MOHAN AGARWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE following question of law was referred by a Division Bench for the opinion of the larger Bench. "Whether the Bengal Army Regulation Governor General Order No. 179 dated September 12, 1836 continues to be law in force in India even after the enforcement of the British Statutes (Application to India) Repeal Act, 1960 (Act No. LVII of 1960) ? THE question had arisen in the writ petitions filed to challenge the notices of resumption issued by the Union of India exercising the right of resumption under the grants on the basis of which the petitioners, according to the respondents, were holding the lands.

(2.) THE action is being taken in exercise of the power under the Governor General Order No. 179 dated September 12, 1836. THE Order does not indicate the source of power. THE source of power can, however, be traced to the Government of India Act, 1833. Section 43 of this Act provided that the said Governor-General in Council shall have the power to make Laws and regulations for repealing, amending or altering any laws and regulations whatever now in force. THE Preamble of Order No. 179 of September 12, 1836 provides that by rescinding the various Orders in force, Regulations were being promulgated thereunder. THE proviso to S.45 of the 1833 Act reads as under :- "Provided also that all laws and regulations made as aforesaid, so long as they shall remain unrepealed, shall be the same force and effect within and throughout the said territories as any Act of Parliament would or ought to be within the same territories and shall be taken notice of by all courts of justice whatsoever within the same territories, in the same manner as any public Act of Parliament would and ought to be taken notice of; and it shall not be necessary to register or publish in any court of justice any laws or regulations made by the said Governor-General in Council." This Act continued till the Government of India Act, 1915 repealed it. Section 130 of the Government of India Act, 1915 provides :

(3.) THE question referred to us has to be answered in the light of these aforesaid enactments.