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District School Board of Belgaum Vs. Mohamad Mulla - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberSecond Appeal No. 937 of 1942
Judge
Reported in(1945)47BOMLR323
AppellantDistrict School Board of Belgaum
RespondentMohamad Mulla
Excerpt:
.....action which was vested in a party or makes it impossible for that party for the exercise of his vested right of action, the courts will not give retrospective effect to it.;lala soni ram v. kankaiya lal (1913) l.r. 40 i.a. 74 : s.c. 15 bom. l.r. 489, masjid shahid gang mosque v. shiromani gurd-wara parbandhak committee, amritsar (1940) l.r. 67 i.a. 251 s.c. 15 bom. l.r. 1100, gopeshwar pal v. jiban chandra chandra (1914) i.l.r. 41 cal. 1125, khusalbhai v. kabhai (1881) i.l.r. 6 bom. 26, the ydun (1899) p. 236, and rajah of pittapur v.. venkata subba row (1915) i.l.r. 39 mad. 645, followed. - - 2. the point urged before me is that the claim of the respondents is barred except for the amounts deducted within six months of the filing of the suit and the claim for injunction, and this..........the general principle is that procedural laws have a retrospective effect because no person has a vested right in procedure. the privy council in two cases, [lala soni ram v. kanhaiya lal , and masjid shahid ganj mosque v. shiromani gurdwara purbandhak committee, amritsar (1940) l.r. 67 indap 251 : 42 bom. l.r. 1100, has laid down that the law of limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit unless there is some distinct provision to the contrary; and therefore, as act xii of 1938 was in force at the date when the respondents' suit was filed, that law of limitation has got to be given effect to, and under the provisions of that act, the claim of the respondents to the extent that i have indicated would be barred by.....
Judgment:

Chagla, J.

1. The only point that arises in these appeals and in the Civil Revision Application No. 4 of 1941 is one of limitation. The appellant, the District School Board of Belgaum, had employed the respondents in the different appeals and in the civil revisional application as teachers and they were being paid on a certain scale. Pursuant to a certain Resolution passed by Government, the Board came to the conclusion that they had been paid more than they were entitled to and, therefore, the Board directed that the respondents should refund the excess payments made, and orders were passed for deducting the excess amount from their pay by monthly instalments. These orders were communicated to the respondents by the end of April, 1937, and the deductions actually started from April 1, 1937. These deductions went on for about twenty months when the respondents obtained legal advice and protested to the Board that these deductions were not legal and they filed the suits in October 1939 for recovering from the Board the amounts already deducted from their salaries and for getting an injunction restraining the Board from making similar deductions in future.

2. The point urged before me is that the claim of the respondents is barred except for the amounts deducted within six months of the filing of the suit and the claim for injunction, and this contention is based on the amendment of Act IV of 1923, the Bombay Primary Education Act, which was amended by Act XII of 1938. Act XII of 1938 provided a period of limitation for filing suits against the District Board for anything done, or purporting to have been done, in pursuance of the main Act, and the period of limitation provided was six months from the date of the act complained of. The section also provided that one month's previous notice in writing of the intended action and of the cause thereof had to be given to the Board. Now if this section applies, the claim of the respondents to the extent that it claims a refund of the amounts deducted six months prior to the filing of the suit is clearly out of time.

3. Laws of limitation are procedural laws and the general principle is that procedural laws have a retrospective effect because no person has a vested right in procedure. The Privy Council in two cases, [Lala Soni Ram V. Kanhaiya Lal , and Masjid Shahid Ganj Mosque v. Shiromani Gurdwara Purbandhak Committee, Amritsar (1940) L.R. 67 IndAp 251 : 42 Bom. L.R. 1100, has laid down that the law of limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit unless there is some distinct provision to the contrary; and therefore, as Act XII of 1938 was in force at the date when the respondents' suit was filed, that law of limitation has got to be given effect to, and under the provisions of that Act, the claim of the respondents to the extent that I have indicated would be barred by limitation.

4. It is true that there are cases in the books where a law of limitation destroys a cause of action which has accrued to a party and does not merely curtail the period of limitation within which he must enforce that cause of action, and the authorities have laid down that where a party is deprived of his right of action or his cause of action is destroyed by a statute of limitation, then the Courts would hesitate before giving such a statute a retrospective effect. The lower appellate Court, in rejecting the contention of the appellant with regard to limitation, relied on a decision of Sir Lawrence Jenkins in Gopeshwar Pal v. Jiban Chandra, Chandra I.L.R. (1914) Cal. 1125. In that case the suit was for recovery of possession. The plaintiff was dispossessed by the landlord's assignee in 1903. The suit was filed on July 9, 1909. Under the law then in force, suits could be brought within twelve years after dispossession in such cases. On May 11, 1907, an amending Act was passed cutting down the period of limitation to two years. No interval was given for the amending Act to come into force, and the question that arose was whether the amending Act should have retrospective effect. At p. 1132 in the course of the arguments Sir Lawrence Jenkins, Chief Justice, observed:

The tendency of the cases seem generally to be not to construe an Act so as to take away any existing right. But there is no objection to say that where the time for suing is cut down, but it does not amount to a confiscation of right, the new Act is applicable. That reconciles all cases.

Sir Lawrence Jenkins held that it was impossible for the plaintiff to comply with the provisions of the Act, that he had a vested right of suit and that the Act could not be construed to mean that that vested right had been destroyed by the passing of that statute. The important fact to remember is that no interval was given by the legislature for the amending Act to come into force.

5. In Khusalbhai v. Kabhai I.L.R. (1881) 6 Bom. 26, subsequently to the institution of the plaintiffs' suit, one of the defendants died, and his son, as his legal representative, was made a defendant in his stead. The new defendant objected that his father had been dead more than six months before the application of the plaintiffs to make him a defendant and that, therefore, the suit should abate, as provided by the last clause of Section 368 of the Civil Procedure Code, Act X of 1877 (introduced by the amending Act XII of 1879 and Article 171B of the Limitation Act XV of 1877, which prescribed a period of sixty days within which an application should be made to have the representative of a deceased defendant made a defendant to a suit. The Court consisting of Mr. Justice Melvill and Mr. Justice Kemball held that the provisions of Article 171B of the Limitation Act should not be given retrospective effect, and the principle there enunciated was that as a general rule an act of limitation, being a law of procedure, governs all proceedings, to which its1 terms are applicable, from the moment of its enactment, except to the extent that its operation is expressly excluded. But this principle admits of one qualification that when the retrospective application of a statute of limitation destroys vested rights or inflicts such hardship or injustice as could not have been within the contemplation of the legislature, then the statute should not be construed retrospectively. One consideration that greatly weighed with the Court in refusing to give retrospective effect to that particular statute of limitation was that the Act came into force at the moment at which it received the assent of the Governor General. The plaintiffs, therefore, in that suit had no such notice as might have enabled them to anticipate the divestiture of their right of revival of the suit In that case Mr. Justice Melvill referred to the case of The Queen V. The Leeds and Bradford Railway Co. (1852) 21 L.J. (M.C.) 193, in which it was held that the 11 & 12 Vict., c. 43, Section 11, which limits the time for taking summary proceedings before justices to six months from the time when the matter complained of arose, was fatal to proceedings begun after the passing of the Act, in respect of a matter which had risen more than six months before the Act was passed. In that case there was an interval of six weeks between the passing of the Act and its coming into operation, and the concession of this interval was thought to show that the hardship in question had been in the contemplation of the legislature, and had been thus provided for; and in that case Lord Campbell said (p. 195):

If the Act had come into operation immediately after the time of its being passed, the hardship would have been so great that we might have inferred an intention on the part of the legislature not to give it a retrospective operation; but when we see that it contains a provision suspending its operation for six weeks, that must be taken as an intimation that the legislature has provided that as the period of time within which proceedings respecting antecedent damages or injuries might be taken before the proper tribunal.

6. There is a decision in The Ydun [1899] P. 236, to which my attention has been drawn by Mr. Coyajee in which the facts are very similar to the facts in this case. There the Public Authorities Protection Act was passed on December 5, 1893, and came into force on January 1, 1894, and that Act provided that an action against any person, in respect of any alleged neglect or default in the execution of any Act of Parliament or of any public duty or authority, must be commenced within six months next after the act, neglect or default complained of. The plaintiffs in the suit alleged that they had suffered damages by reason of an act which took place on September 13, 1893, and the President of the Probate Division dismissed the action on the ground that it was barred by limitation. In that case it will be noticed that a sufficient interval was given by the legislature, namely, from December 5, 1893, to January 1, 1894, so that if intending suitors were not vigilant their right of action would be barred. In the judgment of the President, which was approved of by the Appellate Bench, the learned Judge said (p. 241):.it is clear that what must be taken to be an improvement in procedure is not to be considered as interference with a vested right of those who would have preferred the procedure to remain in its unreformed condition.

7. Mr. Madbhavi for the respondent has drawn my attention to a decision in Rajah of Pittapur v. Venkata Subba Row I.L.R. (1915) Mad. 645. It is a judgment of a full bench consisting of Sir John Wallis, Chief Justice, Mir. Justice Seshagiri Ayyar and Mr. Justice Kumara-swami Sastriyar. The question there was whether Sections 210 and 211 and Article 8 of Part A of the Schedule of the Madras Estates Land Act (I of 1908) should be given a retrospective effect. In that case the Act came into force two days after it received the Viceroy's assent; and as pointed out by Sir John Wallis, Chief Justice, it left no opportunity to the plaintiff for the exercise of his vested right of suit. The claim for rent which was claimed in the suit was not barred at the date of the passing of the Act, and the result of the passing of the Act; was to leave no opportunity for the exercise of the plaintiff's vested right of suit; and Sir John Wallis held that the effect of the amendment would be, if construed retrospectively, to destroy the plaintiff's right of suit which was in existence when the Act came into force. Mr. Justice Kumaraswami Sastriar agreed with the view taken by Sir John Wallis and in his judgment too he has stressed the point that there was not sufficient time between the assent given to the Act by the Governor General and its coming into force so that the public had not due notice of the provisions of the new Statute which was going to come into force.

8. Considering these authorities, it is clear that as a rule Statutes of limitation being procedural laws must be given a retrospective effect in the sense that they must be applied to all suits filed after they came into force. This general rule has got to be read with one important qualification, and that is that if the Statute of limitation, if given a retrospective effect, destroys a cause of action which was vested in a party or makes it impossible for that party for the exercise of his vested right of action, then the Courts would not give retrospective effect to the Statute of limitation. The reason for this qualification is that it would inflict such hardship and such injustice on parties that the Courts would hesitate to attribute to the legislature an intention to do something which was obviously wrong.

9. Applying this principle to the facts of this case, Act XII of 1938 was published in the Gazette on May 27, 1938, and Section 1 provided that it shall come into force on such date as the Provincial Government may by notification in the Official Gazette appoint; and the date appointed by the Provincial Government was July 1, 1938. So there was an interval between May 27, 1938, and July 1, 1938, during which, if I might so put it, the operation of the Act was suspended and the necessary intimation was given by the legislature to the public that the Act would come into force on July 1, 1938, and that if they were not vigilant about their rights, they would be deprived of them. It is true that it was not open to the respondents immediately to go to Court on the Act being published in the Government Gazette of May 27, 1938, because under Section 26E a notice of thirty days had to be given to the District School Board. But even if such a notice had been given and the necessary period had expired, still a few days would have been left to the respondents to file the necessary suits. It may be that the period is extremely short, but I cannot possibly hold that the respondents were deprived of an opportunity of exercising their right of action which had vested in them:. However short the period, the respondents had their right after giving the necessary statutory notice to commence their action against the District School Board.

10. However reluctantly I must come to the conclusion that Mr. Coyajee's contention must prevail and that the respondents' claim except for a period of six months prior to the filing of the suit and for injunction is barred by limitation.


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