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1958 Supreme(Pat) 17
PATNA HIGH COURT
V.Ramaswami and Kanhaiya Singh JJ.
Dulichand Khirwal
Versus
State Of Bihar
Miscellaneous Judicial Case No. 491 of 1955 ;
Decided On : JANUARY 20, 1958
A notification issued by the State Government excluding certain areas from the operation of the Civil Procedure Code can have retrospective effect.
Headnote:
CIVIL PROCEDURE CODE - Applicability in Kolhan area - Notification by State Government excluding certain areas from the operation of the Code - Retrospective effect - Appeal from Kolhan suit - Jurisdiction of Commissioner of Chotanagpur Division.
Fact of the Case:
Petitioner, a lessee of 42 acres of land in Kolhan area, was sued by the State of Bihar for recovery of minimum royalty. The suit was dismissed by the Deputy Commissioner of Singhbhum, but on appeal, the Commissioner of Chotanagpur Division allowed the appeal and decreed the suit. Petitioner challenged the order of the Commissioner on the ground that the Deputy Commissioner had no jurisdiction to try the suit as a Kolhan suit and that the Commissioner had no jurisdiction to hear the appeal.
Finding of the Court:
The court held that the notification issued by the State Government excluding certain areas from the operation of the Civil Procedure Code had retrospective effect and, therefore, the Deputy Commissioner had jurisdiction to try the suit as a Kolhan suit. The court also held that the Commissioner of Chotanagpur Division had jurisdiction to hear the appeal.
Issues: 1. Whether the Deputy Commissioner had jurisdiction to try the suit as a Kolhan suit. 2. Whether the Commissioner of Chotanagpur Division had jurisdiction to hear the appeal.
Ratio Decidendi: 1. The notification issued by the State Government excluding certain areas from the operation of the Civil Procedure Code had retrospective effect. 2. The Deputy Commissioner had jurisdiction to try the suit as a Kolhan suit. 3. The Commissioner of Chotanagpur Division had jurisdiction to hear the appeal.
Final Decision: The petition was dismissed with costs.
V.Ramaswami, J.
1. In this case the petitioner. Dulichand Khirwal, seeks a writ in the nature of certiorari from the High Court for the purpose of calling up and quashing the order of the Commissioner of Chota Nagpur, dated 11-2-1956, in Kolhan Title Appeal No. 124 of 1954.
2. The petitioner was a lessee for a period of five years from the State Government with regard to 42 acres of land in village Kusmunda, Police Station Chaibasa, in the Kolhan area. The said lease was for working a quarry for China clay in the said area. The rental fixed for working of the quarry was Rs. 125/- per year. Respondent No. 1, the State of Bihar, filed Kolhan Suit No. 31 of 1952, against the petitioner for recovery of a sum of Rs. 2,250.00 on account of the minimum royalty due for the period from 21-5-1945 to 20-5-1950. The suit was filed in the court of the Additional Deputy Commissioner of Singhbhum, who dismissed the suit on merits on 9-4-1954. The State of Bihar thereafter took an appeal before the Commissioner of Chota Nagpur Division, who heard the appeal on merits and allowed the appeal, holding that the State of Bihar was entitled to get a decree against the defendant for the recovery of the amount claimed.
3. The first ground taken by learned Counsel on behalf of the petitioner is that the Deputy Commissioner of Singhbhum adopted a procedure prescribed by Wilkinsons Rules which are no longer in force and so the Commissioner of Chota Nagpur had no jurisdiction to hear the appeal. In support of this argument reference was made to a judgment of this Court in K.K. Sinha V/s. Basudeo Harjiwan Pathak, Misc. Judl. Case No. 392 of 1952, D/- 22-12-1952 (A) where it was held that Act II of 1951, amended the Civil Procedure Code so as to extend its operation to the whole of India, including the so-called scheduled districts, with the exception of certain Tribal Areas in the State of Assam, in the State of Madras and in the State of Jammu and Kashmir and the State of Manipur. Act II of 1951, received the assent of the President on 17-2-1951, and came into effect from that date, and so it was held by the High Court in that case that the Civil Procedure Code applied to the entire district of Singhbhum, including the scheduled area of Kolhan.
But on behalf of the State of Bihar it was pointed out by learned Counsel that the effect of this judgment has been superseded by a subsequent notification of the State Government, dated 26-8-1953, issued in exercise of the authority conferred on the State Government by sub-paragraph (1) of paragraph 5 of the Fifth schedule to the Constitution of India. The notification of the State Government is in the following terms. "No. A/AB/303/53-3533J. :-
- In exercise of the powers conferred by sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India, the Governor of Bihar is pleased to direct that the Code of Civil Procedure (Amendment) Act, 1951 (II of 1951), shall not apply to the Sadar Subdivision of the district of Singhbhum except the areas comprised within the Chaibassa and Chakradharpur Municipalities.
2. This notification shall be deemed to have come into force on the 1st April, 1951, the date on which the said Act was brought into force by the Central Government.
By order of the Governor of Bihar,
R. Singh, Secy."
In view of this Government notification I do not think that the ratio of the decision in Misc. Judl. Case No. 392 of 1952, D/- 22-12-1952 (Pat) (A) has any application to the present case and the argument of learned Counsel on this point must fail.
4. It was then submitted on behalf of the petitioner that Regulation XIII of 1833, under 1 which the Agent to the Governor General made Wilkinsons Rules, has been repealed by Act XII of 1876 and, therefore, Wilkinsons Rules do not exist any longer as they have been automatically repealed with the repeal of Regulation XIII of 1833. I do not think that this argument is correct, because Section 7 of Act XIV of 1874, has the le
