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CASE NO.: Appeal (civil)  3164 of 2006

PETITIONER: Vijay

RESPONDENT: State of Maharashtra & Ors

DATE OF JUDGMENT: 26/07/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (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 :

"14.    Disqualifications - (1) No person shall be a  member of a Panchayat, or continue as such, who :

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(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

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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

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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.