Amrutlal Chunilal Raval Vs. Dattatraya
Pandurang Hajarnis & Ors [1980] INSC 222 (20 November 1980)
PATHAK, R.S.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
CITATION: 1981 AIR 483 1981 SCR (2) 266 1980
SCC Supl. 413
ACT:
The Maharashtra Municipalities Act 1965,S
16(1)(a)- Appellant elected President of Municipal council-Election
challenged-Appellant sought to be disqualified on account of prior conviction
by court of Law-State Government order that disqualification to remain in force
for a period of six months from appellant's release-Such order-Whether
beneficial and removes disqualification.
HEADNOTE:
The Maharashtra Municipalities Act, 1965 by
sub-section (2) of section 51 provides that every person qualified to, be
elected as a Councillor under section 15 shall be qualified for election as
President. Section 16(1)(a) provides that no person shall be qualified to
become a Councillor whether by election, co option or nomination, if he had
been convicted by a Court for any offence the maximum punishment for which is
imprisonment for a term of two years or more and sentenced to imprisonment for
any term, unless a period of five years, or such lesser period as the Sate
Government may allow, has elapsed since his release.
The appellant stood for election to the
office of President of the Municipal Council, filed his nomination paper on
21st October 1974, and was declared elected at the election held on 17th
November, 1974. The first respondent filed an election petition before the
District Judge challenging the election alleging that the appellant had been
convicted on 26th December, 1973 nuder section 16 of the Prevention of Food
Adulteration Act 1954 and sentenced to undergo imprisonment till the rising of
the court and to pay a fine of Rs. 200/- and that by virtue of section 51(2)
read with section 16(1)(a) of the Act the appellant was not qualified for
election as President of the Municipal Council. During the pendency of the
election petition the State Government made an order dated 20th November 1975
under clause (a) of sub-section (1) of section 16, declaring that the
disqualification incurred by the appellant 'should remain in force for a period
of six months only from his release on 26th December, 1973'.
The District Judge allowed the election
petition and the election of the appellant was set aside. The appellant filed a
writ petition, which was dismissed by the High Court.
In the appeal to this Court, it was contended
that the order dated 20th November, 1975 made by the State Government was
retrospective in operation and consequently removed the disqualification
imposed on the appellant on the date he filed his nomination paper.
267 Dismissing the appeal
HELD: ( 1 ) The appellant does not benefit
from the order of the State Government insofar as his election as President in
1974 is concerned. [270 A] (2) By virtue of clause (a) of sub-section (1) of
section 16, the State Government had been empowered to substitute a shorter
period of disqualification. A modification of the normal operation of the
statute by the State Government is contemplated. Such Q modification to be
retrospective must indicate clearly that it is so. [269 E-F] In the instant
case, disqualification was incurred by the appellant on 26th December, 1973
when he was convicted and sentenced, and the disqualification was in force when
he stood for election. The date when the disqualification for five years was
incurred is the relevant date, the subsequent operation is the consequence of
the incurring of the disqualification. If the order was to be beneficial to the
appellant, it should have been made retrospective from the date when the
disqualification was incurred. On the plain language, it must be read as an
order reducing the period of disqualification to six months, due to be applied
to a disqualification arising after the date when the order was made. [296 G-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 707 of 1978.
Appeal by Special Leave from the Judgment and
Order dated 20/21st March, 1978 of the Bombay High Court in SCA No.2868/76.
V. N. Ganpule and Mrs. Veena Devi Khanna, for
the Appellant.
V. S. Desai and M. N. Shroff for Respondents
1 to 4.
Mrs. Jayashree Wad for Respondent No. 5. The
Judgment of the Court was delivered by PATHAK, J.-This Appeal by special leave
is directed against the judgment of the Bombay High Court maintaining an order
of the District Court, Poona by which the appellant's election as President of
the Bhor Municipal Council was set aside on an election petition filed by the
respondent.
The appellant stood for election to the
office of President of the Bhor Municipal Council. He filed his nomination
paper on 21st October, 1974, and the election was held on 17th November, 1974.
The appellant was declared elected the next day and the result of the 268
election was published in the Government Gazette on 25th November, 1974.
The first respondent filed an election
petition before the District Court, Poona challenging the appellant's election.
He alleged that the appellant had been convicted on 26th December, 1973 by the
Judicial Magistrate, Bhor under s. 16 of the Prevention of Food Adulteration
Act and sentenced to undergo imprisonment till the rising of the court and to
pay a fine of Rs. 200/-. Accordingly, he said, by virtue of s. 51(2) read with
s. 16(1)(a) of the Maharashtra Municipalities Act, 1965, the appellant was not
qualified for election as President of the Municipal Council. During the
pendency of the election petition the Maharashtra Government made an order
under cl. (a) of sub- s.(l) of s. 16, Maharashtra Municipalities Act,1965
("the Act") declaring:
"In exercise of the powers conferred by
clause (a) of sub-section (1) of Section 16 of the Maharashtra Municipalities
Act, 1965, the Government is pleased to order that the disqualification
incurred by Shri Amrutlal Chunilal Raval, resident of Bhor, Tehsil Bhor,
District Poona, should remain in force for a period of six months only from his
release on 26th December, 1973.
By order and in the name of the Governor of
Maharashtra.
sd/-
M. N. Tadkod,
Desk Officer.
" The election petition was allowed and
the election of the appellant was set aside. The appellant filed a writ petition
in the Bombay High Court against the order setting aside his election, but the
writ petition was dismissed by the High Court on 21st March, 1978.
In this appeal, the only point pressed by the
petitioner before us is that the order dated 20th November, 1975 made by the
State Government was retrospective in operation and consequently removed the
disqualification imposed on the appellant on the date he filed his nomination
paper.
Sub-s.(2) of s. 51 of the Act provides that
every person qualified to be elected as a Councillor under s. 15 shall be
qualified for election as President. Sub-s.(1) of s.l5 of the Act provides that
every person, whose name is included in the list of voters maintained under
s.11 and who is not disqualified for being elected a Councillor under this 269
Act or any other law for the time being in force, shall be qualified, A and
every person whose name is not included in the list or who is so qualified, to
be elected as a Councillor at any election. Section 16(1) (a) of the Act
provides:
"16. (1) No person shall be qualified to
become a Councillor whether by election, co-option or nomination, who- (a) has
been convicted by a Court in India of any offence the maximum punishment for
which (with or without any other punishment) is imprisonment for a term of two
years or more and sentenced to imprisonment for any term, unless a period of
five years, or such lesser period as the State Government may allow in any
particular, has elapsed since his release; or xx xx xx xx xx " The
appellant was convicted on 26th December, 1973 for an offence under the Prevention
of Food Adulteration Act of Food Adulteration Act, which. it is not disputed,
fell within the terms of cl.(a) of sub-s.(l) of s.16. He was sentenced to
imprisonment until the rising of the court.
Because of the conviction and sentence he
suffers the disqualification contemplated by cl.(a), and the disqualification
enures for a period of five years from the date of his release from
imprisonment. But, by virtue of the same clause? the State Government has been
empowered to substitute a shorter period ,of disqualification. In other words.
the ordinary run of the clause may be altered by the State Government. A
modification of the normal operation of the statute is contemplated. Such a
modification, to be retrospective. must indicate clearly that it is so. There
is nothing in the order dated 20th November, 1975 from which it can be inferred
that it has retrospective operation. What it says merely is that the
disqualification incurred by the appellant shall remain in force for a period
of six months only from his release on 26th December. 1973. The
disqualification was incurred by the appellant on 26th December, 1973 and the disqualification
was in force when he stood for election. The date when the disqualification for
five years was incurred is the relevant date; the subsequent operation is
merely the consequence of the incurring of the disqualification. In the order
was to be beneficial to the appellant, it should have been made retrospective
from the date when the disqualification was incurred. On the plain language. it
must be read as an order reducing -the period of disqualification to six
months, but to be applied to a disqualification arising after the date when the
order was made.
270 A In our opinion, the appellant does not
benefit from the order the State Government insofar as his election as
President in 1974 is concerned. In the circumstances, we consider it unnecessary
to go into the question whether the State Government has the power under cl.
(a) to make an order with retrospective effect.
l[n the result, the appeal is dismissed with
costs to the fifth respondent.
N.V.K. Appeal dismissed.
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