Orissa High Court
Sri Jagannath Aurvedic Pharmacy vs House Rent Controller, Cuttack And Anr. on 4 August, 1989
Equivalent citations: AIR1990ORI168, AIR 1990 ORISSA 168
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT Pasayat, J.
1. Petitioner, a tenant under the Orissa House Rent Control Act, 1967 (hereinafter referred to as 'the Act'), has moved this Court in an application under Arts. 226 and 227 of the Constitution with a prayer for issue of a writ of certiorari or any other appropriate writ quashing the order dt. 23-9-1988 passed in M.R.C. Case No. 50 of 1987 pending in the Court of the House Rent Controller, Cuttack (hereinafter referred to as 'the Controller') holding that the proceeding before him was maintainable and a further prayer for declaring that the Controller has no jurisdiction to proceed with the aforesaid case and that all actions taken by him after 4-5-1988 are without jurisdiction and null and void.
2. The challenge as indicated in the writ application and the submissions made before us is based on a very short and interesting argument that after 4-5-1988 the Act ceased to have effect and therefore, any action taken in a proceeding which was instituted under the said Act, prior to that date does not survive for adjudication. It is the case of the petitioner that undisputedly as provided in Section 1(4), the Act ceased to have effect from the said date. The Act being a temporary Act it has expired by efflux of time and since it has not been repealed by any other law, the provisions of Section 5 of the Orissa General Clauses Act, 1937 (hereinafter referred to as 'the Orissa Act') has no application as the same relates to the effect of repeal. Since there is no repeal in the instant case, the Act has ceased to be operative by efflux of time. It was the intention of the legislature that the Act was a temporary statute intended to be effective for a certain time and after the efflux thereof, the Act was inoperative. In the aforesaid premises it was contended that the continuance of the proceeding after 4-5-1988 is not sanctioned by law and any action taken has no force in the eye of law. The legislative intent is very clear and there is no saving clause in true sense of the term. Even otherwise, the so-called saving clause was in conflict with the body of the statute which intended it to be time bound. The incorporation of the so-called saving clause is inconsistent with the object of the legislation. On the other hand, it is contended by the learned counsel for the opportunity No. 2 that the argument has no substance as Section 1(4) itself provides answer to such submission, and there was conflict/inconsistency.
3. We have heard the learned counsel for the parties at great length and are of the view that the basis of challenge by the petitioner though attractive carries no substance. It would be appropriate to quote Section 1(4) of the Act here.
"(1) Short title, extent commencement and duration:
(1) to (3) xx xx xx xx (4) It shall cease to have effect on the 4th day of May, 1988 except as respects things done or omitted to be done before the expiration thereof and Section 5 of the Orissa General Clauses Act, 1937 (Orissa Act 1 of 1937) shall apply upon the expiry of this Act as if it had then been repealed by an Orissa Act.
(Underlining by us for emphasis) We have underlined the portion as above to indicate the legislative intent. The legislature was aware of the fact that the Act' was a temporary one and it was not being repealed and/or being substituted by any other Act. Therefore, a deeming clause is inserted which clearly provides that in respect of things done or omitted to be done before the date of expiry, the provisions of Section 5 of the Orissa Act would be applicable as if the Act was being repealed by any other Act (referred to as the Orissa Act in the provision). Therefore, notwithstanding the fact that the Act was a temporary statute, the Orissa Act had application and particularly Section 5 of the Orissa Act governed the field. Section 5 of the Orissa Act reads as follows:
"5. Effect of repeal -- Where any Orissa 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, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed."
The effect of the expression "except with respect to things done, or omitted to be done" has been considered by several Courts. The Delhi High Court and the Madhya Pradesh High Court have taken the view that the words were used to indicate protection to proceeding or action already taken or omitted to be taken. (See 1969 Cri LJ 1582 (Madras); M. R. Pratap v. Director of Enforcement, New Delhi, AIR 1959 Madh Pra93 : State of Madhya Pradesh v. Hiralal Sutwale).
4. The effect of the expiry of a temporary statute has been the subject of adjudication by the Supreme Court in a large number of cases. The guiding principle as laid down by the Supreme Court is to the effect that in the absence of any special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. The legislature can and often enough does avoid such an anomalous consequence by enacting in the temporary statute a saving provision is in some respects similar to the effect of the provisions of Section 6 of the General Clauses Act. See AIR 1959 SC 609 : Gopi Chand v. Delhi Administration and AIR 1962 SC 945; State of Orissa v. Bhupandra Kumar Bose. The provisions of Section 6 of the General Clauses Act are identical in terms of Section 5 of the Orissa Act.
5. As stated above the legislature is empowered to provide for contingencies arising out of expiry of a temporary statute and to make provision for valid continuance of the proceeding initiated after such expiry. In the case of Andhra Pradesh State Electricity Board v. Union of India, reported in AIR 1988 SC 1020, a contention was raised that the Emergency Risks (Factories) Insurance Act, 1962, was itself a piece of temporary legislation which lapsed on 10-1-1963 and the proceedings initiated thereunder could not have been continued without any authority of law after expiry of the said Act. A contention similar to one raised before us was also raised that where there is no repeal and a temporary statute ceases to be operative by efflux of time the proceedings initiated thereunder do not have any validity after the date of expiration. The Supreme Court held that whatever be principles of construction of temporary statutes and the effect on the rights and obligations under them on the expiry of the statute itself, where specific provisions are contained preserving the rights and obligations, they are not invalidated on account of the expiry of the statute. The principles behind preservation of such rights and obligations are lucidly contained in Section 6 of the General Clauses Act and for that matter in Section 5 of the Act and the basic feature is that ail the provisions of the Act continued to be effective and in force for the purposes of enforcing the liability, if any, incurred when the statute was in force and if investigation, legal proceeding, remedy is instituted it shall be continued or enforced as if the statute had not expired. Similar view was expressed by the Supreme Court in the case of Amadalavalasa Co-operative Agricultural and Industrial Society Ltd. v. Union of India, AIR 1976 SC 958.
Effect of expiry of the Act came up for consideration of this Court in Civil Revn.
No. 443 of 1988 (Sudarsan Sahu v. Smt. Saradha Kumari Sahu), disposed of on 19-9-1988 : (reported in (1988) 2 Orissa LR 636). It was held by our learned brother S. C. Mohapatra, J, that the proceedings initiated prior to 4-5-1988 do not get invalidated after the same date, even though the Act ceased to have effect on 4-3-1988. The view expressed in that case has our approval.
6. The effect of the saving clause has been the subject-matter of determination by various Courts. The consistent view is that though an Act has expired, the effect of things done or omitted to be done can be saved. The saving clause does not stand on the same footing as the Act itself. An Act may be dead as regards the future acts, but can be kept alive as regards the past acts. There is no reason or logic behind the proposition that incorporation of a saving clause in an emergency legislation is inconsistent with the object of the legislation. [See AIR 1953 All 703 : Seth Jugmendar Das v. State]. In the case of M. P. J. Delaflore v. Amir Mohammed, AIR 1970 Madras 308, it was held that the saving provision means that the pending legal proceedings cannot be put to an end to by reason of anything enacted in the later law if the party affected has a right to continue the legal proceeding under the repealed Act. What is saved by the saving provision is only the right to continue the legal proceeding notwithstanding anything in the later enactment which may affect such continuance. We are in agreement with the view expressed by the Allahabad and Madras High Courts. The reason for an insertion of the saving clause is not far to seek. In the words of Maxwell:
"No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues and if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort; it takes away no vested right for the defaulter can have no vested right in a state of the law which left the injured party without or with only a defective remedy."
A Full Bench of the Punjab High Court also considered the effects of a saving clause. It was held in the case of Sham Sundar v. Ram Das, AIR 1951 Punjab 52, that saving clause saves remedies in respect of transactions completed prior to the repeal. It operates in respect of such rights as laid down in the repealed statutes with the result that the litigant can institute or continue proceedings in the same way for enforcement of his rights as if there was no repeal of the statutes. The said Court was considering a provision similar to Sub-section 1(4) of the Act, and it was pointed out that Section 15 of the Delhi and Ajmer-Merwara Rent Control Act, 1947 and Section 6 of the General Clauses Act were in pari materia and were similar. Elaborating the scope of saving clause, the Full Bench of the Court held that the saving clause is used to exempt something from immediate interference or destruction. However, where the enactment is clear, a saving clause can have no repurcussion on the interpretation of the main enactment so as to exclude from its scope what clearly falls within its terms. If the saving clause is in irreconcilable conflict with the body of the statute of which it is a part, it is ineffective or void.
A Full Bench of the said Court also considered a similar question and held that the proceedings which were commenced by virtue of a statute which had been repealed, shall not be dismissed by the Court for want of jurisdiction after the repeal of that statute, as under the common law, but the said proceedings shall be continued to be dealt with by the Court as before, and shall be carried to final judgment and execution by the said Court in exactly the same way as if the statute had not been repealed. (See AIR 1958 Punjab 230 (FB) National Planners Ltd. v. Contributories.) The view has our approval. We feel tempted to quote the views of Crawford and Maxwell. According to Crawford :
"The saving clause is used to exempt something from immediate interference or destruction, It is generally used in repealing statutes in order to prevent them from affecting rights accrued, penalties incurred or duties imposed or proceedings started under the statute sought to be repealed. Its position or verbal conflict is unimportant. But if it is in irreconcilable conflict with the body of the statute of which it is a part, it is ineffective or void."
Maxwell says;
"A difference, indeed, has been said to exist in this respect between the effect of a saving clause or exception and a proviso in a statute. When the proviso appended to the enacting part is repugnant to it, it unquestionably repeals the enacting part, but it is said by Lord Coke, that when the enactment and the saving clause (which reserves something which would be otherwise included in the words of the enacting part), are repugnant...... the saving clause is to be rejected because otherwise the enactment would have been made in vain."
7. A combined reading of Section 1(4) of the Act and Section 5 of the Orissa Act makes it clear that the continuity of the proceeding was not affected by the expiry of the Act on 4-5-1988 and was valid. If a proceeding is initiated before the expiry of the Act, the same can be validly continued in view of the saving provision provided in Section 1(4) itself. Therefore, to sum up our conclusions:
(i) Any proceeding initiated under the Act prior to 4-5-1988 is not invalidated and is open to adjudication after 4-9-1988, and
(ii) Section 5 of the Orissa Act has application and in view of the said section, the proceeding can be validly continued.
8. In the result, the writ application being devoid of merit is dismissed, but in the circumstances there shall be no order as to costs.