KAN SINGH, J. - (1.) THE writ petition before us raises the question whether the Marwar Public Demands Recovery Ordinance, 1923, hereinafter to be referred as the Marwar Ordinance, "was protanto repealed on the coming into force of the Rajasthan Public Demands Recovery Act, 1952 (Act No. V of 1952), hereinafter to be referred as the "rajasthan Act," which came into force on 15. 6. 52, and it arises in this way.
(2.) AGAINST respondent No. 5 Lachhi, there were certain Government dues to be realised and in the course of recovery proceedings, his plot of land situated at village Loonawa was put to auction under orders of the Tehsildar Bali, respondent No. 4. The petitioner was the last bidder at the auction which took place on 27. 4. 55. The Patwari who conducted the auction submitted the papers to the Tehsildar for according approval to the last bid given by the petitioner. Nothing happened for more than a year in the matter and on 30. 5. 56 the petitioner received a notice issued by the Tehsildar Bali calling upon him to deposit the sale price of Rs. 1106/- before 15. 6. 56, and to take possession of the land and obtain the sale certificate in respect of the sale. The petitioner submits that in compliance with the notice of the Tehsildar he deposited the sale price of the plot on 15. 6. 56, whereupon the sale was confirmed in his favour and he was put in possession of the plot on 22. 6. 56. Thereafter the respondent No. 5 Lachhi made an application before the Tehsildar on 29. 10. 58 for setting aside the sale in favour of the petitioner on the ground that the sale price having not been deposited in time and the one-fourth of the price having not been deposited on the conclusion of the auction, the sale was not valid. This plea prevailed with the Tehsildar and he set aside the sale on 12. 6. 59 and ordered the re-auction of the plot. He also ordered that one-fourth of the sale price deposited by the petitioner be forfeited. Aggrieved by the orders of the Tehsildar the petitioner filed an appeal before the Collector, Pali, who accepted the appeal and reversed the order of the Tehsildar setting aside the sale. Respondent No. 5 Lachhi then challenged the order of the Collector by an appeal before the Additional Commissioner Jodhpur and this appeal on account of the abolition of the office of the Additional Commissioner, came to be heard by the Revenue Appellate Authority, respondent No. 2. The Revenue Appellate Authority in its turn set aside the order of the Collector and restored that of the Tehsildar. The petitioner then approached the Revenue Board, respondent No. 1, in revision, but the Revenue Board declined to interfere with orders of the Revenue Appellate Authority. Hence this present writ petition. In attacking the orders of the Revenue Authorities it is urged by the petitioner that the authorities have erroneously held that the sale was bad on the ground that one-fourth of the sale price was not deposited on the conclusion of the sale on the spot. In the first instance it is submitted that the principles of O. 21, r. 84 of the Code of Civil Procedure, on which the Revenue Authorities have placed reliance, were inapplicable. Secondly, it is urged that the Patwari who conducted the sale was not authorised to accept the final bid and that is why he submitted the papers to the Tehsildar who accepted the bid and as soon as the Tehsildar called upon the petitioner to deposit the sale price, this was done. Thus according to the petitioner, there was no flaw in the sale. The writ petition has been opposed by respondent No. 5 Lachhi and it is urged on his behalf that the recovery proceedings were completed under the Rajasthan Act, which had come into force at the time of the commencement of the sale, proceedings and, therefore, the sale was required to be conducted in accordance with that law. The Rajasthan Act provided that the proceedings for recovery under the Act have to be taken in accordance with the mode of recovery of arrears of land revenue and according to the Revenue Law then in the area namely, the Marwar Land Revenue Act, 1949, sale had to be conducted like that provided for a sale of immovable property in execution of the decree of a Civil Court, vide sec. 116 of the Marwar Land Revenue Act. This having not been done, the sale according to the respondent was altogether null and void. Indeed it had never taken place at all in that one-fourth price was not deposited on the conclusion of the sale as required by the mandatory provisions of O. 21, r. 84 of the Code of Civil Procedure. The learned counsel for the petitioner in countering the suggestion submits that the Rajasthan Act was not applicable and the matter regarding the recovery of State dues was governed by the Marwar Ordinance, as this was an old demand created before the formation of Rajasthan and the proceedings had already commenced before the Rajasthan Act came into force in 1952. It is also submitted that under the Rajasthan Act a proceeding could commence only when a certificate is issued under that Act. Attention is invited in this regard to the definition of the term "certificate" in the Rajasthan Act, which means a certificate under the Rajasthan Act. Thus the learned counsel for the petitioner contends that the Rajasthan Act was wholly inapplicable and the Marwar Ordinance did not lay down any particular procedure for sale and did not require the deposit of one-fourth of the sale price at the spot on conclusion of the auction. It is stressed that the Rajasthan Act did not repeal the Marwar Ordinance, either expressly or by necessary implication. The learned counsel for the petitioner, however, does not dispute the position that if the provisions of O. 21, r. 84 of the Code of Civil Procedure were to be held applicable on account of the provisions of sec. 13 of the Rajasthan Act, then the sale cannot be said to have been held in conformity with those provisions. It will be thus seen that the main question of law, on a proper consideration of which the fate of the case falls to be determined is whether on a proper construction the Rajasthan Act can be held to have repealed the Marwar Ordinance. It will be convenient here to notice the relevant provisions of the two statutes. The Marwar Public Demands Recovery Ordinance, 1923 was passed by the erstwhile Jodhpur State sometime in the year 1923. It may be clarified that in the erstwhile Jodhpur State as the fount of all legislative authority was the Maharaja himself, there was no real distinction between an Act and an Ordinance and they were both on an equal footing; there being no limitation about the duration of an Ordinance. Sec. 3-A defines what were public demands and it ran as under - "sec. 3. Unless there is something repugnant in the context - "public Demand" means any monies payable to the Darbar - (a) on account of annual tribute, such as Rekh, Chakri, Bhumabab or lag of any sort; (b) any sum which any person has undertaken by contract or agreement to pay; (c) any sum payable in consideration of a Sanad, Parwana Permit or lease; (d) any sum payable by way of fee, fine or compensation other than those imposed by a court of law ; except court fee. (e) any sum payable in consequence of misappropriation, defalcation, or criminal breach of trust by a public servant, and any sum payable to the Darbar or any public officer to which the provisions of this ordinance may be, by general or special order applied. It includes interest, fees, fines penalties and costs which may be added to the principal sum due, under the provisions of this ordinance or otherwise by competent authority. It does not include the rent realisable on account of the occupation of agricultural land or any sum realisable on the cancellation of a bond executed by order of competent authority in a judicial proceeding as defined in the Marwar Code of Criminal Procedure. " The officer who was charged with the realisation of a public demand was the Hakim of the district. This term "hakim" was later on substituted by the "tehsildar" on account of the changes in the district administration of the erstwhile Jodhpur State. Sec. 5 provided for the issuing of a certificate by the officer desiring to make the recovery and this certificate was to be sent to the Tchsildar who was to make the recovery. Sec. 6 provided for various processes such as the issuing of a writ of demand, service on the defaulter of a citation to appear and so on. Sec. 11 provised for attachment of movable property with which we are not concerned. Sec. 19 provided for attachment and sale of immovable property other than land and this may be noticed: Sec. 19. The Hakim may apply to the Mehkama Khas for sanction to attach and sell any immovable property other than land belonging to a defaulter; provided that if the defaulter is a Jagirdar and the arrear on account of which the process in issue, is of any of the descriptions mentioned in the proviso to Sec. 11. (1) Such property shall not be attached and sold. (2) Property sold under this section shall be sold free of all encumbrances. (3) The proceeds of the sale shall be credited immediately to, an extent not exceeding one-half of such proceeds to the expenses of the attachment and sale and the arrears on account of which the attachment was made. The remainder shall be placed in deposit as a revenue-court deposit to be available for the discharge of encumbrances, if any on the property sold. (4) Any person claiming to have encumbrance on the property sold may within sixty days from the date of the sale, file a statement of his claim with the Hakim. The Hakim shall, on a day to be fixed, scrutinise the claims filed in the presence of the owner of the property and the claimants or their representatives, and determine the extent, if any to which the claims should be allowed. And if the proceeds of the sale available for the discharge of encumbrances is insufficient to cover the claims as allowed by him, he shall endeavour to obtain the agreement of the parties to the method of its distribution among them. He shall then submit his proceeding to the Mehkma Khas who may order the claims to be met out of the proceeds of the sale available for the discharge of encumbrances to the extent allowed and agreed. (5) If the owner of the property challenges any claim or the extent of any claim as allowed by the Hakim or the parties cannot agree on the extent to which the various claims should be satisfied or if any claimant challenges the extent of the claim allowed by the Hakim, or if any dispute whatever arises in respect of the distribution of the money available, or otherwise, the Mehkama Khas shall, if the parties fail to come to an agreement or compromise before it, direct the person or persons dissatisfied to file a suit in the Civil Courts against the owner joining, if necessary, any other claimants as defendants, for a determination of the dispute within sixty days from the date of its order and to satisfy it that he or they have done so. If the person or persons ordered to file a suit fail to comply with the order of the Mehkma Khas, the Mehkma Khas may: 1. If the arrears and other charges due from the owner have not been completely satisfied order them to be satisfied forthwith out of the proceeds of the sale available for the discharge of encumbrance and the remainder, if any, to be handed over to the owner of the property, 2. If the charges and arrears due from the owner have been completely satisfied, order the balance to be handed over to the owner of the property, and thereupon the proceedings shall be filed. (6) No claim filed after sixty days from the date of sale of the property shall be entertained on any excuse whatever. (7) If no claims are filed, the amount of the sale proceeds placed in deposit shall be utilised in satisfying the balance, if any, of the arrears and other charges remaining unsatisfied and the remainder, if any, handed over to the owner of the property. " For the facility of comparison and for appreciating the question of repeal we may notice the important provisions of the Rajasthan Act as well. The Rajasthan Act received the assent of the President on 25. 1. 52. Its preamble ran as under: "an act to consolidate and amend the law relating to the recovery of public demands in (the State of Rajasthan ). Whereas it is expedient to consolidate and amend the law relating to the recovery of public demands in (the State of Rajasthan ). Sec. 2 of the Act defines "certificate", to mean a certificate filed under this Act. Sec. 2 (5) defines what is a public demand and it runs as under: - "sec. 2 (5) public demand" means any arrear of money mentioned or referred to in the schedule of this Act, and includes any interest which may by law be chargeable thereon upto the date of the signing of a certificate in respect there of under sec. 4". The definition makes the schedule part of this definition and only item No. 6 thereof is important, which provides that any money payable to the Govt. under, or in pursuance of a written instrument is a public demand. Sec. 6 provides for issuing of a requisition for recovery and on receipt of such a requisition it is the Collector who has to issue the certificate for making the demand. This section requires the Collector to send a notice together with the certificate to the defaulter.
(3.) SEC. 8 enables a defaulter to file an objection before the Collector against the proposed recovery. The objections are to be heard and an order is required to be passed thereon and till then all proceedings in pursuance of the certificate are stayed. SEC. 8 runs as under: - "sec. 8. Petition denying liability:- - The defaulter may, within thirty days from the service of the notice under sec. 6 or where the notice has not been duly served, within thirty days from execution of any process for enforcing the certificate, present to the Collector, issuing (the notice) a petition in the prescribed form signed and verified in the prescribed manner denying his liability in whole or in part, (on the ground that the demand is not recoverable under his Act or that its recovery but suit is barred by any law for the time being in force ). (2) A Collector to whom, a petition has been presented under sub-sec (1) shall (xxx) where the certificate has been transmitted to such Collector under sec. 5 (xxx) forward the petition (to the Collector in whose office the certificate has been originally filed ). (3) The Collector in whose office the certificate was originally filed shall hear and determine the petition and may set aside, modify or vary the certificate, if necessary, in accordance with his decision ). (4) Proceedings under the certificate shall be stayed pending the determination of a petition presented under this section. " There is then a provision for mode of execution of certificates. Sec. 13, which provides for it, runs as under: - "sec. 13. Modes of execution: - Subjct to the other provisions of this Act the amount due under certificate may be recovered in one or more of the modes (specified in sec 228 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956 and the provisions of that Act shall apply as if such amount were an arrear of land revenue due from the defaulter. " Sec. 20 provides for the filing of suits for cancellation or modification of certificates. Sec. 23 (A' provides for an appeal, and sec. 23 (B) provides for revision and these sections may also be reproduced hereunder; "sec. 23 (A) Appeal (1) -An Appeal from (an Order made by the Collector under Sec. 8 or Sec. 19 (A) shall lie to the (Revenue appellate authority) (2) Subject to the provisions contained in sec. 5 of the Indian Limitation Act IX of 1908), every such appeal shall be presented within thirty days from the date of the order. (3) No appeal shall lie from any order of the (revenue appellate authority) passed on appeal. " "sec. 23 (B) Revision. The Board of Revenue shall have power to revise any order made under this Act by any officer subordinate to the Board. " 17. Sec. 30 is a saving provision about other laws and as considerable argument centred round this provision it may also be reproduced: - "section 30. Saving of other laws : - (1) The Powers given by this Act or the rules made thereunder shall be deemed to be in addition to and not in derogation from any powers conferred by any other law for the time being in force (2) Nothing in this Act shall be construed - (a) To impair any security, provided by any other enactment for the time being in force, for the recovery of any due, debt or demand, to which the provisions of this Act for the recovery of any due, debt or demand to which the provisions of this Act are applicable, and, except where expressly so provided, no legal remedy shall be affected by this Act are applicable, or (b) To authorise the arrest or detention in the Civil Prison of any person for the recovery of any tax payable to a local authority. " It will be noticed that the Rajasthan Act does not contain any repeal clause for repealing the corresponding laws of the erstwhile states forming Rajasthan and this is why the problem of interpretation has arisen in the case. Both sides have advanced their own interpretations and have placed before us quite a large number of decided cases. Were the Rajasthan Act to contain any repeal clause for doing away with the earlier laws, then there could not have been any controversy as already observed, between the parties on this question. The question, therefore, naturally arises whether the Marwar Ordinance can be taken to have been repealed by the Rajasthan Act by necessary intendment. The primary object of interpreting a statute is to get at the legislative intent. Of course, this has to be done on the plain language of the statute without doing violence to it in any manner, or by trying to unduly strain the words one way or the other. Where there is no repeal clause one has to start with the thought that perhaps the Legislature did not like to repeal the earlier laws. But, this will not be the decisive consideration by any means for finding out the real intention of the Legislature. The scheme of the statute as a whole has to be seen and then each provision of the statute has to be properly appreciated in the background of the scheme of the statute. It is also true that in the absence of an express repeal there have to be strong reasons for coming to the conclusion that the Legislature intended to repeal the earlier laws. Also, it has to be seen whether the two statutes are so repugnant to each other that they cannot be permitted to co-exist without defeating the intention of the Legislature in enacting the later law. In Municipal Council, Palai vs. T. J. Joseph (1) their Lordships of the Supreme Court in dealing with the question of repeal by implication observed as follows: "it is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is equally well-settled that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. This presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together. " In support of their view their Lordships quoted the following passage from Crawford Statutory Construction p. 633. "as laws a re presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Bowen vs. Lease, 5 Hill 226. It is a rule says Sedgwick, that general statute without negative words will not repeal the particular provisions of a former one, unless the two Acts are irreconcilably inconsistent. "the reason and philosophy of the rule, 'says the author" is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject, in a general manner, and not expressly contradicting the original Act, shall not be considered as intended to effect the more particular or positive previous provisions, unless it is absolutely necessary to give latter Act such a construction in order that its words shall have any meaning at all. " Their Lordships further indicated as to how the matter is to be approached when the Court is faced with the problem of interpreting the statute covering the same subject matter. It must be remembered that at the basis of the doctrine of implied repeal is the presumption that the legislature which must be deemed to know the existing law did not intend to create any confusion in the law by retaining conflicting provisions on the statute book and, therefore, when the court applies this doctrine it does no more than give effect to the intention of the legislature ascertained by it in the usual way i. e. by examining the scope and object of the two enactments, the earlier and the later. " Maxwell has further pointed out one more principle that where a new right is created by the subsequent statute then, the earlier statute should be taken to have been repealed we may quote the following passage occurring at p. 161, of 'maxwell Interpretation of Statutes' 11th Ed. "a later Act which conferred a new right would repal an earlier right, if the co-existence of such right, would produce inconvenience, for the just inference from such a result would be that the legislature intended to take the earlier right away. " ;