Amendment of law-Legal position of applicable law

In the continuation of a suit or legal proceedings, if the legal provision gets amended, the hotly debated issue remains as to which is the applicable law in respect of the proceedings.

Recently, Hon’ble High Court at Calcutta in Smt Ashita Prasad Misra Vs Sh Ganesh Chandra Mukhopadhyay (CO 1930/2007) interpreted the legal provision contained in Section 8 of the West Bengal Land Reforms Act, 1956(hereinafter referred to as “the Act”) which was amended by West Bengal Land Reforms (Amendment) Act, 2000 (hereinafter referred to as “the Amended Act”). The facts of the case are as follows:

Facts of the case: The Petitioner was the owner of plot no 20/8161. The owner of adjacent plot no 20/6413 was Sh Gobindalal Chattopadhyay. Gobindalal sold the said plot to opposite parties by executing a sale deed dated 14/07/1997 which was registered on 16/01/1998.

The Petitioner filed an application for pre-emption u/s 8 of the Act before the Civil Judge (Junior) Division, 1st Court, Bankura. During the pendency of the suit the Act was amended by the Amended Act and the “holding” in Section 8 of the Act was substituted by “plot”. The Ld Trial Judge decreed the pre-emption suit on the ground of vicinage.

The opposite parties (Respondent herein) went in Appeal before the Ld Additional District Judge, 1st Court, Bankura. The Appellate Court reversed the decree of the trial court on the ground that due to amendment of the Act in 2000, the Amended Act would be applicable to the suit. As the entire plot of land was transferred, Section 8 of West Bengal Land Reforms Act, 1956 would not be applicable.

Against this appellate decree, the instant revision application was filed before the Hon’ble High Court.

Decision of the Hon’ble High Court

The issued before the Hon’ble High Court was whether in the facts of the case, the Act or the Amended Act would be applicable. Reliance was placed on the well-settled law declared by the Hon’ble Supreme Court of India in the following cases:

1. Glaxo Smith Kline Plc-vs.-Controller of Patents & Designs AIR 2009 SC 1147;
2. Garikapati Veeraya-vs.-N. Subbiah Choudhry AIR 1957 SC 540.

In order to resolve the problem recourse was made to Section 6 of the General Clauses Act, 1897. The said Section expressly provides that notwithstanding the repeal the old Act survives to protect the vested rights under the same. For ready reference the Section may be quoted as follows:

“6. Effect of repeal: - Where this Act, or any Central Act or Regulation 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) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered there under; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment 7 may be imposed as if the repealing Act of Regulation had not been passed.”

When pre-existing right of appeal continues to exist, by necessary implication, the old law which created the right of appeal also exists to support the continuation of that right and hence the old right must govern the exercise and enforcement of that right. In the absence of contrary intention in repealing the enactment, rights under the old statute are not destroyed. Reference: M/s Hoosain Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and Ors. (AIR 1953 SC 221).

The right to proper consideration of an application by statutory authority remains alive even after repeal of the enactment under which the consideration had been sought. Reference: M/s Gurcharan Singh Baldev Singh v. Yashwant Singh and Ors. (1992 (1) SCC 428).

In the light of the ration laid down, the Hon’ble High Court rejected the Appellate Decree and it was declared that the Appellate Court has wrongly interpreted the provision of the Amended Act. Any suit or legal proceedings have to be governed by the law as it existed on the date the suit or the legal proceedings was instituted. Notwithstanding the Amendment Act, the old law existed for the purpose of the suit.