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Allahbad High Court
HARISWARUP,T.S.MISRA,PREMPRAKASH
Mohan Agarwal - Appellant
Versus
Union of India - Respondent
Decided On : 04/22/1978
BENGAL ARMY REGULATIONS - GOVERNOR GENERAL ORDER NO. 179 DATED SEPTEMBER 12, 1836 - CONTINUES TO BE LAW IN FORCE IN INDIA - BRITISH STATUTES (APPLICATION TO INDIA) REPEAL ACT, 1960 (ACT NO. LVII OF 1960) - DOES NOT REPEAL THE ORDER.
Fact of the Case:
The question arose in writ petitions filed to challenge notices of resumption issued by the Union of India exercising the right of resumption under the grants on the basis of which the petitioners were holding the lands. The action is being taken in exercise of the power under the Governor General Order No. 179 dated September 12, 1836.
Finding of the Court:
The Bengal Army Regulations, Governor General Order No. 179 dated September 12, 1836 continued to be the law in force in India even after the enforcement of the British Statutes (Application to India) Repeal Act, 1960 (Act No. LVII of 1960).
Issues: Whether the Bengal Army Regulation Governor General Order No. 179 dated September 12, 1836 continues to be law in force in India even after the enforcement of the British Statutes (Application to India) Repeal Act, 1960 (Act No. LVII of 1960) ?
Ratio Decidendi: 1. The Government of India Act, 1833 was a Constitution Act and the law made thereunder, including Order No. 179 of 1836, was a statutory law made under a Constitution Act and could not therefore come to an end by mere repeal of the Government of India Act, 1833. 2. The Government of India Act, 1915 being itself a Constitution Act saved the law made in exercise of the legislative powers given by the Constitution Act of 1833. 3. The law made under the 1833 Act was continued in force by Section 65 of the Government of India Act, 1858, Section 130 of the Government of India Act, 1915, Section 292 of the Government of India Act, 1935, Section 18 of the Indian Independence Act, 1947 and Article 372 of the Constitution of India. 4. The British Statutes (Application to India) Repeal Act, 1960 repealed only those British Statutes which were specified in the Schedule and did not repeal the law which had been born out of the parent Act and had obtained an independent existence as subsisting law.
Final Decision: The question referred to us is answered in the affirmative.
HARI SWARUP, J. :- The following question of law was referred by a Division Bench for the opinion of the larger Bench.
"Whether the Bengal Army Regulation Governor General Order No. 179 dated September 12, 1836 continues to be law in force in India even after the enforcement of the British Statutes (Application to India) Repeal Act, 1960 (Act No. LVII of 1960) ?
The question had arisen in the writ petitions filed to challenge the notices of resumption issued by the Union of India exercising the right of resumption under the grants on the basis of which the petitioners, according to the respondents, were holding the lands.
2. The action is being taken in exercise of the power under the Governor General Order No. 179 dated September 12, 1836. The Order does not indicate the source of power. The source of power can, however, be traced to the Government of India Act, 1833. Section 43 of this Act provided that the said Governor-General in Council shall have the power to make Laws and regulations for repealing, amending or altering any laws and regulations whatever now in force. The Preamble of Order No. 179 of September 12, 1836 provides that by rescinding the various Orders in force, Regulations were being promulgated thereunder. The proviso to S.45 of the 1833 Act reads as under :-
"Provided also that all laws and regulations made as aforesaid, so long as they shall remain unrepealed, shall be the same force and effect within and throughout the said territories as any Act of Parliament would or ought to be within the same territories and shall be taken notice of by all courts of justice whatsoever within the same territories, in the same manner as any public Act of Parliament would and ought to be taken notice of; and it shall not be necessary to register or publish in any court of justice any laws or regulations made by the said Governor-General in Council."
This Act continued till the Government of India Act, 1915 repealed it. Section 130 of the Government of India Act, 1915 provides :
3. The Acts specified in the Fourth Schedule to this Act are hereby repealed to the extent mentioned in the third column of that Schedule :
Provided that this repeal shall not affect -
(a) the validity of any law, charter, letters patent, Order in Council warrant, proclamation, notification, rule, resolution, order, regulation, direction or contract made, or form prescribed, or table settled under any enactment hereby repealed and in force at the commencement of this Act, or
(b) the validity of any appointment, or any grant or appropriation of money or property made under any enactment hereby repealed, or
(c) the tenure of office, conditions of service, terms of remuneration or right to pension of any officer appointed before the commencement of this Act.
....................................................................................................................."
In the Fourth Schedule, occurs the following entry :
"Session and Chapter Short Title Extent of Repeal
3 and 4 Will 4, c. 85. The Government of India Act, 1833. The whole Act, except Section one hundred and twelve.
The effect of this repeal was that the Government of India Act, 1833 was repealed in its entirety except Section 112 which ran as under :-
"The island of Saint Helena, and all forts, factories, public edifices, and hereditaments whatsoever in the said island, and all stores and property thereon fit or used for the service of the government thereof, shall be vested in His Majesty, and the said island shall be governed by such orders as his Majesty in council shall from time to time issue in that behalf.
The next provision dealing with this Statute is contained in the British Statutes (Application to India) Repeal Act 1960."
4. Section 2 of this Act provides :
"The British Statutes specified in the Schedule, in so far as they extend to, and operate as part of the law of India or any part thereof, are hereby repealed." The effect of the repealing Act could only be the repeal of
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