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In the Writ petition filed directly in this Court relie fs similar to those sought before the High Court are claimed. FAC |
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 initiat... |
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. FAC |
As a sequential necessity Section 5 w as amended by the introduction in it of Clause (6A) whi ch defined "ceiling area". FAC |
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... |
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 '. FAC |
After 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' under III B of the '1955 Act ' came to be initiated and were sought to be continued under said Chapter III B of the repealed '19 55 Act ' on the view that the repeal of Chapter III B of t he 1955 Act by the 19... |
Appellant s ' principal contention is that after the coming into force of the 1973 Act which, by its 40th Section, repealed Chapt er III B of the ' 1955 Act ', recourse could not be had to t he repealed law for purposes of commencement, conduct a nd conclusion of any proceedings for fixation of ceiling as prescribed un... |
This contention has be en repelled by the full bench of the High Court in the judgment under appeal. FAC |
The correctness of view of the full ben ch arises for consideration in these appeals. FAC |
The factual antecedents in which the controver sy arose before the High Court may be illustrated by the facts of one of the appeals. FAC |
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,... |
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 '. FAC |
Appellants ' pruchases were held to be hit 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 transfers. FAC |
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. FAC |
Apart from the facts of individual cases and their particularities the basic question is one of construction whether the provisions of the old law are saved and survive to govern pendi ng cases. Ratio |
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. Ratio |
The appellant 's principal 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 o... |
The points that fall for consideration in these 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,... |
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. Ratio |
In 1955, The Rajasthan Tenancy Act 1955 was enacted. Ratio |
By the Rajasthan Tenancy (Amendment) Act, for the first time, provisions in Chapter III B prescribing a ceiling on hol d ings of agricultural lands got introduced into the '19 55 Act '. Ratio |
This amending Act of 1960 received Presidential asse nt on 12th March 1960. Ratio |
The Chapter III B was, by an appropria te notification, brought into force with effect from 15 th December, 1963. Ratio |
The notified date, under the '1955 Act ', as stated earlier, was 1.4.1965. Ratio |
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 ... |
" 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 incre... |
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 o... |
" 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. Ratio |
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 d... |
The law fixed 30 standa rd acres as the ceiling area. Ratio |
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. Ratio |
Aga in (by an amendment) of the year 1970, Section 30 (1) w as deleted. Ratio |
The 1955 Act itself came to be included in the IX Schedule to the Constitution by a Parliamentary law. Ratio |
T he challenge to 161 said inclusion was repelled by this Court. Ratio |
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. Ratio |
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 Ordinance. Ratio |
The Ordinance brought into existence a new concept of and standards for the "ceilingarea". Ratio |
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. Ratio |
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 ... |
Section 3, Section 4(1), Second Proviso and Section 40 of the 1973 Act require particular notice. Ratio |
Section 3 provides: "3.Act to override other laws, contracts, etc. STA |
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. STA |
" 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 ... |
Section 40 provides: "40.Repeal and savings (1) Except as provided in seco nd proviso to sub section (1) of section 4 and in subsection (2) of Section 15 of this Act, the provisions of clause (6 A) of section 5 and Chapter III B of the Rajasthan Tenancy Act, 2955 (Rajasthan Act 3 of 2955) are hereby repealed except in ... |
(2) The Rajasthan Imposition of Ceiling on Agricu l tural Holdings Ordinance, 1973 (Rajasthan Ordinance I of 1973) is hereby repealed. STA |
(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... |
Section 41 contains a statutory declaration that the '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. Ratio |
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... |
It was urged that where the repeal is accompanied by a afresh Legislation on the same subject, the new law alone will determine if, and how far, the old 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, t... |
This argument has the familiar ring of what Sulaiman, C J. had said on the matter in Rashid Ahmad vs Mt. Anis Fatima & Ors., AIR 1933 All. 3. Ratio |
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 inten... |
Appellants ' learned counsel submitted that the legislation in question pertaining, as it did, to the topic of agrarian reform was attendant with the difficulties naturally besetting a task so inextricably intermixed with compl ex and diverse and, indeed, often conflicting socio economic interests had had to go through... |
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 m... |
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... |
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. ARG |
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 con... |
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 prescri... |
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 ... |
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... |
When there is a repeal of a statute accompanied by reenactment 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... |
Referring to the way in whi ch such incompatibility with the preservation of old rights and liabilities is to be ascertained this Court in State of Punjab vs Mohar Singh, ; 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 ... |
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. PRE |
Of course, the 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" . PRE |
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 intenti... |
One of the indicia that the old law was not effac ed is in sec.15(2) of the new Act. Ratio |
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... |
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 ' a... |
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. Ratio |
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. Ratio |
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... |
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. Ra... |
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 deci... |
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 '. Ratio |
The two legislations are complementary to each oth er and constitute two tier provisions. Ratio |
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. Ratio |
Shir Lod ha submitted that the view taken by the High Court was unexce p tionable. Ratio |
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. Ratio |
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. ARG |
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 ye... |
This contention 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 vs The State of Vindhya Pradesh, ; and ' Chief Inspector of Mines vs K.C. Thapar, ; The High Court he ld that the expression "law for the time being... |
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. Ratio |
It is observed by this Court in 1.T. Commissioner, U.P. vs Shah Sadiq & Sons, at 1221: " . .In other words whatever rights are expressly saved by the 'savings ' provision stand saved. PRE |
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. PRE |
Rights which have accrued are sav ed unless they are taken away expressly. PRE |
This is the princip le behind Sec.6(c), . " PRE |
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 o... |
Appellant 's co n tention (a) is, in our opinion, insubstantial. Ratio |
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 initiati... |
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 t... |
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, provid... |
" For purposes of these clauses the "right" must be "accrued" and not merely an inchoate one. Ratio |
The distincti on between what is and what is not a right preserved by Secti on 6 of the , it is said, is often one of great fineness. Ratio |
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. Ratio |
In Lalji Raja vs Firm Hansraj, ; 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 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 r... |
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 vs White, 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... |
To ascertain whether these were 'accrued ' rights and 'incurred ' liabilities a reference Section 30E of the r e pealed law is necessary. PRE |
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 i... |
(2) Every person, who, on such date, is in posse s sion of land in excess of the ceiling area applicable to him 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... |
. . . (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. PRE |
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