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1987 DIGILAW 130 (MP)

HUKUMCHAND AGARWAL v. STATE OF M. P.

1987-04-02

B.C.VARMA, K.N.SHUKLA

body1987
K. N. SHUKLA, J. ( 1 ) FOLLOWING question has been referred by one of us (Shukla, J.) for opinion. "whether on facts of the instant case the appeal under section 6-C of the Essential Commodities ,act lay before the Sessions Judge or the State Government?" ( 2 ) BRIEF facts as stated in the order of reference are as follows :-on 18-4-1980, Dy. Collector Raigarh inspected the shop and godown of the applicant at Gharghoda and reported certain irregularities. Collector, Raigarh issued a notice under section 6-B of the Act to the applicant in respect of alleged irregularities. Not beirig satisfied with the explanation submitted by the applicant, he passed an order dated 26-2-1981 confiscating the entire stock of rice and wheat under section 6-A of the Act for contravention of clause (3) of the M. P. Food Grains Dealers Licensing Order, 1965. The applicant filed an appeal before Sessions Judge, Raigarh under section 6-C of the Act. The learned Sessions Judge by order dated. 3-11-1982 set aside the order of confiscation passed by the Collector and remanded the case to him for recording evidence on the question whether 19 quintals of wheat was the produce of applicant's cultivation or not. The Collector after recording evidence passed an order dated 4-4-1984 holding the applicant guilty of contravention of section 3 (iii) of the Act and ordered confiscation of 19 quintals of wheat. The applicant appealed against the order of confiscation dated 4-4-1984 before Sessions Judge, Raigarh. Learned Sessions Judge held that by virtue of the Essential Commodities (Special Provision) Act of 1981 (No. 18 of 1981) appeal against the order of the Collector lay only before the State Government and the appeal before the Court of Sessions Judge was incompetent. On merits also he held that the applicant was unable to prove his case that the wheat was the produce from his own agricultural land. ( 3 ) IN view of the conflicting decisions of the Full Bench of the Gujarat High Court in H. N. Bhavsar v. State of Gujarat 1976 Cri LJ 84 and of the Patna High Court in Ram Beyas v. State of Bihar 1977 Cri LJ 28 it was thought necessary to get the matter resolved by a larger bench. The Essential Commodities (Special Provisions) Act 1981 was published in Gazette of India on 2-9-81. The Essential Commodities (Special Provisions) Act 1981 was published in Gazette of India on 2-9-81. Section 5 of this Act amended section 6-C of the Essential Commodities Act, 1955 (the Principal Act substituting the State Government concerned; as the appellate authority in place of the judicial authority which in this State was the Sessions Judge.) In Garikapati Veerava v. N. Subbaiah Choudhary, AIR 1957 SC 540 it was held that the right of appeal is a substantive right and the institution of the proceedings carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment. In the cited case the question about the forum had not arisen but on an interpretation of Articles 133 and 135 of the Constitution of India it was held that if on the basis of valuation of the suit the appeal against the judgment of the High Court lay to the Federal Court at the time of the institution of the suit, then even after abolition of Federal Court on coming into force of the Constitution of India, the party had a right, notwithstanding different requirements under Article 133 of the Constitution, to file an appeal before the Supreme Court in accordance with the law as it stood when the suit was filed. It was observed that this right of appeal on conditions as they stood on the date of the institution of the suit had not been taken away either expressly or by necessary intendment by the Constitution of India. ( 4 ) IN Custodian of Evacuee Property v. Khan Saheb Abdul Shukoor etc. AIR 1961 SC 1087 their Lordships considered and followed G. Veerava's case ( AIR 1957 SC 540 ) (supra) but noted that even G. Veerava's case laid down that 'such right could be taken away expressly or by necessary intendment. ' In Custodian's case (supra) the constitutional Bench held that the right of appeal before a particular forum was taken away and another forum was provided for appeal. ' In Custodian's case (supra) the constitutional Bench held that the right of appeal before a particular forum was taken away and another forum was provided for appeal. It was observed 'this is, therefore, in our view a case where by necessary intendment' (though not by express provision) the legislature intended that the provision as to appeal provided by subsequent legislation should supersede the provision as to appeals under the first Mysore Act. We may point out that this is not a case where the right of appeal disappears altogether; all that happens is that where the order is passed by the Custodian the appeal lies to the Custodian General instead of to the High Court. The legislature has provided another forum where the appeal will lie and in the circumstances it must be held that by necessary intendment the legislature intended that forum alone to be the forum where the appeal will lie and not the forum under the first Mysore Act' (emphasis by us ). ( 5 ) IT may be useful to refer briefly to the facts in the Custodian's case ( AIR 1961 SC 1087 ) for fully comprehending the observation and the statement of law made by the Supreme Court in that case. On July 7, 1949, the State of Mysore passed the Mysore Administration of Evacuee Property Act (the First Mysore Act ). The Act provided that the custodian was to hold a summary enquiry and pass an order rejecting or allowing the claim advanced by any person in respect of any right to any notified property. Section 30 of the said Act provided an appeal to the High Court where the order had been passed by the Custodian. Two claims had been filed under the First Mysore Act by the two respondents. The claims were dismissed by the Custodian. In the meantime the Second Mysore Act changed the forum of appeal and instead of the High Court appeal against the order of the Custodian lay to the Custodian General. The question before the High Court was whether appeal would lie before the Custodian General as per the Second Mysore Act or before the High Court as per the First Mysore Act which was in force when the claim was made. The High Court held that the appeal before it were competent as the claimants had a vested right to the forum also. The High Court held that the appeal before it were competent as the claimants had a vested right to the forum also. This decision of the High Court was reversed on the basis of the statement of law made by the Supreme Court and reproduced earlier. It was held by the Supreme Court while allowing the appeal that by necessary intendment the amended law had changed the forum of appeal and, therefore, the appeal lay before the Custodian General and not the High Court. ( 6 ) LEARNED counsel for the applicant referred to a D. B. Decision of this Court in Dhruvanath Singh v. Shivnaresh Sharma 1975 Jab LJ 319. The case is not in point because the Court was construing section 484 of the Code of Criminal Procedure which provided for repeal and saving. It was clearly laid down that appeal, application, trial etc. pending when the new Code came into force shall be disposed of or continued in accordance with the Old Code. It may be noted that the High Court was not considering an enactment where the forum of appeal was changed during the pendency of the original action. ( 7 ) IN H. N. Bhavsar's case (1976 Cri LJ 84) (Guj) (FB) (supra) cognizance of the offence was taken prior to the coming into force of the New Criminal Procedure Code. The case was however disposed of and accused was convicted after the new Code came into force. The question arose whether the appeal would lie before the appellate Court as per the Old Code or the New Code. The Full Bench held that the accused had acquired a vested right to appeal before the forum which existed on the date on which the cognizance of the offence was taken i. e. as provided under the Old Code. The Full Bench of the Patna High Court in the case of Ram Beyas (1977 Cri LJ 28) (supra) dissented from the Gujrat decision and held that the right of appeal existing on the date of filing of the criminal case was preserved but the forum was not so preserved and, therefore, the appeal lay before the appellate Court in accordance with the New Code. ( 8 ) THE Gujarat and the Patna High Courts were construing section 484 (2) of the Code of Criminal Procedure which dealt with repeals and savings. ( 8 ) THE Gujarat and the Patna High Courts were construing section 484 (2) of the Code of Criminal Procedure which dealt with repeals and savings. Though reference may be made in a general way to these decisions, in fact, they are not exactly on the point raised in this revision. ( 9 ) AN important decision of the Supreme Court which has considered the scope and effect of the leading Privy Council case Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369 and the case of Veerava ( AIR 1957 SC 540 ) (supra) in Maria Christine De Souza Soddar v. Maria Zurna Pereira Pinto, AIR 1979 SC 1352 in our opinion, clinches the Controversy. In that case an action was initiated before the Comarco Court at Margao. The value of the property exceeded Rs. 10,000/ -. In the meantime the Central Civil Procedure Code, 1908 was extended to Goa, Daman and Diu by Act no 30 of 1965. The Portuguese Code was also amended by Goa, Daman and Diu Civil Courts Act (Act No. 16 of 1965) and the suit continued before the Senior Civil Judge who decreed it in March 1968. The question which arose was whether the appeal lay before the Judicial Commissioner's Court as provided under the Code of Civil Procedure read with section 22 of the Goa, Daman and Diu Civil Courts Act or to the Court under the Old Portuguese Code. Their Lordships after referring to the Colonial Sugar Refining Co. Ltd. and Veerava's cases (supra) observed that it was no doubt well-settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced in the Court of the first instance, and such right or any remedy in respect thereof will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy in respect thereof. However their Lordships added a significant rider which is as follows :-"but the forum where such appeal can be lodged is indubitably a procedural matter and, therefore, the appeal, the right to which has arisen under a repealed Act, will have to be lodged in a forum provided for by the repealing Act. However their Lordships added a significant rider which is as follows :-"but the forum where such appeal can be lodged is indubitably a procedural matter and, therefore, the appeal, the right to which has arisen under a repealed Act, will have to be lodged in a forum provided for by the repealing Act. That the forum of appeal and also the limitation for it, are matters pertaining to procedural law will be clear from the following passage appearing at page 462 of Salmond's Jurisprudence. "after making this observation the Supreme Court reproduced the passage from Salmond's Jurisprudence which is as under :-"where I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but inwhat courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the courts fulfil their functions. "the above case thus lays down the law on the subject and it is clear therefrom that if the repealing Act provides a forum of appeal different from the forum provided in the repealed Act, it is a matter of procedure only and an appeal will lie in accordance with the forum provided by the repealing Act. Otherwise also it may be assumed that by necessary intendment though not expressly, the legislature had while amending section 6c of Essential Commodities Act substituted the forum of appeal. ( 10 ) THE Calcutta High Court in the case of Gopal Chandra Pal v. State of West Bengal, 1983 Cri LJ 1540 however has considered this very amendment to section 6-C of the Essential Commodities Act. ( 10 ) THE Calcutta High Court in the case of Gopal Chandra Pal v. State of West Bengal, 1983 Cri LJ 1540 however has considered this very amendment to section 6-C of the Essential Commodities Act. Learned Judges have therein held that where the accused had a right of appeal to the District Judge on the day the order of confiscation was passed, the appellate authority would be the District Judge in accordance with section 6-C as it stood prior to the coming into force of the Special Provisions Act, 1981 amending the forum of appeal under section 6-C. ( 11 ) IN view of the decisions of their Lordships of the Supreme Court in the Custodian of Evacuee Property ( AIR 1961 SC 1087 ) and Maria Christine De Souza Soddar ( AIR 1979 SC 1352 ) (supra) the Calcutta case with respect, cannot be considered as good law. It appears that the above cases were not brought to the notice of the learned Judges of the Calcutta High Court. ( 12 ) WE, therefore, answer this question as follows, On facts of the instant case the appeal under section 6-C of the Essential Commodities Act lay before the State Government and not the Sessions Judge. Reference answered accordingly. .