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PETITIONER: AMRUTLAL CHUNILAL RAVAL

       Vs.

RESPONDENT: DATTATRAYA PANDURANG HAJARNIS & ORS.

DATE OF JUDGMENT20/11/1980

BENCH: PATHAK, R.S. BENCH: 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 Sate 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

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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]

JUDGMENT:      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,

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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 with      out 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

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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. 271