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Satya Pramoda Teertha Swamuluvaru Vs. Commissioner of Hindu Religious and Charitable Endowments, Andhra Pradesh, Hyderabad and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberW.A. No. 599 of 1969, W.P. Nos. 2081 of 1967, 2457 and 4119 of 1968
Judge
Reported inAIR1971AP211
ActsAndhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 - Sections 3(1) and 109 (3); Madras Hindu Religious and Charitable Endowments Act, 1951 - Sections 57 and 61; Andhra Pradesh General Clauses Act, 1891 - Sections 8
AppellantSatya Pramoda Teertha Swamuluvaru
RespondentCommissioner of Hindu Religious and Charitable Endowments, Andhra Pradesh, Hyderabad and anr.
Excerpt:
trust and societies - right of appeal - sections 3 (1) and 109 (3) of andhra pradesh charitable and hindu religious institutions and endowments act, 1966, sections 57 and 61 of madras hindu religious and charitable endowments act, 1951 and section 8 of andhra pradesh general clauses act, 1891 - whether right of appeal under section 61 (1) of act of 1951 is destroyed by repealing act or is saved and preserved by section 109 (3) of act of 1966 - section 109 of act of 1966 must be construed as providing for repeals and savings in harmony with view to protect vested rights accrued to parties but not to destroy them - section 109 has not expressly or by necessary intendment destroyed vested right of appeal under section 61 (1) of repealed act - office of commissioner entitled to deal with.....kondaiah, j.1. as the point involved in these cases is common, they are disposed of by a common judgment.2. it is sufficient to state the facts in writ appeal no. 599 of 1969: the application filed by the writ petitioner sri satya pramoda teertha swamulavaru, head of the uttaradi mtt under section 57 (a) of the madras hindu religious and charitable endowments act (xix of 1951) for declaration that uttaradi mutt was not a public institution within the meaning of the act and hence, it was not amenable to the jurisdiction of the endowments department, was dismissed by the deputy commissioner on december 16, 1965. the appeal preferred against the decision of the deputy commissioner, under section 61 (1) of that at to the commissioner for hindu religious and charitable endowments on february.....
Judgment:

Kondaiah, J.

1. As the point involved in these cases is common, they are disposed of by a common judgment.

2. It is sufficient to state the facts in Writ Appeal No. 599 of 1969: The application filed by the Writ Petitioner Sri Satya Pramoda Teertha Swamulavaru, Head of the Uttaradi Mtt under Section 57 (a) of the Madras Hindu Religious and Charitable Endowments Act (XIX of 1951) for declaration that Uttaradi Mutt was not a public institution within the meaning of the Act and hence, it was not amenable to the jurisdiction of the Endowments Department, was dismissed by the Deputy Commissioner on December 16, 1965. The appeal preferred against the decision of the Deputy Commissioner, under Section 61 (1) of that At to the Commissioner for Hindu Religious and Charitable Endowments on February 23, 1966 was pending before him on the date of the coming into force of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act (XVII of 1966) i.e. on 26-1-1967. The appeal was rejected by the Commissioner on July 19, 1967 on the ground that he had on jurisdiction to dispose of the same after the passing of the present Act. The Writ Petition No. 3291/67 questioning the validity of the aforesaid order of the Commissioner was dismissed by Chinnappa Reddy, J. on the ground that the right of appeal possessed by the petitioner under the earlier Act perished, with the repeal of that Act. Aggrieved by that decision, this Writ Appeal has been filed by the appellant.

3. Mr. T. S. Narasinga Rao and Mr. T. Laxmaiah, learned counsel for the Writ Petitioners, contend that the right of appeal accrued to their clients on the date of the coming into force of the present Act is saved by Sub-sec. (3) to Section 109 of the repealing Act read with Section 8 (d) and (f) of the Andhra Pradesh General Clauses Act, 1891. This claim of the petitioners is opposed by the learned Government Pleader contending inter alia that the right of appeal possessed by the petitioners under the repealed Act has been taken away by the repealing Act and in any even, Section 8 of the Andhra Pradesh General Clauses Act is not attracted; there is not forum available under the present Act to entertain the appeals filed under Section 61 (1) of the repealed Act.

4. The question that arises for decision is: Whether on the facts and in the circumstances the right of appeal possessed by and accrued to the Writ Petitioners under Section 61 (1) of the Madras Act 19 of 1951 is destroyed by the repealing Act or is saved and preserved by sub-section (3) to Section 109 of the Andhra Pradesh Act 17 of 1966 read with Section 8 (d) and (f) of the Andhra Pradesh General Clauses Act.

5. For a proper appreciation of the respective contentions of the parties, it is necessary to set out the relevant provisions of the repealed as well as the repealing Act. The Deputy Commissioner was invested with the power to enquire and decide the disputes and matters specified under Section 57 of the repealed Act. A right of appeal to the Commissioner against the decision of Commissioner against the decision of the Deputy Commissioner was provided by Section 61 (1) of that Act. The Commissioner under the present Act is not empowered to hear any appeals against the decisions of the Deputy Commissioner under Section 77 of the new Act. However, a right to institute a regular suit in the District Court within a year from the date of the decision of the Deputy Commissioner is provided by Section 78 of the repealing Act. The Commissioner and the Deputy Commissioner have been defined as persons appointed have been defined as persons appointed under Section 3 (1) of the present Act. State Government is empowered to appoint a Commissioner, joint Commissioners, Deputy Commissioners and Assistant Commissioners for purposes and of exercising the powers conferred on and performing the duties and functions entrusted to them by or under the Act.

6. Section 109 of the repealing Act deals with repeals and savings. Act 19 of 1951 and the Andhra Pradesh (Telungana Area) Wakf Regulation, 1349 Fasli are repealed by the provisions of sub-section (1) to Section 109 of the Act. Notwithstanding such repeal, all rules made, orders passed, decisions made proceedings taken and other things done by any authority or officer under the repealed Act or Regulation, as the case may be, in so far as they are not inconsistent with the present Act are deemed to have been made, issued, passed, taken or done by the appropriate authority or officer under the corresponding provisions of the repealing Act. By section 109 (2) (c) all proceedings pending before any officer or authority under the repealed Act will be continued by the appropriate authority under the present Act if they are not inconsistent with the provisions of the present Act. Any remedy by way of right of application, suit or appeal provided under the present Act is made available to parties whose proceedings under the told Act were pending at the time of the commencement of the present Act as if they had been instituted under the present Act. Sub-section (3) to Section 109 which is material for the present controversy reads:

'The mention of particular matters in this section shall not be held to prejudice or affect the general application of sections 8 and 18 of the Andhra Pradesh General Clauses Act, 1981, with regard to the effect of repeals.'

Under sub-section (3) to Section 109. the legislature has preserved such rights as are vested in or accrued to the petitioner under the repealed Act by the application of the provisions of Sections 8 and 18 of the Andhra Pradesh General Clauses Act, 1891, notwithstanding the repeal of the old Act and mention of the specific maters sin Section 109. In other words, the mere mention of particular matters in that Section shall not be construe to prejudice or affect the bested righted accrued to the parties by virtue of the provisions of Section 8 and 18 of the Andhra, Pradesh General Clauses Act. 1981. It is appropriate at this stage to refer to the provisions of Section 8 (d) and (f) of the Andhra Pradesh General Clauses Act, 1891:-

'8. Effect of Repealing an Act: Where any Act, to which this Chapter applies repeals any other enactment then the repeal shall not ........................

xx xx xx

(d) affect any invention legal proceedings or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceedings or remedy may be instituted, contend or enforced, and any such fine, penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.: By Section 3 (d) of the A.P. General Clauses Act, the right accrued to a person under the repealed Act cannot be affected by virtue of the provisions be affected by virtue of the provisions of the repealing Act. Such repeal, by the application of the provisions of Section 8 (f) of the A.P. General Clauses Act, shall not affect the legal proceeding or remedy in respect of such right and such legal proceedings or remedy may be instituted, continued or enforced as if the repealing Act had not been passed. In other words, the right of appeal accrued to party under the repealed act can be availed, continued or enforced, notwithstanding the repeal of the old Act, as if the repealing Act had old Act. as if the repealing Act had not been passed, in which case the repealed Act for the purpose of that right must be deemed to have been kept alive.

7. We shall now proceed to examine the legal position relating to the effect of repeal and saving provisions under the repealing Act.

8. Maxwell's Interpretation of Statutes (12th Edition), reads:

'The effect of repealing Acts passed after August 30, 1889, is now dealt with by Section 38 (2) of the Interpretation Act, Such repealing Acts are unless the contrary intention appears, not to' .......................

(C) affect any right, privilege, obligation or liability acquired, accrued, or incurred under any enactment so repealed;........................

or (e) affect any investigation, or liability acquired, accrued, or incurred under any enactment so repealed;.....................

or (e) affect any investigation, or legal proceedings, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid.' (page 17)

'A later statute may repeal an earlier one either expressly or by implication. But repeal by implication is not favoured by the courts. 'For as much', said Coke, 'as Acts of Parliaments are established with such gravity, wisdom and universal consent of the whole realm for the advancement of the common-wealth, they ought not by the constrained construction out of the general and ambiguous words of a subsequent Act, to be abrogated.' If, therefore, earlier and later statutes can reasonably be construed in such a way that both can be given effect to , this must be done.' (page 191).

Craies on Statute Law (Sixth Edition) says:

'In Acts passed in or since 1890 certain savings are implied by statute in all cases of express repeal, unless a contrary intention appears in the realign Act. x x x x x x x x

The mere repeal does not

'Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

xxxxx

'After act investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid, and any such investigation legal proceedings or remedy may be instituted, continued or enforced, any such penalty, forfeiture, or punishment may be imposed as if the repealing Act had not been passed.' (page 351 and 3352).

xxxxx The result of this enactment is to make into a general rule what had been a common statutory from and to substitute a general statutory presumption as to the effect of an express repeal for the canons of an repeal for the canons of construction hitherto adopted.' (Page 352)

The scope and effect of saving clauses has been considered by the learned author J.G. Sutherland in his 'Statutes and Statutory Construction' (Third Edition) as follows:

'A saving clause, is like proviso, an exemption from the general operation of the statute. It is generally employed to restrict repealing acts; to continue repealed acts in force as to existing powers,inchoate rights, penalties incurred and pending proceedings, depending on the repealed statute. A repeal destroys such rights, powers and proceedings and discharges the penalties. Thus to preserve them a special provision with saving effect is necessary.

Although saving clauses are usually strictly construed, unlike the case of a proviso, repugnance between the saving clause and the purview does not act to void the enacting part but operators to invalidate the saving clause. There is no logical basis for the distinction and the better rule of interpretation considers the entire act and attempts to determine the legislative intent and to adjust the conflicts on the basis of that intent. Thus in special instances a saving clause will be liberally construed.

A legislature may enact a general saving statute which will save rights and remedies except where a subsequent repealing act indicate that it was not the legislative intention that the rights and remedies should be saved .........' (pp. 475 and 576 Paras 4937 and 4938) As observed by Bowen, LJ. in Hough v. Windus (1884 (Vol. XII) Q.B.D. 224 at 237). 'Statutes should be interpreted if possible so as to respect vested rights.'

9. We shall now turn to the case law on the subject. The leading decision on the subject is that of the Privy Council in Colonial Sugar Refining Company v. Irving, 1905 AC 369 at p. 372. In that case, a right of appeal from the decision of the Supreme Court of Queensland was provided to His Majesty in Council by virtue of the order in Council of June 30,1860. That rights had been repealed by Section 39 (2) of the Australian commonwealth Judiciary Act. 1903 which provided a right of appeal to the High Court of Australia. The Privy Council. in those circumstances. held that the Australian Common wealth Judiciary Act, 1903 was not retrospective and the right of appeal to the Kind in Council in a pending suit when the Australian Commonwealth Judiciary Act was passed and decided by the Supreme Court was not taken away. Lord Macnaghten who spoke for the Privy Council ruled thus:

'....................it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act it was conceded that in accordance with along line of authorities extending from the time of Lord Coke to the present day, he appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendement. And therefore the only question is was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act. or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt To deprive a suit superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle. their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.

10. Following the principle laid down by the Privy Council in 1905 AC 369 the Judicial Committee, in Delhi 54 Ind App 421, rejected the plea of the assesses holding that they had no statutory right of appeal to His Majesty in Council in respect of the assessments for the years 1922-23 and 1923-24 completed before the amending Act 24 of 1926 by which a right of appeal to the Privy Council from a decision of the High Court under sub-section (2) to Section 66-A was provided.

11. The view of the Privy Council un 1905 AC 369 was followed Reddiar v Krishnaswami Reddiar, AIR 1943 FC 24 wherein it was held that a right to continue a suit instituted prior to 1-4-1937 when Burma ceased to be part of India, in respect of properties situate in the province of Madras as well as Burma, was a vested right which could not be taken away except by a clear indication of intention to that effect in the Constitution Act and hence, the pending suit even with respect to property in British Indian even after 1-4-1937.

12. The law relating to the scope. effect and applicability of Section 6 of the General Clauses Act and the repeal and saving provisions in a repealing Act has been succinctly laid down by the Supreme Court in State of Punjab v. Mohar Singh, 0043/1954 : 1955CriLJ254 The learned Judge, B.K. Mukherjea, J. who spoke for the Court, ruled thus:

'Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act says a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act. but only for the purpose of determining whether they indicate a different intention.

The line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifest an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6, General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law.'

The same view has been reiterated by the Supreme Court in Indira Sohanlal v, Custodian of Evacuee Property, : [1955]2SCR1117 .

13. The Supreme Court in Daji Saheb v. Shankar Rao, : [1955]2SCR872 , had held that the right of a litigant to prefer an appeal to the Federal Court against the reversing judgment and decree of the High Court in a case where the value of the subject matter of the suit was over Rs. 10,000/- but less than Rs. 20,000/- is a vested right and the same was not destroyed by the abolition of the Federal Court and it would lie to the Supreme Court. However, it was observed that the vested right perishes if the Court to which the appeal lies is altogether abolished without any forum substituted in its place.

14. In Garikapati Veerayya v. N. Subbaiah Chowdhry, : [1957]1SCR488 it was held that the litigant who filed a suit in respect of properties valued above As. 10,000/- but below Rupees 20,000/- before the Constitution had a vested right of appeal from the Sub Court to the High Court and thereafter to the Federal Court and to the Supreme Court notwithstanding the abolition of Federal court and the value being raised to Rs.20,000/- to appeal to the Supreme court . The learned Chief Justice. S.R. Dass who spoke for the Court, on a careful review of the entire case law on the subject, succinctly laid down the following principles;

'(I) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties there to till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and form the date the is commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceedings and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by subsequent enactment. if it so provides expressly or by necessary intendment and not otherwise.'

The same view has been reiterated by the Supreme Court in The Brihan Maharashtra Sugar Syndicate Ltd. v, Janardan Ramchandra Kulkarni, AIR 1960 SC 764 and The Custodian of Evacuee Property, Bangalore v.khanb Shab abdul Shukoor, AIR 196 SC 1087. See also Indermull Loniya v. Subordinate Judge. Secunderabad, AIR Andh Pra 779.

15. We shall now proceed to examine the question at issue On the application of the doctrine enunciated by the Privy council in the leading case. 1905 AC 369 and consistently applied and approved by the Supreme Court as no hesitation to hold that the writ petitioners, who fields applications under Section 57 (a) before the Deputy Commissioner under the Madras Act 19 of 1951. had a vested right of appeal under Section 61(1) of that Act to the Commissioner accrued on the date of the institution of their petitions and that right was a substantive right but not one of mere procedure. They have also a vested right of a regular suit in competent civil court and a right of appeal to the High Court as provided under Section 62 of that Act. The vested right of appeal accrued to the petitioners under Section 61(1) and a right of regular suit in a competent Civil Court and an appeal to the High Court therefrom are substantive right which are preserved by application of the provisions of Section 8(d) and 8 (f) of the Andhra Pradesh General Clauses Act. 1981. unless they are specifically taken away by the provisions of the repealing Act either expressly or by necessary intendment.

16. This brings us to the interpretation of the provisions of Section 109 of the Andhra Pradesh Act 17 of 1966, which deals with repeals and saving, The provisions of sub-section (20 to Section 109 are not attracted in the instant case. The provisions of clause (c) of sub-section (20 to Section 109 are not applicable to the present case as the proceedings pending before the Commissioner on the date of the commencement of the new Act are not consistent with the provisions of the repealing Act. It is only such proceedings with were pending before the authority at the date of the coming into force of the new Act and re not inconsistent with the provisions of the repealing Act, that can be continued by the appropriate authority under the new Act. The provisions of Clause (d) of sub-section (2) to sec, 109 cannot be availed by the petitioners as they will apply only to cases where the remedy of appeal to the Commissioner is provided under this Act but not otherwise. There remains sub-section (3). On a close reading of sub-section (3) we are of the view that the intendement of the legislature does not appear to be either expressly or by necessary implication to take wasay the vested right of appeal to the Commissioner under Section 61 (1) and of suit and appeal as provided under Section 62 of the repealed Act. Where there is no specific provision or it is not possible to gather the necessary implication to take away such vested right accrued to the parties the general presumption in law and the provisions of the Andhra Pradesh General Clauses Act, 1891 will come into play That apart, the very face that sub-s. (3) to Section 109 has been provided by the legislature would amply prove the intendment of the legislature being to preserve the vested substantive rights accrued to the parties at the date of the commencement of the repealing Act intact. A close reading of sub-section (3) manifests that the mention of 'particular matters' in sub-sections (1) and (2) of Section 109 should not be construed so as to prejudice or affect the general application of Section 18 and of the Andhra Pradesh General Clauses Act, 1891 with regard to the effect of repeals. Sub-section (3) is made by way of abundant caution with a view to the put the matters beyond controversy, Sub-section (3) is intended to preserve the vested rights accrued to the parties and not saved by clauses (a) to the (d) of sub-section (2), For all these reasons, we must hold that the vested substantive right of appeal to the commissioner under the repealed Act is preserved intact and the same has not been taken away expressly or by necessary intendment by Section 109 of the repealing Act.

17. This view of ours finds support in the decision of the Supreme Court in AIR 1970 SC 764 at p. 795. That case arose under the Companies Act. The shareholders' application before the District Court, Poona under Section 153C of the companies Act, 1913 against the company and its directors for certain relieves, was pending when the Act of 1913 was repealed giving place to the Companies Act of 1959 on April 1,1956. The company raised on objection to the maintainability of the application after the coming into force of the Act of 1956 as the court ceased to have jurisdiction to deal with it. Section 645 - 657 of the Act of 1956 contained saying provisions analogous to the provisions adumbrated in Clauses (a) to (d) of sub-section (2) to Section 109 of the Andhra Pradesh Act 17 1966, Section 658 of the Companies Act, 1956 is analogous to sub-section(3) of Section 109 of A.P. Act 17 of 1966 with which we are now concerned, Section 658 of Companies Act, 1956 reads:

'The mention of particular matters in Section 645 - 657 or in any other the general application of Section 6 of the General Clauses Act, 1897, with respect to the effect of repeals.'

Sarkar, J. (as he then was), who spoke for the Court, while considering this aspect of the case, observed thus:

'The question then is whether the Act of 1956 indicates that it was intended thereby to destroy the rights created by Section 153-C of the Act of 1913 xxx Section 647 of the Act of 1956 therefore indicates no intention that the rights created n intention that the rights created by Section 153-C of the Act of 1913 shall be destroyed. Nor is an argument tenable that since by Sec. 647 the act of 1956 expressly makes the repealed Act applicable to a winding up commenced under it, it impolitely indicates that in other matters the repealed Act cannot be resorted to for in view of Section 658 of the Act of 1956, the mention of a particular matter in Sec. 647 the act of 1956 expressly makes the repealed Act applicable to a winding upcommenced under it, it impliedly indicates that in other matters the repealed indicates that in other matter s the repealed Act cannot be resorted to. for in view of Section 658 of the Act of 1956, the mention of a particular matter in sec. 647 would not prejudice the application of Section 6 of the General Clauses Act; in other words, nothing in Section 647 is to be understood as indicating an intention that Section 6 of the General Clauses Act is not to apply ..................'

18.A Full Bench of the Punjab High Court in National Planners v. Contributors Etc. , while considering the provisions of Section 6 of the General clauses Act, 1897, observed thus.

'Or to put in a slightly different language this provision declares that proceedings which were commenced by virtue of a statute which has been repealed shall not be dismissed by the Court for want of jurisdiction after the repeal of the statute, as under the common. law but that the said proceedings shall continue to be dealt with by the Court as before and shall be carried to final judgment and execution by the said Court in exactly the same way as if the statute had not been repealed.'

19. The decision of the Supreme Court in : [1961]3SCR855 , on which strong reliance has been placed by the learned Government Pleader does not advance the plea of the respondent. In that case, the question for consideration was whether the Mysore Administration of Evacuee Property (Second Emergency) Act, 1949 took away the right of appeal to the High Court provided under the Mysore Administration of Evacuee Property (Emergency)Act, 1948, On a consideration of the facts of that case the Supreme Court came to the conclusion to the party, but instead of providing for an appeal to the High court, an appeal to the Custodian General was substituted. Wanchoo., J. (as he then was), who spoke for the Court, observed thus:

'It could not have been intended by the legislature when it was expressly providing for appeal from an order under Section 5 (1) of the Second Mysore Act or under Section 7 (1) of the Act that a proceedings commenced under the first Mysore Act (which was equivalent to a proceedings under Section 5 (1) or 7 (1)) should continue to be governed in the matter of appeal by the first Mysore Act. This is therefore in our view a case where by necessary intendment (though not by express provisions) the legislature intended that the provision s to appeals provided by subsequent legislation should supersede the provision as to appeals under the first Mysore Act. We may point out that this is not a case where the right of appeals disappears altogether; all that happens is that where the order is passed by the Custodian the appeal lies to the Custodian General instead of to the High Court. The legislature has provided another forum where the appeal will lie and in the circumstances it must be held that by necessary intendment the legislature intended that forum alone to be the forum where the appeal will lie and not the forum under the first Mysore Act, Reference in this connection may be made to G. Veerayya v.N.Subbiah Chowdhry, : [1957]1SCR488 where this Court held that the vested right of appeal was a substantive right and was governed by the law prevailing at the time of the commencement of the suit and comprised all successive rights of appeal from court to court which really constituted one proceedings but added expressly or by necessary intendment., In the present case we are of opinion that once proceedings under Section 8 (1) of similar to proceedings under Section 5(1) of the Second Mysore Act or Sec. 7 (1) of the Act, it must necessarily follow that the legislature intended that all subsequent proceedings in the nature of appeal, after the first Mysore Act came to an end, must be in the forum provided by the subsequent legislation. We Court was in in error in holding that appeals to it lay from the order of December, 2, 1952.'

Hence, this decision is distinguishable from the facts of the present case. In the instant case, there is no provision for appeal either to the commissioner or to any other authority from the decision of the Deputy Commissioner under Section 77(1) of the present Act. The right of appeal has been abolished altogether, instead, a right of regular suit in a Civil Court and a right of appeal to the High Court have been provided.

20. The decision of the Special Bench of the Madras High Court in Vasudeva Samiar, In re, AIR 1929 Mad 381 = ILR 52 Mad 361 does not render any assistance to the respondents. In that case, the Full Bench of the Madras High Court did not think that their opinion was in conflict with the principle enunciated by the Privy Council in 1905 AC 369 which has been reiterated by the Board in Delhi Cloth and General Mills Co. v. Income Tax Commr, Delhi, 54 Ind App 421=(AIR 1927 PC 242). This can be seen from the following observations of the learned Chief Justice Courts-Trotter at page 382;

'We must therefore hold, however reluctantly that the institution of the suit carries with it the implication that all appeals then in force are preserved to it through the rest of its career, unless the legislature has either abolished the court to which an appeal then lay or has expressly or by necessary intendment given the Act a retrospective effect.'

21. As pointed out earlier, the construction that should be placed upon Section 109 of the present act providing for repeals and savings must be a harmonious and equitable one consistent with the view to protect vested rights accrued to the parties but not to destroy them. unless such intention is expressly or by necessary intention is expressly or by necessary intendment provided in the Act. On a careful consideration of the entire facts and circumstances . We are of the view that Section 109 of the present Act has not either expressly or by necessary intendement destroyed the substantive vested right of appeal accrued to the Writ Petitioners under Section 61 (1) of the repealed Act. We are also in entire agreement with the petitioners that the aforesaid vested right of the petitioners has been preserved intact by Sub-section (3) to Section 109 of the repealing Act. Hence, for the purpose of the appeals entertained under Section 61 (1) of the repealed Act, the office of the Commissioner entitled to entertain. continue and dispose of the appeals must be deemed to continue in so far as those appeals are concerned as if the repealing Act has not come into force. By the application of the provisions of Section 8(d) of the Andhra Pradesh General Clauses Act referred to above, the repealing Act odes not affect the right to appeal to Commissioner vested in the writ petitioners on the date of the coming into force of the new Act. The Commissioner, who is appointed under Section 3(1) of the new Act. must be held to be the Commissioner for the purpose of entertaining and disposing of the appeals pending before him on the date of the coming into force of the repealing Act. Although for all other purposes he is functioning as the Commissioner as per the provisions of the repealing Act, fir the limited purpose of entertaining, continuing and disposing of the appeals before him at time of coming into force of the new Act, he will function as the Commissioner having appellate jurisdiction under Section 61 (1) of the old Act. If the interpretation sought to be placed by the respondents in given effect to it would not only amount to taking away the substantive vested right of appeal accrued to and being exercised by the petitioners for no fault of their but will also lead to serious anomalies resulting in grave injustice to them as well as other similarly situated. The petitioners' appeals have been dismissed on the ground that the Commissioner has no jurisdiction; further they will have no right of suit even to challenge the decisions of the Deputy commissioner as the same is not provided for under the present Act. For all these reasons, we have no hesitation to answer the question in the affirmative and in favour of the writ petitioners. We are also unable to agree with the respondents that the petitioners must fail on the ground that there is no forum created under the present Act to continue the appeals preferred by them and pending on the date of the coming into force of the repealed Act.

22. The Commissioner, in our considered opinion erred in dismissing the appeals already entertained and pending before him at the date of the commencement of the repealing Act on the ground that he has no jurisdiction after a repeal of the old Act. as the appeal proceedings shall continue to be dealt with by the Commissioner as before till final judgment in the same way as if the old Act had no been repealed. The petitioners, if aggrieved by the appeals to be disposed of are entitled to file a regular suit and an appeal from the decision of the Civil Court if it goes against them as per the provisions of Section 62 of the repealed Act. In the circumstances, the Commissioner is directed to reopen and dispose of the appeals preferred by the Writ Petitioners as were pending before him at the date of the commencement of the repealing Act according to law and in the light of the observations made in this judgment.

23. For all these reasons, We have no hesitation to hold that the view taken by the learned judge is erroneous and is liable to be set aside.

24. In the result the writ appeal and the writ petitions are allowed with costs payable by the Commissioner. Advocate's fee Rs. 100/- in each.

25. Petitions and Appeals allowed.


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