1968 (4) TMI 72 - SC - Indian Laws

Supreme Court rules on retrospective application of amended law, emphasizes appellate court finality

The Supreme Court held that the amended Section 29(2) of the Bombay Rents Act should not be applied retrospectively to cases pending before the High ... Revisional jurisdiction - retrospective operation - finality of orders - procedure versus substantive right - power of High Court under Section 115, Code of Civil Procedure - remand for fresh considerationRevisional jurisdiction - retrospective operation - finality of orders - procedure versus substantive right - Whether a revision petition pending in the High Court when s. 29(2) of the Bombay Rents Act was amended could be tried under the amended provision absent express or necessarily implied retrospective operation. - HELD THAT: - The Court held that the amended s. 29(2) could not be applied to set aside or reopen an appellate judgment which had become final long before the amendment came into force, in the absence of express retrospective operation or necessary implication. The distinction between matters of procedure and provisions which affect existing substantive rights or the finality of orders was emphasised: an amendment that removes finality conferred by the earlier law cannot be given retrospective effect unless clearly intended. Although prior decisions (including Indira Sohanlal) recognise circumstances where finality may not have vested before an order is made, those authorities do not justify depriving an order of finality after it has already become final under the earlier statute. The Legislature's enactment of a wider revisional power in the amended s. 29(2) was not an explanatory amendment conferring retrospective effect; it expanded substantive jurisdiction going beyond mere procedural change and therefore could not be applied to a judgment already final.The High Court erred in applying the amended s. 29(2) to a judgment that had become final before the amendment; the appeal on this point succeeds.Power of High Court under Section 115, Code of Civil Procedure - remand for fresh consideration - What order should be made after holding that the amended s. 29(2) could not be applied to the earlier final judgment. - HELD THAT: - Because the revision petition was filed and proceeded on the footing that it was a petition under s. 115, Code of Civil Procedure, the Court directed that the matter be returned to the High Court to be heard and disposed of according to the scope and limitations of s. 115. The appellate order of the High Court set aside by application of the amended provision must be vacated, and the High Court is to reconsider the revision application within the limited jurisdiction available under s. 115 (i.e., jurisdiction exercisable where there is lack or excess of jurisdiction, material illegality or irregularity), not under the wider powers conferred by the post-facto amendment.Proceedings remanded to the High Court to be dealt with and disposed of on the footing that the petition is governed by s. 115, Code of Civil Procedure; order of the High Court set aside.Final Conclusion: The appeal is allowed: the High Court should not have applied the amended s. 29(2) to a judgment that had become final before the amendment; its order is set aside and the matter is remitted to the High Court to decide the revision petition under Section 115, Code of Civil Procedure. Issues Involved:1. Retrospective application of the amended Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.2. Jurisdiction of the High Court under Section 115 of the Civil Procedure Code versus the amended Section 29(2) of the Bombay Rents Act.3. Finality of appellate court orders prior to the amendment.Issue-wise Detailed Analysis:1. Retrospective Application of the Amended Section 29(2):The primary issue was whether the amendment to Section 29(2) by the Gujarat Amendment Act, 1965, should be applied retrospectively to cases pending before the High Court. The Supreme Court noted that 'there is no dispute that s. 29(2) as amended has not expressly been given retrospective operation.' Citing Colonial Sugar Refining Co. Ltd. v. Irving, the Court held that 'provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.' The Court further emphasized that the finality of orders existing before the amendment should not be disturbed retrospectively unless explicitly stated by the legislature.2. Jurisdiction of the High Court under Section 115 of the Civil Procedure Code versus the Amended Section 29(2):The appeal questioned whether the High Court could exercise its jurisdiction under the amended Section 29(2) of the Bombay Rents Act, which conferred broader revisional powers, or if it was limited to the jurisdiction under Section 115 of the Civil Procedure Code. The Supreme Court highlighted that 'by the amended Act the High Court is expressly invested with revisional jurisdiction, which is not subject to the restrictions prescribed by s. 115 of the Code of Civil Procedure.' However, the Court ultimately concluded that the High Court should have exercised its jurisdiction under Section 115 of the Civil Procedure Code, as the amendment did not have retrospective effect. The Court stated, 'the revision petition when originally filed was triable under s. 115-Civil Procedure Code; it has been tried by the High Court under the amended s. 29(2) of the Rents, Rates Control Act.'3. Finality of Appellate Court Orders Prior to the Amendment:The Court examined whether the finality of the appellate court's order, which was delivered before the amendment, could be affected by the new provisions. The Supreme Court referred to previous judgments, including Indira Sohan Lal v. Custodian of Evacuee Property Delhi and Dafedar Niranjan Singh and Another v. Custodian Evacuee Property (Pb.), to distinguish between procedural changes and substantive rights. The Court observed that 'the order of the appellate court, subject to scrutiny by the High Court within the limited field permitted by s. 115 of the Code of Civil Procedure, was final.' The Court concluded that the amendment did not have retrospective application and thus could not affect the finality of orders passed before its enactment.Conclusion:The Supreme Court allowed the appeal, setting aside the High Court's order and remanding the case to the High Court to be dealt with under Section 115 of the Civil Procedure Code. The Court emphasized that the amendment to Section 29(2) did not have retrospective effect and that the High Court's jurisdiction should be confined to the provisions existing at the time the revision petition was filed. The judgment underscored the principle that substantive rights existing at the time of litigation commencement should not be altered by subsequent legislative amendments unless explicitly stated.