision, the revision will have to be treated as an appeal, for which provision exists in the repealing Act, and decided as an appeal. Shri Udai Prakash Mathur appearing on behalf of the State (non-petitioner) supported the view taken by this Board in Devi Lals case (1973 R.R.D. 264). He argued that sec. 40 does not provide for pending cases. It was, therefore, necessary to decide the matter with reference to the provisions of sec. 6 of the Rajasthan General Clauses Act. Shri Udai Prakash Mathur appearing on behalf of the State (non-petitioner) supported the view taken by this Board in Devi Lals case (1973 R.R.D. 264). He argued that sec. 40 does not provide for pending cases. It was, therefore, necessary to decide the matter with reference to the provisions of sec. 6 of the Rajasthan General Clauses Act. Referring to the provisions of sec. 3 and other relevant sections of the Ordinance, he contended that these did not convey a different intention within the meaning of sec. 6 of the General Clauses Act and hence notwithstanding the repeal, the present revisions are protected by the provisions of sec. 6 of the General Glauses Act. He cited a number of authorities in support of his contention. The repealed provisions were a part of the Rajasthan Tenancy Act which provides for revision, while the new law which re-enacts the law on ceilings does not provide for revision of the orders made by authorised officer or the Collector. The revisions under consideration are, therefore, legal proceedings under the repealed law within the meaning of clause (e) of sec. 6 of the Rajasthan General Glauses Act and hence if it were to be held that sec. 6 applied, the repeal would not affect the revisions. It has been held in A.I.R. 1950 Madras 106 (S. A. Seshadri Vs. Narayana) that an application to the Government in revision under Rent Control Order pending at the time of the expiry of the order was not affected by the expiry of the rent Control Order. Similarly in A.I.R. 1957 Supreme Court 540 (Carikapati Veeraya vs. Subish Choudhry) it has been held that the right of appeal is a vested right and where the appeal is maintainable on the date of suit and by subsequent changes in law, in a suit of the valuation is not maintainable, the maintainability of the appeal under the provisions of the repealed law will not be affected by the change. In this case it was observed by the Honble Judges of the Supreme Court that the right of appeal is not a mere matter of procedure but is a substantive right and the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto for the remaining carrier of the suit. On the basis of the above two authorities it can be said that a revision maintainable under repealed law and filed before he appeal, would not be affected by the repeal because of the provision of sec. 6(e) of he General Clauses Act unless it is shown that a different intention within the meaning of sec. 6 appears from the repealing Act. The effect of repeal can now be considered in a general way. It is pertinent to note that under common law a repealed Act was deemed as having never existed, in the absence of a provision to the contrary, except as to matters and transaction passed and closed. Hence were it not for sec. 6 of the General Clauses Act the provisions of law contained in Chapter III-B would be deemed to have never existed because of sec. 40 of the Ordinance and the new Act which repeals Chapter III-B. Sec. 6 of the General Clauses Act is a provision to the contrary within the meaning of the common law rule. On account of sec. 6 aforesaid whenever there is a repeal the consequences laid down in sec. 6 will follow unless, as the section itself says a different intention appears. In the case of a simple repeal there is scarcely any room for the view that the legislature had a different intention within the meaning of this section. However, in most cases it is not a question of simple repeal but re-enactment and fresh legislation repealing the old Act. In such cases it would be necessary to look in to the provisions of he new Act for ascertaining whether there is nothing therein to indicate the existence of a different intention. The above view has been clearly propounded in some of the authorities cited by the learned counsel for the two parties. It has been held for instance in A.I.R. 1955 Supreme Court 84 (State of Punjab vs. Mohar Singh) that whenever there is a repeal, the consequence laid down in sec 6 of the General Glauses Act will follow unless as the section itself says, a different intention appears. Similarly in 1957 R. R. D. 106 (Shishupal Singh vs. Ram Swaroop) it was held that sec. 6, General Glauses Act would not be applicable when a different intention appears from the new Act. Similarly in 1957 R. R. D. 106 (Shishupal Singh vs. Ram Swaroop) it was held that sec. 6, General Glauses Act would not be applicable when a different intention appears from the new Act. In A.I.R. 1958 Bombay 507 (Sadasheo Jagannath Bara-patra vs. Hemaji Hiraman) it has been held that the normal effect repealing a statue is to obliterate it from the statute book as completely as if it has never been passed; it must be considered as a law that a never existed, but to this rule an exception is made by the provisions of sec. 6 of the General Glauses Act. Other authorities cited by the learned counsel for the parties and having direct earing on the point are A.I.R. 1954 Hyderabad 204 (Waheed Hasa vs. State of Hy-derabad) and I.A.R. 1954 Saurashtra 77 (Thakkar Damji Raghavji vs. Jamiyat Ram Kapoorchand). On the basis of the authorities cited by the counsel, it can be said as a general proposition that on repeal, the repealed law is considered as having never existed and to this general proposition sec. 6 of the General Glauses Act provides an exception by providing tor the applicability of the repealed law to transactions that are complete and closed or to pending proceedings and accrued remedies etc. as enumerated in sec. 6. The rule propounded in AIR 1951 Allahabad 485 (Raghu Raj Singh vs. Sobha-man) is very relevant for our purpose. Normally statutes are to be construed is referring to future events and are not to be given a retrospective effect. Even if an enactment is retrospective in operation it should not be given a larger retrospective effect than is absolutely necessary and further even where an enactment is retrospective it does not necessarily affect pending cases. This will be so where sec. 6 of the General Glauses Act does not apply because of the existence of different intention within its meaning. Where this section is applicable, the repeal of an enactment does not prima-facie affect pending actions which are to be decided as if the repealed enactment was still in force. Coming now to sec. 6 General Glauses Act we find as held in the above authorities and clearly provided in the section itself that a repeal would not affect legal proceedings or remedy in respect of any right etc. Coming now to sec. 6 General Glauses Act we find as held in the above authorities and clearly provided in the section itself that a repeal would not affect legal proceedings or remedy in respect of any right etc. acquired, accrued or incurred under the repealed enactment by the very fact of the repeal unless a different intention appears. The question whether in the present case the revisions are or are not effected by the re-enacted law which repealed the earlier provisions would therefore, depend upon the determination of the question whether or not there is anything in the new Ordinance or the Act from which a different intention within the meaning at sec. 6 appears in the new Act. It was argued by the learned counsel for the petitioner and some of the amicus curiae that sec. 3 of the Ordinance in the new Act conveyed existence of a different intention within the meaning of the section. See. 3 is reproduced below:— "3. Ordinance to over-ride other laws, contracts etc. The provisions of this Ordinance shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force, or any custom usage or decree or contract or decree or order of a court or other authority." This section gives the Ordinance and the Act an over reading effect on other laws It contains what is called a non-obscene clause and provides for the supremacy of the provisions in this Act over provisions in other laws for the time being in force where such provisions in other laws are inconsistent with anything contained in the Ordinance and the new Act. The non-obscene clause is to be understood as operating to set aside as no longer valid anything contained in an existing law which is inconsistent with the new enactments. It is pertinent to note that sec. 3 give the Ordinance and the Act an over-riding effect over inconsistent provision in other laws for the time being in force. The non-obscene clause is to be understood as operating to set aside as no longer valid anything contained in an existing law which is inconsistent with the new enactments. It is pertinent to note that sec. 3 give the Ordinance and the Act an over-riding effect over inconsistent provision in other laws for the time being in force. The provisions of this section can therefore be availed of in respect of laws which ate in force and since the provisions of Chapter III B, are not in force any more on account of repeal, the contention that this clause stands in the way of the old laws governing the decision of cases filed before the repeal by virtue of the General Clauses Act, would not be justified. Sec. 3 does not contain any word or expression suggesting that the new Act will have retrospective operation. On behalf of the State it was contended by Shri U. P. Mathur that a different intention can he said to exist only if as held in A.I.R. 1951 Supreme Court 128(K.M Menon vs. State of Bombay). It is expressly provided in the new Act that the new law would govern pending cases. In this case it has been held that every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operation. Applying this rule to the instant case we can say that the Ordinance and the new Act are prima facie prospective and it is for the party alleging the contrary to show that the Act and the Ordinance contain an express provision giving it a retrospective operation or that the language of the Ordinance and Act necessarily lead to the conclusion that the Legislature intended these laws to have a retrospective operation. Neither sec. 3 nor the other provisions of the Ordinance or the Act expressly provide for the retrospective operation of this law. Nor is there anything in the new law to lead necessarily to the conclusion that the legislature intended that the protection given by sec. 6 of the General Clauses Act to proceedings started under the repealed Act would not be available to be ceiling matters after the promulgation of the Ordinance. The language used in sec. 3 is not different from the language used in other enactments replacing repealed laws which have a prospective operation. 6 of the General Clauses Act to proceedings started under the repealed Act would not be available to be ceiling matters after the promulgation of the Ordinance. The language used in sec. 3 is not different from the language used in other enactments replacing repealed laws which have a prospective operation. The provisions of this section do not in our opinion warrant the view that the new Act and Ordinance do not fall in the general category of statutes which have, as held by Honble Supreme Court in the above mentioned case, prima facie a prospective operation. The controversy may be examined from another point of view. If the new law were to have retrospective operation the fate of the large number of appeals filed under the old Act and pending in the courts of Revenue Appellate Authorities would be in jeopardy Now the right of appeal is not a mere matter of procedure but a substantive right and it has been held by the Honble Supreme Court in A I. R. 1957 S. C. 540 (Carikapati Veeraya vs. Subish Choudhry) that this vested right of appeal can be taken away by a subsequent enactment if such subsequent enactment provides expressly or by necessary intendment and not otherwise. There is nothing in the new Act or the Ordinance to suggest that the remedy of appeal provided in the old Act has been taken away by the new Act. It was suggested by one of the amicus curiae that these revisions should be treated as appeal under the new Act. The appeal provided by the new Act lies with the Collector. These revisions have been filed against the orders of the Revenue Appellate Authorities. Normally Revenue Appellate Authorities hear appeals against the orders of Collectors and it would be a travesty of administrative propriety to suggest that the legislature could have intended hearing of appeals against the orders of Revenue Appellate Authorities by Collectors. From the point of view of harmonious construction of laws, the suggestion that the revision should be converted into an appeal and sent to the Collector, is not justified. We can next consider the contention that the second proviso to sec. 4(1) and sec. 15(2) of the Act support the view that the legislature intended the new Act to have retrospective operation. We can next consider the contention that the second proviso to sec. 4(1) and sec. 15(2) of the Act support the view that the legislature intended the new Act to have retrospective operation. There is nothing in the above provisions to warrant the view that these provisions expressly or by necessary implication provide for the retrospective operation of law. On the contrary examined in the light of what follows, these provisions support the view that the new law is prospective. The second proviso to sec. 4(1) provides that where the ceiling area as calculated under the new Act is greater than the ceiling area as calculated under the old Act in any particular case, the case would be governed by the old Act. The ceiling area under the old Act is still to be determined in a large number of pending cases. If the old Act had been replaced with retrospective operation by the new Act, the pending cases cannot be decided under the old Act. The cases will be decided under the new Act and ceiling area applicable under the old Act would never be determined in pending cases (which includes appeals and revisions) if we were to take the view that the pending cases are not protected by sec. 6 of the General Clauses Act. The proviso only protects the result of the cases decided against the old Act. It does not provide that the pending cases would be decided under the old Act. To achieve the legislatures objective of the determination of the ceiling area in such cases under the old Act the provisions of sec. 4 would not be sufficient and if the legislature had felt that the provisions of the new Act could be deemed to warrant the view that the old Act would not apply to cases pending at the time of the promulgation of the Ordinance specific provision for keeping such cases alive to determine the ceiling area applicable under such cases would have been made. The fact that no such provision was made can be taken to justify the view that the legislature believed that such proceedings are protected by sec. 6 of the General Clauses Act and further there was nothing in the new Act to make the new Act applicable by express provision or by necessary implication to pending cases. The fact that no such provision was made can be taken to justify the view that the legislature believed that such proceedings are protected by sec. 6 of the General Clauses Act and further there was nothing in the new Act to make the new Act applicable by express provision or by necessary implication to pending cases. On the basis of the above discussions we are of the opinion that there is nothing in the Ordinance or the Act to warrant the view that sec. 6(e) of the General Clauses Act would not apply to proceedings, under the law repealed by sec. 40 of the Act, during the pendency of such proceedings. The reference is therefore answered as follows:— Land ceiling cases pending on the date the Rajasthan Imposition of Ceilings on Agricultural Holdings Ordinance 1973 was promulgated would be protected by sec. 6 (e) of the Rajasthan General Clauses Act and revisions under sec. 230 Rajasthan Tenancy Act pending in the Board would be heard and decided by the Board in accordance with the law in force at the time of the filing of the revision applications.