P L D 1963 Dacca 376 (PLP)

"I am of opinion that unless the breaches are repaired immediately before the monsoon sets in, crops are likely to be damaged seriously this year too, with grave danger to life and other properties." Accordingly, he drew up proceedings under section 25 of the Embankment Act on 13‑5‑48 Exh. 1, and issued notice under section 8 of that Act inviting objections, if any. It appears from the S. D. O's. report Exh. K that the plaintiff as the sole zamindar of the area raised an objection against the proceedings commenced under section 25 of the Act. The S. D. O. who had delegated authority to hear and decide objections under sections 10 and 11 of the Act overruled the plaintiff's objection. An appeal to the Collector against the S. D. O's. order was dismissed by the Collector by his order Exh. K (1). An appeal was preferred to the Commissioner against the order of the Collector, but the Commissioner dismissed the appeal Exh. K (2). The plaintiff then preferred an appeal to the Board of Revenue which too was ultimately dismissed Exh. K (3). Thus, the plaintiff having raised an objection against the proceedings under section 25 of the Act and having unsuccessfully fought up to the Board of Revenue can no more agitate that the proceedings taken by the Collector under section 25, read with section 7 was beyond the jurisdiction of the Collector. Moreover, the question with regard to the propriety of the proceedings under section 25 of the Act does not appear to be justiciable inasmuch as the satis faction as to the existence of an emergency, as the expression B "whenever the Collector shall be of opinion" occurring in section 25 shows is the Collector's subjective satisfaction. Apart from this, the Civil Court's jurisdiction to put such question to judicial test is expressly barred under subsection (1) of section 89‑A which runs thus :‑ "Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, no Civil Court shall entertain any suit, appeal or application relating to any act or work, the execution whereof is or has been under taken by the Collector under the provision of section 25". The said section 89‑A was inserted in the Embankment Act by the East Bengal Ordinance XVI of 1951 promulgated on the 25th July 1951. Before the expiry of the said Ordinance, the Legis lature made the East Bengal Expiring Laws Act, 1951 (East Bengal Act XXXVIII of 1951) temporarily enacting, among others, the provisions of that Ordinance up to the 31st day of October 1952. The said date was subsequently extended the 31st day of March 1954 by the East Bengal Expiring Laws (Amendment) Act, 1952 (East Bengal Act VII of 1952). Meanwhile, the Embankment Act itself was repealed and re‑enacted on the 7th January 1953 by the East Bengal Embankment and Drainage Act, 1952 (East Bengal Act I of 1953), but it was brought into force on 2‑7‑53 by Notification No. 5‑1, dated 29‑6‑53, published in the Dacca Gazette of the 2nd July 1953. The East Bengal Act I of 1953 is now the only statute that embodies the law relating to the con struction, repairs, maintenance and management of embankments. Sections 24 and 70 of this Act I of 1953 correspond to sections 25 and 89‑A (1) of the repealed Embankment Act. Although section 89‑A (1) of the Embankment Act ousting the Civil Court's jurisdiction to question a work undertaken under section 25 stood repealed with the repeal of that Act the benefit of that section, in view of section 8 of the Bengal General Clauses Act, 1899, which will be discussed more fully later, is available to the proceedings that were pending on the date of the repeal. We shall hereinafter show that the disputed pro ceedings under section 25 of the Embankment Act were pending on the date of the repeal of that Act by the East Bengal Act I of 1953 and that those proceedings are still pending in law, although the work of repairs to the affected embankment was itself completed long before the repeal of the Embankment Act and the cost of such work was realised through certificate proceedings. The result, therefore, is that section 89‑A (1) of the repealed Embankment Act still applies to the present case and, as such, the Civil Court is not competent to question the propriety of the proceedings taken by the Collector under section 25 of that Act. As a matter of fact Mr. D. N. Dutta, the learned Advocate for the plaintiff‑respondent does not seriously press that the disputed proceedings under section 25 of the Embank ment Act were unwarranted and without jurisdiction. What, however, he seriously presses is that the provisions of Part VI of the Embankment Act and particularly the provisions of sections 52, 53, 56, 59 and 61 of that Part were not complied with in the present case and, as such, the plaintiff could not be saddled with any liability for the cost of repairing the embankment in question and consequently the certificate proceedings were premature, bad in law and without jurisdiction. Of the specific sections mentioned above, sections 56 and 59 which related to appor tionment of cost are not relevant. Undeniably, the plaintiff was the then sole Zamindar of the estate in which were situated the lands benefited by the closing of the breaches of the embankment. It is not the plaintiff's case that there were tenure‑holders under him, nor is there any evidence to show this. Hence, the liability for the cost of repairs was that of the plaintiff alone as the sole Zamindar of the area concerned under section 54 of the Embankment Act. Consequently, the question of compliance with the provisions of sections 56 and 59 relating to apportionment of cost did pot arise in this case. As regard sections 52, 53 and 61, there does not appear any material to show if the provisions thereof were complied with. We shall deal with these sections separately.

13. Section 52 is related to, and based on, the preceding section

51. According to section 51, the accounts of the actual expenses incurred in executing any works or repairs were to be prepared as soon as possible after the completion thereof. The Engineer was then required to sign a certificate stating, among others, the amount of all such expenses. On receipt of such certificate, the Collector was required to cause a statement to be prepared of the villages of which any lands were benefited by the works or repairs. Section 51 further required the deposit of such accounts, certificate and statement in the office of the Collector. After compliance with the provisions of section 51, the Collector was required under section 52 to give general notice of the deposit of the said accounts, the certificate and the statement in his office. Section 52 also required the giving of a special notice of such deposit on the zamindar or the tenure‑holder concerned in addition to a general notice and also provided for giving only a special notice instead of causing a general notice. Section 52 further provided as follows:

" . . . . . if within one month of such general notice being given, or of such special notice (if any being served on him, any interested person shall object to the accounts on the ground either that the work charged for has not been performed, or that the whole sum charged has not been expended, or that the rates of charge are higher than those mentioned in the estimates, the Collector shall inquire into such objection, and pass orders thereon." In the present case, the S. D. O. under whose supervision the work of repairs was executed submitted accounts Exh. E (2) on 23‑9‑48, showing a total expenditure of Rs. 10,986‑4‑0 as against the sanctioned estimate of Rs. 16,

165. It appears from the order‑sheet Exh. 1 of the relevant Embankment case that the accounts submitted by the S. D. O., Feni were sent to the S. D. O. (Irrigation) on 18‑I1‑48 with a request to examine them. But it does not appear from the order‑sheet if the Irrigation Engineer examined the accounts as requested and granted any certificate as required by section 51 of the Embankment Act; rather the orders in the order‑sheet made subsequent to 18‑11‑48 indicate the contrary. At any rate, there is no evidence what soever to show if any general or special notice was given by the Collector in this case as required by section 52 of the Embank ment Act. It appears from section 84 of that Act that an order passed by the Collector on an objection under section 52 was appeal-able to the Commissioner and the Commissioner's order passed on appeal was appeal0able to the Board of Revenue. That being so, the provisions of the said section 52 and consequently those of the related section 51 were mandatory. Any view to the contrary would negative the substantive right of appeal conferred by the statute and would, therefore, be untenable.

14. Section 53 required the making of an order by the Collector on the basis of the Engineer's certificate under section 51, specifying the total sum found payable for the work or repairs done. As the Engineer's certificate as to cost was wanting in this case, the question of the Collector's making an order under section 53 on the basis of such certificate did not arise.

15. Section 61 called for a direction by the Commissioner with regard to the payment of the cost by installments. Obviously, no such direction was made by the Commissioner. It appears that apart front the sections 51, 52, 53 and 61, the provisions of sections 58 and 68 were not‑also complied with. The Collector did not charge the sole Zamindar, namely, the plaintiff with the total amount payable as required by section

58. Nor did the Collector, on the completion of any such charge, made a final order contemplated by section

68. Now, section 68, like section 52, was appeal-able to the successive authorities named in section

84. Hence, the provisions of section 68 were equally mandatory.

16. It then follows from the foregoing that the mandatory provisions of sections 52 and 68 of the Embankment Act were not complied with in the case under consideration with the result that the plaintiff's liability for the cost of repairs of the embankment remained undetermined in law. It was stated in the written statement of the defendant‑appellant that there had been substantial compliance with the applicable law. Mr. Jane Alain, the learned Assistant Government Pleader also makes a submission to that effect. The law is that mandatory provisions of a statute must be complied with absolutely. In this case, the mandatory provisions of sections 52 and 68 were not complied with at all, not to speak of substantial compliance therewith. Thus, the fact remains that the plaintiff's liability for the cost of repairs of the embankment was not determined in accordance with law. Consequently there was no basis or foundation for the certificate made under the Public Demands Recovery Act for the realisation of the cost of repairs from the plaintiff. The said certificate having been made for an amount not legally determined and due from the plaintiff, the certificate cannot be said to have been "duly filed" within the meaning of section 37 of the Public Demands Recovery Act, and, as such, the proceedings taken on the basis of that certificate were without jurisdiction. Hence, the certificate is liable to be cancelled under section 34 of the Public Demands Recovery Act on the grounds stated in clauses (b) and (c) of subsection (1) of section 35 of that Act. Mr. Jane Alam submitted on behalf of the appellant that the suit is barred under section 37 of the Public Demands Recovery Act and, as such, the Civil Court is not competent to cancel the certificate. This contention cannot prevail. As already said, the certificate was not "duly filed" within the meaning of section 37 of the Public Demands Recovery Act. Therefore, the said section cannot operate as a bar to the Civil Court's jurisdiction to cancel the certificate.

17. Mr. Jane Alam submits that the suit is barred also under section 89‑A of the Embankment Act. We have already discussed that section. The said section ousted the Civil Court's jurisdiction to question a work undertaken under the emergency provision of section 25 of the Embankment Act, but did not debar the Civil Courts from entertaining a suit, like the present one, for cancellation of a certificate under the Public Demands Recovery Act and for refund of cost of such work realised through certificate proceedings.

18. As regards the plaintiff's prayer for refund of Rs. 11,361‑15‑6 realised from him through certificate proceedings, the prayer is tenable inasmuch as the said sum was realised on account of cost of repairs of the embankment without having complied with the mandatory provisions of sections 52 and 68 of the Embankment Act. But this does not mean that the plaintiff has no more liability to pay that actual cost of the repairs. The plaintiff was the sole Zamindar of the connected estate at the time of the repairs of the embank ment in question. Therefore, the cost of such repairs became his exclusive liability under the Embankment Act. But the cost is not recoverable from him until the total amount thereof is finally determined in accordance with the provisions of Part VI of the Embankment Act after `compliance with the provisions of sections 51, 52 and 68 thereof. This gives rise to a question whether those provisions of the Embankment Act can be complied with at this stage and the cost of repairs of the embankment can be made recoverable under that Act even after its repeal by the East Bengal Act I of 1953. An answer to this question depends upon the legal effect of the repeal of the Embank ment Act, 1882 and its simultaneous re‑enactment by the East Bengal Embankment and Drainage Act, 1952 (East Bengal Act I of 1953). The effect of repeal of one Provincial Act by another is stated in section 8 of the Bengal General Clauses Act, 1899, the relevant part of which runs thus :‑ "Where this Act, or any Bengal or East Bengal Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not . . . . . . . (a) . . . . . . . . . (b) . . . . . . . . . (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; (d) . . . . . . . . . (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability . . . . . . . as aforesaid ; and any such investigation, legal pro ceeding or remedy may be instituted, continued or enforced . . . . . as if the repealing Act had not been passed."

19. The preambular part of the said section 8 speaks of repeal simpliciter and not of simultaneous repeal and re‑enact ment. This is indicated by the word underlined in the above quotation. Hence, it may possibly be contended that section 8 of the Bengal General Clauses Act applies only to a case where a previous enactment has been simply repealed, but does not apply to a case like the one under our consideration, where there has been a simultaneous repeal and re‑enactment of a statute. Although such a contention found favour at one time, the same does no more hold the field. As, regards the effect of simultaneous repeal and re‑enactment, the following quotation from Crawford's Statutory Construction, 1940 edition, page 657‑58, seems appropriate: "The authorities are divided as to the effect of simultaneous repeals and re‑enactments. Some adhere to the view that the rights and liabilities accruing under the repealed Act are destroyed, since the statute from which they spring has actually terminated, even though for only a short period of time. Others, and they seem to be in the majority, refuse to accept this view of the situation, and consequently, maintain that all rights and liabilities which have accrued under the original statute are preserved and may be enforced, since the re‑enact ment neutralizes the repeal, thereby continuing the law in force without interruption. Logically, the former attitude is correct, for the old statute does cease to exist as an indepen dent enactment, but all practical considerations favour the majority view." The effect of simultaneous repeal and re‑enactment of a statute was considered by the Supreme Court of India in State of Punjab v. Mohan Singh Protap Singh (A I R 1955 S C 84). In that case, a question arose whether an offence committed under the East Punjab Ordinance No. VII of 1948 was punishable under the East Punjab Act XII of 1948 which repealed and re‑enacted the earlier Ordinance. Relying on the view of Solaiman, C. J. in Dhanmal Parshotamdas v. Baburam Chhote Lai (A I R 1936 All. 3) to the effect that section 6 (e) of the General Clauses Act, 1897 (this section 6 corresponds to section 8 of the Bengal General Clauses Act, 1899) would apply to those cases only where a previous law has been simply repealed and there is no fresh legislation to take its place, the East Punjab High Court answered the said question in the negative. On appeal, the Supreme Court of India took a different view and held as follows :‑ "Where there is a repeal of an enactment, the consequence laid down in section 6 of the General Clauses Act will follow unless, as the occasion itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposi tion that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section."

20. The above view was later re‑affirmed by the Supreme Court of India in the case of Indira Sohonlal v. Custodian of Evacuee Property, Delhi and others (A I R 1936 S C 77). One of the important purposes of section 8 of the Bengal General Clauses Act is to protect rights and liabilities already accrued or incurred under the repealed enactment and to save the proceedings pending on the date of its repeal. That being so, the said section does not admit of any strictly technical interpretation which may frustrate its very purpose. It is true, the preambular part of section 8 speaks of repeal simpliciter and does not expressly render the section applicable also in the case of simultaneous repeal and re‑enactment. But a new statute law replacing an earlier one and re‑enacting the provisions thereof with or without modifications, nonetheless repeals the earlier H law. The correct legal position, therefore, is that section 8 of the Bengal General Clauses Act, 1899, comes into play not only where one enactment is simply repealed by another but also in the case of a simultaneous repeal and re‑enactment of a statute law, provided an intention to the contrary does not appear from the repealing law.

21. In the present case, the Embankment Act, 1882 has been repealed and re‑enacted by the East Bengal Embankment and Drainage Act, 1952. It appears that the latter Act have re‑enacted the provisions of the earlier Act including those of sections 25 and 89‑A (1) of that Act. It further appears that sections 24 and 70 of the latter Act respectively correspond to sections 25 and 89‑A (1) of the earlier Act. Thus, there is nothing in the repealing Act of 1953 which is capable of being construed as expressing an intention against the applicability of section 8 of the Bengal General Clauses Act to this case. According to clause (c) of section 8 any right or liability accrued under the repealed law remains unaffected by the repealing law. Besides, clause (e) of that section saves all proceedings under the repealed law that remained pending on the date of its repeal and provides for continuance of those proceedings in accordance with the provisions of that law. In the present case, the liability to pay the cost of repairs to the embankment, according to the provisions of the Embankment Act fell on the plaintiff as the then sole Zamindar of the area concerned, although the extent of that liability was not lawfully determined under Part VI of that Act. The proceedings taken by the Collector under section 25 of the Embankment Act, therefore, remained incomplete and pending on the date of repeal of that Act, although the repair work itself was completed long ago. There is no time‑limit for compliance with the provisions of Part VI of the Embankment Act. Hence, those proceedings under section 25 of the Embank ment Act which are still alive under clause (e) of section 8 of the Bengal General Clauses Act can be proceeded with and the cost of repairs finally determined and charged in accordance with the provisions of the repealed Embankment Act, as if that Act were not repealed at all. As a corollary, section 89‑A (1) of the Embankment Act, which ousted the Civil Court's jurisdiction to question a work undertaken under section 25 of that Act, shall, in spite of its repeal, apply to those proceedings as before.

22. After the cost of repairs of the embankment in question has been finally determined and charged in accordance with the provisions of Part VI of the repealed Embankment Act, the same shall be recoverable as a public demand under section 70 of that Act. Also subsection (1) of section 71 of the repealing statute, namely, the East Bengal Drainage and Embankment Act, 1952, provides a saving as regards recovery of such cost. Sub section (1) of the said section 71 runs thus :‑ The cost payable in respect of any act, work or repair which has, before the commencement of this Act, been completed under the provisions of the enactment repealed by section 2, shall, notwithstanding such repeal, be recoverable under the provisions of the enactments so repealed." Thus, the proceedings taken under section 25 of the repealed Embankment Act still be proceeded with and the cost of repairs finally determined, charged and realised from the plaintiff in accordance with the provisions of that Act, although the defen dant‑appellant cannot succeed in this appeal.

23. This trial Court granted only the prayer for refund of Rs. 11,361‑15‑6 as claimed in the suit, but did not make any order as regards the prayer for cancellation of the certificate, The certificate proceedings having been found to be without juris diction, the certificate is liable to be cancelled.

24. In the result, the appeal is dismissed. The decree of the trial Court granting the prayer for recovery of Rs. 11,361‑15‑6 is armed. Besides, the certificate in Certificate Case No. 8 of 1951‑52 of the Certificate Court at Feni is cancelled. This, however, shall be without prejudice to the continuance of the proceedings taken by the Collector of Noakhali under section 25 of the Embankment Act, 1882 in accordance with the provisions of that Act, from the stage upto which those proceedings conti nued immediately before the filing of the certificate aforesaid. Having regard to the facts and circumstances of the case and the legal complexities involved in it, the parties are directed to bear their respective costs of this appeal. HASAN, J.‑

I agree. K. B. A./A. H. Appeal dismissed.