SUPREME COURT OF INDIA
Vijay
Vs
State of Maharashtra and Others
Appeal (Civil) 3164 of 2006 (Arising Out of Slp (C) No. 25219 of 2004)
(S. B. Sinha and Dalveer Bhandari, JJ)
26.07.2006
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 Councilor 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 there against 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 :
"14. Disqualifications - (1) 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, .]
"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. , 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.