REPEAL OF STATUTES

Meaning

Repeal means to revoke, abrogate or cancel particularly a statute. Any statute may repeal any Act
in whole or in part, either expressly or impliedly by enacting matter contrary to and inconsistent
with the prior legislation. Thus a statute frequently states that certain prior statutory provisions
are thereby repealed. The courts will treat matter as repealed by implication only if the earlier
and later statutory provisions are clearly inconsistent. When a repealing provision is
itself repealed, this does not revive any provision previously repealed by it, unless intent to
revive is apparent, but it may allow common law principles again to apply Under General
Clauses Act, 1897, Section 6 "Repeal" connotes abrogation or obliteration of one statute by
another, from the statute book as completely "as if it had never been passed." When an Act is
repealed "it must be considered (except as to transactions past and closed) as if it had never
existed."

Right of Repeal Inherent in Legislation

Just as the Legislature has the power to enact laws, similarly it has the power to repeal laws. The
efficacy of the Legislature depends upon the possession of the power to repeal the existing law,
for without this attribute the power to enact would be a nullity, and the body of the law a series
of contradictory enactments. Consequently the legislative power to repeal prior laws is not
inhibited by any constitutional prohibitions, but exists as a necessary part and increment of the
legislative power and function No statute can make itself secure against repeal. There is nothing
to prevent any Parliament from enacting that a particular statute shall never in any circumstances
be altered or abrogated, and at certain troubled periods of history this seems to have been the
intention of the legislators. It is within the power of any Parliament to repeal any of the Acts
passed by its predecessors and that it is not within the power of any Parliament to prevent the
repeal of any of its own Acts, or to bind its successors.
Object of “Repealing Acts”

Repealing and amending Acts have no legislative effect, but are designed for editorial revision
,being intended only to excise dead matter from the statute book and to reduce its volume.
Mostly, they expurgate amending Acts, because having imparted the amendments to the main
Acts, those Acts have served their purpose and have no further reasons for their existence. At
times, inconsistencies are also removed by repealing and amending Acts. The only object of such
Acts, which in England are called Statute Law Revision Acts, is legislative spring-cleaning and
they are not intended to make any change in the law1

Perpetual and Temporary Statutes

A statute is either perpetual or temporary. It is perpetual when no time is fixed for its duration2,
and such a statute remains in force until its repeal which may be express or implied. A perpetual
statute is not perpetual in the sense that it cannot be repealed; it is perpetual in the sense that it is
not abrogated by efflux of time or by non-user. A statute is temporary when its duration is only
for a specified time, and such a statute expires on the expiry of the specified time unless it is
repealed earlier. Simply because the purpose of a statute, as mentioned in its preamble, is
temporary, the statute cannot be regarded as temporary when no fixed period is specified for its
duration. The Finance Acts which are annual Acts are not temporary Acts and they often contain
provisions of a general character which are of a permanent operation. A cessation of transitional
legislative power has also no effect on the continuance of a perpetual Act enacted during the
continuance of that power. The duration of a temporary statute may be extended by a fresh
statute or by exercise of a power conferred under the original statute 3 .When the life of a
temporary Act is merely extended, it cannot be said that a new law has been enacted; but if the
extension is accompanied by any substantial amendment, it would not be a case of mere

1
Khudi Bux v. Manager, Caledonian Press, A. I. R. 1954 Cal. 48
2
Jotindranath v. Province of Bihar, AIR 1949 FC 175
3
Inder Singh v. State of Rajasthan, AIR 1957 SC 510 : 1957 SCR 605
extension4.It appears that after a temporary statute expires, it cannot be made effective by merely
amending the same. The only apt manner of reviving the expired statute is by re-enacting a
statute in similar terms or by enacting a statute expressly saying that the expired Act is herewith
revived

Effect of Expiry of Temporary Repeal

. Wicks v.Director of Public Prosecutions

Held: When a temporary Act expires, section 6 of the General Clauses Act, 1897, which in terms
is limited to repeals, has no application, and the same has been held in the case of. The effect of
expiry, therefore, depends upon the construction of the Act itself.

Steavenson v.Oliver5.

Held: The judgment in the instant case is the leading authority on the point and the dicta
of Justice Park, B, in the same reads that “The extent of the restrictions imposed and the duration
of its provisions, are matters of construction”.

a. Legal Proceedings under Expired Statute

A question often arises in connection with legal proceedings in relation to matters connected
with a temporary Act, whether they can be continued or initiated after the Act has expired. The
answer to such a question is again dependent upon the construction of the Act as a whole. The
Legislature very often enacts in the temporary Act a saving provision similar in effect to section
6 of the General Clauses Act, 1897. But in the absence of such a provision the normal rule is that
proceedings taken against a person under a temporary statute ipso facto terminate as soon as the
statute expires. A person, therefore, cannot be prosecuted and convicted for an offence against
the Act after its expiration in the absence of a saving provision; and if a prosecution has not

4
Kaiser-l-Hind Pvt. Ltd. v. National Textiles Corporation, AIR 2002 SC 3404 p. 3426 : (2002) 8 SCC 182
5
(1841) 151 ER 1024
ended before the date of expiry of the Act, it will automatically terminate as a result of the
termination of the Act6.

District Mining Officer v.Tata Iron and Steel Co7

Facts: Certain State Acts imposed cess or other taxes on minerals which were declared
void in different cases by the Supreme Court. Thereafter Parliament enacted the Cess and other
Taxes on Minerals (Validation) Act, 1992 which included the said Acts in a Schedule. Section 2
of the Validation Act provides: 'The laws specified in the Schedule to this Act shall be, and shall
be deemed always to have been, as valid as if the provisions contained therein relating to cess or
other taxes on minerals had been enacted by Parliament and such provisions shall be deemed to
remain in force up to the 4th day of April 1991".

Issue: The question before the Supreme Court was whether because of the Validation
Act the States were entitled to retain only the cess and taxes already collected before 4th April,
1991or whether they were also entitled to collect the cess and taxes due up to 4th April 1991 but
not collected till that date.

Reasoning and judgment: In holding that the Validation Act did not enable the States
to collect the cess and taxes not collected till 4th April 1991, one of the reasons given by the
Court was that the effect of section 2 was that the Acts invalidated became temporary statutes
expiring on 4thApril, 1991 and as there was no saving clause in the Validation Act and as section
6 of the General Clauses Act had no application to expiry of a temporary statute there could not
be recovery and collection of cess and taxes which may have become due but were not collected
till4th April, 1991.

6
R. v. Wicks
7
AIR 2001 SC 3134
Attorney General for India v. Amratlal Prajivandas

Facts: Article 352 of the Constitution provides for proclamation of emergency in case of
war or external aggression or armed rebellion. Article 358 suspends the fundamental rights under
Article 19 and Article 359 enables the President to suspend enforcement of other fundamental
rights except Articles 20 and 21 during the period of emergency. The result is that a law made
during the emergency even if violative of any fundamental right (except Articles 20 and 21) is
not open to challenge on that ground. But such laws 'cease to have effect-except as respects
things done or omitted to be done' during their operation after the proclamation of emergency is
withdrawn. During the period of emergency, when the fundamental right under Article 22 was
suspended by an order of the President under Article 359, Parliament added section 12A in the
Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA). This
section which was to have effect only during the period of emergency enabled detention in
violation of clauses (4) and (5) of Article 22. Detention orders passed under section 12A
of COFEPOSA were withdrawn after the Emergency when the section itself expired. But such
orders were made the foundation for taking action under the Smugglers and Foreign Exchange
Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA).

Issue: In proceedings to challenge the notices under SAFEMA it was contended that the
detention orders under section 12A of COFEPOSA were void being violative of fundamental
right under Article 22 and could not be relied upon for SAFEMA.

Held: This contention was negatived on the ground that the detention orders under
section 12A COFEPOSA were 'things done' under that section and could not be treated to be
void after expiry of section 12A because of the saving clause 1A of Article 359 'as respects
things done or omitted to be done' during the period section 12A was in operation8.

8
Attorney General for India v. Amratlal Prajivandas, JT 1994(3) SC583
b. Notifications, Orders, Rules, etc. made under temporary statute

Trust Mai Lachhmi Sialkoti Bradari v. Amritsar Improvement Trust

Facts: The petitioner was facing detention under a temporary statute relating to preventive
detention. The statute got expired but some of its provisions were re-enacted.

Issue: will detention automatically come to an end on the expiry of the statute?

Held: When a temporary Act expires, the normal rule is that any appointment, notification,
order, scheme, rule, form or bye-law made or issued under the Act will also come to an end with
the expiry of the Act and will not be continued even if the provisions of the expired Act are re-
enacted; the reason being that section 24 of the General Clauses Act, 1897, does not apply to
such a situation9.

c. Expiry does not make the statute dead for all purposes

But a temporary statute, even in the absence of a saving provision like section 6 of the General
Clauses Act, is not dead for all purposes. As already stated the question is essentially one
of construction of the Act. The nature of the right and obligation resulting from the provisions of
the temporary Act and their character, may have to be regarded in determining whether the said
right or obligation is enduring or not. Thus, a person who has been prosecuted and sentenced
during the continuance of a temporary Act for violating its provisions cannot be released before
he serves out his sentence, even if the temporary Act expires before the expiry of full period of
the sentence

Steavenson v. Oliver

Facts: Under section 4 of VI Geo. 4, c. 133, every person who held a commission or warrant as
surgeon or assistant surgeon became entitled to practice as an apothecary without having passed
the usual examination. This statute was temporary and expired on 1st August, 1826.

Issue: shall the provisions of the expired statute be still operative?

9
Trust Mai Lachhmi Sialkoti Bradari v. Amritsar Improvement Trust, AIR 1963 SC 976
Held: It was held that a person who had acquired a right to practice as an apothecary under the
Act without passing the usual examination was not deprived of that right on expiration of the
Act10.

d. Repeal by a temporary statute

When a temporary statute affects a repeal of an existing statute, a question arises whether the
repealed statute revives on the expiry of the repealing statute. Section 11(1) and section 38(2)
(a)of the Interpretation Act, 1899, in terms are limited to cases of repeals of a repealing
enactment and have no application to a case of expiry of a repealing Act. As regards the General
Clauses Act, 1897, section 6(a), which corresponds to section 38(2)(a) of the Interpretation Act,
is also in terms limited to repeals; and therefore has no application on expiry of a repealing
statute. But in section 7 of the General Clauses Act, which corresponds to section 11(1) of the
Interpretation Act, the language is slightly different. However, having regard to the context and
the setting of the section it appears also to be inapplicable to a case of expiry of a repealing
statute. The answer, therefore, to the question, whether a statute which is repealed by a
temporary statute revives on the expiry of the repealing statute, will depend upon the
construction of the repealing statute. As regards the effect of the repealing of an earlier Act made
by a temporary Act, observed Gajendra gadkar, J. "the intention of the temporary Act in
repealing the earlier Act will have to be considered, and no general or inflexible rule in that
behalf can be laid down." As was stated by Ellen borough, C.J.: "A law, though temporary in
some of its provisions, may have a permanent operation in other respects. The statute 26 Geo. 3,
c. 108 professes to repeal the statute 19 Geo. 2, c. 35, absolutely, though its own provisions,
which it substituted in place of it, were to be only temporary."

10
Steavenson v. Oliver, (1841) 151 ER 1024
State of Haryana v. Amarnath Bansal

Facts: The respondent was appointed as a civilian clerk in the Army in the erstwhile State of
Jind on July 12, 1943. In the Jind State the age of superannuation, as prescribed by Regulation 27
of the Jind State Civil Service Regulations, 1945, was 62 years. On May 5, 1948 the Ruler of
Jind State and the Rulers of the States of Patiala, Kapurthala, Nabha, Fariodkot, Malerkotla,
Nalagarh and Kalsia entered into a Covenant whereby they agreed to unite and integrate their
territories in one State to be known as Patiala and East Punjab States Union (for short "PEPSU").
As a result of the integration of the services of the union States, the respondent was posted as
Auditor in the Treasury in PEPSU. On the coming into force of the Constitution, PEPSU became
a Part B State and continued as such till the re-organisation of the States under the States Re-
organisation Act, 1956. As a result of the re-organization of the State of Punjab and the
formation of the State of Haryana by the Punjab Re-organisation Act 1966 with effect from
November 1, 1966, the respondent was allocated to the State of Haryana. While he was
employed as Assistant Treasury Officer in the State of Haryana, he was retired from service on
attaining the age of 58 years with effect from September 30, 1984.

Issue: whether his retirement at the age of 58 years was illegal and against the service condition
and was he was entitled to continue in service upto the age of 62 years.

Held: Jind State Civil Service Regulations, 1945 which were repealed by Pepsu Ordinance No.
16 of Samvat 2005 did not revive after six months when the Ordinance expired, for the intention
in repealing the Regulations was to repeal them absolutely11.

West U.P. Sugar Mills Association vs State Of U.P

Facts: In the year 1985, the government of Uttar Pradesh by amending rule 49 of the Rules
raised the society commission to .50 paise per quintal vide notification dated 11.7.85
Subsequently, the government of Uttar Pradesh by a subsequent notification dated 1.6.91 again
amended rule 49 and revised the rate of society commission from the existing rate of .50 paise
per quintal to 5% of the minimum statutory cane price fixed by the Central Government. the
State Government on the representation of the appellants reduced the rate of society commission

11
State of Haryana v. Amarnath Bansal, 1997 (1) scale 434, pp. 351,352.
from 5% of the minimum statutory price of sugarcane to 2.69% of the minimum statutory price
of sugarcane which worked out to .70 paise per quintal. This was done by the amendment of rule
49 of the Rules by notification dated 24.4.92. The affect of the aforesaid notification was that
existing rule 49 was deleted and in its place new rule 49 was substituted. However, the
substituted rule remained operative from 1.10.91 to 30.9.92. It is not disputed that the appellants
herein continued to pay the society commission on the basis of substituted rule 49 i.e. @ 2.69%
of the minimum statutory price of sugarcane. After 30.9.92, the Cane Commissioner of Uttar
Pradesh issued a circular to the effect that the society commission after 30.9.92 shall be charged
@ 5% of the minimum statutory price of sugarcane fixed by the Central Government on the
premise that since the substituted rule came to be inoperative after 30.9.92, the old rule 49 has
revived.

Issue: Whether substitution of rules shall lead to revival

Held: Rule 49 of the U.P. Sugarcane (Regulation of Supply and Purchase) Rules substituted by
the Amendment Rules 1992 (which were to have effect from 1-10-1991 to 30-9- 1992) in place
of the then existing rule 49 was held to repeal the existing rule absolutely which was not revived
after the expiry of the substituted rule.

If the repealing section in a temporary statute on construction, is held to expire with the expiry
of the Act, the repeal will be construed only as a temporary repeal. Section 1 of Statute 46 Geo. 3
repealed the provisions of Statute 42 Geo. 3 and substituted some other provisions. Section 14
of the repealing Act provided that the Act shall continue in force till a certain period. It was held
that 'the Act' referred to in section 14 included whole of the Act and incorporating section 1 with
section 14, the repeal expired with the expiry of the Act reviving the operation of the earlier Act.
The Privy Council observed to the same effect in Gooderham & Worts case12 when it said that
the repeal effected by the temporary legislation was only a temporary repeal. When by the fiat
of Parliament the temporary repeal expired, the original legislation automatically resumed its full
force. No enactment of it was required.

12
Gooderham & Worts v. C.B. Corpn., AIR 1949 PC 90, 94
Mode of Repeal

Express Repeal and Repeal by implication

Repeal of a statute may be express or by necessary implication.

Ambala Ex-Servicemen T. Co-operative Society v. Punjab State

Facts: On 10-10-1957, the State Transport Commissioner, Punjab, granted 5 public carrier
permits one each to Respondents Nos. 4 to 8 for a period of 4 months and directed the Regional
Transport Authority, Ambala, to issue the same. The Regional Transport Authority by their
resolution No. 13 passed on 17-10-1957, took exception to the aforesaid order and characterising
the same as illegal refused to comply with the same and resolved that the Chairman should
address the State Government on the subject in the light of the legal position.

Issue: Whether the words of this resolution indicated an implied repeal. If yes, then would it be
valid?

Held: It was held that there is no reason to restrict the meaning of the word ‘repeal’ merely to an
express repeal and to exclude the implied one, as the objective of the act has to be looked into
and the words of the resolution must be seen in that light.13.

Express repeal of a statute is usually made by stating that the earlier statute or a particular
provision therein is thereby repealed. Usually enactments repealed are mentioned in a schedule
attached to the repealing statute. Such express repeal needs no construction of the later statute.
The use of any particular form of words is not necessary to bring about an express repeal. All
that is necessary is that the words used show an intention to abrogate the Act or provision in
question. The usual form is to use the words 'is or are hereby repealed' and to mention the Acts
sought to be repealed in the repealing section or to catalogue them in a Schedule. The use
of words 'shall cease to have effect', is also not uncommon.

13
Ambala Ex-Servicemen T. Co-operative Society v. Punjab State, A. I. R. 1959 Pun
Bhagat Ram Sharma v. Union of India

Facts: The appellant was elected from the Kangra district West General Constituency, as a
member of the Punjab Legislative Assembly in the elections held in 1937 and 1946. By virtue of
section 5 of the Punjab (Provincial Legislature) Order, 1947, he became a member of the Join
Punjab Legislative Assembly. He continued to be a member of the Joint Punjab Legislative
Assembly as he had contested election again after the Assembly was dissolved in June, 1951.
On January 3, 1953, he was appointed a member of the Punjab State Public Service Commission
and retired as such on January 2, 1959. The district of Kangra was transferred to the new State of
Punjab formed under the States Reorganisation Act, 1956, w.e.f .November 1, 1956. Thereafter,
the Kangra district was added to the Union Territory of Himachal Pradesh w.e.f. November 1,
1966. Himachal Pradesh was established as a State w.e.f. January 25, 1971, and the Kangra
West General Constituency from which the appellant had been elected all along, stood
transferred to the State of Himachal Pradesh, and he was deemed to have been elected to the
Legislative Assembly of Himachal Pradesh-under the provisions of the State of Himachal
Pradesh Act, 1970.

Issue: whether the appellant shall be entitled to receive pension?

Reasoning: When the object is to repeal only a portion of an Act words 'shall be omitted' are
normally used. The legislative practice in India shows that 'omission' of a provision is treated as
amendment which signifies deletion of that provision and is not different from repeal14.

Held: The appellant shall not be entitled to get pension.

It has been held that "there is no real distinction between repeal and an amendment." It has also
been held that "where a provision of an Act is omitted by an Act and the said Act simultaneously
re-enacts a new provision which substantially covers the field occupied by the repealed provision
with certain modification, in that event such re-enactment is regarded having force continuously
and the modification or changes are treated as amendment coming into force with effect from the
date of enforcement of re-enacted provision."

14
Bhagat Ram Sharma v. Union of India. AIR 1988 SC 740 p. 746
State of West Bengal v. Pronob Kr. Sur

Facts: In the year 1976, the 2nd Respondent by name Sur Enamel & Stamping Works (Private)
Ltd. (hereafter referred to as 'Company'), filed a declaration under the ULC Act. In the year
1991, the Company totally suspended its operations on account of financial and marketing
problems. It may be stated that the assets of the Company viz. the factory building, plant and
machinery, contiguous land etc. were mortgaged to United Bank of India through equitable
mortgage and the Bank filed a suit in the year 1992 for recovery of money by enforcing the
mortgage. The Company filed an application under Section 20 ULC Act on 18.6.1991 seeking
exemption of excess vacant land held by it on the ground that part of the vacant land had to be
necessarily sold for discharging the dues and for revival of the Company. As the things stood
thus, a creditor of the Company by name Eastern Coal Agency, filed Company Petition No. 90 of
1992 in the High Court of Calcutta for winding up the Company on the ground of its inability to
discharge the debts. The said petition was admitted on 16th March, 1992. However, further
proceedings including advertisement were stayed subject to the condition of the Company paying
the amount due to the creditor in installments. The installments could not be paid by the
Company as directed. While so, the Company came forward with a 'scheme application'
purportedly under Sections 391(1) & 391(6) of the Companies' Act. The scheme envisaged
payment being made to the creditors by sale of a portion of the Company's land measuring 20
bighas. The learned Judge dealing with the Company Petition rejected the application by an
order dated 22.12.1993 on the ground that the property was mortgaged to the Bank and the
scheme was not feasible

Issue: whether the said act remains validated

Held: When a Central Act has been adopted under Article 252 by a State by a resolution passed
by the House or Houses of the Legislature of the State, the amendment or repeal of the Central
Act by Parliament does not affect its continuance as a State Act unless the Central amending or
repealing Act is also adopted under Article 252 by the State by a resolution of the House or
Houses of the Legislature15.

15
SC 2313,p. 2319 : (2003) 9 SCC 490
Substitution of a provision results in repeal of the earlier provision and its replacement by the
new provision 16 .Substitution thus combines repeal and fresh enactment. Sometimes the
expression used in the later statute runs :

a. “all provisions inconsistent with the Act are repealed,"

b. "all Acts and parts of Acts in conflict with the provisions of this Act are hereby repealed,"

or

c. ''all laws and parts of laws in conflict herewith are expressly repealed".

Provisions of this character leave the question open as to what laws are inconsistent and are
intended to be so repealed. One view therefore is that here is a case not of express repeal but by
implication and therefore all rules of law which apply to implied repeals generally will be
applicable to repeals brought about in the aforesaid manner. The question naturally arises in such
cases as to the extent or scope of the repeal. Thus where a repealing clause expressly refers to a
portion of the prior Act, the remainder of such Act will not usually be repealed, as a presumption
is raised that no further repeal is necessary, unless there is irreconcilable inconsistency between
them. In like manner, if the repealing clause is by its terms confined to a particular Act, quoted
by title it will not be extended to an Act upon a different subject. And a general Act repealing all
Acts inconsistent therewith, will usually apply to general Acts and not to special or local laws.
The reason behind this rule, according to Crawford finds its foundation in two premises: the
special Act is not repealed because it is not named, or because there is no absolute inconsistency
between the general Act and the special Act. Consequently, if the repealing Act named the
special Act or if the two were irreconcilably inconsistent, the special Act would also be
terminated. Where there is direct reference in the repealing clause to a particular Act, it is a case
of express repeal. But where there is no direct reference, the matter will have to be determined
by taking into account the exact meaning and scope of the words contained in the repealing
clause and the principles of law which govern the interpretation of the same. Principles
governing the cases of implied repeal can in such a case be called in aid to determine whether
there is effective repeal of the earlier statute. Court has to suppose that the Government have a

16
State of Rajasthan v. Mangilal Pindwal
consistent design and policy and intend nothing that is inconsistent or incongruous. Prior statutes
are held to be repealed by implication by subsequent statutes if the prior enactment is special and
the subsequent one is general. This rule must not be pressed too far. If a special enactment and a
subsequent general enactment are absolutely repugnant and inconsistent with one another, the
Courts have no alternative but to declare the prior special enactment as repealed by the
subsequent general Act. In all such cases the legislative intention, rather than grammar or letter
of the enactment, is the determining factor. If the intention is found to be to sweep away all
previous orders and to establish one rule for all belonging to a class of persons that will be
sufficient to get rid of any previous special provision 17 . There is no doubt that a repeal by
implication is just as effective as by express words. The general rule is that when you have an
Act of Parliament enacting particular provisions and in a subsequent Act there are provisions
which are inconsistent with the provisions of the first Act both enactments cannot stand together.
The enactment in the second Act stands and repeals the enactment in the first Act. Of course
from the necessity of the case it is an implied and not an express repeal. Where two statutes
passed in the same year appear to be repugnant, that which was passed latest must prevail. A
repeal by implication is only effected when the provisions of a later enactment are so
inconsistent with or repugnant to the provision of an earlier one that the two cannot
stand together. A prior general Act may be affected by a subsequent particular or special Act if
the subject-matter of the particular Act prior to its enforcement was being governed by the
general provisions of the earlier Act. In such a case the operation of the particular Act may have
the effect of partially repealing the general Act, or curtailing its operation, or adding conditions
to its operation for the particular cases. The distinction may be important at times for
determining the applicability of those provisions of the General Clauses Act, 1897,
(Interpretation Act, 1889 of U.K. now Interpretation Act, 1978) which apply only in case of
repeals.

Municipal Board, Bareilly v. Bharat Oil Co18,

Facts: the State Government had framed rules regulating the levy of octroi in general by all
municipalities. Thereafter, rules were framed by the State Government for levy of octroi by the

17
Ramji v. Dt. Superintendent, W. R., A. I. R. 1957 Madh. Bh. 155, 158.
18
AIR 1990 SC548
Bareilly municipality expressly providing that the new rules will apply in supersession of the
existing rules.

Issue: whether the rules framed by the state government amount to deemed repeal

Held: It was held that there was deemed repeal of the earlier rules in respect of Bareilly
municipality.

Presumption against Repeal

There is a presumption against a repeal by implication. The reason for the presumption is that the
legislature while enacting a law has a complete knowledge of the existing laws on the subject-
matter and therefore when it does not provide a repealing provision, it gives out an intention not
to repeal the existing legislation. The burden to show that there has been a repeal by implication
lies on the party asserting it. Courts can lean against implied repeal. If by any fair interpretation
both the statutes can stand together, there will be no implied repeal. If possible, implied repeal
shall be avoided19

Harshad Mehta v. state of Maharashtra

Facts: This case involves a high profile stamp scam. Though for the present purpose the relevant
facts includes the question whether a special judge holds pardoning power if not prescribed in
the general legislation.

Issue: whether inconsistency between the general act and the special legislation lead to implied
repeal?

Held: The court unable to accept the contention that there was any implied repeal. It also held
that it is not possible to accept that it was intended by necessary implication that the Special
Court under the Act shall not have the power to grant pardon

19
Harshad S. Mehta v. State of Maharashtra, (2001) 8 SCC 257: (2001) SCC (Cri) 1447
Where two enactments are entirely affirmative and identical no question of inconsistency can
arise. Where the operative terms of the two enactments are identical, and the enactments run
parallel to each other there can be so to speak no scope for the application of the doctrine
of implied repeal. But if a later statute describes an offence created by an earlier one and
provides for a different punishment, or varies procedure, the earlier statute is repealed by
implication. Similarly, where a latter statute expresses in affirmative language its applicability to
whole of India that would imply the repeal of an earlier statute or colonial law on the same
subject.

Cases of repeal by necessary implication

Hence a statute is repealed by implication in the following cases, namely:

1) If its provisions are plainly repugnant to those of the subsequent statute.

2) If the two standing together would lead to wholly absurd consequences.

3) If the entire subject-matter of the first is taken away by the second.

Consequences of Repeal

General

Under the common law rule the consequences of repeal of a statute are very drastic. Except as to
transactions past and closed, a statute after its repeal is as completely obliterated as if it had
never been enacted. The effect is to destroy all inchoate rights and all causes of action that may
have arisen under the repealed statute. Therefore, leaving aside the cases where proceedings
were commenced, prosecuted and brought to finality before the repeal, no proceeding under the
repealed statute can be commenced or continued after the repeal. Another result of repeal under
the common law rule is to revive the law in force at the commencement of the repealed statute.
Thus if one statute is repealed by a second which in turn is repealed by a third, the effect is to
revive the first statute unless a contrary intention is indicated in the third statute. The confusion
resulting from all these consequences gave rise to the practice of inserting saving clauses in
repealing statutes, and later on, to obviate the necessity of inserting a saving clause in each and
every repealing statute a general provision was made in section 38(2) of the Interpretation
Act,1889. Similar provision is made in India in section 6 of the Central General Clauses Act,
1897(Act X of 1897) as also in corresponding State legislations. Since repeal of a law takes
effect from the date of repeal and the law repealed remains in operation for the period before its
repeal without assistance of any saving clause for transactions past and closed, it can be
retrospectively amended to affect such transactions even after its repeal. Thus when Rule B made
under Article 309 of the Constitution substitutes Rule A, which in effect means that A is repealed
and B is enacted in its place, A can be amended retrospectively for the period during which it
was in operation to validate transactions past and closed.

State of Rajasthan v. Mangilal Pindwal 20

Facts: The passed rule permitted compulsory retirement of a Government servant by paying
three months salary. This rule was later repealed by substituting another rule in its place. During
the period the earlier rule was in operation, a Government servant was retired on payment of an
amount as salary but which was found on calculation later to be a little short of three months
salary making the retirement invalid. The rule was after its repeal retrospectively amended for
the period it was in operation to enable the Government to retire a Government servant forthwith
without paying him three months salary but entitling him to claim three months salary after
retirement.

Issue: whether a repealed act can be retrospectively amended

Reasoning: Since repeal of a law takes effect from the date of repeal and the law repealed
remains in operation for the period before its repeal without assistance of any saving clause for
transactions past and closed, it can be retrospectively amended to affect such transactions even
after its repeal

Held: This amendment was held to be valid and effective to validate the retirement of the
Government servant concerned.

20
State ofRajasthan v. Mangilal Pindwal, AIR 1996 SC 2181, p. 2183 : 1996 (5) SCC60
Effect of Repeal.

Where this Act, or any central Act or Regulation 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. revive anything not in force or existing at the time at which the repeal takes effect
b. affect the previous operation of any enactment so repealed or anything duly done or suffered
there under, or
c. affect any right, privilege, obligation or liability acquired, accrued or incurred under any
enactment so repealed; or
d. affect any penalty, forfeiture or punishment incurred in respect of any offence committed
against any enactment so repealed; or
e. affect any investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such
investigation, legal proceeding or remedy may be instituted, or continued or enforced and
any such penalty, forfeiture or punishment may be imposed as if the repealing Act or
Regulation had not been passed.

Section 6 of the General Clauses Act applies to all types of repeals. The section applies
whether the repeal be express or implied, entire or partial or whether it be repeal simpliciter
or repeal accompanied by fresh legislation. The section also applies when a temporary
statute is repealed before its expiry, but it has no application when such a statute is not
repealed but comes to an end by expiry
 Saving of rights acquired

The effect of clauses (c) to (e) of section 6, General Clauses Act is, speaking briefly, to prevent
the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued and
liabilities incurred during its operation and permit continuance or institution of any legal
proceedings or recourse to any remedy which may have been available before the repeal for
enforcement of such rights and liabilities. Thus, offences committed during the continuance of a
statute can now be prosecuted and punished even after its repeal^ a course which would not have
been possible under the common law rule of complete obliteration of a repealed statute. It must,
however, be noticed that 'any investigation, legal proceeding or remedy' saved by clause(e) is
only in respect of any right and privilege 'acquired' or 'accrued' and any obligation, liability,
penalty, forfeiture or punishment 'incurred' within the ambit of clauses (c) and (d) of section 6. In
respect of other matters though 'anything done' under the statute will not be invalidated after its
repeal by virtue of clause (b) of section 6, but it will be rendered abortive if no right was
acquired or had accrued and no liability had been incurred prior to repeal. Further, the saving of
rights and liabilities is in respect of those rights and liabilities which were acquired or incurred
under a repealed statute and not under the general law which is modified by a statute. In respect
of rights and liabilities acquired or incurred under the general law which is modified by a statute
the inquiry should be as to how far the statute is retrospective. And when a Code dealing with
procedure is repealed and replaced by a new Code, the new Code would speaking generally
apply for investigations or trials pending under the old Code for no person has a vested right in
any matter of procedure, unless the new Code by an express saving clause preserves the
continuance of the old Code for pending investigations and trials. The distinction between what
is, and what is not a right preserved by the provisions of section 6,General Clauses Act is often
one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued
under it and not a mere "hope or expectation of', or liberty to apply for, acquiring a right. A
distinction is drawn between a legal proceeding for enforcing a right acquired or accrued and a
legal proceeding for acquisition of a right. The former is saved whereas the latter is not. The
question whether a right was acquired or a liability incurred under a statute before its repeal will
in each case depend on the construction of the statute and the facts of the particular case. The
central issue in considering this question in a controversial case will generally be whether the
steps that remained to be taken under the repealed statute were steps necessary for acquiring a
right or incurring a liability or whether they were steps required merely for enforcing a right or
liability (at least contingent) that had come into existence. The right of an injured third party to
recover damages against the insurers of a motor vehicle will be an accrued right on the
happening of the accident resulting in the injury and will be enforceable against them even after
repeal of the enactment creating the liability, even though the process of quantification is not
complete before the repeal.

Revival

Under the English Common Law when a repealing enactment was repealed by another statute,
the repeal of the second Act revived the former Act. But this rule does not apply to repealing
Acts passed since 1850, and now if an Act repealing a former Act is itself repealed, the last
repeal does not revive the Act before repealed unless words are added reviving it. The present
rule is the result of the statutory provisions introduced by the Interpretation Act of 1889, but
though we are not bound by the provisions of any English Statute, we can still apply the English
Common Law if it appears to be reasonable and proper. But it may be noted that even according
to the Common Law doctrine, the repeal of the repealing enactment would not revive the original
Act if the second repealing enactment manifests an intention to the contrary21.

Ameer un nissa Begum v. Mahboob Begum

Facts: The nizam held the capacity to pass Firman’s having legislative capacity. The 'Firman' of
26-6-1947, as made by the Nizam, was repealed by the 'Firman' of 24-2-1949, and the latter
'Firman' in its turn was repealed by that of 7-9-1949

Issue: whether repealing of a repealing amount to automatic restoration of the previous law?

Reasoning: The common law rule of revival has been abrogated by sections 6(a) and 7 of the
General Clauses Act, 1897. The result, therefore, is that if one Act is repealed by a second which

21
Ameerunnissa Begum v. Mahboob Begum, AIR 1955 SC 352, 356
again is repealed by a third, the first Act is not revived unless the third Act makes an express
provision to that effect.

Held: Unless expressly stated in the act, the former law shall not get restored.

As regards revival of enactments section 6(a) covers what is more emphatically declared by
section 7, but the latter is limited in operation to enactments; whereas the former is wider in
operation and will prevent the revival of many other matters, e.g. the revival of a void contract or
of common law. When a provision is repealed by substitution of another provision in its place
and the Act making the substitution is declared invalid, the question of revival of the original
provision requires consideration of whether the Act has been declared invalid for want of
legislative competence or on other grounds. When a temporary statute affects a repeal of an
existing statute, a question arises whether the repealed statute revives on the expiry of the
repealing statute. Section 11(1) and section 38(2)(a)of the Interpretation Act, 1899, in terms are
limited to cases of repeals of a repealing enactment and have no application to a case of expiry of
a repealing Act. As regards the General Clauses Act, 1897, section 6(a), which corresponds to
section 38(2)(a) of the Interpretation Act, is also in terms limited to repeals; and therefore has no
application on expiry of a repealing statute. But in section 7 of the General Clauses Act, which
corresponds to section 11(1) of the Interpretation Act, the language is slightly different.
However, having regard to the context and the setting of the section it appears also to be
inapplicable to a case of expiry of a repealing statute. The answer, therefore, to the question,
whether a statute which is repealed by a temporary statute revives on the expiry of the repealing
statute, will depend upon the construction of the repealing statute. As regards the effect of the
repealing of an earlier Act made by a temporary Act, observed Gajendragadkar, J. "the
intention of the temporary Act in repealing the earlier Act will have to be was held that the Jind
State Civil Service Regulations, 1945 which were repealed by Pepsu Ordinance No. 16 of
Samvat 2005 did not revive after six months when the Ordinance expired for the intention in
repealing the Regulations was to repeal them absolutely22.

Similarly Rule 49 of the U.R Sugarcane (Regulation of Supply and Purchase) Rules substituted
by the Amendment Rules 1992 (which were to have effect from 1-10-1991 to 30-9- 1992) in

22
State of Haryana v.Amarnath Bansal , 1997 (1) Scale 343, pp. 351, 352
place of the then existing rule 49 was held to repeal the existing rule absolutely which was not
revived after the expiry of the substituted rule23. If the repealing section in a temporary statute on
construction, is held to expire with the expiry of the Act, the repeal will be construed only as a
temporary repeal. Section 1 of Statute 46 Geo. 3repealed the provisions of Statute 42 Geo. 3 and
substituted some other provisions. Section 14 of the repealing Act provided that the Act shall
continue in force till a certain period. It was held that 'the Act' referred to in section 14 included
whole of the Act and incorporating section 1 with section 14, the repeal expired with the expiry
of the Act reviving the operation of the earlier Act.24 In the Privy Council case already noticed25,
there are observations to the effect that a repeal by a temporary Act is prima facie only a
temporary repeal resulting in revival of the repealed provisions after the expiry of the repealing
Act. Those observations may here be quoted : "The result is that on 31st March, 1936, the
temporary legislation contained in the first Act of 1933repealing provisions of the principal Act
of 1932 and substituting other provisions came to an end not by the repeal of the temporary
legislation but by the efflux of the prescribed time. No question, as to the revival of the
temporary repealed provisions of the principal Act of 1932 by the repeal of repealing legislation,
arises. The repeal, effected by the temporary legislation, was only a temporary repeal. When by
the fiat of Parliament the temporary repeal expired, the original legislation automatically
resumed its full force. No enactment of it was required."

23
West U.P. Sugar Mills Association v. State of U.P., AIR 2002 SC 948
24
R. v. Rogers , (1809) 103 ER 891, p. 893.
25
Gooderham & Worts v. C.B. Corporation , AIR 1949 PC 90, p. 94
CONCLUSION

As for the conclusion, it has to be noticed that repealing a statute or provision is one of the most
effective feature as well as ingredient of law making mechanism in our country, and while
interpreting them the legislative intent, period of application and circumstances of the case must
be taken into concern. The approach of presumption against repeal by implication needs
reconsideration. The implied repeal doctrine should be restored to one that is sparingly, rather
than creatively, applied. The courts should displace no statute under this doctrine unless a later
enactment cannot be applied without interference from the earlier one. Such interferences should
not be invented and can often be avoided. The avoidance of conflict only becomes important
when two legal rules collide and cannot be reconciled to work together. Even though the original
justifications for the presumption against implied repeals are no longer universally accepted, no
comprehensive new justification has been offered for its use. Under-theorization of the
presumption has led to its too-rigid application, so that some courts seem to feel pressure to
reconcile conflicting statutes at any cost. This makes the courts’ interpretive conclusions
unpredictable and undermines the principle of legislative supremacy.
BIBLIOGRAPHY

1. Bindra, N.S., The Interpretation of Statutes And General Clauses Acts (Central and
State)with Phrases and Words, Law Publishers, Allahabad, 1961.
2. Gandhi, B.M., Interpretation of Statutes, Eastern Book Co., Lucknow, 2006.
3. Singh,G.P., Principles of Statutory Interpretation, Wadwa and Co., Nagpur, 2006
4. Yog, A.K., Interpretation of Statutes, Modern Law Publishers, New Delhi, 2009.