P L D 1963 Dacca 238 (PLP)

(d) . . . . . . . . . . . . . . . . . (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the repealing Act or Regulation had not been passed."

14. The preambular part of the said section 6 speaks of repeal and not of simultaneous repeal and re‑enactment. This is indicated by the word "repeals" italicised above. There fore, Mr. T. Ali, the learned Advocate for the respondents, argues that the said section 6 will apply only to a case where a previous enactment has been simply repealed and not to a case like the present one where there has been a substitution of one legal provision by another. Although such an argument found favour at one time, the same does no more hold the field. A substitution of one legal provision by another does, in effect, repeal and re enact an earlier law, with or without modifications. As regards the effect of simultaneous repeal and re‑enactment, the following quotation from Crawford's Statutory Construction, 1940 edition, pages 657‑58, seems appropriate: "The authorities are divided as to the effect of simultaneous repeals and re‑enactments. Some adhere to the view that the rights and liabilities accruing under the repealed Act are destroyed, since the statute from which they spring has actually terminated, even though for only a short period of time. Others, and they seem to be in the majority, refuse to accept this view of the situation and consequently maintain that all rights and liabilities which have accrued under the original statute are preserved and may be enforced, since the re‑enact ment neutralizes the repeal, thereby continuing the law in force without interruption. Locally, the former attitude is correct, for the old statute does cease to exist as an independent enactment, but all practical considerations favour the majority view."

15. The effect of simultaneous repeal and re‑enactment of legal provision was considered by the Supreme Court of India in State of Punjab v. Mohan Singh Pratap Singh (A I R 1955 S C 84). In that case, a question arose whether an offence committed under the East Punjab. Ordinance VII of 1943 was punishable under the East Punjab Act XII of 1948 which repealed and re‑enacted the Ordinance. Relying on the view of Sulaiman, C. J. in Danmal Porshotam das v. Baburam Chhote Lal (A I R 1936 All. 3), to the effect that section 6 (e) of the General Clauses Act would apply to those cases only where a previous law has been simply repealed and there is no fresh legislation to take its place, the East Punjab High, Court answered the said question in the negative. On appeal, the Supreme Court of India took a view different from that of Sulaiman, C. J. and held as follows:‑ "Where there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the occasion itself says, a different intention appears. 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 fresh legislation on the same subject we would undoubtedly have‑=to look to the provisions of the new Act, but only for the purpose of determining whether they indicate different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed be a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section."

16. The above view was later re‑affirmed by the Supreme Court of India in the case of Indira Sohandal v. Custodian of Evacuee Property, Delhi and others (A I R 1956 S C 77).

17. In this connection, it would be useful to state briefly the circumstances necessitating the enactment of section 6 of the General Clauses Act, 1897. The said section 6 corresponds to section 38 (2) of the British Interpretation Act, 1889. Prior to the enactment of the Interpretation Act of 1889, the effect of repeal of one statute by another without any express saving was, in the words of Tindal, C. J., "to obliterate it (i.e. repealed Act) as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law", vide, Craies on Statute Law, 5th edition, pages 322‑

23. Such being the effect of repeal under the law of England obtaining before 1889, a repeal without any saving clause used to destroy not only all rights, privileges, obligations, liabilities, penalties and causes of action accrued under the repealed Act but also all proceedings pending on the date of repeal, except actions wholly concluded and ripened into vested rights by judgments before the repeal, vide, Crawford on Statutory Construction, 1940 edition‑pages 599‑600 and Craies on Statute Law, 5th edition pages

323. With a view to preventing such consequences resulting from the repeal of a statute, a practice grew in England to insert a saving clause in the repealing statute so as to preserve the rights and liabilities etc., accrued under the repealed statute and the proceedings instituted under that statute before its repeal. In order to dispense with the necessity of inserting a saving clause in each repealing Act, section 38 (2) was inserted in the British Interpretation Act of 1889. The then Central Legislature of India followed suit and enacted the General Clauses Act in the year 1897, inserting therein section 6 corresponding to section 38 (2) of the said British Act.

18. From the foregoing, it is quite clear that one of the important purposes .of the said section 6 is to protect rights and liabilities already accrued or incurred under the repealed enact ment. 'That being so, section 6 does not admit of any strictly technical interpretation which may frustrate its very purpose. It is true, the preambular part of section 6 speaks of repeal alone and does not expressly render the section applicable also in the 1 case of simultaneous repeal and re‑enactment. But a new law re‑enacting the provisions of an earlier enactment, with or without modifications, nonetheless repeals that enactment, either expressly or by implication. Moreover, an enactment purporting to be an amendment has the same qualitative effect as a repeal. Therefore, a new law which repeals and re‑enacts an earlier enact ment necessarily attracts the operation of section

6. In view of the pattern of legislative drafting followed in this country a large number of legislations here are in the form of amendments which include substitution of an existing legal provision by another. Most amendments, in effect, repeal earlier legal pro visions and introduce new provisions in their place. Therefore, any view not favouring in the applicability of section 6 except in the case of repeal simplicities will render the purpose of that section frustrated in most cases of amending legislations, which, however, must not have been intended, by the Legislature. We are, therefore, of the view that section 6 of the General Clauses Act, 1897 comes into play even where a previous enact ment is repealed either expressly or by implication and re‑enacted simultaneously by a new law, with or without modifications. This is true also in the oa 6 of repeal and re‑enactment of any particular provision of a statute, for the word `enactment' as defined in section 3 (19) of the' said Act includes also an individual legal provision. In such view of the matter, the substituted Sche dule IV to the Act as introduced by the Workmen's Compensation (Amendment) Act, 1957 having, in effect, repealed and re-enacted the original Schedule IV with modification, section 6 of the General Clauses Act will apply to the present case. In this con nection, it may be observed in the words of Judge Brett that "A schedule in an Act is a mere question of drafting, a mere question of words. The schedule is as much a part of the statute, and is as much an enactment, as any other part." Vide Craies on Statute Law, 5th edition page 208.

19. This leads us to consider the next question whether in the present case any right or liability accrued under the Act before the repeal and replacement of the original Schedule IV. In an swering this question, it is necessary to ascertain the meaning of the expression "right accrued" occurring in section 6 of the General Clauses Act. The said expression was construed by the Privy Council in Abbot v. Minister for Lands ((1895) A C 425). Their Lordships held that the mere right existing at the date of the repealing statute without any act done by an individual towards availing himself of that right, cannot properly be deemed a "right accrued" within the meaning of the enactment. The expression "right accrued" occurring in section 38 (2) of the British Interpretation Act of 1889 next came up for interpretation in Hamilton Gell v. White ((1922) 2 K B 422). Where it was held that a tenant had acquired a right to compensa tion under section 11 of the Agricultural Holdings Act, 1908 as soon as he received notice to quit, though he took no proceedings till after the repeal of the said section. After taking into con sideration the view taken in Abbot v. Minister for Lands, it was further held in Hamilton Gell's case as follows:‑ "It is obvious that the provision (i.e. section 38 of the British Interpretation Act of 1889) was not intended to preserve the abstract rights conferred by the repealed Act, such for instance as the right of compensation for disturbance confer upon tenants generally under the Act of 1908, for if it were the repealing Act would be altogether inoperative. It only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute. Here the necessary event has happened, because the landlord has, in view of a sale of the property, given the tenant notice to quit. Under these circumstances the tenant has "acquired a right" which would "accrue" when he has quitted his holding, to receive compensation."

20. The same reasoning as to the meaning of a "right accrued" prevailed in In re A Debtor ((1936) 1 Ch. 237), Now, compensation under our Workmen's Compensation Act becomes payable on the happening of an accident causing personal injury to a workman while on duty. In the present case, the accident resulting in the death of workman Jonab Ali occurred before the introduction of the revised Schedule IV to the Act. Therefore, with the death of Janab Ali a right to compensation accrued to his dependants during the currency of the original Schedule IV according to which compensation amounted to Rs. 1,800 only on the basis of the deceased workman's monthly wages of Rs.

60. A right implies a corresponding liability and, as such, the appellant firm as employer incurred a liability of Rs. 1,800 only under the Act during the currency of the original Schedule IV.

21. The last question that calls for consideration is whether the amending Act XI of 1957 by which the original Schedule IV to the Act was replaced by revised Schedule IV is retrospective in operation so as to affect the accrued right of the petitioners and the incurred liability of the appellant firm. The law as to re trospective effect of statute is a settled law. The following may be appropriately quoted from Maxwell's Interpretation of Statutes 9th edition pages 222, 223 "No rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure unless the effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation. It ought to be construed as prospectively only ..Every statute which takes away or impairs vested rights acquired under an existing law, or creates a new obligation or imposes a new duty, or attaches anew disability in respect of transaction or considerations already past must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation." Such view is uniformly held by Courts interpreting and apply ing Laws of England and also by those of the countries whose legal system is on the pattern of the British legal system, and it is not necessary to burden this judgment with quotation from Judicial decisions. Suffice it to quote the following from a recent decision of the Privy Council in Gondicalo Hypolito Constancio Noronha v. Damji Devji and others, P L D 1954 P C 22. "The provisions of this Ordinance are in accordance with the fundamental rule of English Law that no statute shall be con strued to have a retrospective operation unless such a construc tion appears very clearly in the terms of the Act or arises by necessary and distict implication." Similar view is held in the America legal system as well, as it appears from pages 1159‑1173 of Volume 59 of Corpus Juris. Let us now examine the amending Act XI of 1957 in the light of this established rule of interpretation. The said Act came into force on the 15th March, 1957 and introduced a large number of amendments in the Act, including the revised Schedule IV. The said Act does not contain any provision indicating an intention as to its taking effect retrospectively. It is clear enough from Act XI of 1957 that no retrospective effect either express or implied has been given to that Act generally or to any of the amendments made by it which touches upon an accrued right or liability. In the absence of a different intention appearing from the said Act, we are satisfied that the aforesaid revised Schedule IV, which is as effective as any other legal provision is not retrospective in operation so as to affect the right accrued and the liability incurred before the repeal and replacement of the original Schedule IV to K the Act. As already said, the amount of compensation in this case is Rs. 1,800 on the basis of the original Schedule IV as against Rs. 2,400 in accordance with the revised Schedule IV. Therefore, any contention that the revised Schedule IV, if applied retrospec tively, will not prejudicially affect the petitioner's vested right will be of no avail inasmuch as an increase in the amount of com pensation on account of retrospective application of the revised Schedule IV will correspondingly increase the liability already in curred by the appellant firm under the original Schedule IV which however, is prohibited by the express provision of section 6 (c) of the General Clauses Act and is also against the established rule of interpretation.

22. Mr. T. Ali, the learned Advocate for the respondents was candid enough to concede that a repealing statute cannot operate retrospectively so as to prejudicially affect a vested right unless its retrospective operation is intended either expressly or by necessary implication. In order to assist us in arriving at a correct decision on the point of retrospective operation as regards vested rights, the learned Advocate even cited a reported case, namely, Salig Ram v. Emperor (A I R 1943 All. 26), although that case does not appear to support his clients' claim. In, that case the Full Bench of the Allahabad High Court held thus :‑ "A statute ordinarily speaks from the date from which it is specified in the Act to come into operation or from the date when it receives assent where such assent is necessary and is prospective in its operation unless it, in clear terms, says that it will have retrospective effect or when such an intention can be unhesitatingly gathered, and it is only then that vested rights might be impaired; otherwise vested right would not be affected."

23. This view is nothing but the restatement of the well -established rule of interpretation. While Mr. T. Ali conceded the correctness of the above rule of interpretation, he contended that in the present case the revised Schedule IV is a kind of enactment which is virtually retrospective although not expressly intended to be so. A statute virtually retrospective means "a statute, although not intended to be retrospective, will in fact have a retrospective operation", vide Craies on Statute Law, 5th edition pages 365‑

367. It appears from the discussion on this topic that G a statute becomes virtually retrospective only when it nullifies or renders inoperative a pre‑existing contract or covenant. In the present case, the right and the liability accrued from a statute and not from a contract. Apart from this, the revised Schedule IV does not contain anything touching upon the right and liability already: accrued during the lifetime of the original Schedule IV. Therefore, the revised Schedule IV cannot be said to‑be an enact ment virtually retrospective.

24. Mr. T. Ali then cited several cases in order to show the retrospective character of the revised Schedule IV. The first case of West v. Gwynne ((1911) 2 Ch. 1) involved the only question whether section 3 of the British Convincing and Law of Property Act, 1892, applied to a lease executed before the commencement of that Act. Section 3 of the said Act began with the words "In all leases containing a covenant ." The Court laid emphasis on the words "In all leases" and construed them as implying leases whether executed 'before or after the Act of 1891. Therefore, the interpretation put on the express provision of section 3 of the said Act is no authority for holding that the revised Schedule IV as inserted in the Act by the amending Act XI of 1957 is retrospective in operation.

25. The next cited case was between Municipal Council of Sydney and Margaret Aleyendra troy (AIR 1928 P C 128), In that case, interest at 6 per centum per annum was allowed on the basis of an Act of 1924 in respect of a transaction occurring before the coming into force of that Act, although interest under the previous law was admissible only at the rate of 4 per cent. Interest at the higher rate was allowed on the basis of the express provision contained in section 17 of the Act of 1924 which was in the following terms: "Notwithstanding the provisions of any other Act the rate of interest payable upon compensation for land acquired by the Council by resumption or re‑alignment method or by any com pulsory purchase shall be 6 per centum per annum." Obviously, the above‑quoted section 17, by its express provision, rendered 6 per cent interest payable even in respect of transactions, which had taken place prior to the coming into force of that section. Therefore, the second case cited before us is not also an authority in support of the alleged retrospective character of the revised Schedule IV.

26. Mr. T. Ali, then cited the case of Sharrao v. Parlulekar and others (A I R 1952 (S C) 324). It has been held in that case that when a sub sequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then, the earlier Act must, thereafter be read and construed in such a way that there is no need to refer to the amending Act at all. That case, however, has not decided that the rights and liabilities accruing from an earlier statute are affected by subsequent amendments made there in, although the amendments stand incorporated into the earlier statute itself. In that case, the amending Act which prolonged the life of the principal Act expressly saved the detention order under that Act.

27. Mr. T. Ali cited yet another case, namely, Director of Public Prosecution v. Lamb ((1941) 2 K B 89), in support of his contention that the revised Schedule IV should be applicable in the present case. In the said reported case, Regulation 9 of the Defence (Finance) Regulations, 1939, incorporated Regulation 92 of the General Regulations, which prescribed three months' imprisonment, or a fine not exceeding 100, or both for an offence against the Defence (Finance) Regulations. An Order‑in‑Council, dated June 11, 1940, amended Regulation 9, providing a fine of not exceeding 100 or a fine equal to three times the value of the security, currency etc. which ever was the larger. The offences in that case were alleged to have been committed befored May 11, 1940 and information s leading to the Criminal prosecution of the accused persons had been laid on August 17, 1940 i.e., after the introduction of the said amendment in Regulation 9, revising the penalty. The Magistrate trying that case was of the, view that as he offence had been committed before the revision of the penalty by the Order‑in Council, dated June 11, 1940, he had no jurisdiction to impose any fine to the extent of three times the value of the currency, the subject‑matter of the crime, the same having exceeded

100. The Magistrate however, referred the case to the High Court of Justice at the instance of the prosecution. The King's Bench Division of the High Court remitted the case to the Magistrate holding that having regard to the Plain meaning of the Order‑in‑Council and the facts of the case, the Magistrate was competent to impose fine on the accused persons at three times the value of the currency even if it exceeded

100. In that case it was argued on behalf of the accused persons that the Order‑in‑Council of June 11, 1940, having repealed Regulation 9 of the Defence (Finance) Regulations, 1939, that repeal, in view of section 38 of the British Interpretation Act, 1889, (corresponding to section 6 of our General Clauses Act, 1897) was not to affect any penalty incurred in respect of any offence committed against regulation 9 before its repeal. Their Lordships rejected that argument on the ground that the Order‑in‑Council not being an Act of Parliament, sec tion 38 of the Interpretation Act, was not attracted to that case. Moreover, having regard in the plain language of the Order‑in Council, their Lordship appeared to be of the view that the same, in so far as it related to the penalty, was retrospective in its operation. In delivering his judgment His Lordship Tucker, J., observed: ". ..but where I think it (i.e., Order‑in‑Council of June 11, 1940) has a retrospective effect it is with regard to the penalty which it imposes." In the present case however, the position is different. The original Schedule IV to the Act having been textually substituted by the Workmen's Compensation (Amendment) Act of 1957, there has been a simultaneous repeal and re‑enactment of the original Sche dule IV and, as such, section 6 of the General Clauses Act, 1897, is attracted here with the result that the revised Schedule IV as introduced by the said amending Act of 1957, which has no re trospective effect, cannot alter or affect the right and liability accrued prior to the enactment of that amending Act. Thus, the case reported in King's Bench Division in (1941) 2 K. B. 89 is distinguishable from the present case.

28. The last contention of Mr. T. Ali is that the revised Schedule IV to the Act which was in force at the commencement of the present proceedings before the Commissioner should apply in this case inasmuch as under the ordinary rule rights of litigants are to be governed by the law in force at the commencement of the action. This contention, though ingenious, is not tenable. Mr. T. Ali, in his characteristic frankness, concedes the correct ness of the rule that when the substantive law as opposed to the law of procedure is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights. The principle underlying this rule is only a corollary to the established rule that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure unless a different intention appears from that statute. This under lying principle, out of respect for the said established rule, applies equally to a case where legal proceeding for the enforcement of a right accrued under an earlier law is commenced only after the coming into force of a new law repealing the earlier one. It is for this reason that section 6 (e) of the General Clauses Act permits not only the continuation of a pending action but also institution of legal proceeding after the repeal of the previous law under which the cause of action for such proceeding arose. The case of In re: Debtor cited hereinbefore was a case where legal pro ceeding commenced after the coming into force of the repealing statute, was decided having regard to the rights and liabilities accrued under the repealed law.

29. We have already held that the revised Schedule IV to the Act, increasing the rates of compensation is not retrospective in operation. Therefore, the compensation payable in the present case is Rs. 1,800 in accordance with the original Schedule IV.

30. In the result, the appeal is dismissed with costs. The order of the Commissioner awarding compensation is affirmed with the modification that the amount of compensation payable by the appellant to the respondents shall be Rs. 1,

800. CHOWDHURY, C. J.‑

I agree with the order passed. S. B./A. H. Order accordingly.