- (1.) THIS revision has been preferred against the order of the Addl. Commissioner, Jaipur, dated 27. 4. 61 by which he has rejected the appeal preferred by the applicant against the order of the Asstt. Collector, Chirawa, dated 30. 6. 60 with the observation that no appeal was provided against the order under sec. 7 of the Rajasthan (Protection of Tenants) Ordinance, against the order passed under sec. 187 (B) of the Rajasthan Tenancy Act as amended by Act No. 22 of 1960. THIS case has got a chequered history. The opposite party No. 1, Abdul Shakoor, made an application under sec. 7 of the Rajasthan (Protection of Tenants) Ordinance on 12. 9. 53 to the anti Ejectment Officer, Jhunjhunu against the applicants, Gulia and Lunia and others opposite party No. 2 to 7 praying that he should be re-instated upon the disputed land because of his having been ejected therefrom under a process other than provided by law. The then Jagirdar of the land was also impleaded as a party. As a result of the resumption of Jagir since, he is represented now by the State of Rajasthan through Tehsildar, Udaipurwati opposite party No. 8. The application was rejected by the learned. Anti Ejectment Officer on 19. 8. 54. A revision was preferred to the Board. It was accepted on 13. 5. 59 and the case was remanded to the S. D. O. , Nawalgarh with the direction that it should be decided afresh in accordance with law after hearing the arguments of the parties. The reason was that it was found that the trial court had not viewed the case in a proper perspective. On the remand the case was re-decided by the learned Asstt. Collector, Chirawa on 30. 6. 60, and opposite party Abdul Shakoor was ordered to be reinstated on the disputed land. An appeal was preferred against that order to the learned Addl. Commissioner, Jaipur, who rejected the same with the observation referred to above. The learned Addl. Commissioner after discussing the various provisions of law and authorities cited before him came to the conclusion that Sec. 206 of the Rajasthan Tenancy Act did not affect the substantive law, but prescribed only a procedure for the trial of cases pending at the commencement of this Act; that sec. 186 of the Rajasthan Tenancy Act which could at the utmost be taken to be akin to the provisions of sec. 7 of the Rajasthan (Protection of Tenants) Ordinance having also been deleted by Act No. 22 of 1960, this lis could not be taken to be under sec. 186 of the Rajasthan Tenancy Act; and that thereafter sec. 187 (B) was more akin to the provisions of sec. 7 of the Rajasthan (Protection of Tenants) Ordinance, both of which provided summary remedy without any right of appeal, and therefore the applicants could not be deemed to have any right of appeal against the order directing the ejectment from the disputed land.
(2.) THIS revision therefore involves very important points of law for determination, viz. , No. (1 ). On the setting aside of the decision of the learned Anti Ejectment Officer dated 19. 8. 54 and the remand of the case for re-hearing and redecision by the Board, will the case be deemed to be pending before the learned trial court under sec. 7 of the Rajasthan (Protection of Tenants) Ordinance or under Sec. 186 of the Rajasthan Tenancy Act 1955. No. (2): by the time the case came to be decided by the learned Asstt. Collector, Chirawa, sec. 186 of the Rajasthan Tenancy Act too having been deleted what provision of law shall be deemed to be heard and decided u/s. 7 of the Rajasthan (Protection of Tenants) Ordinance, sec. 186 of the Rajasthan Tenancy Act 1955 or under sec. 187 (B) thereof. No (3 ). Whether an appeal would lie against the order of the Asstt. Collector, or a revision would lie direct to the Board. It may be stated here for the sake of clarification that the Rajasthan (Protection of Tenants) Ordinance did not provide for any appeal. Under sec. 10 (2) thereof only a revision was provided. The Rajasthan Tenancy Act did however provide vide sec. 225 (1) thereof an appeal against an original order. Vide sub-sec. (2) thereof no second appeal was provided. But a revision did lie under sec. 230 thereof to the Board. The course of appeal or revision will, therefore, depend upon the finding under what law the lis shall be deemed to be pending in the learned trial court after the remand by the Board. Now, vide the first Schedule of the Rajasthan Tenancy Act, 1955, the Rajasthan (Protection of Tenants) Ordinance 1949 and all further Acts amending the same were repealed in toto, without any "savings" or reservations. As soon as, therefore, the Rajasthan Tenancy Act 1955 came in force on 15. 10. 55, all the provisions of the Rajasthan (Protection of Tenants)Ordinance stood repealed. There's no dispute between the parties so far as this position of law goes. There is, however, a great divergence of opinion between the learned counsel for the parties appearing before us to-day on the point of the effect of the deletion of sec. 186 of the Rajasthan Tenancy Act 1955 by the Act No. 22 of 1960. The learned counsel for the applicants submits and rightly also, as we shall point out presently, that the deleting of sec. 186 of the Rajasthan Tenancy Act, which contained provisions similar to that of S. 7 of the Rajasthan (Protection of Tenants) Ordinance did not revive the provisions of this section. On the other hand, the learned counsel for the opposite party, Abdul Shakoor, contends that this deleting of sec. 186 of the Rajasthan Tenancy Act has got the effect of reviving the provisions of sec. 7 of the Rajasthan (Protection of Tenants) Ordinance. Now, this is a well established principle of law that the effect of the amendment in an Act depends upon the language of the amending Act itself. The amending Act may provide for the repeal and saving of any action or may not provide. In the absence of any such provisions, sec. 6 of the General Clauses Act comes into operation. Unless a different intention appears from the amending enactment the repeal does not "revive anything not in force or existing at the time at which the repeal takes effect (See sec. 6 (a) ). Nor does such a repeal in the absence of a different intention appearing from the amending Act affect any investigation, legal proceeding or remedy in respect of any such right, privilege obligation, liability, forfeiture or punishment" and "any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed (See sec. 6 (a)". We have looked into the provisions of Act No. 22 of 1960-the Rajasthan Tenancy (3rd amendment) Act 1960-61 by which sec. 186 of the Rajasthan Tenancy Act las been deleted and s. 187 (B) has been inserted. It does not provide for any special 'repeal' or 'saving'. The provisions of sec. 6 General Clauses Act would, therefore, automatically come into application. Sub-sec. (a) thereof would stop the revival of the provisions of sec. 7 of the Rajasthan (Protection of Tenants) Ordinance; and sub-sec. (e) thereof would enable the continuation of the proceedings under sec. 186 of the Act even after its omission by the Act No. 22 of 1960. In short, the proceedings would be deemed to be continuing in the same manner as they would have been deemed to be continuing on the date of the remand of the case by the Board to the learned trial court after setting aside its decision for hearing again and decision afresh in accordance with law. This point has been examined by the Board also in Chandmal Vs. Chhoga, 1961 RRD 214, to which one of us was a party, following the previous decision of the Board in Dhola, Govind Vs. Bhargava, Hanuman (case No. 19 Jhunjhunu)/1960 decided on 15. 11. 60, to which also one of us was a party. It was held therein that if nothing contrary had been provided in the repealing Act, a legal proceeding started under the repealed law would continue unaffected as if the enactment had not been repealed and that it would be only when any "qualification" had been introduced in the new law that those conditions would affect such a proceeding. Sec. 6 (a) of the General Clauses Act would, therefore, prevent the revival of the provisions of the Ordinance on the deleting of sec. 186 of the Rajasthan Tenancy Act by Act No. 22 of 1960 ; and sec. 6 (e) of that very Act would enable the continuance of the proceedings under sec. 186 of the Rajasthan Tenancy Act if they were continuing under that section at the time of the repeal of that section. Now, we have to decide as to under what law the present lis shall be deemed to be heard and decided after remand by the Board, when Sec. 7 of the Rajasthan (Protection of Tenants) Ordinance stood repealed. Sec. 206 of the Rajasthan Tenancy Act makes a provision for the trial of the pending cases. It lays down that all pending cases there shall be deemed to have been commenced under this Act and shall be tried heard and determined in the manner prescribed by and under this Act. Only they should be cases "relating to matters dealt within this Act. " Sec. 186 of the Rajasthan Tenancy Act provided for the cases of the present type, and therefore the present lis was related to a matter dealt with in this Act. It was, therefore, on remand to be tried heard and determined not only in accordance, with the provisions of sec. 186 of the Rajasthan Tenancy Act but also in accordance With the procedure laid down by this Act. In Shankar Singh and others Vs. Board of Revenue and others, D. B. Civil writ petition No. 309 of 1959 decided on 8. 9. 61, the Rajasthan High Court has also laid down that a lis of the present type shall be deemed to have been commenced under the provisions of the Rajasthan Tenancy Act and must be deemed to have been disposed of under this very Act. In that case the original application was under Sec. 7 of the Rajasthan (Protection of Tenants) Ordinance, preferred on 28. 7. 54, before the coming into force of the Act. But the C3se was decided on 7th of April, 1956 after the coming into force of the Rajasthan Tenancy Act 1955 on 15. 10. 55. The contention in that case also was that the appeal against the order of the learned trial court could not lie and only a revision could be maintainable under the proviso of sec. 10 (2) of the Rajasthan Protection of Tenants Ordinance. It has, however, been very vehemently contended by the learned counsel for the opposite party Abdul Shakoor that the right of appeal or revision attached to a lis would be the same as was available on the date of its institution originally, and on this it has been contended that the lis started originally before the enforcement of the Act and under the Rajasthan (Protection of Tenants) Ordinance, there could not be any right of appeal, only a revision could lie to the Board. The decision of the Rajasthan High Court Sankar Singh v/s. the Board of Revenue and others, referred to above should be enough to set this contention at naught. In AIR 1960 Supreme Court 655, Motiram v/s. Surajbhan and others, also it has been held by their Lordships of the Supreme Court although in different context, that where an appending enactment had come in force at the time a decision was given the appeal or revision would be as provided by the amended enactment. In 1960 RLW 617, Sheodayal v/s. Brijlal the Rajasthan High Court has held that the absence of the right of appeal could not be called a right at all and that the prohibition of appeal by the law as existing at the time of the institution of the suit did not amount to a substantive or existing right accruing to the parties. These observations were made in a case under the Dehli and Ajmer Rent Control Act 1947 which did not provide for an appeal against the decision. But it was repealed in 1952 and a provision was made for appeals. This 1952 Act was again repealed in 1957 and was replaced by the Rajasthan Premises (Control of Rent and Eviction) Act 1950. This Act also contained a provision for appeal. The suit under reference was decided on 18. 12. 57 after that Act was extended to the territory of Ajmer on 27. 11. 57. AIR 1957 Supreme Court 540 was distinguished on the ground that a distinction has to be drawn between the case, in which the right of appeal is taken away and the case, where another right of appeal is added, the interference with the right of the parties being clearly of a different nature in the two cases. As the amended Act provided for an appeal, the right of appeal was upheld. In Badrilal Vs. Madanlal (Case No. 4 (Kota) of 1960) decided on 25. 1. 61 also, to which one of us was a party, relying on this authority it was held that the absence of a provision of appeal was not a vested right and therefore the subsequent provision for appeals could not be deemed to be taking away any vested right, That case was regarding the appointment of a Patel and all the learned lower courts had refused to entertain the appeal. But it was found that on the date the case was actually decided, the Rajasthan Act No. 33 of 1959 had made a provision for appeal. The above discussion is, however, more of an academic interest than real for the decision of the present case. For, as already stated above, the provisions of Section 206 read with Section 186 of the Rajasthan Tenancy Act and Section 6 of the General Clauses Act, along with the other provisions of the Act, very clearly establish that the case would be deemed to have been decided by the learned trial court under Section 186 of the Rajasthan Tenancy Act and an appeal against that order lay to the learned Addl. Commissioner under Section 225 (1) of the Act. The above rules have been referred to and discussed only in order to meet the insistence of the learned counsel for the opposite party, Abdul Shakoor, that even when a change in law had been effected in the meanwhile, the right of appeal or revision would remain the same as was available on the date of the original institution of the lis. Where an Act was amended and went to make a provision for appeal even when there was none in the original enactment, the right of appeal would be available to the parties and it would not be said that the rights of the parties were being in any way affected adversely thereby. In view of what has been discussed above, it may not at all the necessary to refer to the various rulings cited by the learned counsel on behalf of the respondent. But as he has been insistent on referring to them, we propose to refer to them also in brief. 1955 RD 317 Kesri Narayan Major Vs. Kamta Prasad Dube dose not lay down anything other than that in accordance with the settled principle of law the. rights of parties must be considered as on the date of institution of the suit unless they have been taken away expressly or by clear implication. 1956 RLW 172, Jaskaran Vs. Bhanwarlal, also lays down only that the right of appeal was a vested right and it would be the same as prevailed at the date of the institution of the suit and not as was available on the decision of the suit. AIR 1957 Privy-Council 242, Delhi Cloth and General Mills Vs. Income Tax Commissioner Delhi and another, also lays down only that the provision of a statute touching a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. AIR 1951 Calcutta 97 also lays down that the repeal of statute does not repeal such portions of the statute as have been incorporated into another statute, and that if the original Act was repealed the incorporated section or sections still operated in the latter Act. All these principles cannot be disputed. But the question is whether they come into application in the present case. In the present case the repeal of the Rajasthan Protection of Tenant Ordinance and the further deleting of Section 186 of the Rajasthan Tenancy Act along with the provisions of Section 206 of the Rajasthan Tenancy Act have changed the very face thereof. The case is to be deemed to have commenced under Section 186 of the Rajasthan Tenancy Act after the remand by the Board and not from its original date of its institution under Section 7 of the Rajasthan (Protection of Tenants) Ordinance. That makes the whole difference. Besides the provision in the Act of an appeal which was absent in the Ordinance does not take away any vested right but only adds to it. AIR 1936 Allahabad 3 Tanmal Purshottamdas Vs. Baburam Chhotelal also referred to by the learned counsel for the opposite party Abdul Shakoor does not deal with the provision of section 6 (a) of the General Clauses Act. It deals with only the provision of Section 6 (e) of the General Clauses Act and lays down that this provision applies only to the cases where a previous law had been simply repealed and there is no fresh legislation to take its place. This supports the view contrary to that advocated by the learned counsel for appellate party, Abdul Shakoor and goes to support the view taken on behalf of the applicant. To conclude the present lis, after the remand by the Board, shall be deemed to have been commenced under the provisions of Section 186 of the Rajasthan Tenancy Act and the course of appeal and preview would be that available under the Act. By virtue of section 6 (a) of the General Clauses Act the provisions of the Rajasthan Protection of Tenants Ordinance would not revive. The lis would be continued by virtue of Section 6 (a) of the General Clauses Act as if it was a proceeding under sec. 186 of the Rajasthan Tenancy Act. This revision is, therefore, hereby accepted, the order of the learned Addl. Commissioner set aside and the case remanded to him for being admitted to its original No. and heard and determined afresh in accordance with law in the light of the observations made above. . ;