- (1.) THE learned Member of the Board who heard the petition in these two revision matters, referred the following question for the opinion of this Bench: - "in land ceiling cases which were pending on the day the Rajasthan Imposition of Ceiling on Agricultural Holdings Ordinance 1973 was promulgated, is the Board competent to continue to hear and to decide revisions in accordance with the law repealed by sec. 40 of the Ordinance and, if not, how are such cases to be disposed of?"
(2.) BEFORE we proceed to discuss the arguments advanced by the learned counsel for the parties and other members of the Bar who appeared for assisting the Bench in deciding the important question of law arising out of this reference, we propose to narrate, the circumstances leading to these revisions. The petitioners are tenant and in proceedings under chapter III B of the Rajasthan Tenancy Act as it was in force, at the time of the institution of the proceedings and the rules framed under the said Act, the concerned S. . D. O. proceeded to determine the area of the land that the petitioners could be allowed to retain. In other words proceedings for fixing the ceiling area applicable to the petitioner were started in accordance with the law as in force at the commencement of the proceedings. Appeals were preferred against the orders made by the learned S. D. O. in the court of the Revenue Appellate Authority, Udaipur, who decided the appeals against the petitioners. Aggrieved by the orders of the first appellate court, the petitioners filed applications under sec. 230 Rajasthan Tenancy Act. All these proceedings were taken while chapter III B of the Rajasthan Tenancy Act was on the statute book. After filing of these applications under sec. 230 Rajasthan Tenancy Act, the Governor of Rajasthan promulgated on the first day of January, 73, the Rajasthan Imposition of Ceiling on Agricultural Holdings Ordinance, 1973, to be hereafter called 'the Ordinance'. Sec. 40 of the Ordinance which is reproduced below for ready reference, provides for the repeal of chapter III-B subject to two exceptions and for the repeal of clause 6-A of sec. 5 of the said Act. "40-Repeal - Except as otherwise provided in second proviso to sub-sec. (1) of sec. 4 and in sub-sec. (2) of sec. 15 Chapter III-B of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) and clause (6-A) of sec. 5 of the said Act are hereby repealed. " When the two revisions, from which the present reference arises came up for hearing before a single Member Bench of this Board after the promulgation of the Ordinance, it was urged by the learned counsel for the petitioner that on account of the repeal of Chapter III-B in the manner described in the previous paragraph and its replacement by the Ordinance, applications under sec. 230 Rajasthan Tenancy Act, for revising orders made in ceiling cases, cannot proceed. Some time before these revisions came for hearing before the learned single Member, objection against the maintainability of the revisions in ceiling cases after the promulgation of the Ordinance was taken in the case of Devilal vs. State (1973 RRD 264) and another Member of the Board sitting in single Bench held that sec. 6 of the Rajasthan General Clauses Act permitted the continuance of revision proceeding arising out of the repealed Act. It was contended before the learned Member making the reference that the learned single Member who decided Devilal's case did not consider the effect of Sec. 3 of the Ordinance, that this sec. 3 indicated the existence of a different intention within the meaning of sec. 6 of the Rajasthan General Clauses Act and that moreover the Ordinance has other provisions in indication of the intention of the legislature to deprive revision proceedings under the repealed law of the protection given by sec. 6 (e) of the Rajasthan General Clauses Act. The learned single Member who made this reference finding that an important question of law arose out of this objection and noticing that the decision in the Devilal's case did not show that sec. 3 was considered, referred the matter for decision by a Division Bench. We have heard the learned counsel who appeared before us on behalf of the parties and those who came forward to give their opinion on this important question and we are thankful to them for the assistance that they rendered. It would be proper here to say that since the pronouncement of the order making this reference the Ordinance has been replaced by Act No. 11 of 1973 (The Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 ). The learned counsel who appeared before us were requested to keep this change, namely the replacement of the Ordinance by the Act, in view while discussing the matter and though this change has been kept in view, it would be pertinent to record that the change does not have a material effect upon the question posed by the present reference in as much as the law contained in sec. 3, the second proviso to sec. 4 sub-sec. (1), sec. 15 (2) and sec. 40 of the Ordinance is contained in the corresponding provisions of the Act also. As the determination of the question posed by the reference depends upon the provisions of the above sections and pari materia provisions exist in the Act, the view taken by us would, it is admitted on all hands, apply to the effect of the provisions of the Act on revision cases pending from before the promulgation of the Ordinance. We have carefully read the decision in Devilal's case. Shri G. P. Sharma appearing for the petitioner argued that sec. 6 (e) of the General Clauses Act cannot authorise the continuance of revision proceedings, because sec. 3 of the Ordinance shows the existence of a different intention within the meaning of sec. 6 of the General Clauses Act and as such the repealing Act would completely replace the repealed provisions and govern not only the rights and liabilities of the party in respect of the matters covered by the two enactments, but also take away the right of revision given by the Tenancy Act by necessary implication because the repealing Act does not provide for the remedy of revision. He further contended that the second proviso of sec. 4 (1) and sec. 15 (2) of the Ordinance support the view that the legislature did not intend that pending proceedings would be governed by the repealed law. It was argued that need for this proviso and sec. 15 (2) would not have arisen if the legislature had intended that the protection of sec. sec. 6 (e) would be available to proceedings under the old provision. Shri Dharmchand Jain argued that the Ordinance and the Act affected the rights of the parties. He referred to sec. 4 (2) and sec 6 which, according to him, give the tenant certain rights over and above those given by the repealed law. Galling the Ordinance a substantive law he argued on the authority of AIR 1973 Supreme Court 12 (The Central Bank of India vs. Workmen etc.), 1970 RRD 387 (Shri Uma vs. Shri Kajor) AIR 1965 Supreme Court 1076 (Regional Provident Fund Commissioner, Punjab vs. Shibu Metal Works), that the right of revision given by the repealed provisions cannot be exercised after the repeal. It was further contended that the purpose of the present legislation was to remove the defects and short-comings of Chapter III-B of the Rajasthan Tenancy Act, that it is a remedial measure and according to accepted rules of interpretation, remedial laws should be interpreted to advance the remedy and suppress the mischief.
(3.) SHRI Shiv Narain Singh said that no one has a vested right in procedure and as such laws governing procedure have a retrospective effect while substantive laws even when repealed, determine the right of the parties as they existed before the repeal unless the repealing Act takes away such rights. Shri Jyoti Swaroop contended that sec. 3 and sec. 40 of the Ordinance convey a different intention within the meaning of sec. 6 of the General Clauses Act and hence the result of the repeal is that the old Act ceased to exist for all purposes. He further contended that the Ordinance and the new Act were promulgated because the Government considered the repealed provision inadequate for the achievement of its social objectives and the very purpose of this change would be defeated if the old case are governed by the old Act. Shri Yagya Dutt referred to A. I. R. 1958 Bombay 507 (Sadaseo vs. Hemaji Hiraman Bakde), I. L. R. 1960 M. P. 124, A. I. R. 1965 Saurashtra 77 (Shah Himmat Amulkh vs. The State) and argued that the provisions of Chapter III B of the Rajasthan Tenancy Act ceased to have effect from the date of the promulgation of the Ordinance and hence the new Act would apply. Shri S. N. Parikh emphasised the difference between clause c) and clause (e) of sec. 6 of the Rajasthan General Clauses Act and stated that the legislature has by making a change in the right of the parties, conveyed its intention of repealing the old provision and sec. 3 of the Ordinance shows the existence of a different intention within the meaning of sec. 6 of the Act so far as the substantive right of the parties are concerned. He observed that the reference requires the determination of forum for hearing the revision and that since this question would be covered by clause (e) of sec. 6 of the General Clauses Act, the forum provided in the repealed Act will continue as held in 1962 R. R. D. 95 (Gulia vs. Abdul Shakoor ). He further urged that it has been held by the Supreme Court in A. I. R. 1957 S. C. 540 (Carikapati Veeraya vs. Subish Choudhry) that the right of appeal and revision will not be affected by repeal unless a different forum is provided by the repealing Act. ;