T. Kamchinthang vs The State of Manipur and Others

K.N. Saikia, J.—The writ Petitioner herein impugns the Notification No. 13/3/76 LSG dated 3rd May, 1976, issued by the Chief Secretary to the Government of Manipur in exercise of the Power purported to be under Rule 125(2)(K) of the Defense and Internal Security Rules, 1975, empowering the District Magistrate, Manipur Central District, Sub-Divisional Magistrate of Manipur East and West Sub-division; to summarily evict the roadside encroachments. The Petitioner. states that be has been occupying a plot of land measuring .01 acre in C.S. Das No. 1661 under the Imphal Municipality and acquired title in the said land by adverse possession having been in possession thereof since 1942 and that his, residential house stands beyond 150'' away from the centre of the lmphal-Ukhrul road. Earliest eviction proceeding was drown up against him and as others. by issuing notice on 4.3.1973 under Rule 18(1) and (2) of the Manipur Land Revenue and Land Reforms Rules, 1961 and his, appeal there from was dismissed on 19.5.1973, where after the eviction order was sought to be executed by demolishing and destroying his houses. It is further stated that the Petitioner however, reconstructed his structures and has been living there land that he was a Petitioner in Civil Rule No. 6 of 1974, wherein the impugned order of eviction was stayed and later the Civil Rule allowed by judgment dated 29.6.1976. The Petitioner, thereafter, issued a notice, on the Government of Manipur u/s 83 CPC and filed T.S. No. 1 of 1977 on 6.1.1977. But, during the pendency of that suit the Superintendent of Police on 6.1.1977 with armed force:; started demolishing his house along with those of few others without any notice or warning and the Police Officer conducting the eviction informal the Petitioner that the State Government issued the impugned order empowering the District Magistrate of Manipur General District to summarily evict the encroachment upon the road-side lands within the Imphal Municipal area, under certain provision of the Defence and Internal Security of India Rule, 1971, and be was shown a copy of the said notification.

The Petitioner contends that Clause (a) of Sub-rule (2) of Rule 125 of the Defiance and Internal Security of India Rules, does not empower to issue notification under the said provision, and the same therefore being beyond jurisdiction, is liable to be quashed. He Amber contends that in Civil Rule 6 of 1974 it was, held that an enquiry under Sub-section (3) of Section 11 of the Manipur Land Revenue and Land Reforms Act-was appropriate and the Government of Manipur had no right to evict the Petitioner, without holding such an enquiry, with the help of the impugned order.

Mr. R.K. Manisana Singh, the learned Advocate General Manipur, submits that the impugned order in a scares has become infructuous in view of the fact that Defence and Internal Security of India Act, 1971, itself remained in force during the period of proclamation of the emergency issued on the 4th day of December, 1971 and for a period of six months thereafter, The emergency having ended and after six months, thereof the Act'' itself ceased to be in force. The Defence and Internal Security of India Rules, could not therefore remain in force thereafter, We arc inclined to accept this submission.

The Defence and Internal Security of India Rule, 1971, shortly, ''The Rules'' had been framed in exercise of the powers conferred, by Section 3 of the Defence and Internal Security of India Act, 1971, Shortly, the Act'' and all other powers en-abing the Central Government in that behalf. Under Rule 1A of the Rules as from the commencement of the Defence end Internal Security of India (Amendment Rules, 1975), the provisions of the rules, so far as might be applied for the purpose of internal Security as they applied for the other purposes of the Act accordingly those provisions should be construed, when very necessarily, us including also a reference to Internal Security. The Petitioner has challenged the vires of the Notification (Annexure A). Before deciding that question, it would be more appropriate to decide whether the Rules whereunder the impugned. notification was issued and for that nutter, the notification itself are still inforce. ft is settled law as slated in Max-Dwell that Rules made under a statute must be treated for all purposes of constitution or obligation exactly as if hey were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation. The Rules have therefore, to be treated as if those were contained in the Act: itself. It is also settled that the Rules framed under an Act must be consistent with the Act and not in derogation of it, as was ruled in The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, As the Rules were framed under the Act, these could not, unless otherwise provided, survive the Act itself.

Clause (k) of Sub-rule (2) of Rule 125 of the Rules empowered the State Government by General or special order to make such other provisions in relation to road transport as appeared to that Government to be necessary or expedient fop securing the Defence of India and Civil Defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services esscutial to the life of the community. The impugned order is purported to have been passed under this provision.

In Sub-section (3) of Section 1 of the Act, the expiry of the Act shall not effect:

(a) the previous operation of, or anything duly done as suffered under this Act or any rule made thereunder or any order made under any such rule, or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under any such rule, or

(c) any penalty forfeiture or punishment incurred in respect of any offence under this Act or any contravention of any rule made under this Act or of any order under any such rule or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment is aforesaid,

and any such investigation, legal proceeding or remedy may be instituted. continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not expired. The question therefore, is, whether the provision made by the Governor of Manipur that the District Magistrate of Manipur Central District Sub-divisional Magistrates of Imphal East and West shall have power to summarily evict the aforesaid encroachers and remove the encroachments by adopting the mechanical means of knocking down the structures with the help of bull-dozer; and to confiscate the materials of the structures to the Government, Shall continue to be in force after the expiry of the period of operation of the Act and for that matter of the Rules.? No specific order passed by virtue of this notification is being challenged. What is challenged is the vires of the notification itself. Would this notification be covered under Clause (a) above, (sic). any role made thereunder or any order made under any such rule", or under Clause (b), namely, "any rule mace thereunder or- any order made under any such rule"? To decide this question, we have to ascertain the true nature of the notification. From the app-rent tenor of the notification, it appears that the notification only empowers the District Magistrate, Manipur and Sub-divisional Magistrates, Manipur, to summarily evict the encroachers as stated therein, It does not amount to a rule made under the Act or any order made under any such rule and as such it would not be covered by the above Clauses (a) and (b). This empowerment, in our opinion, must naturally come to an end as soon as the Rules ceased to be in force, open the Act itself ceasing to be in force. In other word, this empowerment could not survive the Act and the Rules, It did not amount to an order, directly affecting any citizen, being only an enabling order and it must necessarily have spent its force, with the expiry of the Rules and the Act. This, being the legal position, there is nothing left to be quashed by this Court. No action can, therefore, be taken pursuant thereto after it ceased to be in force.

There is no doubt that the Act is a temporary one. if an Act contains a proviso that it is to continue in force for a certain specified time it is called a temporary Act. (sic) general rule, and unless it contained some special provision to the contrary and if that temporary Act has expired, proceeding can be taken upon it after it ceased to have further effect. Therefore, offence committed against tempor-Act must be, prosecuted and punished before the Act expire, as soon as the Act expires, any proceedings, which are being (sic) against the person will ipso facto terminate. The duration statute, as has been stated by Halsbury, is prima facia perpetual, it endure? until it is repealed either expressly or by application, by a subsequent statute, or in exercise of a power referred by a statute, and does not lapse through non-user. (sic) or n particular provision thereof, may, however, be namely temporary, that is to say be expressed to continue in (sic) for a limited period only, in, which case it will expire automatically at the end of that period unless earlier repealed. temporary statute or provision may be continued in force (sic) a further period by subsequent statute, or under powers referred by statute. A, temporary statute or provision may also (sic) made permanent by subsequent legislation. The effect of the expiry of a temporary statute is in each case a matter of construction. There is no presumption that the statute is to be treated on expiry as dead for all purposes. As has been obscured by Bhagwati, J., delivering the judgment of the Court in (sic) Hansraj Moolji v. The State of Bombay AIR 957 SC 497, temporary statute for which no time is limited is called a perpetual Act, and its duration is prima facia perpetual. It continue; in force until it is repealed. If an Act contains a proviso that it is to continue in force only for a certain specified time, it. (sic) called a Temporary Act. This result would follow not only from the terms of the Act itself but also from the fact that it was intended only as a temporary measure. This ratio has (sic) been applied to emergency measures which continue during the subsistence of the emergency but lapse with the cessation thereof. In the instant case nothing has been shown to us by (sic) of extension or revival of the Act and the Rules, There (sic)therefore, no doubt that" no fresh action can be taken under (sic) impugned notification after the Act and the Rules ceased. her in force.

While taking the above view of the impugned notification, we should not be understood to have held that the District Magistrate, Manipur and Sub-Divisional Magistrates referred to therein would not have power to carry out eviction of encroachers if they are otherwise empowered under any provisions of law. Whether or not there is such a provision in force is entirely a different matter.

As regards the rights claimed by the Petitioner on the land stated to have been under his occupation, the reasons given in our judgment just delivered in Civil Rule No. 51/77/2/77 will be applicable to the Petitioner.

For the reasons stated above and the reasons given in our judgment in the above Civil Rule No. 51/77/2/77, this Petition is found to be without merit and is rejected. The interim stay order passed on 23.1.1977 and allowed to continue on 29.4.1980 stands vacated. Under the peculiar facts and circumstances of the case, we pass no order as to costs. Rules discharged.