Case: State Of U.P.  Vs. Hirendra Pal Singh Etc

Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly, i.e., protanto repeal (vide: M/s. Dagi Ram Pindi Lall & Anr. v. Trilok Chand Jain & Ors., AIR 1992 SC 990 ; Gajraj Singh etc. v. The State Transport Appellate Tribunal & Ors. etc., AIR 1997 SC 412 ; Property Owners Association & Ors. etc. etc. v. State of Maharashtra & Ors., AIR 2001 SC 1668 ; and Mohan Raj v. Dimbeswari Saikia & Anr., AIR 2007 SC 232 ). 20. In M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras, AIR 1992 SC 1439 , this Court explained the distinction between quashing of an order and staying the operation of the order observing as under: "While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending." 21. Thus, there is a clear distinction between repeal and suspension of the statutory provisions and the material difference between both is that repeal removes the law entirely; when suspended, it still exists and has operation in other respects except wherein it has been suspended. Thus, a repeal puts an end to the law. A suspension holds it in abeyance. 22. This Court in Bhagat Ram Sharma v. Union of India & Ors., AIR 1988 SC 740 , explained the distinction between repeal and amendment observing that amendment includes abrogation or deletion of a provision in an existing statutes. If the amendment of an existing law is small, the Act prefaces to amend; if it is extensive, it repeals and re-enacts it. 23. In fact, the amended provisions of the L.R. Manual are under challenge before the High Court and the provisions repealed by the Amendment dated 13.8.2008 are not in existence and it will be assumed that the same had never been in existence. The Court while examining the validity of the amended provisions may reach a conclusion that the said provisions are ultra vires and unconstitutional and strike down the same but that may not automatically revive the provisions which stood repealed by the said amendment. Thus, the High Court erred in issuing directions to the State authorities to proceed, as an interim measure, under a non-existing law. Such an order seems to have been passed only to fill up the vacuum. Generally quashing of a subsequent notification would not affect in revival of an earlier notification in whose place the subsequent notification had been issued, however, the legal effect of an earlier law when the later law enacted in its place is declared invalid, does not depend merely upon the use of the words like substitution; or suppression. It depends upon the totality of circumstances and the context in which they are used. (Vide B.N. Tewari v. Union of India & Ors., AIR 1965 SC 1430 ; Indian Express Newspapers (Bombay) Private Ltd. & Ors. v. Union of India & Ors., AIR 1986 SC 515 ; West U.P. Sugar Mills Association & Ors. v. State of U.P. & Ors., AIR 2002 SC 948 ; Zile Singh v. State of Haryana & Ors., (2004) 8 SCC 1 ; and State of Kerala & Anr. v. Peoples Union for Civil Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46 ). (See also Ameer-un-Nissa Begum & Ors. v. Mahboob Begum & Ors., AIR 1955 SC 352 ; and India Tobacco Co. Ltd. v. The Commercial Tax Officer, Bhavanipore & Ors., AIR 1975 SC 155 ). 24. In Firm A.T.B. Mehtab Majid and Co. v. State of Madras & Anr., AIR 1963 SC 928 , this Court while dealing with a similar issue held : "Once the old rule has been substituted by the new rule, it ceases to exist and it does not automatically get revived when the new rule is held to be invalid." Therefore, it is evident that under certain circumstances, an Act which stood repealed, may revive in case the substituted Act is declared ultra vires/unconstitutional by the court on the ground of legislative competence etc., however, the same shall not be the position in case of subordinate legislation. In the instant case, the L.R. Manual is consisted of executive instructions, which can be replaced any time by another set of executive instructions. (Vide Johri Mal (supra). Therefore, question of revival of the repealed clauses of L.R. Manual in case the substituted clauses are struck down by the court, would not arise. In view of this, the interim order would amount to substituting the legal policy by the judicial order, and thus not sustainable.

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

Explanation:
1[ds]18. The High Court vide impugned interim orders stayed the operation of the amended provisions of the L.R. Manual and directed the State authorities to consider the applications for renewal etc. under the unamended provisions, i.e., which stood repealed by the amendment dated 13.8.2008. The question does arise as to whether such a course is permissible to the High Court for the reason that it has been canvassed by Shri Patwalia that the clauses of the L.R. Manual which stood repealed do not survive any more and no direction could have been given by the High Court to act upon the19. It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided under section 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly, i.e., protanto repeal (vide: M/s. Dagi Ram Pindi Lall & Anr. v. Trilok Chand Jain & Ors., AIR 1992 SC 990 ; Gajraj Singh etc. v. The State Transport Appellate Tribunal & Ors. etc., AIR 1997 SC 412 ; Property Owners Association & Ors. etc. etc. v. State of Maharashtra & Ors., AIR 2001 SC 1668 ; and Mohan Raj v. Dimbeswari Saikia & Anr., AIR 2007 SC 232 )21. Thus, there is a clear distinction between repeal and suspension of the statutory provisions and the material difference between both is that repeal removes the law entirely; when suspended, it still exists and has operation in other respects except wherein it has been suspended. Thus, a repeal puts an end to the law. A suspension holds it in abeyance23. In fact, the amended provisions of the L.R. Manual are under challenge before the High Court and the provisions repealed by the Amendment dated 13.8.2008 are not in existence and it will be assumed that the same had never been in existence. The Court while examining the validity of the amended provisions may reach a conclusion that the said provisions are ultra vires and unconstitutional and strike down the same but that may not automatically revive the provisions which stood repealed by the said amendmentThus, the High Court erred in issuing directions to the State authorities to proceed, as an interim measure, under ag law. Such an order seems to have been passed only to fill up the vacuum. Generally quashing of a subsequent notification would not affect in revival of an earlier notification in whose place the subsequent notification had been issued, however, the legal effect of an earlier law when the later law enacted in its place is declared invalid, does not depend merely upon the use of the words like substitution; or suppression. It depends upon the totality of circumstances and the context in which they are usedTherefore, it is evident that under certain circumstances, an Act which stood repealed, may revive in case the substituted Act is declared ultra vires/unconstitutional by the court on the ground of legislative competence etc., however, the same shall not be the position in case of subordinate legislation. In the instant case, the L.R. Manual is consisted of executive instructions, which can be replaced any time by another set of executive instructions. (Vide Johri Mal (supra)Therefore, question of revival of the repealed clauses of L.R. Manual in case the substituted clauses are struck down by the court, would not arise. In view of this, the interim order would amount to substituting the legal policy by the judicial order, and thus not sustainable.