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C. Rudre Gowda Vs. Angadi Chikkanna - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1618 of 1971
Judge
Reported inAIR1972Kant199; AIR1972Mys199
ActsMysore General Clauses Act, 1899 - Sections 1(3), 3, 4, 6, 7, 61, 64 and 64(2); General Clauses Act, 1897 - Sections 6; Mysore Agriculturists Relief Act, 1928; Mysore Agricultural Debtors Relief Act, 1966; Constitution of India - Article 14; Bombay Municipal Boroughs Act, 1925 - Sections 61(1), 75 and 77; Municipal Rules
AppellantC. Rudre Gowda
RespondentAngadi Chikkanna
Appellant AdvocateH.R. Venkataramiah, Adv.
Respondent AdvocateC.S. Shantamallappa, Adv.
DispositionPetition dismissed
Excerpt:
..... - hence, the above decision is clearly distinguishable from the facts of the present case. the carry forward rule of 1952 was substituted by the carry forward rule of 1955. on this substitution the carry forward rule of 1952 clearly ceased to exist because its place was taken by the carry forward rule of 1955. thus by promulgating the new carry forward rule in 1955, the government of india itself cancelled the carry forward rule of 1952. when therefore this court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist, because the government of india itself cancelled it and had substituted a modified rule in 1955 in its place, could revive. we fail to appreciate the above contention......was extended to that state earlier by ordinance no. 40 of 1949 and those municipalities made bye-laws and rules enabling them to levy and collect octroi and other municipal taxes. raikot municipality was one of the municipalities in that state. in exercise of the power vested in the state government, the state government made certain rules for the raikot municipality by a notification dated december 5, 1949, with regard to imposition and collection of octroi duty and those rules were brought into effect with effect from december 1, 1950. under those rules the municipality was collecting octroi until august 1, 1953, when it framed its own bye-laws and rules in exercise of the power conferred on it by the bombay municipal boroughs act. on the promulgation of those rules and bye-laws, the.....
Judgment:

Venkataramiah, J.

1. The petitioner herein is the defendant in the suit, Original Suit No. 62 of 1970 on the file of the Munsiff, Chikkaballapur. The said suit was instituted for recovery of a certain sum of money due on a promissory note executed by the defendant. In the course of the written statement the defendant contended that he was an agriculturist within the meaning of the Mysore Agriculturists Relief Act, 1928, and, therefore, he was entitled to the reliefs thereunder. In view of the above contention, the Munsiff framed issue No. 1. By the time the said issue was taken up for hearing it was held by this Court in E.V. Rangaswamy v. Shah Krishnaji Valaji & Co., (1971) 1 Mys LJ 350 that the Mysore Agriculturists Relief Act, 1928, was no longer in force, and, therefore, the Munsiff ordered that no relief could be granted to the defendant under that Act. He also ordered deletion of issue No. 1 in the suit. Aggrieved by the said order, the defendant has filed this petition.

2. When the petition came up for hearing before Jagannatha Shetty, J. he noticed that there was a conflict between the views expressed by this Court in Rangaswamy's case, (1971) 1 Mys LJ 350 and the views expressed in Venkaiappa v. S. N. Venkateshaiah, (1971) 2 Mys LJ 348 = (AIR 1972 Mys 119) and, therefore, he referred the above petition for disposal by a Division Bench.

3. It is necessary to state a few facts to understand the question involved in this case. The Mysore Agriculturists Relief Act, 1928, was in force in the area from which this case arises till the Mysore Agricultural Debtors Relief Act, 1966 (Mysore Act 29 of 1966) (hereinafter referred to as the Act) was brought into force. The Act came into force with effect from April 1, 1969, as per the notification issued by the State Government under Section 1 (3) of the Act. By Section 64 (2) of the Act, the Mysore Agriculturists Relief Act, 1928, was repealed. It was however provided that such repeal would not affect the previous operation of that law and that anything done or any action taken thereunder shall not be invalid. Some time thereafter a large number of writ petitions were filed before this Court and they were all disposed of by a common judgment on October 31, 1969, holding that the whole Act was unconstitutional (vide D. M. Thippeswamy v. State of Mysore, (1970) 1 Mys LJ 43 on the ground that Section 3, proviso (a) to Sections 4 and 61 were violative of Article 14 of the Constitution. The court held that since those provisions were not severable from the rest of the provisions of the Act, the entire Act was unconstitutional. We are informed that an appeal filed against the said decision is still pending before the Supreme Court.

4. After the above decision the question whether a declaration made by this Court that the whole Act was unconstitutional would have the effect of reviving the Mysore Agriculturists Relief Act, 1928, which was one of the Acts repealed by Section 64 (2) of the Act, came up for consideration before this Court in Rangaswamy's case. It was contended in that case that on account of the Act being declared as unconstitutional in its entirety, the repealing provision of that Act also should be deemed to have been held void from the inception, and therefore, the Act had not the effect of repealing the Acts mentioned in Section 64. In support of the above contention, a decision of the Supreme Court in Mulchand Odhavii v. Rajkot Borough Municipality, : AIR1970SC685 was relied upon. Venkataswami, J., who decided that case negatived the above submission after distinguishing the decision of the Supreme Court relied on by the petitioner. Thereafter in Venkatappa's case Datar. J., relying upon the very same Supreme Court decision came to a contrary conclusion and held that the Mysore Agriculturists Relief Act, 1928 revived on the Act being declared as unconstitutional by this Court. Sri H. R. Venkataramiah, the learned counsel for the petitioner, relying upon the very same decision of the Supreme Court contended before us that the Mysore Agriculturists Relief Act, 1928, was still in force. We find it difficult to uphold the above contention.

5. The facts of Mulchand's case were these; The Raipramukh of Saurashtra promulgated Ordinance No. 47 of 1949 which came into force on August 31, 1949, with the object of enabling the State Government to levy and collect octroi duty in the towns and cities of that State and to pass on the duty so collected by it to those cities and towns until the Municipalities therein were constituted under the Bombay Municipal Boroughs Act, 1925, which was extended to that State earlier by Ordinance No. 40 of 1949 and those Municipalities made bye-laws and rules enabling them to levy and collect octroi and other municipal taxes. Raikot Municipality was one of the Municipalities in that State. In exercise of the power vested in the State Government, the State Government made certain rules for the Raikot Municipality by a notification dated December 5, 1949, with regard to imposition and collection of octroi duty and those rules were brought into effect with effect from December 1, 1950. Under those rules the Municipality was collecting octroi until August 1, 1953, when it framed its own bye-laws and rules in exercise of the power conferred on it by the Bombay Municipal Boroughs Act. On the promulgation of those rules and bye-laws, the Government issued a notification deleting the said Municipality from the First Schedule to the Ordinance 47 of 1949, under which the State Government had been authorised to make rules. Thereafter one of the firms carrying on business within the limits of the said Municipality questioned in a suit the validity of the rules and bye-laws made by the Municipality-In the said suit it was held that the bye-laws and rules framed by the Municipality had not been made in compliance with Sections 61 (1), 75 and 77 of the Bombay Municipal Boroughs Act, and, therefore, were illegal and consequently the said rules and bye-laws could not be enforced by the Municipality. It further held that since the new rules and bye-laws made by the Municipality had not been validly made, the rules framed by the Government continued to be operative by virtue of Ordinance No. 47 of 1949 and it also held that the deletion of the Municipality from the First Schedule of the Ordinance, was only conditional upon the new rules and bye-laws framed by the Municipality were valid. Since the new rules end bye-laws were held to be illegal, the rules framed by the Government under the Ordinance continued to be in force. The matter ultimately came up before the Supreme Court and the Supreme Court held that while the notification was issued by the Government deleting Rajkot Municipality from the First Schedule to Ordinance No. 47 of 1949, the intention obviously was that once the Municipal Rules came into operation, the Government rules ceased to operate. The Supreme Court was also of the view that it was clear from the language of Ordinance No. 47 of 1949 that the Government rules would cease to apply from the time the Municipality brought into force its own rules and bye-laws under which it could validly impose, levy and recover octroi duty. The law did not intend any hiatus when neither the Government rules nor the Municipal rules would be in the field.

6. Therefore, the Supreme Court was of the opinion that it was clear that if the bye-laws made by the Municipality could not be legally in force for some reason or the other, the Government rules would continue to be operative. According to the Supreme Court it was not a case of the Government rules being revived but it was a case where the Government rules continued to operate by virtue of Ordinance No. 47 of 1949 until valid rules and bye-laws were made by the Municipality. As observed by Venkataswami, J. in Rangaswamy's case the facts of Mulchand's case were different from the facts of the present case. The case before the Supreme Court was not one where certain rules and bye-laws which had ceased to be operative were revived on account of a decision of the Court holding that a law by reason of which the said rules and bye-laws had become inoperative, was illegal or unconstitutional. It is clear from the observations of the Supreme Court in that decision which reads:

'There was no question of the Government rules being revived, as in the absence of valid rules of the respondent-Municipality they continued to operate.'

It is, therefore, clear that in the above decision, the Supreme Court was not concerned with a case where an Act of Legislature which contained a provision repealing an earlier Act and which was later on struck down by a Court as unconstitutional. Hence, the above decision is clearly distinguishable from the facts of the present case.

7. By Section 64 (2) of the Act, the Mysore Agriculturists Relief Act, 1928, was repealed and the said section, as already stated, came into force on April 1, 1969. The Acts which were repealed were taken out of the Statute Book immediately the repealing provision came into force, and that the said Acts could be revived or brought into force again only by following the prescribed procedure for making a law. In the instant case, no such law has been passed by the competent Legislature to revive them. The question however which remains to be answered in this case is whether, on the Act having been struck down by a judgment of this Court, the Mysore Agriculturists Relief Act, 1928, has come into force again. It was contended on behalf of the petitioner that in view of judicial declaration made by this Court declaring the whole Act as void, Section 64 of the Act which repealed the earlier Acts must be considered as never having come into existence. On the above basis it was contended that the earlier Acts which were repealed by Section 64 (2) came into force again. It is very difficult to accept the above submission.

8. In D. M. Thippeswamy's case, (1970) 1 Mys LJ 43 it is no doubt true that this Court struck down the entire Act on the ground that the invalid provisions were not severable from the rest of the provisions of the Act. On a careful reading of the said decision, it is seen that this Court did not apply its mind to Section 64 of the Act specifically. It is not disputed that the Mysore Legislature had the power to repeal the Acts mentioned in Section 64 (2) of the Act and the said Section, for its validity did not depend upon the validity of other sections of the Act. In those circumstances. Section 64 became effective on April 1, 1969, when it came into force and it virtually spent itself out immediately thereafter because the laws which were repealed by that section ceased to be operative forthwith subject however to the proviso which kept alive anything done or any action taken under the Acts so repealed. The subsequent judicial declaration could not undo what had been achieved by Section 64 as soon as the Act came into force.

A similar question arose for consideration before the Supreme Court in B. N. Tewari v. Union of India, : [1965]2SCR421 . The said case was a sequel to an earlier decision of the Supreme Court in T. Devadasan v. Union of India, : (1965)IILLJ560SC , in which a certain rule regarding the recruitment of employees to the Central Secretarial Service was struck down as being unconstitutional. The said rule was made in 1955 in substitution of an earlier rule which was in force from 1952. The question for consideration before the Supreme Court in Tewari's case was whether on the rule framed in 1955 being declared as unconstitutional the rule of 1052 which was substituted by the rule of 1955 again revived. Dealing with that aspect of the case the Supreme Court observed as follows :--

'We shall first consider the question whether the carry forward rule of 1952 still exists. It is true that in Devadasan's case, : (1965)IILLJ560SC , the final order of this Court was in these terms:--

'In the result the petition succeeds partially and the carry forward rule as modified in 1955 is declared invalid.' That, however does not mean that this Court held that the 1952 rule must be deemed to exist because this Court said that the carry forward rule as modified in 1955 was declared invalid. The carry forward rule of 1952 was substituted by the carry forward rule of 1955. On this substitution the carry forward rule of 1952 clearly ceased to exist because its place was taken by the carry forward rule of 1955. Thus by promulgating the new carry forward rule in 1955, the Government of India itself cancelled the carry forward rule of 1952. When therefore this Court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist, because the Government of India itself cancelled it and had substituted a modified rule in 1955 in its place, could revive. We are therefore of opinion that after the judgment of this Court in Devadasan's case, : (1965)IILLJ560SC there is no carry forward rule at all, for the carry forward rule of 1955 was struck down by this Court while the carry forward rule of 1952 had ceased to exist when the Government of India substituted the carry forward rule of 1955 in its place ......'

The above view of the Supreme Court makes it abundantly clear that a rule or law which has ceased to be in existence by virtue of the rule or law having been cancelled or repealed by a competent authority, would not revive on a rule or law made in substitution of the same being declared unconstitutional by a Court.

9. It was however, contended by Shri H. R. Venkataramiah that in this case we are concerned with a statute passed by a Legislature and not a rule framed by Government and that the whole Act including the Section which repealed the earlier Acts had been struck down, and therefore, the above decision of the Supreme Court was distinguishable from the facts of the present case. We fail to appreciate the above contention. The principle enunciated by the Supreme Court in the above decision does not depend upon the nature of the authority which made the rule or law. Secondly, by reason of Section 61 of the Act having come into force on April 1, 1969, on the very day the Acts which were repealed by the said section were removed from the Statute Book. There may have been some substance in the contention urged on behalf of the petitioner if the said law had been declared as unconstitutional before Section 64 had come into force. As long as the competency of the Legislature to repeal the earlier Acts is not questioned, full effect will have to be given to the provision relating to the repeal of earlier Acts and as already stated it spent itself out immediately it came into force and there was nothing thereafter in Section 64 for the Court to strike down.

10. Shri H. R. Venkataramiah next relied upon a decision of the Kerala High Court in Chembakaye Vadakekkara Lakshmi v. Nellisseri Gramam Narayanaswami Iyer, : AIR1963Ker330 , which prima facie appeared to be in his favour. But since the view expressed therein is in conflict with the view of the Supreme Court in B. N. Tewari's case, we cannot rely upon it in deciding the present case.

11. After giving our anxious consideration to the matter, we have come to the conclusion that the Mysore Agriculturists Relief Act, 1928, which was repealed by Section 64 (2) of the Act did not revive when the Act was struck down by this Court in D. M. Thippeswamy's case. It follows that the decision in (1971) . 2 Myg LJ 348 = (AIR 1972 Mys 1191 stands overruled.

In the result, this petition fails and it is dismissed. There will be no order as to costs.

12. It was urged in view of this decision that the agriculturists for whose benefit the Mysore Agriculturists Relief Act, 1928, and other laws repealed by Section 64 (2) of the Act were enacted, would be highly prejudiced. This is not a matter for which remedy can be found in this Court. It is open to the State Government to take such steps as may be necessary to get appropriate legislation passed for the benefit of such agriculturists.


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