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JUDGEMENTS                                     OWP 68/1984                                                  Back To Index

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR.
OWP Nos. 68/84; 95/84; 349/84; 375/84; 549/8; 1176/85; 298/86; 629/87 and OWP No.1120/88

Date of decision: 11.09.2000

M/S Hotel President Srinagar. v/s   State of J&K and others
Coram:
The Hon'ble Mr. Justice Dr. B. P. Saraf, Chief Justice.
The Hon'ble Mr. Justice Syed Bashir-ud-Din, Judge

Whether approved for reporting:Yes
For the petitioner: M/S Z. A. Shah, M. A. Qayoom, R. A. Jan, N. A. Ronga, Advocates
For the respondents: Mr. M. A. Goni, Advocate General assisted by Mr. M. Amin,GA.

JUDGEMENT AND ORDER

Per Dr. B. P. Saraf, Chief Justice (oral).

As the issues involved in all these writ petitions are common., they are clubbed and taken up together for final hearing and disposal.

2. By these writ petitions, the petitioners seek to challenge various demand notices issued by the Assessing Authority, Hotels Tariff Taxation, Srinagar under the Jammu and Kashmir Hotel (Amenities and Services) Tariff Taxation Act, 1980 (hereinafter referred to as "1980 Act" or " repealed Act") and in some cases, also the recovery proceedings initiated pursuant thereto. One of the main grounds of challenge is that on the repeal of the 1980 Act by The Jammu and Kashmir Hotel (Amenities and Services) Tariff Taxation (Repeal) Act, 1983 (Act XV of 1983) (hereinafter referred to as " the repealing Act") and there being no saving clause in the repealing Act, all pending proceedings under the repealed Act automatically came to an end and no further action can be taken against the petitioners on the basis of such proceedings. The petitioners also seek to challenge the " annual value" of the property assessed by the Assessing Authority and the tax determined on the basis thereof and demand notices issued pursuant thereto. In most of the cases, the petitioners have also filed statutory appeals against the assessments and the demand notices impugned in the writ petitions, which are pending before the appellate authority because of the interim orders in these writ petitions staying all proceedings, including proceedings in appeals.

3. We have heard the learned counsel for the petitioners. The assessments in all these cases have been made by the Assessing Authority under the J&K Hotel (Amenities and Services) Tariff Taxation Act, 1980.That enactment was repealed by The Jammu and Kashmir Hotel (Amenities and Services) Tariff Taxation (Repeal) Act, 1983, (Act No. XV of 1983), which came into force on 19th August, 1983. There is no dispute about the fact that there is no saving clause in the repealing Act of 1983, by which the 1980 Act was repealed. Learned counsel for the petitioners submit that in the absence of saving clause in the repealing Act, all pending proceedings under the repealed Act came to an end on the date the repealing Act came into force and no action can be taken on the basis of such pending proceedings. We have carefully considered the above submission. We, however, don’t find any force in the same because repeal of the 1980 Act by itself would not extinguish the liability incurred under the repealed Act or bring to an end all pending proceedings under the repealed Act in view of the provisions contained in section 6 of the General Clauses Act, 1977 (1920 A.D) which deals with the effect of repeal of an enactment. Section 6 of the General Clauses Act reads :

"6. Effect of repeal.- Where this Act , or any Act made 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--

    1. revive anything not in force or existing at the time at which the repeal takes effect; or
    2. affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
    3. affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
    4. affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
    5. 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 proceedings 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."

It is clear from a plain reading of the above provision that whenever there is a repeal of an enactment, the consequences of section 6 of the General Clauses Act would follow unless, as the section itself says , a different intention appears. However,in the case of a simple repeal, as observed by the Supreme Court in State of Punjab v. Mohar Singh AIR 1955 SC 84,there is scarcely any room for expression of a contrary opinion.

 

4. In the present case, the 1980 Act was repealed by the 1983 Act with effect from 19th August, 1983. It was a simple repeal. Nothing is stated in the repealing Act about the effect of repeal on the pending proceedings . In such a situation section 6 of the General Clauses Act would apply which provides in clear terms that the repeal would not affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder or affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed or affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against the enactment so repealed or affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation , liability, penalty, forfeiture or punishment as aforesaid. It further provides that despite repeal, any investigation, legal proceeding or remedy may be instituted, continued or enforced, and any penalty , forfeiture or punishment may be imposed as if the repealing Act had not been passed.5. In the cases before us, proceedings for assessment were initiated under the 1980 Act prior to its repeal by the 1983 Act. It is in those proceedings, the impugned assessment orders were passed and demand notices were issued . All that was done before the repeal of the Act. Remedy by way of appeal against the impugned orders was provided under the repealed Act. In most of the cases, in fact, appeals had been filed against the impugned orders which are pending before the appellate authority because of the interim orders of this court in these writ petitions by which all proceedings, including proceedings in appeals, have been stayed. Even in cases where appeals have not been filed, the same could have been filed even after the repeal because the right to appeal accrued and got vested in the affected person the moment the proceedings for assessment were first initiated and that vested right of appeal would not be dislodged by the repeal of the enactment unless the repealing Act expressly or by necessary implication takes away that right. Law is well-settled that right of appeal is a matter of substantive right and not merely a matter of procedure, and this right becomes vested in a party when the proceedings are first initiated in, and before a decision is given by the inferior tribunal, and such a right cannot be taken away except by express enactment or necessary intendment. (See Hoosein Kasam Dada (India) Ltd. v State of Madhya Pradesh 1953 SCR 987 ). In the present case, the repealing Act does not deal with the effect of repeal. In such a situation, section 6 of the General Clauses Act would be attracted which specifically provides that the repeal shall not affect any right or privilege accrued or liability incurred under the repealed enactment. In that view of the matter, it is clear that the impugned orders passed under the repealed Act would not become inoperative on repeal of the enactment nor the right of appeal against the same would be effected in any manner. by the repeal .6. In the premises, we are of the clear opinion that in view of the provisions of section 6 of the General Clauses Act, the liability incurred by the petitioners under the repealed Act of 1980 is in no way effected by the repeal of the said Act by the repealing Act of 1983. The repeal has also in no manner affected the legal proceedings pending under the repealed Act and the authorities are free to continue the same under the provisions of the repealed Act. They would be within their powers even to institute fresh investigation or legal proceedings under the repealed Act in a given case despite its repeal. This challenge to the proceedings on the ground of repeal of the 1980 Act, therefore, is wholly devoid of any merit. 7. The other grievance of the petitioners in the writ petitions relate the determination of the annual value of the property and the tax determined as payable on the basis thereof. This controversy obviously is a factual controversy which cannot be decided by the writ court. The proper forum for determination of such disputes is the appellate authority under the Act of 1980, before whom, in most of the cases, appeals are already pending.8. In view of the above, in our opinion, all these petitions can be disposed of with the following directions:

" Where appeals have been filed by the petitioners and are pending, the same shall be taken up for hearing by the Appellate Authority, the Deputy Commissioner (Appeals), and decided on merits after hearing the parties within six months from today. If at present there is no Deputy Commissioner (Appeals), the State Government shall make necessary appointment under section 28 of the repealed Act within one month from today. In cases where no appeals have been filed in view of the challenge to the proceedings on the ground of repeal of the Act by these writ petitions, appeals may be filed within six weeks from today along with applications for condonation of delay. If such appeals are filed within a period of six weeks as stated above, the Appellate Authority shall condone the delay and admit the appeals for hearing . Such appeals shall also be heard and disposed of within six months. The Appellate Authority should give personal hearing to the appellants and consider all the points raised by them and pass appropriate reasoned orders. No coercive action should be taken by the respondents for recovery of disputed demands till the disposal of the appeals by the Appellate Authority. However, this direction not to take coercive measures for recovery would not apply to those petitioners, who have not filed appeals in the past and fail to file the same within six weeks from today as directed above. In such cases, the respondents shall be at liberty to proceed with recovery proceedings or initiate fresh proceedings in accordance with law for recovery of the demands under the Act on expiry of six weeks from today."

Learned counsel for petitioners have no objection to these petitions being disposed of with the aforesaid directions.9. Mr. M. A. Goni, learned Advocate General, appearing for the respondents also fairly stated that in the facts and circumstances of these cases and in view of the fact that these matters are pending for last 12 to 15 years, the respondents would comply with the above directions and pass appropriate orders within six months as directed above.

10 All these writ petitions are disposed of accordingly in the above terms.