ORIENTAL INSURANCE CO LTD Vs. DHANRAM SINGH

JUDGEMENT

(1.) When this appeal first came before us, we were tentatively of the opinion that it would not be maintainable under the provisions of S.173 of the Motor Vehicles Act, 1988, since the proceedings arose under the old Motor Vehicles Act. After hearing the learned counsel for the appellant, however, we disposed of the matter by our order dated 4th August, 1989 (reported in AIR 1990 All 30) holding that even an appeal arising out of proceedings under S.110-A of the Motor Vehicles Act, 1939 would now be maintainable under S.173 of the Motor Vehicles Act, 1988. The appellant has now moved an application for review of our earlier decision on the ground that while disposing of the question of maintainability of the appeal under S.173 of the new Act, we have wrongly directed that such appeals must also comply with the conditions as are laid down in the section. It is contended that this aspect of the matter was also urged on earlier occasion but due to some oversight, this has not been considered in the light of the submissions made then. Having heard the learned counsel for the appellant at some length, we do feel that the cases that were cited earlier and also during the arguments now, the appellant did raise the question that an appeal under the old Motor Vehicles Act would lie under the new Act and that such appeal would be subject to the same conditions as were applicable to it under the repealed Act. We have, therefore, heard the submissions made by the counsel on that aspect again in the light of various cases touching upon the point involved herein.

(2.) The earlier case on which reliance has been placed by the learned counsel for the appellant is Nagendra Nath Bose v. Mon Mohan Singha Roy, AIR 1931 Cal 100. In this case some of landlords (decree holder) had instituted a suit for rent against the tenant of a tenure for rent. The suit was decreed for realisation of Rs. 1306-15 Annas and was put in execution. The tenure of the judgment debtor was put up to sale and one Satish Chandra Singh Chaudhury had purchased the same. Thereupon the judgment-debtor has applied to get the sale set aside but his case was dismissed for default. Against that order he preferred an appeal to the District Judge who dismissed it on the ground that it could not be entertained inasmuch as the provision of the amended S.174, Tenancy Act had not been complied with by making the deposit required by sub-sec. 5 of that section. It was held in this case that right of appeal is a substantive right and cannot be affected by any amendment unless it appears that the legislation desires to do so either expressly or through necessary intendment.

(3.) The second case on which reliance has been placed is H. K. Dada (India Ltd.) v. State of Madhya Pradesh, AIR 1953 SC 221. In this case appellant assessee had submitted returns to the Sales Tax Officer, Akela. The Sales Officer on inspection of accounts book was not satisfied about his correctness and was of opinion that taxable turn over was Rs. 2,00,000/-. The Sales Tax Officer has submitted the case to the Assistant Commissioner. The Assistant Commissioner issued a notice and after hearing the assessee passed an order of assessment. As against this order the assessee preferred an appeal to the Sales Tax Commissioner Madhya Pradesh under section 22(1), Central Provinces and Berar Sales Tax Act, 1947. This appeal was not accompanied by a proof of payment of the tax in respect of which the appeal has been preferred. Ultimately the authority declined to admit the appeal. The assessee moved Board of Revenue Madhya Pradesh by a revision application against the order of Sales Tax Commissioner contending that his appeal was not governed by the provision of S.22, sub-sec. (1) of the Act as amended after institution of the proceeding but was governed by the proviso to S.21(2) of the Act as it stood when the proceedings were started. On these facts the Supreme Court had observed that the amendment of proviso has placed a substantial restriction on the assessee's right of appeal. It was held that imposition of such a restriction by amendment of this section cannot affect the assessee's right of appeal from a decision in a proceeding which commenced prior to such amendment where right of appeal was free from such restriction under the section as it stood at the time of commencement of the proceeding.