IMPORTANT POINT
When a law is enacted for benefit of the community as a whole, even in absence of a provision, statute may be held to be retrospective in nature.

Headnote:Bombay Village Panchayats Act, 1954 — Section 14(1)(J-2) (As amended by Amendment Act w.e.f. 8-8-2003) — Disqualifications — Appellant was elected member of Grampanchayat in year 2000 and was also elected as Sarpanch — Thereafter he was elected as Councillor of Zilla Parishad — He was disqualified to hold said post in view of amendment of Section 14(1) (J-2) of the Act — High Court dismissed writ — Appeal — Act was disqualifying statute and amended provision showed that it was retrospective in effect — When a law as enacted for benefit of community as a whole, even in absence of provision, statute might be held to be retrospective — High Court was correct in its view.
Held : 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 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. (Paras 7 to 9)
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. (Para 12)

JUDGMENT

S.B. Sinha, J. — Leave granted.

2. 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.

3. 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.

4. 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.

5. 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."

6. 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.

7. 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.

8. 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.

9. 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.

10. 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 pr

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2006 Supreme(SC) 668

IMPORTANT POINTWhen a law is enacted for benefit of the community as a whole, even in absence of a provision, statute may be held to be retrospective in nature.

Cases Referred (2)

IMPORTANT POINT
When a law is enacted for benefit of the community as a whole, even in absence of a provision, statute may be held to be retrospective in nature.