Andhra HC (Pre-Telangana)
K.N. Venkatarama Chetty And Another vs V. Lakshmiram Chetty And Others on 10 September, 1993
Equivalent citations: AIR1994AP47, AIR 1994 ANDHRA PRADESH 47, (1994) 1 CURLJ(CCR) 604
ORDER
1. The question that arises for consideration in this revision petition is, whether a suit insituted under the provisions of Section 77 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 ('old Act', for short) can be continued after the said Act was repealed by the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 ('new Act', for short) or, whether it should be treated as an appeal and continued under the new Act.
2. The petitioners instituted proceedings against the respondents before the Deputy Commissioner of Endowments which ended in favour of the petitioners. The respondents filed a suit OS No. 3/87 in the District Court, Chittoor, under Section 77 of the old Act. Subsequently, the new Act came into force with effect from 28-5-87 repealing the old Act. The petitioners filed IA No. 474/91 requesting the Court to determine the maintainability of the suit in view of the provisions of the Act, under which an appeal alone lay before the District Court against the order of the Deputy Commissioner and no suit is maintainable. The learned Judge dismissed the said application holding that suits instituted under the old Act can be continued and the suit laid by the respondents is maintainable.
3. The learned Counsel for the petitioners submitted that the suit instituted under the old Act, cannot be continued as the old Act was repealed and under Section 155(2)(d) of the new Act, which deals with repeals and savings, the proceeding which was pending at the time of commencement of the new Act, can be continued as if the proceedings in respect of which the remedy is sought, had been instituted under the new Act. He submits that there is no provision under the new Act, enabling a party aggrieved by the decision of the Deputy Commissioner to institute a suit and on the other hand, the aggrieved party can only file an appeal to the District Court under Section 88 of the new Act against the decision of the Deputy Commissioner. He contends that the object of the new Act is to provide for speedy disposal of the disputes and other proceedings and that is the reason why the legislature thought it fit to do away with the remedy of a suit by providing an appeal, to avoid unnecessary delay in the determination of disputes.
4. The learned Counsel for the respondents contended that there is no specific bar provided under the new Act for the continuance of suits instituted under the old Act and that by virtue of the provisions of the General Clauses Act, suits instituted under a repealed Act can be continued. He further contended that the right to institute a suit had already accrued to the respondents and they cannot be denied of the right to continue the suit and also further right of an appeal. He submits that to hold otherwise, would deprive the respondents of their right to establish their contentions before a civil court by leading evidence and that the provision of an appeal is not as efficatious as a suit.
5. The suit was instituted by the respondents, having been unsuccessful before the Deputy Commissioner in the proceedings under Section 77 of the old Act. The corresponding provision to Section 77 of the old Act is Section 87 of the new Act, relating to inquiries and the power of the Deputy Commissioner to decide certain disputes. The old Act enables an unsuccessful party to institute an appeal in the District Court against the decision of the Deputy Commissioner, under Section 77. Under the new Act, a significant departure is made with regard to the remedy provided to an unsuccessful party before the Deputy Commissioner. Section 88 of the new Act provides for a further remedy to the aggrieved party and it reads as follows:
"Section 88 : Any person aggrieved by the decision of the Deputy Commissioner or the order of the Commissioner under Section 87 and the decision of the Commissioner under Section 119 may, within ninety days from the date of receipt of the decision prefer an appeal to the District Court and within the limits of Municipal Corporation of Hyderabad to the Chief Judge, City Civil Court."
It is therefore, clear that the remedy of a suit against the decision of the Deputy Commissioner is no more available to an unsuccessful party under the new Act, which specifically provided a right of appeal to the District Court or to the Chief Judge, City Civil Court, as the case may be. The proceedings before the Deputy Commissioner is treated as original proceedings and right of appeal is given to the aggrieved party. Under the old Act, the matter could be reagitated before the District Judge by way of filing a suit, enabling adduction of evidence once again after the' enquiry before the Commissioner was terminated. The relevant provision of Section 155(2)(d) of the new Act, which is the repealing and saving provision, is in the following terms:
"15 (1): The Andhra Pradesh Charitable Hindu Religious and Institutions and En-
dowments Act, 1966 and the Tirumala Tirupathi Devasthanams Act, 1979, are hereby repealed.
(2) Notwithstanding such repeal -
(a)..................................
(b)................................
(c)..............................
(d) any remedy by way of right of application, suit or appeal which is provided by this Act, shall be available in respect of proceedings under the repealed Acts pending at the commencement of this Act, as if the proceedings in respect of which the remedy is sought had been instituted under this Act.
While repealing the old Act, the remedy availed under the old Act and the proceedings initiated under the old Act and pending at the commencement of the new Act, can be continued by the remedies provided under the new Act under clause (d) of sub-section (2) of Section 155 of the new Act. The remedies available under the new Act, as indicated by the said provision, are by way of right of application, suit or appeal which is provided by the new Act. In other words, if there is a right to making an application or of instituting a suit or appeal provided under the new Act by way of remedy such a remedy will be available for continuing the proceeding which was pending at the commencement of the new Act and will be deemed to be a proceeding in respect of the remedy by way of a suit instituted under the new Act. The remedy which was available for an aggrieved party against a decision of the Deputy Commissioner under the old Act, was to institute a suit. The remedy now available to an aggrieved party under the new Act is by filing an appeal against the order of the Deputy Commissioner. A suit which was instituted under the old Act is a proceeding which was pending on the date of commencement of the new Act, and the remedy provided under the new Act against such a proceeding, namely, ah appeal, is now available to the aggrieved party and the suit will have to be continued as an appeal instituted under the new Act. The contention of the learned Counsel for the respondent based on Clauses (8) and (18) of the A. P. Geneal Clauses Act, 1891, cannot be accepted. Chapter II, dealing with general provisions, is made applicable only to future Acts of the State of Andhra Pradesh made after the commencement of the General Clauses Act, unless a contrary intention appears in such Acts. Clause (8), saves the actions taken and things done under the repealed Act, which ' elude the rights, privileges, obligations or liabilities which are acquired, accrued or incurred and various other things, including legal proceedings or remedies availed under the repealed Act. Act virtue of clause (4), clause (8) is made inapplicable where a contrary intention appears from the repealing Act. It is, therefore, necessary to see whether the new Act expresses an intention contrary to the old Act, in so far as the availability of a remedy of a suit against the order of the Deputy Commissioner is concerned. Under the old Act, as observed earlier, a suit could be instituted. Under the new Act, no remedy by way of a suit is provided and instead, a right of appeal is provided. Once there is no right to file a suit is provided under the new Act, the right to institute a suit cannot be availed under the new Act. Under clause (d) of sub-section (2) of Section 155 of the new Act, a specific remedy by way of right of appeal is provided and it is also specifically mentioned that a proceeding pending at the commencement of the new Act will be deemed to be a proceeding as provided under the new Act. The remedy provided under the new Act being an appeal, the suit instituted under the old Act, shall be deemed to be an appeal filed under the Act and can be continued as an appeal. Clause 18 of the General Clauses Act has no application as it deals with references to provisions in Acts repealed and reenacted.
6. In Indira Sohanlal v. Custodian of Evacuee Property, it was held that, where the repealing section of the fresh enactment, which purports to indicate the effect of the repeal on previous matters, provides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self-contained and indicative of the intention to exclude the application of Section 6 of the General Clauses Act. Section 6 of the General Clauses Act, 1897 (Central Act X of 1897) as considered by the Supreme Court and it was held that when the provision of the new Act is self-contained, it is indicative of the intention to exclude the application of Section 6 of the General Clauses Act. Similar view was expressed in M/s. Munshi Lal Beni Ram Glass Works v. Shri S. S. Singh Asstt. Labour Commissioner, in holding that Sect ion 6 would apply to cases even if there is a simultaneous enactment unless a contrary intention appears from the new enactment. As observed earlier, a reading of clause (d) of sub-section (2) of Section 155 of the new Act would reveal a contrary intention, which excludes the continuance of a suit instituted under the old Act.
7. Dealing with the new remedy provided by way of a revision under Rule 75-A of the Andhra Pradesh (Andhra Area) Village Officers Service Rules, 1969 this Court in Kothapalli Malla Reddy v. The Govt. of A.P., 1978 (1) SLR 461 : AIR 1977 NOC 320(AP) opined that when a new remedy is given, a party can take advantage of it so long as the proceedings are pending and have not become final.
8. It was contended for the respondent, basing on Garikapati Veerayya v. N. Subbaiah Choudary, that institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit, and that the respondent has a right to continue the suit instituted by him as he has a vested right. The Supreme Court held therein that the vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment. It was no doubt held that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding, The provision made in the new Act to the effect that the proceedings instituted under the old Act will be continued as an application, suit or appeal under the new Act, took away the right of the plaintiff in the suit instituted under the old Act to continue the suit by necessary implication.
9. The court below was in error in holding that the suit instituted by the respondent under the old Act would continue. The suit should be treated as an appeal, as provided under Sections 87 and 155 (2)(d) of the new Act, and should be heard as such the revision petition is accordingly allowed. No costs.
10. Revision allowed.