V. Gallaiah vs The Officer-in-charge of Siddipet Co-operative Marketing Society, Siddipet and another

Madhusudan Rao, J.—This is a petition for the issue of a writ of certiorari for quashing the order of the learned Subordinate Judge, Medak, passed in C.M.A. 1 of 1973 dated 30-12-1974.

The short and only question for consideration in this writ petition is whether, when there was no right of appeal under the statute prevailing at the time when the proceedings were initiated, a party gets a right of appeal if, while the proceeding is pending, the statute is repealed and a new enactment with a right of appeal is passed.

Sri N.K. Acharya, the learned counsel for the petitioner concedes that in the absence of specific provision in the new enactment, generally proceedings initiated under a repealed Act are governed by the repealed Act and the procedure of such proceedings would not be governed by the new Act. Sri Acharya, however, contends, that appeal is a substantive right. It is not a matter of procedure and that when it is created under a new statute when a proceeding is pending the same not having reached any finality, the party gets a right of appeal under the new enactment. In support of this submission, Sri Acharya relied on the observations of the Privy Council in AIR 1927 242 (Privy Council)

In the instant case what happened is this: The respondent herein filed a claim before the Arbitrator under Sections 48 and 49 of the Andhra Pradesh (Telangana Area) Co-operative Societies Act, 1952. This claim was made in the year 1959. The same was numbered as A.R.C. 17/60-C by the Deputy Registrar, who passed an award on 10-5-1967. By the time the Deputy Registrar passed the award, the Andhra Pradesh Co-operative Societies Act came into force, the same having been enacted in the year, 1964. This enactment repealed three enactments including the Andhra Pradesh (Telangana Area) Co-operative Societies Act, 1952. u/s 76 of the new Act, a right of appeal is provided against the decision of an Arbitrator before a Co-operative Tribunal. Against the award passed on 10-5-1967, the petitioner herein, who was the Secretary to a Co-operative Society, filed an appeal under C.M.A. 5 of 1967. The appeal was renumbered as 1 of 1973 and was finally dismissed on 31-10-1974 on the ground that the petitioner had no right of appeal under the old Act and that the proceeding is governed only by the old Act of 1952.

Section 132 of the new Act reads as follows:

Repeal and savings:

The following Acts, namely:

1) The Andhra Pradesh (Andhra Area) Co-operative Societies Act, 1932.

2) the Andhra Pradesh (Andhra area) Co-operative Land Mortgage Banks Act, 1934.

3) the Andhra Pradesh (Telangana Area) Co-operative Societies Act 1952.

are hereby repealed:

Provided that any society existing at the commencement of this Act which has been registered or deemed to have been registered under the relevant repealed Act shall be deemed to have been registered under this Act; and the bye-laws of such society shall so far as they are not inconsistent with the provisions of this Act or the rules made thereunder, continue to be in force until altered or rescinded in accordance with the provisions of this Act and the rules made thereunder:

Provided further that Section 8 of the Andhra Pradesh General Clauses Act, 1891 shall be applicable in respect of the repeal of the said enactments and Sections 8 and 18 of the said Act shall be applicable as if the said enactments had been repealed and re-enacted by an Andhra Pradesh Act.

Section 8 clause (f) of the Andhra Pradesh General Clauses Act, 1891 reads as follows:

Section 8: Where any act, to which this Chapter applies, repeals any other enactment then the repeal shall not-

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

It is more than clear from the above extracted provisions that the proceeding initiated by the respondent was under the repealed Act and that it is governed only by the provisions of the repealed Act until it reaches finality-finality not merely before the Court or Tribunal of the first instance but before the Court or tribunal of the last instance as contemplated under the old Act. Their Lordships of the Supreme Court in Garikapatti Veeraya Vs. N. Subbiah Choudhury, observed as follows:

the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of appeal.

In the light of this pronouncement of Their Lordships of the Supreme Court, it would not be necessary to consider the effect of the observations of Their Lordships of the Privy Council in the case relied upon by Sri Acharya.

It is well settled that appeal is a substantive right. It is not a matter of procedure. This substantive right can always be the creature of the statute. When a proceeding is initiated under a particular enactment and when such proceeding is to be governed only by the provisions of that enactment and when there is no right of appeal under the enactment but only a right of revision, it would not be open to the party to claim a right of appeal under the subsequent enactment merely because the procedure under the repealed enactment did not reach finality by the time of the passing of the later enactment. The proceeding initiated by the respondent is clearly governed by the provisions of the Act, 1952 and the lower Appellate Tribunal (the Subordinate Judge) rightly rejected the petitioner''s appeal as unmaintainable. There is absolutely no case for the issue of a writ of certiorari against the proceedings of the Tribunal. This petition is, therefore, dismissed with costs. Advocate''s fee Rs. 100/-.