1. Upon a difference of opinion between Satish Chandra, J., and N. D. Ojha, J., the following question has been referred to me:
'Whether this appeal is maintainable?'
2. The question has arisen in the following circumstances:--
3. The appellants filed a suit in the revenue Court under the U. P. Zamindari Abolition and Land Reforms Act for a declaration of their title to certain plots of land and for possession thereof. The suit was dismissed by the trial Court. The judgment and the decree of the trial Court were upheld in appeal and in second appeal. The appellants then filed a writ petition under Article 226 of the Constitution in this Court. This was done in 1970. The writ petition was substantially dismissed by a learned Single Judge on January 17, 1973. This special appeal was filed on March 2, 1973.
4. While the writ petition was pending the U. P. High Court (Abolition of Letters Patent Appeals) (Amendment) Ordinance, 1972 (U. P. Ordinance No. 12 of 1972) was promulgated by the Governor and came into force on June 30, 1972. The Ordinance was replaced by the U. P. High Court (Abolition of Letters Patent Appeals) Amendment) Act, 1972 (U. P. Act No. 33 of 1972). The Act came into force on August 18, 1972. Section 2 of this Act introduced a new Section 4 in the U. P. High Court (Abolition of Letters Patent Appeals) Act, 1962. Section 4 so introduced reads thus:--
'4 (1) No appeal, arising from a suit or proceeding instituted or commenced, whether prior or subsequent to the commencement of the section, shall lie to the High Court from a judgment or order of one Judge of the High Court, made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution, in respect of a judgment, decree or order made or purported to be made by the Board of Revenue under the United Provinces Land Revenue Act, 1901, or the U. P. Tenancy Act, 1939, or the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956, or the Jaunsar-Bawar Zamindari Abolition and Land Reforms Act, 1956, or the Kumaun and Uttarkhand Zamindari Abolition and Land Reforms Act, 1960, or by the Director of Consolidation (including any other officer purporting to exercise the powers and to perform the duties of Director of Consolidation), under the U. P. Consolidation of Holdings Act, 1953, anything to the contrary contained in Clause 10 of the Letters Patent of Her Majesty, dated March 17, 1866, read with Clauses 7 and 17 of the U. P. High Courts (Amalgamation) Order, 1948, or in any other law notwithstanding.
(2) Notwithstanding anything contained in Sub-section (1), all appeals pending before the High Court on the date immediately preceding the date of commencement of this section shall be heard and disposed of as if this section had not been enacted.'
Under Clause 10 of the Letters Patent read with the provisions of the U. P. High Courts (Amalgamation) Order 1948, appeals (formerly called Letters Patent Appeals and now called Special Appeals) lay from the judgments of the Single Judge in the exercise of Civil Appellate and Original Jurisdiction to Division Benches. The U. P. High Court (Abolition of Letters Patent Appeals) Act, 1962, by Section 3 abolished Special Appeals against the judgments of Single Judges made in the exercise of Civil Appellate Jurisdiction. Section 4 which has now been introduced seeks to do the same in respect of judgments of the Single Judges in writ petitions under Articles 226 and 227 of the Constitution of India in certain classes of cases, A Full Bench of this Court has held the 1972 Ordinance and the 1972 Act to be constitutionally valid.
5. There is no doubt that Section 4 abolishes certain Special Appeals against the judgments of Single Judges in writ petitions arising out of revenue suits and consolidation proceedings. The question is whether it abolishes Special Appeals also in those cases where the writ petitions were filed before Section 4 was introduced. The contention of the appellants is in such cases the litigants had, on the dates of the filing of the writ petitions, acquired a vested right of appeal and that this vested right has not been taken away by Section 4 either expressly or by necessary intendment.
6. The principles governing such cases are well settled. In Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh, AIR 1953 SC 221, the Supreme Court laid down:--
'..... a right of appeal is not merely a matter of procedure, it is a matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior Court. ..... Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.'
These principles were reiterated by the Supreme Court in Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 and in Mukund Deo v. Mabadu, AIR 1965 SC 703.
7. Satish Chandra, J., has held that the right to file a Special Appeal against the judgment of a Single Judge in a writ petition under Article 226 or 227 of the Constitution is not a vested right. He has further held that the right to file such an appeal has been taken away by Section 4. On the other hand N. D. Ojha, J., has held that the right to file such a Special Appeal is a vested right and that the vested right has not been taken away by Section 4 either expressly or by necessary implication.
8. Before me Sri V. K. Mehrotra, learned standing Counsel, has not contended that the right to file such a Special Appeal is not a substantive right. What he has contended is that, since it is discretionary with this Court either to grant or to refuse the relief in a petition under Article 226 or 227 of the Constitution and since the nature of the powers in the Special Appeal are also same, the right to file the Special Appeal is not a vested right. The argument is that unless the party can claim relief as of right in the appeal, the right to file the appeal cannot be said to be a vested right. It is difficult to agree with this contention. The right to file appeal was conferred by Clause 10 of Letters Patent read with the provisions of the Amalgamation Order. The mere fact that the Court was not bound to grant relief will not affect the right of the party to file the appeal or affect the nature of that right. In suits under the Specific Relief Act trial court has been given the discretion to grant or to refuse the relief claimed. Such suits are also governed by the dictum of the Supreme Court and the parties, on the date the suits are filed, acquire vested rights of appeal. Likewise, when a writ petition was filed in this Court the parties acquired a right to file an appeal, if the petition was decided by a Single Judge and such a right was a vested right. In my opinion, the appellants acquired a vested right to appeal on the day in 1970 when they filed the writ petition.
9. The question which then arises for consideration is whether this vested right has been taken away by Section 4. The answer to this question depends upon a proper interpretation of Section 4. This section can be divided into four parts. The first part is the operative part and abolishes certain classes of Special Appeals. Substantively it says:
No Special Appeal arising from a suit or proceeding instituted or commenced before or after August 18, 1972, shall lie to the High Court.
The second part sets out the classes of judgments against which the Special Appeals have been abolished. Such judgments are set out in the second part as:--
Judgments of Single Judges of the High Court in writ petitions under Article 226 or 227 of the Constitution against judgments, decrees or orders of the Board of Revenue in certain revenue cases or of the Director of Consolidation in consolidation proceedings.
The third part is the non obstante clause. This in substance provides that:
Even though the Letters Patent read with Amalgamation Order or any other law confer a right to file Special Appeal such right in the class of cases mentioned earlier shall stand abolished.
The fourth part is contained in Sub-section (2) and it provides that:
In spite of the abolition of the Special Appeals by Sub-section (1) the appeals pending in the High Court on August 17, 1972, shall not be abolished and shall be heard and disposed of as though they were competent appeals.
10. The operative part of Sub-section (1) abolishes all special appeals of the classes mentioned in the second part arising out of revenue suits and concolidation proceedings whether instituted or initiated before or after Section 4 came into force. Though in the heading of the section the word 'abolition' has been used, in the text itself the words used are 'no appeal ..... shall lie'. The words 'shall lie' are equivalent to 'shall be entertainable' or 'shall be maintainable'. They do not necessarily show that the provision is prospective and not retrospective. The special appeals which have been abolished have been described with reference to the suits or proceedings out of which they arise and not with reference to the writ petitions or the judgments of learned Single Judges in those writ petitions. It is true that such writ petitions and special appeals are not continuation of the suits or proceedings but they do arise out of the suits or proceedings. The use of the words 'instituted or commenced, whether prior or subsequent to the commencement of this section' show that the intention of the Legislature was that the provision was to operate retrospectively, otherwise there could be no purpose in using these words. It is not possible to agree with learned Counsel for the appellant that these words are not material and should be treated as surplusage. Surplusage is not to be lightly attributed to the Legislature. To my mind, Sub-section (1) abolishes all special appeals arising out of all revenue suits and consolidation proceedings whenever instituted or initiated irrespective of the date of the filing of the writ petition.
11. I now come to Sub-section (2). In substance, it says that in spite of the abolition of special appeals by Sub-section (1), special appeals which were pending on August 17, 1972, shall be maintainable. It was urged by learned counsel for appellants that Sub-section (2) is a saving clause and not a proviso and that it could not be used to extend the scope of the main or operative clause because saving clauses are often added by way of abundant caution. Saving clauses are generally put in where one Act is repealed and re-enacted by another, the scope and purport of both remaining the same. The effect is that the portion of the repealed Act remains in force as if the second Act had not been passed. A saving clause is used to establish an exception from the general nature of a statute, i.e., to restrict a repealing list. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596 the Supreme Court has referred with approval to the observations of Wood V. C. in Fitzgerald v. Champneys, (1861) 70 ER 958 that saving clauses are introduced into Acts which repeal others, to safeguard rights which, but for the saving, would be lost. Sub-section (1) of Section 4 does not repeal any Act and, therefore, Sub-section (2) cannot be said to be a saving clause.
12. Sub-section (2) of Section 4 is clearly a proviso to Sub-section (1). In Commissioner of Commercial Taxes Board of Revenue, Madras v. Ramkrishan Shrikishan Jhaver etc., AIR 1968 SC 59 the Supreme Court has said:--
'We may add that we are not precluded from looking at the proviso in interpreting the main part of the sub-section. We may in this connection refer to the following passage in Maxwell on Interpretation of Statutes, Eleventh Edition, at page 155 where it is observed:--
'There is no rule that the first or enacting part is to be construed without reference to the proviso.'
'The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light, if need, be, on the rest.'
'The true principle undoubtedly is that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause and, proviso, taken and construed together is to prevail.'
13. In Ishverlal Thakorelal ATmaula v. Motibhai Nagjibhai, AIR 1966 SC 459, the Supreme Court has observed:--
'The proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso would be within that clause. It may ordinarily be presumed in construing a proviso that it was intended that the enacting part of the section would have included the subject-matter of the proviso.'
14. Lash, J., in Mullina v. Treasurer of Surrey, (1880) 5 QBD 170 at p. 173 observed:--
'When one finds a proviso to a section, the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso.'
Applying these principles to the present case, it appears that, but for Sub-section (2), special appeals pending on August 17, 1972, would also have fallen within the mischief of Sub-section (1) and would have stood abolished. Obviously in the cases of pending special appeals the writ petitions must have been filed before Section 4 came into force, Subsection (1), therefore, sought to abolish even such special appeals which arose out of writ petitions filed before Section 4 came into force. This shows that Sub-section (1) is retrospective and abolishes all special appeals of the classes mentioned therein irrespective of the date of institution or commencement of the revenue suits or consolidation proceedings and irrespective of the date of filing of the writ petitions.
15. There are two other circumstances which support this conclusion. The statement of objects and reasons for introducing Section 4 says:--
'With a view to reducing inconvenience and expense to litigants and delay in final disposal of cases caused by multiplicity of appeals the U. P. High Court (Abolition of Letters Patent Appeals) Act 1962 was passed abolishing appeals to the High Court from decisions of a Single Judge of that Court in the exercise of appellate jurisdiction in respect of decrees and orders made by subordinate civil courts.'
'It has been felt that cases decided by the revenue courts under the U. P. Land Revenue Act, 1901, or U. P. Tenancy Act, 1939, or the U. P. Zamindari Abolition and Land Reforms Act, 1950, or by the Director of Consolidation under the Consolidation of Holdings Act, 1953, should be treated similarly inasmuch as the parties concerned have the benefit of going through the hierarchy of revenue courts or consolidation authorities. It is, therefore, proper to abolish the appeals to the High Court from decisions of a Single Judge of the Court in exercise of jurisdiction conferred by Articles 226 and 227 of the Constitution in respect of such cases. With this view it is proposed to amend the U. P. High Courts (Abolition of Letters Patent Appeals) Act, 1962.'
16. The object of Sections 3 and 4 of the 1962 Act is to save all litigants from inconvenience and expense of filing special appeals. The object is applicable equally to these litigants who had filed their writ petitions before Section 4 came into force and to those litigants who filed their writ petitions thereafter. Since the object was to protect the litigants from some evil or abuse, it is legitimate to hold that the intention was to save and protect all such litigants who can be protected. If it is held that the special appeals arising out of writ petitions filed before Section 4 came into force, are not abolished, then a large number of litigants will not be saved from the evil or abuse from which the Legislature wanted to save them. Such an interpretation would partly defeat the object, of the provision. The object of the provision also points towards its being retrospective in operation.
17. The language used in Section 3 of the U. P. High Court (Abolition of Letters Patent Appeals) Act 1962 is similar to the language used in the newly introduced Section 4. Section 3 reads:--
'(1) No appeal arising from a suit or proceeding instituted or commenced, whether prior or subsequent to the enforcement of this Act, shall lie to the High Court from a judgment or order of one Judge of the High Court, made in the exercise of appellate jurisdiction, in respect of a decree or order made by a court subject to the superintendence of the High Court, anything to the contrary contained in Clause ten of the Letters Patent of Her Majesty, dated the 17th March, 1866 read with Clause 17 of the U. P. High Courts (Amalgamation) Order, 1948, or in any law notwithstanding.
(2) Notwithstanding anything contained in Sub-section (1) all appeals pending before the High Court on the date immediately preceding the date of enforcement of this Act shall continue to lie and be heard and disposed of as hereinbefore, as if this Act had not been brought into force.'
18. There can be no doubt that Section 3 is retrospective and abolishes all special appeals arising out of appellate judgments of Single Judges even where the right of appeal had become vested. Only special appeals which were pending were saved by Sub-section (2). Since the object of Sections 3 and 4 is the same and the language used is similar, it is reasonable to infer that the legislature intended both provisions to be retrospective and to abolish special appeals even where the right to file the special appeals has become vested in the parties.
19. For the reasons stated above I am of the view that except for special appeals pending on August 17, 1972, all special appeals arising out of revenue suits or consolidation proceedings, whether the right to file the special appeals had become vested or not in the parties, have been abolished by Section 4. The appeal filed by the appellants was, therefore, not maintainable.
20. The special appeal may now be laid before the Bench concerned with my opinion for necessary orders.