Highlighting the difference between substitution and modification, the Madras High Court has ruled that if a government scheme gets substituted by a new scheme, the old scheme cannot resurrect after a court of law strikes down the substitution. On the other hand, a modified scheme will certainly revert to its old position if the modification is struck down.
Justices R. Subramanian and K. Kumaresh Babu agreed with Advocate General R. Shunmugasundaram that if the court was convinced about a government scheme having been actually modified and not substituted, then as a necessary corollary, the original scheme should be considered to have revived after the modification was held to be invalid by the court.
Drawing an analogy, the judges referred to Section 6 of the Hindu Succession Act of 1956 which was amended to make daughters too as coparceners (a person who has equal share in inheritance). “Assuming that the amendment is challenged and the challenge is upheld, only the amendments that would go out of the statute, the original section would prevail,” they said.
Authoring the judgment for the Division Bench, Justice Subramanian went on to write: “If we are to conclude that once the amendments are struck down the original provision will also stand effaced, the same would lead to an anomalous situation and absolute lawlessness.” He likened the amendment to modifications made in government schemes.
The verdict was delivered while dismissing a writ appeal preferred by a private bus operator seeking stage carriage licence for operating a bus between Berigai to Anchetti (through Nagalur, Hosur, Kelamangamalam and Denkanikota) in Krishnagiri district which was formed in 2004 by bifurcating Dharmapuri district.
The appellant contended that a government scheme formulated under the Motor Vehicles Act for Dharmapuri district in 1999 would not apply to Krishnagiri district and therefore, there was no bar for issuing stage carriage licence. He also pointed out that the government had not come up with a separate scheme for Krishnagiri district as such.
On the other hand, the A-G told the court that the government came up with a modified scheme for Dharmapuri district in 2005 but it did not fructify into an approved scheme and therefore, it must be construed that the 1999 scheme would continue to be in operation with respect to both Dharmapuri and Krishnagiri districts.
It was also brought to the notice of the court that the government came up with a comprehensive scheme for the entire State in 2011 but that modified scheme was struck down by the High Court in 2018 and the order was upheld by the Supreme Court too. Since the modification does not survive any longer, the 1999 scheme would continue to be in operation, the A-G argued.
Concurring with him, the judges said the court could not create a vacuum by holding that the old scheme would not revive after the modification gets invalidated.
Published - January 02, 2023 08:05 pm IST
