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Jayantilal Amratlal Shodhan Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR935
AppellantJayantilal Amratlal Shodhan
RespondentUnion of India (Uoi) and ors.
Cases ReferredGwynne v. Drewitt
Excerpt:
- - 1. this petition raises an interesting question of law relating to the construction and effect of section 117 of the gold (control) ordinance, 1968, and section 116 of the gold (control) act, 1968. on 29th october 1962, simultaneously with the declaration of emergency under article 356 of the constitution, the president promulgated the defence of india ordinance, 1962. pursuant to section 3 of the defence of india ordinance, the central government made the defence of india rules, 1962. the defence of india ordinance was subsequently repealed by the defence of india act, 1962 on 12th december 1962 but by virtue of the saving provision, the defence of india rules, 1962 were continued in force. which were not declared by him and he remained in possession of this quantity of gold.....p.n. bhagwati, c.j.1. this petition raises an interesting question of law relating to the construction and effect of section 117 of the gold (control) ordinance, 1968, and section 116 of the gold (control) act, 1968. on 29th october 1962, simultaneously with the declaration of emergency under article 356 of the constitution, the president promulgated the defence of india ordinance, 1962. pursuant to section 3 of the defence of india ordinance, the central government made the defence of india rules, 1962. the defence of india ordinance was subsequently repealed by the defence of india act, 1962 on 12th december 1962 but by virtue of the saving provision, the defence of india rules, 1962 were continued in force. on 9th january 1963, the central government, in exercise of the powers.....
Judgment:

P.N. Bhagwati, C.J.

1. This petition raises an interesting question of law relating to the construction and effect of Section 117 of the Gold (Control) Ordinance, 1968, and Section 116 of the Gold (Control) Act, 1968. On 29th October 1962, simultaneously with the Declaration of Emergency under Article 356 of the Constitution, the President promulgated the Defence of India Ordinance, 1962. Pursuant to Section 3 of the Defence of India Ordinance, the Central Government made the Defence of India Rules, 1962. The Defence of India Ordinance was subsequently repealed by the Defence of India Act, 1962 on 12th December 1962 but by virtue of the saving provision, the Defence of India Rules, 1962 were continued in force. On 9th January 1963, the Central Government, in exercise of the powers conferred under Section 3 of the Defence of India Act, amended the Defence of India Rules by introducing Part XII-A comprising Rules 126A to 126Z (hereinafter referred to as the Gold Control Rules). Rule 126A, Clause (a), defined 'Board' to mean the Board constituted under Rule 126J and Rule 126J, Clauses (1) and (2) laid down the constitution and functions of the Board. Rule 1261 Clause (1) required every person (not being a dealer or refiner required to apply for a licence, or licensed under Part XII-A to make a declaration to the Board in the prescribed form as to the quantity, description and other prescribed particulars of gold other than ornaments owned by him within thirty days from the commencement of Part XII-A. Part XII-A came into force on 9th January 1963 and, therefore, the period of thirty days limited by Rule 1261 Clause (1) for making a declaration under that Rule was due to expire on 8th February 1963 but the Central Government extended the period upto 28th February 1963. The petitioner was admittedly not a dealer or refiner required to apply for a licence or licensed under Part XII-A and he was, therefore, required under Rule 1261 Clause (1) to make a declaration to the Board in the prescribed form as to the quantity, description and other prescribed particulars of gold owned by him. He accordingly made such a declaration on 7th February 1963 and in that declaration he showed that he owned only six gold bars and twenty-five gold sovereigns.

2. Now according to the respondents the petitioner also owned further eight gold bars weighing 23, 229 Gms. and one hundred fifty gold sovereigns weighing 1, 223 Gms. which were not declared by him and he remained in possession of this quantity of gold (hereinafter referred to as the undeclared gold). This undeclared gold was secreted by the petitioner beneath the earth two and a half feet deep at four points in the strong room of the cellar of his residential premises. It appears that sometime prior to 18th November 1964, the tax authorities received information that some gold was lying secreted in the residential premises of the petitioner and, therefore, on 18th November 1964, some senior officers of the Income-Tax Department raided the residential premises of the petitioner and carried on search of the residential premises. On 20th November 1964 while the search was in progress, the petitioner, realising that the officers conducting the search were on the point of discovering the undeclared gold which was lying secreted in the strong room of the cellar, came out with the story that his late mother had secreted some valuables in the strong room of the cellar at certain points and offered to point out the spots where according to him the valuables were secreted. When earth was dug out at those spots upto a depth of two and a half feet, cement containers were found embedded in the earth and in the cement container was the undeclared gold of the estimated value of Rs. 2,83,320/-. The undeclared gold was deposited in a locker in the Safe Deposit Vault of the Bank of India Limited in the joint names of the petitioner and one of the Income-Tax officers, Thereafter on 17th December 1964, one A.M. Shelat, Deputy Superintendent of Central Excise, went to the residence of the petitioner with two Panchas and in the presence of the Panchas he seized the undeclared gold under Rule 126L Clause (2). The petitioner thereafter made frantic efforts to purchase Gold Bonds against the undeclared gold as also to subscribe for the National Defence Gold Bonds, 1980 by utilising the undeclared gold but his efforts were unsuccessful since the authorities refused to make the undeclared gold available for either of these two purposes. In the meantime, a notice dated 5th June 1965 was issued by the Assistant Collector of Central Excise, Baroda, calling upon the petitioner to show cause why the undeclared gold which was seized as aforesaid and in respect of which an offence as mentioned in paragraph 1 of the notice appeared to have been committed, should not be confiscated under Rule 126M and penalty should not be imposed under Rule 126L Clause (16). The petitioner filed a statement in reply to the show cause notice on 28th June 1966. The Collector of Central Excise did not proceed with the hearing for some time but ultimately, by a letter dated 6th January 1967, he fixed the date of hearing on 20th January 1967 and intimated to the petitioner that he might remain present for the purpose of hearing at the appointed time on that date. The petitioner thereupon filed Special Civil Application No. 58 of 1967 (Jayantilal Shodhan v. Union of India IX G.L.R. 208) in this Court challenging the validity of the show cause notice dated 5th June 1965.

3. There were four grounds on which the validity of the show cause notice was challenged on behalf of the petitioner. Of these four grounds, the first three were rejected by us but the fourth was upheld and the show cause notice in so far as it called upon the petitioner to show cause why penalty under Rule 126L Clause (16) should not be imposed upon him was quashed and set aside. The reason why we held the show cause notice to be invalid in so far as it sought to impose penalty on the petitioner under Rule 126L Clause (16) was that Rule 126L Clause (16) which provided for imposition of penalty for doing or omitting to do any act which act or omission would render gold liable to confiscation under Rule 126M, was introduced in the Gold Control Rules by an amendment made on 24th June 1963 while the omission on the part of the petitioner to declare the undeclared gold within the prescribed period and remaining in possession of it had already rendered the undeclared gold liable to confiscation prior to that date and Rule 126L Clause (16) could not be applied retrospectively so as to take in cases where some act or omission rendering gold liable to confiscation was done by a person prior to the coming into force of that clause. The result of this view taken by us was that the show cause notice survived only in so far as it called upon the petitioner to show cause why the undeclared gold should not be confiscated under Rule 126M and the Collector of Central Excise accordingly, with a view to bringing the show cause notice into conformity with our decision, by his letter dated 6th December 1968 deleted the portion of the show cause notice relating to imposition of penalty under Rule 126L Clause (16) and indicated to the petitioner that he proposed to proceed further under the remaining part of the show cause notice. The petitioner thereupon filed the present petition challenging the jurisdiction and power of the Collector of Central Excise to continue the proceeding for confiscation of the undeclared gold under Rule 126M.

4. Before we set out the main grounds of challenge, it would be convenient at this stage to advert to some of the important provisions of law bearing on the point in controversy between the parties. We will first refer to the relevant provisions of the Gold Control Rules. We have already referred to Rule 126J and Rule 1261 Clause (1). Rule 1261 Clause (10) is also material and it ran as follows:

126. I. xxx xxx xxx xxx xxx xxx(10) No person other than a dealer and a refiner, licensed under this Part, shall acquire or have in his possession or under his control any quantity of gold required to be declared under this rule unless such gold has been included in a declaration or further declaration made thereunder;xxx xxx xxx xxx xxx xxx xxx

Rule 126L Clause (2) declared, omitting portions immaterial, that any person authorised by the Central Government by writing in this behalf may seize any gold in respect of which he suspects that any provision of Part XII-A has been, or is being, or is about to be, contravened, along with the package, covering or receptacle, if any, in which gold is found and thereafter take all measures necessary for their safe custody. Rule 126M provided for confiscation of gold seized under Rule 126L:

126M. (1) Any gold seized under Rule 126L, together with the package, covering or receptacle, if any, in which such gold is found shall be liable to confiscation.

(2) Such confiscation may be adjudged,

xxx xxx xxx xxx xxx xx xxx(3) An appeal shall lie to the Board against every adjudication of confiscation under Sub-rule (2).

It was under Rule 126M that the show cause notice was issued to the petitioner requiring him to show cause why the undeclared gold Should not be confiscated on the ground of contravention of Rule 1261 Clause (10).

5. Now in view of our decision in Special Civil Application No. 58 of 1967 upholding the validity of the show cause notice, in so far as it called upon the petitioner to show cause why the undeclared gold should not be confiscated under Rule 126M, the Collector of Central Excise, Baroda, could have proceeded further with the hearing of the show cause notice for the purpose of adjudicating whether the undeclared gold was liable to be confiscated but before he could do so, certain events happened which have given rise to the present petition. On 29m June 1968 the President promulgated an Ordinance called the Gold (Control) Ordinance, 1968, (hereinafter referred to as the Gold Control Ordinance) repealing the Gold Control Rules and enacting certain other provisions 'for the control of the production, manufacture, supply, distribution, use and possession of and business in gold ornaments and articles of gold'. Section 117 of the Gold Control Ordinance is material for the purpose of the present petition and it provided:

117. (1) 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 the General Clauses Act, 1897, shall apply as if the said Part were a Central Act.

(2) Notwithstanding the repeal made by Sub-section (1), but without prejudice to the application of Section 6 of the General Clauses Act, 1897, any notification, order, direction, appointment or declaration made or any notice, licence or certificate issued or permission, authorization or exemption granted or any confiscation adjudged or penalty or fine imposed or any forfeiture ordered or any other thing done or any other action taken under or in pursuance of the provisions of Part X1IA of the Defence of India Rules, 1962 so far as it is not inconsistent with the provisions of this Ordinance, be deemed to have been made, issued, granted, adjudged, impsoed, ordered, done or taken under the corresponding provisions of this Ordinance.

The Gold Control Ordinance was subsequently replaced by the Gold (Control) Act, 1968 (hereinafter referred to as the Gold Control Act) which came into force on 1st September, 1968. The Gold Control Act repealed the Gold Control Ordinance and substantially re-enacted its provisions. Section 116 of the Gold Control Act was in these terms:

116, (1) The Gold (Control) Act, 1965, and the Gold (Control) Ordinance, 1968, are hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken including any notification, order or appointment made, direction given, notice, licence or certificate issued, permission, authorisation or exemption granted, confiscation adjudged, penalty or fine imposed, or forfeiture ordered, whether under the Gold (Control) Ordinance, 1968, or Part XII-A of the Defence of India Rules, 1962, shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done, taken, made, given, issued, granted, adjudged, imposed or ordered, as the case may be, under the corresponding provision of this Act, as if this Act had commenced on the 29th day of June, 1968.

The reference to the Gold (Control) Act, 1965, in Section 116 Sub-section (1) of the Gold Control Act was to a prior legislation which had been passed by the Parliament but which had not been brought into force. Nothing turns upon it and it need not, therefore, detain us.

6. On the strength of Section 116 of the Gold Control Ordinance and Section 117 of the Gold Control Act the petitioner contended that the Collector of Central Excise was no longer entitled to continue the proceedings initiated by the show cause notice for confiscating the undeclared gold under Rule 126M for contravention of Rule 1261 Clause (10). The argument of the petitioner proceeded on the following lines. The petitioner agreed that Section 117 Sub-section (1) of the Gold Control Ordinance made Section 6 of the General Clauses Act applicable to the repeal of the Gold Control Rules and, therefore, if no other provision had intervened, the proceedings initiated by the show cause notice for confiscating the undeclared gold could have been continued against the petitioner under Rule 126M despite the repeal of the Gold Control Rules but, contended the petitioner, the Gold Control Ordinance, including Section 117 Sub-section (1), was repealed by Section 116 Sub-section (1) of the Gold Control Act and according to the common law doctrine the effect of the repeal was to obliterate Section 117 Sub-section (1) of the Ordinance as completely as if it had been never enacted so that the applicability of Section 6 of the General Clauses Act to the repeal of the Gold Control Rules was' completely wiped out and set at naught and the Collector of Central Excise was not entitled to rely on Section 6 of the General Clauses Act for continuing the proceedings against the petitioner for confiscation of the undeclared gold under Rule 126M. The petitioner pointed out that in considering the effect of the repeal of the Gold Control Ordinance by Section 116 Sub-section (1) of the Gold Control Act, the respondents were not entitled to invoke Section 6 of the General Clauses Act since the Gold Control Act evinced a 'different intention', that is, an intention to exclude the applicability of Section 6 of the General Clauses Act and, in any event, even if Section 6 was applicable, the liability to confiscation sought to be enforced by the proceedings initiated by the Collector of Central Excise being a liability incurred under the Gold Control Rules and not under the Gold Control Ordinance, the case was not covered by any of the clauses of Section 6 and, therefore, with the repeal of Section 117 Sub-section (1) of the Gold Control Ordinance, the applicability of Section 6 to the Gold Control Rules was completely obliterated and without any saving provision, the proceedings for confiscation of the undelared gold under Rule 126M could not be continued after the repeal of the Gold Control Rules--which repeal was unaffected despite the repeal of Section 117 Sub-section (1) by reason of Section 6 Clause (a) and Section 7 of the General Clauses Act. These were the main steps in the argument urged on behalf of the petitioner and we shall now proceed to examine the validity of these steps.

7. It is clear on a plain reading of Section 117 Sub-section (1) of the Gold Control Ordinance that it repealed the Gold Control Rules and provided that on such repeal, Section 6 of the General Clauses Act shall apply as if the Rules were a Central Act. Section 6 was thus in so many terms made applicable to the repeal of the Gold Control Rules. This section lays down the effect of repeal of an enactment and says:

6. Effect of repeal: Where this Act or any Central Act or Regulation made after the commencemet 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

(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, any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

It is, therefore, evident that, despite the expiry of the Gold Control Rules, the proceedings instituted against the petitioner by issue of the show cause notice for enforcing the liability to confiscation incurred under Rule 126M for contravention of Rule 1261 Clause (10) could be continued and the liability to confiscation enforced against the petitioner as if the Gold Control Rules had not been repealed and continued in force. This was clearly and indubitably the effect of making Section 6 of the General Clauses Act applicable to the repeal of the Gold Control Rules. But the question is whether this effect was obliterated by the repeal of the Gold Control Ordinance and particularly the repeal of Section 117 Sub-section (1) by Section 116 Sub-section (1) of the Gold Control Act or in other words, what was the effect of the repeal?

8. Now under the common law as it stood in England prior to the enactment of the Interpretation Act, 1889, the effect of repealing a statute was said to be to obliterate it as completely from the records of Parlia ment as if it had never been passed, except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law: Vide Craies on Statute Law, Sixth Edition, page 410. A repeal, therefore, without any saving clause would destroy any proceed ing whether not yet begun or whether pending at, the time of the enactment of the repealing 'Act and not already prosecuted to a final judgment so as to create a vested right: Vide Crawford on Statutory Construction pages 599-600. To obviate such results, a practice came into existence in England to insert a saving clause in the repealing statute with a view to preserving rights and liabilities already accrued or incurred under the repealed enactment. But later on, to dispense with the necessity of having to insert a saving clause on each occasion, Section 38(2) was inserted in the Interpretation Act, 1889, which provides that a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of any right, liability and penalty under the repealed Act as if the repealing Act had not been passed. Section 6 of the General Clauses Act, 1897 is framed on the same lines as Section 38(2) of the English Interpreta tion Act. As a matter of fact a similar provision was enacted here in Section 6 of the General Clauses Act, 1868, long before the enactment of the Interpretation Act in England with the result that the rule of interpreta tion embodied in Section 6 has now governed the effect of repeal of a statute in India since the last over 90 years.

9. But being essentially a rule of interpretation, its operation is presumptive and not peremptory and it must give way to the expressed intention of the Legislature. It is in fact so provided in Section 6 itself, for the section says that the rule of interpretation there enacted shall apply 'unless a different intention appears.' Therefore, whenever there is repeal of an enactment, the consequences laid down in Section 6 will follow unless, as the section says, a different intention is manifested by the Legislature. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by a fresh legis lation on the same subject, we would have to look to the provisions of the new Act for the purpose of determining whether they indicate a different intention. In considering this question the line of inquiry would be, not whether the new Act expressly keeps alive old rights and liabili ties but whether it exhibits an intention to destroy them. Section 6 would apply, unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and mere absence of a saving clause in regard to a particular matter would not by itself be material. Vide State of Punjab v. Mohar Singh A.I.R. 1955 S.C. 82.

10. It is in the light of these principles that we have to consider what was the effect of repeal of the Gold Control Ordinance: did the provisions of Section 6 apply to the case of such repeal or were they excluded by 'a different intention' manifested in the Gold Control Act? Now there is nothing in the Gold Control Act which would indicate the inten tion of the Legislature that the rights and liabilities accrued or incurred under the Gold Control Ordinance shall be extinguished on the passing of the Gold Control Act. On the contrary the saving provision enacted in Section 116 Sub-section (2) clearly shows that at any rate certain actions taken under the Gold Control Ordinance were intended to be saved by provid ing that they shall be deemed to have been taken under the corresponding provision of the Gold Control Act. It is no doubt true that there is no express provision saving rights and liabilities accrued or incurred under the Gold Control Ordinance but the absence of such saving provision does not indicate 'a different intention' excluding the applicability of Section 6. As pointed out above, the line of inquiry must be not whether the Gold Control Act expressly keeps alive rights and liabilities accrued or incurred under the Gold Control Ordinance but whether it manifests an intention to destroy them. No such intention can be gathered from any provision of the Gold Control Act. Section 6 must, therefore, be held applicable in determining the effect of repeal of the Gold Control Ordinance.

11. This view which we are taking is amply supported by a recent decision of the Supreme Court in T.S. Baliah v. T.S. Rangachari (1969) 72 I.T.R. 787. That was a case arising under the Income-tax Act, 1961, and the question was whether Section 297 Sub-section (2) of that Act excluded the applicability of Section 6 of the General Clauses Act. Section 297 Sub-section (1) repealed the Income-tax Act, 1922, and Sub-section (2) of that section enacted saving provisions in respect of various matters. But there was no saving provision in respect of prosecutions pending at the commence ment of the Income-tax Act, 1961, and, therefore, the argument urged on behalf of the assessee was that the Parliament did not intend to save proceedings in respect of prosecutions pending at the commencement of the Income-tax Act, 1961. This argument was negatived by the Supreme Court and Ramaswami J. speaking on behalf of the Supreme Court, after stating the law on the subject which was in identical terms with that enunciated in Mohar Singh's case (supra), observed:

It is true that there is no express sub-clause in Section 297(2) of the 1961 Act which provides for the continuation of such proceedings but our concluded opinion is that Parliament did not intend Section 297(2) of the 1961 Act to be completely exhaustive and in regard, to such matters as are not expressly saved by Section 297(2) of the 1961 Act the provisions of Section 6(e) of the General Clauses Act will apply. If follows, therefore, in the present case that under Section 6 of the General Clauses Act a legal proceeding in respect of an offence committed under the 1922 Act may be instituted even after the repeal of the 1922 Act by the 1961 Act and punishment may be imposed as if the repealing Act had not been passed.

It will be seen that even though an elaborate Code of saving provisions was enacted in Section 297 Sub-section (2) in respect of several matters, the Supreme Court took the view that Section 6 of the General Clauses Act was not excluded by necessary implication and in respect of a matter not provided for in the saving clauses, Section 6 was applicable and the pending proceedings could, therefore, be continued under the Income-tax Act, 1922. Ours is a much stronger case for here there is no provision from which even an inference can be drawn that the Parliament intended to exclude the applicability of Section 6 and to extinguish rights and liabilities accrued or incurred under the Gold Control Ordinance.

12. Having cleared the ground as to the applicability of Section 6 of the General Clauses Act, let us now proceed to consider the effect of repeal of the Gold Control Ordinance on the proceedings pending against the petitioner for confiscation of the undeclared gold under Rule 126M. We may for the purpose of the present argument assume with the petitioner though, as we shall presently point out, this assumption is clearly wrong that none of the clauses of Section 6 could avail the Collector of Central Excise to offset the effect of repeal of Section 117 Sub-section (1) of the Gold Control Ordinance but even so we do not think the repeal in any way affected the continuance of the proceedings for enforcing the liability to confiscation under Rule 126M. Section 117 Sub-section (1) of the Gold Control Ordinance repealed the Gold Control Rules but laid down inter alia, by making Section 6 applicable, that the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Gold Control Rules or any penalty, forfeiture, or punishment, incurred in respect of any offence committed against any provision of the Gold Control Rules or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment 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 Gold Control Ordinance had not been passed, that is, the Gold Control Rules continued in force. The Gold Control Rules were thus continued in force so far as the matters specified in Section 6 were concerned and to that extent the repeal of the Gold Control Rules was to be ineffective. The repeal made by the first part of Section 117 Sub-section (1) was qualified by the saving provision enacted in the second part of Section 117 Sub-section (1) and to the extent to which the saving provision operated, the repeal was inoperative: the repeal did not affect the continuance of the Gold Control Rules in so far as the matters specified in Section 6 were concerned. The Gold Control Rules continued in force qua these matters not by reason of any force derived from Section 117 Sub-section (1) of the Gold Control Ordinance but by reason of their own legislative force. What Section 117 Sub-section (1) did was to leave the Gold Control Rules untouched or unaffected-free to operate within the area comprised in these matters-and if that be so, it is difficult to see how the repeal of Section 117 Sub-section (1) could have the effect of abrogating the continuing efficacy and operation of the Gold Control Rules in relation to these matters. Section 116 Sub-section (1) of the Gold Control Act repealed the Gold Control Ordinance and not the continuing efficacy and operation of the Gold Control Rules in relation to the matters enumerated in Section 6 which was left untouched by Section 117 Sub-section (1) of the Gold Control Ordinance. The repeal of the Gold Control Ordinance by Section 116 Sub-section (1) of the Gold Control Act did not, therefore, have the effect of putting an end to the proceedings instituted against the petitioner for confiscation of the undeclared gold under Section 126M and despite the repeal of the Gold Control Ordinance, the proceedings could be continued against the petitioner under the Gold Control Rules.

13. There is also another approach which may be adopted in resolving this question and that approach yields the same conclusion. As we have pointed out above, Section 6 of the General Clauses Act applies to the case of repeal of the Gold Control Ordinance by Section 116 Sub-section (1) of the Gold Control Act. Clause (b) of Section 6 provides that the repeal shall not affect the previous operation of the Gold Control Ordinance. Now Section 117 Sub-section (1) repealed the Gold Control Rules subject to the saving provisions enumerated in Section 6. That was something done once and for all by the operation of Section 117 Sub-section (1) prior to its repeal and this 'previous operation' of Section 117 Sub-section (1) was, by reason of Section 6 Clause (b), unaffected by the repeal of the Gold Control Ordinance. Though at one time in the course of the arguments the learned advocate appearing on behalf of the petitioner disputed that the repeal of the Gold Control Rules effected by Section 117 Sub-section (1) would be covered by the words 'previous operation' he was ultimately constrained to admit that since repeal was something which was done once and for all and in doing so the statutory provision was exhausted, the repeal was a result of the 'previous operation' of Section 117 Sub-section (1) and it was saved by Section 6 Clause (b). And indeed it was not possible for him to contend otherwise in view of the decision of the Supreme Court in State of Orissa v. Bhupendra Kumar : AIR1962SC945 . The question which arose in that case of course concerned the effect of expiration of a temporary statute on a right created by it but the observations made by the Supreme Court in that case are very apposite and they furnish clear guidance on the question before us. Orissa Ordinance 1 of 1959 was promulgated by the Governor of Orissa inter alia with a view to validating the Cuttack Municipal elections which had been declared to be invalid by the High Court. The Ordinance came to an end on 1st April 1959 by reason of its own limitation as an Ordinance and the question arose whether on the expiry of the Ordinance, the invalidity in the Cuttack Municipal elections which had been cured-by it revived. The Supreme Court, after referring to the general rule as to the effect of expiry of a temporary statute, namely, that 'unless it contains some special provision to the contrary, after the temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect' pointed out that this general rule was not an inflexible and universal rule: 'what the effect of the expiration of a temporary Act would be must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not.' The Supreme Court proceeded to add in a later part of the judgment:

Therefore, in considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired.

The Supreme Court then considered the decision of the English Court in Warren v. Windle (1803) 3 East 205: 102 E.R. 578 and pointed out that even where a temporary Act repeals an earlier Act, the repeal may in a given case be permanent and where it is so, it would 'endure even after the expiration of the temporary Act'. The principle underlying this decision clearly is that if there is any legal effect produced by a temporary statute which is of a permanent or enduring character, it would continue despite the expiration of the temporary Act. So also where a certain legal effect is produced by an enactment once and for all and in producing that legal effect the statutory provision has fulfilled itself or, in other words, spent itself so that its continued operation is no longer necessary, the repeal of the statutory provision does not have the effect of obliterating or setting at naught what has been done. When Section 117 Sub-section (1) repealed the Gold Control Rules, the operation of Section 117 Sub-section (1) was complete; it fulfilled its purpose and its subsequent repeal cannot affect its 'previous operation' in repealing the Gold Control Rules. And, if that be so, the saving effected by incorporation of Section 6 in Section 117 Sub-section (1) must also likewise be held to be unaffected by the repeal of Section 117 Sub-section (1). It is important to note that what has been done by Section 117 Sub-section (1) once and for all is not mere repeal of the Gold Control Rules but repeal subject to the saving provisions. That is the legal effect which has been brought about once and for all by Section 117 Sub-section (1) and that legal effect does not depend for its validity on the continued operation of Section 117 Sub-section (1). It is not repeal simpliciter but repeal subject to the saving provisions that constitutes the 'previous operation' of Section 117 Sub-section (1) and the saving effected by Section 117 Sub-section (1) by incorporating by reference the provisions of Section 6 must, therefore, be held to be unaffected by the repeal of the Gold Control Ordinance.

14. Before we part with this point we may refer to a decision of the English Court in Gwynne v. Drewitt (1894) 2 Ch. 616. In this case a question arose as to the effect of repeal in 1856 of a Turnpike Act passed in 1819 for twenty-one years and subsequently continued till 1856. The Act of 1819 provided for stopping up of a bridleway to prevent evasion of tolls and vesting the soil in the owner of the land over which it passed in exchange for land taken from him for the purposes of a turnpike road to be used in substitution for the bridleway, Romer J. said:

The Act of 1859, which repeals the Act of 1819, had not, in my judgment, the effect at all of reviving the old ways, which had been stopped up and discontinued. The effect of Section 51 of the Act of 1819 is this-that the old ways there referred to were stopped up and discontinued-in my judgment, for ever... but the provision in Section 51 was something which was done once for all, and was not intended to be undone at the expiration of the term referred to in Section 92.

Now, when the Act of 1856 was passed, and the Act of 1819 repealed, it was not, in my judgment, at all the intention of the Legislature, or the effect of Act of 1856, to undo that which had been already done during the continuance of the prior Act, or to revive these ways, which had been once for all discontinued and put an end to, as public ways, by Section 51.

The analogy of this decision is irresistible. We do not think that when the Gold Control Ordinance was repealed and re-enacted in the same terms in the Gold Control Act, it was at all the intention of the Legislature or the effect of the Gold Control Act to extinguish the saving provisions enacted in Section 117 Sub-section (1) so that offenders against the Gold Control Rules against whom proceedings had not finally terminated before the coming into force of the Gold Control Act should escape penalty, forfeiture or confiscation, as the case may be. When the law-making authority while repealing the Gold Control Rules was anxious to provide that the repeal shall be subject to the saving provisions, it is difficult to imagine that the Legislature when repealing the Gold Control Ordinance and re-enacting it as the Gold Control Act should have intended that the repeal of the Gold Control Rules should continue but the saving provisions should go. If we accept the construction contended for on behalf of the petitioner, we shall be stultifying the intention of the Legislature and producing a strange and inequitous result, which, though very much palatable to all offenders against the law, would certainly be contrary to the manifest intention of the Legislature. We cannot assent to such a construction.

15. We must, therefore, hold that despite the repeal of the Gold Control Ordinance by Section 116 Sub-section (1) of the Gold Control Act, the proceedings instituted against the petitioner by issue of the show cause notice for confiscation of the undeclared gold under Rule 126M could be continued against the petitioner under the Gold Control Rules and Collector of Central-Excise was, entitled to proceed with the hearing of the show cause notice.

16. The petition, therefore, fails and the Rule is discharged with costs. Interim injunction granted on 4th February 1969 will stand vacated. The learned advocate appearing on behalf of the petitioner applies for leave to appeal to the Supreme Court under Article 133(1)(b) of the Constitution. Since the final order made by us involves'a question respecting the undeclared gold which is admittedly of the value of over rupees twenty thousand, we grant leave to the petitioner to appeal to the Supreme Court under Article 133(1)(b).


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