Vijay
Vs. State of Maharashtra & Ors [2006] Insc 452 (26 July 2006)
S.B.
Sinha & Dalveer Bhandari
(Arising
out of SLP (C) No. 25219 of 2004) S.B. SINHA, J.
Leave
granted.
The
appellant herein was elected as a member of Grampanchayat Shipora Bazar in the
year 2000. He was also elected as Sarpanch of the said village. He was
thereafter elected as Councillor of Zilla Parishad.
The
State of Maharashtra enacted Bombay Village Panchayats
Act, 1958 ('the Act', for short). In view of amendment of Section 14(1)(J-2) of
the said Act, he was held to have disqualified himself to hold the said post by
the Additional Collector, Jalna. An appeal preferred thereagainst by the
appellant herein was dismissed by the Additional Divisional Commissioner by an
order dated 2.8.2004. A writ petition preferred by the appellant, questioning
the legality of said orders was dismissed by the High Court by reason of the
impugned judgment and order. The appellant is, thus, before us.
The
short question raised by Mr. Sanjay V. Kharde, learned counsel appearing for
the appellant is that Section 14(1)(J-2) of the Act is prospective in nature
and thus, the concerned respondents as also the High Court acted illegally and
without jurisdiction in arriving at a finding that the appellant stood disqualified
by reason thereof.
Section
14(1)(J-2) reads thus :
-
"Disqualifications
–
-
No person shall
be a member of a Panchayat, or continue as such, who (J-2) has been elected as Councillor
of the Zilla Parishad or as a member of the Panchayat Samiti." The said
amendment came into force with effect from 8.8.2003.
According
to the appellant, having regard to the fact that he was elected as a member of Grampanchayat
on 27.12.2000, he derived a vested right to continue in the said post and in
that view of the matter, he could not have been held to be disqualified by
reason of the said amendment.
The
said Act is a disqualifying statute. A plain reading of the amended provision
clearly shows that it was intended by legislature to have retrospective effect.
The
general rule that a statute shall be construed to be prospective has two
exceptions: it should be expressly so stated in the enactment or inference in
relation thereto becomes evident by necessary implication.
In the
instant case it is stated expressly that the amendment would apply also to a
case where the elected candidate had been elected as a member of Panchayat
earlier thereto. It not only incorporates within its purview all persons who
would be members of the Panchayat in futuro, but also those who were sitting
members. In other words, the bar created to hold the post of member of Panchayat
would bring within its purview also those who were continuing to hold post.
It may
be true the amendment came into effect on 8.8.2003. The legislative policy
emanating from the aforesaid provision, in our opinion, is absolutely clear and
unambiguous. By introducing the said provision, the legislature, inter alia,
intended that for the purpose of bringing grassroot democracy, a person should
not be permitted to hold two posts created in terms of Constitution (73rd
Amendment) Act. It is true that ordinarily a statute is construed to have
prospective effect, but the same rule does not apply to a disqualifying
provision. The inhibition against retrospective construction is not a rigid
rule. It does not apply to a curative or a clarificatory statute. If from a
perusal of the statute intendment of the legislature is clear, the Court will
give effect thereto. For the said purpose, the general scope of the statute is
relevant. Every law that takes away a right vested under the existing law is
retrospective in nature. [See Govt. of India & Ors. vs. Indian Tobacco
Association, (2005) 7 SCC 396.] "The cardinal principle is that statutes
must always be interpreted prospectively, unless the language of the statutes
makes them retrospective, either expressly or by necessary implication. Penal
statutes which create new offences are always prospective, but penal statutes
which create disabilities, though ordinarily interpreted prospectively, are
sometimes interpreted retrospectively when there is a clear intendment that
they are to be applied to past events. The reason why penal statutes are so
construed was stated by Erle, C.J., in Midland Rly. Co. v. Pye, (1861) 10 C.B. NS 179 at p.191 in the
following words:
"Those
whose duty it is to administer the law very properly guard against giving to an
Act of Parliament a retrospective operation, unless the intention of the
legislature that it should be so construed is expressed in clear, plain and
unambiguous language; because it manifestly shocks one's sense of justice that
an act, legal at the time of doing it, should be made unlawful by some new
enactment." This principle has now been recognised by our Constitution and
established as a Constitutional restriction on legislative power." While
construing the beneficial provisions of 428 of the Criminal Procedure Code,
1973 in Boucher Pierre Andre vs. Superintendent, Central Jail, Tihar, New Delhi
& Anr. [(1975) 1 SCC 192], this Court opined:
"This
section, on a plain natural construction of its language, posits for its
applicability a fact situation which is described by the clause "where an
accused person has, on conviction, been sentenced to imprisonment for a
term". There is nothing in this clause which suggests, either expressly or
by necessary implication, that the conviction and sentence must be after the
coming into force of the new Code of Criminal Procedure. The language of the
clause is neutral. It does not refer to any particular point of time when the
accused person should have been convicted and sentenced. It merely indicates a
fact situation which must exist in order to attract the applicability of the
section and this fact situation would be satisfied equally whether an accused
person has been convicted and sentenced before or after the coming into force
of the new Code of Criminal Procedure. Even where an accused person has been
convicted prior to the coming into force of the new Code of Criminal Procedure
but his sentence is still running, it would not be inappropriate to say that
the "accused person has, on conviction, been sentenced to imprisonment for
a term".
Therefore,
where an accused person has been convicted and he is still serving his sentence
at the date when the new Code of Criminal Procedure came into force.
Section
428 would apply and he would be entitled to claim that the period of detention
undergone by him during the investigation, inquiry or trial of the case should
be set off against the term of imprisonment imposed on him and he should be
required to undergo only the remainder of the term.
The
appellant was elected in terms of the provisions of a statute. The right to be
elected was created by a statute and, thus, can be taken away by a statute. It
is now well-settled that when a literal reading of the provision giving
retrospective effect does not produce absurdity or anomaly, the same would not
be construed to be only prospective. The negation is not a rigid rule and
varies with the intention and purport of the legislature, but to apply it in
such a case is a doctrine of fairness. When a law is enacted for the benefit of
the community as a whole, even in the absence of a provision, the statute may
be held to be retrospective in nature. The appellant does not and cannot
question the competence of the legislature in this behalf.
For
the reasons aforementioned, we are of the opinion that the High Court was
correct in its view. We, thus, find no merit in this appeal. It is,
accordingly, dismissed. No costs.
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