Gurudevdatta
Vksss Maryadit & Ors Vs. State of Maharashtra & Ors [2001] Insc 165 (22 March 2001)
G.B.
Pattanaik, Umesh C Banerjee & B.N. Agrawal. Banerjee,J.
Leave
granted.
L.I.T.J
Urgency
of the situation has prompted this Court to dispose of the present Special
Leave Petition under Article 136 of the Constitution even at the stage of
admission:
Urgency
being initiation of election process of Kolhapur District Central Co-operative
Bank in the State of Maharashtra. Incidentally, Bombay High Court
has negatived the petitioners contention of restrictive list of voters in terms
of the proviso to Section 27 (3) as added by the amendment to the Maharashtra
Co-operative Societies Act, 1960 the primary reason being - the entire election
programme, including the list of voters stands finalised on June 30, 2000 and
the amendment by way of addition to the proviso was effected on 23rd August,
2000: The introduction of the amended proviso being effected subsequent to the finalisation
of the voters list, the High Court concluded that basically, the inclusion of
the Societies which were eligible on 30th June, 2000 could not be faulted on
the basis of the amendment which was brought into force subsequently and they
cannot be denied the right to vote and hence the Appeal before this Court.
Before
adverting to the submissions advanced on the score as above, one factual
element ought to be noticed at this juncture to wit: promulgation of an
Ordinance being Maharashtra Ordinance No. X of 2001 by the Governor of the
State on 27.02.2001 during the short pendency of this appeal.
We
shall be adverting to the same shortly in detail but before so doing relevant
provisions of the Maharashtra Co-operative Societies Act, 1960 [Section 27(3)]
together with the amendment to the proviso as effected on 23rd August, 2000
ought to be noticed immediately herein below:- Section 27(3):
A
society which has invested any part of its funds in the shares of any federal
society, may appoint one of its members to vote on its behalf in the affairs of
that federal society and accordingly such member shall have the right to vote
on behalf of the society Proviso to the Section however reads as below:-
Provided that, any new member society of a federal society shall be eligible to
vote in the affairs of that federal society only after the completion of the
period of three years from the date of its investing any part of its fund in
the shares of such federal society;
provided
further that, where the election is to a reserved seat under Section 73-B, no
person shall have more than one vote.
The
Ordinance as promulgated by the Co-operation and Textile Department of the
Government of Maharashtra and as published in the Government Gazette in terms
of Clause III of Article 348 of the Constitution being Maharashtra Ordinance X
of 2001 may also be noticed at this juncture only as the issue centres round
the Ordinance as well and the relevant extract of the same, however, is set out
as below:-
1.
Short title and Commencement
(1)
This Ordinance may be called the Maharashtra Co-operative Societies (Second
Amendment) Ordinance, 2001.
(2) It
shall be deemed to have come into force on the 23rd August, 2000
2.
Amendment of Section 27 of Mah.XXIV of 1961 In Section 27 of the Maharashtra
Co-operative Societies Act, 1960- (a) in sub-section (3)-
(i) after
the first proviso, the following proviso shall be inserted as the second
proviso, namely:- Provided further that nothing in the first proviso shall
apply to the member society, which has invested any part of its fund in the
shares of the federal society, before the commencement of the Maharashtra Co-
operative Societies (Amendment) Act, 2000.
(ii)
In the existing second proviso, for the words provided further that the words provided
also that shall be substituted:
(b) to
sub-section (3A), the following proviso shall be added, namely, Provided that,
nothing in sub-section (3A) shall apply to an individual member of a society,
who has been enrolled as a member of that society, before the commencement of
the Maharashtra Co-operative Societies (Amendment) Act, 2000.
Mr.
V.A. Bobde, the learned Senior Counsel in support of the appeal with his usual
eloquence introduced the concept of legislative malice in the matter of
promulgation of the Ordinance. Malice in common acceptation, admittedly, means
and implies spite or ill will and it is having regard to the common English
parlance of the word malice that Mr. Bobde contended that promulgation of the
Ordinance is an abuse of the legislative power and process amounting to a
fraudulent user thereof and thus the malice.
It is
in this context Mr. Bobde placed very strong reliance on the statement of
objects and reasons for promulgation of the same. In the normal course of
events we would not have delved into the same in detail as is being done herein
below, but for its significance in the matter under consideration and elaborate
submissions thereon, the statement of objects and reasons for promulgation of
the Ordinance is noticed herein below:- By inserting proviso to sub-section (3)
of section 27 of the Maharashtra Co-operative Societies Act, 1960, by Maharashtra
Act No.XL of 2000, provision has been made to give voting rights only to such
member societies, which have completed three years from the date of their
admission as members, in the election of Federal Society. Similarly, provision
has also been made in sub-section (3A) of Section 27, to give voting rights to
only such individual members who have completed two years from the date of admission
as members, in the election of a society. After these provisions came into
effect, election programmes of some societies in the State were declared and
while preparing the voters lists, there was some confusion amongst the
co-operative as to whether names of the societies and individuals who were
already admitted as members before coming into force of the said Act, that is,
before the 23rd August, 2000, could be included in the voters list. Some
societies have even filed Writ Petitions in the matter in the Honble High Court
and matters have reached to the Supreme Court. In these cases, the Government
has taken a stand before the Supreme Court that the amended provisions would
not affect the voting rights of member societies or members who had already
become members prior to the said amendment. Therefore, with a view to leave no
room for doubt the Government considers it necessary to clarify, by making a
specific clarificatory provision in the Act that the societies and the members
who have already obtained the membership before the 23rd August, 2000, that is, the date of coming into force of the said
amendment Act.
2. As
both Houses of the State Legislature are not in session and the Governor of Maharashtra
is satisfied that the circumstances exist which render it necessary for him to
take immediate action further to amend the Maharashtra Co-operative Societies
Act, 1960 (Mah. XXIV of 1961), for the purpose of aforesaid, this Ordinance is
promulgated.
On an
analysis of the statement as noticed in the preceding paragraph Mr. Bobde
contended that the whole purpose of promulgation of the Ordinance has been
purposive and to scruttle a free and fair election. It has been contended that
legislation cannot be a tool to satisfy a political end and the conclusion is
irresistible in the contextual facts on this count only if English words are
given ordinary common English parlance. The factum of having a confusion while
preparing the voters list as stated in the statement of objects and reasons,
negates the basis of the High Court judgment to wit: the voter list stands
prepared and concluded by 30th June, 2000.
Mr. Bobde contended that by reason of so-called confusion (as noticed above),
the Ordinance stands promulgated as the legislature was not in session by way of
a clarificatory order. The submissions apparently, apart from being attractive
seems to be of some consequence rendering it an obligation for the Court to
delve into the issue in slightly more greater detail. The tenability of the
submissions as above, however, would be discussed later in this judgment, but
before so doing, we need to recapitulate the law as regards the jurisdiction of
the court to assess the question of justiciability of the legislation by one of
the wings of the Constitution. Doctrine of separation of powers have been the
basic tenet of our constitutional framework since in terms therewith each of
the three organs of the State viz., the judiciary, executive and the
legislature would be operating on its own spheres and fields. It is to be noted
that there has been a catena of cases wherein this judicial reluctance have
been noticed and it is now well-settled both in this country and United States
of America as well as in United Kingdom that certainty and finality about the
status of a statute, contribute to judicial reluctance to inquire whether it
complied with all requisite formalities, but the decisions are not very
uncommon which have laid down in no uncertain terms that there is no blanket
rule of such a judicial reluctance neither the judiciary would stand impotent
before an obvious instance of exercise of a manifestly unauthorised power: The
concept of political question doctrine, being basically of American origin,
cannot possibly be confidently reached until the matter is considered with
special care, upon bestowing proper attention and in the event of a conclusion
which lends credence to the question raised viz., as to whether the question is
a political question or not, Judicial inclination to interfere cannot be
faulted though however not otherwise. See in this context Charles W. Baker et
al: v. Joe C. Caar : 369 US 186: 7 L.ed.:2d.663). This however,
needs to be emphasised that the same stands subject to the facts of each case
and it is almost a well-neigh impossibility to even adumbrate as to what will
and what will not constitute judicial reluctance to interfere, except however,
the field which can be described to be as ad hominem nor even any attempt to
draw the line since each case is to be decided on the given facts. In this context
the decision of the Privy Council in the case of Liyanage and others v. Reginam
(1966 1 All ER 650) ought also to be noticed wherein, Their Lordships of the
Privy Council introduced the concept of legislation ad hominem and struck down
a legislation by reason therefor. Lord Pearce in his inimitable style observed
as below:
Do the
Acts of 1962, however, otherwise than in respect of the Ministers nomination,
usurp or infringe that power? It goes without saying that the legislature may
legislature, for the generality of its subjects, by the creation of crimes and
penalties or by enacting rules relating to evidence. But the Acts of 1962 had
no such general intention. They were clearly aimed at particular known
individuals who had been named in a White Paper and were in prison awaiting
their fate. The fact that the learned judges declined to convict some of the
prisoners is not to the point. That the alterations in the law were not
intended for the generality of the citizens or designed as any improvement of
the general law, is shown by the fact that the effect of those alterations was
to be limited to the participants in the January coup and that after these had
been dealt with by the judges, the law should revert to its normal state.
Such a
lack of generality, however, in criminal legislation need not, of itself,
involve the judicial function, and their lordships are not prepared to hold
that every enactment in this field which can be described as ad hominem and ex
post facto must inevitably usurp or infringe the judicial power. Nor do they
find it necessary to attempt the almost impossible task of tracing where the
line is to be drawn between what will and what will not constitute such an
interference. Each case must be decided in the light of its own facts and
circumstances, including the true purpose of the legislation, the situation to
which it was directed, the existence (where several enactments are impugned) of
a common design, and the extent to which the legislation affects,by way of
direction or restriction, the discretion or judgment of the judiciary in
specific proceedings. It is therefore necessary to consider more closely the
nature of the legislation challenged in this appeal.
The observations
of Lord Pearce finds approval of this Court in the case of Indira Nehru Gandhi
v. Raj Narain (1975 Suppl SCC 1).
Mr. Bobde
contended that the Ordinance in question is clearly a legislation ad-hominem
being directed solely to the control of voting right in respect of the affairs
of the most cash- riched Federal Cooperative Bank in Maharashtra.
Mr. Bobde
contended that Kolhapur Bank is most cash-riched Co-operative Bank in the State
of Maharashtra with an annual turnover of Rs.1500 crores:
Its financing is around 1200 crores including 600 crores of sugar co-operative
society and because of the sugar factories, Kolhapur District has maximum
concentration on Co-operative societies amongst all the districts of the State
of Maharashtra.
It is
at this juncture some decisions of this Court ought also tobe noticed and elucidation
of law as propounded with the passage of time the decisions being:
(i)
A.K. Roy v. Union of India (1982 (1) SCC 271) wherein this Court in paragraphs
28 and 29 of the Report observed as below:
28.
There are however, two reasons why we do not propose to discuss at greater
length the question as regards the justiciability of the Presidents
satisfaction under Article 123 (1) of the Constitution. In the first place, the
ordinance has been replaced by an Act. It is true, as contended by Shri Tarkunde,
that if the question as regards the justiciability of the Presidents
satisfaction is not to be considered for the reason that the ordinance has
become an Act, the occasion will hardly ever arise for considering that
question because, by the time the challenge made to an ordinance comes up for
consideration before the court, the ordinance almost invariably shall have been
replaced by an Act. All the same, the position is firmly established in the
field of constitutional adjudication that the court will decide no more than
needs to be decided in any particular case. Abstract questions present
interesting challenges, but it is for scholar and textbook writers to unravel
their mystique. It is not for the courts to decide questions which are but of
academic importance.
29.
The other reason why we are not inclined to go into the question as regards the
justiciability of the Presidents satisfaction under Article 123 (1) is that on
the material which is placed before us, it is impossible for us to arrive at a
conclusion one way or the other. We are not sure whether a question like the
one before us would be governed by the rule of burden of proof contained in
Section 106 of the Evidence Act, though we are prepared to proceed on the basis
that the existence of circumstances which led to the passing of the Ordinance
is especially within the knowledge of the executive. But before casting the
burden on the executive to establish those circumstances, at least a prima
facie case must be made out by the challenger to show that there could not have
existed any circumstances necessitating the issuance of the Ordinance. Every
casual or passing challenge to the existence of circumstances, which rendered
it necessary for the President to take immediate action by issuing an ordinance,
will not be enough to shift the burden of proof to the executive to establish
those circumstances. Since the petitioners have not laid any acceptable
foundation for us to hold that no circumstances existed or could have existed
which rendered it necessary for the President to take immediate action by
promulgating the impugned Ordinance, we are unable to entertain the contention
that the Ordinance is unconstitutional for the reason that the pre-conditions
to the exercise of the power conferred by Article 123 are not fulfilled. That
is why we do not feel called upon to examine the correctness of the submission
made by the learned Attorney-General that in the very nature of things, the
satisfaction of the President which is the basis on which he promulgates an
ordinance is founded upon materials which may not be available to others and
which may not be disclosed without detriment to public interest and that, the
circumstances justifying the issuance of the ordinance as well as the necessity
to issue it lie solely within the Presidents judgment and are, therefore, not justiciable.
(ii)
The second in the line of citations from the Bar is the decision in State of
Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors. (1983 (2) SCC 33):
since this particular decision does not lend any particular assistance or so to
say, advance the issue to the contentions raised in the matter further, we
refrain ourselves from dealing with the same, as such we need not dilate on
that score any further.
(iii)
The third decision being the locus classicus to the issue, (D.C. Wadhwa v.
State of Bihar: 1987 (1) SCC 378) wherein this Court in no uncertain terms
observed that since the primary law making authority under the Constitution is
the Legislature and not the Executive and it is possible that circumstances may
arise which render it necessary to take immediate action when the Legislature
is not in session, in such a case and in order that public interest may not
suffer by reason of the failure of the legislature to deal with the emergent
situation, the Governor is vested with the power to promulgate the Ordinance.
This Court further observed that the power to promulgate Ordinance is
essentially a power to be used to meet an extra- ordinary situation though it
cannot be allowed to be perverse to serve political ends. It is on this count
of judicial ad-negation Mr. Bobde found fault with the judgment under appeal
since the instant Ordinance, as appears from the Statement of objects and
reasons, cannot but be so declared. The law thus remains clarified that
judicial reluctance cannot be faulted in any way unless of course an element of
constitutionality of the legislation comes up for consideration The issue of
political question as argued before this Court in the matter and noticed above,
pertains however to the judicial review of legislation. A large number of
decisions have been cited though not noticed above, since the same do not stand
to any further assistance at the bar but judicial ad-negation has been the
resultant conclusion in all these cases unless of course, there is any
violation of any fundamental right and the constitutionality is the issue
between the parties as noted above. The political question doctrine has
however, to be treated to be a tool for maintenance of governmental order but
as noticed above, there is no blanket rule of judicial reluctance since the
question arises as to whether the case presents the political question and for
this purpose, facts of each case shall have to be considered in its proper
perspective so as to assess the situation. This however, opens up a wider
debate on to the different issue of Article 123 and 213 and the action is
legislative in character. It is not an administrative or executive action but
being legislative in nature, it is subject only to constitutional limitations
applicable to an ordinary statute. The Ordinance, if, does not infringe the
constitutional safeguards, cannot be examined nor the motive for such a
promulgation can be in question. Mr. Desai appearing for Intervenor Respondent
very strongly urged that the Court cannot examine the satisfaction of the
Governor in promulgating an ordinance and the law is well settled on this count
by this Court in the Nagarajs case (K. Nagaraj and others v. State of Andhra
Pradesh and Another : 1985 (1) SCC 523) wherein this court held that it is
impossible to accept the submission that the ordinance can be invalidated on
the ground of non-application of mind. It is a power of the Executive to
legislate and this power is plenary within its field like the power of the
State Legislature to pass the laws.
The
Constitution Benchs judgment in T. Venkata Reddys case (T. Venkata Reddy and
Others v. State of Andhra Pradesh : 1985 (3) SCC 198) wherein the earlier
judgment of the Federal Court in Laxmi Narain Das v. Province of Bihar (1949
FLR 693) have been followed, re- affirmed the observations in Nagarajas case,
the Constitution Bench observed that the motive of Legislature in passing a
statute is beyond the scrutiny of the courts. It is not only the propriety to
follow the Constitutional Bench judgment but we are definitely of the opinion
and view that by no stretch, the courts can interfere a legislative malice in
passing a statute. Interference is restrictive in nature and that too on the
constitutionality aspect and not beyond the same.
We may
thus note here that though a definite motive has been ascribed, we are not in a
position to lend concurrence to Mr. Bobdes submission that there is any
legislative malice. Legislative malice is beyond the pale of jurisdiction of
the law courts and since there is no constitutional invalidity neither the same
has been contended before us, question of interference with the matter
pertaining to the first proviso or even the ordinance does not and cannot
arise. In any event, the Ordinance, strictly speaking, may be ascribed to be
totally irrelevant in the present context, but if the executive in its wisdom
thought it fit to promulgate such an ordinance, it is no part of our duty to
describe it as otherwise not required even as and by way of a clarification
since the administrative expediency permitted the legislative function on to
the executive.
Needless
to repeat the factual score that the High Court hadnt had the opportunity to
consider the Ordinance which stands promulgated only after the disposal of the
appeal and during the pendency of the matter before this court: The Ordinance,
however, has a retrospective operation and coincides with the date of
introduction of the amended proviso to Section 27(3) of the Act of 1960.
On the
wake of the aforesaid, we cannot proceed with the matter any further without
however having a close look at the Ordinance as promulgated and in the event of
experiencing any difficulty, the Statement of objects can be considered but if
it is otherwise, Mr. Bobdes submission would pale into insignificance and thus
have to be stamped as wholly untenable.
It is
on this score however, that Article 213 becomes relevant being the source of
power of the Executive to use legislative functions. Article 213 in so far as
is material reads as below:
213.
(1) If at any time, except when the Legislative Assembly of a State is in
session, or where there is a Legislative Council in a State, except when both
Houses of the Legislature are in session, the governor is satisfied that
circumstances exist which render it necessary for him to take immediate action,
he may promulgate such ordinances as the circumstances appear to him to
require:
* * *
* (2) An ordinance promulgated under this article shall have the same force and
effect as an Act of legislature of the State assented to by the governor, but
every such ordinance (a) shall be laid before the Legislative Assembly of the
State, or where there is a Legislative Council in the State, before both the
Houses, and shall cease to operate at the expiration of six weeks from the
re-assembly of the Legislature, or if before the expiration of that period a
resolution disapproving it is passed by the Legislative Assembly and agreed to
by the Legislative Council, if any, upon the passing of the resolution or, as
the case may be, on the resolution being agreed to by Council; and (b) may be
withdrawn at any time by the Governor.
Explanation
Where the Houses of the legislature of a State having a Legislative Council are
summoned to re- assemble on different dates, the period of six weeks shall be
reckoned from the later of those dates for the purposes of this clause.
Article
213 however is to be read along with Article 174 which enjoins that the
legislature shall meet at least twice in a year but six months shall not
intervene between its last sitting in one session and the date appointed for
its first sitting in the next session. Thus maintaining the democratic favour
of the Constitution with three separate organs of the State functioning within
its restrictive sphere. There is existing sufficient constitutional safeguard
and rigour and a plain reading of the language used therein depicts the same.
Article
213 authorises promulgation of an Ordinance and confers a power of legislation
on to the Governor only in the event of recording a satisfaction that the
circumstances exist which render it necessary for him to take immediate action
and he may thus promulgate such an Ordinance as the circumstances appear to him
to require and the Ordinance so promulgated can be laid before the Legislative
Assembly of the State at the expiry of six weeks from the re-assembly of the
Legislature. It is in this perspective it be noted that the power of the
Executive is only an emergent power to meet the emergency. Mr. Bobde posed a
question as a part of his submission as regards the nature of the emergency
since the statement of objects records the Ordinance to be a mere clarificatory
Ordinance, there seems to be some substance since what was implicit has been
stated to be made explicit by way of clarification according to the plain
English meaning of the words used in the statement. This is however on
assumption that we need to delve into the matter in such detail. The emergency
admittedly cannot thus be said to have occurred in order to have an emergent
legislation by exercise of an emergent power of legislation by the Executive.
The decision in Wadhwas case (supra) has been rather categorical that the
Executive cannot by taking resort to an emergency power takeover the law making
function of the legislature and in the event, the executive assume such power,
the same would be clearly subverting the democratic process which lies at the
core of our constitutional scheme, for this, the people would be governed not
by the laws made by the Legislature as provided in the Constitution but by laws
made by the Executive. We do appreciate such an exposition of law and lend our
concurrence thereto in its entirety. The exception however, to the above has
also been pointed out in Wadhwas case (supra) that in the event of there being
too many legislative businesses in a particular session or the time at the
disposal of the Legislature is rather short, in which event, the Governor may
legitimately find it necessary to re- promulgate the ordinance and where such
is the case, admittedly, the Ordinance cannot possibly be under any criticism.
While it is true, that the submission remains very attractive but the fact
remains, is it necessary for us to lay such an emphasis on the statement of
objects and reasons in the matter under consideration, the answer however
cannot but be in the negative. The objects and reasons cannot but seem to note
the reasons for introduction of the promulgation of such an Ordinance. It has
no correlation by itself with the objective when the same was promulgated. The
observations of this Court in Ashwini Kumars case (Aswini Kumar Ghose and
Another v. Arabinda Bose and Another: AIR 1952 SC 369) lends credence to such
an observation as noticed herein before wherein, Patanjali Sastri, C.J. (as His
Lordship then was) stated very succinctly in paragraph 32 of the Report as
below:
32. As
regards the propriety of the reference of the Statement of objects and reasons,
it must be remembered that it seeks only to explain what reasons induced the
mover to introduce the Bill in the House and what objects he sought to achieve.
But those objects and reasons may or may not correspond to the objective which
the majority of members had in view when they passed it into law. The Bill may
have undergone radical changes during its passage through the House or Houses,
and there is no guarantee that the reasons which led to its introduction and
the objects thereby sought to be achieved have remained the same throughout till
the Bill emerges from the House as an Act of the Legislature, for they do not
form part of the Bill and are not voted upon by the members. We, therefore,
consider that the Statement of objects and reasons appended to the Bill should
be ruled out as an aid to the construction of a statute.
Further,
after introduction of the Bill and during the debates thereon before the
Parliament, if a particular provision is inserted by reason of such a debate,
question of indication of any object in the objects and reasons of the Bill
does not and cannot arise. The statements of objects and reasons need to looked
into though not by itself a necessary aid as an aid to construction only if
necessary.
To
assess the intent of the Legislature in the event of there being any confusion,
statement of objects and reasons may be looked into and no exception can be
taken therefor this is not an indispensable requirement but when faced with an
imperative need to appreciate the proper intent of the Legislature, statement
may be looked into but not otherwise.
The
submission of Mr. Bobde thus can only be given credence only in the event of
there being any necessity of such a requirement in the facts of the matter
under consideration, to wit : some confusion somewhere for assessment of the
intent of the Legislature.
The
proviso for which the clarificatory Ordinance has been promulgated, it appears
that the Legislature advisedly used the expression new members. Members have
been defined under the State Co-operative Societies Act (Section 2(19) of the
Act of 1960) meaning - a person joining in an application for registration of a
co-operative society which is subsequently registered or a person duly admitted
to membership of his society after registration and includes a nominal
associate or sympathizer member. Section 27 (3) proviso as noticed above adds
an appendage any new before the member society: whereas Mr. Bobde contended
that the appendage any new cannot but mean though existing but not voted since
Section 27 on which the proviso as noticed above was added by Maharashtra
Co-operative Societies (Second Amendment) Act, 2000 which came into force on
and from 23rd August, 2000 and deal with the parties voting rights in terms of
Section 27 of the Act of 1960, any other interpretation would be in violent
departure from the statutory intent and it is on this score Mr. Bobde did put
very strong reliance as to the understanding of the Government as is laid down
in the Statement of objects and reasons. Statement of objects as noticed above
can only be looked into in the event of there being any requirement therefor
and not otherwise: The meaning of the expressions used in the legislation, if
is of doubtful nature, may be a guide or an aid but not otherwise. The
legislature has used the expression new obviously with an intent to ascribe
something other than existing members and this additional requirement by reason
of an additional appendage by way of a statutory amendment, must be stated to
be that indicative of the intent and to convey a definite meaning. The word new
in common English parlance cannot but mean something which was not existing and
thus a society becoming a member on or after 23rd August, 2000 and not prior thereto: it cannot possibly apply to existing
members but only new members after the amendment.
While
the statements of objects and reasons in the normal course of event cannot be
termed to be the main or principal aid to construction but in the event it is
required to discern the reasonableness of the classification as in the case of Shashikant
Laxman Kale and Anr. v. Union of India & Anr. [AIR 1990 SC
2114] statement of objects and reasons can be usefully looked into for
appreciating the background of legislatures classification. This Court in para
16 of the judgment last noticed had the following to state:
For
determining the purpose or object of the legislation, it is permissible to look
into the circumstances which prevailed at the time when the law was passed and
which necessitated the passing of that law. For the limited purpose of
appreciating the background and the antecedent factual matrix leading to the
legislation, it is permissible to look into the Statement of Objects and
Reasons of the Bill which actuated the step to provide a remedy for the then
existing malady. In a. Thangal Kunju Musaliar v. M. Venkitachalam Potti, [1955
(2) SCR 1196 : AIR 1956 SC 246], the Statement of Objects and Reasons was used
for judging the reasonableness of a classification made in an enactment to see
if it infringed or was contrary to the Constitution. In that decision for
determining the question, even affidavit on behalf of the State of the
circumstances which prevailed at the time when the law there under
consideration had been passed and which necessitated the passing of that law
was relied on. It was reiterated in State of West Bengal v. Union of India,
[1964 (1) SCR 371 : (AIR 1963 SC 1241) that the Statement and Objects and
Reasons accompanying a Bill, when introduced in Parliament, can be used for the
limited purpose of understanding the background and the antecedent state of
affairs leading up to the legislation. Similarly, in Pannalal Binjraj v. Union
of India, [1957 SCR 233 : AIR 1957 SC 397] a challenge to the validity of
classification was repelled placing reliance on an affidavit filed on behalf of
the Central Board of Revenue disclosing the true object of enacting the
impugned provision in the Income-tax Act.
The
High Court of Australia also without any departure therefrom permits reference
to the explanatory memorandum to the Bill in order to ascertain the mischief
which the statute was intending to remedy: See in this context CIC Insurance
Limited v. Bankstown Football Club Ltd. [1997 (187) CLR p. 384] wherein it has
been stated It is well settled that at common law, apart from any reliance upon
s 15 AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to
reports of law reform bodies to ascertain the mischief which a statute is
intended to cure (Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg
: 1975 AC 591 at 614, 629, 638).
Moreover,
the modern approach to statutory interpretation
(a) insists
that the context be considered in the first instance, not merely at some later
stage when ambiguity might be thought to arise, and
(b) uses
context in its widest sense to include such things as the existing state of the
law and the mischief which, by legitimate means such as those just mentioned,
one may discern the statute was intended to remedy (Attorney General v. Prince
Ernest Augustus of Hanover : 1957 AC 436 at 461). Instances of general words in
a statute being so constrained by their context are numerous. In particular as
Mc Hugh JA pointed out in Isherwood v. Butler Pollnow Pty Ltd. (1986 6 NSWLR
363 at 388), if the apparently plain words of a provision are read in the light
of the mischief which the statute was designed to overcome and of the objects
of the legislation, they may wear a very different appearance. Further,
inconvenience or improbability of result may assist the court in preferring to
the literal meaning an alternative construction which, by the steps identified
above, is reasonably open and more closely conforms to the legislative intent
(Cooper Brookes (Wollomgong) Pty Ltd. v. Federal Commissioner of Taxation.:
1981 (147) CLR 297 at 320-321).
Another
decision of the Australian High Court in the case of Newcastle City Council v.
GIO General Limited [1998 (72) ALJR 97 (Aust.) may also be noticed at this
juncture wherein the observations and elucidation of cannons of construction
and interpretation by Brennan, CJ seem to be very apposite and we do record our
unhesitant concurrence therewith.
The observations
however runs as below:
Moreover,
as the extrinsic material reveals, s.40(3) was intended to be remedial. As far
as practicable, s.40(1) and (3) should be construed to promote the objects of
the Act. Nevertheless, as I pointed out in Kingston v. Keprose Pty Ltd. [1987 (11) NSWLR 404 at 423], in applying a
purposive construction, the function of the court remains one of construction and
not legislation. When the express words of a legislative provision are
reasonably capable of only one construction and neither the purpose of the
provision nor any other provision in the legislation throws doubt on that
construction, a court cannot ignore it and substitute a different construction
because it furthers the objects of the legislation.
The
circumstances in which recourse can legitimately be had to the extrinsic
material Mr. Sackar relied on s 15Ab of the Acts Interpretation Act to urge
this Court to examine and take into account the extrinsic material. Section
15AB is entitled Use of extrinsic material in the interpretation of an Act and
relevantly provides:
(1)
Subject to sub-section (3), in the interpretation of a provision of an Act, if
any material not forming part of the Act is capable of assisting in the
ascertainment of the meaning of the provision, consideration may be given to
that material:
(a) to
confirm that the meaning of the provision is the ordinary meaning conveyed by
the text of the provision taking into account its context in the Act and the
purpose or object underlying the Act; or
(b) to
determine the meaning of the provision when:
(i) the
provision is ambiguous or obscure; or
(ii) the
ordinary meaning conveyed by the text of the provision taking into account its
context in the Act and the purpose or object underlying the Act leads to a
result that is manifestly absurd or is unreasonable.
(2)
Without limiting the generality of sub-section (1), the material that may be
considered in accordance with that sub-section in the interpretation of a
provision of an Act includes;
(b)
any relevant report of a Royal Commission, Law Reform Commission, committee of
inquiry or other similar body that was laid before either House of the Parliament
before the time when the provision was enacted; ..
(e) any
explanatory memorandum relating to the Bill containing the provision..
On a
perusal of the aforesaid, be it noted that in the event the language is clear,
categorical and unequivocal, no outside aid is required or is permissible for
interpreting the proviso to the Section by the Amending Act of 2000. In the
contextual facts and in the view we have taken above, we regret our inability
to accede to or record our concurrence with the submissions of Mr. Bobde.
Further
we wish to clarify that it is a cardinal principle of interpretation of statute
that the words of a statute must be understood in their natural, ordinary or
popular sense and construed according to their grammatical meaning, unless such
construction leads to some absurdity or unless there is something in the
context or in the object of the statute to suggest to the contrary. The golden
rule is that the words of a statute must prima facie be given their ordinary
meaning. It is yet another rule of construction that when the words of the
statute are clear, plain and unambiguous, then the Courts are bound to give
effect to that meaning, irrespective of the consequences. It is said that the
words themselves best declare the intention of the law giver. The Courts have
adhered to the principle that efforts should be made to give meaning to each
and every word used by the legislature and it is not a sound principle of
construction to brush aside words in a statute as being inapposite surpluses,
if they can have a proper application in circumstances conceivable within the
contemplation of the statute. Bearing in mind, the aforesaid principle of
construction, if the expression any new member society occurring in the proviso
to sub- section (3) of Section 27 is construed, it conveys the only meaning
that it refers to the societies to be formed hereafter and not of those
societies which have already become member societies of the federal society.
Therefore, the requirement of the completion of the period of three years from
the date of its investing any part of its fund in the shares of such federal
society would apply only to those societies which became member society of the
federal society after 20th
August, 2000. In this
view of the matter, the impugned judgment of the High Court does not suffer
from any infirmity. Even if there remained any doubt in the matter of
interpreting the proviso, the Ordinance that has been promulgated on 27th February, 2001, called the Maharashtra Ordinance
No. X of 2001, after the first proviso to sub-section (3), a second proviso had
been inserted, has removed any doubt or controversy in as much as it has been
indicated therein that the first proviso will not apply to the member society
which has invested any part of its fund in the share of the federal society
before the commencement of the Maharashtra Co-operative Societies (Amendment)
Act, 2000 dated 20th August, 2000. The aforesaid Ordinance also has been given
a retrospective effect, to be effective from 23rd August, 2000. The Ordinance having been held to be valid by us as stated
above, the so-called prohibition contained in the first proviso to sub-section
(3) of Section 27 will not apply to all those societies which have already
become members of the federal society prior to 23rd August, 2000.
On the
wake of the aforesaid the Appeal thus fails:
Each
party, however, to pay and bear its own costs.
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