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Petitioner: RAMDAYAL MIRDHA VS Respondent: NAGENDRA NATH BAIN
P L D 1960 Dacca 991
P L D 1960 Dacca 991
Before Rahman, J
RAMDAYAL MIRDHA‑Petitioner
versus
NAGENDRA NATH BAIN AND OTHERS‑Opposite‑Parties
Civil Revisions Nos. 742 and 744 of 1959, decided on 25th February 1960.
Bengal General Clauses Act (I of 1899), S. 8‑Repeal of temporary law before date of expiry by efflux of time‑Pro ceedings commenced may be continued irrespective of repeal -Provisions of section applicable unless repealing statute shows contrary intention‑General Clauses Act (X of1897), S. 6.
If a temporary law scheduled to expire at a certain period of time is repealed before it had actually expired by efflux of time, section 8 of the Bengal General Clauses Act, 1899 would apply to such a repeal in the same manner as it will apply to the repeal of a permanent statute unless the repealing statute shows a contrary intention. Normally, of course, the continuance of proceedings commenced under such a temporary law would only extend up to the date on which the law was due to expire, for, the effect of the provisions of clause (e) of section 8 of the Act is to save and not to add or enact anything new but merely to preserve proceedings so that they might be continued under it by excluding the operation of the repeal. There can be no other effect of deeming the repeal ing law as not having been passed.
The general rule, however, is that unless some special pro visions to the contrary are contained in the repealing law a temporary law ceases to have any further effect after it has expired and no proceedings can be taken under it any longer and the proceedings already taken and pending terminate ultimately as soon as it expires.
Piare Dusadh and others v. Emperor A I R 1944 F C 1 ; Muhammad Irtiza and others v. The State P L D 1959 Kar. 94 and S. A. Seshadri Aiyangar v. Narayan Nair A I R 1950 Mad. 106 ref.
Abdul Hakim for Azizuddin Ahmad for Petitioner.
B. C. Das and Md. Behtar Ali for Opposite Parties.
JUDGMENT
These three applications in revision are directed against three orders of the learned Additional District Judge of Barisal passed in three revision cases under section 53 of the Public Demands Recovery Act which were originally filed before the Additional Collector of Revenue, Bakerganj, and were later transferred to the. Court of the District Judge, Bakerganj, for disposal under the provisions, as mentioned by the learned Additional District Judge, of Ordinance No. XI of 1958.
2. The said revision cases filed before the Additional Collector arose out of three certificate cases for the years 1955‑56 for realisation of arrears of rent in respect of three different hold ings. All the three holdings were sold in execution of the certi ficates and auction‑purchased by the petitioner before me on the 30th of January 1956. Three applications were thereafter filed by opposite party No. 1 herein for setting aside the said sales under section 23 of the Public Demands Recovery Act but they were all rejected by the Certificate Officer on the 18th of January 1957, on the ground that they were filed after the expiry of 60 days from the dates of the sales. The certificate debtors then filed three review applications for restoration of the said sale‑set‑aside cases. The Certificate Officer by his order, dated the 28th of January 1957, allowed the review applications and restored the said sale set‑aside cases. The auction‑purchaser thereupon filed a review application against the order of the 28th of January 1957, and the Certificate Officer again allowed the review applications on the 19th of April, 1957, and vacated the orders of the 28th January 1957. The result was that the sale‑set‑aside cases stood rejected as under the original order, dated the 18th of January 1957. The certificate debtors then filed three appeals against the said orders of the Certificate Officer, dated the 19th of April 1957. All these appeals were dismissed by the Additional Collector on points of law with an observation that, if they so like, they may move revision applications under section 53 of the Public Demands Recovery Act. Hence three revision cases were filed on the 15th of October 1957, and these were the cases that were transferred to the District Judge.
3. These revision applications were contested by the auction purchaser‑petitioner before me. He challenged the jurisdiction of the learned Additional District Judge to hear the said revision applications and contended that the applications were themselves barred by limitation. He further challenged the legality of the order of the Certificate Officer passed on the 28th of January 1957, firstly, on the ground that it was an illegal order, as no notice of the said review applications had been served on the auction purchaser and secondly, that no grounds for review existed, as there was no mistake or error in the order of the 18th January 1957.
4. The learned Additional District Judge, however, took the view that he had jurisdiction to dispose of the said applications notwithstanding that East Pakistan Ordinance No. VIII of 1959 had repealed Ordinance No. XXXIX of 1958 without making any provision for pending cases. The learned Additional District Judge also took the view that since section 53 of the Public Demands Recovery Act did not prescribe any period of limitation, the applications in revision filed on the 15th of October 1957, were filed within a reasonable time and hence were not barred by limitation.
5. With regard to the merits, the learned Additional District Judge was of the view that although ex facie the applications before the Certificate Officer under section 23 of the Public Demands Recovery Act purported to have been filed after the expiry of 60 days from the date of the sale, it was incumbent on the Certificate Officer to consider whether reasonable grounds existed for the delay, as he had the power to do under section 23 (2) of the said Act and, if so, to condone the delay. Since he had not taken this into consideration, that was an error apparent on the face of the record for which the orders of the 18th January 1957, could be reviewed and hence the review granted on the 28th of January 1957, was a valid order. But since no notice of the review application had been served on the opposite parties, the Certificate Officer also rightly vacated the said orders on the 9th of April 1957, at the request of the auction‑purchaser.
6. In these circumstances, the learned Additional District Judge took the view that the revision applications were duly maintainable, as the certificate‑debtors had no remedy left to them now and that the same should be allowed, the sale‑set‑aside order and the order rejecting the applications passed on the 18th of January 1957, should be set aside and the applications for setting aside the sales should be reheard and tried on merits.
7. It is against these orders that the auction‑purchaser has come up in revision to this Court and on his behalf two points have been urged in support of these Rules. The first is that on the relevant date, namely, 30th of May 1959, the learned Additional District Judge, had no jurisdiction either to hear or to determine these applications. This argument is based upon the provisions of Ordinance No. VIII of 1959, which was published in the Dacca Gazette on the 19th of January 1959. It came into force at once and by section 2 thereof East Pakistan Ordinance No. XXXIX of 1958 stood repealed. By section 3 (1) provisions were made for cases pending before a Munsif in respect of which he had taken any action. Subsection (2) dealt with cases again pending before the Munsif but in respect of which he had not taken any action. The later as from the date of commencement of the said Ordinance stood transferred to the Certificate Officer of the district to be dealt with in accordance with the provisions of the Public Demands Recovery Act. The first category of Ordinance cases before the learned Munsif, namely, those in which some action had been takers by him were to continue to be dealt with in accordance with the provisions of Ordinance No. XXXIX of 1958 notwithstanding the repeal, as if the said Ordinance was in force subject to the omission of clause (e).of section 3 thereof.
8. Nothing was said in this Ordinance about the pending revisions or appeals which had been transferred under the pro visions of Ordinances Nos. XXII and XXXIX of 1958 to the District Judge. It was only on the 25th of June 1959, that another Ordinance, being Ordinance No. XLI of 1959, was promulgated to make provision for such transfer of pending matters. Sub section (1) of section 3 thereof provided that all matters pending before the District Judge immediately before the commencement of the said Ordinance No. XLI of 1959 were to stand transferred to the Collector, Commissioner and the Board of Revenue, as the case may be, before whom they were pending immediately before they were transferred to the District Judge. Subsection (2) of the said section provided that all appeals or applications in revision filed before the District Judge under section 4 (3) of Ordinance No. XXXIX of 1958 or under section 51 of the Public Demands Recovery Act and pending before the District Judge were also to stand transferred to the Collector of the district who should deal with the same as provided for under the provisions of the Public Demands Recovery Act.
9. We are not directly concerned with the provisions of the said Ordinance.
10. The learned Advocate argues that on the 30th of May 1959, when the' learned Additional District Judge purported to dispose of these applications, Ordinance No. XLI of 1959 had not been promulgated and the Ordinance which applied was Ordinance No. VIII of 1959 which merely repealed Ordinance No. XXXIX of 1958. As such the effect of the repeal was either that the status quo ante was restored, namely, a reversal to the provisions of the Public Demands Recovery Act or that nobody had any jurisdiction to dispose of these pending matters.
11. The learned Advocate appearing to oppose these Rules has, however, contended that this is not the consequence of the repeal, for, under section 8 of the Bengal General Clauses Act, which is applicable to the interpretation of these Ordinances, the repeal did not affect the pending legal proceedings and they were to be continued as if the repealing Ordinance had not been passed. In support of this contention, reliance has also been placed on the case of Plare Dusadh and others v. Emperor (A I R 1944 F C 1) and a decision of the West Pakistan High Court in the case of Muhammad Irtiza and others v. The State (P L D 1959 Kar. 94).
12. What had happened in the case before the Federal Court was that the Court declared the convictions made by certain Special Courts set up under the Special Criminal Courts Ordinance No. 11 of 1942 bad, as the Courts constituted under the said Ordinance were held to have not been duly vested with jurisdiction. The day following the decision, the Governor‑General made another Ordinance, being Ordinance No. XIX of 1953, whereby Ordinance No. II of 1942 was repealed and certain provisions were made in respect of sentences which had been passed by Special Courts and in respect of the cases which were pending before them from before that date. With
regard to the pending cases, where the trial had not concluded, the proceedings were declared to be void by Ordi nance and the cases were deemed to have been transferred to the ordinary Criminal Courts but the sentences and convictions already made by such Special Tribunals were declared to be valid and were to have effect as if they had been passed in a trial held in accordance with the Code of Criminal Procedure by an Assistant Sessions Judge or a Magistrate of the 1st Class exercising competent jurisdiction. In this case the effect of the repeal fell to be con sidered and It was held that 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 subject to the qualification that the repealing enactment contained no provisions or indications to the contrary. This effect was deduced upon the principles embodied in clause (e) of section 6 'of the Central General Clauses Act which was applicable in the said case.
13. In the decision of the West Pakistan High Court the Sea Customs (Amendment) Ordinance No. VIII and Act XXXIV of 1957 fell to be considered. This Ordinance had purported to purge the provisions of section 167 (8) of the Sea Customs Act of certain discriminatory characteristics by section 2 of Ordinance No. VIII of 1957. Ordinance No. VIII of 1957 was, however, itself repealed and replaced by the Amending Act XXXIV of 1957 which came into force on the 13th of September 1957. Section 3 of the Ordinance and the Act whilst repealing certain provisions of the Sea Customs Act provided that anything done under section 167 (8) of the Sea Customs Act on or after the 23rd of March 1956, shall be deemed to have been done in accordance with the amended provisions. The question arose as to whether the accused persons in that case were liable to be tried in respect of an offence under section 167(8) of the Sea Customs Act in the Court of Session to which they had been earlier committed or by reason of the amendment made by Ordinance No. VIII of 1957 and the amending Act XXXIV of 1957 dealt with only in the manner therein provided, namely, by the Customs Authorities. It was held that to this Ordinance and the statutes concerned section 6 of the General Clauses Act was applicable and, according to the rule of interpretation therein prescribed, the commitment of the accused to the Court of Session by a Magistrate of the 1st Class on the 9th of May 1954, would continue to be valid and the method provided in 'the amending provisions would not be applicable, as the subsequent amending laws contained nothing to indicate a different intention in respect of any offence committed before the 23rd March 1956.
14. The learned Advocate appearing in support of these Rules, however, sought to distinguish these cases on the ground that provisions of section 8 of the Provincial General Clauses Act and section 6 of the Central General Clauses Act do not apply to temporary laws and hence, if a temporary law comes to an end by efflux of time, the proceedings commenced under such temporary laws must also come to an end.
15. It was further pointed out that Ordinance No. XXXIX of 1958 was promulgated by the Governor of East Pakistan in exercise of his powers under Article 102 of the abro gated Constitution and, under the said Constitution, such Ordinance only remained in force for only a period of six weeks after the Legislature had met. Now the Legislature met for the last time on the 22nd and 23rd of September 1958, but no business was transacted by the Legislature and this Ordi nance was not dealt with. Hence, by reason of the provisions of the said Constitution, this Ordinance would have expired within six weeks thereafter but it was continued in force by the Laws (Continuance in Force) Order, 1958, promulgated on the 10th of October 1958, until it was repealed by Ordinance No. VIII of 1959. Therefore, after its repeal, the provisions of section 8 of the Bengal General Clauses Act did not protect the proceedings pending on the date of the repeal.
16. In support of this contention, reliance has been placed on a decision of the Madras High Court in the case of S. A. Seshadri Aiyangar v. Narayan Nair (A IR1950 Mad. 106), where in the case of the Madras House Rent Control Order of 1945 it was said that in such cases of temporary laws what is to happen to pending proceedings would depend upon the intention of the Legislature and, where clear words are not used, the intention is to be inferred from the relevant circumstances. Thus, in the present case, it is urged that since no provision at all is made for continuing the pending of proceedings it is only reasonable to infer that the intention of the Legislature was that such proceedings shall not be continued. But in the case cited, the Madras High Court, relying upon certain provisions of the Madras Act which had taken the place of the temporary Order, held that the intention of the Legislature was that all pending proceedings should, as far as possible, be upheld and continued.
17. I find, however, some difficulty in accepting the con tention of the learned Advocate appearing in support of these Rules. I see, on principle, no reason why the provisions of the said section of the General Clauses Act should not apply with equal force to the repeal of a temporary law during its continuance. Thus, if a temporary law scheduled to expire at a certain period of time is repealed before it had actually expired by efflux of time, I am of the opinion that section 8 of the Bengal General Clauses Act would apply to such a repeal also in the same manner as it will apply to the repeal of a permanent statute unless the repealing statute shows a contrary intention. Normally, of course, the continuance f of proceedings commenced under such a temporary law would only extend up to the date on which the law was due to expire, for, the effect of the provisions of clause (e) of section 8 of the General Clauses Act is to save and not to add or enact anything new but merely to preserve proceedings so that they might be continued under it by excluding the operation of the repeal. There can, of course, be no other effect of deeming the repealing laws as not having been passed.
18. The general rule, however, is that unless some special provisions to the contrary are contained in the repealing law a temporary law ceases to have any further effect after it has expired and no proceedings can be taken under it any longer and the pro ceedings already taken and pending terminate ultimately as soon as it expires.
19. It is urged, however, on behalf of the learned Advocate appearing to oppose these Rules that this' Ordinance No. XXXIX of 1958 lost its temporary character after it was continued in definitely until altered or repealed by the provisions of section 4 (1) of the Laws (Continuance in Force), Order, 058 (President's Order No. 1 of 1958) which validated, notwithstanding the abroga tion of the late Constitution, all Ordinances and Orders other than the Orders made by the President under the said Constitution and continued them in force until altered, repealed or amended by compe tent authority. The Ordinance, therefore, became a permanent legis lation until it was, like any other permanent legislation, altered, amended or repealed. In this view of the matter, in any event, the provisions of section 8 of the General Clauses Act were attracted to this legislation and the effect of its repeal after such continuance, by President's Order No. 1 of 1958, promulgated on the 10th of October 1958, would be to continue the pending proceedings as if the repeal had not been made.
20. It seems to me that this lust contention of the learned Advocate appearing to oppose these Rules must be accepted. The effect of section 4 (1) of the Laws (Continuance in Force) Order, 1958, was, in my opinion, to change the entire character of the Ordinance which by its nature was under the late Constitution a temporary law and to convert it into a permanent piece of legislation, its continuance was for an indefinite period. Repealing Ordinance No. VIII of 1959 also does not contain any contrary indication. It merely repeals the provisions of Ordinance No: XXXIX of 1958 relating to appeals and revisions. Therefore, under section 8 of the Bengal General Clauses Act, the effect of the repeal is to leave the pending proceedings undisturbed and to continue them as if the repealing Act had not been passed. From this point of view the jurisdiction. remained in the learned Additional District Judge to dispose of the matters which had been transferred to him until the promulgation of Ordinance No. XLI of 1959 which provided for the re‑transference of these matters to the Collector, Commissioner or the Board of Revenue, as the case may be. The revision applications were, therefore, properly disposed of by the learned Additional District Judge.
21. The next point urged in support of these Rules is that the learned Additional District Judge had himself acted in excess of his jurisdiction in going into the facts in a revision matter.
22. I have set out fairly exhaustively earlier the reasons given ;by the learned Additional District Judge for interference in these matters. The reasons do not disclose that be went into facts. ":Indeed there were no facts to be gone into in these matters. The application for setting aside the sale had been rejected as being barred by limitation. The review applications against the said order have been allowed ex parte without giving any notice to the auction‑purchaser. Again, the Certificate Officer had failed to consider whether the applications for setting aside the sales not withstanding that they were filed more than 60 days after the date of the sale could or could not be accepted under the provisions of section 23 (2) of the Public Demands Recovery Act. These were not questions of fact. The complaint, therefore, that the learned Additional District Judge had reviewed facts is not, in my opinion, justified.
23. These are the only grounds urged in support of these Rules and, since the learned Advocate has failed in both the grounds, these Rules are discharged with costs.
K. B. A. Rules discharged.