Over 2 lakh Indian cases. Search powered by Google!

Case Details

BANSIDHAR & ORS versus STATE OF RAJASTHAN & ORS

Supreme Court Cases

1989 AIR 1614 1989 SCR (2) 152 1989 SCC (2) 557 JT 1989 (2) 518 1989 SCALE (1)1091

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


BANSIDHAR & ORS V. STATE OF RAJASTHAN & ORS [1989] RD-SC 105 (29 March 1989)

VENKATACHALLIAH, M.N. (J) VENKATACHALLIAH, M.N. (J) PATHAK, R.S. (CJ) VENKATARAMIAH, E.S. (J) MISRA RANGNATH KANIA, M.H.

CITATION: 1989 AIR 1614 1989 SCR (2) 152 1989 SCC (2) 557 JT 1989 (2) 518 1989 SCALE (1)1091

CITATOR INFO :

R 1990 SC 404 (1)

ACT:

Rajasthan Tenancy Act, 1955: Chapter III-B and ss. 5(6 A) and 30E--Ceiling area--Determination of--Effect of repe al of--Proceedings with reference to appointed date under t he Act--Whether can be initiated and continued under the r e- pealed provisions, even after coming into effect of Raja s- than Imposition of Ceiling on Agricultural Holdings Ac t, 1973--State's right to excess land and land-owner's liabil i- ty to surrender surplus land, on the appointed day--Wheth er a right accrued and liability incurred within the meaning of clause (c) and (e) ors. 6 of Rajasthan General Claus es Act--Whether affected by repeal--Sec. 6 of Rajasthan Gener al Clauses Act--Whether attracted--Whether s. 3 of 1973 Act h as overriding effect as to exclude operation of the 1955 Act.

Rajasthan Imposition of Ceiling on Agricultural Holdin gs Act, 1973: Sections 3, 4(1), 15(2) and 40(1)--Ceili ng area--Determination of--Repeal of Chapter III-B and s. 5(6 A) of the Rajasthan Tenancy Act, 1955--Effect of--Whether cas es as on notified date should be decided under old law--Wheth er rights accrued and liabilities incurred under the old l aw affected--Whether new law has overriding effect over the o ld one.

General Clauses Act, 1897/Rajasthan General Claus es Act, 1955: Section 6---Applicability of--In absence of express reference to the section or of express provisions to similar effect in the repealing Act-Repeal and re-enactme nt on the same subject--Rights accrued and liabilities incurr ed under repealed law--Whether effaced.

Statutory Construction: Repeal and Saving--Rights a nd obligations saved in repealing statute--Whether exhaustive .

HEADNOTE:

Chapter III-B of the Rajasthan Tenancy Act, 1955 pr e- scribing a ceiling on holdings of agricultural lands, a nd cl.(6A) of s. 5, defining 'ceiling area' were introduc ed into the Act by the Rajasthan Tenancy (Amendment) Act, 196 0.

The notified date under the 1955 Act was 153 1.4.1966. Subsequentiy, on 1.1.1973, by the Rajasthan Imp o- sition of Ceiling on Agricultural Holdings Ordinance, 197 3, these provisions were repealed, except to the extent ind i- cated in the second proviso to s. 4(1) and s. 15(2) of t he Ordinance. Certain transfers made by the landholders, ev en during the operation of the-old law, were recognised as valid transfers for the purpose of computation of ceili ng area under the new dispensation brought about by the Ord i- nance. The Ordinance was replaced by the 1973 Act wi th retrospective effect from 1.1.1973. Section 40 of the A ct repealed both the old law in Chapter III-B of the 1955 A ct and the earlier Ordinance.

After the 1973 Act came into force on 1.1.1973 cases f or determination of 'ceiling-areas' under Chapter III-B of t he 1955 Act came to be initiated and were sought to be conti n- ued under the repealed Chapter III-B against the appellan ts including the appellants in C.A. No. 1003(N) of 1977 w ho claimed to have entered into possession and cultivation of certain parcels of land, pursuant to agreements to se ll dated 28.4.1957, said to have been executed, in their favo ur by the then land holder. The sale deeds in this case we re passed on 22.8.1966, after the notified date. Proceedin gs for the fixation of ceiling area in the hands of the th en land-holder were commenced under the repealed Chapter II IB of the 1955 Act, and the purchases in question were held to be hit by s. 3ODD of the repealed Chapter III-B, as appe l- lants did not possess the residential qualifications, pr e- scribed by the section for the eligibility for recogniti on of such transfers.

The appellants approached the High Court, contendi ng that after the coming into force of the 1973 Act which by s.

40, repealed Chapter III-B of the 1955 Act, recourse cou ld not be had to the repealed law for purposes of commencemen t, conduct and conclusion of any proceedings for fixation of ceiling as prescribed under the old law.

Rejecting the contention of the appellants, the Hi gh Court held that the new Act of 1973 did not have the swee p- ing effect of destroying all the rights accrued and liabil i- ties incurred under the old Act.

The correctness of the view of the High Court, w as challenged in the appeals before this Court. Some other wr it petitions were also filed directly in this Court.

On the questions whether (a) the scheme contemplated by the 1973 Act and the different criteria and standards f or the determination of ceiling area envisaged in it and, in particular, having regard to the 154 limited scope of the saving-provision of s. 40 which, qui te significantly, omitted to invoke and attract s. 6 of t he Rajasthan General Clauses Act 1955 to .he repeal of s. 5(6 A) and Chapter III-B of the '1955 Act', must be construed a nd held to manifest an intention contrary' to and inconsiste nt with the keeping alive or saving of the repealed law so as to be invoked in relation to and applied for the pendi ng cases which had not been concluded under the old law befo re the repeal; and (b) even if s. 6 of the Rajasthan Gener al Clauses Act 1955 was attracted and the old law was saved f or the purpose, provisions of the old law could not be invok ed as no right had been "accrued" in favour of the State in relation to the surplus area determinable under the old l aw nor any liability incurred by the land-holders under the o ld law so as to support the initiation of the proceedings f or fixation of ceiling-area under the old law after its repea l.

Dismissing the appeals, Special Leave Petitions and Wr it Petitions, this Court,

HELD: 1.1 When there is a repeal of a statute accomp a- nied by re-enactment of a law on the same subject, t he provisions of the new enactment would have to be looked in to not for the purpose of ascertaining whether the consequenc es envisaged by s. 6 of the General Clauses Act ensued or n ot but only for the purpose of determining whether the prov i- sions in the new statute indicate a different intentio n.

[164F-G] State of Punjab v. Mohan Singh, [1955] 1 SCR 873 referr ed to.

1.2 Mere absence of an express reference to s. 6 of t he General Clauses Act is not conclusive, unless such omissi on is attended with the circumstance that the provisions of t he new-law evince and make manifest and intention contrary to what would, otherwise, follow by the operation of the Se c- tion, the incidents and consequences of s. 6 would follo w.

[163A-B] B. Bansgopal v. Emperor, AIR 1933 All 669 referred to.

1.3 The scheme of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 does not manifest an inte n- tion contrary to, and inconsistent with, the saving of t he repealed provisions of s. 5(6A) and Chapter III-B of t he Rajasthan Tenancy Act, 1955 so far as pending cases a re concerned, and the rights accrued and liabilities incurr ed under the old law are not effaced. The indicia that the o ld law was not effaced are in s. 15(2) and s. 40(1) read wi th second proviso to s. 4(1) of the new Act. [167G; 165E] 155

1.4 The High Court was right in holding that the openi ng words of s. 15(2) "without prejudice to any other reme dy that may be available to it under the Rajasthan Tenancy Ac t, 1955" clearly showed that the pending cases had to be go v- erned by the old law, and if transactions past and clos ed had to be reopened and decided afresh under the provisio ns of the repealed law, and the ceiling area under Chapter I II of the 1955 Act had to be fixed under its repealed prov i- sions, then it must follow, as a necessary corollary, th at the pending cases must be decided under the old law, a nd that the expression "law for the time being in force" d id not take within its sweep a law "deemed to be in force" an d, therefore, the opening words of s. 3 of 1973 Act would n ot have an overriding effect so as to exclude the old la w.

[167A-D] Rao Shiv Bahadur Singh and Anr. v. The State of Vindh ya Pradesh, [1953] SCR 1188 and Chief Inspector of Mines v.

K.C. Thapar, AIR 1961 SC 838 referred to.

2. A saving provision in a repealing statute is n ot exhaustive of the rights and obligations so saved or t he rights that survive the repeal. [167D-E]

1. T. Commissioner U.P. v. Shah Sadiq and Sons, AIR 19 87 SC 1217 @ 1221 referred to.

3.1 For purpose of clauses (c) and (e) of the Rajasth an General Clauses Act, 1955, the "right" must be "accrued" a nd not merely an inchoate one. the distinction between what is and what is not a right preserved by s. 6 of the Gener al 'Clauses Act is often one of great fineness. What is una f- fected by the repeal is a right 'acquired' or 'accrue d' under the repealed statute and not "a mere hope or expect a- tion" of acquiring a right or liberty to apply for a righ t.

[168E]

3.2 The right of the State to the excess land was n ot merely an inchoate right under the Rajasthan Tenancy Ac t, 1955, but a right "accrued" within the meaning of s. 6(c) of the Rajasthan General Clauses Act, 1955. [172D] The rights and obligations under s. 30E of the 1955 A ct had had to be determined with reference to the notified da te i.e. 1.4.1966. The right of the State, to take over exce ss land, vested in It as on the appointed date, and only t he quantification remained to be worked out. The liability of the land-owner to surrender the excess land as on 156 1.4.1966 was a liability "incurred" also within the meani ng of the said provision. [170E;171H; 172D] Lalji Raja v. Firm Hansraj, [1971] 3 SCR 815; Raghuna th v. Maharashtra, [1972] 1 SCR 48 at 57; Bhikoba Shank ar Dhumal (dead) by LRs & Ors. v. Mohan Lal Punchand Tathed

Ors., [1982] 3 SCR 218 at 228; State of Maharashtra v.

Annapurnabai and Ors., [1985] Supp. SCC 273 at 275; Direct or of Public Works v. Ho Po Sany, [1961] 2 All E.R. 721 a nd M.S. Shivananda v. K.S.R. Corpn., AIR 1980 SC 77 at 81 r e- ferred to.

& CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 203 7- 2042 of 1977 etc. etc.

From the Judgment and Order dated 21.10.1976 of t he Rajasthan High Court in D.B. Special appeal Nos. 8, 20, 2 2, 26, 27 and 28 of 1976.

A.K. Sen, V.M. Tarkunde, Shanti Bhushan, Sushil Kum ar Jain, N.D.B. Raju, Ram Kalyan Sharma,Jagdish Nandware, K.

B.

Rohtagi, S.K. Dhingra, R.S. Sodhi and Vineet Kumar for t he Appellants.

C.M. Lodha, Badri Dass Sharma, S.D. Khanduja and Ind ra Makwana for the Respondents.

The Judgment of the Court was delivered by VENKATACHALIAH, J. These appeals, by Special Leave a nd Petitions for grant of Special Leave pertaining to agrari an reform legislation in the State of Rajasthan, arise out of and are directed against the judgment dated 21st Octobe r, 1976, of a full bench of the High Court of Rajasthan, di s- missing a batch of special appeals and affirming the jud g- ment dated 2.12.1975 of the learned Single Judge of the Hi gh Court rejecting appellants contentions against the legali ty of certain proceedings for the fixation of ceiling on agr i- cultural holdings initiated and continued under the Prov i- sions of Chapter III-B of the Rajasthan Tenancy Act, 195 5.

In the Writ-petition filed directly in this Court relie fs similar to those sought before the High Court are claimed.

The principal controversy before High Court in t he proceedings, shorn of its niceties and embellishments, w as whether the proceedings for fixation of ceiling area wi th reference to the appointed dated i.e. 1.4.1966 under Chapt er III-B of the Rajasthan Tenancy Act, 1955, 157 ('1955 Act' for short) could be initiated and continu ed after the coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act (Act No. 11 of 197 3) ('1973 Act' for short) which w.e.f. 1.1.1973 repealed Se c- tion 5(6A) and Chapter III-B of the old Act, i.e. ' 19 55 Act'.

2. Chapter III-B, pertaining to imposition of ceiling on agricultural holdings, in the State of Rajasthan, was intr o- duced into the '1955 Act' by the Rajasthan Tenancy (Amen d- ment) Act, 1960. As a sequential necessity Section 5 w as amended by the introduction in it of Clause (6A) whi ch defined "ceiling-area". The notified-date, as original ly fixed, was 1.4.1965; but owing to the uncertainties impart ed to the implementation of the law by the challenge made to the provisions of Chapter III-B before the High Court a nd the interim-orders of the High Court staying the operati on of the law, Government had had to re-notify 1.4.1966 as t he fresh notified-date, after the challenge to the validity of Chapter III-B had been repelled by the High Court.

By the time, the '1973 Act' was brought into for ce disputes touching the determination of the ceiling areas in 33,471 cases had come to be decided in accordance with t he provisions of Chapter III-B of the earlier '1955 Act'. Aft er the '1973 Act' came into force on 1.1. 1973, some 8,4 94 cases for the determination of 'ceiling-areas' under III -B of the '1955 Act' came to be initiated and were sought to be continued under said Chapter III-B of the repealed '19 55 Act' on the view that the repeal of Chapter III-B of t he 1955 Act by the 1973 Act' did not affect the rights accru ed and liabilities incurred under the old law. Appellant s' principal contention is that after the coming into force of the 1973 Act which, by its 40th Section, repealed Chapt er III-B of the ' 1955 Act', recourse could not be had to t he repealed-law for purposes of commencement, conduct a nd conclusion of any proceedings for fixation of ceiling as prescribed under the old law. This contention has be en repelled by the full bench of the High Court in the judgme nt under appeal. The correctness of view of the full ben ch arises for consideration in these appeals.

3. The factual antecedents in which the controver sy arose before the High Court may be illustrated by the fac ts of one of the appeals. In CA 1003(N) of 1977, the appe l- lants' claim to have entered into possession and cultivati on of certain parcels of land pursuant to alleged agreements to sell dated 28.4.1957 said to have been executed in the ir favour by the then land-holder, a certain Sri Hari Sing h.

The sale deeds were passed only on 22.8.1966, after t he notified-date. Proceed- 158 ings for the fixation of ceiling area in the hands of S ri Hari Singh were commenced under the Repealed Chapter III -B of the '1955 Act'. Appellants' pruchases were held to be h it by Section 30 DD of the said Chapter III-B, which prescrib ed certain residential qualifications, which appellants did n ot possess, for the eligibility for recognition of such tran s- fers. Appellants' contention is that if the new law had be en applied to the case of the vendor, the transfers in the ir favour would have been held valid and that invoking of Chapter III-B of the repealed law was impermissible. Apa rt from the facts of individual cases and their particulariti es the basic question is one of construction-whether the prov i- sions of the old law are saved and survive to govern pendi ng cases.

4. We have heard Sri A.K. Sen, Sri Tarkunde and S ri Shanti Bhushan, learned Senior Advocates for the appellan ts and Sri Lodha, learned Senior Advocate for the State of Rajasthan and its authorities. The appellant's princip al contention--which we perceive as one of construction of statutes--is that the later law made manifest, expressly a nd by necessary implication, an intention inconsistent with t he continuance of the rights and obligations under the repeal ed law and that, accordingly, after 1.1.1973, the date of coming into force of the '1973 Act', no proceedings und er the old law could be initiated or continued.

5. The points that fall for consideration in the se appeals are whether:

(a) the scheme contemplated by and the different criter ia and standards for the determination of "ceiling-area" envi s- aged in the '1973 Act' and, in particular, having regard to the limited scope of the saving-provision of Section 40 thereof which, quite significantly, omits to invoke a nd attract Section 6 of the Rajasthan General Clauses Act 19 55 to the Repeal of Section 5(6A) and Chapter III-B of t he '1955 Act' must be construed and held to manifest an inte n- tion contrary to and inconsistent with the keeping alive or saving of the repealed law so as to be invoked in relati on to and applied for the pending cases which had not be en concluded under the old law before the repeal; and (b) that, at all events, even if Section 6 of the Rajasth an General Clauses Act 1955 was attracted and the old law w as saved for the purpose, provisions of the old-law could n ot be invoked as no right had been ,"accrued" in favour of 159 the State in relation to the surplus-area determinable und er the old law nor any liability "incurred" by the land-holde rs under the old law so as to support the initiation of t he proceedings for fixation of 'Ceiling-area' under the old-l aw after its repeal.

6. Re: Contentions (a) In order that this contention, which is presented wi th some perspicuity, is apprehended in its proper prospective a conspectus of the essential provisions of the earlier l aw and later law pertaining to prescription of ceiling on agricultural holdings is necessary.

In 1955, The Rajasthan Tenancy Act 1955 was enacted.

By the Rajasthan Tenancy (Amendment) Act, for the first tim e, provisions in Chapter III-B prescribing a ceiling on hol d- ings of agricultural lands got introduced into the '19 55 Act'. This amending Act of 1960 received Presidential asse nt on 12th March 1960. The Chapter III-B was, by an appropria te notification, brought into force with effect from 15 th December, 1963. The notified-date, under the '1955 Act', as stated earlier, was 1.4.1965.

Section 5(6A) of the' 1955 Act' defined 'Ceiling-area'.

" "Ceiling area" in relation to land held anywhe re throughout the State by a person in any capacity whatsoeve r, shall mean the maximum area of land that may be fixed as ceiling area under section 30C in relation to such person;

" Section 30B in Chapter III-B provided:

"30. B. Definitions--For the purposes of this Chapter-- (a) "family" shall mean a family consisting of a husband and wife, their children and grand-children bei ng dependent on them and the widowed mother of the husband so dependent, and (b) "person" in the case of an individual, sha ll include the family of such individual." Section 30C providing for the extent of ceiling area said:

160 "30C. Extent of ceiling area-- The ceiling area for a family consisting of five or le ss than five members shall be thirty standard acres of land;

Provided that, where the members of a family exce ed five, the ceiling area in relation thereto shall be i n- creased for each additional member by five standard acre s, so however that it does not exceed sixty standard acres of land.

Explanation--A 'standard acre' shall mean the ar ea of land which, with reference to its productive capacit y, situation, soil classification and other prescribed partic u- lars, is found in the prescribed manner to be likely to yield ten maunds of wheat yearly; and in case of land n ot capable of producing wheat, the other likely produce there of shall, for the purpose of calculating a standard acre, be determined according to the prescribed scale so as to be equivalent in terms of money value to ten maunds of wheat:

Provided that, in determining a ceiling area in terms of standard acres. the money value of the produce of wellirrigated (chahi) land shall be taken is being equiv a- lent to the money value of the produce of an equal area of un-irrigated (barani) land." In exercise of the Rule making powers under the '1955 Act ', the State Government framed and promulgated The Rajasth an Tenancy (Fixation of Ceiling of Land) Government Rule s, 1963, which came into force on and with effect fr om 15.12.1963. Rule 9 required that in order to enable t he Sub-Divisional Officer to determine the ceiling area a p- plicable to every person under Section 30C of the Act and to enforce the provisions of Section 30E, every land-holder a nd tenant in possession of lands, in excess of the ceiling ar ea applicable to him, shall file a declaration within si x- months from the notified-date. The law fixed 30 standa rd acres as the ceiling area. Thereafter, successive amendmen ts were made to Chapter III-B of the '1955 Act' which, whi le maintaining the ceiling at 30 standard acres, howeve r, recognised certain transfers effected after 1958, which we re not originally so recognised in fixing the ceiling. Aga in (by an amendment) of the year 1970, Section 30 (1) w as deleted. The 1955 Act itself came to be included in the IX Schedule to the Constitution by a Parliamentary law. T he challenge to 161 said inclusion was repelled by this Court.

7. On 1.1.1973, the Governor of the State of Rajasth an promulgated The Rajasthan Imposition of Ceiling on Agrilcu l- tural Holdings Ordinance, 1973 under Article 213 of t he Constitution of India. The Ordinance repealed the corr e- sponding provisions relating to ceiling on agricultur al holdings contained in Section 5(6A) and Chapter III-B of t he '1955 Act' except to the extent indicated in the Seco nd proviso to Section 4(1) and Section 15(2) of the said Ord i- nance. The Ordinance brought into existence a new concept of and standards for the "ceilingarea". Certain transfers ma de by the land-holders even during the operation of the old l aw were recognised as valid transfers for purposes of comput a- tion of ceiling area under the new dispensation broug ht about by the Ordinance. This Ordinance was replaced by t he 1973 Act which was made operative retrospectively fr om 1.1.1973 being the date of promulgation of the Ordinanc e.

Section 40 of the '1973 Act' repealed, as did the predece s- sor-Ordinance, both the old law in Chapter III-B of t he '1955 Act' and the earlier Ordinance for which it substitu t- ed.

Section 3, Section 4(1), Second Proviso and Section 40 of the 1973 Act require particular notice.

Section 3 provides:

"3. Act to override other laws, contracts, etc.-- The provisions of this Act shall have effect notwithstandi ng anything inconsistent contained in any other law for t he time being in force, on any custom, usage or contract or decree or order of a court or other authority." The Second Proviso to the Explanation appended to Se c- tion 4(1) of the Act says:

"Provided further that if the ceiling area applicable to a ny person or family in accordance with this section exceeds t he ceiling area applicable to such person or family accordi ng to the provisions of law repealed by section 40, in th at case the ceiling area applicable to such person or fami ly will be the same as was under the provisions of the sa id repealed law." 162 Section 40 provides:

"40. Repeal and savings--(1) Except as provided in seco nd proviso to sub-section (1) of section 4 and in subsecti on (2) of Section 15 of this Act, the provisions of clause (6 A) of section 5 and Chapter III-B of the Rajasthan Tenancy Ac t, 2955 (Rajasthan Act 3 of 2955) are hereby repealed except in the Rajasthan Canal Project area wherein such provisio ns shall stand repealed on the date on which this Act com es into force in that area.

(2) The Rajasthan Imposition of Ceiling on Agricu l- tural Holdings Ordinance, 1973 (Rajasthan Ordinance-I of 1973) is hereby repealed.

(3) Notwithstanding the repeal of the said Ord i- nance under sub-section (2), anything done or any acti on taken or any rules made under the said Ordinance shall be deemed to have been done, taken or made under this Act a nd section 27 of the Rajasthan General Clauses Act, 29 55 (Rajasthan Act 8 of 1955) shall apply to such repeal a nd re-enactment. " Section 41 contains a statutory declaration that t he 'Act' is for giving effect to the directive principles of State policy towards securing the principles specified in Article 39(b) and (c) of the Constitution of India.

8. Appellants' learned counsel contend that when the re is a repeal of a statute followed by a re-enactment of a n ew law on the same subject, with or without modification s, Section 6 of the General Clauses Act is not attracted a nd the question as to the extent to which the repealed law is saved would be dependent upon the express provisions of t he later statute or what must be held to be its necessary a nd completing implications. It was urged that where the repe al is accompanied by a afresh Legislation on the same subjec t, the new law alone will determine if, and how far, the o ld law is saved and that in the absence of an express appeal to Section 6 of the General Clauses Act or of express prov i- sions to similar effect in the new law itself, the prov i- sions of the old law must be held to have been effac ed except whatever had been done, or having effect as if don e.

This argument has the familiar ring of what Sulaiman, C J.

had said on the matter in Rashid Ahmad v. Mt. Anis Fatima & Ors., AIR 1933 All. 3. But it 163 must now be taken to be settled that the mere absence of an express reference to Section 6 of the General Clauses Act is not conclusive, unless such omission to invoke Section 6 of the General Clauses Act is attended with the circumstan ce that the provisions of the new-law evince and make manife st an intention contrary to what would, otherwise, follow by the operation of Section 6 of the General Clauses Act, t he incidents and consequences of Section 6 would follow.

9. Appellants' learned counsel submitted that the legi s- lation in question pertaining, as it did, to the topic of agrarian reform was attendant with the difficulties natura l- ly besetting a task so inextricably intermixed with compl ex and diverse and, indeed, often conflicting socio-econom ic interests had had to go through stages of empirical evol u- tion and that having regard to the wide-diversity of policy-options manifest between the earlier and the lat er legislations, the conclusion becomes inescapable that t he later legislation, made manifest an intention inconsiste nt with and contrary to the continuance of the rights a nd obligations under the repealed law. It was agreed that wi th the experience gained in the implementation of the policy of agrarian reforms embodied in the repealed law, the n ew policy-considerations--reflected in the new and basical ly different thinking on some of the vital components of t he new-policy--were evolved and incorporated in the new law, so much so that the repealed and repealing laws represented t wo entirely different systems and approaches to the policy of agrarian reforms and the two systems, with their mark ed differences on basic and essential criteria underlying the ir policies, could not co-exist. It was urged that the stat e- ment of objects and reasons appended to the 1973 Bill reco g- nised that the legislative policy and technique underlyi ng the old law were ineffective in removing the great dispari ty that persisted in the holdings of agricultural lands or in diluting the concentration of agricultural wealth in t he hands of a few and recognised the necessity "to reduce su ch disparity and to re-fix the ceiling area on the agricultur al holdings so that agricultural land may be available f or distribution to land-less persons". It was pointed out th at material criteria relevant to the effectuation of the ne w- policy made manifest an intention contrary to the surviv al of the policy under the old law. The wide changes in t he policy of the later law which reflected a new and basical ly different approach to the matter, included (i) a fundament al rethinking on the concept of the "ceilling-area" by reduci ng the 30 standard acres prescribed in the old law to 18 stan d- ard acres; (ii) the re-definition of the very concept of 'family' and 'separate unit'; (iii) the point of time wi th reference to which the composition and strength of t he family would require to be ascertained; (iv) a re- 164 thinking, and a fresh policy as to the recognition of tran s- fers made by land-holders including even those transfe rs made during the period of operation of the old law; (v) t he point of time of the vesting of the surplus land in Gover n- ment; (vi) the re-defining of the principles and prioriti es guiding the distribution of the surplus land to landle ss persons, and (vii) the amount to be paid to the land holde rs for the excess land vesting in the State under the new law .

It was submitted that the two laws--the old and t he new-envisaged two totally different sets of values a nd policies and were so disparate in their context and effe ct as to yield the inevitable inference that the policy a nd scheme of the later law, by reason alone of the peculiar i- ties and distinction of its prescriptions, should be held to manifest an intention contrary to the saving of the old l aw even respective pending cases. The ceiling laws, it w as submitted, envisage and provide an integrated and inte r- connected set of provisions and the marked distinctions in the vital provisions in the two sets of laws rendered t he continued applicability of the old law to any case, n ot already finally concluded thereunder, as impermissible in law as unreasonable in its consequences if permitted. It w as urged that Section 3 of the 1973 Act was a clinching indic a- tor in this behalf when it provided that the provisions of the later law "shall have effect notwithstanding anythi ng inconsistent contained in any other law for the time bei ng in force, or any custom, usage, or contract or decree or order of a Court or other authority" (underlining supplie d) and that the old Act, even if it was, otherwise, held to be in force in relation to pending cases, was clearly ove r- borne by Section 3 of the new law.

When there is a repeal of a statute accompanied by r e- enactment of a law on the same subject, the provisions of the new enactment would have to be looked into not for t he purpose of ascertaining whether the consequences envisag ed by Sec. 6 of the General Clauses Act ensued or not--Sec.

6 would indeed be attracted unless the new legislation man i- fests a contrary intention--but only for the purpose of determining whether the provisions in the new statute ind i- cate a different intention. Referring to the way in whi ch such incompatibility with the preservation of old rights a nd liabilities is to be ascertained this Court in State of Punjab v. Mohar Singh, [1955] 1 SCR 893 said:

" ....... Such incompatibility would have to be ascertained from a consideration of all the relevant prov i- sions of the new Law and the mere absence of a saving clause is by itself not material. The provision of Sec. 6 of 165 the General Clauses Act will apply to a case of repeal ev en if there is simultaneous enactment unless a contrary inte n- tion can be gathered from the new enactment. Of course, t he consequences laid down in Section 6 of the Act will app ly only when a statute or regulation having the force of a statute is actually repealed" ....

Addressing itself to the question whether, having rega rd to the particular provisions of the 1973 Act, the inferen ce that the new law manifests such contrary intention cou ld justifiably be drawn, the High Court observed:

"We have, therefore, to examine whether the n ew law expressly or otherwise manifests an intention to wi pe out or sweep away those rights and liabilities which h ad accrued and incurred under the old law ...... " "Having carefully gone through all the authoriti es cited by the parties as referred to above, we are of opini on that the new Act of 1973 does not have the sweeping effe ct of destroying all the rights accrued and liabilities i n- curred under the old law ....... "

10. One of the indicia that the old law was not effac ed is in sec. 15(2) of the new Act. It provides that if t he State Government was satisfied that the 'ceiling-area' in relation to a person as fixed under the old-law had be en determined in contravention of that law, a decided ca se could be re-opened and inquired into it and the 'ceilin g- area' and the 'surplus area' determined afresh in accordan ce with the provisions of the old law. Another indicium is in Sec. 40(1) read with the Second Proviso to Sec. 4(1) o f' 1973 Act' which provides that if the ceiling area applicab le to a person or a family in accordance with the said Se c.

4(1) exceeds the 'ceiling-area' applicable to such perso ns or family, under the old law, then, the 'ceiling-are a' applicable to such person or family would be the same as w as provided under the provisions of the old law.

The High Court relied upon and drew sustenance for i ts conclusion from, what it called, the internal evidence in the Act which, according to the High Court, indicated th at pending-cases were governed only by the old law. The Hi gh Court referred to sec. 15(2) inserted by Act No. 8 of 19 76 and what, according to it, necessarily flowed from it in support of its conclusion. Sec. 15(2) inserted by Act No.

8 of 1976 166 "(2) Without prejudice to any other remedy that m ay be available to it under the Rajasthan Tenancy Act, 19 55 (Rajasthan Act 3 of 1955), if the State Government, aft er calling for the record or otherwise, is satisfied that a ny final order passed in any matter arising under the prov i- sions repealed by Section 40, is in contravention of su ch repealed provisions and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter or evidence which has since come to its notice, such order is required to be re-opened, it ma y, at any time within five years of the commencement of th is Act, direct any officer subordinate to it to re-open su ch decided matter and to decide it afresh in accordance wi th such repealed provisions." (Emphasis Supplied) The High Court referring to the opening words of t he above provisions observed:

"The opening words of the section 'without prejudice to a ny other remedy that may be available to it under the Rajasth an Tenancy Act, 1955 (Act No. 3 of 1955)', clearly show th at the pending cases have to be governed by the old law.

If transactions past and closed have to be reopened and decid ed afresh under the provisions of the repealed law, and t he ceiling area under Chapter III of the Rajasthan Tenancy Ac t, 1955, has to be fixed under its repealed provisions, then it must follow as a necessary corollary, that the pending cas es must be decided under the old law."

11. Sri Lodha, learned counsel for the State of Raja s- than submitted that the 'ceiling-area' had to be fixed wi th reference to the notified date i.e. 1.4.1966 by the statut o- ry standards prescribed under the Chapter III-B of the '19 55 Act'. The two legislations are complementary to each oth er and constitute two tier provisions. So far as the cases th at attracted and fell within Chapter III-B of 1955 Act, as on 1.4.1966, would continue to be governed by that law as t he fights and obligations created by the said Chapter III -B amounted to create rights and incur liabilities. Shir Lod ha submitted that the view taken by the High Court was unexce p- tionable.

12.. On a careful consideration of the matter, we are i n- clined to 167 agree with the view taken by the High Court on the poin t.

The reliance placed by appellants' learned counsel on t he provisions of Sec. 3 of 1973 Act as detracting from t he tenability of the conclusion reached by the High Court on the point is, in our opinion, somewhat tenuous. The conte n- tion of the learned counsel is that the expression "notwit h- standing anything inconsistent contained in any other l aw for the time being in force" in Section 3 of the 1973 A ct would exclude the operation of Chapter III-B of the '19 55 Act' which, according to the contention, even if kept ali ve would yet be a 'law for the time being in force' and, ther e- fore, be excluded by virtue of Section 3. This contenti on has been negatived by the High Court--and in our opini on rightly--by placing reliance on the pronouncements of th is Court in Rao Shiv Bahadur Singh and Anr. v. The State of Vindhya Pradesh, [1953] SCR 1188 and' Chief Inspector of Mines v. K.C. Thapar, AIR 1961 SC 838. The High Court he ld that the expression "law for the time being in force" do es not take within its sweep a law 'deemed to be in force' a nd that, accordingly, the opening words of Sec. 3 relied up on by the Appellants' learned counsel will not have an overri d- ing effect so as to exclude the old law.

13. A saving provision in a repealing statute is n ot exhaustive of the rights and obligations so saved or t he rights that survive the repeal. It is observed by this Cou rt in 1.T. Commissioner, U.P. v. Shah Sadiq & Sons, AIR 1987 SC 1217 at 1221:

" ....... In other words whatever rights a re expressly saved by the 'savings' provision stand saved. Bu t, that does not mean that rights which are not saved by t he 'savings' provision are extinguished or stand ipso fac to terminated by the mere fact that a new statute repealing t he old statute is enacted. Rights which have accrued are sav ed unless they are taken away expressly. This is the princip le behind Sec. 6(c), General Clauses Act, 1897 ...... " We agree with the High Court that the scheme of the 1973 A ct does not manifest an intention contrary to, and inconsiste nt with, the saving of the repealed provisions of sec. 5(6 A) and Chapter III-B of '1955 Act' so far as pending cases a re concerned and that the rights accrued and liabilities i n- curred under the old law are not effaced. Appellant's co n- tention (a) is, in our opinion, insubstantial.

14. Re: Contention(b):

This takes us to the next question whether in the prese nt cases 168 even if the provisions of Sec. 6 of the Rajasthan Gener al Clauses Act, 1955, are, attracted, the present cases did n ot involve any rights "accrued" or obligations "incurred" so as to attract the old law to them to support initiation or continuation of the proceedings against the land-holde rs after the repeal. It was contended that even if the prov i- sions of the old Act were held to have been saved it cou ld not be said that there was any right accrued in favour of the State or any liability incurred by the land holders in the matter of determination of the 'ceiling-area' so as to attract to their cases the provisions of the old law. T he point' emphasised by the learned counsel is that the exces s- land would vest in the State only after the completion of the proceedings and upon the land-holder signifying h is choice as to the identify of the land to be surrendere d.

Clauses (c) and (e) of Sec. 6 of the Rajashtan Gener al Clauses Act, 1955, provide, respectively, that the repeal of an enactment shall not, unless a different intention a p- pears, "affect any right privilege, obligation, or liabil i- ty, acquired, accrued, or incurred under any enactment so repealed" or "affect any investigation. legal proceeding or remedy in respect of any such right, privilege, obligatio n, liability, fine, penalty, forfeiture, or punishment as aforesaid." For purposes of these clauses the "right" must be "accrued" and not merely an inchoate one. The distincti on between what is and what is not a right preserved by Secti on 6 of the General Clauses Act, it is said, is often one of great fineness. What is unaffected by the repeal is a rig ht 'acquired' or 'accrued' under the repealed statute and n ot "a mere hope or expectation" of acquiring a right or liber ty to apply for a right.

In Lalji Raja v. Firm Hansraj, [1971] 3 SCR 815 th is Court dealing with the distinction between the "abstra ct rights" and "specific rights" for the purpose of the oper a- tion of Sec. 6 of General Clauses Act said:

"That a provision to preserve the right accru ed under a repealed Act 'was not intended to preserve t he abstract rights conferred by the repealed Act ......

It only applied to specific rights given to an individual up on happening of one or the other of the events specified in statute'--See Lord Atkin's observations in Hamilton Gell v.

White, [1922] 2 K.B. 422. The mere right, existed at t he date of repealing statute, to take advantage of provisio ns of the statute repealed is not a 'right accrued' within t he meaning 169 of the usual saving clause--see Abbot v. Minister for Land s, [1895] A.C. 425 and G. Ogden Industries pry. Ltd. v. Luca s, [1969] 1 All E.R. 121"

15. To ascertain whether these were 'accrued' rights a nd 'incurred' liabilities a reference Section 30E of the r e- pealed law is necessary.

Sec. 30-E of 1955 Act provides:

"30-E. Maximum land that can be held and restri c- tion on future acquisitions:

(1) Notwithstanding anything contained in this A ct or in any other law for the time being in force, no pers on shaH, as from a date notified by the State Government in this behalf:-- (a) Continue to hold or retain in his possessi on in any capacity and under any tenure whatsoever land in excess of the ceiling area applicable to him, or (b) acquire, by purchase, gift, mortgage, assig n- ment, lease, surrender or otherwise or by devolution or bequest, any land so as to effect an increase in the exte nt of his holding over the ceiling area applicable to him;

Provided that different dated may be so notifi ed for different areas of the State.

(2) Every person, who, on such date, is in posse s- sion of land in excess of the ceiling area applicable to h im or who thereafter comes into possession of any land by acquisition under clause (b) of sub-section (1), shal l, within six months of such date or within three months of acquisition, as the case may be, make a report of su ch possession or acquisition to, and shall surrender su ch excess land to the State Government and place it at t he disposal of the Tehsildar within the local limits of who se jurisdiction such land is situate.

........... (Omitted as unnecessary) 170 (3) Any person failing intentionally to make a report or to surrender land as required by sub-section ( 2) shall, on conviction, be punishable with a fine which m ay extend to one thousand rupees.

(4) Without prejudice and in addition to su ch conviction and fine the person retaining possession of a ny land in excess of the ceiling area applicable to him sha ll be deemed to be a trespasser liable to ejectment from su ch excess land and to pay penalty in accordance with clause ( a) of sub-section (i) of section 183;

Provided that the lands, from which a person sha ll be so ejected shaH, as for as may be, un-encumbered lands.

(5) All lands coming to the State Government by surrender under sub-section (2) or by ejectment under su b- section (4) shall vest in it free from all encumberances.

......... (Omitted as unnecessary)" The rights. and obligations under this provision had h ad to be determined with reference to the notified date i.

e.

1.4.1966. Referring to analogous provision of the Maharas h- tra Agricultural Lands (Ceiling on Holdings) Act, 1961, th is Court in Raghunath v. Maharashtra, [1972] 1 SCR 48 at 57 observed:

"The scheme of the Act seems to be to determine t he ceiling area of each person (including a family) with refe r- ence to the appointed day. The policy of the Act appears to be that on and after the appointed day no person in t he State should be permitted to hold any land in excess of t he ceiling area as determined under the Act and that ceili ng area would be that which is determined as on the appoint ed day..." 16. Again in Bhikoba Shankar Dhumal (dead) by LRs.

& Ors. v. Mohan Lal Punchand Tathed & Ors., [1982] 3 SCR 2 18 at 228, it was observed:

"A close reading of the aforesaid provisions of the Act shows that the determination of the extent of su r- plus land of a holder has to be made as on the appoint ed day. If 171 any person has at any time after the fourth day of Augus t, 1959, but before the appointed day held any land (includi ng any exempted land) in excess of the ceiling area, su ch person should file a return within the prescribed peri od from the appointed day furnishing to each of the Collecto rs within whose jurisdiction any land in his holding is situa t- ed, in the form prescribed containing the particulars of a ll land held by him. If any person acquires, holds or com es into possession of any land including any exempted land in excess of the ceiling area on or after the appointed da y, such person has to furnish a return as stated above with in the prescribed period from the date of taking possession of any land in excess of the ceiling area ............ " A contention similar to the one urged for the appellan ts here that the title respecting the surplus land would ve st in the Government upon such land being taken possession of by Government after the declaration regarding the surpl us was noticed in that case. But, it was held that the liabil i- ty to surrender the surplus land would date back to t he appointed day. This Court said:

" ...... Any other construction would make t he Act unworkable and the determination of the extent of su r- plus land of a holder ambulatory and indefinite ...... " This was again reiterated in State of Maharashtra v. Ann a- purnabai and Ors., [1985] Supp. SCC 273 at 275. This Cou rt said:

" .... Section 21 of the Act no doubt states that t he title of the holder of the surplus land would become vest ed in the State Government only on such land being taken po s- session of after a declaration regarding the surplus land is published in Official Gazette. But the liability to surre n- der the surplus land relates back to the appointed day in case of those who held land in excess of the ceiling on t he appointed day. Therefore, even if the holder dies befo re declaration of any part of his land as surplus land, t he surplus land is liable to be determined with reference to his holding on the appointed day .... "

17. It is, therefore, seen that the right of the Sta te to take over excess land vested in it as on the appoint ed day and only the quantification remained to be worked ou t.

As observed by Lord Morris, in 172 Director of Public Works v. Ho Po Sang, [1961] 2 All. E.

R.

721.

"It may be, therefore, that under some repealed enactment, a right has been given, but that, in respect of it, so me investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether so me right should be or should not be given. On a repeal t he former is preserved by the Interpretation Act. The latter is not." The above passage was referred to with approval in M.

S.

Shivananda v. K.S.R.T. Corpn., AIR 1980 SC 77 at 81.

18. We agree with the High Court that the right of t he State to the excess land was not merely an inchoate rig ht under the Act, but a right "accrued" within the meaning of sec. 6 (c) of the Rajasthan General Clauses Act, 1955, a nd the liability of the land-owner to surrender the excess la nd as on 1.4.1986 was a liability "incurred" also within t he meaning of the said provision. There is no substance in contention (b) either.

19. These Appeals, Special Leave Petitions and t he WritPetition, accordingly, fail and are dismissed. In t he circumstances of the case, there will be no order as to costs.

N.P.V. Appeals & Petitions dismissed.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.