RIGHT OF APPEAL IS A VESTING RIGHT AND NOT TAKEN AWAY BY A REPEALING STATUTE

[Mr. M. GOVINDARAJAN]

                        The Constitution of India gives powers to Central Government as well State Government to enact laws on the subject contained the Central list, State list and concurrent list.  A law enacted cannot be expected to be static always.   There are possibilities to amend the act or even to repeal the Act.  Recently Competition Act repealed the MRTP Act, 1969.  While repealing any provision will be made as to the course of action for the pending cases under the repealed Act

                        In 'Gammon India Limited V. Special Chief Secretary' (2006) 145 STC 1 (SC) the Supreme Court has considered in detail various decisions on this aspect both of English Courts as well as of the Supreme Court itself in order to inter alia trace the development of the law of repeals, savings of vested rights and retrospective operation of statutes. The Supreme Court laid down the following principles of law:

Ordinarily the effect of repeal is that a statute is wiped out from the statute book for all intents and purposes;

However, a need was felt on certain occasions to protect certain vested rights and consequently in the repealing Act a provision came to be incorporated for saving of the vested rights accorded or liabilities arisen under the repealed Act;

Since this need has to save vested rights was felt in many cases, instead of having a savings provision in each Act, a general provision was made in Section 6 of the General Clauses Act, 1897 and which is similar to section 38 of the English Interpretation Act, 1889. By virtue of this section all vested rights under a repealed Act continued to operate and liabilities incurred there under continued to be binding;

The Legislature can however vary this general rule of saving of vested rights by giving retrospective effect to a Statute and take away vested rights.   This is clear from section 6 itself which uses the expression 'unless a different intention appears';

A right of appeal is vested right and ordinarily is not taken away by a repealing Statute.

Let us refer to two other judgments of the Supreme Court.   In 'Maria Christiana De Souza Sodder V. Amria Zurana Pereira Pinto' - (1979) 1 SCC 922, the Supreme Court has laid down that though the right of appeal is a vested right/substantive right, however the forum with respect to exercise of such right of appeal is not a vested right.   It was held that that the forum of filing an appeal is a procedural matter and the savings clause in a repealing statute and section 6 of the General Clause Act has nothing to do with the forum where the remedy of appeal has to be pursued.

                        The forum of appeal was thus held only to be a procedural matter and not a substantive or a vested rights issue.  In 'Mohd. Meera V. Thirumalaya' - AIR 1966 SC 430 the appeal instead of being heard by the two Judges of the High Court was heard by a Single Judge and it was held that there is no vested right in getting the matter heard by two Judges.  The hearing of an appeal, whether by one Judge or by two Judges is merely a matter of procedure.

                        In 'M.U.S. Marketing's (P) Ltd., V. State of Punjab' - (2008) 12 VST 123 the Punjab and Haryana High Court held that section 92 of the Punjab VAT Act, 2005 coming into force from 01.04.2005 repealed the remedy of filing reference which was available under the 1948 Act and instead conferred on a party right of filing appeal or revision to the High Court by operation of Section 68 of the Act on a substantial question of law.   All these appeals which were decided by the Tribunal, after coming into force of the 2005 Act would, thus, be governed by the provisions of section 68 of the VAT Act and in all such cases the appeal of revision would lie to the High Court on a substantial question of law.

                        Let us refer the case 'Shiv Shakti Kirana Kendra V. Commissioner, VAT' - (2009) 1 GST 22 (Delhi).  The Delhi Sales Tax Act, 1985 was repealed on the passing of Delhi Value Added Tax Act, 2004, with effect from 01.04.2005.  The issue in this case is with respect to whether the appellate proceedings which were pending under the Delhi Sales Tax Act whether further appeal, after repeal of the Delhi Sales Tax Act, would lie under the provisions of section 81 of the New Delhi VAT Act, 2004 or to seek reference under section 45(1) or 45(2) of the old Delhi Sales Tax Act.

                        The Department contended that the present appeals are not maintainable under Delhi VAT Act.  The appellants contended that the appeals are maintainable.

                        The High Court analyzed the provisions of Sec. 106 of Delhi VAT Act which reads as under:

"106 - Repeal and savings - (1) The Delhi Sales Tax Act 1975 (Act 43 of 1975), the Delhi Tax on Entry of Motor Vehicles into Local Areas Act, 1994 (Delhi Act 4 of 1995), the Delhi Sales Tax on Works Contract Act, 1999 (Delhi Act 9 of 1999) and the Delhi Sales Tax on Right to use Goods Act, 2002 (Delhi Act 13 of 2002) as in force in Delhi are hereby repealed.

(2) Notwithstanding sub-section (1) of this section, such repeal shall not affect the previous operation of the said Acts or any right, title, entitlement, obligation or liability already acquired, accrued or incurred there under.

(3) For the purposes of sub-section (2) of this section, anything done or any action taken including any appointment, notification, notice, order, rule, form or certificate in the exercise of any powers conferred by or under the said Acts shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken, and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act."

                        Section 106(2) of the Delhi VAT Act, the repeal of the Delhi Sales Tax Act will not affect the previous operation of the said Act or any right, title, entitlement, obligation or liability already acquired or incurred there under.  The right of reference under Sections 45(1) and 45 (2) of the Delhi Sales Tax is a vested right by virtue of section 106(2) of the Delhi VAT Act.   Such vested rights have been saved by the said sub section106 (2).   The present cases originated with respect to assessment years 1994-95 and 1995-96 and were initiated under the Delhi Sales Tax Act, the repeal of the Delhi Sales tax Act would not affect the vested rights under sections 45(1) and 45(2) of the Delhi Sales tax Act.

                        Section 106(3) of the Delhi VAT Act specifies for the purposes of sub-section (2) anything done or any action including appointment, notification, notice, order, rule in the exercise of any powers conferred by or under the Delhi Sales Tax Act shall be deemed to have been done or taken in exercise of the powers conferred by or under Delhi VAT Act as if this Act were in force on the date on which such thing was done or action was taken.

                        The High Court held that in view of the above it is clear that no vested rights has been taken away by passing of the Delhi VAT Act to approach the High Court, either an application had to be made before the Tribunal or before the High Court which would call for the question of law with the statement of case from the Tribunal.  The only difference under the new Delhi VAT Act, 2004 is that the procedure has changed and a party has given a right to directly approach the High Court which will frame a question of law.  The right of appeal has been further strengthened and the procedure has been simplified by passing of the Delhi VAT Act, 2004 and it is not as if any vested right of appeal has been taken away.  The High Court held that the present appeals under section 81 of Delhi VAT Act are maintainable.