Repeal could undo whatever had already been done under it prospectively
Supreme Court of India
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Author: .....J.
Bench: T.S. Thakur, Gyan Sudha Misra
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITION
CRIMINAL APPEAL NO.597 OF 2010
Sushil Ansal Appellant
Versus
State Through CBI Respondent
(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010, 604/2010, 605-
616/2010 and 617-627/2010)
141. Mr. Jethmalani next contended that the withdrawal of notification dated 30th September, 1976
did not have the effect of creating an obligation for the occupiers of the cinema to remove the
additional seats that had been permitted under the said notification. In support of that submission,
he placed reliance upon Section 6 of the General Clauses Act, 1897 and two decisions of this Court
which according to him support the proposition that the principles underlying Section 6 are
attracted even to notifications no matter Section 6 does not in terms apply. Elaborating his
submission Mr. Jethmalani contended that the repeal of an enactment does not affect the previous
operation of any such enactment or anything duly done or suffered thereunder. On the same
principle withdrawal of notification dated 30th September, 1976 could not, according to Mr.
Jethmalani, affect the previous operation of the said notification or anything duly done or suffered
thereunder. This, contended Mr. Jethmalani, implied that additional seats permitted under
notification dated 30th September, 1976 could continue in the theatre, no matter the notification
under which they were permitted was withdrawn.
142. We regret our inability to accept that line of reasoning. We say so for reasons more than one. In
the first place Section 6 of the General Clauses Act does not, in our opinion, have any application to
repeal of any rule, notification or order. The provision makes no reference to repeal of a rule,
notification or order. It reads:
6. Effect of repeal.- Where this Act, or any 1[ 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; or
(b) affect the previous operation of any enactment so repealed or anything duly done
or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred
under any enactment so repealed; or
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 63
(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, continued
or enforced, and any such penalty, forfeiture or punishment may be imposed as if the
repealing Act or Regulation had not been passed.
143. It is manifest from a reading of the above that the provision applies only to repeal by (i) the
General Clauses Act or (ii) by a Central Act or
(iii) by Regulation of any enactment hither to make or hereinafter to be made. The expressions
Central Act and Regulation appearing in Section 6 have been defined in Sections 3(7) and 3(50)
of the General Clauses Act, 1897 respectively as under:
3. Definitions. In this Act, and in all Central Acts and Regulations made after the
commencement of this Act, unless there is anything repugnant in the subject or
contexts, -
xxx xxx xxx (7) Central Act shall means an Act of Parliament, and shall include
(a) an Act of the Dominion Legislature or of the Indain Legislature passed before the
commencement of the Constitution, and
(b) an Act made before such commencement by the Governor General in council or
the Governor General, acting in a legislative capacity.
xxx xxx xxx (50) Regulation shall mean a Regulation made by the President [under
article 240 of the Constitution and shall include a Regulation made by the President
under article 243 thereof and] a Regulation made by the Central Government under
the Government of India At, 1870, or the Government of India Act, 1915, or the
Government of India Act, 1935.
.
144. There is in the light of the above no gainsaying that Section 6 does not have any application to,
for instance, a rule, a notification or a circular whether statutory or otherwise. It is confined to
repeal of any enactment already in existence or made after the enactment of the General Clauses
Act, 1897 by the General Clauses Act, 1952, or a Central Act or Regulation within the meaning of
those terms as defined in Sections 3(7) and 3(50).
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 64
145. Secondly, because the decisions in State of Orissa and Ors. v. Titaghur Paper Mills Co. Ltd. and
Anr. (1985) Supp SCC 280 and Union of India v. Glaxo India Ltd. and Anr. (2011) 6 SCC 668 do not
extend the application of Section 6 to statutory notifications as was sought to be argued by Mr.
Jethmalani. In Titaghur Paper Mills Co. Ltd.s case (supra), this Court was dealing with the
supersession of notifications issued under the Orissa Sales Tax Act on the tax liability accrued under
the repealed notification. Although this Court held that a tax liability that was already incurred
under the repealed notifications would remain unaffected by the repeal of the notification the
decision does not go to the extent of holding that Section 6 of the General Clauses Act or the
principle underlying the said provisions would be attracted to such repeal. The reasoning for the
conclusion of this Court, it appears, is based on first principles more than Section 6 or its relevance
to the question of repeal of a notification. This is evident from the following passage from the said
decision:
66By repealing and replacing the previous notifications by other notifications, the
result was not to wipe out any liability accrued under the previous notifications. If
this contention of the Respondents were to be accepted, the result would be startling.
It would mean, for example, that when a notification has been issued under Section
5(1) prescribing a rate of tax, and that notification is later superseded by another
notification further enhancing the rate of tax, all tax liability under the earlier
notification is wiped out and no tax can be collected by the State Government in
respect of any transactions effected during the period when the earlier notification
was in force.
146. In Glaxo India Ltd.s case (supra), all that this Court declared was that the effect of a
superseding notification would have to be determined on a proper construction of the notification
itself and not by any single principle or legal consideration. The decision mentioned Section 6 of the
General Clauses Act only to state that it would not apply to notifications. This is evident from the
following passage from the said decision:
39The view of this Court in some of the decisions is that the expression
supersession has to be understood to amount 'to repeal' and when notification is
repealed, the provisions of Section 6 of the General Clauses Act would not apply to
notifications. The question whether statutory obligations subsist in respect of a
period prior to repeal of a provision of a Statute or any subordinate legislation
promulgated thereunder has to be ascertained on legal considerations apposite to the
particular context. The matter is essentially one of construction. Such problems do
not admit of being answered on the basis of any single principle or legal
consideration. (emphasis supplied)
147. Thirdly, because the effect of withdrawal of the notification in the instant case may have to be
seen and determined on first principles. We find it difficult to appreciate how the power to withdraw
a notification, the existence whereof was not disputed by Mr. Jethmalani would remain meaningful
and could be effectively exercised if the withdrawal of such a notification was to leave the benefit
under the notification flowing in perpetuity. The notification in question permitted additional seats
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 65
to be fixed in relaxation of the rules and, if the argument of Mr. Jethmalani was to be accepted, such
relaxation and fixation of seats would become irreversible even when the Government could
legitimately exercise the power to recall such a relaxation. This would be anomalous and would have
the effect of emasculating the power of recall itself. The power would be meaningful and so also its
exercise, only if the same could undo whatever had already been done under it prospectively. Such
an interpretation would not only recognize the power of withdrawal but also protect the previous
operation of the repealed notification no matter limited to the extent that the occupiers had
benefitted by fixation of such seats and collection of the price of the tickets sold upto the date of
withdrawal.