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K. Krishna Murthy Vs. V. Ashwathanarayana Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 89 of 1877
Judge
Reported inAIR1982AP83
ActsConstitution of India - Article 309; Andhra Pradesh (Andhra Area) Villlage Offices Service Rules, 1969 - Rule 75 and 75-A
AppellantK. Krishna Murthy
RespondentV. Ashwathanarayana Rao and anr.
Appellant AdvocateO. Adinarayana Reddy, Adv.
Respondent AdvocateGovt. Pleader for Revenue and ;C. Pattabhirama Rao, Adv.
Excerpt:
.....by way of revision petition to government - subsequently rule 75-a introduced confirming power of revision on government - petitioner contended that government ought to have entertained revision petition under rule 75-a - court observed that rule 75-a had no retrospective effect and would not enable aggrieved party to question order that had already become final - held, government had no jurisdiction to revise order of board of revenue passed prior to rule 75-a coming into force. - - accordingly it was observed that if the section is to apply to orders final at the date when it came into force, it must be clearly so provided. it was held that the order of confirmation passed in 1952 would clearly be subject to the revisional power of the custodian general under s. no order was..........revenue had been passed on 31-3-1975 before r. 75-a was introduced and the said order had become final rule 75-a has no retrospective effect and would not enable the aggrieved party to question an order that had already become final.5. we are inclined to agree with this contention. rule 75-a which has been set out earlier does not contain any language which makes it retrospective in its operation, nor can it be said that retrospective effect can be given to the said rule by implication. in the leading decision on this subject in colonial sugar refining co. ltd. v. irving, 1905 ac 269 it was laid down by the judicial committee that:'while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective.....
Judgment:

Alladi Kuppuswami, C.J.

1. The appellant herein is the second respondent in writ petition No. 4108 of 1975. The said writ petition was filed by the first respondent herein praying for the issue of an appropriate writ quashing the order of the government dated 4-6-1975 made in the following circumstances. The array of the parties will, in this judgement be referred to as in the writ petition.

2. On the death of the then permanent karnam of Thummarakuta village, Madnapallle taluk, Chittor District, the Sub-collector, Madanapale appointed the petitioner as Karanam by his order dated 13-7-1974. The second respondent thereupon preferred an appeal to the District Revenue Officer, Chittor, who by his order dated 4-2-1975 set aside the order of the Sub-Collector and appointed the second respondent as the village karnam. The petitioner then preferred a second appeal to the Board of Revenue under R. 61 of the Andhra Pradesh (Andhra Area) Village Offices Service Rules, 1969, referred to in this judgement as the Rules. The Board of Revenue dismissed the Second appeal. When the order was made by the Board, no remedy by way of a Revision Petition to the Government was provided under the Rules. But by G. O. Ms. No. 514, Revenue dated 19-4-1975 which was published in the Gazette on 21-4-1975, R. 75-A was added to the Rules, which is in the following terms:

'Revision. 75-A (1): The Government may either suo motu or on an application made to them, call for and examine the records relating to any decision or order passed by the board of Revenue under these rules, not being a decision or order staying the execution of any decision or order appealed from or sought to be revised, for the purpose of satisfying to be revised, for the purpose of satisfying themselves as to the legality, regularity or propriety thereof and pass such order in reference thereto as they think fit:

Provided that no application for the revision of any such decision or order shall be entertained after the expiry of sixty days from the date of such decision or order:

Provided further that the Government shall not pass any order prejudicial to any person unless such person has had an opportunity of making a representation.

(2) ..............

Taking advantage of this Rule, the petitioner preferred a revision petition to the Government on 29-5-1975. The Government, however, rejected the revision petition on the ground that the Government had no power to entertain a revision petition on the date when the order was passed by the Board of Revenue.

3. Challenging the validity of the said order, the petitioner filed the writ petition in which he contended that the government ought to have entertained the revision petition. Our learned brother, Ramachandra Rao, J. held that the Government ought to have entertained the revision petition under R. 75-A. He accordingly quashed the impugned order and directed the government to entertain and dispose of the revision petition. This appeal is directed against the said order.

4. Sri Adinarayana Reddy, the learned counsel for the appellant submitted that the Government was right in rejecting the revision petition as not maintainable under R. 75-A. He submitted that the order or the Board of Revenue had been passed on 31-3-1975 before R. 75-A was introduced and the said order had become final Rule 75-A has no retrospective effect and would not enable the aggrieved party to question an order that had already become final.

5. We are inclined to agree with this contention. Rule 75-A which has been set out earlier does not contain any language which makes it retrospective in its operation, nor can it be said that retrospective effect can be given to the said rule by implication. In the leading decision on this subject in Colonial sugar refining Co. Ltd. V. Irving, 1905 AC 269 it was laid down by the judicial committee that:

'While provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statue are not to be applied retrospectively in the absence of express enactment or necessary intendment.'

Considering the meaning of the expression 'provisions which touch a right in existence at the passing of the statute', the privy Council in Delhi Cloth Mills v. Income-tax Commissioner, AIR 1927 PC 242 observed that the provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly it was observed that if the section is to apply to orders final at the date when it came into force, it must be clearly so provided. In that case, the Privy Council was concerned with Section 66-A of the Indian income-tax Act which provided inter alia that an appeal shall lie to the Privy Council from any judgment of the High Court delivered on a reference made under Section 66 in any case, which the High Court certifies to be fit one for appeal to His Majesty in Council. Prior to the amendment, there was non right of appeal from orders made under S. 66 of the Indian income-tax Act. The Question for consideration before the privy Council was whether the provisions of S. 66-A applied to orders passed before the said provision came into force on 1-4-1926. The Privy Council held that no appeal lay under that section. The position is almost similar in this case. Ramachandra Rao, J: relied upon the decision of the Supreme Court in Indira Sohanlal v. Custodian of Evacuee Property, : [1955]2SCR1117 . In that case, an exchange had to be confirmed by the Custodian of Evacuee property under the provisions of the East Punjab Evacuees' (Administration of Property) Act, no order passed by the Custodian was subject to appeal or revision, but it was specially declared that the order was final and conclusive. Subsequently, by S. 27 of Act 31/50 provision was made for revision by the Custodian General . It was provided that the Custodian -General may either on his own motion or on application made to him call for the records of any proceeding in which any District Judge or custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order which he thinks fit. The question arose whether this provision was applicable to an order passed by the Custodian on an application made long prior to the time when the office of the Custodian-General was set up and he was clothed with powers of revision. It was held that the order of confirmation passed in 1952 would clearly be subject to the revisional power of the Custodian General under S. 27 of Act 31 of 1950. We do not see how this decision is of any assistance to the petitioner. It was contended in then Supreme Court that the application for confirmation was made by the appellant therein in 1948 and it was pending until Act 31 of 1950 came into force and had to be disposed of in accordance with the old Act without reference to the amendment and the order of confirmation passed by the Additional Custodial in such a pending application was not open to appeal or revision but became final. It was urged that on the filling of the application in 1948 the appellant got a vested right to have it determined under the earlier Act with the attribute of finality and conclusiveness attaching to such determination. This contention was not accepted. The present case is a case where final order has been passed before the amendment. The decision contains observations which go against his contentions. After referring to the leading decision in Colonial Sugar Refining Co. Ltd. V. Irving 1905 AC 69 and to the decision of the Privy Council in Delhi Cloth Mills v. Income-tax Commr., AIR 1927 PC 242 the Supreme Court repelled the contention that the litigant could avail himself of the new provision by pointing out the finality of the orders sought to be appealed against and referring to it as an existing right. The Supreme Court went on to observe (at p. 84):

'This is obviously so because finality attached to them, the moment orders were passed prior to the new Act. In the present case, the position is different. The action was still pending when Central Act 11 of 1950 came into force. No order was passed which could attract the attribute of finality and conclusiveness under Section 5-B of the Ease Punjab Act 14 of 1947.'

These observations will clearly indicate that if the order had become final, the position would have been entirely different and the right of revision under the Amending Act could not have been available. In Niranjan Singh v. Custodian, evacuee Property, : [1962]1SCR214 , the time distinction was drawn. It was held that S. 27 of the Administration of Evaluate property Act, 1950 cannot affect the finality of the orders previously made. The Supreme Court referred to the decision in Delhi Cloth Mills v. Income-tax Commr., AIR 1927 PC 242; Colonial Sugar Refining Co. Ltd. V. Irving, 1905 AC 639 and also to the decision of the Supreme Court in Indira Sohanlal v. Custodian of Evacuee property. : [1955]2SCR1117 and observed that in the case before them the order made by the Custodian had become final before the Act of 1950 came into force and with that difference in mind, if one reads the observations of Jagannadhadas, J. I Indira Sohanlal v. Custodian of Evacuee property, : [1955]2SCR1117 the position would be clear, that in the earlier Supreme Court decision the repealed law could not operate on the subsequent stages of a pending application whereas in the case before the Supreme Court, the order had become final, In Keshavlal v. Mohanlal, : [1968]3SCR623 which was brought to our notice by the learned Government Pleader who supported the order of the Government, the Supreme Court had to deal with the effect of S. 29 (2) of the Bombay Rents Hotel and Lodging House Rates Control Act as Amended by Gujarat Act 18 of 1965 which conferred upon the High Court a jurisdiction wider than the jurisdiction exercisable under S. 115, C.P.C. Earlier, an order had been passed and a revision petition had been filed under S. 115 of the C.P.C. It was argued that the revision had to be dealt with in the light of the amended in the Rent Control Act by which wider powers were given to the High Court in revision. This argument was rejected. The Supreme Court observed that when the revision application was entertained under Section 115, C.P.C. the High Court assumed to itself a limited jurisdiction conferred by that section and in the absence of any express provision, made in the Amending Act, the jurisdiction conferred by that section could not be extended. It further observed that the order of the Appellate Court subject to scrutiny by the High Curt within the limited field permitted by S. 115, C.P.C. was final and that in conferring upon the High Court a wider jurisdiction, the Legislature was not merely dealing with the matter of procedure. The Supreme Court followed the principles laid down in its earlier decisions in Indira Sohanlal v. Custodian of Evacuee Property, AIR 1856 SC 77 and Niranjan Singh v. Custodian, Evacuee Property, : [1962]1SCR214 , the may also refer to another Full Bench decision of this court in P. Sriramaiah v. P. Purushothama Rao, (1973) 1 APLJ 112: (1973 Lab IC 899). The Full Bench followed the decision of the Supreme Court in Niranjan Singh V. Custodian, Evacuee property, : [1962]1SCR214 and also the decision in Colonial Sugar Refining Co. Limited v. Irving, 1905 Ac 369. In that case, they were concerned with Rule 75 of the Andhra Pradesh (Andhra Area) Village Offices service rules. It was observed that Rule 75 does not contain any words indicating retroactivity and since the order of the Board of Revenue was passed prior to the Rules coming into force, the Government had no jurisdiction to revise the order of the Board of Revenue was passed prior to the Rules coming into force, the Government had no jurisdiction to revise the order of the Board of Revenue under Rule 75 of the Rules.

6. Sri Pattabhi Ram Rao, the learned counsel for the respondent submitted that Rule 75-A contained a proviso in which it is stated that no application for revision of any such decision or order shall be entertained after the expiry of sixty days from the date of such decision or order. From the proviso, he tried to submit that Rule 75-A had limited retrospectively in the sense that if a revision petition had been filed within sixty days from the date of the order, the revision petition would be entertainable, even though the order had been passed before the coming into force of the Rule. We are not inclined to agree with this submission. The proviso proceeds on the footing that a revision petition lies and indicates the period of limitation for filling such a revision petition. It has no relevance to the question whether in fact a revision petition lies or not under R. 75 against an order passed before the coming into force of the rule and which has become final.

7. Sri Pattabhi Rama Rao also drew our attention to a decision in K. Malla Reddy v. Govt. of Andhra Pradesh, (1978) 1 Andh WR 44: (Air 1977 NOC 320). In that case, the order of the Board of Revenue was passed on 3-7-1975. Thereafter, a revision petition was filed before the Government under Rule 75-A of the Rules. That was a clear case where the order of the Board of Revenue was passed after the coming into force of R. 75-A. Our attention was drawn to para 4 of the judgement where it is stated that R.75-A was not in force when the applications were called for in 1974 and that when a new remedy is remedy is given, a party can take advantage of it so long as the proceedings are pending and have not become final. There cannot be any quarrel with the decision of the learned judge in this case as the order of the Board of Revenue was passed after the amended rule came into force and there was no order which had become final before the coming into force of the Rule. In para 5. however, he proceeded to observe that this question had been considered by Ramachandra Rao, J. in Writ petition No. 4108 of 1975 dated 10th November, 1976 (which is the order which is the subject matter of this appeal) and that he agreed with his reasoning. While we agree with the decision of Gandhara Rao, J. in that particular case, we do not see how the decision of Ramachandra Rao, J. was held application to that case.

8. In the result, we allow the writ appeal, but in the circumstances, without costs. Advocate's fee Rs. 100.

9. Appeal allowed.


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