Research › Browse › Judgment

Allahabad High Court · body

1981 DIGILAW 378 (ALL)

Atru v. Shuggan

1981-03-23

G.S.TIWARI, I.B.SINGH, R.S.VARMA

body1981
JUDGMENT I.B. Singh, Member - This Full Bench has been constituted for deciding the following 3 points of law referred by Sri J.S. Gupta, the then Member, Board of Revenue, by his order dated October 24, 1978:- (i) Whether 'repeal' and 'omission' have the same meaning in legal terminology? (ii) Whether the present suit can be continued under the provisions of erstwhile Section 138 of the U.P. Z.A and Land Reforms Act which has since been omitted, as contemplated by Section 6 of the General Clauses Act? If not whether after coming into force of U.P. Ordinance No. I of 1977 with effect from January 28, 1977, the present suit can automatically be treated as a suit under Section 176 of the U.P. Z.A and L.R. Act, as all the Sirdars have become bhumidhars? (iii) Whether in the peculiar circumstances of the present case, the order of the Additional Commissioner, dated August 17, 1973, treating the suits as one under Section 138 of the U.P. Zamindari Abolition and Land Reforms Act would operate as res judicata, even after a prayer has been made subsequent to the above amendment that it be treated as one under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act? 2. In point No. 2 referred above Ordinance No. 1 of 1977 mentioned in it has been repealed by Section 75 of U.P. Act No. VIII of 1977 which came into force on July 24, 1977 and by Section 10 of that Amending Act of 1977 Section 138 of the principal Act (i.e. Act No. 1 of 1951) has been omitted, therefore, question No. 2 is referred as follows:- Whether the present suit can be continued under the provisions of erstwhile Section 138 of the U.P. Zamindari Abolition and Land Reforms Act which has since been omitted, as contemplated by Section 6 of the General Clause Act? If not whether after coming into force of U.P. Ordinance No. 1 of 1977 with effect from January 28, 1977 and after coming into force of U.P. Act No. VIII of 1977 which came into force on July 24, 1977, the present suit can automatically be treated as a suit under Section 176 of the U.P. Z.A and L.R. Act, as all the Sirdars have become Bhumidhars. 3. We have heard the learned counsel for the parties and have perused the record. 4. 3. We have heard the learned counsel for the parties and have perused the record. 4. It has been argued on behalf of the respondent that words 'omission' and 'repeal have got the same meanings and are synonymous and Section 6(e) of U.P. General Clauses Act as amended in 1975 is applicable and at least its principle is applicable and the suit under Old Section 138 and appeal arising out of it should be continued as there is no provision in the U.P. Amending Act No. VIII of 1977 as to what will happen to such suits and appeals or revisions arising out of them. It was further argued that the decision of Sri P.C. Govil, in Ram Nath v. Anganoo Second Appeal No. 162 of 1969-70, Azamgarh. a similar controversy was decided that suit under old Section 138 of Act No. 1 of 1951 shall be continued if pending prior to the coming into force of the Ordinance and Amending Act which was upheld by his Lordship Mr. Justice R.B. Misra in Ram Nath v. Board of Revenue Civil Misc. Writ Petition No. 2599 of 1980. which view should be followed. It was further argued that there is no bar in allowing the suit to be treated under Section 176 of Act No. 1 of 1951 and principle of res judicata are not applicable as originally the suit was treated by the trial court under Section 176 of Act I of 1951. 5. It was argued in reply that the word 'repeal' has not got the same meaning as the word 'omission' that by Section 10 of U.P. Act. No. 8 of 1977 old Section 138 of Act I of 1951 has not been repealed but has been omitted, therefore, Section 6(e) of U.P. General Clause Act is not applicable which deals with the effect of repeal of any Act and does not deal with omission of any Section, therefore, this appeal and the suit cannot be allowed to proceed. It was further argued that amendment sought for cannot be allowed for treating the suit under Section 176 of Act I of 1951 because the position taken by the respondent in first appeal that it was a suit only under Section 138 of Act I of 1951 cannot be allowed to be changed and principle of res judicata shall be applicable. Reliance has been placed on 1964 (S.C.) 923, 1980 (S.C.) 942, 1971 (S.C.) 2177, Section 105(2) of the Civil Procedure Code. 6. Word 'repeal' means to revoke, or annul and word 'omit' means to leave out or not to inset or to include. In U.P. General Clauses Act in Section 6 the effect of omission has not been given only the effect of repeal has been given. Its sub-section (e) which runs as follows lays down the effect of repeal regarding legal proceedings commenced before the repealing Act comes into operation:- Section 6(e) "affect any remedy, or any investigation or legal proceeding concerned before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid. and any such remedy may be enforced and any such investigation or legal proceedings may be continued and concluded, and any such penalty, forfeiture or punishment imposed as if the repealed Act had not been passed." Thus there is no two opinion that the suit or proceedings instituted prior to the coming into force of the repealing Act shall be continued as if the repealed Act has not been passed. 7. Section 10 of Act VIII of 1977 which came into force on July 24, 1977 omitted Section 138 of Act I of 1951 by repealing Ordinance No. 1 of 1977 which too had omitted Section 138 of Act I of 1951 which had come into force on January 22, 1977. Section 211-A of the Act was also omitted by U.P. Act No. XXXV of 1976. It has been held in this respect in Sukhbir Singh v. Kapoor Singh Reference No. 510 of 1977-78. Muzaffarnagar decided on November 20, 1980 by one of us that by omitting Section 211-A the proceedings concerned under that section before the repealing Act came into force shall be continued and conducted as if the repealing Act has not been passed. 8. It is true that a charge in the law of procedure operates retrospectively and that pending litigation should be governed not by the preceding law but by the new law. If by an Act of Parliament the mode of procedure is altered, there is no way out then but to proceed according to the altered mode. 8. It is true that a charge in the law of procedure operates retrospectively and that pending litigation should be governed not by the preceding law but by the new law. If by an Act of Parliament the mode of procedure is altered, there is no way out then but to proceed according to the altered mode. It has been so held in Abadijan and another v. Otermal A.I.R. 1952 (Vindhya Pradesh) page 39, A.I.R. 1953 (S.C.) 915. These ruling do not help where no alternative procedure is provided by the amending Act which is the law at present. Section 138 of Act I of 1951 has been merely omitted and has not been substituted by any new provision, therefore, as has been held in 1978 R.D. 298 and 1965 R.D. 256 even if some provision would have been made to omit Section 138 of the Act retrospectively although there is no such provision, it would have been difficult to give retrospective effect to the amended procedural law because then the stage has to be looked into if the stage would have been initial i.e., the case has not been finally decided by the trail court. Retrospective effect of the amended procedure law should be given effect to but if validly judicial order had been passed and the stage is that of appeal then such amendment should not be given retrospective effect. For this reason too it cannot be validly stated that as Section 138 has been omitted, therefore all suits and proceedings initiated before commencement of the Ordinance and the amending Act in question shall have to be terminated although there is no such provision in the amending Act. 9. In A.I.R. 1944 (F.C.) page 1 it has been held as follows: "On the principle embodied in Section 6(e), the result of the repeal of an enactment on cases pending at the time of the repeal would be that they would continue as if the enactment had not been repealed. But this is subject to the qualification that the repealing enactment contains no provision or indication to the contrary." 10. In A.I.R. 1951 (Alld.) page 485 (F.B.). It has been held as follows: "Even where an enactment is retrospective, it does not necessarily affect pending cases. But this is subject to the qualification that the repealing enactment contains no provision or indication to the contrary." 10. In A.I.R. 1951 (Alld.) page 485 (F.B.). It has been held as follows: "Even where an enactment is retrospective, it does not necessarily affect pending cases. Under Section 6, General Clauses Act, 1897, 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." 11. U.P. Act No. VIII of 1977 contains no provision or indication that cases initiated under Section 138 of the Act prior to the coming into force of the amending Act will be terminated. Therefore, by mere omission of Section 138 by the Amending Act cases pending under the Section prior to the coming into force of the amending Act would continue as if the amending Act has not come into force and at least principle embodied in Section 6(e) of the U.P. General Clauses Act as amended in 1976 should be applied to the pending cases under Section 138 of the Act as if that section has not been omitted by the amending Act. The effect of repeal or omission is almost the same and they should be considered to be almost synonymous for their effect as far as application of Section 6(e) of the U.P. General Clauses Act is concerned. 12. We are supported in our view by decision of Section Appeal No. 162 of 1969-70, Azamgarh decided on July 19, 1980 and by decision of Civil Misc. Writ Petition No. 8599 of 1980 Ram Nath v. Board of Revenue dated January 8, 1981 upholding the view taken into the above second appeal. 13. Suit filed under old Section 138 of Act I of 1951 cannot be automatically treated as a suit under Section 176 of Act I of 1951 merely because all the Sirdars have become a Bhumidhars on coming into force of U.P. Act No. VIII of 1977. Old Section 138 and Section 176 both existed in Chapter VIII of Act I of 1951 and provided two types of relief, they co-existed, therefore, it cannot be accepted that although Section 138 of the Act was omitted Section 176 of the Act was substituted in its place. Old Section 138 and Section 176 both existed in Chapter VIII of Act I of 1951 and provided two types of relief, they co-existed, therefore, it cannot be accepted that although Section 138 of the Act was omitted Section 176 of the Act was substituted in its place. There is no such provision in the amending Act and such intention too cannot be construed when there is no basis in the amending Act for it. 14. The order of the learned Additional Commissioner dated August 17, 1978 treating the suit as one under Section 138 of Act I of 1951 on the admission on behalf of the respondent although the suit was decided by the trial court to be one under Section 176 of the Act is binding on the respondent. He cannot be allowed to change the position which he accepted before the first appellate court and obtained favourable order as the principles of res judicata and estoppel shall be applicable against the respondent. The prayer on behalf of the respondent to treat the suit to be under Section 176 of Act I of 1951, therefore, cannot be allowed also because it will amount to changing the very nature of the suit. 15. Our answers to the above points are as follows:- (i) that the word 'repeal' and 'omission' have almost the same meaning and effect in legal terminology as far as application of Section 6(e) of the U.P. General Clauses Act is concerned. Unless a different intention is gathered from the amending Act itself. (ii) that the suits filed under old S 138 of Act I of 1951 prior to coming into force of U.P. Ordinance No. 1 of 1977 and U.P. Act No. VIII of 1977 should be continued under old Section 138 of the Act as if the U.P. Ordinance No. 1 of 1977 or U.P. Act, No. VIII of 1977 have not been passed and that a suit under old Section 138 of the Act cannot be automatically treated to be a suit under Section 176 of Act I of 1951. (iii) that in the circumstances of the case the order of the learned Additional Commissioner dated August 17, 1973, treating the suit as one under Section 176 of Act I of 1951 is binding on the respondent on the application of the principles of res judicata and estoppel and the prayer to treat the suit to be under Section 176 of 1951 should be rejected. 16. Let the file be sent to the member concerned with our above findings for disposing off the second appeal according to law.