When new plea of Repugnancy and implied repeal can not be permitted to be raised before supreme court?

One other contention of Shri Cama needs to be noticed.
Shri Cama argued before us that the 1969 Act being
inconsistent with the Contract Labour (Regulation and Abolition)
Act, 1970 would be repugnant to the said Act and therefore
invalid under Article 254 of the Constitution. He candidly
admitted that no such ground had been raised or argued before
the High Court, but asked that the Supreme Court allow him to
raise this plea as it is a pure question of law. We are afraid that
this is not possible for the reason that even if Shri Cama were
to be correct in his submission that the Central Parliamentary
Act of 1970 would impliedly repeal the 1969 State Act, yet
Section 30(1) of the said Act provides that despite the
provisions of the 1970 Act being allegedly inconsistent with the
1969 State Act, yet if contract labour employed in an
establishment are entitled to benefits which are more
favourable to them than those to which they would be entitled
under the 1970 Act, the contract labour shall continue to be
entitled to more favourable benefits, notwithstanding that they

also receive benefits in respect of other matters under the
Central Parliamentary Act. This being the case, it was
incumbent upon the writ petitioner not only to take up the plea
of repugnancy and implied repeal but also to state as a fact that
what the workmen would be entitled to under the 1969 State
Act would not be as beneficial as what they would be entitled to
under the 1970 Central enactment. This would then give the
respondent Board, in turn, an opportunity of either admitting or
denying this factual averment. There being no pleading to this
effect in the writ petition before the High Court, it is clear that it
is not possible for us to accede to Shri Cama’s request to go
into the argument on repugnancy and implied repeal.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9999 OF 2010
PEPSICO INDIA HOLDING P. LTD. …APPELLANT

VERSUS
GROCERY MARKET & SHOPS BOARD
& ORS. ...RESPONDENTS
Dated;February 12, 2016.
Citation;(2016) 4 SCC493

R.F. Nariman, J.

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Leading Judgment on doctrine of Implied repeal of earlier law

Mr. Muchhala, learned senior counsel appearing for the defendant/respondent, submitted that by 2013 Amendment Act, sub-section 83(4) has been substituted replacing the earlier sub-section 83(4) of the Act as the intention of the Legislature is that One Member Tribunal is not enough and in its place a Three Member Tribunal should function. According to the learned counsel the old Section 83(4) and the amended Section 83(4) is inconsistent with each other and, therefore, doctrine of implied repeal will apply. In other words, the word substitution used in the Amended Act must be interpreted as implied repeal. In this connection, learned counsel relied upon Afcons Infrastructure (supra), Municipal Council, Palai vs. T.J. Joseph, AIR 1963 SC 1561, and Bhagat Ram Sharma vs. Union of India, AIR (1988) SC 740.

29. We are unable to accept the submission made by the learned counsel that Section 83(4) of 1995 Act has been impliedly repealed.

30. It is well settled that in case where there is a repealing clause to a particular Act, it is a case of express repeal, but in a case where doctrine of implied repeal is to be applied, the matter will have to be determined by taking into account the exact meaning and scope of the words used in the repealing clause. It is equally well settled that the implied repeal is not readily inferred and the mere provision of an additional remedy by a new Act does not take away an existing remedy. While applying the principle of implied repeal, one has to see whether apparently inconsistent provisions have been repealed and reenacted.

31. The implied repeal of an earlier law can be inferred only where there is enactment of a later law which had the power to override the earlier law and is totally inconsistent with the earlier law and the two laws cannot stand together. If the later law is not capable of taking the place of the earlier law, and for some reason cannot be implemented, the earlier law would continue to operate. To such a case, the rule of implied repeal may result in a vacuum which the law making authority may not have intended.

32. The principle of implied repeal was considered by three Judges Bench of this Court in the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043, this Court held thus:-

“……An implied repeal of an earlier law can be inferred only where there is the enactment of a later law which had the power to override the earlier law and is totally inconsistent with the earlier law, that is, where the two laws — the earlier law and the later law — cannot stand together. This is a logical necessity because the two inconsistent laws cannot both be valid without contravening the principle of contradiction. The later laws abrogate earlier contrary laws. This principle is, however, subject to the condition that the later law must be effective. If the later law is not capable of taking the place of the earlier law and for some reason cannot be implemented, the earlier law would continue to operate. To such a case the Rule of implied repeal is not attracted because the application of the Rule of implied repeal may result in a vacuum which the law-making authority may not have intended. Now, what does Appendix II contain? It contains a list of subjects and marks assigned to each of them. But who tells us what that list of subjects means? It is only in the presence of Rule 11 one can understand the meaning and purpose of Appendix II. In the absence of an amendment reenacting Rule 11 in the 1947 Rules, it is difficult to hold by the application of the doctrine of implied repeal that the 1950 Rules have ceased to be applicable to the ministerial establishments of the subordinate civil courts. The High Court overlooked this aspect of the case and proceeded to hold that on the mere reintroduction of the new Appendix II into the 1947 Rules, the examinations could be held in accordance with the said Appendix. We do not agree with this view of the High Court.”

33. There is a presumption against repeal by implication. The reason for the presumption is that the legislature while enacting a law has complete knowledge of the existing laws on the subject matter and, therefore, when it is not providing a repealing provision, it gives out an intention not to repeal the existing legislation. If by any fair interpretation, both the statutes can stand together, there will be no implied repeal and the court should lean against the implied repeal. Hence, if the two statutes by any fair course of reason are capable of being reconciled, that may not be done and both the statutes be allowed to stand.

34. The principle of implied repeal has been elaborately discussed in the case of Municipal Council, Palai vs. T.J. Joseph, AIR 1963 SC 1561, this Court held:-

“9. It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is an equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Of course, this presumption will be rebutted if the provisions of the new act are so inconsistent with the old ones that the two cannot stand together. As has been observed by Crawford on Statutory Construction, p. 631, para 311:

“There must be what is often called ‘such a positive repugnancy between the two provisions of the old and the new statutes that they cannot be reconciled and made to stand together'. In other words they must be absolutely repugnant or irreconcilable. Otherwise, there can be no implied repeal ... for the intent of the legislature to repeal the old enactment is utterly lacking.”

35. Their Lordships further observed as under:-

“The reason for the rule that an implied repeal will take place in the event of clear inconsistency or repugnancy, is pointed out in Crosby v. Patch and is as follows:

“As laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Bowen v. Lease (5 Hill 226). It is a rule, says Sedgwick, that a general statute without negative words will not repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent. ‘The reason and philosophy of the rule,' says the author, ‘is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to effect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all.”

36. In the case of Harshad S. Mehta vs. State of Maharashtra, (2001) 8 SCC 257, a three Judges Bench of this Court considered the principle of implied repeal and held:-

“31. One of the important tests to determine the issue of implied repeal would be whether the provisions of the Act are irreconcilably inconsistent with those of the Code that the two cannot stand together or the intention of the legislature was only to supplement the provisions of the Code. This intention is to be ascertained from the provisions of the Act. Courts lean against implied repeal. If by any fair interpretation both the statutes can stand together, there will be no implied repeal. If possible, implied repeal shall be avoided. It is, however, correct that the presumption against the intent to repeal by implication is overthrown if the new law is inconsistent with or repugnant to the old law, for the inconsistency or repugnancy reveals an intent to repeal the existing laws. Repugnancy must be such that the two statutes cannot be reconciled on reasonable construction or hypothesis. They ought to be clearly and manifestly irreconcilable. 

Supreme Court of India

Lal Shah Baba Dargah Trust vs Magnum Developers And Others on 15 December, 2015

Bench: M.Y. Eqbal, C. Nagappan

     REPORTABLE
Citation;AIR 2016 SC381

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