TMI Blog2023 (4) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... in force. Therefore, by virtue of Section 6 of the Act, 1897 the proceedings against the Petitioners are saved and cannot be disturbed merely because Section 6(3) of the Act, 1999 was subsequently omitted. According to this Court, Respondent No. 1 was well within his jurisdiction to pass the impugned order dated 04.01.2023. As the Petitioner, has an effective alternative remedy in the form of an appeal under Section 19 of the Act, 1999, this Court, in light of the decision in Assistant Commissioner of State Tax (supra) holds that the present writ petition is not maintainable. Therefore, the present writ petition is liable to be dismissed. Writ petition is dismissed. However, the Petitioners are at liberty to raise all the contentions before the Appellate Tribunal. - WRIT PETITION No. 4176 OF 2023 - - - Dated:- 10-4-2023 - HON BLE SRI JUSTICE K. LAKSHMAN For Petitioners : Dr. C.P. Ramaswami, Lr. Counsel. For Respondent Nos. 1 2 : Mr. V. Ramakrishna Reddy, Lr. Standing Counsel. For Respondent No. 3 : Sri Gadi Praveen Kumar, Ld. Deputy Solicitor General of India ORDER: The present writ petition is filed challenging the order in SDE/SRO/HYZO/01/2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, 1999 which was subsequently omitted. Pending proceedings cease to exist under a provision that is omitted. ii. Section 6 of the General Clauses Act, 1897 (hereinafter referred to as the Act, 1897 ) is not applicable to omissions and it only applicable to repeals. Reliance is placed on Rayala Corpn. (P) Ltd. v. Director of Enforcement (1969) 2 SCC 412. iii. Existence of an alternative remedy is not a bar to file a writ petition. 9. Contentions of Respondent Nos. 1 2 i. The present writ petition is not maintainable as the Petitioners have an efficacious and alternative remedy under Section 19 of the Act, 1999. ii. Proceedings which are pending under a provision which is subsequently omitted do not cease to exist and are saved under Section 6 of the Act, 1897. Reliance is placed on Fibre Boards (P) Ltd. v. CIT (2015) 10 SCC 333 and Shree Bhagwati Steel Rolling Mills v. CCE (2016) 3 SCC 643. Findings of the Court:- 10. As stated above, the only issue to be decided is whether the present writ petition is maintainable. It is trite law that a writ petition should not be entertained in case an efficacious alternative remedy is available. Where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer or issue of any security by a person resident outside India; (c) transfer or issue of any security or foreign security by any branch, office or agency in India of a person resident outside India; (d) any borrowing or lending in foreign exchange in whatever form or by whatever name called; (e) any borrowing or lending in rupees in whatever form or by whatever name called between a person resident in India and a person resident outside India; (f) deposits between persons resident in India and persons resident outside India; (g) export, import or holding of currency or currency notes; (h) transfer of immovable property outside India, other than a lease not exceeding five years, by a person resident in India; (i) acquisition or transfer of immovable property in India, other than a lease not exceeding five years, by a person resident outside India; (j) giving of a guarantee or surety in respect of any debt, obligation or other liability incurred (i) by a person resident in India and owed to a person resident outside India; or (ii) by a person resident outside India. 13. It is also relevant to note that Section 6(3) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability 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, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. 17. It is relevant to note that Section 6 of the Act, 1897 provides for the effect of a repealed statute and how it is saved in relation to pending proceedings. Explaining the effect of repeal of a provision and its saving, the Supreme Court in State of Manipur v. Surjakumar Okram 2022 SCC OnLine SC 130 held as follows: 24. The power of a legislative body to repeal a law is co-extensive with its power to enact a law. The effect of repealing of a statute is to obliterate it completely from the records of Parliament. While repealing a statute, the Legislature is competent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of any offence committed under the repealed statute and also does not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. Thus the central theme which spells out is that any investigation or legal proceeding pending may be continued and enforced as if the repealing Act or regulation had not come into force. 26. As a general rule, in view of Section 6, the repeal of a statute, which is not retrospective in operation, does not prima facie affect the pending proceedings which may be continued as if the repealed enactment were still in force. In other words, such repeal does not affect the pending cases which would continue to be concluded as if the enactment has not been repealed. In fact when a lis commences, all rights and obligations of the parties get crystallised on that date. The mandate of Section 6 of the General Clauses Act is simply to leave the pending proceedings unaffected which commenced under the unrepealed provisions unless contrary intention is expressed . We find clause (c) of Section 6, refers the words any right, privilege, obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w: 33. In para 21 of the judgment the Full Bench has noted the decision of a Constitution Bench of this Court in Chief Inspector of Mines v. Karam Chand Thapar [AIR 1961 SC 838] and has relied upon the principles laid down therein. The Full Bench overlooked the position that that was a case under Section 24 of the General Clauses Act which makes provision for continuation of orders, notification, scheme, rule, form or bye-law, issued under the repealed Act or regulation under an Act after its repeal and re-enactment. In that case Section 6 did not come up for consideration. Therefore the ratio of that case is not applicable to the present case. With respect we agree with the principles laid down by the Constitution Bench in Rayala Corpn. Case [(1969) 2 SCC 412 : (1970) 1 SCR 639] . In our considered view the ratio of the said decision squarely applies to the case on hand. **** 37. The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute-book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Rayala Corpn. (P) Ltd. [(1969) 2 SCC 412], what fell for decision was whether proceedings could be validly continued on a complaint in respect of a charge made under Rule 132-A of the Defence of India Rules, which ceased to be in existence before the accused were convicted in respect of the charge made under the said Rule. The said Rule 132-A was omitted by a Notification dated 30-3- 1966. What was decided in that case is set out by para 17 of the said judgment, which is as follows: (SCC p. 424) 17. Reference was next made to a decision of the Madhya Pradesh High Court in State of M.P. v. Hiralal Sutwala [1958 SCC OnLine MP 149 : AIR 1959 MP 93] but, there again, the accused was sought to be prosecuted for an offence punishable under an Act on the repeal of which Section 6 of the General Clauses Act had been made applicable. In the case before us, Section 6 of the General Clauses Act cannot obviously apply on the omission of Rule 132-A of the DIRs for the two obvious reasons that Section 6 only applies to repeals and not to omissions, and applies when the repeal is of a Central Act or Regulation and not of a Rule. If Section 6 of the General Clauses Act had been appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larger Bench, ultimately it decided that the prosecution in cases of non-compliance with the provision therein contained was only transitional and cases covered by it were few and far between, and hence found on facts that it was not an appropriate case for reference to a larger Bench. 29. We may also point out that in G.P. Singh's Principles of Statutory Interpretation, 12th Edn., the learned author has criticised the aforesaid judgments in the following terms: 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. The section on its own terms is limited to a repeal brought about by a Central Act or Regulation. A rule made under an Act is not a Central Act or Regulation and if a rule be repealed by another rule, Section 6 of the General Clauses Act will not be attracted. It has been so held in two Constitution Bench decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments. Section 6-A reads as follows: 6-A. Repeal of Act making textual amendment in Act or Regulation. Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal. 33. A reading of this Section would show that a repeal by an amending Act can be by way of an express omission. This being the case, obviously the word repeal in both Section 6 and Section 24 would, therefore, include repeals by express omission. The absence of any reference to Section 6-A, therefore, again undoes the binding effect of these two judgments on an application of the per incuriam principle. [In Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232 : (1975) 3 SCR p. 834, Krishna Iyer, J., succinctly laid down what is meant by the per incuriam principle. He stated: (SCC p. 235, para 7 : SCR p. 837) 7. We do not intend to detract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin it omissions made by the legislature. 8. Shri Aggarwal, however, argued that there is a fundamental distinction between a repeal and an omission in that in the case of a repeal the statute is obliterated from the very beginning whereas in the case of an omission what gets omitted is only from the date of omission and not before. This being the case, it is clear that things already done in the case of an omission would be saved. However, a repeal without a savings clause like Section 6 of the General Clauses Act would not so save things already done under the repealed statute. He further argued that Section 6-A which was relied upon by the Bench in Fibre Board case [Fibre Boards (P) Ltd. v. CIT, (2015) 10 SCC 333 : (2015) 376 ITR 596] did not state that an omission would be included within the expression repeal , but that if Section 6-A were carefully read, an omission would only be included in an amendment which, under the section, can be by way of omission, insertion or substitution. Therefore, it is fallacious to state that Section 6-A would lead to the conclusion that omissions are included in repeals . He further argued that in any event, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Deluxe Edition) by William C. Burton, 1979 Edition. The expression delete is defined by the Thesaurus as follows: Delete : Blot out, cancel, censor, cross off, cross out, cut, cut out, dele, discard, do away with, drop, edit out, efface, elide, eliminate, eradicate, erase, excise, expel, expunge, extirpate, get rid of, leave out, modify by excisions, obliterate, omit, remove, rub out, rule out, scratch out, strike off, take out, weed, wipe out. Likewise the expression omit is also defined by this Thesaurus as follows: Omit : Abstain from inserting, bypass, cast aside, count out, cut out, delete, discard, dodge, drop, exclude, fail to do, fail to include, fail to insert, fail to mention, leave out, leave undone, let go, let pass, let slip, miss, neglect, omittere, pass over, praetermittere, skip, slight, transire. And the expression repeal is defined as follows: Repeal : Abolish, abrogare, abrogate, annul, avoid, cancel, counter-mand, declare null and void, delete, eliminate, formally withdraw, invalidate, make void, negate, nullify, obliterate, officially withdraw, override, overrule, quash, recall, render invalid, rescind, rescindere, retrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, the legislatures call the Act an amendment particularly when a provision is added to replace the one withdrawn. However, when an entire Act or section is abrogated and no new section is added to replace it, legislatures label the Act accomplishing this result a repeal. Thus as used by the legislatures, amendment and repeal may differ in kind addition as opposed to withdrawal or only in degree abrogation of part of a section as opposed to abrogation of a whole section or Act; or more commonly, in both kind and degree addition of a provision to a section to replace a provision being abrogated as opposed by abrogation of a whole section of an Act. This arbitrary distinction has been followed by the courts, and they have developed separate rules of construction for each. However, they have recognised that frequently an Act purporting to be an amendment has the same qualitative effect as a repeal the abrogation of an existing statutory provision and have therefore applied the term implied repeal and the rules of construction applicable to repeals to such amendments. 18. Amendment is, in fact, a wider term and it includes abrogation or deletion of a provision in an existin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding upon a subsequent Bench. However, once it is found that Section 6 itself would not apply, it would be wholly superfluous to further state that on an interpretation of the word repeal , an omission would not be included. We are, therefore, of the view that the second so-called ratio of the Constitution Bench in Rayala Corpn. (P) Ltd. [Rayala Corpn. (P) Ltd. v. Director of Enforcement, (1969) 2 SCC 412] cannot be said to be a ratio decidendi at all and is really in the nature of obiter dicta. 17. Merely because the Constitution Bench referred to a repeal not amounting to an omission as the first reason given for distinguishing the Madhya Pradesh High Court judgment [ State of M.P. v. HiralalSutwala, 1958 SCC OnLine MP 149 : AIR 1959 MP 93] would not undo the effect of ITR para 27 : SCC para 31 of Fibre Board case [Fibre Boards (P) Ltd. v. CIT, (2015) 10 SCC 333 : (2015) 376 ITR 596] which, as has already been stated, clearly makes the distinction between Section 6 not applying at all and Section 6 being construed in a particular manner. Obviously, if the section were not to apply at all, any construction of the section would necessarily be in the nature of obiter dic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h which should be adopted in such cases. Mr Palkhivala has not disputed the fact that, in a proper case, this Court has inherent jurisdiction to reconsider and revise its earlier decisions, and so, the abstract question as to whether such a power vests in this Court or not need not detain us. In exercising this inherent power, however, this Court would naturally like to impose certain reasonable limitations and would be reluctant to entertain pleas for the reconsideration and revision of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so. It is general judicial experience that in matters of law involving questions of constructing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible views, the process of decision-making is often very difficult and delicate. When this Court hears appeals against decisions of the High Courts and is required to consider the propriety or correctness of the view taken by the High Courts on any point of law, it would be open to this Court to hold that though the view taken by the High Court is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant considerations What is the nature of the infirmity or error on which a plea for review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. 23. At this stage, it is relevant to note that the Supreme Court in ChandpaklalRamanlal Shah v. Reliance Industries Ltd. (2017) 9 SCC 309 held that pending proceedings cannot be quashed or set aside merely on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the deletion of Section 4(2) cannot have retrospective effect. Therefore, it is clear from the aforesaid discussion that Section 6 of the Act, 1897 is applicable to omission of a provision by the legislature. In other words, Section 6 of the Act, 1897 saves all the pending proceedings under a provision that was subsequently omitted. Now coming to the facts of the case, it is not in dispute that the proceedings for violations of Section 6(3)(b) of the Act, 1999 were initiated in the year 2017. When the proceedings were initiated against the Petitioners, Section 6(3) of the Act, 1999 was still in force. Therefore, by virtue of Section 6 of the Act, 1897 the proceedings against the Petitioners are saved and cannot be disturbed merely because Section 6(3) of the Act, 1999 was subsequently omitted. According to this Court, Respondent No. 1 was well within his jurisdiction to pass the impugned order dated 04.01.2023. As the Petitioner, has an effective alternative remedy in the form of an appeal under Section 19 of the Act, 1999, this Court, in light of the decision in Assistant Commissioner of State Tax (supra) holds that the present writ petition is not maintainable. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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