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THAKUR RAM CHANDRA JI MAHARAJ versus B.R.& OTHERS

High Court of Judicature at Allahabad

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Thakur Ram Chandra Ji Maharaj v. B.R.& Others - WRIT - B No. 35795 of 1991 [2006] RD-AH 19074 (10 November 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                   

                                                                                       Court No.5.

Civil Misc. Writ Petition No. 35795 of 1991

Thakur Ram Chandra Ji Mahraj       Vs.    Board of Revenue and others.

and others.

                                          Connected with          

                          Civil Misc. Writ Petition No. 2499 of 1992

Thakur Ram Chandra Ji Mahraj       Vs.    Board of Revenue and others.

and others.

                         

Hon'ble Janardan Sahai, J.

               Sub Section 4 of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act creates a right of  second appeal to the Board of Revenue on any of the grounds specified in Section 100 of the Code of Civil Procedure. Section 100 of the Civil Procedure code was drastically amended in the year 1976 by Act No. 104 of 1976 whereby the grounds of appeal were restricted to those which involve a substantial question of law to be formulated by the High Court. After the amendment in Section 100 Civil Procedure Code doubts arose as to whether the amended Section 100 Civil Procedure Code would be applicable to second appeals in the Board of Revenue or the unamended one, which contained wider grounds for interference. In Ram Sanehi Vs. Board of Revenue 1993 RD 208 a single Judge of this Court held that it is Section 100 Civil Procedure Code as amended from time to time, which would govern second appeals in the Board of Revenue. In Sri Net Bharti and others Vs. Board of Revenue and others 2001 (3) A.W.C. 2258 and in Ved Pal Vs. Board of Revenue 2004 (9) R.D. 119 the same view was taken. In fact  not a single decision of this court taking a different view has been cited at the Bar.

               In a recent decision Baikunth Nath Kaushik Vs. Anand Swaroop Kaushik 2006 RD 831 the Uttranchal High Court has taken the view that the reference to Section 100 Civil Procedure Code made in sub Section 4 of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act is legislation by incorporation and, therefore, the amendment in Section 100 Civil Procedure Code, would not apply to second appeals in the Board of Revenue. The Uttranchal High Court placed reliance upon the decision of the Apex Court in Mahindra Vs. Mahindra 1979 SCC 529 which was a case under the Monopolies and Restrictive Trade Practices Act.  Section 55 of that Act refers to the grounds specified in Section 100 of the Civil Procedure Code as being the grounds on which an appeal would lie to the Supreme Court. The Supreme Court having examined the scheme of the Monopolies and Restrictive Trade Practices Act held that the reference to Section 100 Civil Procedure Code made in Section 55 of the Monopolies and Restrictive Trade Practices Act was by way of legislation by incorporation and therefore the subsequent amendment made in Section 100 Civil Procedure Code was not applicable to appeals under Section 55 of the Monopolies and Restrictive Trade Practices Act.

            The difference between legislation by incorporation and  legislation by reference is well known. In legislation by incorporation provisions of the Act to which reference is made are deemed to be bodily incorporated in the statute, which refers to them. The logical corollary of this fiction as we may call it is that an amendment subsequently made in the Act referred to would not affect the provisions deemed to have been incorporated in the Act, which refers. The rule, however, is not an inflexible one. In A.I.R. 1975 SC (2) 1835 The State of Madhya Pradesh Vs. M.V. Narasimhan four exceptions to the rule have been carved out. Two of them which may have some relevance to this case are;. One: where the two Acts are supplemental to each other and two: where the amendment in the Act referred to by express or implied intendment applies to the incorporated provisions in the Act in which the reference is made. In this context it is necessary to examine the provisions of the U.P. Zamindari Abolition and Land Reforms Act.

     

          Section 3 sub section 30 of the U.P. Zamindari Abolition and Land Reforms Act reads as follows;

                          (30) any reference to any enactment shall be construed as a reference to that enactment as amended from time to time in its application to Uttar Pradesh, and in the case of the Code of Civil Procedure, 1908, as a reference to that Code subject also to any annulments alterations and additions to the rules contained in the First Schedule thereto made from time to time under Section 122 thereof by the High Court."          

                      In view of this provision the amendment in Section 100 Civil Procedure code would be applicable to second appeals to the Board.  Sri Gajendra Pratap, learned counsel for the respondents however submits that Section 3 (30) is in two parts separated by a disjunctive ''and' occurring before the words "in the case of the Code of Civil Procedure." According to him the word ''enactment' occurring in the first part does not include the Civil Procedure Code for which specific provision has been made in the second part and the annulments, alterations and additions in reference to the Civil Procedure Code are confined to the rules in the First Schedule as amended form time to time by the High Court in exercise of powers under Section 122. If so interpreted the amendment made by Parliament in Section 100 Civil Procedure Code by act 104 of 1976 would not apply to second appeals under the U.P. Zamindari Abolition and Land Reforms Act. But I am not inclined to accept this narrow interpretation placed on the section. The opening words ''any reference to any enactment' are words of the widest amplitude and in their plain meaning would also cover the Civil Procedure Code, which undoubtedly is an enactment. Nor is the reference in the sub section to amendments in the enactment, confined to amendments, which are applicable to U.P. alone. The expression "enactment as amended from time to time in its application to Uttar Pradesh" means the amended enactment as applicable to U.P. The definition is wide enough to cover any amendment in the enactment referred to whether by a Central Act or by a State Act  if it extends to U.P. irrespective of the fact that it does or does not apply to other areas also. The second part of Sub section 30 is merely clarificatory of the legislative intent that not only amendments by the legislature but even amendments in the rules of the First Schedule of the Civil Procedure Code made by the High Court in the exercise of power under Section 122 of the Civil Procedure Code would be applicable to that provision of the U.P. Zamindari Abolition and Land Reforms Act, which refers to the Civil Procedure code. I am therefore not inclined to give the narrow meaning to Section 3 (30) sought to be given by Sri Gajendra Pratap. The view that I am taking also appears to be in line with the scheme of the Act as we shall presently see.

               Section 341 of the U.P. Zamindari Abolition and Land Reforms Act applies the provisions of the Civil Procedure to proceedings under the U. P. Zamindari Abolition and Land Reforms Act unless otherwise expressly provided. The Zamindari Abolition and Land Reforms Act has made provision for suits, appeals, second appeals, revisions etc. The Civil Procedure Code thus has been made applicable to them unless otherwise expressly provided. No express provision making the Civil Procedure Code inapplicable has however been cited. On the subject of suits, appeals, revisions and other proceedings the Civil Procedure code supplements the U.P. Zamindari Abolition and Land Reforms Act by force of Section 341. In the earlier Tenancy laws of the State namely in the U.P. Tenancy Act, 1939, Agra Tenancy Act, 1926 and N.W.P. Tenancy Act 1901 there were provisions similar to Section 341 of U.P. Zamindari Abolition and Land Reforms Act. Although the nature of suits that can be instituted in the revenue courts has been specified in the U.P. Zamindari Abolition and Land Reforms Act as was also done in the earlier tenancy laws of the State but the question of jurisdiction of the Revenue Court vis-à-vis the civil court in particular cases has been a complex question and a constant source of litigation traveling up to the highest court of the land. Suits for which relief can be obtained in the revenue court are frequently instituted and tried in the civil court and vice versa. Faced with this situation the legislature has made provision in Section 331 (1A) U.P. Zamindari Abolition and Land Reforms Act that the question of jurisdiction if not raised in the trial court at the earliest possible opportunity shall not be  entertained in appeal and unless there has been a consequent failure of justice. Provisions quite similar to this existed in the earlier tenancy laws of the State. The legislative intent behind such a provision appears to have been that as the trial, appeal and second appeal whether in the civil court or revenue court is regulated by a substantially similar set of provisions on account of the Civil Procedure Code applying both to civil courts and revenue courts no injustice is likely to be caused by a trial in the wrong court. Just like the U.P. Zamindari Abolition and Land Reforms Act the N. W. P. Tenancy Act 1901, the Agra Tenancy Act, 1926, the U.P. Tenancy Act, 1939 also contained provision for second appeal on the grounds specified in Section 100 Civil Procedure Code. Undoubtedly Section 341 U.P. Zamindari Abolition and Land Reforms Act, which applies the Civil Procedure code as a whole to proceedings under the U.P. Zamindari Abolition and Land Reforms Act is legislation by reference. It supplements the proceedings under the U.P. Zamindari Abolition and Land Reforms Act in view of Section 341. The normal rule of interpretation would, therefore, be to apply the amendments in the Civil Procedure Code to proceedings in the U.P. Zamindari Abolition and Land Reforms Act. If any difficulty in applying this rule of interpretation has arisen in respect of second appeals under the U.P. Zamindari Abolition and Land Reforms Act on account of the reference to the grounds specified in Section 100 Civil Procedure code being legislation by incorporation that difficulty stands removed by the definition in Sub Section 30 of Section 3 U.P. Zamindari Abolition and Land Reforms Act. If however an amendment in the Civil Procedure Code is of such a nature that its application to the section, which refers to the Civil Procedure Code would be repugnant to the context it would be inapplicable in view of the exception of contrary context contained in the definition clause.

                  The question whether a particular enactment, which refers to a previous enactment, is legislation by reference or legislation by incorporation is often a difficult one.  To remove as far as possible any uncertainty on this count it appears the legislature has introduced Sub Section 30 by amendment in the definition clause Section 3. The definition clause has to be applied unless there is anything repugnant in the context. It is plain that the burden of showing contrary context lies upon him who asserts that the definition is inapplicable. There is nothing in Sub Section 4 of Section 331 on the basis of which an interpretation different from that given in Sub Section 30 of Section 3 be adopted. Taking it that the reference made in Section 331 (4) to Section 100 Civil Procedure Code is by way of legislation by incorporation the reference would be deemed to be to the amended Section 100 Civil Procedure Code in view of the definition clause Section 3 (30) of the U.P. Zamindari Abolition and Land Reforms Act. That definition expresses the legislative intendment to apply the amended provision and carves out an exception to the rule about the effect of legislation by incorporation similar to one of the exceptions carved out by the Supreme Court in Narsimhan's case (supra).  The other exception carved out by the Supreme Court, which we have noticed is where both the Acts are supplemental to each other. While it is true that the U.P. Zamindari Abolition and Land Reforms Act does not supplement the Civil Procedure Code and the two Acts are thus not supplemental to each other but on the subject of suits, appeals and other proceedings the Civil Procedure Code does supplement the U.P. Zamindari Abolition and Land Reforms Act. The definition in Section 3 (30) of U.P. Zamindari Abolition and Land Reforms Act carves out an exception to the general rule of interpretation that in legislation by incorporation an amendment in the Act referred to does not affect the incorporated provision. The M. R.T.P. Act which, was considered by the Supreme Court in Mahindra's case (supra) does not have any provision like Section 3 (30) or Section 341 U.P. Zamindari Abolition and Land Reforms Act nor does the Civil Procedure Code supplement the proceedings under the M.R.T.P. Act. For the reasons given above I am of the view that the amended Section 100 Civil Procedure Code would be applicable to second appeals in the Board of Revenue.

               Coming now to the facts of the case. A suit was filed by the respondents under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, which was decreed by the trial court. The appeal of the defendant was allowed by the Additional Commissioner. The second appeal of the plaintiff  was allowed by the Board of Revenue without framing any substantial questions of law.  

              It was submitted by Sri Gajendra Pratap that even though the Board of Revenue may not have framed substantial questions of law but as the order passed by the Board of Revenue is correct on merits this court in exercise of writ jurisdiction can decline to interfere. In support of his contention he relied upon a decision of the Apex Court in A.I.R. 1966 SC 828 Gadde Venkateswara Rao Vs. Government of Andhra Pradesh and others. The proposition cannot be doubted. The Supreme Court however in a series of decisions has set aside judgments of this Court in second appeal on the ground that without substantial questions of law being framed the appeal was allowed. Reference may be made to the recent decision of the apex court in Gian Dass Vs. Gram Panchayat Village Sunner Kalan and others 2006 (101) RD 449. The Board of Revenue has not examined the matter from the point as to whether a substantial question of law was involved in the case or not. That apart the parties are to be heard only on the question framed. As no question was framed the appeal could not have been heard and allowed and the whole exercise was in vain. It is not a feasible course to fill up this omission by framing questions in this court and then hearing the parties. I am of the view that the matter should be sent back to the Board of Revenue

            In the result the writ petitions are allowed. The order dated 23.9.1991 passed by the Board of Revenue, U.P. at Allahabad is set aside and the case is sent back to the Board of Revenue for fresh decision in accordance with law.

10.11.2006.

s.


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

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