Madhya Pradesh High Court
Amit Nougariya vs Rani Durgawati Vishwavidyalaya on 4 December, 2018
1
W. P. No. 23667/2018
HIGH COURT OF MADHYA PRADESH
W. P. No. 23667/ 2018
(Amit Nougariya
Vs.
Rani Durgavati Vishwavidyalaya & Another)
JABALPUR; Dated: 04/12/2018
Shri Niranjan Pathak, learned counsel for the
petitioner.
Shri V. P. Tiwari, learned counsel for respondent
No.1.
The petitioner, who is pursuing a three years' L.L.B. course in the respondent No.2 College affiliated to the respondent No.1 University, has filed this petition being aggrieved by the fact that the result of his final semester examination has been withheld as he has failed in aggregate in the fifth semester. The petitioner in this petition has also alleged that he has passed all the six semesters examination including the final semester examination, but his result has not been declared by the respondent authorities and has been withheld as the aggregate of the fifth and sixth semester has not been taken into consideration, which is contrary to the provisions of Ordinance 111 of 2008-09 of the respondent University.
It is submitted that according to Clause-XIX, paragraph 4 of Ordinance 111, the aggregate has to be adjudged on yearly basis and in case, the petitioner's aggregate is adjudged on yearly basis, he would get 2 W. P. No. 23667/2018 more than 48% marks in the third year and would therefore, be entitled for declaration of the result. It is stated that the respondents instead of determining the aggregate marks on yearly basis, have done so semester- wise contrary to the Ordinance 111 and in such circumstances, may be directed to reassess the aggregate marks of the petitioner and declare him passed.
It is further submitted that this Court in the case of Ankit Shrivastava Vs. Rani Durgavati Vishwavidyalaya & Another [W.P. No.66/2013 decided on 15.01.2013] and Ku. Urmila Maravi Vs. State of M.P. & Others [W.P. No.19232/2011 decided on 10.01.2014] has already held that in view of Clause- XIX Paragraph-4 of the Ordinance 111, aggregate has to be adjudged on yearly basis and not on semester basis and in such circumstance, the act of the respondents is contrary to law and deserves to be quashed.
The respondents have filed a return and has stated that subsequent to the orders passed by this Court in the cases of Ankit Shrivastava (supra) and Ku. Urmila Maravi (supra), the respondent authorities found that there was a typographical mistake in Clause-XIX Paragraph-4 of Ordinance 111 and has therefore, issued a clarificatory amendment clearly stating that the word 'year' mentioned in Clause-XIX paragraph-4 of Ordinance 111 was a typographical mistake, which is 3 W. P. No. 23667/2018 hereby corrected and amended and replaced by the word 'semester'. The respondents have filed the aforesaid clarificatory amendment as Annexure-R/1/2 along with the return and has stated that in view of the aforesaid clarification, which would come into operation from the date of issuance of the original Ordinance, the petitioner's aggregate has to be adjudged on semester basis. It is submitted that on adjudging the petitioner's aggregate on semester basis, the petitioner has obtained less than 48% marks and therefore, his result has been withheld and has not been declared as it is mandatory for a student to obtain 48% aggregate marks in each semester for the purposes of passing in the concerned semester.
The learned counsel appearing for the petitioner in reply submits that the amendment made by the respondents in the Ordinance would apply prospectively and would not come into operation from the year 2008 itself and in such circumstances, the amended Ordinance cannot be applied to the case of the petitioner for the purposes of declaring the petitioner fail. It is stated that it is a settled law that any amendment is presumed to be prospective unless and until it is specifically declared to have retrospective operation.
We have heard the learned counsel for the parties at length and have also perused the orders passed by 4 W. P. No. 23667/2018 this Court in the cases of Ankit Shrivastava (supra) and Ku. Urmila Maravi (supra). Apparently, in both the aforesaid Writ Petitions, the clarificatory amendment issued by the respondent University vide Annexure- R/1/2 dated 03.01.2018 was not under consideration mainly because these Writ Petitions were decided prior to coming into existence of the clarificatory amendment issued by the respondents. In such circumstances, this Court is required to adjudge the petitioner's case on the basis of the clarificatory amendment including the issue as to it's retrospective applicability.
The law in regard to retrospective applicability of clarificatory/declaratory amendments has been clearly laid-down in the case of Zile Singh Vs. State of Haryana & Others [(2004) 8 SCC 1], wherein the Supreme Court has held as under:-
"14. 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 retrospectively. 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. (ibid, pp.468-469).
15. Though retrospectivity is not to be 5 W. P. No. 23667/2018 presumed and rather there is presumption against retrospectivity, according to Craies (Statute Law, 7th Edn.), it is open for the legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication 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).
16. 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. A classic illustration is the case of Attorney General Vs. Pougett [(1816) 2 Price 381] (Price at p.392). By a Customs Act of 1873 (53 Geo. 3, c. 33) a duty was imposed upon hides of 9s 4d, but the Act omitted to state that it was to be 9s 4d per cwt., and to remedy this omission another Customs Act (53 Geo. 3, c.
105) was passed later in the same year. Between the passing of these two Acts some hides were exported, and it was contended that they were not liable to pay the duty of 9s 4d per cwt., but Thomson, C.B., in giving judgment for the Attorney General, said: (ER p. 134) 6 W. P. No. 23667/2018 "The duty in this instance was, in fact, imposed by the first Act; but the gross mistake of the omission of the weight, for which the sum expressed was to have been payable, occasioned the amendment made by the subsequent Act;
but that had reference to the former statute as soon as it passed, and they must be taken together as if they were one and the same Act;"
(Price at p.392).
17. Maxwell states in his work on Interpretation of Statutes, (12th Edn.) that the rule against retrospective operation is a presumption only, and as such it "may be overcome, not only by express words in the Act but also by circumstances sufficiently strong to displace it." (p.225). If the dominant intention of the legislature can be clearly and doubtlessly spelt out, the inhibition contained in the rule against perpetuity becomes of doubtful applicability as the "inhibition of the rule" is a matter of degree which would "vary secundum materiam" (p.226). Sometimes, where the sense of the statute demands it or where there has been an obvious mistake in drafting, a court will be prepared to substitute another word or phrase for that which actually appears in the text of the Act (p.231).
18. In a recent decision of this Court in National Agricultural Coop. Marketing Federation of India Ltd. v. Union of India [(2003) 5 SCC 23], it has been held that there is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. Every legislation whether prospective or retrospective has to be subjected to the question of legislative competence. The retrospectivity is liable to be decided on a few touchstones such as: (i) the words used must expressly provide or clearly imply retrospective operation; (ii) the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional; (iii) 7 W. P. No. 23667/2018 where the legislation is introduced 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.
19. The Constitution Bench in Shyam Sunder v. Ram Kumar [(2001) 8 SCC 24], has held: (SCC p.49, para 39) "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 to explain a 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 an Act explaining what was the law before may not appear to be a declaratory Act but if the Court finds an Act as declaratory or explanatory, it has to be construed as retrospective." (p. 2487).
20. In Bengal Immunity Co. Ltd. v. State of Bihar [(1955) 2 SCR 603], Heydon's case [(1584) 3 Co Rep 7a] was cited with approval. Their Lordships have said: (SCR pp.632-33) "It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case was decided that-
'... for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the 8 W. P. No. 23667/2018 common law) four things are to be discerned and considered-
1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy Parliament hath resolved and appointed to cure the disease of the Commonwealth, and 4th. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.'"
21. In Allied Motors (P) Ltd. v. CIT, (1997) 3 SCC 472, certain unintended consequences flowed from a provision enacted by Parliament. There was an obvious omission. In order to cure the defect, a proviso was sought to be introduced through an amendment. The Court held that literal construction was liable to be avoided if it defeated the manifest object and purpose of the Act. The rule of reasonable interpretation should apply.
"A proviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole." (SCC pp.479-80, para 13)
22. The State Legislature of Haryana intended to impose a disqualification with effect from 5-4- 1995 and that was done. Any person having 9 W. P. No. 23667/2018 more than two living children was disqualified on and from the 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 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 aforesaid decision in the case of Zile Singh (supra) has been relied upon and quoted with profit by the Supreme Court in the cases of Commissioner of Income Tax I, Ahmedabad vs. Gold Coin Health Food Pvt. Ltd., (2008) 9 SCC 622 and State of Bihar and others vs. Ramesh Prasad Verma (dead), (2017) 5 SCC
665. From a perusal of original Ordinance as well as the clarificatory amendment, it is apparent that the University has specifically stated that the word 'year' has been mentioned in Clause-XIX paragraph-4 of Ordinance 111 on account of a typographical mistake and therefore, for the purposes of correcting the 10 W. P. No. 23667/2018 typographical mistake, the Ordinance is amended and the word 'year' is substituted by the word 'semester'.
Having perused the original Ordinance as well as the clarificatory amendment, we are also of the considered opinion that on a conjoint reading of various clauses of paragraph-4 of the Ordinance 111, it is apparent that it is necessary for a student to pass each semester before he can be permitted to progress further in the course and therefore, the word 'year' mentioned in Clause-XIX is in conflict with the word 'semester' mentioned and used in all the other clauses and in fact, renders most of the paragraph-4 of the Ordinance 111 otiose. As the Ordinance specifically provides that the course shall consist of six 'semesters' and not three 'years' and also makes it mandatory for the student to pass each 'semester' and not 'year', it would defeat the very purpose and object of the semester system if the student would be adjudged pass or fail only on yearly aggregate and not semester wise.
It is for this reason that the authorities have corrected the typographical error that had crept into the Ordinance by issuing the amendment which is apparently clarificatory in nature and would therefore come into force from the date of the original Ordinance as it satisfies all the four tests laid down by the Supreme Court in the case of Zile Singh (supra).
11 W. P. No. 23667/2018In such circumstances, we are of the considered opinion that the amendment sought to be made by the respondent University is a clarificatory amendment and would apply retrospectively from the date of promulgation of the original Ordinance and would also apply to the petitioner's case.
It is, however, observed that the Ordinance in question was promulgated and brought into force by the authorities in the year 2008-09 and thereafter, in view of the orders passed by this Court in cases of Ankit Shrivastava (supra) and Ku. Urmila Maravi (supra), the University has assessed the students by determining their aggregate marks on yearly basis. It is an admitted fact that even in the case of the petitioner, the said system was adopted for all previous years.
In such circumstances, while we do not agree with the learned counsel for the petitioner in respect of prospective operation of the clarificatory amendment, we are however constrained to direct that as a one-time measure, the petitioner would be permitted to appear and pass the fifth semester examination for the purposes of improving his aggregate as a one-time opportunity only and in case the petitioner is successfully able to do so, the respondent authorities shall thereafter take that into consideration and then, declare the result. In case the petitioner fails again, no further relief or chance would be available to him.
12 W. P. No. 23667/2018With the aforesaid directions and observations, the petition filed by the petitioner is disposed of.
It is however, made clear that the directions and observations made by this Court is a one-time measure and has been issued keeping the extra-ordinary circumstances in mind and therefore, shall not be treated as a precedent or cited as such under any circumstances in any other case.
Accordingly, the present petition stands disposed of in the above terms.
Certified Copy as per rules.
(R. S. JHA) (SANJAY DWIVEDI)
JUDGE JUDGE
mms/-