G P STEWART Vs. BROJENDRA KISHORE ROY CHAUDHURY

JUDGEMENT

(1.) Appeal No. 91 of 1939 (F.M.A.) - This is an appeal from an order passed on 31 January 1939 by the Second Subordinate Judge, Sylhet. The appellant is the Collector and Deputy Commissioner of Sylhet in his capacity as manager of the estate of Kumar Gopika Raman Roy, a ward of Court under the Court of Wards, Assam. The respondent is Brojendra Kishore Roy Chaudhury of Gouripore in the District of Mymensingh in Bengal. The facts, so far as they are necessary for the purposes of this appeal, can be briefly stated: The respondent lent to the aforesaid Kumar various sums of money aggregating to Rupees seven lacs on five simple mortgage bonds and obtained a decree thereon for the sale of the mortgaged properties. On 16-11-1938 the learned Subordinate Judge, on an application by the Deputy Commissioner, Sylhet, stayed execution on the ground that the Court of "Wards in Assam had taken possession of the property of the mortgagor and that in consequence, Section 10-C inserted by the Assam Court of Wards Amendment Act, 1937 (which was passed by the Assam Legislature after 1 April 1937) operated as a bar to execution. Subsequently, there was an application on behalf of Brojendra Kishore Roy Chaudhury for review of the Subordinate Judge's order of 16 November 1938 on the ground, amongst others, that the aforesaid Section 10- C inserted by the Court of Wards Amendment Act did not and could not affect his right to proceed with the execution under the provisions of the Civil Procedure Code. On 31 January 1939, the Subordinate Judge granted the review, holding that the aforesaid Section 10-C was repugnant to certain "existing Indian laws" falling in the Concurrent Legislative List in Schedule 7, Government of India Act, 1935, and not having been reserved for the consideration, or received the assent of the Governor General as required by Section 107(2) of the said Government of India Act was void to the extent of the repugnancy by virtue of Section 107(1) of the same Act.

(2.) The main question raised before us in this appeal is on the constitutional point just mentioned, namely whether Section 10-C inserted by the aforesaid Assam Act is void. Before dealing with this question, it is necessary to dispose of certain preliminary points raised. It is contended by Dr. Basak on behalf of the appellant that the order granting the review was without jurisdiction, inasmuch as the case does not fall within the limits laid down by Order 47, Rule 1, Civil P.C. This Rule provides in effect that the application for a review must be based upon: (i) the discovery of new and important matter or evidence which after the exercise of due diligence was not within the applicant's knowledge or could not be produced by him at the time when the original order was made; (ii) some mistake or error apparent on the face of the record or (iii) any other sufficient reason. In the present case we do not think that (i) or (ii) applies, but (iii) does. As interpreted by the Privy Council in Chhajjuram V/s. Neki (1922) 9 A.I.R. P.C. 112 the expression "any other sufficient reason" occurring in this Rule means any other sufficient reason analogous to those specified immediately previously, that is to say to excusable failure to bring to the notice of the Court new and important matter. We find that in this case there was sufficient reason of this kind. Assuming for the moment that the impugned Assam Act needed the Governor-General's assent to make it completely effective it was a natural presumption for anybody to make that the necessary assent had been obtained. It is true that if the applicant for review had taken care to study all the Assam Gazette notifications that appeared from time to time, he would have noticed that in the Gazette of 17 November 1937, the Act in question had been notified as having received the Governor's assent on 5 November 1937. From this he could have inferred had he been familiar with the provisions of the new Government of India Act relating to assent and reservation, that the Assam Act had neither been reserved for the consideration of the Governor-General nor received the Governor-General's assent. We cannot however hold that his failure to infer this omission and immediately to see its consequences was inexcusable. The new Government of India Act is a long and complicated measure which came into operation comparatively recently (on 1 April 1937); even the Courts have not yet had time to familiarize themselves with its provisions, much less the ordinary citizen. We think therefore that the learned Subordinate Judge had jurisdiction to entertain the application for review.

(3.) The second preliminary point which arises in this case is based upon a fact which we ourselves noticed for the first time during the hearing of the appeal. The Assam Act containing the impugned Section 10-C received the Governor's assent on 5 November 1937; but it did not, merely on this ground, come into force on that date. The Act contains a special commencement clause; Section 1(3) provides that it shall come into force on such date as the Provincial Government may, by notification in the local official Gazette, appoint in this behalf. Nothing appears to have been done under this provision until in the Assam Gazette of 12th January 1938 it was notified that "the Governor directs that the Act shall come into force from 5 November 1937." The question arises whether a notification of this kind appointing a date for the commencement of the Act earlier than the date of the notification itself was intra vires. To use a convenient term, is a retrospective notification of this kind intra vires? The usual rule that an Act is not to have retrospective operation unless the intention of the Legislature that it should be so construed is expressed in plain and unambiguous language does not in terms apply to the present case. The question here is whether a notification under the Act, rather than the Act itself, can have retrospective effect. It seems to us that the same considerations that have led to the enunciation of the rule against retrospective operation of statutes would also lead to the adoption of a similar rule in the case of statutory notifications. That is to say, unless the parent Act itself clearly authorizes the issue of a notification with retrospective effect, it must be presumed that such a notification is forbidden. It is seldom that retrospective notifications are contemplated; and on the rare occasions when they are contemplated, it is usual to say so plainly. Thus, in Section 1, T.P. Act, 1882 power is given to any Provincial Government from time to time by notification in the official Gazette to exempt "either retrospectively or prospectively" any part of the province from certain specific provisions of the Act. Similarly in Section 3, Succession Act, 1925, power has been given to the Provincial Government by notification in the Gazette "either retrospectively from 16th March 1865, or prospectively" to confer exemptions from the operation of certain specified provisions of the Act. There is no similar provision in the impugned Assam Act, as regards the notification under Section 1(3). On the contrary, the nature of some of the provisions of the Act is such that a retrospective notification cannot have been in the contemplation of the Legislature. To take an example, the new Section 10-G debars execution of decrees against a ward for a certain period of years; supposing the Assam Government did nothing under Section 1(3) for a whole decade after the passing of the Act and then suddenly issued a notification bringing the Act into operation retrospectively from 5 November 1937, what would be the effect on any executions already levied? The very fact that the Act contains no provision on this point is an indication that such a notification was not intended by the Legislature.