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Citation Codes
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Case Number
Advocates
  • D.M Bhandari, for applicant;
  • C.B Bhargava, Deputy Govt. Advocate
Judges
  • Mr. Jawan Singh Ranawat
  • Mr. Kumar Krishna Sharma
Acts
  • follows:2. Insertion of sec. 20-AAfter sec. 20 of the Rajasthan Essential Supplies (Temporary Powers) Ordinance, 1949 (No. XIII of 1949), the following section
  • sec. 6 read with sec. 8 of the Jaipur Essential Supplies (Temporary Powers) Act of 1947, hereinafter
  • provisions of sec. 6(c) and (e) of the Jaipur General Clauses Act,
  • (e) of sec. 6 of the Jaipur General Clauses Act.
  • Essential Supplies (Temporary Powers) Acts
  • sec. 6 of the Jaipur General Clauses Act
  • sec. 6(e) of the General Clauses Act
  • sec. 6 of the General Clauses Act
  • GENERAL CLAUSES ACT
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • D.M Bhandari, for applicant;
  • C.B Bhargava, Deputy Govt. Advocate
Judges
  • Mr. Jawan Singh Ranawat
  • Mr. Kumar Krishna Sharma
Acts
  • follows:2. Insertion of sec. 20-AAfter sec. 20 of the Rajasthan Essential Supplies (Temporary Powers) Ordinance, 1949 (No. XIII of 1949), the following section
  • sec. 6 read with sec. 8 of the Jaipur Essential Supplies (Temporary Powers) Act of 1947, hereinafter
  • provisions of sec. 6(c) and (e) of the Jaipur General Clauses Act,
  • (e) of sec. 6 of the Jaipur General Clauses Act.
  • Essential Supplies (Temporary Powers) Acts
  • sec. 6 of the Jaipur General Clauses Act
  • sec. 6(e) of the General Clauses Act
  • sec. 6 of the General Clauses Act
  • GENERAL CLAUSES ACT
See more information ...
Smart Summary

Judgment Summary — Sharma, J.

Factual and Procedural Background

This is an appeal (in revision) by Lalchand, who was prosecuted in the Court of the First Assistant City Magistrate, Jaipur, under sections 6 read with 8 of the Jaipur Essential Supplies (Temporary Powers) Act, 1947 (the "Jaipur Act"). The prosecution alleged that Lalchand exported certain iron girders from Jaipur West Railway Station to Pokaran in Marwar on 5 April 1949 in contravention of section 5(a) of the Iron and Steel Control (Production and Distribution) Order of 1947 (the "Jaipur Order"). One Nanulal was also challaned but was discharged by the Magistrate. Lalchand raised two grounds in revision to this Court: (1) that the Jaipur Act was repealed by the Rajasthan Essential Supplies (Temporary Powers) Ordinance, 1949 ("Rajasthan Ordinance") and that the Rajasthan Ordinance did not save prosecutions launched under the Jaipur Act; and (2) that no prima facie case was made out against him.

Legal Issues Presented

  1. Whether prosecutions launched under the Jaipur Essential Supplies (Temporary Powers) Act of 1947 survived the repeal effected by the Rajasthan Essential Supplies (Temporary Powers) Ordinance, 1949 — that is, whether the Rajasthan Ordinance or any applicable general-clauses provision saved ongoing prosecutions begun under the Jaipur Act.
  2. Whether a prima facie case had been made out against Lalchand (raised but the Court did not decide this point because of its view on the first issue).

Arguments of the Parties

Appellant (Lalchand)'s Arguments

  • Section 20(1) of the Rajasthan Ordinance repealed the Jaipur Act, and the Rajasthan Ordinance contained no provision saving prosecutions launched under the Jaipur Act.
  • The Central General Clauses Act was not in force in Rajasthan when the Rajasthan Ordinance was promulgated, so section 6 of that Act (as relied upon by the prosecution) did not apply.
  • Even if a general-clauses provision applied, section 6 of the General Clauses Act (as interpreted by certain Allahabad High Court rulings) applies only where an earlier law is simply repealed and not where new legislation substitutes for the old; hence it could not save prosecutions where a new unified law (the Rajasthan Ordinance) had been enacted to replace prior laws.
  • Section 20(2) of the Rajasthan Ordinance saves certain orders, appointments, licences, directions and things done immediately before the Ordinance, but that subsection does not save prosecutions begun under the repealed Acts.

Respondent (Prosecution)'s Arguments

  • Although there is no express saving provision in the Rajasthan Ordinance for the present prosecution, prosecutions were saved by the provisions of section 6(c) and 6(e) of the Jaipur General Clauses Act, which continued to apply to the territories of the erstwhile Jaipur State by virtue of section 3 of the Rajasthan Administration Ordinance No. 1 of 1949 (continuance of existing laws).
  • Section 6(c) and (e) of the Jaipur General Clauses Act prevent repeal from affecting rights, privileges, obligations, liabilities and legal proceedings arising under the repealed enactment; thus the State's right to prosecute and the accused's liability under the Jaipur Act were saved and the ongoing prosecution is a legal proceeding so saved.
  • Section 6 applies not only to simple repeal but also when an enactment is repealed and another is substituted in its place; reliance was placed on Nagpur High Court authority (Liladhar Daulatram v. The State) for that proposition.
  • The repeal of the Jaipur Act would terminate the present prosecution only if a different intention appeared from the Rajasthan Ordinance, and it was submitted that no such different intention appeared.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Danmal Parshotamdas… (Plaintiff) v. Baburam Chhotelal… (Defendant), A.I.R. 1936 All. 3 Authority for the proposition (per Suleman, C.J.) that section 6(e) of the General Clauses Act applies to cases where a previous law has been simply repealed and there is no fresh legislation in its place; repeal does not affect rights previously acquired or suits instituted in respect of such rights. The Court noted this authority was relied upon by the accused but explicitly stated it was unnecessary to pronounce on whether section 6 applies only to simple repeals; the Court did not adopt or rely on this ruling to decide the case.
Benaras Bank Ltd. v. Shri Sri Prakash, Bhagwan Das, A.I.R. 1946 All. 269 Decision quoting and approving the observations in Danmal Parshotamdas and indicating a similar limitation on the application of section 6 (i.e., to simple repeals). The Court recorded that this authority had been relied upon by the accused but, as with the first authority, found it unnecessary to rule on the point and therefore did not apply the decision to resolve the present dispute.
Liladhar Daulatram v. The State, A.I.R. 1951 Nag. 353 Authority relied upon by the prosecution for the contrary proposition that section 6 can apply where an enactment is repealed and another substituted in its place. The Court acknowledged this ruling was relied upon by the prosecution but declined to resolve the conflict between the authorities, finding it unnecessary to decide whether section 6 applies only to simple repeals or also to repeals followed by substitution.

Court's Reasoning and Analysis

The Court proceeded step-by-step and framed the decisive question narrowly. It first observed that it was not necessary to decide the broader, contested issue whether a section like section 6 of a General Clauses Act applies only to simple repeals or also to repeals followed by substitution; accordingly the conflicting decisions of the Allahabad and Nagpur High Courts on that abstract point need not be resolved for this case.

The Court then focused on the concrete circumstances existing when the Rajasthan Ordinance was promulgated. It accepted both parties' concession that there was no single General Clauses Act applicable to the whole of Rajasthan at that time and that the Central General Clauses Act was not adopted in Rajasthan. Therefore the only question was whether the Jaipur General Clauses Act (containing a section 6) could operate to save prosecutions in the former Jaipur territory in the face of a new, unified Rajasthan Ordinance.

The Court considered the practical and legal consequences of allowing the Jaipur General Clauses Act to save prosecutions in the Jaipur territory alone. If prosecutions under repealed laws were to survive in some former states (like Jaipur) but not in other territories forming part of the new Rajasthan, that would produce an anomalous and absurd result inconsistent with the unified operation of the Rajasthan Ordinance across the whole state. The Court rejected the Deputy Government Advocate's reply that there was no absurdity because the Jaipur General Clauses Act applied only to the Jaipur Act: the Court found that the legislature intended the Rajasthan Ordinance to provide a uniform law for the whole of Rajasthan and not to create differing consequences for prosecutions depending on which former state's law had been repealed.

The Court examined section 20(2) of the Rajasthan Ordinance and observed it made explicit savings in favour of orders, appointments, licences, directions and things done immediately before the Ordinance's commencement, but it did not expressly save prosecutions. The Court reasoned that if the legislature had intended prosecutions launched under the various repealed Acts to survive, it could and would have made an express saving in that respect.

The Court found its view strengthened by the subsequent insertion of section 20-A (by Amendment Ordinance No. XLIX of 1949). Section 20-A expressly validated orders, notifications, things done or actions taken under the repealed laws between the Ordinance's commencement and its Gazette publication. The Court treated this later amendment as evidence that where the legislature intended to preserve or validate particular actions arising out of repealed enactments it did so expressly; the absence of any explicit provision preserving prosecutions suggests that prosecutions were not intended to survive the repeal.

Concluding that the legislature did not intend prosecutions under the repealed Essential Supplies Acts (including the Jaipur Act) to continue after the Rajasthan Ordinance came into force, the Court held that the present prosecution was not saved by any applicable general-clauses provision. On this basis, the Court allowed the revision application and quashed the proceedings; because of this disposition it did not address whether a prima facie case had been made out.

Holding and Implications

Holding: The application for revision is allowed; the proceedings for the prosecution of Lalchand pending in the lower court are quashed and the applicant is discharged.

Implications: The direct effect of the decision is to terminate the prosecution of Lalchand for the alleged export of iron girders. The Court based its decision on the legislative scheme of the Rajasthan Ordinance (including the express savings it contained and the subsequent insertion of section 20-A) and on the absence of a unified General Clauses Act for the whole of Rajasthan at the relevant time. The opinion does not purport to lay down a new, general rule resolving the authorities on whether a general-clauses section (such as section 6) applies only to simple repeals or also to repeals followed by substitution; the Court expressly avoided deciding that broader question. Thus, beyond the direct effect on the parties (quashing of the prosecution and discharge of the applicant), the opinion contains no broad precedent on that unresolved point.

Show full summary ...

    Lalchand v. The State

    Sharma, J.:— This is an appeal by Lalchand who is being prosecuted in the Court of the First Assistant City Magistrate, Jaipur, for an offence under sec. 6 read with sec. 8 of the Jaipur Essential Supplies (Temporary Powers) Act of 1947, hereinafter to be referred to as the Jaipur Act, on the allegation that he exported certain iron girders from Jaipur West Railway Station to Pokaran in Marwar on the 5th April, 1949 in contravention of sec. 5(a) of the Iron and Steel Control (Production and Distribution) Order of 1947, hereinafter to be referred to as the Jaipur Order. One Nanulal was also challaned along with him but he was discharged by the learned Magistrate. Lalchand has come in revision to this Court and the following two points are raised on his behalf—

    (1) that the Jaipur Act was repeated on the 20th July 1949 by the Rajasthan Essential Supplies (Temporary Powers) Ordinance, 1949, hereinafter to be referred to as the Rajasthan Ordinance, which was published in the Rajasthan Gazette dated the 10th August 1949 and the Rajasthan Ordinance did not save any prosecutions launched under the Jaipur Act.

    (2) that no prima facie case was made out against the accused.

    2. Taking up the first ground first, which, to our mind, is in fact the most important ground in the case, it was argued by the learned counsel on behalf of the accused that by, sec. 20(1) of the Rajasthan Ordinance, the Jaipur. Act was repeated. There is no, provision in the Rajasthan Ordinance by which prosecutions launched under the Jaipur Order could be, saved. It was argued that sec. 6 of the General Clauses Act does not apply to the present case as the General Clauses Act was not in force in Rajasthan at the time when the Rajasthan Ordinance was promulgated. It was further argued that even if it be taken that the Central General Clauses Act applied to Rajasthan (which in fact did not apply), sec. 6 would not apply all the same, because it applies only to the cases where a former. Act is simply repeated and another one substituted in its place. For this reliance was placed upon two, rulings of the Allahabad High Court one reported in Danmal Parshotamdas…(Plaintiff); v. Baburam Chhotelal…(Defendant).* (A.I.R 1936 All. 3), and Benaras Bank Ltd. v. Shri Sri Prakash, Bhagwan Das (A.I.R 1946 All. 269). In the first of these two rulings there are following observations of Suleman, C.J from which it was inferred that sec. 6(e) of the General Clauses Act applies to those cases only where a previous law has been simply repealed and there is no fresh legislation to take its place. “Where an old law has been merely repealed then the repeal would not affect any previous right acquired nor would it even affect a suit instituted subsequently in respect of a right previously so acquired.” These observations of Suleman, C.J were quoted with approval by Braund, J. in the second ruling of the Allahabad High Court above referred to. It was further argued that whatever the Rajasthan Ordinance intended to save out of the orders or other things arising out of the Jaipur Act were expressly saved by sec. 20(2) of, the Rajasthan Ordinance. By that sub-section it was provided that—

    “any order made, or deemed to be made under the repeated Acts, Ordinances and laws and in force immediately before the commencement of Rajasthan Ordinance shall continue in force and be deemed to be an order made under the Ordinance and all appointments made, licenses or permits granted, directions issued, things done and action taken under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, granted, issued, done or taken in pursuance of the Rajasthan Ordinance.”

    3. That was the only provision which related to saving and it did not save any action taken under any of the repealed Acts and therefore the present prosecution which was launched under the Jaipur Act could not be saved.

    4. On behalf of the prosecution it was conceded by the learned Deputy Government Advocate that there was no express provision in the Rajasthan Ordinance by which the present prosecution started under the Jaipur Act could be saved. He however argued that the prosecution was saved by the provisions of sec. 6(c) and (e) of the Jaipur General Clauses Act, which continued to apply to the territories covered by the erstwhile Jaipur State by virtue of sec. 3 of the Rajasthan Administration Ordinance No. 1 of 1949. Which runs as follows—

    “3. Continuance of existing laws.— (1) All the laws in force in any covenanting State immediately before the commencement of this Ordinance in that State shall, until altered or repealed or amended by a competent legislature or other competent authority, continue in force in that State, subject to the modification that any reference therein to the Ruler or Government of the State shall be construed as a reference to the Raj Pramukh, or, as the case may be, to the Government of Rajasthan.”

    5. Reliance was placed on the following provisions of sec. 6 of the said Act:—

    “6. Where any Act or Regulation made before or 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—

    (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred, under any enactment so repealed; or

    (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.”

    6. It was urged that the right of the State to prosecute the accused and the liability of the accused arose under the Jaipur Act and that the present prosecution was a legal proceeding in respect of such right and liability and therefore the prosecution was saved under clause (c) as well as (e) of sec. 6 of the Jaipur General Clauses Act. It was further argued that sec. 6 applies not only when an enactment is simply repealed but also when it is repealed and another substituted in its place. Reliance for this was placed upon a ruling of Nagpur High Court reported in Liladhar Daulatram v. The State (A.I.R 1951 Nag. 353). It was further argued that the repeal of the Jaipur Act could put an end to the present prosecution only if a different intention appeared from the Rajasthan Ordinance which, it was submitted, did not appear.

    7. We have considered the arguments of both the learned counsel. It is not necessary for us to pronounce any opinion in this case whether sec. 6 of the General Clauses Act applies only to those cases where an enactment is simply repealed or to those also where another is substituted after the repeal in its place. It therefore becomes unnecessary to consider the views of the Allahabad and Nagpur High Courts in relation to this point. We find that at the time when the Rajasthan Ordinance was promulgated there was no single General Clauses Act for the whole of Rajasthan. This has been admitted by the learned counsel for both the sides. It is not the case of either party that the Central General Clauses Act had been applied to Rajasthan at that time. The only point for consideration is whether the Jaipur General Clauses Act can save the present prosecution. It was argued by the learned counsel for the accused that Jaipur General Clauses Act could not apply to the whole of Rajasthan and that if it were to be held that it applied only to those parts which formed the territories of the erstwhile Jaipur State a very analomous position would arise. There may be many States now forming part of Rajasthan which might have no General Clauses Act at all. There might be others in which sec. 6 might not have been enacted in the form in which it was enacted in the Jaipur General Clauses Act. Thus if the arguments of the learned Deputy Government Advocate were valid, the result would be that after the promulgation of the Rajasthan Ordinance the prosecutions launched under the Acts repealed thereby might remain alive in the territories of the erstwhile Jaipur State while in some other territories they may not remain alive. It would be putting a very absurd interpretation on the provisions of the Rajasthan Ordinance which was to apply to the whole of Rajasthan. The learned Deputy Government Advocate said in reply that there was no absurdity in such a situation, because it was the Jaipur Act to which the Jaipur General Clauses Act was being applied and not to Rajasthan Ordinance.

    8. On a careful consideration, we are driven to the conclusion that it could not be the intention of the Rajasthan Ordinance that the prosecutions under the different Essential Supplies (Temporary Powers) Acts or Ordinances which were repealed by sec. 20 of the Rajasthan Ordinance should be treated differently in different areas. By the Rajasthan Ordinance a unified Act was given to the whole of Rajasthan and we do not think that it was intended that subjects of different parts of Rajasthan should be treated differently in the matter of prosecutions arising under the repealed laws. Sec. 20(2) clearly makes a saving in favour of the orders made under the repealed Act, Ordinances and laws in force immediately before the commencement of the Ordinance and also in favour of appointments made, licences or permits granted, directions issued, things done and action taken under any such order and in force immediately before the commencement of the Rajasthan Ordinance. If it were the intention of the law making authority that prosecutions launched under the different Acts repealed by the Rajasthan Ordinance were to survive after its enactment there was no difficulty in saying that things done or action taken under any of the repealed laws and in force immediately before the commencement of the Ordinance would also continue in force. In the face of the facts that there was no unified General Clauses Act for the whole of Rajasthan at the time when the Rajasthan Ordinance came into being and that the Central General Clauses Act was not adopted in Rajasthan and that the legislature clearly made a saving in favour of the things it wanted to save, our only inference is that the legislature did not intend that prosecutions under the different repealed laws would continue in spite of the repeal of the laws themselves. We are strengthened in this view by a later amendment of the Rajasthan Ordinance which was brought to our attention by the learned Deputy Government Advocate. This is sec. 20A of the Ordinance which was inserted by sec. 2 of the Amendment Ordinance No. XLIX of 1949 and runs as follows:—

    “2. Insertion of sec. 20-A—After sec. 20 of the Rajasthan Essential Supplies (Temporary Powers) Ordinance, 1949 (No. XIII of 1949), the following section shall be and deemed always to have been inserted, namely:—

    20A. Saving of certain orders made before promulgation of Ordinance. Notwithstanding anything contained in sub-sec. (3) of sec. 1 any order made or notification issued, thing done or action taken under any of the laws repealed by sec. 20 after the commencement of this Ordinance but before its publication in the Rajasthan Gazette shall continue in force and be deemed respectively to be made, issued, done or taken under this Ordinance.”

    9. According to this provision any order made or notification issued, thing done or action taken under any of the laws repealed by sec. 20 after the commencement of the Rajasthan Ordinance but before its publication in the Rajasthan Gazette shall continue in force and be deemed respectively to be made, done, or taken under the Ordinance. The necessity for this amendment Ordinance arose from the fact that whereas the Rajasthan Ordinance was deemed to have come into force on the 9th July 1949 its publication in the Rajasthan Gazette was made on the 10th August 1949. Thus it was thought that the actions taken under the Rajasthan Ordinance before the 10th August 1949, the date of its publication in the Gazette, would be invalid and in order to validate them the amendment Ordinance had to be passed and by sec. 20-A which was added by sec. 2, it was provided that things done or action taken etc., under any of the laws repealed by sec. 20 of the Ordinance shall continue in force and would be deemed to be made, issued, done or taken under the Ordinance. Thus it is clear that if the legislature intended that prosecutions launched e.g, under the Jaipur Act repealed by the Rajasthan Ordinance, would continue in force notwithstanding the repeal by the Ordinance, a clear saving would have been made in favour of such prosecutions as well. We are of opinion that the legislature, while enacting the Rajasthan Ordinance and repealing the Jaipur Act thereby, did not intend that prosecutions under the Jaipur Act should survive after the doming into force of the Rajasthan Ordinance. In this view of the matter the present prosecution would not be saved even if sec. 6 of the Jaipur General Clauses Act applies as a different intention appears from the provisions of sec. 20 of the Ordinance. On this ground alone, the application for revision should succeed and there is no necessity to go into the question whether a prima facie case had been made out against the accused.

    10. The application is allowed and the proceedings for the prosecution of Lalchand accused pending in the lower court are quashed. The applicant is discharged.

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    Comments

    Lalchand v. The State
    (Apr 9, 1952)