1. This matter arises out of an application made to the Registrar, Appellate Side, under Rule 18 (1) of chap, v, part II, Appellate Hide Rules.
2. The material facts are as follows. The petitioner wished to prefer an appeal against the judgment and decree of the Subordinate Judge, Howrah, passed in Title Appeal No. 187 of 1946 of that Court. The subject-matter of the appeal was valued at Rs. 30, a value which had been accepted in the Courts below. The petitioner contended that in view of the provisions of the Bengal Repealing and Amending Act, 1946 (Bengal Act XVI of 1946) whereby Sections 3 to 16, Bengal Court-fees Act (Amendment) Act (IV of 1922) and the whole of the Bengal Court-fees (Amendment No. II) Act (VI of 1922) were repealed there existed no provisions from which the proper court-fee on the memorandum of appeal could be calculated; he accordingly affixed a court-fee of Re. 1/-provisionally and prayed that the Registrar as Taxing Officer should decide the amount of court-fee payable.
3. The matter was considered by the Registrar who held that ad valorem court fees were payable and directed that the deficit court-fees amounting to the value of Re. 1/4 be filed within a certain time. This order was not complied with. The petitioner presented an application to the Court by way of appeal against the Registrar's decision. As the fee held by the Registrar to be payable, was not paid within the time fixed, the Registrar directed that the matter be placed before the Division Court for orders.
4. When the matter came before us, a preliminary objection was taken by the Crown that no appeal lies against the order of the Registrar, whose decision in the matter is final by virtue of the provisions of Section 5, Court-fees Act.
5. The petitioner, however, contended that Section 5, Court-fees Act had no application to the decision of the Registrar made on an application under Rule 18 of Chapter v Part II of the Appellate Side Rules.
6. Mr. Dhar for the petitioner argued that under the provisions of Section 4, Court-fees Act, the High Court was empowered to determine the proper court-fee payable, and that under Rule 18 of chap. V part It of the Appellate Side Rules, the High Court had delegated this power to the Registrar. He argued farther that the stage contemplated by Section 5, Court-fees Act had not yet been reached that Section 5 of that Act contemplates a case where a litigant presents an application to the officer whose duty it is to receive the same, and that officer gives an opinion regarding the court-fee payable which the litigant does not accept; then and then only, according to Mr. Dhar the matter can be referred to the Registrar as Taxing Officer under Section 5, Court-fees Act.
7. Mr. Dhar's case is that Rule 18 of chap. V Part II of the Appellate Side Rules provides an alternative procedure to Section 5, Court-fees Act, and that the Registrar having exercised delegated functions, his order, was liable to be modified by the Court which had delegated to him the power to determine the court-fee.
8. In our opinion this ingenious argument is fallacious. Section 5, Court-fees Act provides that where a difference of opinion arises, the matter shall be referred to the Taxing Officer, and the decision of the Taxing Officer shall be final. There can be no doubt in our opinion that a difference of opinion had arisen, at all events before the matter came before this Bench. Therefore under Section 5, Court-fees Act, it was necessary that the matter be referred to the Registrar as taxing officer and his decision under the section should be final.
9. Rule 18 of ch. v. part II of the Appellate Side Rule 3 was framed by the High Court in its administrative capacity and must be read in a manner to make it consonant with the provisions of the statute. It cannot therefore be read as authorising a procedure inconsistent with the procedure laid down by statute.
10. In our opinion the preliminary objection should be sustained and it should be held that this appeal is incompetent.
11. In view, however, of the importance of the question raised we heard the matter on its merits and we proceed to give our opinion in the matter, Bengal Act, iv of 1922, came into force on 1-4-1922. By Sections 3 to 13, it was enacted that certain words 'shall be substituted' for certain other words which were in the original Act. By Sections 14 and 15 it was enacted that certain words 'shall be omitted' from the original Act.
12. Bengal Act (VI of 1922) made certain purely grammatical alterations in the Court-fees Act as amended by Bengal Act (IV of 1922.).
13. The preamble to the Bengal Repealing and Amending Act (xvi of 1946) reads as follows:
Whereas it is expedient that certain amendments should be made in the enactments specified in Schedule 1; And whereas it is also expedient that the enactments 'specified in Schedule 2 which are spent or have otherwise become unnecessary, or have ceased to be in force otherwise than by expressed specific repeal, should be ex-pressly and specifically repealed;
It is hereby enacted as follows:
Section 3 of the Act reads:
3. The enactments specified in Schedule 2 are hereby repealed to the extent mentioned in the fourth column thereof.
And in Schedule 2 of the Act we find the following entries.
Year No. Short title Extent of re-
1 2 3 4
... ... ... ...
1922 IV The Bengal Sections 3
Court-fees to 15
... ... ... ...
1922 VI The Bengal The whole
No. II) Act.
14. Mr. Dhar contended that by the amending Acts of 1922, the relevant provisions of the Court fees Act of 1870 were repealed; that by the Repealing and Amending Act of 1946, the amending Acts of 1922 were repealed and there was no express provision to the effect that the original provisions of the Act of 1870 should again be in force; and that therefore, there no longer existed any provisions in place of those repealed by the amending Acts of 1922. Section 4 of Bengal Act (XVI of 1946) contains the provision:
The repeal by this Act of any enactment shall not affect any Act or Regulation in which such enactment has been applied, incorporated or referred to....
15. Mr. Lahiri for the Crown contended that by the Amending Act of 1922, certain provisions were 'incorporated' into the Court-fees Act of 1870, and that therefore when the amending Acts of 1922 were repealed, that repeal did not affect the Court-fees Act as amended.
16. The argument turned on the meaning of the word 'incorporated' as used in Bengal Act (XVI of 1916).
17. Mr. Dhar drew our attention to the definination of 'incorporation by reference' in Wharton's Law Lexicon and contended that 'incorporation by reference' was the only form of incorporation recognised by the Legislature.
18. There can be no doubt that in early English decisions the judges in dealing with the effect of the repeal of one Act, on another Act in which the former had been incorporated, consisted only cases where an earlier Act was incorporated by reference into a later Act, and they held that in these cases, the repeal of the earlier Act did not affect the later Act in which the provisions of the earlier Act had been incorporated. Mr. Dhar, therefore, contended that by 'incorporation' was meant the 'incorporation by reference' of the provisions of an earlier Act into a later Act, and that the phrase could not be used to include cases where by virtue of a later Act new provisions were 'inserted' in an earlier Act, or new provisions 'substituted' for the provisions in an earlier Act.
19. No English case was cited before us in which the word 'incorporated' was applied to the latter class of cases. A number of cases were cited in which the word 'incorporated' was used in the sense of provisions of an earlier Act being incorporated by reference into a later Act e.g. Knill v. Towse (1889) 24 Q.B.D. 186 and The Queen v. Smith (1873) 8 Q.B. 146.
20. Moreover, in the judgment of the Privy Council in Secy. of State v. Hindusthan Co-operative Insurance Society Ltd. there occurs this significant passage at p. 802:
In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second: see the cases collected in 'Craies on Statute Law' Edn. 3, pp. 349-50. This doctrine finds expression in a common-form section which regularly appears in the Amending and Repealing Acts which are passed from time to time in India. The section runs, 'The repeal by this Act of any enactment shall not affect any Act... in which such enactment has been applied, incorporated or referred to'.
21. Mr. Dhar has argued that this provision in the Amending and Repealing Acts merely gives effect to the English doctrine applicable to cases where the provisions of an earlier Act have been incorporated by reference into a later Act.
22. On the other hand in the judgment in Glaholm v. Barker (1865) 1 Ch. A. 223 the effect of the Merchant Shipping Repeal Act 1854 on the earlier Lord Campbell's Act was considered, and it was observed:
The modification introduced by these sections (i.e. Sections 504 and 505, Merchant Shipping Act 1851) is not is terms incorporated into Lord Campbell's Act.
This certainly suggests that the learned Judge contemplated the possibility of incorporating the provisions of a later Act into an earlier Act.
23. But whatever be the meaning of the word 'incorporate' in English Legislative practice, it seems to as that we must decide what is the sense in which it has been used in India; and it may be that it has not been used in India in a limited sense even if, so used in England.
24. If we consider the ordinary dictionary meaning of the word 'incorporate', it is obvious that it will include cases where by a later statute new provisions are inserted into an earlier one, or substituted for other provisions of that earlier one.
25. Are we justified in holding that in Section 4, Bengal Act 16 [XVI] of 1946, the word 'incorporated' has been used in the same sense as in the dictionary? or must we assume that it has been used in the limited sense of 'incorporate by reference' as in Wharton's Law Lexicon?.
26. It is interesting in this connection to note that in the Bengal Code, 1939 edition, published under the authority of the Government of Bengal Legislative Department, Section 3 to 15 of Act 4 [IV] of 1922 appear in this form: '3 to 15 (The amendments incorporated in Act 7 [VII] of 1870.)' This indicates at all events that the Officers of the Legislative Department of the Government of Bengal understood the word 'incorporate' in its wider dictionary sense.
27. In our opinion the preamble to Bengal Act 16 [XVI] of 1946 can be legitimately referred to in order to understand in what sense the words of that Act have been used, if there is any ambiguity. In that preamble the justification given for repealing the enactments set out in schedule II, is that those enactments 'are spent or have otherwise become, unnecessary, or have ceased to be in force....
28. Now obviously this justification is applicable. We to the repeal of Bengal Acts, IV and VI of 1922 if the provisions of those Acts are regarded as incorporated in the Court-fees Act of 1870, but wholly inapplicable if they have not been so incorporated. This suggests that for the purposes of this Act 'incorporated' in Section 4 must have been used in its ordinary dictionary sense.
29. It seems to us that the fact that Bengal Act 1 [I] of 1940, (the Bengal General Clauses (Amendment) Act 1939) is also included in Schedule 2 to Bengal Act 16 [XVI] of 1946 is a further indication in support of the same view. Section 4, Bengal General Clauses (Amendment) Act 1939 (I of 1940) reads;
After Section 8 of the said Act the following section shall be inserted namely:
8A. Where any Bengal Act made after the commencement of this Act repeals any enactment by which the text of any former enactment was amended by the express omission, insertion or substitution of any matter, then unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.
30. If the principle of interpretation contained in this provision be applied to Bengal Act 16 [XVI] of 1946 then inasmuch as Section 8A was expressly inserted into the Bengal General Clauses Act by Act 1 of 1940, the repeal of Act I of 1940 by Act XVI of 1946 did not affect the continuance of this principle of interpretation.
31. The language of the preamble to Bengal Act 10 [XVI] of 1946 is wholly inappropriate if it was the intention of the legislature that this principle of interpretation should no longer be applied. In no sense can it be said that the enactment inserting Section 8A into the Bengal General Clauses Act was spent or had otherwise become unnecessary or had ceased to be in force, unless Section 8A remained operative in spite of the repeal of Bengal Act I of 1940.
32. On a careful consideration of all the arguments we are satisfied that by Section 3 to 15 of Bengal Act IV of 1922, amendments were incorporated into the Court-fees Act of 1870 within the meaning of Section 4 of Bengal Act 16 [XVI] of 1946; and that the new Section 8A, Bengal General Clauses Act, was incorporated into that Act and that therefore the repeal of Sections 3 to 15 of Bengal Act IV of 1922 and of Bengal Act I of 1940 did not affect the amendments so incorported. In this view the decision of the learned Registrar was correct. This application is accordingly dismissed.
33. We therefore direct that the deficit court-fees be paid by 17th February and in default the memo of appeal be rejected.
G.N. Das, J.
34. I agree.