Hari Swarup, J. - (1.) THE following question of law was referred by a Division Bench for the opinion of the larger Bench. "Whether the Bengal Army Regulation Governor General Order No. 179 dated September 12, 1836 continues to be law in force in India even after the enforcement of the British Statutes (Application to India) Repeal Act, 1960 (Act No. LVII of 1960) ? THE question had arisen in the writ petitions filed to challenge the notices of resumption issued by the Union of India exercising the right of resumption under the grants on the basis of which the petitioners, according to the respondents, were holding the lands.
(2.) THE action is being taken in exercise of the power under the Governor General Order No. 179 dated September 12, 1836. THE Order does not indicate the source of power. THE source of power can, however, be traced to the Government of India Act, 1833. Section 43 of this Act provided that the said Governor-General in Council shall have the power to make Laws and regulations for repealing, amending or altering any laws and regulations whatever now in force. THE Preamble of Order No. 179 of September 12, 1836 provides that by rescinding the various Orders in force, Regulations were being promulgated thereunder. THE proviso to S.45 of the 1833 Act reads as under :- "Provided also that all laws and regulations made as aforesaid, so long as they shall remain unrepealed, shall be the same force and effect within and throughout the said territories as any Act of Parliament would or ought to be within the same territories and shall be taken notice of by all courts of justice whatsoever within the same territories, in the same manner as any public Act of Parliament would and ought to be taken notice of; and it shall not be necessary to register or publish in any court of justice any laws or regulations made by the said Governor-General in Council." This Act continued till the Government of India Act, 1915 repealed it. Section 130 of the Government of India Act, 1915 provides : The Acts specified in the Fourth Schedule to this Act are hereby repealed to the extent mentioned in the third column of that Schedule : Provided that this repeal shall not affect - (a) the validity of any law, charter, letters patent, Order in Council warrant, proclamation, notification, rule, resolution, order, regulation, direction or contract made, or form prescribed, or table settled under any enactment hereby repealed and in force at the commencement of this Act, or (b) the validity of any appointment, or any grant or appropriation of money or property made under any enactment hereby repealed, or (c) the tenure of office, conditions of service, terms of remuneration or right to pension of any officer appointed before the commencement of this Act. ....................................................................................................................." In the Fourth Schedule, occurs the following entry : "Session and Chapter Short Title Extent of Repeal 3 and 4 Will 4, c. 85. The Government of India Act, 1833. The whole Act, except Section one hundred and twelve. The effect of this repeal was that the Government of India Act, 1833 was repealed in its entirety except Section 112 which ran as under :- "The island of Saint Helena, and all forts, factories, public edifices, and hereditaments whatsoever in the said island, and all stores and property thereon fit or used for the service of the government thereof, shall be vested in His Majesty, and the said island shall be governed by such orders as his Majesty in council shall from time to time issue in that behalf. The next provision dealing with this Statute is contained in the British Statutes (Application to India) Repeal Act 1960." Section 2 of this Act provides : "The British Statutes specified in the Schedule, in so far as they extend to, and operate as part of the law of India or any part thereof, are hereby repealed." The effect of the repealing Act could only be the repeal of the remnants of the Government of India Act, 1833, viz., Section 112 thereof.
(3.) THE question referred to us has to be answered in the light of these aforesaid enactments. The argument advanced on behalf of the petitioners is that once the Act of 1833 was repealed, all laws made thereunder including the Order No. 179 of 1836 stood repealed and lost their legal enforceability. There is a flaw in this argument as the general rule of repeal : that when a parent Act is repealed all laws made thereunder stand repealed, does not apply to laws made under a Constitution Act. Such a law has to be expressly repealed if it has to be effaced. In the case of subordinate legislation the emanating law dies unless saved, but a law made under a Constitution Act survives till expressly repealed.;