About the Author
Alexy Joy is a member of munsiff magistrate exam training program. She is currently pursuing LLM from CUSAT.
QUESTION :
What are the major amendments brought out to the Specific Relief Act in 2018? Whether the amendment is retrospective?
ANSWER :
• The Specific Relief Amendment Act 2018 was recently passed by both houses of Parliament and subsequently recieved assent of the President on 1st August 2018. Notification of coming into force of the different provisions of introduced by the Amendment Act is presently awaited.
• The Specific Relief Act (1963) codifies the law in relation to the grant of the relief of specific performance including injunction. Under the Act, the remedy for specific performace was not available to a party as a matter of right. But it’s grant was based on the discretion of the court.
• The Amendment Act has brought about substantive change in substratrum and ethos of the Act. As per the Amendment Act, the courts are bound to enforce the specific performance of a contract as a rule, subject to some exception.
• The Specific Relief (Amending) Act, 2018 has eliminated the inadequacy test by substituting the section 10, section 14 and section 20 in entirely. Under the amending scheme, the remedy of specific relief is a regular statutory remedy.
• The amendment has dispensed the courts indulgence into technical aspects pertaining to adequacy of compensation. The amendment has also relaxed the negative burden of proof of the aggrieved party.
• The specific relief is no more a discretionary relief. The remedy of specific relief was granted by the courts of equity as a discretionary relief. Likewise the original scheme of Specific Relief Act, stipulated that the specific relief is may be granted at the discretion of the court. However, the discretion was guided by the sound principles of law.
• The element of discretion added uncertainty to the granting of relief. The Specific Relief (Amendment ) Act 2018 has eliminated the discretion of the court entirely by substituting section 10 and section 20 of the Act.
• The amended section 10 stipulates that specific performance of the contract shall be enforced subject to the provisions of section 14 and section 16. Meaning thereby, the grant of specific relief is not subject to the discretion of the court. The specific relief is a regular statutory remedy under the amended scheme of the act.
• In addition, the aggrieved party can now choose their own remedy. The amended scheme now provides that the aggrieved party can either choose for a substituted performance or the compensation instead of the relief. The amendment gives considerable weightage to the convenience of choice of the aggrieved party.
• The position that the legislation can enact laws retrospectively is settled. However the legislative power to amend an enacted law with retrospective is subjected to several judicially recognized limitations like (i) the words used must expressly provide or necessarily imply retrospective operation (ii) retrospectively should be reasonable and not excessive or harsh. Otherwise it runs the risk of being struck down as unconstitutional. There is no fixed formula for expression of legislative intent to give retrospectivity to an enactment.
• Substitution of an existing provision with a new provision can be construted as if substituted expression were included from the date of the original law. It is noticed that the Amendment Act while amending the provisions of the Principle Act uses the expression “substituted”. The word “substituted ” would ordinarily mean ” to put one in the place of another” or “to replace”.
• In a recent decision the Supreme Court held that ordinarily whatever the word “substitute ” is used by legislature, it has the effect of deleting the old provision and making new provision operative. The process of substitution consists of two stages : in one, the old rule is made to cease to exist and in the next the new rule is brought into existence in it’s place. Consequently when a subsequent law amends an earlier one in such a way as to incorporate itself or a part of itself into the earlier, then the earlier law must thereafter be read and construed as if the altered words has been written into the earlier law with ink and pen and the old was scored out so that there is no need to refer to the amending law at all. The court further observed that in certain circumstances however having regard to the purport and object sought to be achieved by the legislature, the Court may construe the word “substitution” as an amendment having prospective effect.
( Question from Munsiff Magistrate Exam Main 2022 paper)
