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IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Acting Chief Justice S.J. Vazifdar
The Hon’ble Mr. Justice Arun Palli
Civil Writ Petition No.15928 of 2014 (O&M)
M/s Harchand Singh Gian Singh
v.
State of Punjab & Ors.
{Decided on 20/05/2016}
We held earlier that the main provision read by itself did not exclude the business undertaken by a licenced firm in a sub-yard, etc--The explanation, however, in terms excludes the same while determining the eligibility of an applicant to be allotted premises in the new grain market--This was a substantive enactment contrary to the original provision. The explanation is not expressly made retrospective--There is nothing in its plain language that makes it retrospective--Nor do we find any reason to hold that it is retrospective by necessary intendment. (Paras 35 & 36)
(B) Interpretation of Statutes--Explanation to provision--An amendment is not always retrospective--It may be prospective or retrospective--If it is merely clarificatory of the original enactment or for the removal of doubts as to any misunderstanding of the original enactment, it would be retrospective--Conversely, if by reason of an explanation, the original provision is curtailed, it cannot be held to be retrospective in operation--This would be so especially where substantive rights of a party are dealt with. (Para 33)
(C) Interpretation of Statutes--Explanation to provision--If an explanation can expand a definition, it can equally restrict it--Where an explanation can widen the scope of the main section and in that event effect must be given to the legislative intent, even though the provision is termed as explanation. (Para 31)
(D) Interpretation of Statutes--Retrospective or prospective applicability of amendment--There is a presumption against retrospective operation of a statute--A statute which affects substantive rights is presumed to be prospective in operation unless it is made retrospective expressly or by necessary intendment--Further, if the enactment is capable of either interpretation. (Para 22)
Mr. S.J. Vazifdar, ACJ.: - One Gian Singh carries on business in the firm name and style of the petitioner and as the sole proprietor thereof.
2. The petitioner has sought a writ of certiorari to quash an order dated 28.04.2014 passed by respondent No.1, an order dated 30.04.2013 and an order dated 18.10.2011 passed by respondent No.3 whereby its claim for the allotment of a plot/shop site in the New Grain Market on a preferential basis has been rejected. The petitioner has also sought a writ of certiorari to quash a notification dated 17.01.2014 by which an explanation to Rule 3(iii) of the Punjab State Agricultural Marketing Board (Sale and Transfer of Plots) Rules, 1999 (hereinafter to be referred to as “the 1999 rules”) has been inserted. The petitioner has sought a consequential order directing the respondents to allot in his favour a shop in the New Grain Market. The petitioner claims to be entitled to a plot/shop in the New Grain Market on the basis of his having been a licensee in the old grain market.
3. The case in brief is this. The petitioner was a licensee in the old grain market, which was de-notified. He also carried on his business from a notified sub-yard. Upon de-notification of the principal market yard, the petitioner claims to be entitled, under a policy of the State of Punjab, to be allotted premises in the New Grain Market. One of the conditions of eligibility for allotment of premises in the New Grain Market was that the licensee should have transacted business of sale and purchase of agricultural produce for an amount not less than Rs.5 lacs per annum during the last three years. The petitioner would be eligible only if his business in the de-notified principal market yard is clubbed with the business transacted at the notified sub-yard. The respondents, however, contend that such clubbing is not permissible while determining the volume of business transacted by the licensee.
4. The first question, therefore, is whether the main part of Rule-3 of the 1999 rules permitted clubbing. We have come to the conclusion that Rule-3 permitted such clubbing.
By an amendment, an explanation was inserted which did not permit clubbing. The second question, therefore, is whether the explanation is retrospective or only prospective. We have come to the conclusion that the explanation is prospective for it affects the substantive rights of parties.
5. A licence dated 09.12.2002 was issued in favour of the petitioner which was valid till 31.03.2005. It was renewed lastly up to 31.03.2011. The licence was issued in respect of several trades including as a merchant, Kacha Arhtia, Arhtia, godown keeper, processor and for sale and purchase. The licence stipulated Shop No.1723, Grain Market, Gidderbaha, as the place of trade.
6. On 10.01.2008, respondent No.2-Punjab State Marketing Board (Punjab Mandi Board) invited applications from licensees of the Old Grain Market for allotment of plot/shop sites in the New Grain Market in accordance with the provisions of the said 1999 rules as amended up to 2008. The petitioner applied for the same. Respondent No.2, by a letter dated 23.05.2011, stated that the petitioner did not fulfil several conditions. The petitioner was afforded an opportunity of replying to this notice which he did by his letter dated 04.06.2011.
7. By an order dated 18.10.2011, passed by respondent No.3-Estate Officer, Punjab Mandi Board, the petitioner was declared ineligible for the allotment of a plot on the ground that the petitioner had not carried on the business of Kacha Arhtia at the Old Grain Market from 10.01.2005 to 09.01.2008 and that the petitioner’s claim of having transacted business of Rs.5 lacs per year during the previous three years at the old market did not tally with the record of the Market Committee. It was held, therefore, that the petitioner did not fulfil the condition of having transacted business of at least Rs.5 lacs per annum for the period of three years preceding the date o
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