Dr. MUKHTAR HAMID SHAH and others vs GOVERNMENT OF THE PUNJAB and others

NAZIM HUSSAIN SIDDIQUI, J.---The petitioners have impugned the judgment dated 15-10-2001 of learned Single Judge in Chamber, Lahore' High Court, Rawalpindi Bench, whereby the Writ Petition No,2065 of 1997 filed by them was dismissed.

2. The facts relevant for decision of this matter are that the petitioners are running private hospitals with Indoor Facilities to cater Post Clinical and Post Operation treatment. The respondent No,1, i,e, Government of Punjab, had imposed a tax through Punjab Finance Act, 1996, hereinafter referred to as "the Act of 1996" on private hospitals, which was recoverable from the managements of aforesaid hospitals at the rate of 5% of the charges, where room rent exceeded Rs,100 per day. The Act of 199.6 was enforced on 1-7-1996 and its sections 8 and 9 charging above tax were deleted by section 11 of the Punjab Finance Ordinance, 2000. Legality and vires of the Act of 1996 were challenged through various petitions and declaration was sought that said Act was ultra vires to the Constitution/law and said tax could not be recovered. Above petition was also filed for said purpose.

3. Learned High Court held that after the promulgation of the Finance Ordinance, 2000, the petition to that extent has become infructuous. It was urged before High Court on behalf of the petitioners that the tax levied and realized during the interregnum period be declared to be without lawful authority and of no legal effect.

4. Learned counsel for the petitioners before us submitted that now he is not challenging the vires of the Act of 1996 and presently his grievance is only to the effect that the petitioners are not liable to pay any tax under the Act of 1996 in view of the Finance Ordinance of 2000. He also submitted that the petitioners had paid tax, under the Act of 1996 and that they are not liable to pay the tax of interregnum period viz. 1-7-1996 to 1-7-2000, when the Ordinance of 2000 was promulgated. He referred to section 6 of the General Clauses Act, Relevant Clauses are (c) and (d), which are as follows:-- "6. Effect of repeal.--Where this Act, or any [Central Act] or Regulation 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--

(a) .....................................

(b) ......................................

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed;"

5. Learned counsel also argued that in section 11 of the Ordinance, 2000 the word 'delete' has been used, which means to abrogate, to annul, to obliterate, to blot out, to erase, and to expunge.

6. We have examined above contentions and do not find any merits in them. The petitioners have raised contradictory pleas. On one hand they have not challenged the vires of the Act of 1996 and also do not claim back the amount already paid by them to the respondents under the Act of 1996 and on the other they have argued that by virtue of Ordinance of 2000, the relevant provisions of Act of 1996 by inception have become non-existent. The Ordinance of 2000 does not speak in above terms. It is not retrospective.

7. The term 'repeal' as applied with reference to statute means the abrogation or annulling of earlier law in force by a subsequent statute. Its dictionary meaning are to abolish, to abrogate, to annul, to call back, to cancel, to dismiss, to give up, to recall, to rescind. In Words and Phrases, Permanent Edition, Volume 37 at page 6, the terms 'repeal and 'amendment' have been distinguished as follows:-- " 'Repeal' of a law means its complete abrogation by the enactment of a subsequent statute, whereas the 'amendment' of a statute means an alteration in the law already existing, leaving some part of the original still standing."

8. The dictionary meaning of terms 'repeal' and 'delete' are almost identical and in general sense these terms are synonymous. Repeal in its wider scope includes amendment and deletion.

Unnecessary Acts or their provisions are struck down by repealing and amending Acts in accordance with the social conditions prevailing in society. A 'repeal' or 'deletion' cannot, as a rule, has retrospective effect to undo the consequences already ensued, unless the Legislature specifically so directs, Section 6 of General Clauses Act is an exception and provides protection to the action already taken under the old Act.

9. The contention of learned counsel that since the word 'delete' has been used in the Finance Ordinance, 2000, as such, it shall be deemed to be operative from 1-7-1996 when the Act of 1996 was enforced, is devoid of any force.

10. In consequence leave to appeal is refused and the petition is dismissed.