Full Judgment Text
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PETITIONER:
VINOD GURUDAS RAIKAR
Vs.
RESPONDENT:
NATIONAL INSURANCE CO. LTD. AND ORS.
DATE OF JUDGMENT06/09/1991
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1991 AIR 2156 1991 SCR (3) 912
1991 SCC (4) 333 JT 1991 (3) 660
1991 SCALE (2)493
ACT:
Motor Vehicles Act, 1939/1988: Section 110-A/166--Acci-
dent occurred when the old Act was in force--Claim filed
after the new Act came into being---Delay beyond the stipu-
lated period of six months-Condonation of--Whether the
provisions under the old Act or the new Act
applicable--Clause 6 of General Clauses Act--Whether at-
tracted.
HEADNOTE:
The appellant was injured in a road accident on
22.1.1989, and a claim petition was filed belatedly on
15.3.1990 with a prayer for condonation of delay, before the
Claims Tribunal.
Meanwhile, the Motor Vehicles Act, 1939 was repealed and
the Motor Vehicles Act, 1988 came into force with effect
from 1.7.1989. The Claims Tribunal held that in view of the
provisions of sub-section (3) of Section 166 of the new Act,
the delay of more than six months could not be condoned, and
dismissed the claim. Before the High Court the appellant
challenged the Tribunal’s decision, but was not successful.
Thereafter, he preferred this appeal by special leave.
On behalf of the appellant, it was contended that since
the accident took place when the old Act was in force, the
proceeding before the Accident Claims Tribunal must be held
to be governed by the old Act under which the appellant had
a right to file a claim petition even more than six months
after the expiry of the period of limitation and this right
is preserved by reason of the provisions of Section 6 of the
General Clauses Act, 1897; and that his claim could not have
been rejected on the ground of limitation under the new Act.
Dismissing the appeal, this Court,
HELD: 1. ’The High Court was right in taking the view
that the case was covered by the new Act, and delay for a
longer period than six months could not be condoned. [920D]
2. The claim to compensation which the appellant was
entitled to, by reason of the accident was certainly en-
forceable as a right. So far the
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period of limitation for commencing a legal proceeding is
concerned, it is adjectival in nature, and has to be gov-
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erned by the new Act--subject to two conditions. If under
the repealing Act the remedy suddenly stands barred as a
result of a shorter period of limitation, the same cannot be
held to govern the case, otherwise the result will be to
deprive the suitor of an accrued right. The second exception
is where the new enactment leaves the claimant with such a
short period for commencing the legal proceeding so as to
make it impractical for him to avail of the remedy. [916F-G]
New India Insurance Co. Ltd. v. Smt. Shanti Misra,
[1976] 2 SCR 266, relied on.
3. There is a vital difference between an application
claiming compensation and a prayer to condone the delay in
filing such an application. Liberty to apply for a right is
not in itself an accrued right or privilege. [917E]
Isha Valimohammad & Anr. v. Haji Gulam Mohammad & Haji
Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons v. Firm
Hansraj Nathuram, [1971] 1 SCC 721, relied on.
Director of Public Works and Anr. v. Ho Po Sang and
Ors., [1961] 2 AER 721 and Abbott v. Minister of Lands,
[1895] AC 425, referred to.
4. In the instant case the period of limitation for
lodging the claim under the old as well as the new Act was
the same viz., six months which expired three weeks after
coming into force of the new Act. It was open to the appel-
lant to file his claim within this period or even later by
22.7.1989 with a prayer to condone the delay. His right to
claim compensation was not affected at all by the substitu-
tion of one Act with another. Since the period of limitation
remained the same there was no question of the appellant
being taken by surprise. So far the question of condonation
of six months delay was concerned, there was no charge in
the position under the new Act. The right or privilege to
claim benefit of a provision for condonation of delay can be
governed only by the law in force at the time of delay. Even
the hope or expectation of getting the benefit of an enact-
ment presupposes applicability of the enactment when the
need arises to take its benefit. The occasion to take the
benefit of the provision for condonation of delay in filing
the claim arose only after repeal of the old law. Obviously
the ground for condonation set up as ’sufficient cause’ also
relates to the time after the repeal. The
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benefit of the repealed law could not, therefore, be avail-
able simply because the cause of action for the claim arose
before repeal. ’Sufficient cause’ as a ground of condonation
of delay in filing the claim is distinct from ‘cause of
action’ for the claim itself. The question of condonation of
delay must, therefore, be governed by the new law. [919F-H;
A-C 920A]
5. Clause (e) of Section 6 of General Clauses Act is
also not attracted because, by the enactment of the new law,
viz., Motor Vehicles Act, 1988 the remedy of the appellant
has not been affected at all. Appellant’s right to claim
compensation by filing the claim within the same period of
limitation has been preserved. And there was no application
for condonation of delay in a proceeding pending at the time
of repeal so as to allow him to claim any privilege avail-
able under the old Act. [916C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3504 of
1991.
From. the Judgment and Order dated 5.10.1990 of the
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Bombay High Court in W.P. No. 210 of 1990.
Dhruv Mehta, S.K. Mehta and Aman Vachher for the Appellants.
Jitender Sharma for the Respondents.
The Judgment of the Court was delivered by
SHARMA, J. Special leave is granted.
2. The appellant was injured in a road accident and his
claim petition has been dismissed as being barred by limita-
tion. The accident took place on 22.1.1989. The Motor Vehi-
cles Act, 1939 was repealed by section 217(1) of the Motor
Vehicles Act, 1988 which came into force on 1.7.1989. The
period of limitation for filing a claim petition both under
the old Act and the new Act being six months expired on
22.7.1989. The claim petition of the appellant, however, was
filed belatedly on 15.3.1990 with ,a prayer for condonation
of delay. The Accident Claims Tribunal held that in view of
the provisions of subsection (3) of section 166 of the new
Motor Vehicles Act, the delay of more than six months could
not be condoned. The application was accordingly dismissed.
The appellant unsuccessfully challenged the decision before
the High Court.
915
3. It has been contended that since the accident took
place when the old Motor Vehicles Act was in force, the
proceeding before the Accident Claims Tribunal must be held
to be governed by the old Act, and his petition cannot be
dismissed on the basis of the provisions in the new Act.
4. The period of limitation for filing a claim petition
both under the old Act and the new Act is six months from
the date of the accident. The difference in the two Acts,
which is relevant in the present case, is in regard to the
provisions relating to condonation of delay. In view of the
proviso to sub-section (3) of section 166 of the new Act,
the maximum period of delay which can be condoned is six
months, which expired on 22.1.1990. If the new Act is held
to be applicable, the appellant’s petition filed in March
had to be dismissed. The case of the appellant is that the
accident having taken place before the new Act came into
force, the proceeding is governed by the old Act, where
there was no such restriction as in the new Act. The ques-
tion is as to which Act is applicable; the new Act or the
old.
5. It has been contended by the learned counsel that
under the old Act the appellant had a right to file a claim
petition even more than six months after the expiry of the
period of limitation, and this right is preserved by reason
of the provisions of section 6 of the General Clauses Act,
1897. Reliance has been placed on clauses (c) and (e). The
relevant portion of the section reads thus:
"6. Effect of repeal-Where this Act, or any
Central Act or Regulation made after the
commencement of this Act, repeals any enact-
ment 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;
or
(e) affect any investigation, legal proceeding
or remedy in
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respect of any such right, privilege, obliga-
tion, liability, penalty, forfeiture or pun-
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ishment as 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 the repeating
Act or Regulation had not been passed."
We are unable to agree. Clause (e) is not attracted because,
by the enactment of the new law the remedy of the appellant
has not been affected at all. His right to claim compensa-
tion by filing the claim within the same period of limita-
tion has been preserved. And there was no application for
condonation of delay in a proceeding pending at the time of
repeal so as to allow him to claim any privilege available
under the old Act. So far the applicability of clause (c) is
concerned, the question depends on whether the appellant had
got an accrued right or privilege under the old law which he
could not have been deprived of by the repealing legisla-
tion.
6. Even independent of the General Clauses Act, it is
firmly established that unless a new statute expressly or by
necessary implication says so, it will not be presumed that
it deprives a person of an accrued right. On the other hand,
a law which is procedural in nature, and does not affect the
rights, has to be held to be retrospectively applicable. The
question is whether the appellant has been deprived of an
accrued right or privilege in the present case
7. It is true that the appellant earlier could file an
application even more than six months after the expiry of
the period of limitation, but can this be treated to be a
right which the appellant had acquired. The answer is in the
negative. The claim to compensation which the appellant was
entitled to, by reason of the accident was certainly en-
forceable as a right. So far the period of limitation for
commencing a legal proceeding is concerned, it is adjectival
in nature, and has to be governed by the new Act-subject to
two, conditions. If under the repealing Act the remedy
suddenly stands barred as a result of a shorter period of
limitation, the same cannot be held to govern the case,
otherwise the result will be to deprive the suitor of an
accrued right. The second exception is where the new
enactment leaves the claimant with such a short period for
commencing the legal proceeding so as to make it impractical
for him to avail of the remedy. This principle has been
followed by this Court in many cases and by way of illustra-
tion we would like to mention New India Insurance Co. Ltd.
v. Smt. Shanti
917
Misra, [1976] 2 SCR 266. The husband of the respondent in
that case died in an accident in 1966. A period of two years
was available to the respondent for instituting a suit for
recovery of damages. In March, 1967 the Claims Tribunal
under section 110 of the Motor Vehicles Act, 1939 was con-
stituted, barring the jurisdiction of the civil court and
prescribing 60 days as the period of limitation. The re-
spondent filed the application in July, 1967. It was held
that not having filed a suit before March, 1967 the only
remedy of the respondent was by way of an application before
the Tribunal. So far the period of limitation was concerned,
it was observed that a new law of limitation providing for a
shorter-period cannot certainly extinguish a vested right of
action. In view of the change of the law it was held that
the application could be filed within a reasonable time
after the constitution of the Tribunal; and, that the time
of about four months taken by the respondent in approaching
the Tribunal after its constitution, could be held to be
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either reasonable time or the delay of about two months
could be condoned under the proviso.to section 110A(3).
8. The learned counsel strenuously contended that the
present case must be considered as one where an accrued
right has been affected, because the option to move an
application for condonation of delay belatedly filed should
be treated as a right. This cannot be accepted. There is a
vital difference between an application claiming compensa-
tion and a prayer to condone the delay in filing such an
application. Liberty to apply for a right is not in it selt
an accrued right or privilege. To illustrate the point, we
may refer to some cases.
9. In Director of Public Works and Another v. Ho Po Sang
and Others, [1961] 2 AER 721 a Crown lessee in respect of
certain premises which were in occupation of tenants and
sub-tenants entered into an agreement with the appellant
Director for developing the site by erecting buildings. The
erection of the new buildings necessitated the demolition of
the existing buildings. Under the provisions of an Ordinance
a Crown lessee was entitled to recover vacant possession of
the premises if he obtained a re-building certificate from
the Director. On the application of the Crown lessee a
proceeding for grant of the certificate was started and the
Director issued a notice under the Ordinance indicating his
intention to grant the re-building certificate. Before the
certificate could be finally issued, the relevant provision
of the Ordinance entitling the lessee to recover vacant
possession of the premises was repealed. The lessee claimed
the right to vacant possession by relying on certain provi-
sions dealing with rules of interpretation similar in terms
to section 6 of our General Clauses Act. The plea
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was rejected on the ground that although the lessee was
entitled to make an application for vacant possession before
the Ordinance was repealed, it did not amount to an accrued
right or privilege, capable of being preserved after the
repeal of the Ordinance, as the right was dependent on the
actual issuance of a certificate.
In an earlier case of Abbott v. Minister of Lands,
[1895] AC 425 the appellant was entitled to make purchases
of Crown land adjoining his holding by virtue of certain
statutory provisions, which were repealed before he could
effectively enforce his right. Besides raising other grounds
in respect of his claim, he argued that the right which he
had under the repealed enactment was a "right accrued" and
of which he could not be deprived of by the repeal. Reject-
ing the plea, it was observed that the mere right existing
in a class of persons to take advantage of an enactment,
cannot in absence of any act done by the claimant towards
availing himself of that right be deemed a "right accrued".
10. In Isha Valimohammad & Anr. v. Haji Gulam Mohammad &
Haji Dada Trust, [1975] 1 SCR 720 the respondents let out
the premises in question to the appellants in 1951 in a
place where, by the Saurashtra Rent Control Act, sub-letting
by a tenant was prohibited. The appellants sub-let the
premises at a time when the Act was in force. In 1963 the
Act was repealed and the Bombay Rent Act was made applica-
ble, under which there was no such prohibition against sub-
letting. In a suit for eviction filed subsequently the High
Court assumed that a notice under the Transfer of Property
Act was necessary to terminate the tenancy which had not
been done before the repeal, but still held that since the
respondents had an accrued right within the meaning of
section 51 of the Bombay Rent Act (the provisions whereof
were similar to those in section 6 of the General Clauses
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Act) the respondents were entitled to a decree. The decree
was confirmed by the Supreme Court but not on the above
ground. This Court held that a notice under the Transfer of
Properties Act was not necessary and in that view it con-
firmed the decree of the High Court. With respect to the
finding of the High Court regarding the respondents acquir-
ing an accrued right even on the assumption that a notice
under the Transfer of Properties Act was necessary, it was
held that the right of a landlord to recover possession is
not an accrued right before the issue of a notice if under
any law it was necessary for the landlord to issue the
notice to determine the tenancy. The principle laid down
there supports our view.
919
A question, though not identical, but somewhat similar
Came up for consideration by this Court in Lalji Raja and
Sons v. Firm Hansraj Nathuram, [1971] 1 SCC 721. The appel-
lants had obtained a money decree against the respondents in
a court in West Bengal in 1949, and got it transferred for
execution to the court at Morena in the then State of Madhya
Bharat. On the respondents objection on the ground of lack
of jurisdiction the Madhya Bharat Court dismissed the execu-
tion petition. The matter was thereafter taken to the High
Court and this Court, but without any success. The decision
partly rested on the ground that the Indian Code of Civil
Procedure was not applicable to the State of Madhya Bharat.
Subsequently the Code was extended tO that area which had
become a part of the State of Madhya Pradesh and a fresh
order was passed by the West Bengal Court transferring the
decree to Morena Court. The judgment debtors challenged the
jurisdiction of the court on various grounds. One of the
points which was urged was that in view of section 20 clause
(b) of the Code of Civil Procedure (amendment) Act, 1951 by
which the Code was extended to Madhya Bharat and other
areas, the Judgment debtors’ right to resist the execution
was protected. Reliance was placed on the proviso to the
repeal clause in the section which declared that the repeal
would not affect any fight, privilege, obligation or liabil-
ity acquired accrued or incurred under the repealed clause.
The judgment debtors objection was over-ruled by this Court.
Relying on several English decisions including that in
Abbott v. Minister for Lands, [1895] AC 425, it was observed
that the mere right existing at the date of the repeal of
statute, to take advantage of provisions of the statute
repealed is not a "right accrued" within the meaning of the
usual saving clause.
11. In the case before us the period of limitation for
lodging the claim under the old as well as the new Act was
same six months which expired three weeks after coming in
force of the new Act. It was open to the appellant to file
his claim within this period or even later by 22.7.1989 with
a prayer to condone the delay. His right to claim cOmpensa-
tion was not affected at all by the substitution of one Act
with another. Since the period of limitation remained the
same there was no question of the appellant being taken by
surprise. So far the question of condonation of six months
delay was concerned, there was no change in the position
under the new Act. In this background the appellant’s fur-
ther default has to be considered. If in a given case the
accident had taken place more than a year before the new Act
coming in force and the claimant had actually filed his
petition while the old Act was in force but after a period
of one year, the position could be different. Having actual-
ly initiated the proceeding when the old Act
920
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covered the field a claimant could say that his right which
had accrued on filing of the petition could not be taken
away. The present case is different. The right or privilege
to claim benefit of a provision for condonation of delay can
be governed only by the law in force at the time of delay.
Even the hope or expectation of getting the benefit of an
enactment presupposes applicability of the enactment when
the need arises to take its benefit. In the present case the
occasion to take the benefit of the provision for condona-
tion of delay in filing the claim arose only after repeal of
the old law. Obviously the ground for condonation set up as
’sufficient cause’ also relates to the time after the re-
peal. The benefit of the repealed law could not, therefore,
be available simply because the cause of action for the
claim arose before repeal. ’Sufficient cause’ as a ground of
condonation of delay in filing the claim is distinct from
’cause of action’ for the claim itself. The question of
condonation of delay must, therefore, be governed by the new
law. We accordingly hold that the High Court was right in
its view that the case was covered by the new Act, and delay
for a longer period than six months could not be condoned.
The appeal is dismissed, but in the circumstances, without
costs.
G.N. Appeal dis-
missed.
921