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S.C. JaIn Vs. Union of India - Court Judgment

LegalCrystal Citation
Subject Direct Taxation
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 402 and 426 of 1983
Judge
Reported inAIR1983Delhi367; (1983)37CTR(Del)97; 23(1983)DLT467; 1983(5)DRJ161; [1983]143ITR607(Delhi); 1983RLR401
ActsIncome Tax Act, 1961 - Sections 222; Code of Civil Procedure (CPC), 1908 - Sections 60; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 60(1) and 97; Punjab Relief of Indebtedness Act
AppellantS.C. Jain
RespondentUnion of India
Cases ReferredNational Association of Motion Pictures Exhibitors v. Union of India
Excerpt:
code of civil procedure - section 60(1) and section 97(1)--section 97(1) of the amended code does not repeal clause (ccc) in proviso to section 60(1) of the code as far as delhi is concerned. the extension to delhi of the punjab relief of indebtedness act, 1934 as amended by amendment act vi of 1942 which inserted clause (ccc) must be deemed to be insertion made by parliament and not by the stare legislature which alone stands repealed by section 97(1). thus the main residential house of a judgment-debtor or an assessed which is occupied by him, is exempt from being proceeded against an execution of a simple money decree or an income tax demand. - - new delhi municipal committee, air1975delhi223 ,wherein, after referring to mithan lal's case [1959]1scr445 ,and discussing the nature of.....sachar, j.1. the question for decision in this pertain is whether clause (ccc) inserted in sub-s. (1)(in the proviso) of s. 60 of the code of civil procedure (hereinafter called as 'the code') by means of s. 35 of the punjab relief of indebtedness act, 1934, as amended by punjab amendment act xii of 1940, and punjab amendment act vi of 1942, as extended to the state of delhi, stands repealed after the passing of the amendment act, 104 of 1976, amending the code, especially in the light of s. 97(1) of amendment act, 1976, which reads as under : '97. (1) any amendment made, or any provision inserted in the principal act by a state legislature or a high court before the commencement of this act shall, except in so far as such amendment or provision is consistent with the provision of the.....
Judgment:

Sachar, J.

1. The question for decision in this pertain is whether clause (ccc) inserted in sub-s. (1)(in the proviso) of s. 60 of the Code of Civil Procedure (hereinafter called as 'the Code') by means of s. 35 of the Punjab Relief of Indebtedness Act, 1934, as amended by Punjab Amendment Act XII of 1940, and Punjab Amendment Act VI of 1942, as extended to the State of Delhi, stands repealed after the passing of the Amendment Act, 104 of 1976, amending the Code, especially in the light of s. 97(1) of Amendment Act, 1976, which reads as under :

'97. (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provision of the principal Act as amended by this Act, stand repealed.'

2. The Punjab of Indebtedness Act, 1934 (hereinafter called as '1934 Act'), received the sanction of the Governor-General on April 5, 1935. It was extended to the Union Territory of Delhi, vide the Government of India, Home Department, Notification No. 189/38, dated May 30, 1939.

3. Punjab Amendment Act XII of 1940 was passed by an received the assent of the Governor-general of Punjab. Section 16 of the Amendment Act XII of 1940 substituted s. 35 in the 1934 Act. By this amendment in sub-s. (1), in the proviso, certain insertions were made in various clauses after clause (c) including clause (ccc). Later on the Punjab Relief of Indebtedness Amendment Act VI of 1942 was passed. By s. 5 it substituted the old proviso in cl (ccc) in the proviso to s. 60(1) of the Code.

4. Now s. 60 of the Code lays down that various properties mentioned therein are liable for attachment and sale in execution of a decree. Proviso however, excepted various properties mentioned in the various clauses there under, the result of the amendment of the 1935 Act by means of Punjab Amendment Act XII of 1940 and Punjab Amendment Act VI of 1942 was to insert in the proviso to sub-s. (1) of s. 60 of the Code clause (ccc) in the State of Punjab. The said clause (ccc) reads as under :

'one main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment debtor other than an agriculturist and occupied by him :

Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered.'

5. The result of the above Punjab Amendments was that though under the Code there was no exemption from attachment and sale of a main residential house of a judgment-debtor, yet by virtue of these Punjab Amendments. The Code, in so far as in its application to the State of Punjab was concerned, clause (ccc) exempted from attachment one main residential house belonging to a judgment-debtor.

6. Section 2 of the 'Part C States' (substituted by 'Union Territories' w.e.f. November 1, 1956)(Laws) Act, 1950, empowers the Central Govt. that it may by notification in the Official Gazette extend to the Union Territory of Delhi, Himachal Pradesh, Manipur or Tripura, or any part of such territory with such restrictions and modifications as it thinks fit, any enactment which is in force in a State at the date of the notification. In exercise of the said powers, the Central Govt. extended to the State of Delhi, the Punjab Relief of Indebtedness Amendment Act VII of 1940 and Amendment Act VI of 1942, by means of a notification dated June 8, 1956, published in the Gazette of India, June 16, 1956, the result was that the protection of clause (ccc) in the proviso to s. 60(1) of the Code also became available in Delhi from this date onwards.

7. Some tax recovery proceedings are said to be pending against the petitioners. Section 222 of the I.T. Act, 1961, provides that when an assessed is in default or is deemed to be in default in making a payment of tax. The ITO may forward to the TRO a certificate under his signature specifying the amount of arrears due from the assessed and the TRO on receipt of such certificate, shall proceed to recover from such assessed the amount specified therein by one or more of the modes mentioned therein, in accordance with the rules laid down in the Second Schedule. One of the modes mentioned in clause (b) of s. 222(1) is by attachment and sale of the assessed's immovable property. The Second Schedule lays down the procedure for recovery of tax. Rule 10 on which reliance was placed by Mr, Tikku, counsel for the petitioner, provides that :

'All such property as is by the Code of Civil Procedure, 1908 (5 of 1908), exempted from attachment and sale in execution of a decree of a civil court shall be exempt from attachment and sale under this Schedule.'

8. The TRO in pursuance of the defaults in payment of the tax alleged to be due from the petitioners, issued a proclamation of sale in terms of rr. 38 and 52(2) of the Second Schedule. to I.T. Act, giving a notice that the property No. 7, Kasturba Gandhi Marg, will be sold by a public auction on March 28, 1983. It is this notice which is challenged in the present writ petition.

9. The petitioner's case is that he is one of the joint owners of the house which is the only main residential house of the petitioners, and it is, thereforee, exempt from the attachment and sale. He invokes cl, (ccc) in the proviso to s. 60(1) of the Code, as applicable in Delhi.

10. As mentioned above, clause (ccc) in the proviso to s. 60(1) of the Code does exempt one main residential house. But Mr. Wazir Singh, the learned counsel for the Revenue, says that this exemption is no longer available in view of s. 97(1) of the Amendment Act 104 of 1976. The contention that clause (ccc) was inserted in the Code by the State Legislature of Punjab and that it is not consistent with the provisions of the Code as amended in 1976, because there is no exemption from attachment of a min residential house to be found in the principal Act, the result being that clause (ccc) in the proviso to s. 60(1) of the Code, as applicable in Delhi, stands repealed. This contention of counsel for the Revenue finds support from a decided of Luthra J. in S. Rau's I.A.S. Study Circle v. Smt. Sushila Nanda [1981] DLT 174, and Sultan Singh J. in Tikkan Lal v. Govind Lal [1983] RLR 9. Where both the learned judges have held that clause (ccc) in the proviso stands repealed and exemption for a main residential house is no longer available in Delhi.

11. Mr. Tikku, however, sought to urge that clause (ccc) was in no way inconsistent with the main provisions of s. 60 of the Code and that it was only an additional and beneficial provisions giving extra benefits that are covered by the main provision of s. 60(1)(c) of the Code, and no question of repugnancy arises. This is reinforced by pointing out that both Parliament and the State Legislature have concurrent jurisdiction to legislate on the Subject of the Code of Civil Procedure (item 13, List III Seventh Schedule). We do not feel necessary to express any view on the correctness or otherwise of this particular contention accepted in the decisions mentioned above, because of the view that we are going to take on the other point argued, namely, that s. 97(1) of Act 104 of 1976, in terms, does not apply to clause (ccc) in the proviso to s. 60(1) of the Code, as extended to Delhi, and, thereforee, the question of clause (ccc) being repealed by s. 97(1) of 1976 Act cannot arise.

12. Now, s. 97(1) of the 1975 Act only purports to repeal amendments in stated circumstances but only if inserted by Act of Legislature or a High Court. The contention of Mr. Tikku is that the insertion of clause (ccc) in the proviso to s. 60(1) of the Code, though effected by Punjab Amendment Act XII of 1940 and Punjab Act VI of 1942, a State amendment, cannot be treated to be so, when extended to Delhi by a notification of 1956 issued by the Central Government as mentioned above. The extension in Delhi, it is claimed, is by an Act of Parliament and thus is outside the ambit of s. 97(1) of 1976 Act. So far as Punjab is concerned, there is no dispute that the insertion of clause (ccc) in the proviso is by virtue of a legislation by the State Legislature. If the view of Luthra J. and Sultan Singh J. that the provisions of the Code as amended by 1976 are inconsistent with clause (ccc) may no longer be available so far as the State of Punjab is concerned. But the same consequences does not follow in the Union Territory of Delhi.

13. Article 246(4) of the Constitution of India provides that Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List. Article 239 lays down that every Union Territory shall be administered by the President acting through an administrator. Thus so far as the Union Territory of Delhi is concerned, the Legislature which is competent to enact law is Parliament. Union Territories (Laws) Act, 1950, empowers, by s. 2, the Central Government to extend to the Union Territory of Delhi any enactment which is in force in a State of the date of the notification. As mentioned before, it was by virtue of this power that the Punjab Act XII of 1940 and Punjab Act VI of 1942 which incorporated clause (ccc) in the proviso to s. 60(1) of the Code was extended to Delhi. Mr. Wazir Singh, however, contends that as the insertion of clause (ccc) to the Code was effected by Punjab Acts. It continues to be a State amendment, not only in relation to Punjab (where it is undoubtedly so) but even in relation to the Union Territory of Delhi. The fallacy in this argument is to assume that when a State Act is extended to the Union Territory of Delhi, such enactment does not in relation to Delhi owe its source to Parliament but to the State Legislature which originally enacted that Act. This is a misconception of the correct constitutional position. As to what is the source of power when a State Act is extended by the Central Govt., exercising powers under Union Territories (Laws) Act. 1950, has been answered in the case Mithan Lal v. State of Delhi [1957] 9 STC 417 (SC). In that case challenge was made to the validity of certain provisions of the Bengal Finance (Sales Tax) Act, 1941, passed by the Legislature of the Province of Bengal, which had been extended to the State of Delhi by a notification dated April 28, 1951. The Supreme Court accepted that the provision of the Bengal Act in so far as it imposed tax on supply of materials was beyond the competence of the State Legislature and would be invalid Notwithstanding this, the validity of the Bengal Act in its application to Delhi was upheld on the ground that the impugned law was not enacted by the State Legislature, by Parliament by virtue of the authority granted by art. 246(4) of the Constitution. In this context the court observed as under (p. 423) :

'When a notification is issued by the appropriate Government extending the law of a Part A State to a Part C State, the law so extended derives its force in the State to which it is extended from section 2 of the Part C States (Laws) Act, 1950, enacted by Parliament. The result of a notification issued under that section is that the provisions of the law which is extended become incorporated by reference. In the Act itself, and, thereforee, a tax imposed there under is a tax imposed by Parliament.'

14. Similar view was expressed in State of A.P. v. New Delhi Municipal Committee, : AIR1975Delhi223 , wherein, after referring to Mithan Lal's case : [1959]1SCR445 , and discussing the nature of the legislation like the Punjab Municipal Act as applicable to Delhi, it was observed that (p. 231) :

'It is, thus clear that on the extension of the Act to the Union Territory of Delhi by the Various Central legislative enactments referred to above, it became a Central Act or an Act of Parliament as if made by virtue of power of Parliament to legislate for the Union territory of Delhi by virtue of clause (4) of article 246 of the Constitution of India.'

15. This very aspect also came up for a consideration of the extension of the Punjab Cinema Act to Delhi in National Association of Motion Pictures Exhibitors v. Union of India, C.W. No. 368 of 1981, decided on December 20, 1982, wherein, after nothing all these authorities, one of us (Sachar J.) observed as follows :

'On a parity of reasoning, it must be held that when Punjab Act is extended to Delhi. It is not the exercise of rule making authority. In reality, this power of extending an Act owes its legislative authority to Union Laws Act, 1950, which in its turn derives its efficacy from the legislation passed by Parliament.... The position that emerges in law is that whether Parliament itself had passed an Act like Punjab Act and made applicable to Union Territory of Delhi or whether the Central Government by virtue of section 2 of the Union Territories Laws Act has extended an enactment like Punjab Act to the Union Territory of Delhi, both of them would owe their source to the same authority, namely. The Parliament.'

16. In this view of the matter it is indisputable that Punjab Act XII of 1940 and Punjab Act VI of 1942, which inserted clause (ccc) in proviso to sub-s. (1) of s. 60 of the Principal Act (namely, the Code, when extended to the Union Territory of Delhi, by means of Central Govt's. notification of June, 1955, must be deemed to be, in so far as Delhi is concerned, insertions made not by the State Legislature but by Parliament itself. If so, amendment is made by the State Legislature or a High Court.

17. In that view it has to be held that s. 97(1) of 1976 Act is of no assistance to the Revenue. Thus the benefit of clause (ccc) in proviso to s. 60(1) of the Code, as applicable to Delhi, continues to be available to a judgment-debtor provided he satisfies the conditions mentioned therein. We must, thereforee, overrule the decisions of Luthra and Sultan Singh JJ. mentioned above, though on different grounds, as not laying the correct law.

18. We may in fairness to Luthra J. note that when similar argument was raised before him in I.A. No. 182 of 1979 in C.C.P. No. 31 of 1978 (decided on February 26, 1982), the argument prima facie appealed to him, and he referred the matter for being referred to a larger Bench to the Hon'ble Chief Justice. But the latter declined the reference on the ground that the question of law referred to, has been dealt with in S. Rau's I.A.S. Study Circle [1981] DLT 174, relying on Printpak Machinery Ltd. v. Jay Kay Paper Congeters, : AIR1979Delhi217 . But, we say so, with respect, S. Rau's I.A.S. Study Circle case was a judgment of Luthra J. himself (mentioned earlier) wherein this aspect has not been dealt with nor was this point touched even by a Full Bench decision of this court. Be that as it may, as the matter was raised before us directly, we have give our view as above.

19. But our finding on a question of law does not automatically make the notice issued by the TRO invalid. Even if clause (ccc) continues to exist in Delhi, the petitioner can invoke it only if he satisfies the conditions mentioned in clause (ccc) itself. That necessarily requires evidence and enquiry. The procedure for enquiry is provided by r. 11 (and onwards) of Sch. II to the I.T. Act, which lays done that if any objection is made to the attachment, the TRO shall proceed to investigate the claim or objection. By our judgment all that we are holding is that clause (ccc) in proviso to s. 60(1) of the Code has not been repealed, so far as Delhi is concerned, but nothing said in our judgment should be taken even remotely to suggest whether the case of the petitioner is covered by clause (ccc) or not. Our decision only relates to the question of law. The question whether it is the main residential house and other requirements of clause (ccc) are satisfied or not, has to be decided by the TRO. That is why when last time the matter came before us, we had directed the petitioner that if he wants to prove that the property in dispute is the main residential house he must file his objections before the TRO. Mr. Wazir Singh informs us that objections have been field and are being investigated.

20. Mr. Wazir Singh then urges that even if s. 97(1) of 1976 Act is out of way, it must still be held that clause (ccc) as extended to Delhi has been impliedly repealed. His argument is that Parliament when passing Act, 104 of 1976, made some amendment in clause (c) in the proviso to s. 60(1) of the Code, and this necessarily meant that all amendments in s. 60 whether inserted by Parliament or the State Legislature stood repealed, the former by implication and the latter specifically. We cannot agree. By s. 97(1) of 1976 Act, only amendments made by a State Legislature are covered. Mr. Wazir Singh's argument in fact asks us to hold that there is an implied repeal of clause (ccc) as extended to Delhi, even if it be taken as Parliament Act. We cannot agree.

'The court leans against implying a repeal, 'unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied.... Before coming to the conclusion that there is a repeal by implication the court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together before they can, from the language of the latter, imply the repeal of an express prior enactment - i.e., the repeal must, if not express flow from necessary implication'.

(Vide Craies on Statute Law, 7th Edn., p. 366).

21. It should be appreciated that inconsistency does not lie in the mere co-existence of two laws which are susceptible to simultaneous harvests. (Vide Canadian Constitutional Law by Laskin, pp. 454-455, 1951 Edn.).

22. Moreover, the 1976 Act gives a clear signal that when the Legislature desired repeal of certain amendments it said so specifically in s. 97(1). This is another indication that Parliament did not by the Amendment Act of 1976 intend to repeal any amendment to the Code other than made by the State Legislature and the High Court. We are, thereforee, unable to sustain the argument of repeal by implication.

23. The next contention of Mr. Wazir Singh was that as clause (ccc) was brought in by the Punjab Relief of Indebtedness Act, 1934, it would be available only in proceedings under the 1934 Act, as amended. The argument is not understandable. Part IV of the 1934 Act sets up Debt Conciliation Boards for settlement of particular kind of debts. Section 35 of the 1934 Act, as amended, inserted clause (ccc) in the proviso to s. 60(1) of the Code. Under s. 222 read with r. 10 of the Second Schedule to the I.T. Act, all such property as is by the CPC, 1908, exempted from attachment and sale in execution of a decree of a civil court shall be exempt from attachment and sale under this Schedule. Hence, in proceedings before the TRO, in Delhi the provisions of clause (ccc in the proviso to s. 60(1) of the Code are applicable.

24. In that view of the matter, the result will be that the sale which had been directed to be held on March 28, 1983, is cancelled for the time being. We had already stayed the publication of the notice of the sales in newspapers and that order is confirmed. But, the ultimate decision one way or the other would depend on the finding whether the house in dispute is the main residential house of the petitioner or not. Of course, if the TRO holds that this house is not the main residential house of the petitioner as required by clause (ccc) in the proviso to s. 60(1), he may proceed to sell the property in accordance with law and the provisions of the I.T. Act and the Rules. A preliminary objection was raised by Mr. Wazir Singh that one of the alleged co-owners, Sarit Kumar Jain, had filed Writ Petition No. 253 of 1979, and it had been dismissed in liming by this court on July 18. 1979, and the present writ petition by other co-owners is barred on principles of rest judicata and on equitable principles. Copy of the order field along wither rejoinder shows that the petition was dismissed with the remarks that the dispute between the parties really is to the amount due and his dispute regarding amount cannot be tried in a writ petition and the remedy is by way of suit. No such point regarding clause (ccc) was decided therein, and the petition cannot be thrown out at the threshold.

25. We may mention that originally Civil Writ Petition No. 402 of 1983 was filed by one of the alleged co-owners of which the notice was taken for thi respondents by Mr. Wazir Singh. Thereafter, one more writ petition has been field, namely, Civil Writ Petition No. 426 of 1983, which had also been admitted, and is also being allowed by this common order because the matters are identically the same in all these petitions, each petitioner claiming to be 1/4th owner of the house in dispute (a matter yet to be decided by the TRO, and which does not arise before us.)

26. We would, thereforee, allow the writ petitions as above. The TRO, who is hearing the objections will now proceed in accordance with law and in the light of the views expressed in our judgment. On the real request made by Mr. Wazir Singh for grant of certificate for leave to appeal, we are of the view that as the question about the repealing or otherwise of clause (ccc) in the proviso to s. 60(1) of the Code, will have repercussions throughout the country (as quite analogous matters are to be found elsewhere) and as also this question arises very often in execution proceedings, the case involves a substantial question of law of general importance and is also, in our opinion, such as needs to be decided by the Supreme Court. We, thereforee, grant the leave and the certificate for an appeal to the Supreme Court.

27. Notwithstanding that we have granted a certificate, the attachment of the property will continue to subsist for a period of three months from today, or till the decision on objections given by the TRO, whichever is later. The question of sale will also depend on the decision taken on question of facts, given by the TRO. This internal will also enable the Revenue respondent if so advised, to move the Supreme Court for obtaining any appropriate directions it may consider necessary. One of the alleged co-owners, Sarit Kumar Jain, has file a suit which is pending, After our decision on a question of law and the objections pending before the TRO, the continuance of the said suit is vexations says, the said suit will be got dismissed as withdrawn in a for night time. This assurance is taken so that there is no unnecessary multiplicity of proceedings as that will be an abuse of the process of the court.

28. As a result, the writ petitions are allowed as above, with the directions mentioned therein. No costs.

Khanna, J.

29. I agree.

30. Taking advantage of the Voluntary Disclosure Scheme of 1976. Inder Sain Jain and his three sons, Sat Pal, Subhash Chander, Sarit Kumar along with some family members, disclosed large sums of undisclosed income. They totalled around rupees one crore. The tax payable on them under that scheme was rupees twenty lakhs. Rupees ten lakhs thereof were paid when the disclosures were made, and the balance was payable by the end of 1977. There is a dispute whether this balance was paid by that time. The I.T. Dept. came to the view that there was a default and as such the benefit of voluntary disclosure scheme court no longer be availed of by them. It as such proceeded to assess those disclosed amounts under the general provisions contained in the I.T. Act, and, thereforee, levied tax of about rupees 63 lakhs. The petitioners, Inder Sain and his sons, and other relations are contesting the said assertion and computation of that large tax before the Commissioner of Income-tax and they claim that, so far, they have already deposited tax of about rupees twenty five lakhs. Be that as it may, that part of the controversy is not germane to these proceedings, and will receive due adjudication in the proceedings now pending before the Income-tax Commissioner.

31. The controversy which has given rise to the present writ petitioner is about the attachability of property bearing No. 7, Kasturba Gandhi Marg, New Delhi, in realisation of the tax arrears. It is situated over a plot of land measuring 5,100 sq. yards., and if the price of land around Connaught Place can moderately be taken as ranging between rupees 4,000 and rupees 5,000 per sq. yd., the land underneath the property should itself be worth above rupees two crores. The contention of the petitioners is that this property constitutes as their main residential house, and is, thereforee, exempt in terms of the provision contained in clause (ccc) of the proviso to s. 60 of the Code of Civil Procedure.

32. It will be relevant here to trace the history of how this provision was introduced in the Code. A series of radical fiscal legislations for the amelioration of the plight of poorer sections and agriculturists was asset in motion during the thirties in the erstwhile province of Punjab by that remarkable legislator, Sir Chottu Ram. One such was the Punjab Relief of Indebtedness Act, 1934. Thereby considerable reliefs were provided to the debtors, and the primary object was to give protection to those debtors who had fallen to unfortunate days, and were likely to be thrown in the wilderness in case their only residential houses were as well attached and sold. It is unfortunate that the progressive measure in the then existing state of social conditions is being now sought to be exploited by persons with such large undisclosed incomes (which are the bane of our economic and social structure), and with regard to properties worth crores of rupees, be that as it may, we have to consider what protection is available to the petitioners under the law as it exists at present.

33. The operation of the Punjab Relief of Indebtedness Act was extended to Delhi in the year 1939. However, in 1940, the Punjab Province introduced an amendment in the parent Act under which an additional exemption from attachment was allowed to main residential houses of no agriculturists and occupied by them. Thereby clause (ccc) in the proviso to s. 60 of the Code was deemed incorporated. The Delhi Administration too subsequently in the year 1956 made that amendment operative within its Union territory. The result was that the main residential houses of the judgment-debtors in urban areas became exempt from attachment and sale in execution of simple money decrees.

34. Wide-ranging amendments were introduced in the Code by the (Amending) Act of 1976, section 97 of this Amending Act was to the effect that any amendment made or any provision inserted in the principal Act by a State Legislature of a High Court before the commencement of this Act, except in so far as such amendment or provision was consistent with the provisions of the Principal Act as amended by this Act, stood repealed. These amending provisions were termed by a Full Bench of this court in Printpak Machinery Ltd. v. Jay Kay Paper Congeters, : AIR1979Delhi217 , as presenting qua renovated code as the new starting point as had also been done in 1908.

35. The contention of the Revenue before us has been that s. 97 of the Amending Act had the effect of repealing the introduction of the Punjab Relief of Indebtedness Act in Delhi, and thereforee, cannot any longer be treated as operative. Thereby the exemption provided to the main residential houses has been taken away. The relevance of this is in the context that r. 10 of Sch. II to the I.T. Act exempts all those properties from attachment and sale which re exempt under the Code. The petitioners have, however, pleaded that notwithstanding the Amending Act of 1976, the provisions of the Punjab Relief of Indebtedness Act continue to be operative in Delhi, and their main residential house is exempt from attachment and sale under clause (ccc) of the proviso to s. 60, CPC, as introduced by the Punjab Act.

36. Article 246 of the Constitution of India empowers Parliament to make laws with respect to any matter enumerated in the State list for any part of the territory of India, not included in a State. A perusal next of s. 2 of the Union Territories (Laws) Act, 1950, shows that the Central Government may by notification in the Office Gazette extend to the Union Territories of Delhi, Himachal Pradesh, Manipur or Tripura, or to any part of such territory, with such restrictions and modifications as it thinks fit, any enactment which is in force in a State at the date of the notification. These provisions have been interpreted by a Division Bench of this court in the case, National Association of Motion Pictures Exhibitors v. Union of India, (Civil Writ Petition No. 368 of 1981 decided on December 20, 1982) as equivalent to introduction of those State enactments by Parliament itself in the territory of Delhi. Reference by the same has already been made by my learned brother. It, thereforee, follows that the notification by which the Central Govt. introduced in 1956 the amendment of the Punjab Relief of Indebtedness Act to the territory of Delhi, has to be treated as legislation by Parliament. In that context, the Punjab Relief of Indebtedness Act can no longer be treated as a mere State enactment, but assumes the character of a statute made operative in the territory of Delhi by Parliament itself. In this situation, it cannot be said that this enactment was hit by s. 97 of the Amendment Act of 1976.

37. My learned brother has next made reference to the decision of the Supreme Court in the case of Mithan Lal [1958] 9 STC 417. In that case, certain provisions of the Bengal Finance (Sales Tax) Act, 1941, were struck down as being not within the competency of the State legislature. However those very provisions with regard to Delhi were held as valid and operative as the extension of that statute in this territory was by Parliament itself. That position should as well hold good with regard to the Punjab Relief of Indebtedness Act irrespective of whether this enactment has stood repealed within the territory of Punjab or not by virtue of s. 97 of the Amending Act of 1976.

38. Another contention raised from the side of the Revenue has been that the provisions of clause (ccc) of the proviso to s. 60, CPC, should be treated as amended by implication on the ground that they would appear redundant. In this regard. It is pointed out that clause (c) to the proviso to s. 60, CPC, exempted from attachment houses and buildings belonging to agriculturists. By the Amending Act of 1976, Parliament extended that exemption to houses and buildings of labourers and domestic servants as well, provided they are occupied by them. In this manner, clause (c) of the proviso to s. 60 providing exemption to houses of agriculturists was enlarged to a limited extent only as to further cover labourers and domestic servants also. Had Parliament intended to retain clause (ccc) of the proviso to s. 60 as made operative by the Punjab Relief of Indebtedness Act which provided for exemption to all residential buildings of non-agriculturists, the limited amendment introduced in clause (c) was redundant, as the benefit to labourers and domestic servants would have been in any case available under cl, (ccc). It has further been urged that clause (ccc) of the proviso to s. 60 had not been incorporated in CPC by way of amendment of the Code itself, but was brought about by simply as an extension of a State Legislation to Delhi. These provision thus derived their origin from the State Legislation, and, thereforee, retained their character as such. When s. 97 of the Amendment Act, 1976. Repealed all amendments introduced in the Code by State Legislatures, clause (ccc) of the proviso to s. 60 was as well in the sweep rendered inoperative and repealed. I am, however, in this regard in agreement with my learned brother that repeal by implication has not to be readily inferred, and there should be something leading to the imperative and inescapable conclusion that the particular provision has to be treated as impliedly abrogated. This has not been the position in the present case as the relevant provisions of law discussed above show. Thus, so far as the Union Territory of Delhi is concerned, the extension of the relevant provisions of the Punjab Relief of Indebtedness Act are unaffected by s. 97 of the Amendment Act of 1975.

39. The position being as such and the Punjab Relief of Indebtedness Act being still operative in Delhi, I, agreeing with my learned brother, do not see any escape from the conclusion that the main residential house of a judgment-debtor or an assessed which is occupied by him, is exempt from being proceeded against in execution of a simple money decree or an income-tax demand.


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