Holding

The amendment to Section 14(1)(J‑2) is retrospective; disqualifying provisions may operate retrospectively, and the appellant is disqualified.

Summary

Vijay was elected a member of a Grampanchayat in 2000 and later elected as a Councillor of the Zilla Parishad. An amendment to Section 14(1)(J‑2) of the Bombay Village Panchayats Act, 1958, effective 8 August 2003, disqualified any person who had been elected as a Councillor of the Zilla Parishad from continuing as a Panchayat member. The Collector, the Additional Divisional Commissioner and the High Court held Vijay disqualified, which he challenged on the ground that the amendment was prospective and could not affect his vested right to remain a Panchayat member. The Supreme Court held that a disqualifying provision may be given retrospective effect where the language shows a clear legislative intent, and that the amendment was expressly intended to operate retrospectively, covering both future and sitting members. Consequently, Vijay’s disqualification was upheld and the appeal was dismissed.

Issues considered

Whether the amendment to Section 14(1)(J‑2) of the Bombay Village Panchayats Act, 1958 is prospective or retrospective in effect.
Whether a disqualifying statutory provision can be applied retrospectively despite the general rule of prospective construction.
Whether the appellant’s vested right to continue as a Panchayat member is protected from retrospective disqualification.

Subjects

disqualificationretrospective effectstatutory interpretationPanchayatvested rightprospective constructiondual office holding73rd Constitutional Amendment

Judgment

VIJAY A
v.
ST ATE OF MAHARASHTRA AND ORS.

JULY 26, 2006

[S.B. SINHA AND DALVEER BHANDARI, JJ.] B

Panchayats :

• Bombay Village Panchayats Act, 1958
c
Section /4(/)(J-2)-Member of Panchayat subsequently elected as
councillor-Held: He is disqualified from holding the post of member by
virtue of amendment to Section 14(/)(J-2)

Section /4(I)(J-2)-Amended provision-Whether prospective or
retrospective in effect-Held: Plain reading of the amended provision clearly D
shows that it was intended by legislature to have retrospective effect-Thus,
bar created to hold the post of member of Panchayat would bring within its
purview not only those persons who would be members of Panchayat in future
but also those who were sitting members.

Interpretation of Statutes :
E

Statute-Prospective or retrospective effect-General rule is that statute
is construed to have prospective effect-However, if from perusal of statute,
intendment of legislature is clear, the Court will give effect thereto-For the
said purpose, the general scope of the statute is relevant. F
.J
Appellant had been elected member of Panchayat on 27.12.2000.
Thereafter he was elected as Councillor of Zila Parishad. The Collector
held him disqualified to hold the post of member of Panchayat in view of
amendment of S.14(l}(J-2) of Bombay Village Panchayats Act, 1958. An
appeal before Commissioner and thereafter Writ Petition before High G
Court were dismissed. Hence the present appeal.

Appellant contended that Section 14(l)(J-2) of the Act is prospective
in nature a_nd thus, the concerned respondents as also the High Court acted
illegally and without jurisdiction in arriving at a finding that the appellant
81 H.
82 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A stood disqualified.

Dismissing the appeal, the Court

HELD: I.I. Ordinarily a statute is construed to have prospective
effect, but the same rule does not apply to a disqualifying provision. The
13 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
C retrospective in nature. 184-H; 85-A-BI •

1.2. 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. 184-EI

D 2.1. The amendment of S.14(1)(J-2) of Bombay Village Panchayats
Act, 1958 came into force with effect from 8.8.2003. It is a disqualifying
provision. A plain reading of the amended provision clearly shows that it
was intended by legislature to have retrospective effect. The legislative
policy emanating from the aforesaid provision, is absolutely clear and
E unambiguous. By introducing the said provision, the legislature, 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. 184-C-D-G-HI

2.2. In the instant case it is stated expressly that the amendment
F 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 futurv.
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
G also those who were continuing to hold the post. 184-FI

<Jvvt. of India & Ors. v. Indian Tobacco Association, 120051 7 SCC 396,
relied on.

...
Boucher Pierre Andre v. Superintendent, Central Jail, Tihar, New Delhi
H & Anr, 1197511sec192, referred to.
VIJAYv. STATE OF MAHARASHTRA [SINHA, J.) 83
3. The appellant was elected in terms of the provisions of a statute. A
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 B
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. (86-D-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3164 of2006.
c
From the Judgment and Order and dated 27.10.2004 of the High Court
of Judicature of Bombay, Bench at Aurangabad in Writ Petition No. 5033/
2004
D
Sanjay V. Kharde and Chandan Ramamurthi for the Appellant.

Sushil Karanjkar and Aniruddha P. Mayee for the Respondents.

The Judgment of the Cou11 was delivered by

S.B. SINHA, J. Leave granted. E

The appellant herein was elected as a member ofGrampanchayat 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, F
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, G

- 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(\)(J-2) of the Act is prospective
in nature and thus, the concerned respondents as also the High Court acted H
84 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 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-( I) No person shall be a member of a
B 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."
c 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.
D 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
E 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
F 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
G 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
H statute is construed to have prospective effect, but the same rule does not
Vl.lAYv. STATE OF MAHARASHTRA [SINHA, J.] 85
apply to a disqualifying provision. The inhibition against retrospective A
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. v. Indian B
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 C
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) I 0 C.B. NS 179 at p. 191 in the
following words: D
"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 shou Id 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 E
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 F
Procedure Code, 1973 in Boucher Pierre Andre v. Superintendent, Central
Jail, Tihar, New Delhi and Anr., [ 1975] I 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 G
to imprisonment for a term". There is nothing in this clause which
suggests, either expressly or by necessary implication, that the
conviction and senttmce 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 H
86 SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.

A 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
B 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
C 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 tenn of imprisonment imposed on him and he should be required
to undergo only the remainder of the term.

D 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
E 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.

p 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.

D.G. Appeal dismissed.