‘The rule is that when a subsequent 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 as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all.’
The Supreme Court has held that Presiding Officers of Debt Recovery Tribunals (DRTs), who were serving as on September 1, 2016 i.e., the date when the 2016 amendment of Recovery of Debts and Bankruptcy Act became enforceable, are entitled to complete the term of five years taking advantage of the amended provision which allows them to continue until attaining the age of 65 years.
Prior to 2016 amendment, Section 6 of the Act stated that presiding officer could hold office for a term of five years from the date on which he enters upon his office or until the attainment of 62 years of age, whichever is earlier. The 2016 amendment increased the age from62 to 65 years w.e.f. September 1, 2016. These presiding officers who were appointed prior to 2016 amendment had certain period left to complete the five-year term. So the issue before the court was whether they would get the benefit of amendment or will they have to retire at 62 (as per unamended provision).
The primary contention in Gottumukkala Venkata Krishamraju vs. Union of India was that since by the Amendment Act, new Section 6 stands ‘substituted’ with the old Section 6, the provision would be applicable also to those Presiding Officers who were holding the post as on September 1, 2016, when the amendment was brought into force. It was contended that the very expression ‘substituted’ would mean that the old Section 6 stands obliterated.
The bench of Justice AK Sikri and Justice Ashok Bhushan, which found force in this contention, observed: “Ordinarily wherever the word ‘substitute’ or ‘substitution’ is used by the legislature, it has the effect of deleting the old provision and makes the new provision operative. The process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. The rule is that when a subsequent 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 as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. No doubt, in certain situations, the Court having regard to the purport and object sought to be achieved by the Legislature may construe the word "substitution" as an "amendment" having a prospective effect. Therefore, we do not think that it is a universal rule that the word ‘substitution’ necessarily or always connotes two severable steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps. However, the aforesaid general meaning is to be given effect to, unless it is found that legislature intended otherwise.”
Referring to the provisions of the Act, the bench observed that the legislative intent was also to give effect to the amended provision even in respect of those incumbents who were in service as on September 1, 2016. The bench also observed that the purpose of amending Section 6 was to reduce the burden of pendency by enhancement of age of the judges concerned.
“While carrying out the aforesaid amendment with the intention to substitute the amended provision with that of unamended, the Parliament desired that the benefit of this provision extended even to those who are serving as Presiding Officers on the date when the amendment became enforceable. This seems to be just, reasonable and sensible outcome,” the bench added.