TMI Blog2016 (10) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, declare a decision of the court as erroneous or a nullity, but can amend the statute or the provision so as to make it applicable to the past. The legislature has the power to rectify, through an amendment, a defect in law noticed in the enactment and even highlighted in the decision of the court. This plenary power to bring the statute in conformity with the legislative intent and correct the flaw pointed out by the court, can have a curative and neutralizing effect. When such a correction is made, the purpose behind the same is not to overrule the decision of the court or encroach upon the judicial turf, but simply enact a fresh law with retrospective effect to alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded. This does not amount to statutory overruling by the legislature. In this manner, the earlier decision of the court becomes non-existent and unenforceable for interpretation of the new legislation. No doubt, the new legislation can be tested and challenged on its own merits and on the question whether the legislature possesses the competence to legislate on the subject matter in question, but not on the ground o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 6(1) read with Sub-sections (1) and (2) of the Section 5 of the Act constituted the Agricultural Market Committee, Kubeer, Adilabad District with one B. Chandra Shekar as Chairman and others as members. It was mentioned that the said B. Chandra Shekar was nominated as Chairman and one D. Dattaram as Vice-Chairman and 16 others as members. Similar notifications were issued in respect of other Agricultural Market Committees vide notifications dated 04.03.2013, 31.08.2013, 18.11.2013, 27.11.2013 and after such nomination the persons who were nominated as Chairman, Vice-Chairman and members continued in their respective assignments. 4. On 02.06.2014 the State of Telangana was carved out of erstwhile State of Andhra Pradesh and the statehood came into effect from the said date by virtue of Andhra Pradesh Reorganization Act, 2014 [Act 6 of 2014] (hereinafter referred to as The Reorganization Act ). After formation of the new State the Governor of Telangana promulgated Ordinance No. 1 of 2014 to amend the Act and by virtue of the said Ordinance Section 5 of the Act underwent two major changes. The total number of members in the market committee was reduced from 18 to 14 and the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and Director of Agricultural Marketing, Telangana, Hyderabad is directed to appoint a person or persons with immediate effect to exercise the powers and perform the functions of each Market Committee until the Market Committee is re-constituted in accordance with the provisions of Section 5 of the Telangana (Agricultural Produce and Livestock) Markets Act, 1966 as amended by an Ordinance in the 3rd read above. 2. The Commissioner and Director of Agricultural Marketing, Telangana, Hyderabad shall take further necessary action in the matter accordingly. 7. The Ordinance and the consequent order passed on that basis were challenged in a batch of Writ Petitions being Writ Petition No. 24877 of 2014 and connected matters before the High Court. The High Court came to hold that the removal of all of the Petitioners vide clause-3 by way of legislative action was discriminatory as future appointees in the office of the members, Vice-Chairmen and Chairmen were liable to be removed or denuded of their power under the existing provisions as provided Under Sections 5, 6, 6(A) 6(B) of the said Act whereas the writ Petitioners were sought to be removed prematurely taking away the proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and each of them shall be restored to their respective positions. We accordingly direct the Government to do so forthwith. 9. After the judgment of the High Court in Writ Petition No. 24877 of 2014 and connected matters, the Government of Telangana issued Ordinance No. 1 of 2015 dated 13.02.2015 to amend Section 5 of the Act. The Ordinance was challenged before the High Court which issued notice and directed status quo to be maintained with regard to functioning of the market committee. In due course, the Amendment Act No. 5 of 2015 came into force. The said Amendment Act is called the Telangana (Agricultural Produce Livestock) Markets (Amendment) Act, 2015. The said Amendment Act has been made retrospective with effect from 01.01.2012. The Amendment Act amends Sections 5, 5A, 6, 11, 22 and 33. It also adds a validating provision. The High Court in a tabular form has referred to the statutory scheme under the principal Act of 1966 and the Amendment Act. We think it appropriate to refer to the relevant provisions of the principal Act and the Amendment Act. Section 5(1) of the principal Act provided that every market committee shall consist of eighteen members and shall be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g him an opportunity for explanation, and the said notification shall contain a statement of the reasons of the Government for the action taken. (6) Any person removed under Sub-section (5) from the office of Chairman or Vice-Chairman shall be ineligible for appointment to either of the said offices, until the date of next reconstitution of the market committee under Sub-section (1) of Section 6. (7) Any other member of a market committee may, at any time, be removed from office by the Government for such reasons and after such inquiry, as may be prescribed. 11. Section 6 of the principal Act provided thus: Section 6. Reconstitution of the Market Committee: (1) The Government shall reconstitute the market committee on the expiration of the term of office of the members of the market committee or of the term as extended under Sub-section (2). (2) The Government may extend the term of office of the members of a market committee for a period not exceeding one year: Provided that no such extension shall be given for a period exceeding six months at a time. (3)(a) Where, for any reason, there is delay in the constitution or reconstitution of the market committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) In Sub-section (2), for the word appointed , occurring at two places, the word nominated shall be substituted; (3) for Sub-section (3) along with the first proviso thereunder, the following shall be substituted, namely- (3) Save as otherwise provided in this Act, the term of office of the members nominated under Sub-section (1) shall be one year from the date of nomination; Provided that a member nominated under Clause (ii) of Sub-section (1) shall cease to hold office, if he/she ceases to be a trader. (4) in Sub-section (6), for the word appointment , the word nomination shall be substituted. (5) in Sub-section (9), for the word appointed the word nominated shall be substituted; (6) in Sub-section (10), for the word appointment , the word nominated shall be substituted; (7) after Sub-section (10), the following Sub-section shall be inserted, namely- (11) Notwithstanding anything contained in any provisions of this Act, members of the Committee including the Chairman and Vice-Chairman shall hold the office during the pleasure of the Government. 14. Certain amendments have been made in Section 6 of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the initial stage which is as follows: Whether the Legislature while making an enactment can flout the constitutional provisions and that the retrospective operation of Amendment Act from the date even before the State of Telangana was formed stands to scrutiny of constitution provisions. 18. It was also urged that reducing the term of the market committee was not only an unreasonable act but also against the judgment rendered by the High Court on the previous occasion inasmuch as the provision relating to validation has not removed the base of the judgment. 19. On behalf of the State, it was argued before the High Court that in the absence of challenge to the competence of the State Legislature, the Petitioners' submissions were not acceptable. As regards competence of the legislature, it was also urged that Telangana State Legislature is competent to make law on the subject in question and is entitled to make amendments to all the Acts in vogue in the composite State. It was canvassed on behalf of the State that an amendment to the existing law with retrospective effect would not be unconstitutional. As regards comparison drawn between the market committee and spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this date. In other words, the legislature of one of the States seeks to amend a law passed by the composite State. This argument entirely misunderstands the position of the original Act after the reorganisation. That Act applied now as an independent Act to each of the areas and is subject to the legislative competence of the legislature in that area. The Act has been amended in the new States in relation to the area of that State and it is inconceivable that this could not be within the competence. If the argument were accepted then the Act would remain unamendable unless the composite State came into existence once more. The scheme of the States Reorganization Acts makes the laws applicable to the new areas until superseded, amended or altered by the appropriate legislature in the new States. This is what the legislature has done and there is nothing that can be said against such amendment. The aforesaid passage makes it clear as crystal that after the legislature came into existence, it has the competence to enact any law retrospectively or prospectively within the constitutional parameters. 24. The second issue that emanates for consideration is whether the base of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Government took over the management of Coking Coal Mines and the said mines remained under the management of the Central Government through the custodian during the period from 17.10.1971 to 30.04.1972. The Coking Coal Mines (Nationalisation) Act, 1972 came into force w.e.f. 1.5.1972, and the right, title and interest of the owners in relation to Coking Coal Mines stood transferred to and vested absolutely in the Central Government free from all encumbrances. The provisions of the said Act were challenged before this Court in the case of Tara Prasad Singh and Ors. v. Union of India and Ors.: (1980) 4 SCC 179 and the Constitution Bench upheld the validity of the said Act. The writ Petitioner before the High Court making a grievance that the Custodian had debited the expenses for raising the coal while the Coking Coal Mine was under the Management of the Custodian but had not credited the price for the quantity of the coal raised, which was lying in stock on the date prior to the date the said Coal Mine vested under the Central Government. The High Court allowed the writ petition and a direction was issued that account be recast and payment be made to the Petitioner. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with Section 19, it has to be held that Respondents are not required to take into account the stock of coke lying on the date prior to the appointed day, for the purpose of accounting during the period when the mine in question was under the management of the Central Government, because it shall be deemed that the compensation awarded to the Petitioner included the price for such coal lying in stock on the date prior to the appointed day. Neither any compensation is to be paid for such stock of coal nor the price thereof is to be taken into account for the purpose of Sub-section (1) of Section 22 of the Coking Coal Mines (Nationalisation) Act, 1972. Being of this view, the Court dismissed the writ petition. 27. In State of Himachal Pradesh v. Narain Singh: (2009) 13 SCC 165 while dealing with the validation of statute the Court ruled that: It is therefore clear where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation. 28. To arrive at the said conclusion, the two-Judge Bench repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new legislation can be tested and challenged on its own merits and on the question whether the legislature possesses the competence to legislate on the subject matter in question, but not on the ground of over-reach or colourable legislation. 30. Once we hold that the legislature has the power to enact the law as per its wisdom, and that too with retrospective effect, the contention that the enactment is a colourable exercise, must fail and should be rejected. In Dharam Dutt and Ors. v. Union of India and Ors. : (2004) 1 SCC 712, the Court has highlighted that the doctrine of colourable legislation does not involve any question of bona fide or mala fides on the part of the legislature. The whole doctrine revolves itself into the question of the competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really inconsequential, unless they in the amended incarnation invite the frown of any Article of the Constitution. 31. Having so stated, it is to be scrutinized whether the base of earlier judgment has been removed. The High Court in its earlier judgment had struck down th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not elected. They were not appointed by any kind of selection. They were chosen by the State Government from certain categories. The status of the members have been changed by amending the word appointed by substituting it with the word nominated . Thus, the legislature has retrospectively changed the meaning. In our considered opinion, by virtue of the amendment, the term which has been reduced for a nominated member stands on a different footing. In Om Narain Agarwal and Ors. v. Nagar Palika, Shahjahanpur and Ors. : (1993) 2 SCC 242 it has been held that if an appointment has been made initially by nomination, there can be no violation of any provision of the Constitution in case the legislature authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place. It is because the nominated members do not have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member. The Court further observed that such provision neither offends any Article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution. 32. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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