TMI Blog2004 (10) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... palities. 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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, 39 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference 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 if not read down would have been declared void ..... X X X X Extracts X X X X X X X X Extracts X X X X
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