6.

CONSEQUENCES
OF REPEAL
- THE COMMON LAW POSITION -
All
inchoat
e rights
All destroy All
proceed ed cause of
ings action
oblitera come to
ted Except for an end
transactio
ns past &
closed,
everythin
g came to
an end
 Another difficult
consequence in the
Common Law position
was….

the revival of the 1st

statute after the repeal
of the 2nd statute by the
3rd statute.
 Hence, the need of a
saving clause arose…to
clear such confusion
• Section 38(2) • Section 6 of
Interpretation the General
Act, 1889. (A Clauses Act,
General 1897 cleared
Savings this
Clause was confusion.
inserted.)
 So, now….
As a result of the principle of
obliteration associated with repeal, the
continuation of pending proceedings
under a repealed statute depends upon
either under the savings clause
contained in the repealing Act or under
Section 6 of the General Clauses Act.
 Therefore….

The Parliament has the power to

lay down conditions for
continuance of pending
proceedings and to provide that in
cases those conditions are not
satisfied the proceedings will
terminate.
 Mahmadhusen Abdulrahim
Kalota Shaikh v. UOI, (2009)2 SCC 1

ESTABLISHMENT OF
A REVIEW
COMMITTEE
POTA, 2002 was repealed by POT(Repeal)Act,
2004 Sec.2(3) of the Repeal Act provided:

all pending prosecutions under the

repealed Act will be examined by a Review
Committee and in cases prima facie case is
not found by the committee the
proceedings will terminate even without
the necessity of the Public Prosecutor
applying to the Court for withdrawal of the
cases under Section 321 of the CrPC.
“When Parliament has the power to
repeal a law outright without any
savings and thereby put an end to all
pending prosecution and proceedings
forthwith, can it not be said that it does
not have the power to make a provision
in the repealing Act for the pending
proceedings to continue, but those
proceedings to come to an end, when a
duly constituted Review Committee with
a sitting or retired judge of the High
Court as Chairman, reviews the cases
registered under the repealed Act and
 The court further observed:

• When Parliament has the power to repeal

outright without any savings, it can have
power to make the pending proceedings
continue.

• Since wider power includes the narrower

and smaller power.
***
No vested right in the procedure
If the repealing legislation prescribes
for fresh procedures.

Then the new code will apply fresh

procedures for the old code.

For no person has a vested right in a

matter of procedure unless it has been
expressly preserved.
 Sec.6 of the GCA
All kinds
of repeal
Also
applicable
to those Express
State Acts as well
that are as
repealed by implied
the
Parliament

Tempora
Limited to
ry
Central
statutes
Acts or
that are
regulations
 What all does Sec.6 not do??
 Revive any law which did not exist when the
repealed Act existed
 Affect the previous operation or anything duly done

 Affect any right, privilege, obligation or liability

acquired, accrued
 Affect any penalty, forfeiture or punishment
incurred in respect of any offence
 Affect any investigation, legal proceeding or remedy
in respect of any such right, privilege, obligation,
liability, penalty, forfeiture or punishment.
 (b) REVIVAL
If Statute A is
Revival can
repealed by
however happen
Statute B

Next Statute B is When repeal has

repealed by happened due to
Statute C ‘substitution’

Then on such repeal and the Act making

of B; ‘A’ is not the substitution is
revived, unless invalid due to want
expressly so of competence
 (c) Saving of
rights
‘ACQUIRED or
ACCRUED’
Prevent If the
s the rights
oblitera On have
tion of Repeal been
the ‘acquire
rights d’
 ‘ACQUIRED’

• So, ‘anything done’

under the statute will
not be invalidated after
the repeal but it will be
rendered abortive if no
right was acquired or
no liability had been
 So, what is saved & what is not

Has been Has not been

Rightsaved
which is saved
Hope or
already
expectation of
acquired or
accruing a right
accrued**
A legal A legal
proceeding proceeding for
enforcing a right acquisition of a
acquired right
The mere ‘hope’ of a right, existing at the date of
repeal to take advantage of provisions of the
statute repealed, is not a right accrued.
The fine moment when the
right is acquired or liability
incurred
The central
Differ in aspect that
each case needs to be
seen
Depends Whether
on the the steps
facts of that remain
the case to be taken

are the
Constructi necessary
on of the steps for
statute acquiring a
 For example….
4.5
4
3.5
3
2.5 Proceeding to
'enforce' a right
2
Proceeding to
1.5 'acquire' a right
1
0.5
0
Before
Repeal After
Repeal
 That means….
If in a repealed enactment, a right has
been given, but that, in respect of its
enforcement some investigation or
legal proceeding is necessary.

The right is then unaffected and

preserved on repeal.

It will be preserved even if process

of execution is necessary.
 But…
There is a manifest distinction between
an investigation in respect of a right….

…and an investigation which is to

decide whether some right should be or
should not be given.

On a repeal the former is preserved;

the latter is not.
 Aitken v. South Hams
District Council (1994) 3 All ER
400
 Power • The Authority is
prescrib empowered to
ed in the serve a notice
Control requiring
of abatement of a
Pollution nuisance within a
stated time.
Act
• The person served
with the notice and
The Act contravening its
further provisions shall be
provides liable for a
criminal offence.
 The • After service of
notice the notice but
was before its
expiry, the Act
serve got repealed.
d
• The effectiveness of
the notice continued.
(anything done)
Held: • The obligation
comply with it was
to

preserved. (liability
incurred)
 The Court held
Nature
• ‘Real and
of continuing
Obligat obligation.’
ion
•A person
contravening the
notice after repeal
Theref of the Act was liable
ore to be punished for
the offence under
 Hamilton Gell v. White

2-Provisions in a
tenancy Act
• The ‘right’ of a
tenant of
1st agricultural holding
to recover
provi compensation from
ded his landlord
served a notice to
who

for quit in view of an

intended sale of the
Requirement of the 2nd
Notice of provision
intention
to claim
compens
ation on
landlord’s
service
The 2nd
provisio
Make n
compensa
tion claim
within 3
months of
quitting
the
There was a Partial Compliance

The • Complied only with

the first condition.
tenant
• Tenant had acquired the
right to receive
The compensation by the fact
of his landlord having
Court given a notice to quit in
view of sale and the right
held was enforceable even
after the repeal of the
 The reason being….

The steps required to

be taken by the tenant
were not for
acquisition of the right
but for its
enforcement.
***
Right ‘acquired’ &
Right ‘accrued’
-A fine difference-
‘acquired’ and ‘accrued’
‘acquired ‘accru
’ ed’
Where some When
step after accrued on
the act the mere
came into force of the
force is Act itself
This
needed
additional
No
step should
additional
have been
step has to
taken
be taken
Chief Adjudication Officer v.
Maguire (1999) 2 All ER 859 (CA)

Social Security Social Security

Act, 1975 Act, 1986
Special
Reduced
Hardship
Farming
Allowance
Allowance
(SHA)
Allowances were
reduced
Special Hardship Allowance
for Disability
Before
filing for
claim the He
Claimant Act got suffered
satisfied repealed from
the
disability
conditions
due to the
of
injury
eligibility
caused
to claim Entitlem before
SHA ent repeal
(even
though
continge
nt) must
be there
 Court: He had ‘acquired’ the
•
right
Accrued & acquired more
or less have the same
Court meaning & same
consequence

• Where the Act, without

Accrue anything being further
done by the claimant,
d confers the right.
• Where some step, after
Acquir the Act came into force is
needed to be taken by
ed the claimant for getting
the right.
 Therefore….
• If a right has crystallized and liability
has arisen under the repealed act, it is
deemed to be continuing even when
the legislation has been obliterated
and remains unaffected by the repeal.

• The right/liability/penalty should have

been perfected before the repeal.
 Ogden Industries v. Lucas
(1969) 1 All ER 121 (PC)

Workman’ Provided (i) Injury

for
s (ii) Death
Compensa compensa
tion under due to
tion Act injury
two heads

After this The

the Act workman
got suffered
injury
substitut
under first
ed head
 The New Act
The new Act
brought
enhanced in case of
compensation death
for the
dependants

Accrues on the right of

workman’s dependants Therefore,
death, not to claim the court
at the time compensati noted that
of injury on
 The two aspects are
triggered at the same
time
The
right The
of the
depen liabil
dants ity of
to the
claim
compe
empl
nsatio oyer
n
 It was observed…
When the law is changed
after injury but before death
providing for enhanced
compensation, it is not open
to the employer to contend
that he had incurred the
liability when the injury was
caused and was not liable to
pay enhanced compensation.
 Therefore…
• The right of dependants and
the liability of the employer
towards them arises at the
same time i.e. at the
happening of the death of the
workman.

• Therefore, enhanced
compensation is to be paid.
 The way of Repeal
AND determining
the scope of Section
6
 Type of
Repeal

Repeal
Bare accompani
ed by
Repeal fresh
legislation

The
provisions of
Hardly any Section 6 the new Act
contrary can apply will have to
intention be looked
into
 Karam Singh Sobti v.
Pratap Chand
AIR 1964 SC 1305

Delhi & Ajmer Rent Control

Act, 1952
repealed & replaced
by
The Delhi Rent Control Act,
1958
 The Factual Scenario & the
Dispute
A suit was filed for the ejection of
tenant who had sublet the premises
w/out the landlord’s consent.

When this suit was pending in the

High Court, the new Act came into
force.

The ground on which eviction was

sought ceased to be a good ground.
 Sec.57 of the 1958 Act

(1) The Delhi and Ajmer Rent Control Act,

1952 , is hereby repealed.
(2) “Notwithstanding such repeal all
suits and other proceedings under the
said Act pending at the commencement
of this Act, before any court or other
authority shall be continued and
disposed of in accordance with the
provision of the said Act, as if the said
Act had continued in force and this Act
had not been passed:
provided that in any such suit or
proceeding for the fixation of standard
 How far the pending suit was
affected by the new Act?

Apparent Substanti and the

conflict ve part of
Sec.57 proviso
between
Harmonio Pending Modificatio
us proceedin ns of the
gs under new Act
Construct the old could be
ion* Act applied

*Shall have regard to the

provisions of this Act
 Sec. 6 subject to contrary
intention
Whose
Line of
intention is
Enquiry
to be
should be
looked into
Whether the
It is of the new Act
manifests
‘Repealing the intention
Act’ to destroy
thewhether
Not rights
Not that of the new Act
the expressly
keeps alive
repealed old rights
Act and
 Therefore, in the present case

• It was held that the old Act

continued to govern the
proceedings.
The Karam Singh Sobti
case may be compared
to V.K. Verma v. Radhe
Shyam case when the
latter dealt with the
same two legislations
but in a different light.
 V.K. Verma v. Radhe Shyam,
• Application
AIR 1964 SC 1317 was made
by the landlord for an
order to made against
The case the tenant to deposit
under the all the arrears of rent
1952 Rent and future monthly
Act rent on the 15th of each
month as per S.13(5) of
the Act.
• But the tenant made
The Court default and an
made the application was
order as made to strike out
prayed for the defence of his
ejectment.
 A
During correspondin
the g provision
pende was there
ncy giving the
the controller
1958 the
Act discretion to
was strike out
passe the defence
d
 The Court noted here

On the principles stated in the last

mentioned case, it was held that the
change introduced in the new Act
conferring a discretion in the matter
of striking out the defense of
ejectment was a slight modification,
and the benefit of the new provision
 7. Subordinate
Legislation under
Repealed Statute
 Subordinate Legislation
under Repealed Statute
Consequence of a general repeal:
Statute is completely effaced

Subordinate legislation made under

repealed statute also ceases to
have effect.

This can be avoided by inserting a

saving clause providing for the
contrary.
 Sec.24 of the General Clauses Act

Orders
u/the old
• When a • Shall
Act continue
statute is • All orders, under the
repealed & appointme new Act
re-enacted nts rules, unless
Correspon notification contrary is
ding s etc. stated.
S.24, GCA
Provisions
 Application of Sec.24
• Subordinate
legislation shall
Legal continue to be in
fiction force “as if enacted
• in the Act.”
The continuance of
Subject subordinate
howeve legislation u/s24 is
subject to
r to qualification that it
intenti is not inconsistent
with the provision
 8. QUASI REPEAL BY
DESUETUDE
• Desuetude means ‘non-user’.

• The doctrine states:

An Act of Parliament can also come

to an end by desuetude or non-user.
• Origins in Scottish law.

• Not recognized in English law.

 What does the Doctrine
Require??
• Necessary condition for the
application of the doctrine
were to establish that “the
statute in question has been in
disuse for long and contrary
practice of some duration has
evolved.”

Cantonment Board, Mhow v. M.P.Road State

Transport Corporation
The Status in India

The
Supreme
Court

State of Municipal
Maharash Corp’n,
Pune v.
tra v. Bharat
Narayan Forge Co.
(1983) Ltd. (1995)

Doctrine Doctrine
was was
rejected upheld
 Municipal Corporation for City of
Pune v. Bharat Forge Co. Ltd. AIR
1996 SC 2856

Cantonment Act, Another

1880 notification
Notifications
Issued in 1918
issued in 1881
Imposed octroi Impliedly
in Pune repealed 1881
Cantonment notification
 But in reality…

Octroi Held that

As
continued 1918
contrary
to be notificatio
practice
recovered n stood
had
u/1881 quasi
evolved
regulation repealed
The notification of 1918 had
repealed quasily
Contrar
y
Practic
e had
evolve Quasi
d
Repeal
by
Practic
desuet
ed for a
long ude
period
***
of time