Case: Som Lal Vs. Vijay Laxmi &amp; Others

existence of two provisions may by itself, and without more, lead to an inference of mutual irreconcilability if the later set of provisions is by itself a complete code with respect to the same matter. In such a case the actual detailed comparison of the two sets of provisions may not be necessary. It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneously. 9. In Hyderabad Chemical and Pharmaceutical Works Ltd. etc. v. State of Andhra Pradesh & Ors. ([1964] 7 S.C.R. 376), it was held as follows: By virtue of Entry 84 List I of the VII Schedule to the Constitution no charge could be levied on the manufacture of medicinal preparations except by the Union of India and since the 1955 Act is a law made otherwise by Parliament within the meaning of Art. 277 the duties and other charges which used to be levied by the State in connection with medicinal preparations could no longer be levied by it. Further the effect of s.21 of the Act is that so far as the Hyderabad Act applied to the use of alcohol in the manufacture of medicinal and toilet preparations, the Hyderabad Act must be deemed to have been repealed. Therefore, it clearly transpires that by virtue of subsequent amendment of the law made by the Parliament, the Hyderabad Act automatically stood repealed. Similar is the position here also that the subsequent Act 19 of 1994 which has come at later point of time, repeals the provisions of the Act 9 of 1994 so far as it is inconsistent with the Act 19 of 1994. 10. As against this, learned senior counsel for the respondents, invited our attention to a decision of this Court in Municipal Corporation of Delhi v. Shiv Shankar [ 1971 (1) SCC 442 ] wherein it has been held as follows: As the Legislature must be presumed in deference of the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory laws in the absence of express or at least clear and unambiguous indication to that effect. But in the present case, the intention of the Legislature is more than apparent that the existing legislation as subsequently held under Section 142 of the Act 19 of 1994 that this Act will have over-riding effect on all other laws in the State and likewise, under Section 143 there is repeal. Therefore, there is no question of ambiguity in the matter of intention of the legislature as it is very clear. 11. In Kishorebhai Khamanchand Goyal v. State of Gujarat & Anr.[ (2003) 12 SCC 274 ] their Lordships held as follows: There is a presumption against repeal by implication. The reason is that the legislature while enacting a law is presumed to have complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision the intention is clear not to repeal the existing legislation. Besides when the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle of expressio unius (personae vel rei) est exclusion alterius.( The express intention of one person or thing is the exclusion of another.) The continuance of existing legislation, in the absence of an express provision of repeal being presumed, the burden to show that there has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. The necessary questions to be asked are: (1) Whether there is direct conflict between the two provisions. (2) Whether the legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law. (3) Whether the two laws occupy the same field. As already mentioned there is no necessary implication. In this case, the intention of the legislature is more than apparent. 12. Learned counsel for the appellant has tried to submit that in fact the incumbent was virtually not holding the office of profit as he ceased to be an employee for the last 8-9 years. We do not want to go into this controversy as we have already decided the question of law involved in the present case that a salaried employee of any local authority, statutory corporation or Board or a Co-operative Society can not be held to have held the office of profit under Section 11 of the Act 19 of 1994. Therefore, we need not to go into the factual controversy. Mr. P.S.Patwalia, learned senior counsel for the respondents tried to persuade us that we should look to the scope of both the Acts. The disqualifications are only mentioned in Section 208 of the Act 9 of 1994 and the intention of the legislature is very clear and Section 11 of the Act of 1994 being in later point of time stating therein what are the disqualifications, therefore, the disqualifications mentioned in Section 11 of the Act 19 of 1994 will prevail and not the disqualifications mentioned in Section 208 of Act 9 of 1994. The disqualifications mentioned in Section 208 which are consistent with Section 11 of Act 19 of 1994 can only survive and not other disqualifications. 13. As a result of our above discussions, we are opinion that the view taken by the learned Single Judge on the basis of the judgment of the Division Bench of the High Court of Punjab and Haryana cannot be sustained. Consequently, we

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Both the Acts i.e. Act 9 of 1994 and Act 19 of 1994 came into being in view of seventy-third amendment and seventy-fourth amendment of the Constitution of India to provide more teeth to local self government. By this amendment under Part IX of the Constitution, Article 243 was amended. Likewise by inserting Part IXA, Municipalities were also strengthened. Self-governance were given to the local bodies. As a result of these seventy-third and seventy-fourth amendments, The Punjab Panchayati Raj Act, 1994(Punjab Act 9 of 1994) and the Punjab State Election Commission Act, 1994 (Punjab Act No. 19 of 1994) were enacted. The preamble of The Punjab Panchayati Raj Act,1994 ( Punjab Act 9 of 1994) reads as under :Likewise the Punjab State Election Commission Act, 1994 was enacted and the preamble reads as under:An Act to provide for the constitution of the State Election Commission and for vesting the superintendence, direction and control of the preparation of election rolls for, and the conduct of all elections to the Panchayats and Municipalities in the State of Punjab, in the State Election Commission, and to provide for all matters relating to, or ancillary or in connection with the elections to the Panchayats and Municipalities, in terms of the provisions of Parts IX and IX-A of the Constitution of IndiaThis is also a fact that the Act 9 of 1994 came into effect on 21.4.1994 and the Act 19 of 1994 came into effect on 19.9.1994. Act 19 of 1994 is definitely later in point of time and here under Section 11 (f) & (g) the disqualifications have been prescribed. Though similar disqualifications existed under Section 208 of the Act of 9 of 1994 but subsequently the legislature in its wisdom has reduced the disqualifications and confined only to the area that one should not hold office of profit under a Panchayat or a Municipality or under the Government of India or any State Government. Thus, the legislature in its wisdom has not considered it proper to continue with the disqualification of being an employee of any local authority, Statutory Corporation or Board or a Co-operative Society. Had that been the intention of the legislature then perhaps they would have specifically provided the disqualifications under Section 11 of the Act 19 of 1994. Section 11 clearly says that a person shall be disqualified for being chosen as, and for being a member of a Panchayat or a Municipality if he holds an office of profit under a Panchayat or a Municipality; or if he holds an office of profit under the Government of India or any State Government; whereas Section 208 (g) says a person shall be disqualified for being chosen as, and for being a member of a Panchayat or a Municipality if he is a whole-time salaried employee of any local authority, Statutory Corporation or Board or a Co-operative Society registered under the Punjab Co-operative Societies Act, 1961, or of the State Government or the Central Government. But in the subsequent Act 19 of 1994 the area of disqualification has been narrowed down. Since the Act 19 of 1994 is subsequent in point of time and it also has the provisions of Sections 142 and 143 which clearly contemplate that it shall have the complete over-riding effect, reading of Section 142 makes it clear that the legislature were aware of the earlier disqualification and subsequently they have inserted the disqualifications under sub-sections (f) & (g) of Section 11 so far as the office of profit is concerned and provided over-riding effect and have clearly laid down that notwithstanding anything inconsistent therewith contained in any other law for the time being in force relating to the conduct of elections to the Panchayats or Municipalities or any incidental matter thereto shall stand repealed. Therefore, the mandate of the legislature appears on the face of it very clear and they have saved the actions under Section 143 to the extent that any other law which is inconsistent with this law shall stand repealed and only that action taken under the corresponding provisions of any State law which were in force at that time, those actions shall only be saved and not otherwise. Therefore, the saving clause is very limited if any action has been taken under the earlier legislation before coming into force of Act 19 of 1994, those actions would be saved after the coming into force of Act 19 of 1994. The mandate of legislature is categorically clear in view of Sections 142 and 143 and it admits of no two opinion in the matter. The courts should be very slow to interfere with the mandates of the legislature unless there are compelling reasons for doing so. In the present case, the clear mandate of the legislature was that anything which is inconsistent with the Act 19 of 1994 shall be deemed to have been repealed leaves no room for us to take a contrary view of the matter. With respect we cannot agree with the view taken by the Division Bench of the High Court that both the provisions can be read harmoniously i.e. Section 11 of Act 19 of 1994 read with Section 208 of Act 9 of 1994 but we regret it cannot be. Harmonious reading of both the provisions will be limited to the extent of Section 11 of the Act 19 of 1994. When Section 11 of Act 19 of 1994 clearly contemplates that these are the only disqualifications mentioned in sub-sections (f) & (g), which are already present in Section 208 of Act 9 of 1994, beyond that it cannot be read. If Section 208 of Act 9 of 1994 lays down further disqualifications then those disqualifications will run counter to the disqualifications as mentioned in Section 11 of Act 19 of 1994. If Section 208 of Act 9 of 1994 is inconsistent to the extent of Section 11 of Act 19 of 1994, then to this extent the provisions of Section 208 of Act 9 of 1994 cannot be read. Since there are only four disqualifications mentioned in Section 11 of Act 19 of 1994, the rest of the disqualifications cannot be imported by implication of the Act 9 of 1994. Mr. Patwalia, learned senior counsel for the respondents tried to persuade us that the theory of not expressly repealed by implication should be read into but we regret, it cannot be. The intention of the legislature is clear and there is no reason why the intention of the legislature be not given effect to. In fact the Division Bench of the Punjab & Haryana High Court held that Section 11 should be read with Section 208; that means Section 208 can survive to the extent that it is consistent with Section 11 of Act 19 of 1994. Rest part of section 208 i.e. a person who is holding office of profit under local authority, Statutory Corporation, Board or Co-operative Society will not be disqualified. Therefore, if a person holds an office of profit under the local authority, Statutory Corporation or Board or a Co-operative Society cannot by implication be said to be a person disqualified under the Act. These provisions can be read harmoniously to the extent that if a person is holding office under the Panchayat or a Municipality, or under the Government of India or any State Government, to that extent it will be deemed to be office of profit. If he holds an office of profit under any other organization, like local authority, Statutory Corporation or Board or a Co-operative Society, that will not be office of profit so as to disqualify him to be chosen as and for being a member of a Panchayat7. Mr.Patwalia, learned senior counsel for the respondents invited our attention to Chapter VII at pg.637 of the Principles of Statutory Interpretation (11th Edn.2008) by Justice G.P.Singh, which reads as under :he use of any particular form of words is not necessary to bring about an express repeal. All that is necessary is that the words used show an intention to abrogate the Act or provision in question. The usual form is to use the words is or are hereby repealed and to mention the Acts sought to be repealed in the repealing section or to catalogue them in a Schedule. The use of words shall cease to have effect, is also not uncommon. When the object is to repeal only a portion of an Act words shall be omitted are normally used. The legislative practice in India shows that omission of a provision is treated as amendment which signifies deletion of that provision and is not different from repeal. It has been held that there is no real distinction between repeal and an amendment. It has also been held that where a provision of an Act is omitted by an Act and the said Act simultaneously re-enacts a new provision which substantially covers the field occupied by the repealed provision with certain modification, in that event such re-enactment is regarded having force continuously and the modification or changes are treated as amendment coming into force with effect from the date of enforcement of re-enacted provisionSimilarly, our attention was invited to a paragraph at page 639. There it has been observed as follows:he Legislature sometimes does not enumerate the Acts sought to be repealed, and only says thatall provisions inconsistent with this Act are hereby repealed. With respect to such a repealing provision, it has been said that it merely substitutes for the uncertainty of the general law an express provision of equal uncertainty; and in determining whether a particular earlier provision is repealed by such a repealing provision on the ground of inconsistency with it, the same provisions which are application in determining a question of implied repeal have to be appliedAt page 640, under the heading Implied repeal it has been observed as follows:re is a presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius est exclusion alterius. Further, the presumption will be comparatively strong in case of virtually contemporaneous Acts. The continuance of existing legislation, in the absence of an express provision of repeal, being presumed, the burden to show that there has been a repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Actthat the two cannot stand togetherAs already mentioned above it is very clear that Section 142 clearly contemplates that the earlier laws which are inconsistent with the Act shall stand repealed and it is saved to the limited extent as provided under Section 143. Therefore, if both the provisions i.e. Section 208 of Act 9 of 1994 and Section 11 of Act 19 of 1994 can be read harmoniously to show that the disqualifications which are mentioned for holding office of profit are that an incumbent should not be an employee or a salaried person under the Panchayat, or under Municipality, or under the State Government; or the Central Government. To this extent there is identity between the two provisions and no other disqualifications have been saved and it has been subsequently repealed and it is more than apparent from Sections 142 and 143 of the Act 19 of 19948. In Ratan Lal Adukia v. Union of India [(1989) 3 SCC 537] it has been held as follows:he doctrine of implied repeal is based on the postulate that the legislature which is presumed to know the existing state of the law did not intend to create any confusion by retaining conflicting provisions. Courts in applying this doctrine are supposed merely to give effect to the legislative intent by examining the object and scope of the two enactments. But in a conceivable case, the very existence of two provisions may by itself, and without more, lead to an inference of mutual irreconcilability if the later set of provisions is by itself a complete code with respect to the same matter. In such a case the actual detailed comparison of the two sets of provisions may not be necessary. It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneously9. In Hyderabad Chemical and Pharmaceutical Works Ltd. etc. v. State of Andhra Pradesh & Ors. ([1964] 7 S.C.R. 376), it was held as follows:By virtue of Entry 84 List I of the VII Schedule to the Constitution no charge could be levied on the manufacture of medicinal preparations except by the Union of India and since the 1955 Act is a law made otherwise by Parliament within the meaning of Art. 277 the duties and other charges which used to be levied by the State in connection with medicinal preparations could no longer be levied by it. Further the effect of s.21 of the Act is that so far as the Hyderabad Act applied to the use of alcohol in the manufacture of medicinal and toilet preparations, the Hyderabad Act must be deemed to have been repealedTherefore, it clearly transpires that by virtue of subsequent amendment of the law made by the Parliament, the Hyderabad Act automatically stood repealed. Similar is the position here also that the subsequent Act 19 of 1994 which has come at later point of time, repeals the provisions of the Act 9 of 1994 so far as it is inconsistent with the Act 19 of 199410. As against this, learned senior counsel for the respondents, invited our attention to a decision of this Court in Municipal Corporation of Delhi v. Shiv Shankar [ 1971 (1) SCC 442 ] wherein it has been held as follows:As the Legislature must be presumed in deference of the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory laws in the absence of express or at least clear and unambiguous indication to that effectBut in the present case, the intention of the Legislature is more than apparent that the existing legislation as subsequently held under Section 142 of the Act 19 of 1994 that this Act will have over-riding effect on all other laws in the State and likewise, under Section 143 there is repeal. Therefore, there is no question of ambiguity in the matter of intention of the legislature as it is very clear11. In Kishorebhai Khamanchand Goyal v. State of Gujarat & Anr.[ (2003) 12 SCC 274 ] their Lordships held as follows:re is a presumption against repeal by implication. The reason is that the legislature while enacting a law is presumed to have complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision the intention is clear not to repeal the existing legislation. Besides when the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle of expressio unius (personae vel rei) est exclusion alterius.( The express intention of one person or thing is the exclusion of another.) The continuance of existing legislation, in the absence of an express provision of repeal being presumed, the burden to show that there has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Actthat the two cannot stand. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. The necessary questions to be asked are:(1) Whether there is direct conflict between the two provisions(2) Whether the legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law(3) Whether the two laws occupy the same fieldAs already mentioned there is no necessary implication. In this case, the intention of the legislature is more than apparent12. Learned counsel for the appellant has tried to submit that in fact the incumbent was virtually not holding the office of profit as he ceased to be an employee for the last 8-9 years. We do not want to go into this controversy as we have already decided the question of law involved in the present case that a salaried employee of any local authority, statutory corporation or Board or a Co-operative Society can not be held to have held the office of profit under Section 11 of the Act 19 of 1994. Therefore, we need not to go into the factual controversy. Mr. P.S.Patwalia, learned senior counsel for the respondents tried to persuade us that we should look to the scope of both the Acts. The disqualifications are only mentioned in Section 208 of the Act 9 of 1994 and the intention of the legislature is very clear and Section 11 of the Act of 1994 being in later point of time stating therein what are the disqualifications, therefore, the disqualifications mentioned in Section 11 of the Act 19 of 1994 will prevail and not the disqualifications mentioned in Section 208 of Act 9 of 1994. The disqualifications mentioned in Section 208 which are consistent with Section 11 of Act 19 of 1994 can only survive and not other disqualifications13. As a result of our above discussions, we are opinion that the view taken by the learned Single Judge on the basis of the judgment of the Division Bench of the High Court of Punjab and Haryana cannot be sustained.