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CASE NO.: Appeal (civil)  6638 of 2004

PETITIONER: Zile Singh

RESPONDENT: State of Haryana & Ors.

DATE OF JUDGMENT: 07/10/2004

BENCH: CJI. R.C. Lahoti,  G.P. Mathur & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

(Arising out of S.L.P  (c) No.459/2004)

R.C. Lahoti, CJI

Leave granted.  

Haryana Municipal Act, 1973 (hereinafter, the Principal Act,  for short) is a State enactment dealing with local self-government  through the municipalities.  Chapter III of the said Act deals with  composition of municipalities.  The Haryana Municipal (Amendment)  Act, 1994 (Act No.3 of 1994) inserted Section 13A in Chapter III of  the Principal Act which provision reads as under :- "13A.  Disqualification for membership.  (1) A person shall be disqualified for being  chosen as and for being a member of a  municipality __  

               xxx             xxx             xxx  

(c)     if he has more than two living  children :

Provided that a person having more than  two children on or after the expiry of one  year of the commencement of this Act,  shall not be deemed to be disqualified".

       xxx             xxx             xxx"

       The Amendment Act received the assent of the Governor of  Haryana on the 1st April, 1994 which was published in the Haryana  Gazette, (Extraordinary), Legislative Supplement, Part I, dated April  5, 1994 and on that date the Amendment Act came into force.  The  amendment spelled out a disqualification effective from 5.4.1994 on  a person for being a member of municipality either by election or by  continuing to hold the office  even if elected prior to the date of  coming into force of the Amendment Act.  The substantive provision  contained in clause (c)  abovesaid spelling out the disqualification is   explicit and specific.  However, the proviso appended to clause (c)  turned out to be a trouble-maker on account of its faulty drafting.   Anomalous consequences verging on absurdity flew from the  proviso.  While a person having more than two living children on 5th  April, 1994 became disqualified for being a member of municipality  on that day and the disqualification continued to operate for a  period of one year calculated from 5th April, 1994 yet on the expiry  of the period of one year the disqualification ceased to operate.   

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Meaning thereby that the legislative embargo imposed on a person  from procreating and giving birth to a third child in the context of  holding the office of a member of municipality remained in  operation for a period of one year only and thereafter it was lifted.   Even those who became disqualified on 5.4.1994, the  disqualification ceased to operate and they became qualified once  again to contest the election and hold the office of member of a  municipality on the expiry of one year from 5.4.1994.  Obviously,  this is not what the Legislature intended.

It took more than six months for the State Legislature to  realize its error.  The Haryana Municipal (Second Amendment) Act,  1994 (Act No.15 of 1994) was enacted by the Legislature which  received the assent of the Governor of Haryana on 3rd October,  1994 published in Haryana Gazette (Extraordinary) dated 4th  October, 1994.  Section 2 of the Second Amendment reads as  under :-

"2.     In the proviso to clause (c) of sub- section (1) of section 13A of the Haryana  Municipal Act, 1973 (hereinafter called  the principal Act), for the word "after",  the word "upto" shall be substituted."

The Second Amendment brought the text of the relevant part  of Section 13A in conformity with the legislative intent which  prevailed behind the preceding amendment, that is, the First  Amendment.

Zile Singh, the appellant was married with one Om Pati in  April 1970. The couple had three living children when  Om Pati died  in April 1991.  The appellant then married one Sunita on 20.7.1991.   Out of the latter marriage, two children were born to the appellant  __ a daughter, Puja born in  April 1992 and a son Gaurav born on  13.8.1995.  The appellant was holding the office of member of  Municipality.  One Nafe Singh filed a complaint against the appellant  bringing it to the notice of the State Government that on a child  having been born after 5th April, 1995, i.e., one year after the  commencement of the First Amendment Act, the appellant had  incurred disqualification for holding the office of member.  Clause  (f) of sub-section (1) of Section 14 of the Principal Act confers  power on the State Government to remove by notification any  member of a committee if he has, since his election or nomination  become subject to any disqualification which, if it had existed at the  time of his election or nomination, would have rendered him  ineligible under any law for the time being in force relating to the  qualifications of candidates for election or nomination or if it  appears that he was, at the time of his election or nomination  subject to any such disqualification.  The factum of the birth of  Gaurav on 13.8.1995 is not disputed though the appellant  contended that Gaurav was given away in adoption on 10.9.1995.   The State  Election  Commission, Haryana which is the competent  authority found the appellant having incurred the disqualification  within the meaning of Section 13A(1)(c).  The disqualification was   notified.

Feeling aggrieved the appellant filed a writ petition in the  High Court which has been dismissed.  This is an appeal by special  leave.

At the very outset we may state that the retrospectivity  in  operation of the text as amended by the Second Amendment came  up for the consideration of a two-Judges Bench of this Court in   Sunil Kumar Rana Vs. State of Haryana and Ors. \026 (2003) 2

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SCC 628.  This court held that the legislative intent to compute the  period of one year under the proviso is from the "commencement of  this Act" meaning thereby from the date of coming into force of  Haryana Act 3 of 1994 and not Haryana Act 15 of 1994 which  merely substituted the word "after" by the word "upto".  The result  of the substitution was to read the provision as amended by the  word ordered to be substituted.  The Court held __  "The legislature  seems to have realized the need for substitution on becoming  aware of the anomalies and absurdities to which the provision  without such substitution may lead to, even resulting, at times, in  repugnancy with the main provision and virtually defeating the  intention of the legislature.  The modification of the provision, as  carried out by the substitution ordered, when found to be needed  and necessitated to implement effectively the legislative intention  and to prevent a social mischief against which the provision is  directed, a purposive construction is a must and the only inevitable  solution.  The right to contest to an office of a member of a  municipal body is the creature of statute and not a constitutional or  fundamental right."

In spite of the issue posed for decision before us being  squarely covered by the abovesaid decisions, the learned counsel  for the appellant does not feel satisfied.  In his humble submission  Sunil Kumar Rana’s case (supra), which is two-judges Bench  decision, was not correctly decided and hence needs a  reconsideration and an over-ruling thereafter.  In view of the  submission so made and forcefully pressed, we proceed to examine  and deal with the pleas raised before us independently of the  holding in Sunil Kumar Rana’s case (supra).  

The constitutional validity of ’two child norm’ as legislatively  prescribed, and a departure therefrom resulting in attracting  applicability of disqualification for holding an elective office, has  been upheld by this Court as intra vires the Constitution repelling  all possible objections founded on very many grounds in  Javed  and Ors. Vs. State of Haryana and Ors. \026 (2003) 8 SCC 369.   This Court has also held that the disqualification is attracted no  sooner a third child is born and is living after two living children and  merely because the couple has parted with one child by giving it  away in adoption, the disqualification does not come to an end.   However, the present case poses a different issue.  

According to the appellant, the disqualification imposed by  Section 13A (1)(c) of the First Amendment remained in operation  only for a period of one year and would have in ordinary course  ceased to operate  on the expiry of the period of one year from  April 5, 1994.  The citizens were justified in arranging their affairs  including the enlargement of their families keeping in view the  provision of law as it stood.  However, the Second Amendment Act  effective from 14.10.1994 made a difference.  On that day, the  Legislature specifically provided that a person having more than  two children on or after the expiry of one year shall stand  disqualified.  This period of one year, in the submission of the  appellant, should be calculated from 4.10.1994 and not 5.4.1994  and if that be done the birth of the child on 13.8.1995 would not  attract the disqualification.

This plea of the appellant raises a few interesting questions,  such as, the nature of amendment, i.e., whether it is at all  retrospective in operation, and if not, whether the provision as  amended by the Second Amendment applies to the appellant.

It is a cardinal principle of construction that every statute is  prima facie prospective unless it is expressly or by necessary  implication made to have a retrospective operation.  But the rule in

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general is applicable where the object of the statute is to affect  vested rights or to impose new burdens or to impair existing  obligations.  Unless there are words in the statute sufficient to show  the intention of the Legislature to affect existing rights, it is deemed  to be prospective only ’nova constitutio  futuris formam imponere  debet non praeteritis’ __ a new law ought to regulate what is to  follow, not the past.  (See : Principles of Statutory Interpretation by  Justice G.P. Singh, Ninth Edition, 2004 at p.438).  It is not  necessary that an express provision be made to make a statute  retrospective and the presumption against retrospectivity may be  rebutted by necessary implication especially in a case where the  new law is made to cure an acknowledged evil for the benefit of the  community as a whole. (ibid, p.440)

The presumption against retrospective operation is not  applicable to declaratory statutes\005\005.In determining, therefore, the  nature of the Act, regard must be had to the substance rather than  to the form.  If a new Act is ’to explain’ an earlier Act, it would be  without object unless construed retrospective.  An explanatory Act  is generally passed to supply an obvious omission or to clear up  doubts as to the meaning of the previous Act.  It is well settled that  if a statute is curative or merely declaratory of the previous law  retrospective operation is generally intended\005\005\005An amending Act  may be purely declaratory  to clear a meaning of a provision of the  principal Act which was already implicit.  A clarificatory  amendment  of this nature will have  retrospective effect. (ibid, pp.468-469).

       Though retrospectivity is not to be presumed and rather there  is presumption against retrospectivity,  according to Craies (Statute  Law, Seventh Edition), it is open for the legislature to enact laws  having retrospective operation.  This can be achieved by express  enactment or by necessary implication from the language  employed.  If it is a necessary implication from the language  employed that the legislature intended a particular section to have  a retrospective operation, the Courts will give it such an operation.   In the absence of a retrospective operation having been expressly  given, the Courts may be called upon to construe the provisions  and answer the question whether the legislature had sufficiently  expressed that intention giving the Statute retrospectivity.  Four  factors are suggested as relevant:  (i) general scope and purview of  the statute; (ii) the remedy sought to be applied; (iii) the former  state of the law; and (iv) what it was the legislature contemplated  (p.388). The rule against retrospectivity does not extend to protect  from the effect of a repeal, a privilege which did not amount to  accrued right (p.392).

       Where a Statute is passed for the purpose of supplying an  obvious omission in a former statute or to ’explain’ a former  statute, the subsequent statute has relation back to the time when  the prior Act was passed.  The rule against retrospectivity is  inapplicable to such legislations as are explanatory and declaratory  in nature.  The classic illustration is the case of Att. Gen. Vs.  Pougett ([1816] 2 Price 381, 392).  By a Customs Act of 1873 (53  Geo. 3, c. 33) a duty was imposed upon hides of 9s. 4d., but the  Act omitted to state that it was to be 9s. 4d. per cwt., and to  remedy this omission another Customs Act (53 Geo. 3, c. 105) was  passed later in the same year.  Between the passing of these two  Acts some hides were exported, and it was contended that they  were not liable to pay the duty of 9s. 4d. per cwt., but Thomson  C.B., in giving judgment for the Attorney-General, said: "The duty  in this instance was in fact imposed by the first Act, but the gross  mistake of the omission of the weight for which the sum expressed  was to have been payable occasioned the amendment made by the  subsequent Act, but that had reference to the former statute as  soon as it passed, and they must be taken together as if they were

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one and the same Act." (p.395).   Maxwell states in his work on Interpretation of Statutes,  (Twelfth Edition) that the rule against retrospective operation is a  presumption only, and as such it "may be overcome, not only by  express words in the Act but also by circumstances sufficiently  strong to displace it." (p.225).  If the dominant intention of the  legislature can be clearly and doubtlessly spelt out, the inhibition  contained in the rule against perpetuity becomes of doubtful  applicability as the "inhibition of the rule" is a matter of degree  which would "vary secundum materiam" (p.226). Sometimes,  where the sense of the statute demands it or where there has been  an obvious mistake in drafting, a court will be prepared to  substitute another word or phrase for that which actually appears in  the text of the Act (p.231).                  In a recent decision of this Court in National Agricultural  Cooperative Marketing Federation of India Ltd. And Another  Vs. Union of India and Others, (2003) 5 SCC 23, it has been  held that there is no fixed formula for the expression of legislative  intent to give retrospectivity to an enactment.  Every legislation  whether prospective or retrospective has to be subjected to the  question of legislative competence.  The retrospectivity is liable to  be decided on a few touchstones such as : (i) the words used must  expressly provide or clearly imply retrospective operation; (ii) the  retrospectivity must be reasonable and not excessive or harsh,  otherwise it runs the risk of being struck down as unconstitutional;  (iii) where the legislation is introduced to overcome a   judicial  decision, the power cannot be used to subvert the decision without  removing the statutory basis of the decision.  There is no fixed  formula for the expression of legislative intent to give  retrospectivity to an enactment.  A validating clause coupled with a  substantive statutory change is only one of the methods to leave  actions unsustainable under the unamended statute, undisturbed.   Consequently, the absence of a validating clause would not by itself  affect the retrospective operation of the statutory provision, if such  retrospectivity is otherwise apparent.

       The Constitution Bench in Shyam Sunder & Ors. Vs. Ram  Kumar & Anr., (2001) 8 SCC 24, has held ___ "Ordinarily when an  enactment declares the previous law, it requires to be given  retroactive effect.  The function of a declaratory statute is to supply  an omission or explain previous statute and when such an Act is  passed, it comes into effect when the previous enactment was  passed.  The legislative power to enact law includes the power to  declare what was the previous law and when such a declaratory Act  is passed invariably it has been held to be retrospective.  Mere  absence of use of word ’declaration’ in an Act explaining what was  the law before may not appear to be a declaratory Act but if the  Court finds an Act as declaratory or explanatory it has to be  construed as retrospective." (p. 2487).

       In The Bengal Immunity Company Ltd. Vs. The State of  Bihar & Ors., [1955] 2 SCR 603, Heydon’s case (3 Co. Rep.7a;  76 E.R.637) was cited with approval.  Their Lordships have said ___  

       "It is a sound rule of construction of a  statute firmly established in England as far  back as 1584 when Heydon’s case was decided  that ___"\005\005for the sure and true interpretation  of all Statutes in general (be they penal or  beneficial, restrictive or enlarging of the  common law) four things are to be discerned  and considered:-

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       1st.    What was the common law before  the making of the Act.

       2nd.    What was the mischief and defect  for which the common law did not provide.,

       3rd.    What remedy the Parliament hath  resolved and appointed to cure the disease of  the Commonwealth., and

       4th.    The true reason of the remedy;  and then the office of all the judges is always  to make such construction as shall suppress  the mischief, and advance the remedy, and to  suppress subtle inventions and evasions for  continuance of the mischief, and pro privato  commodo, and to add force and life to the cure  and remedy, according to the true intent of the  makers of the Act, pro bono publico"."

In Allied Motors (P) Ltd. Vs. Commissioner of Income- tax, Delhi, (1997) 3 SCC 472, certain unintended consequences  flew from a provision enacted by the Parliament.  There was an  obvious omission.  In order to cure the defect, a proviso was sought  to be introduced through an amendment.  The Court held that  literal construction was liable to be avoided if it defeated the  manifest object and purpose of the Act.  The rule of reasonable  interpretation should apply.  "A proviso which is inserted to remedy  unintended consequences and to make the provision workable, a  proviso which supplies an obvious omission in the section and is  required to be read into the section to give the section a reasonable  interpretation, requires to be treated as retrospective in operation  so that a reasonable interpretation can be given to the section as a  whole."  

The State Legislature of Haryana intended to impose a  disqualification with effect from 5.4.1994 and that was done.  Any  person having more than two living children was disqualified on and  from that day for being a member of municipality.  However, while  enacting a proviso by way of an exception carving out a fact- situation from the operation of the newly introduced disqualification  the draftsman’s folly caused the creation of trouble.  A simplistic  reading of the text of the proviso spelled out a consequence which  the Legislature had never intended and could not have intended.  It  is true that the Second Amendment does not expressly give the  amendment a retrospective operation.  The absence of a provision  expressly giving a retrospective operation to the legislation is not  determinative of its prospectivity or retrospectivity.  Intrinsic  evidence may be available to show that the amendment was  necessarily intended to have the retrospective effect and if the  Court can unhesitatingly conclude in favour of retrospectivity, the  Court would not hesitate in giving the Act that operation unless  prevented from doing so by any mandate contained in law or an  established principle of interpretation of statutes.

The text of Section 2 of the Second Amendment Act provides  for the word "upto" being substituted for the word "after".  What is  the meaning and effect of the expression employed therein \026 "shall  be substituted".

The substitution of one text for the other pre-existing text is  one of the known and well-recognised practices employed in  legislative drafting.  ’Substitution’ has to be distinguished from  ’supersession’ or a mere repeal of an existing provision.

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Substitution of a provision results in repeal of the earlier  provision and its replacement by the new provision (See Principles  of  Statutory Interpretation, ibid, p.565). If any authority is needed  in support of the proposition, it is to be found in West U.P. Sugar  Mills Assn. and Ors. Vs. State of U.P. and Ors. \026(2002) 2 SCC  645, State of Rajasthan Vs. Mangilal Pindwal \026 (1996) 5 SCC  60, Koteswar Vittal Kamath Vs. K. Rangappa Baliga and Co. \026  (1969) 1 SCC 255 and A.L.V.R.S.T. Veerappa Chettiar Vs. S.  Michael & Ors. \026 AIR 1963 SC 933.  In West U.P. Sugar Mills  Association and Ors.’s case (supra) a three-Judges Bench of this  Court held that the State Government by substituting the new rule  in place of the old one never intended to keep alive the old rule.   Having regard to the totality of the circumstances centering around  the issue the Court held that the substitution had the effect of just  deleting the old rule and making the new rule operative.  In  Mangilal Pindwal’s case (supra) this Court upheld the legislative  practice of an amendment by substitution being incorporated in the  text of a statute which had ceased to exist and held that the  substitution would have the effect of amending the operation of law  during the period in which it was in force.  In Koteswar’s case  (supra) a three-Judges Bench of this Court emphasized  the  distinction between ’supersession’ of a rule and ’substitution’  of a  rule and held that the process of substitution consists of two steps :  first, the old rule is made to cease to exist and, next, the new rule  is brought into existence in its place.

In Javed (supra) it was held that the right to contest an  election is neither a fundamental right nor a common law right.  It  is a right conferred by a statute.  The statute which confers the  right to contest an election can also provide for the necessary  qualifications and disqualifications for holding an elective office.   The bar by way of disqualification created against holding the office  of a member of a municipality by clause (c) of sub-section (1) of  Section 13A was absolute.  Merely because a disqualification is  imposed by reference to certain facts which are referable to a date  prior to the enactment of disqualification, the Act does not become  retrospective in operation.  No vested right was taken away.  The  First Amendment was not a piece of legislation having any  retrospectivity.  However, the legislature thought that it would be  more reasonable if the disqualification was not applied by reference  to a child born within a period of one year from the date of  commencement of the Act.  The period of one year was appointed  keeping in view the period of gestation which is two hundred and  eighty days as incorporated in Section 112 of the Indian Evidence  Act of 1872 and added to it a little more margin of eighty five days.   The proviso spells out this meaning but for the error in drafting.   Even if there would have been no amendment (as introduced by the  Second Amendment Act) the proviso as it originally stood, if  subjected to judicial scrutiny, would have been so interpreted and  the word ’after’ would have been read as ’upto’ or assigned that  meaning so as to carry out the legislative intent and not to make a  capital out of the draftsman’s folly.  Or, the proviso \026 if not read  down \026 would have been declared void and struck down as being  arbitrary and discriminatory inasmuch as the persons having more  than two living children on the date of enactment of the Act and  within one year thereafter and the persons having more than two  living children after the date of one year could not have formed two  classes capable of being distinguished on a well defined criterion so  as to fulfill the purpose sought to be achieved by the legislature.   However, the legislature got wiser by realizing its draftsman’s  mistake and stepped in by substituting the mistaken word ’after’ by  the correct word ’upto’ which should have been there since very  beginning.   In our opinion the Second Amendment is declaratory in  nature.  It alters the text of the First Amendment in such manner

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as to remove the obvious absurdity therefrom and brings it in  conformity with what the Legislature had really intended to provide.  It explains and removes the obvious error and clarifies what the law  always was and shall remain to be.  The Second Amendment would  operate retrospectively from the date of the First Amendment and  in giving such operation no mandate of any law or principle is  violated.  Else, the evil sought to be curbed continues to exist for  some period contrary to legislative intent.   The application of rule  against retrospectivity stands excepted from Second Amendment  Act.  

In Javed (supra) the Court has been at pains to point out  how the growth of population of India was alarming and posed a  menace to be checked.  It was in national interest to check the  growth of population by casting disincentives even through  legislation.  The First Amendment Act targets the evil and seeks to  cure it.  The legislative competence of the State is not disputed.   Thus, keeping in view the general scope and purview of the statute,  the remedy sought to be applied, the former state of law, the  legislative intent and the employment of the expression \026 "for the  word ’after’ the word ’upto’ shall be substituted" in the text of the  Second Amendment, we have no doubt in our mind that the Second  Amendment has the effect of amending the text of First  Amendment ever since the date of commencement of the First  Amendment, i.e., April 5, 1994.

We hold that Sunil Kumar Rana’s case has been correctly  decided.  It does not call for any reconsideration.  The appeal is  wholly devoid of any merit and the same is dismissed.  The decision  by the High Court is maintained.