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1961 Second Appeal No. 226 of 1955, decided on 2nd August
[as amended by Bengal Embankment (Amendment) Act (VI of 1945)], S. 7 (la) ‑Proceedings commenced and work completed during interregnum between expiry of Act and promulgation of East Bengal Ordinance (XVII of 1948)‑Proceedings, though un-authorised, legalised by East Bengal Laws (Amendment and Repeal) Act (V of 1950).
Ss.25 & 89-A [as inserted by East Bengal Ordnance (XVI of 1951)]‑Existence of emergency under S. 25‑Subjective satisfaction of Collector‑Propriety of order under S. 25‑Not justiciable in Civil Court.
Ss. 51, 52 & 68‑Provisions mandatory‑To be complied with absolutely.
S. 37, 34 & 89‑A‑Certificate made for amount not legally determined and found due‑Cannot be said to have been "duly filed" within meaning of S. 37‑Proceedings on basis of such certificate, without jurisdiction and liable to be cancelled under S. 34‑Sections 37 & 89‑A, no bar to Civil Court's jurisdiction.
S. 8‑Provisions attracted not only in case of repeal simpliciter but also in case of simultaneous repeal and re‑enactment unless contrary intention expressed in repealing law‑General Clauses Act (X of 1897), S. 6.
State of Punjab v. Mahan Singh Protap Singh A I R 1955 S C 84 and Dhanmal Parshotamdas v. Baburam Chhote Lal A I R 1936 All. 3 ref:
Md. Jane Alam for Appellant.
D. N. Dutta for Respondent.
This appeal by the Province of East Pakistan, the sole defendant is from the original decree passed against it in a suit for cancellation of the certificate in Certificate Case No. 8 of 1951‑52 of the Certificate Court at Feni in the District of Noakhali and for recovery of Rs. 11,361‑15‑6 by way of refund.
2. In order to appreciate the controversy, it is necessary to state certain facts which are either admitted or undisputed. These are as follows
3. There exist private embankments on both sides of the river Muhuri running through the Feni Sub‑division of the Noakhali District. During the unprecedented flood in August 1947, several breaches were caused on the embankment along the eastern bank of the Muhuri river The Executive Engineer (Irrigation as directed by the Chief Engineer), visited the locality and submitted a report on 29‑2‑48 Exh. A (2) stating that the breaches caused on the embankment urgently required to be closed and suggested that the work might be done under section 7 of the Embankment Act, 1882 and estimated cost at Rs. 32,753. The Superintending Engineer, by his Memo. No. 1655‑G., dated 27‑3‑48 Exh. A forwarded to the Collector of Noakhali a copy of the report of the Executive Engineer and suggested that as the embankment concerned is a private embank ment, the initiative for closing the breaches lay with the Collector. He further suggested that in the event of any apprehension of danger to life and property from delay in the execution of the work, the Collector might take action under his Emergency power under section 25 of the Embankment Act, 1882. Then on 3‑4‑48, the Provincial Government by notification Exh. B, empowered the Collector under section 15 of the Embankment Act to proceed with the repairs of the embankment under the ordinary procedure without previous reference to any superior authority. On 28‑4‑48, the Collector started Embankment Case No. 172 R. M. of 1948‑49. At the instance of the Collector, the Kanungo inspected the locality and submitted a report on 3‑5‑48 Exh. 2 stating that some of the breaches on the embank ment were already repaired by the villagers and the costs of executing the remaining work would be between Rs. 2,000 and Rs. 4,000. This report was not accepted, and the S. D. O., Feni was asked to submit plans, specifications and estimates in respect of the breaches to be closed. On 8‑5‑48, the S. D. O. submitted a report Exh. C saying that the work done by the local people was negligible and that there was no prospect of the work being done by the voluntary labour or by raising local subscription and estimated the total cost at Rs. 16,165 Exh. C (1) as against the Executive Engineer's estimate cost of Rs. 32,753. On 12‑5‑48, the Collector accepted the estimate of cost given by the S. D. O. and recorded an order that unless the breaches were repaired immediately before the monsoon set in, crops were likely to be damaged seriously as in the previous years, with grave danger to life and property. Accordingly, the Collector drew up proceedings on 13‑5‑49 under the emergency provision of section 25 of the Embankment Act Exh. 1. On the same date, notice under section 8 of the said Act Exh. M. was issued, and the power to hear and decide objections under sections 10 and 11 was delegated by the Collector to the S. D. O. in pursuance of section 88 of that Act Exh. H. Moreover, the S. D. O. was entrusted with the supervision of the work of repairs to the affected embankment Exh. J. After hearing objections under section 10, the S. D. O. submitted his report Exh. K on 3‑10‑48. Meanwhile, the work of repairs undertaken under the emergency provision of section 25 was completed, and the S. D. O. submitted a completion report Exh. E, together with a statement of expenditure Exh. E (1) and a statement of accounts Exh. (2) showing that only a sum of the Rs. 10,986‑4‑0 out of the sanctioned amount of Rs. 16,165 had been spent.
4. The above expenditure of Rs. 10,986‑4‑0 was accepted by the Collector, and it was at that stage that the real trouble arose between the parties. The allegation of the plaintiff‑respon dent is that the Collector, without complying generally with the provisions of Part VI of the Embankment Act relating to cost of works and particularly with the provisions of sections 52, 53, 56, 59 and 61 of that Chapter at once authorised the S. D. O., Feni to realise the cost of repairs by having recourse to pro ceedings under the Public Demands Recovery Act, 1913. Accordingly, the S. D. O. started Certificate Case No. 8 of 1951‑52. The plaintiff filed an objection against the certificate denying liability, but it was rejected, and an appeal against the said order of rejection was dismissed by the Collector on 6‑11‑51. Thereafter some movables of the plaintiff were attached in pursuance of the certificate whereupon the plaintiff was obliged to deposit Rs. 11,361‑15‑6, the total amount of the certificate. His contention, therefore, is that lie could riot be saddled with any liability for the cost of repairs before compliance with the provisions of the aforesaid sections of the Embankment Act and that those provisions not having been complied with, the certificate proceedings were premature, bad in law and without jurisdiction. Besides, he challenges the Collector's jurisdiction to undertake the repair work under section 25, read with section 7 of the said Act on the ground that there was no emergency necessitating action under said section 25.
5. It was mainly on those grounds that the plaintiff, after he had served the defendant with a notice under section 80, C. P. Code, instituted the Other Class Suit No. 34 of 1952 in the Court of the Subordinate Judge, Noakhali on the 7th July 1952, with the prayer for cancellation of the certificate and refund of Rs. 11,361‑15‑6.
6. The defendant‑appellant contested the suit denying the aforesaid contentions of the plaintiff‑respondent and pleaded that the work relating to the repairs of the affected embankment was undertaken by the Collector in accordance with law and that the provisions of the Embankment Act were substantially com plied with. The defendant further pleaded that the Civil Court has no jurisdiction to entertain the suit is barred by limitation and also under the provisions of the Public Demands Recovery Act.
7. The trial Court rejected the defence and decreed the suit as respects the prayer for recovery of Rs. 11,361‑15‑6 mainly on the ground that certain mandatory provisions of the Embank ment Act were not complied with. The present appeal by the defendant is from the said decree.
8. Admittedly the embankment on which the breaches were caused is a private embankment. The Embankment Act, 1882 (hereinafter called "the Embankment Act"), did not originally provide for repairs of private embankments. The necessity for repairs of private embankments having been felt, clause (la) was added to section 7 of the Embankment Act by 1945 Bengal Em bankment (Amendment) Act, the (Bengal Act VI of 1945). The said clause (la) runs thus:
"(la) that embankment which connects public embankment or forms by junctions with them part of a line of embankments or is necessary for the protection of the neighbouring country, should be repaired";
Thus the provision for repairs of embankment under the Embank ment Act was made for the first time by Bengal Act VI of 1945 with effect from the date of coming into force of that Act on the 12th June 1945. Now, Bengal Act VI of 19.15 was a Governor's Act made under section 93 of the Government of India Act, 1935, as originally enacted. A Governor's Act made under the said section 93 was of limited duration. On the 6th September 1948. The Governor of East Bengal promulgated ordinance No. XVII of 1948 by which clause (la) as quoted hereinbefore was re‑incorporated in section 7 of the Embankment Act and the action already taken under the Bengal Act VI of 1945 were preserved by section 2 of that Ordinance. These facts imply that the Bengal Act VI of 1945 which was of limited duration expired before the 6th September 1948 on which date the East Bengal Ordinance No. XVII of 1948 was promulgated. In these cases, the Collector drew up proceedings under section 25 of the Embankment Act on 13‑5‑48 and issued the notice under section 8 thereof on the said date. As, however the Bengal Act VI of 1945 appeared to have expired sometime before the 6th September 1948, we asked the learned Advocates of both the parties to ascertain when Bengal Act VI of 1945 actually expired and whether the East Bengal Ordinance No, XVII of 1948 was replaced by any Act of the Legislature and the pro, visions thereof were continued in operation by such an Act. We accordingly adjourned the case for enabling the learned Advocates to ascertain the correct position of those enactments but it has not been possible for the learned Advocates to throw much light on that point. However, the legal position, as far as we have been able to ascertain, appears to be as follows: ---- Section 93 of the Government of India Act, 1935, as originally enacted provided for assumption of power by the Governor of the Province in emergencies. Subsection (4) of section 93 was as follows :‑
"(4) If the Governor, by a Proclamation under this section, assumes to himself any power of the Provincial Legislature to make laws, any law made by him in the exercise of that power shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the proclamation ceases to have effect, unless sooner repealed or re‑enacted by Act of the appropriate Legislature . . . . ."
It appears from the preamble of the Bengal Act VI of 1945 that the Proclamation under section 93 of the Government of India Act 1935 was made on the 31st day of March 1945, and that the said Act was made by the Governor under the said section on the 12th June 1945. The Proclamation under section 93 was revoked on the 24th April 1946 by the subsequent Proclamation No. 3205, dated 24‑4‑46, published in Calcutta Gazette, Extra ordinary Part I of the said date. Thus the Proclamation having been revoked on 24‑4‑46, the Bengal Act VI of 1945 was to remain in force up to the 23rd of April 1948. Meanwhile, India was partitioned, and the Government of India Act, 1935 was adopted on the 14th August 1947 by the Pakistan (Provisional Constitution Order 47, G.‑G. O. No. 22 of 1947 of section 93 the Government of India Act, 1935, was omitted by the' said G.‑G. O. No. 22 of 1947, but Article 6 of the said G.‑G. O. saved all Governor's Acts under section 93 then in force. The said Article 6 is as follows: --‑
"6. Where any law made by the Governor of a Province by virtue of section 93 of the Government of India Act 1935, is in force immediately before the appointed day, the said law, notwithstanding that the said section is directed to be omitted in the Schedule to this Order or that by reason of such omission a Proclamation under the said section ceases to have effect, shall remain in force for the period for which it would have remained in force if the said section had been at all material times in operation."
9. Thus the Bengal Act VI of 1945 by which clauses (la) was added to section 7 of the Embankment Act remained alive up to the 23rd of April 1948. In the present case, the proceeding under the Embankment Act commenced on 13‑5‑48 and the work of repairs was completed on 8‑648. As already said, the East Bengal Ordinance No. XVII of 1948 was promulgated on 6‑9‑48. Thus, the proceedings under the Act commenced and the work was completed at a time when neither the Bengal Act VI of 1945 nor the Ordinance No. XVII of 1948 was in operation. As there was no provision for undertaking the repairs of private embankments except under clause (la) to section 7 of the Embankment Act as inserted by Bengal Act VI of 1945, the proceedings taken by the Collector under that Act and the repairs made to the private embankment in question in pursuance of such proceedings were apparently unauthorised. It, however, appears that the illegality involved was cured by subsequent legislation namely, the East Bengal Laws (Amendment and Repeal) Act 1949 (East Bengal Act V of 1950), By the first Schedule to the said Act clause (la) relating to the repair of private embankments was re‑introduced in section 7 of the Embankment Act. The East Bengal Act V of 1950 was given retrospective effect from the 1st day of April 1948, by subsection (2) of section 1 of that Act. Thus clause (la) of section 7 relating to the repair of private embankments shall be deemed to be in the statute book from 14‑4‑48 under the provisions of the East Bengal Act V of 1950. Consequently the proceedings taken by the Collector under the Embankment Act and the closing of the breaches on the private embankment in, question shall be deemed to have been duly done because of the retrospective effect of the East Bengal Act V of 1950.
10. With regard to the Collector's power to cause repair of the private embankment in question, the learned Subordinate Judge stated as follows :‑
" . . . . by section 2 of this Ordinance (East Bengal) Ordinance No. XVII of 1948), power of the Collector to cause repair works in the private embankment was given retrospective effect, or in other word, all repair works done in the private embankments in between the enactment of Bengal Act VI of 1945 and the promulgation of this Ordinance should be deemed to have been done under the Ordinance as if this Ordinance was in force at the time when the repair works were done."
11. Obviously, this view, as it will appear from the fore going discussions, is erroneous. However, the proceedings taken by the Collector, though initially unauthorised, were subsequently legalised by the Bengal Act V of 1950.
12. Admittedly, several breaches were caused on the private embankment along the eastern bank of the Muhuri river during the unprecedented flood in August 1947. The Executive Engineer (Irrigation) held a local inquiry and submitted a report Exh. A (2) on 29‑2‑48 stating that an area of about 140 square miles was affected by the flood water out of which an area of about 78 square miles was severally affected. He further reported serious damage to crops and houses of the persons of the locality. He, therefore, recommended that the closure of the breaches was urgently necessary. The Collector then thought, it to be an emergent case and initiated proceedings under the emergency provision of section 25 of the Embankment Act instead of under the ordinary procedure. He recorded an order on 12‑5‑48 as follows :‑
"I am of opinion that unless the breaches are repaired immediately before the monsoon sets in, crops are likely to be damaged seriously this year too, with grave danger to life and other properties."
Accordingly, he drew up proceedings under section 25 of the Embankment Act on 13‑5‑48 Exh. 1, and issued notice under section 8 of that Act inviting objections, if any. It appears from the S. D. O's. report Exh. K that the plaintiff as the sole zamindar of the area raised an objection against the proceedings commenced under section 25 of the Act. The S. D. O. who had delegated authority to hear and decide objections under sections 10 and 11 of the Act overruled the plaintiff's objection. An appeal to the Collector against the S. D. O's. order was dismissed by the Collector by his order Exh. K (1). An appeal was preferred to the Commissioner against the order of the Collector, but the Commissioner dismissed the appeal Exh. K (2). The plaintiff then preferred an appeal to the Board of Revenue which too was ultimately dismissed Exh. K (3). Thus, the plaintiff having raised an objection against the proceedings under section 25 of the Act and having unsuccessfully fought up to the Board of Revenue can no more agitate that the proceedings taken by the Collector under section 25, read with section 7 was beyond the jurisdiction of the Collector. Moreover, the question with regard to the propriety of the proceedings under section 25 of the Act does not appear to be justiciable inasmuch as the satis faction as to the existence of an emergency, as the expression B "whenever the Collector shall be of opinion" occurring in section 25 shows is the Collector's subjective satisfaction. Apart from this, the Civil Court's jurisdiction to put such question to judicial test is expressly barred under subsection (1) of section 89‑A which runs thus :‑
"Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, no Civil Court shall entertain any suit, appeal or application relating to any act or work, the execution whereof is or has been under taken by the Collector under the provision of section 25".
The said section 89‑A was inserted in the Embankment Act by the East Bengal Ordinance XVI of 1951 promulgated on the 25th July 1951. Before the expiry of the said Ordinance, the Legis lature made the East Bengal Expiring Laws Act, 1951 (East Bengal Act XXXVIII of 1951) temporarily enacting, among others, the provisions of that Ordinance up to the 31st day of October 1952. The said date was subsequently extended the 31st day of March 1954 by the East Bengal Expiring Laws (Amendment) Act, 1952 (East Bengal Act VII of 1952). Meanwhile, the Embankment Act itself was repealed and re‑enacted on the 7th January 1953 by the East Bengal Embankment and Drainage Act, 1952 (East Bengal Act I of 1953), but it was brought into force on 2‑7‑53 by Notification No. 5‑1, dated 29‑6‑53, published in the Dacca Gazette of the 2nd July 1953. The East Bengal Act I of 1953 is now the only statute that embodies the law relating to the con struction, repairs, maintenance and management of embankments. Sections 24 and 70 of this Act I of 1953 correspond to sections 25 and 89‑A (1) of the repealed Embankment Act. Although section 89‑A (1) of the Embankment Act ousting the Civil Court's jurisdiction to question a work undertaken under section 25 stood repealed with the repeal of that Act the benefit of that section, in view of section 8 of the Bengal General Clauses Act, 1899, which will be discussed more fully later, is available to the proceedings that were pending on the date of the repeal. We shall hereinafter show that the disputed pro ceedings under section 25 of the Embankment Act were pending on the date of the repeal of that Act by the East Bengal Act I of 1953 and that those proceedings are still pending in law, although the work of repairs to the affected embankment was itself completed long before the repeal of the Embankment Act and the cost of such work was realised through certificate proceedings. The result, therefore, is that section 89‑A (1) of the repealed Embankment Act still applies to the present case and, as such, the Civil Court is not competent to question the propriety of the proceedings taken by the Collector under section 25 of that Act. As a matter of fact Mr. D. N. Dutta, the learned Advocate for the plaintiff‑respondent does not seriously press that the disputed proceedings under section 25 of the Embank ment Act were unwarranted and without jurisdiction. What, however, he seriously presses is that the provisions of Part VI of the Embankment Act and particularly the provisions of sections 52, 53, 56, 59 and 61 of that Part were not complied with in the present case and, as such, the plaintiff could not be saddled with any liability for the cost of repairing the embankment in question and consequently the certificate proceedings were premature, bad in law and without jurisdiction. Of the specific sections mentioned above, sections 56 and 59 which related to appor tionment of cost are not relevant. Undeniably, the plaintiff was the then sole Zamindar of the estate in which were situated the lands benefited by the closing of the breaches of the embankment. It is not the plaintiff's case that there were tenure‑holders under him, nor is there any evidence to show this. Hence, the liability for the cost of repairs was that of the plaintiff alone as the sole Zamindar of the area concerned under section 54 of the Embankment Act. Consequently, the question of compliance with the provisions of sections 56 and 59 relating to apportionment of cost did pot arise in this case. As regard sections 52, 53 and 61, there does not appear any material to show if the provisions thereof were complied with. We shall deal with these sections separately.
13. Section 52 is related to, and based on, the preceding section 51. According to section 51, the accounts of the actual expenses incurred in executing any works or repairs were to be prepared as soon as possible after the completion thereof. The Engineer was then required to sign a certificate stating, among others, the amount of all such expenses. On receipt of such certificate, the Collector was required to cause a statement to be prepared of the villages of which any lands were benefited by the works or repairs. Section 51 further required the deposit of such accounts, certificate and statement in the office of the Collector. After compliance with the provisions of section 51, the Collector was required under section 52 to give general notice of the deposit of the said accounts, the certificate and the statement in his office. Section 52 also required the giving of a special notice of such deposit on the zamindar or the tenure‑holder concerned in addition to a general notice and also provided for giving only a special notice instead of causing a general notice. Section 52 further provided as follows: ---
" . . . . . if within one month of such general notice being given, or of such special notice (if any being served on him, any interested person shall object to the accounts on the ground either that the work charged for has not been performed, or that the whole sum charged has not been expended, or that the rates of charge are higher than those mentioned in the estimates, the Collector shall inquire into such objection, and pass orders thereon."
In the present case, the S. D. O. under whose supervision the work of repairs was executed submitted accounts Exh. E (2) on 23‑9‑48, showing a total expenditure of Rs. 10,986‑4‑0 as against the sanctioned estimate of Rs. 16,165. It appears from the order‑sheet Exh. 1 of the relevant Embankment case that the accounts submitted by the S. D. O., Feni were sent to the S. D. O. (Irrigation) on 18‑I1‑48 with a request to examine them. But it does not appear from the order‑sheet if the Irrigation Engineer examined the accounts as requested and granted any certificate as required by section 51 of the Embankment Act; rather the orders in the order‑sheet made subsequent to 18‑11‑48 indicate the contrary. At any rate, there is no evidence what soever to show if any general or special notice was given by the Collector in this case as required by section 52 of the Embank ment Act. It appears from section 84 of that Act that an order passed by the Collector on an objection under section 52 was appeal-able to the Commissioner and the Commissioner's order passed on appeal was appeal0able to the Board of Revenue. That being so, the provisions of the said section 52 and consequently those of the related section 51 were mandatory. Any view to the contrary would negative the substantive right of appeal conferred by the statute and would, therefore, be untenable.
14. Section 53 required the making of an order by the Collector on the basis of the Engineer's certificate under section 51, specifying the total sum found payable for the work or repairs done. As the Engineer's certificate as to cost was wanting in this case, the question of the Collector's making an order under section 53 on the basis of such certificate did not arise.
15. Section 61 called for a direction by the Commissioner with regard to the payment of the cost by installments. Obviously, no such direction was made by the Commissioner. It appears that apart front the sections 51, 52, 53 and 61, the provisions of sections 58 and 68 were not‑also complied with. The Collector did not charge the sole Zamindar, namely, the plaintiff with the total amount payable as required by section 58. Nor did the Collector, on the completion of any such charge, made a final order contemplated by section 68. Now, section 68, like section 52, was appeal-able to the successive authorities named in section 84. Hence, the provisions of section 68 were equally mandatory.
16. It then follows from the foregoing that the mandatory provisions of sections 52 and 68 of the Embankment Act were not complied with in the case under consideration with the result that the plaintiff's liability for the cost of repairs of the embankment remained undetermined in law. It was stated in the written statement of the defendant‑appellant that there had been substantial compliance with the applicable law. Mr. Jane Alain, the learned Assistant Government Pleader also makes a submission to that effect. The law is that mandatory provisions of a statute must be complied with absolutely. In this case, the mandatory provisions of sections 52 and 68 were not complied with at all, not to speak of substantial compliance therewith. Thus, the fact remains that the plaintiff's liability for the cost of repairs of the embankment was not determined in accordance with law. Consequently there was no basis or foundation for the certificate made under the Public Demands Recovery Act for the realisation of the cost of repairs from the plaintiff. The said certificate having been made for an amount not legally determined and due from the plaintiff, the certificate cannot be said to have been "duly filed" within the meaning of section 37 of the Public Demands Recovery Act, and, as such, the proceedings taken on the basis of that certificate were without jurisdiction. Hence, the certificate is liable to be cancelled under section 34 of the Public Demands Recovery Act on the grounds stated in clauses (b) and (c) of subsection (1) of section 35 of that Act. Mr. Jane Alam submitted on behalf of the appellant that the suit is barred under section 37 of the Public Demands Recovery Act and, as such, the Civil Court is not competent to cancel the certificate. This contention cannot prevail. As already said, the certificate was not "duly filed" within the meaning of section 37 of the Public Demands Recovery Act. Therefore, the said section cannot operate as a bar to the Civil Court's jurisdiction to cancel the certificate.
17. Mr. Jane Alam submits that the suit is barred also under section 89‑A of the Embankment Act. We have already discussed that section. The said section ousted the Civil Court's jurisdiction to question a work undertaken under the emergency provision of section 25 of the Embankment Act, but did not debar the Civil Courts from entertaining a suit, like the present one, for cancellation of a certificate under the Public Demands Recovery Act and for refund of cost of such work realised through certificate proceedings.
18. As regards the plaintiff's prayer for refund of Rs. 11,361‑15‑6 realised from him through certificate proceedings, the prayer is tenable inasmuch as the said sum was realised on account of cost of repairs of the embankment without having complied with the mandatory provisions of sections 52 and 68 of the Embankment Act. But this does not mean that the plaintiff has no more liability to pay that actual cost of the repairs. The plaintiff was the sole Zamindar of the connected estate at the time of the repairs of the embank ment in question. Therefore, the cost of such repairs became his exclusive liability under the Embankment Act. But the cost is not recoverable from him until the total amount thereof is finally determined in accordance with the provisions of Part VI of the Embankment Act after compliance with the provisions of sections 51, 52 and 68 thereof. This gives rise to a question whether those provisions of the Embankment Act can be complied with at this stage and the cost of repairs of the embankment can be made recoverable under that Act even after its repeal by the East Bengal Act I of 1953. An answer to this question depends upon the legal effect of the repeal of the Embank ment Act, 1882 and its simultaneous re‑enactment by the East Bengal Embankment and Drainage Act, 1952 (East Bengal Act I of 1953). The effect of repeal of one Provincial Act by another is stated in section 8 of the Bengal General Clauses Act, 1899, the relevant part of which runs thus :‑
"Where this Act, or any Bengal or East Bengal Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not
(a)
(b)
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ;
(d)
(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability . . . . . . . as aforesaid ; and any such investigation, legal pro ceeding or remedy may be instituted, continued or enforced . . . . . as if the repealing Act had not been passed."
19. The preambular part of the said section 8 speaks of repeal simpliciter and not of simultaneous repeal and re‑enact ment. This is indicated by the word underlined in the above quotation. Hence, it may possibly be contended that section 8 of the Bengal General Clauses Act applies only to a case where a previous enactment has been simply repealed, but does not apply to a case like the one under our consideration, where there has been a simultaneous repeal and re‑enactment of a statute. Although such a contention found favour at one time, the same does no more hold the field. As, regards the effect of simultaneous repeal and re‑enactment, the following quotation from Crawford's Statutory Construction, 1940 edition, page 657‑58, seems appropriate:
"The authorities are divided as to the effect of simultaneous repeals and re‑enactments. Some adhere to the view that the rights and liabilities accruing under the repealed Act are destroyed, since the statute from which they spring has actually terminated, even though for only a short period of time. Others, and they seem to be in the majority, refuse to accept this view of the situation, and consequently, maintain that all rights and liabilities which have accrued under the original statute are preserved and may be enforced, since the re‑enact ment neutralizes the repeal, thereby continuing the law in force without interruption. Logically, the former attitude is correct, for the old statute does cease to exist as an indepen dent enactment, but all practical considerations favour the majority view."
The effect of simultaneous repeal and re‑enactment of a statute was considered by the Supreme Court of India in State of Punjab v. Mohan Singh Protap Singh (A I R 1955 S C 84). In that case, a question arose whether an offence committed under the East Punjab Ordinance No. VII of 1948 was punishable under the East Punjab Act XII of 1948 which repealed and re‑enacted the earlier Ordinance. Relying on the view of Solaiman, C. J. in Dhanmal Parshotamdas v. Baburam Chhote Lai (A I R 1936 All. 3) to the effect that section 6 (e) of the General Clauses Act, 1897 (this section 6 corresponds to section 8 of the Bengal General Clauses Act, 1899) would apply to those cases only where a previous law has been simply repealed and there is no fresh legislation to take its place, the East Punjab High Court answered the said question in the negative. On appeal, the Supreme Court of India took a different view and held as follows :‑
"Where there is a repeal of an enactment, the consequence laid down in section 6 of the General Clauses Act will follow unless, as the occasion itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposi tion that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section."
20. The above view was later re‑affirmed by the Supreme Court of India in the case of Indira Sohonlal v. Custodian of Evacuee Property, Delhi and others (A I R 1936 S C 77).
One of the important purposes of section 8 of the Bengal General Clauses Act is to protect rights and liabilities already accrued or incurred under the repealed enactment and to save the proceedings pending on the date of its repeal. That being so, the said section does not admit of any strictly technical interpretation which may frustrate its very purpose. It is true, the preambular part of section 8 speaks of repeal simpliciter and does not expressly render the section applicable also in the case of simultaneous repeal and re‑enactment. But a new statute law replacing an earlier one and re‑enacting the provisions thereof with or without modifications, nonetheless repeals the earlier H law. The correct legal position, therefore, is that section 8 of the Bengal General Clauses Act, 1899, comes into play not only where one enactment is simply repealed by another but also in the case of a simultaneous repeal and re‑enactment of a statute law, provided an intention to the contrary does not appear from the repealing law.
21. In the present case, the Embankment Act, 1882 has been repealed and re‑enacted by the East Bengal Embankment and Drainage Act, 1952. It appears that the latter Act have re‑enacted the provisions of the earlier Act including those of sections 25 and 89‑A (1) of that Act. It further appears that sections 24 and 70 of the latter Act respectively correspond to sections 25 and 89‑A (1) of the earlier Act. Thus, there is nothing in the repealing Act of 1953 which is capable of being construed as expressing an intention against the applicability of section 8 of the Bengal General Clauses Act to this case. According to clause (c) of section 8 any right or liability accrued under the repealed law remains unaffected by the repealing law. Besides, clause (e) of that section saves all proceedings under the repealed law that remained pending on the date of its repeal and provides for continuance of those proceedings in accordance with the provisions of that law. In the present case, the liability to pay the cost of repairs to the embankment, according to the provisions of the Embankment Act fell on the plaintiff as the then sole Zamindar of the area concerned, although the extent of that liability was not lawfully determined under Part VI of that Act. The proceedings taken by the Collector under section 25 of the Embankment Act, therefore, remained incomplete and pending on the date of repeal of that Act, although the repair work itself was completed long ago. There is no time‑limit for compliance with the provisions of Part VI of the Embankment Act. Hence, those proceedings under section 25 of the Embank ment Act which are still alive under clause (e) of section 8 of the Bengal General Clauses Act can be proceeded with and the cost of repairs finally determined and charged in accordance with the provisions of the repealed Embankment Act, as if that Act were not repealed at all. As a corollary, section 89‑A (1) of the Embankment Act, which ousted the Civil Court's jurisdiction to question a work undertaken under section 25 of that Act, shall, in spite of its repeal, apply to those proceedings as before.
22. After the cost of repairs of the embankment in question has been finally determined and charged in accordance with the provisions of Part VI of the repealed Embankment Act, the same shall be recoverable as a public demand under section 70 of that Act. Also subsection (1) of section 71 of the repealing statute, namely, the East Bengal Drainage and Embankment Act, 1952, provides a saving as regards recovery of such cost. Sub section (1) of the said section 71 runs thus :‑
The cost payable in respect of any act, work or repair which has, before the commencement of this Act, been completed under the provisions of the enactment repealed by section 2, shall, notwithstanding such repeal, be recoverable under the provisions of the enactments so repealed."
Thus, the proceedings taken under section 25 of the repealed Embankment Act still be proceeded with and the cost of repairs finally determined, charged and realised from the plaintiff in accordance with the provisions of that Act, although the defen dant‑appellant cannot succeed in this appeal.
23. This trial Court granted only the prayer for refund of Rs. 11,361‑15‑6 as claimed in the suit, but did not make any order as regards the prayer for cancellation of the certificate, The certificate proceedings having been found to be without juris diction, the certificate is liable to be cancelled.
24. In the result, the appeal is dismissed. The decree of the trial Court granting the prayer for recovery of Rs. 11,361‑15‑6 is armed. Besides, the certificate in Certificate Case No. 8 of 1951‑52 of the Certificate Court at Feni is cancelled. This, however, shall be without prejudice to the continuance of the proceedings taken by the Collector of Noakhali under section 25 of the Embankment Act, 1882 in accordance with the provisions of that Act, from the stage upto which those proceedings conti nued immediately before the filing of the certificate aforesaid. Having regard to the facts and circumstances of the case and the legal complexities involved in it, the parties are directed to bear their respective costs of this appeal.
K. B. A./A. H.
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