2004 Supreme(SC) 1265

2004(7) Supreme 385
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
R.C. Lahoti, CJI, G.P. Mathur & P.K. Balasubramanyan, JJ.
Zile Singh -Appellant
versus
State of Haryana & Ors. -Respondents
Civil Appeal No. 6638/2004
(Arising out of SLP (C) No. 459/2004)
Decided on 7-10-2004
Counsel for the Parties :
For the Appellant : Gian Singh, S.M. Hooda and Mrs. Santosh Singh, Advocates.
For the Respondents : Neeraj Kumar Jain, Ugra Shankar Pd., and Ms. Kavita Wadia, Advocates.

IMPORTANT POINT
The Second Amendment of 1994 to Haryana Municipal Act 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.

Headnote:(i) Haryana Municipal Act, 1973-Section 13A as inserted by Haryana Municipal (Amendment) Act, 1994-Haryana Municipal (Second Amendment) Act, 1994-Section 2 amending Section 13A of the Act-Disqualification for membership of a person having more than two living children-First Amendment spelled out a disqualification effective from 5.4.1994-Second Amendment Act substituting the word after by the word upto -Computation of period of one year under the proviso from the date of coming into force of the First Amendment Act 3 of 1994-Whether second amendment is retrospective in operation-(Yes).

       Held : 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 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. (Para 13)

       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 principles of interpretation of statutes. (Para 22)

       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 - if not read down - 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 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. (Para 26)

       (ii) Haryana Municipal Act, 1973-Section 13A as inserted by Haryana Municipal (Amendment) Act, 1994-Haryana Municipal (Second Amendment) Act, 1994-Section 2 amending Section 13A of the Act-Disqualification for membership of a person having more than two living children-Appellant having three living children when his first wife died in April, 1991-Appellant married second wife in July, 1991-Out of second marriage, two children were born to appellant, a daughter born in April 1992 and a son born in August 1995-Appellant was holding office of a member of Municipality-Complaint filed against appellant alleging that on a child having been born after 5.4.1995, i.e. one year after the commencement of First Amendment Act, appellant had incurred disqualification for holding office of member-State Election Commission, Haryana found the appellant having incurred the disqualification within the meaning of Section 13A(1)(c) of the Act-Disqualification notified-Appeal-Whether decision of the High Court upholding order of Election Commission is justified-(Yes).

       Held : 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 - "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 next of First Amendment ever since the date of commencement of the First Amendment, i.e., April 5, 1994. (Para 27)

       (iii) INTERPRETATION OF STATUTES-Presumption against retrospective operation-No fixed formula for expression of legislative intent to give retrospectivity to an enactment-Absence of a provision expressly giving a retrospective operation to the legislation is not determinative of its prospectivity or restrospectivity.

       Held : The presumption against retrospective operation is not applicable to declaratory statutes.... 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... An 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. (Para 14)