Gunepally Thammayya v. Rajah Tyadapusapati Khandendu Dhora

1. These second appeals have been referred to me by My Lord the Chief Justice on account of the difference of opinion between my brothers Anantakrishna Aiyar and Curgenven, JJ., who first heard them. They are filed under the Agency Rules applying to the Scheduled Districts.

2. The Zamindar of Pachipenta filed suits for rents under Section 77 of the Madras Estates Land Act against his ryots and they were decreed by the Assistant Agent. The ryots filed appeals to the Agent to the Governor at Vizagapatam. These appeals were filed more than thirty days but within six weeks after the decrees. The time prescribed for appealing against a decree for rent to the District Collector is thirty days under Section 191 of the Madras Estates Land Act, and six weeks under Rule 56 of the Agency Rules. The Collector dismissed the appeals on the ground that they were barred by limitation applying Section 191 of the Madras Estates Land Act. The ryots filed these second appeals against those decrees. The question is which rule ought to be applied.

3. The first point argued by the learned Advocate for the respondent is that Rule 56 of the Agency Rules does not apply at all to appeals under the Estates Land Act, and only Section 191 of the Act applies, and there is no question of conflict between the two sections. This argument does not seem to have been addressed before the learned Judges, or any rate, if it was, they apparently have not agreed with this contention. The contention is based on the fact that Rule 1 defines the powers of the Agents and Assistant Agents followed by the heading "Civil Justice" which is the heading of the rules from Rule 2 onwards. The learned Advocate contends that "Civil Justice" excludes judicial matters in Revenue Courts, that is, he takes the words "Civil Justice" in a narrow sense, namely administration of justice before ordinary civil courts of the land, such as the District Munsif, Subordinate Judge, District Judge and the High Court and Courts corresponding to them. But of course the word "Civil" has two senses--the narrow sense contended for by the Advocate and a larger sense, that is, as opposed to criminal only. In the Agency Rules of 1860, which were superseded by the present Agency Rules which were passed in 1924, the first six rules related to criminal justice and from Rule 7 onwards they related to civil justice including Revenue Courts (vide Rule 10). When the Criminal Procedure Code of 1862 was passed the first six rules were repealed as the Code applied to the Agency tracts. But the rules from Rule 7 onwards remained in force up to 1924, when they were superseded by the present rule; and a perusal of the present rules show that they were based on the former rules from Rule 7 onwards. This comparison leads one to the view that the heading "Civil Justice" is used in the larger sense.

4. But the same conclusion can be reached without an examination of the former Agency Rules. Rule 1, sub-clause (2) says that the Agent to the Governor will have the same powers as are vested in the District and Revenue Courts in the ordinary districts and the Agency Divisional Officers will have the same powers as the Subordinate and Revenue Courts for the trial and determination of suits. That means that, for revenue suits also, the Agents and the Agency Divisional Officers were constituted Courts under whatever enactment the revenue litigation may arise. This paragraph is not confined to the Estates Land Act. Then the section says that these powers are vested "subject to the modifications contained in these rules," that is, the powers conferred upon the District, Subordinate and Revenue Courts under the enactment under which the litigation may arise are conferred upon the Agents and Agency Divisional Officers, but subject to the modifications contained in the Agency Rules, that is, rules from Rule 2 onwards to the end. By the express language of these rules, therefore, Rules 2 to 56 apply to the Agents and Agency Divisional Officers exercising the powers of Revenue Courts. Whether this provision is valid or is ultra tires is of course another matter. But on the face of the rules, Rule 56 applies to the Revenue Courts.

5. The next question is whether Rule 56 prevails over or otherwise stands in the place of Section 191 of the Estates Land Act; and this question was considered by the learned Judges who first heard the second appeals from the point of view whether the rule is ultra vires. Before I address myself to this point of view, I wish to approach this question from another point of view, namely, that perhaps such a question, namely, whether Rule 56 is ultra vires does not arise at all. For this purpose I proceed to refer to the old Agency Rules which were passed in 1860. In 1898 there was a notification of the Government extending the Rent Recovery Act (the Act repealed by the Madras Estates Land Act) to the Agency tracts. But under that Act there were no suits for rent but suits to cancel distraints lay before a Collector and appeals against the decrees of the Collector lay to the District Collector, in lieu of whom, we have got the Agent to the Governor in the Agency tracts. The question might have arisen whether the time for appeal is the thirty days provided in the Rent Recovery Act or the six weeks provided by the then Agency Rules. I am not aware of any case in which the point has actually arisen and to discuss it now is unnecessary. Matters continued like this up to 1908 when the Rent Recovery Act was repealed and the Estates Land Act was passed, and it applied also to the Agency traets. section 208 of that act contains a provision somewhat similar to Rule 1, sub-clause (2) of the present Agency Rules, that is, the Agent would be the District Collector or the District Judge and the Agency Divisional Officer would be the Collector for the purpose of the Estates Land Act. Under Rule 16 of the old Agency Rules the time allowed for an appeal to the Agent was six weeks.

6. I now proceed to discuss the question whether in 1908, when the Estates Land Act was passed, Section 191 of the Estates Land Act superseded Rule 16 of the old Agency Rules for the purpose of appeals to the Agent under the Act or whether Rule 16 continued to be in force unaffected by Section 191.

7. At first sight it may appear as if it is the same question as the question whether Rule 56 of the present Agency Rules should prevail over Section 191 of the Estates Land Act. But it is not the same question. In 1908, when the Estates Land Act was passed, it came after the Agency Rules. In 1924, when the new Agency Rules were made, they came after the Estates Land Act, and from the point of view of the question whether the Agency Rules are ultra vires, this makes a considerable difference. So it is not the same question; and as, if it can be answered in a particular way with reference to the old Agency Rules, the other question does not arise at all, I proceed to discuss it.

8. Both Rule 16 and Section 191 have got statutory force. One is an actual section of an Act and the other is a rule passed under statutory powers. The general rule is, the later statute repeals the earlier Statute, if both are equally general. But this rule is subject to an exception that, if the later Act is a genera) Act, but the earlier Act is a special Act, the earlier Act is generally not repealed by the later Act. Vide Craies on Statute Law, p. 316, citing Seward v. "Vera Cruz" (1884) 10 A.C. 59. In the present case, undoubtedly from one point of view the Agency Rules are special and the Estates Land Act is general. The Agency Rules apply only to a small area, Ganjam, Vizagapatam and Godavari, that is, they are similar to a local Act, whereas the Estates Land Act applies to the whole Presidency. But it is suggested by the learned Advocate for the respondent that the Estates Land Act is special and the Agency Rules are general from another point of view, that is, the Estates Land Act relates to the relationship between the landlords and the tenants but the Agency Rules do not relate to any particular class of suits but generally to all suits within the Agency tracts of whatever nature they may be. In this sense, no doubt the Agency Rules are general and the Estates Land Act is special. But in this sense, unless all the statute law of a country is contained only in one Code, most Acts are special even if they refer to a very large area; for instance, the Contract Act, the Specific Relief Act and the Transfer of Property Act, though they apply to the whole of India, are all special Acts because they relate only to certain branches of the law of the country. 27. The question then arises, when there is a conflict between two such special Acts each of which may be described as special in some particular sense, how far the later Act should prevail over the earlier Act. In such cases, it would seem that the rule is that the Court should lean against repeal of the earlier Act by implication and, unless it is absolutely clear that the operation of the first Act has to be curtailed by the later Act, the previous Act should be held to continue in force, even though the later Act may be regarded as special in some other sense. Illustrations of this are afforded by the decisions cited by the learned Advocate for the respondent. For instance, in Mary Seward v. "Vera Cruz" (1884) 10 A.C. 59 first we had Lord Campbell's Act relating to claims for damages for loss of life by reason of a tort and later on the Admiralty Court Act of 1861 was passed giving jurisdiction over any claim for damage done by any ship. In this case it may be said that each Act is a special Act from one point of view but general from the other point of view. It was held that the jurisdiction under Lord Campbell's Act was not affected and the Admiralty Court Act had no jurisdiction tinder the second Act. At page 68 Lord Selborne says:

Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.

9. And he refers to the case of Hawkins v. Gathercole (1855) 6 De G.M. & G. 1 : 43 E.R. 1129. I may observe that he starts by saying: "Where there are general words in a later Act". He does not refer to the nature of the later Act, general or special. As I will presently show, though the Estates Land Act may be regarded as a special Act from one point of view, the provision in section 191 providing thirty days for first appeals is really a very general provision and not in the nature of a special provision.

10. In Kutner v. Phillips (1891) 2 Q.B. 267 first we had the City of London Court Act giving jurisdiction over defendants who had employment within the city, though they did not dwell or carry on business there, and then came the County Courts Act of 1888. It was held that the first Act was unaffected by the second one. In In re Smith's Estate. Clements v. Ward (1887) 35 Ch. 589 an earlier Act 43 Geo. 3, giving power to all persons to settle or devise lands or goods for any church, provided it was three months before death, was held not to be affected by the Married Women's Property Act, 1882, which gave absolute power to married women to dispose of property by will. Here the later Act is a special Act in the sense that it applied to married women and not to all persons, but the first Act is special in the sense that it dealt with property given to church, whereas the Married Women's Property Act dealt with all kinds of settlements and devises.

11. The general principle of a special Act not being repealed by a later Act was recognised by the Privy Council in a case from India in Unnoda Persaud Mookerjee v. Kristo Coomar Moitro (1872) 15 Ben L.R. 60 (P.C.) (Note). There their Lordships held that the rule of limitation under the Bengal Tenancy Act X of 1859 was not affected by the rule of limitation in Act XIV of 1859 which is a general Limitation Act. Now in that case, the first Act of course was a special Act as it related to the relation between the landholders and tenants in the Bengal Presidency, but from another point of view it may be said that the second Act is also a special Act because it relates only to one particular question of procedure, namely, limitation of actions, and does not deal with any substantial rights, whereas the earlier bengal tenancy act deals not only with a question of procedure but with questions of substantial rights also relating to landlords and tenants. But from the point of view of the area to which the Acts applied, undoubtedly the first was special and the second was not. Their Lordships after relying on the general rule as laid down in Fitzgerald v. Champneys (1861) 30 L.J. Ch. 777 : 70 E.R. 958 refer with approval to the Full Bench decision in Poulson v. Madhusudan Pal Chowdhry (1865) Beng. L.R. Supp. Vol. 101 (F.B.). In that case the learned Judges laid stress on the fact that the earlier Act was an Act applying to a smaller area and the later Act applied to a larger area. In Thorpe v. Adams (1871) 6 C.P. 125 Willes, ]., said:

The good sense of the law as laid down by my Lord is quite obvious: because, if a bill had been brought into Parliament to repeal the local Act, it never would have been allowed to pass into a law, etc.,... whereas, a general provision in a public Act is discussed with reference to general policy.

12. Thus it looks as if speciality in respect of locality is given greater importance rather than speciality in respect of the subject-matter; otherwise it would be impossible to compare the degree of speciality. Khan Gul v. Lakha Singh (1928) I.L.R. 9 Lah. 701 (F.B.) discusses a question of conflict between the Contract Act and the Evidence Act with reference to applying the rule of estoppel against a minor and it was said that that construction which avoids repugnancy and if possible gives effect to both enactments should be adopted. It seems to me therefore that Section 191 of the Estates Land Act, unless it expressly says so, ought not to be held to have affected Rule 16 of the Old Agency Rules.

13. The same matter may also be put in another way. The thirty days rule of limitation in Section 191 is not a special provision. It is really a general provision. That is the rule under the Limitation Act for all first appeals, and the whole of the Limitation Act was adopted in the Estates Land Act except a few sections with which we are not concerned. Vide Section 211, Clause (2) of Section 211 brought in the whole part of the Limitation Act relating to appeals. So it looks as if the Estates Land Act has adopted wholesale the general provisions of the Limitation Act. But because the articles relating to appeals apply only to appeals under the Civil Procedure Code and therefore these articles in terms will not apply to some appeals under the Estates Land Act because there is a change of Courts, it enacted Section 191 so as to make the thirty days rule applicable also to appeals from Collectors to District Collectors as well as to District Judges. So that we have a very general provision simply adopted and repeated for the purpose of the Estates Land Act and not a special provision modifying a general provision being specially adopted in a special law. So that even if the Estates Land Act is regarded as a special law, what we have is the general provision for first appeals adopted and repeated in it and not specially modified for its purposes. So that when we look at the specific provision now under discussion the Estates Land Act contains a general provision, whereas the Agency Rules contain special provisions for the tract or area to which they apply. From this point of view also I hold that Section 191 did not affect Rule 16 of the Old Agency Rules. So that from 1908 up to 1924 Section 191 of the Estates Land Act never applied to the Agency tracts and Rule 16 continued to be in force, that is, six weeks was the period for first appeals to the Agent. Now in 1924 the new Agency Rules were promulgated. They are merely rules consolidating and. repeating the old rules in the Agency tracts. Section 191 'never having been in force in the Agency tracts, the notification issuing the Agency Rules did not seek to restrict the Estates Land Act as it had been prevailing in the Agency tracts. From this point of view the question discussed by the learned Judges, namely, whether Rule 56 of the Agency Rules is ultra vires of the Madras Government, because of Section 6(b) of the Scheduled Districts Act does not arise, and I hold that Rule 56 is the only rule that applies to appeals.

14. Assuming I am wrong in the above conclusion, I have to discuss the question on the footing that Section 191 applied to the Agency tracts up to 1924. The question will then arise whether the new Agency Rules are ultra vires or not. Anantakrishna Aiyar, J., held that they are not because Rule 56 is not a rule restricting the operation of the Estates Land Act. Curgenven, J., held to the contrary. The phrase "subject to such restrictions and modifications" occurs in Section 5(a) of the Scheduled Districts Act. The suggestion of Anantakrishna Aiyar, J., is that the word "restriction" occurring in Sections 5(a) and 6 is properly applicable to restriction in relation to areas or classes of persons and things of that kind. With reference to this suggestion Gurgenven, J., observed that it could not mean restriction as to area because "the section (the learned Judge meant the Act) elsewhere provides for this by permitting the enactment to be extended to a scheduled district or part thereof". He repeats the same idea lower down where he says:

Let us then see what powers it was clearly expedient to give to the Local Government in extending an enactment to an area not hitherto brought within the operation of the general Acts and Regulations.

15. Section 5 refers to the extension to the scheduled district or part thereof of an enactment which up to the extension did not apply to the scheduled districts. But where we are dealing with an Act which from the inception applied to the Agency tracts and it is desired to limit the operation of the Act to a particular area, Section 5 has nothing to do with such a case; and such limitation to one area and the omission of another area cannot be done under Section 5. 'The power to do so must be conferred or refused by some other section. But the legislature thought it fit not to confer such power on the Local Government to make such restrictions and the word "restriction" in Section 6 is necessary to cover the case of an area. I, therefore, do not agree with the reason given by my brother Curgenven, J., that restriction in Section 6 cannot apply to area.

16. Then again, as to whether the restriction may refer to a particular class, Curgenven, J., observes that such a thing would be rarely called for. This is true. But that such a thing may be called for in the Agency tracts is clear from Rule 9 of the old rules relating to the Zamindars, Bissoyees and other feudal chiefs, and Rule 10 referring to succession of Hill Zamindaris. He then points out that the restriction was intended for the case of a power to exclude certain provisions in an enactment, I agree that the restriction may include such cases. But I do not agree that it is confined to this particular class. It may include also the cases of areas and persons. No doubt the word "modification" will not cover a case where it is intended to modify certain provisions of an enactment and the word "restriction" would be necessary. But where it is a question of substituting one provision by another provision which would be more appropriate certainly the word "modification" will do. Curgenven, J., seems to be of that opinion in the particular paragraph where he deals with this question. But, if so, Rule 56 on the footing that it is sought to change the period in Section 191 of the Estates Land Act is really a provision substituting one period, namely, six weeks, which was thought to be more proper for another period and, there fore, a modification. After all, some meaning must be given to the word "modification" which is mentioned in Section 5-A but omitted in Section 6. I am of opinion that the particular case with which we are dealing is a case of modification and not restriction. If the whole section is omitted one would perhaps say that it was restriction; but where it was a case of not" omitting a section but substituting something for some other thing in it, I am of opinion that it is a modification. I, therefore, think that, even from the second point of view, Rule 56 of the Agency Rules is not ultra vires.

17. I, therefore, hold that Rule 56 applied to the appeals before the Agent and they were not out of time. I, therefore, reverse the judgment of the Lower Court and remand the appeals to be disposed of according to law. The respondent will pay the costs of the S.A. No. 2107 to the appellant. No order as to costs in the other second appeals. The Court-fees in all the second appeals will be refunded.

18. I may add that, if it were necessary, I would excuse the delay committed by the appellants before the Agent's Court under Section 4 of the Limitation Act which certainly applies to the Estates Land Act. But of course it is desirable to decide the point as excusing delay may not be available hereafter.