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TMI Blog1991 (3) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... epublic of India as follows: - 1. This Act may be called the Gold (Control) Repeal Act, 1990. 2. 2. The Gold (Control) Act, 1968 is hereby repealed." 2. At the outset that the doubt has arisen whether this Tribunal can hear the appeals as Appellate Tribunal under the provisions of the Gold (Control) Act, when the very Act itself was repealed without saving clause. This issue was not raised by either side. Generally Tribunal is not concerned with the issues which were never raised by the parties in dispute before it and we are not going to pronounce on abstract question of law when there is no dispute to be settled. But this being a fundamental issue relating to the jurisdiction which is of utmost importance and further neither jurisdiction can be conferred upon by mutual consent nor can be presumed by an inference unless such right is given specifically under a Statute and continues to be in existence, we felt necessity of examining this issue in detail with reference to case law. Hence all these cases were posted for hearing on 19-9-1990 to enable the parties to address the arguments on this preliminary issue. 3. We have heard S/Shree Harbans Singh, Advocate, H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues to be in existence even after the Gold Control Act was repealed. Appeal is a remedy which was provided under the provisions of the Gold Control Act arise out of proceedings initiated under that Act and such rights have to be enforced by the parties before this Appellate Forum and such right is neither taken away by the repealed Act nor provided elsewhere and in the absence of saving clause as it is governed by the provisions of Section 6 of the General Clauses Act. They contended that General Clauses Act is applicable to all laws and enactments irrespective of the fact that Gold Control Act was special Statute. They said that General Clauses Act cannot be compared with that of Indian Limitation Act, 1963 which is procedural one. In this connection Sri Gouri Shanker Murthy stressed that Limitation Act is only a procedural law whereas General Clauses Act is a substantive law. In respect of procedure wherever it is specifically provided in the Special Statute, the provisions of special Enactment are subjected to such limitation or procedure prescribed in that respective Statute and cannot be extended to the period of General limitation prescribed under the Limitation Act which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case it is clear that repealed Act is applicable prospectively and not retrospectively. The pre-existing Gold Control Act remained untouched and unaffected so far as the Statute Book is concerned. Where there is a repeal clearly with retrospective effect, the repealed provisions would be regarded as having been wiped out from the Statute. Whenever there is a repeal of enactment the consequences laid down in Section 6 of the General Clauses Act will follow unless as the Section itself says, a different intention appears in the repealing Statute. As regards applicability of General Clauses Act to the present situation, while interpreting the Statute whether it is a special enactment or otherwise, it cannot ignore the general principles of law of the land unless contrary intention appears in the very Statute. Special law is the species of the common law. We can say that it is only qualified or development of General Law. In the case of Keshavji Ravji Co. v. C.I.T. [1990 (82) CRT-SC (123)] the Supreme Court has observed that To the extent that the Statute expressly or by necessary implication departs from the general law, the latter cannot be invoked to dispense the effect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the repealed law must be held to continue. We must also remember that by Gold (Control) Ordinance, the Rules and the Gold (Control) Ordinance, 1968, the consequences mentioned in Section 6 of the General Clauses Act, follow." The Supreme Court in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh (AIR 1953 SC 221 = 1983 (13) E.L.T. 1277) observed : ..... a right of appeal is not merely a matter of procedure. It is a matter of substantive right. The right of appeal from the decision of an inferior Tribunal to a superior Tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. In the language of Jenkins, J. in Nana v. Sheku (ILR 32 Bom. 337) to disturb an existing right of appeal is not a mere alteration of procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication. Again in the case of Garikapatti Veerayya v. N. Subbia Choudhry and Others (AIR 1957 SC 540), it was observed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority) under or in pursuance of the provisions of Part XIIA of the Defence of India Rules, 1962, shall so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act". 15. Thereafter the Gold Control Ordinance of 1968 was issued and that ordinance repealed and replaced Part XIIA of the Defence of India Rules (i.e. The Gold Control Rules). Section 117(1) of the Ordinance deals with repeals and savings and reads as follows :- (I) As from the commencement of this ordinance, the provisions of Part XIIA of the Defence of India Rules, 1962 shall stand repealed and upon such repeal, Section 6 of General Clauses Act, 1897 shall apply as if the said part were a Central Act. (2) Notwithstanding the repeal made by sub-section (1) that without prejudice to the application of Section 6 of the General Clauses Act, 1897, any notification, under direction appointment or declaration made or any notice, licence or certificate issued or permission authorisation or exemption granted or any confiscation adjudged or penalty or fine imposed or any forfeiture ordered or any other thing done or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repealed simpliciter it may be useful indeed necessary to refer to the statement of objects and reasons indicated by the Honourable Finance Minister at the time of introducing the Gold Control Repeal Bill, 1990 in the Parliament in order to find out the legislatures intention in providing for such a repeal. But the point is can we do so? For an answer to this question we may refer to the following judgments of the High Courts and the Hon ble Supreme Court. 1. Supreme Court Judgment - in the case of S.C. Prashar and Another v. Vasantsen Dwarkadas and Others (Reported in AIR 1963 SC Page 1356): - Per : Hon ble Justice S.K. Das : It is indeed true that the statement of objects and reasons for introducing a particular piece of legislation cannot be used for interpreting the legislation if the words used therein are clear enough. But the statement of objects and reasons can be referred to for the purpose of ascertaining the circumstances which led to the legislation in order to find out what was the mischief which the legislation aimed at. (Para 23) Per : Hon ble Justice J.L. Kapur : In construing an enactment and determining its true scope it is permissible to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouraging and the desired objectives for which the Act was introduced have not been achieved due to various socio-economic and cultural factors in the vast multitude of the country s population and the lack of adequate administrative machinery. On the other hand, this regressive and purely regulatory Act has given rise to considerable dissatisfaction in the minds of the public as it has caused hardship and harassment to be artisans and small self-employed goldsmiths who have not been able to develop their skills, and earn proper living on account of the rigours which this Act imposed upon them. 3. Taking these factors into consideration and the advice of experts who have examined issues related to this Act imposed upon them. 4. The Bill seeks to achieve the said object." 22. A reading of the above statement shows that one possible view could be that prima facie, the Parliament wanted to simply put an end to the sorry state of affairs depicted therein. 23. But before we proceed with this line of thought any further, let us look at the rival point of view that there was no necessity to provide for a saving clause as the pending proceedings could in any case be continued in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been passed. Section 24. Continuation of orders, etc., issued under enactments repealed and re-enacted:- Where any Central Act or Regulation, is, after the commencement of this Act, repealed and re-enacted with or without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule form or bye-law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superseded by any appointment, notification, order, scheme, rule form or bye-law, made or issued under the provisions so re-enacted. 27. (i) A reading of the above provisions clearly shows that Section 6 covers only repeal of enactment as defined in Section 3(19) i.e. only an Act or regulation and does not cover the rules . This view has also been upheld by the Hon ble Supreme Court in the case of M/s. Rayala Corporation (P) Ltd. and Another v. The Director of Enforcement, New Delhi reported in AIR 1970 SC 494 in the following words : - that Section 6 only applies to repeal and not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contrary proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. In my opinion as the Gold Control Act, 1968 was brought in force on 1-9-1968 and expired on 6-6-1990 it was only in the nature of a temporary statute. Hence the above principle enunciated by the Hon ble Supreme Court clearly applies in the absence of a saving clause. Their Lordships have in this connection also referred to the case of S. Krishnan v. State of Madras reported in 1951 SCR 621 (AIR 1951 SC 301) and the judgment of Allahabad High Court in the case reported in AIR 1951 All. 706; here a similar view was taken when considering the effect of repeal of Defence of India Act, 1939 and the Ordinance No. XII of 1946 which had amended Section 1(4) of that Act. Their Lordships have also referred to the case of J.K. Gas Plant Manufacturing Company (Rampur) Ltd. v. King Emperor reported in 1947 FCR 141 (AIR 1947 FC 48) and further stated that, the General rule in regard to the expiration of the temporary statute is that unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enactment but only an amendment to a Section which merely resulted in the change of forum. And the prospective v. retrospective operation of such a change, i.e. a change of adjectival or procedural law and not of substantive law; And it was simply held that such a change of law operates retrospectively. (Para 5). 5. Atma Steels Private Limited and others v. Collector of Central Excise, Chandigarh and Others [1984 (17) E.L.T. 331 (Tri.)] : - Larger Bench Order : This case also does not deal with repeal of an enactment. It only deals with the amendment of Central Excise Rules having the effect of omission of Rules 10 and 10A and substitution thereof by succeeding provisions and by omission of Rules 11 and 173(J) and their substitution by succeeding provisions and the prospective v. retrospective effect of the new provisions. As we have already seen omission and substitution of rules is distinguishable from repeal or expiry of an Act and in the present case we are not concerned with the retrospective effect of any rule. Hence this case is distinguishable. 6. JayantilalAmratlal v. The Union of India and Others (AIR 1971 SC 1193) : This case is also distinguishable inasmuch as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int of view inasmuch as it permits legislative intent to be taken into account even as per the Para 23 quoted by the learned Counsels. Sub-para (5) of Para 23 in fact reads as follows : - This vested right of appeal can be taken away only by a subsequent enactment if it so provided expressly or by necessary intentment and not otherwise . The following would make the position more clear. In this case a suit was filed before the Constitution of India came into force. At that time there was a Federal Court (established under the Government of India Act, 1935). The Government of India Act, 1935 was subsequently repealed and replaced by the Constitution of India, and the President promulgated the adaptation law order of 1950 which came into force simultaneously with the Constitution. By this order the CPC was amended and It is to be noted that Sections 109 and 110 of the Code of Civil Procedure were not deleted altogether but were modified only . Further this adaptation was subject to the provisions of Clause 20 of the Adaptation order which was in the nature of a saving clause and the Hon ble Supreme Court has itself observed in Para 29 that the Government of India Act, 1935 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority of an appellate body competent to hear the appeals in gold control matters. Its capacity to act as such an authority was derived only from the Section 2aaa read with Section 81 of the Gold Control Act, 1968. Hence if upon repeal the Gold Control Act had lapsed or expired, then this authority could not survive, such a repeal. This view is supported by the judgment of Hon ble Supreme Court in the case of Garikapati Veeraya v. N. Subbiah Choudhry and Others (AIR 1957 SC 540) as already mentioned above. 33. The arguments that the saving of the enactment by Section 6 of the General Clauses Act automatically means and implies the saving of the rules and notifications or orders issued thereunder has already been shown to be incorrect. But let us for a moment consider, for arguments sake, that Section 6 of the General Clauses Act applied even then it could not be forgotten that this section itself emphasises the intention of the legislature for the wordings in the opening sentence of Section 6 of the General Clauses Act are unless a different intention appears . 34. As we have seen, the aspect of intention had also been emphasised by various High Courts and the Hon ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existing law . 2. The Hyderabad High Court in the case of Waheed Hasam Khran v. State of Hyderabad (reported in AIR 1954 Hyderabad Page 204): When an Act is repealed, it is the same thing as if it had never existed except with reference to such parts as are saved by the repealing statute . 3. Punjab High Court - in the case of National Planners Limited v. Contributories (reported in AIR 1958 Punjab Page 230): When an action is brought under a statute, which is afterwards repealed, the High Court loses the jurisdiction of the suit pending under the repealed Act and is unable to deliver the judgment therein. The effect of repeating a statute to obliterate it as completely from Parliament as if it had never been passed. It must be construed as law that never existed, except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law. If a statute is unconditionally repealed without a saving clause in favour of pending suits, all actions must Step where the repeal finds them and if final relief has not been granted before the repeal goes into effect, it cannot be granted afterwards. A similar principle applies to a law confer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the repeal of the Gold (Control) Act, 1968 without a saving clause whether (i) This Tribunal still has the jurisdiction to hear pending matters (or) (ii) The capacity of this Tribunal to act as the Gold (Control) Appellate Authority has been extinguished; and the appeals have abated as the pending proceedings have come to an end as they were on the date of repeal." 39. Notices of hearing were sent to the appellants as well as Delhi, Bombay, Calcutta and Madras Bar Associations. Calcutta and Bombay Associations have sent written submissions. Shri R.K. Jain, learned Consultant has appeared on behalf of the Delhi Bar Association. He has pleaded that after the repeal of the Gold Control Act on 6-6-1990, the following situation can arise : - (i) Jurisdiction of the adjudicating authority; (ii) Appeals pending with the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) - whether the CEGAT has jurisdiction or not; (iii) Gold Control Act was repealed on 6-6-1990. What will be the position of the orders passed prior to 6-6-1990 but the appeals are Hied after 6-6-1990; (iv) A situation may arise where the Order-in-Original has been passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of appeal is a vested right. In support of the same, he cited the following judgments : - AIR 1953 SC 221. 1983 (13) E.L.T. 1277. AIR 1957 Privy Council 242. AIR 1957 SC 540. 1984 (16) E.L.T. 126. AIR 1960 SC 980 AIR 1968 SC 13 AIR 1975 SC 1843. Shri Jain has argued that Section 24 of the General Clauses Act lays down the continuation of orders etc. issued under enactment repeal and re-enactment. He pleaded that Gold Control Act has been repealed and there is no new legislation. Shri Jain argued that Section 3(19) of the General Clauses Act defines enactment and the word enactment shall include a regulation as hereinafter defined and any regulation of Bengal, Madras or Bombay Courts and shall also include any provision contained in any Act or in such regulation as aforesaid. He has referred to Para No. 16 of the Technical Member s order which appears on internal page No. 19 of the order where the Technical Member has observed that two Sections, namely, Section 19 and 24 are also sufficient and were concerned with the effect of repeal on the Gold Control system as a whole and this system obviously includes not merely the Act but also the rules, Notifications and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e argued that even after the repeal administrative posts as well continue and right of filing an appeal is a part of the Act. He has referred to the Interpretation of Statute by G.P. Singh at Page 354 (4th Edition). Shri Gujral has referred to the following judgments : - AIR 1957 Madras 695 at 698. AIR 1965 Madras 166. AIR 1963 Calcutta 614. AIR 1955 Supreme Court 84. Shri Gujral argued that all the appeals filed shall be deemed to be pending before the Tribunal even after the repeal of the Act. He has pleaded that Section 24 of the General Clauses Act is not applicable. He has again referred to the Page 365 of Interpretation of Statute byG.P.Singh (4th Edition). Shri Gujral referred to judgment of the Supreme Court reported in AIR 1965 SC 932. Shri Gujral argued that after the repeal subordinate legislation goes. He has also argued that in case it is held that view of the Technical Member is accepted then Section 6 of the General Clauses Act will become redundant. He has argued that the statute has to be interpreted in a harmonious manner and after the repeal the right vested by the erstwhile statute continues and as such the forum also continues. Shri Harbans Singh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect view and the same should be adopted. 42. We have heard Shri R.K. Jain, learned Consultant on behalf of the Delhi Bar Association and also considered the written submissions of the Bombay and Calcutta Bar Associations and have also taken into consideration the arguments advanced by Sarva Shri B.B. Gujral, Harbans Singh and G.S. Murthy, learned Advocates. For the proper appreciation of the correct position Section 6 of the General Clauses Act is reproduced below: - 6. 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 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 (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But, that does not mean that rights which are not saved by the savings provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6(c) of the General Clauses Act, 1897. The right to carry forward losses which had accrued under the repealed Indian Income-tax Act of 1922 is not saved expressly by Section 297 of the Income-tax Act, 1961. But, it is not necessary to save a right expressly in order to keep it alive after the repeal of the old Act of 1922. Section 6(c) of the General Clauses Act, 1897, saves accrued rights unless they are taken away by the repealing statute. Section 297 does not take away any of the rights either expressly or by implication." 43. After taking into consideration, the judgments cited by the learned Advocates and the legal position discussed by us we are of the view that in view of the repeal of the Gold Control Act, 1968 without saving clause this Tribunal still has got the jurisdiction to hear the pending matters. We are of the view that Gold Control Act is a perpetu ..... 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