Delhi High Court
Centre For Public Interest Litigation vs Union Of India & Ors. on 13 November, 2009
Author: S. Muralidhar
Bench: Chief Justice, S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) No. 8780 of 2009 & CM APPL 6052/09, 8519/09
Reserved on: October 29, 2009
Date of decision: November 13, 2009
CENTRE FOR PUBLIC INTEREST LITIGATION ..... Petitioner
Through: Mr. Prashant Bhushan with
Mr. Vivek Bishnoi, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Parag Tripathi, ASG with
Ms. Alpana Pandey and Mr. D.S. Mahendroo,
Advocate for R-1.
Mr. Prateek Jalan with Ms. Malvika Trivedi,
Advocate for R-2.
Mr. Maninder Singh, Senior Advocate with
Mr. V.K. Rao, Mr. Saket Sikri and Mr. Aaditya
Vyaykumar, Advocates for R-3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
JUDGMENT
S. MURALIDHAR, J.
1. Centre for Public interest Litigation is in this writ petition under Article 226 of the Constitution of India seeking a writ of quo warranto against Mr. Baljeet Singh Lalli, (Respondent No.3) who happens to be the Chief Executive Officer (CEO) of the Prasar Bharati (Broadcasting Corporation of India) (Respondent No.2) („Prasar Bharati‟) and the Executive Member of the Prasar Bharati Board („Board‟). The petition asks for a declaration that WP (Civil) No. 8780 of 2009 Page 1 of 19 Mr.Lalli ceases to hold office. An alternative prayer is for initiation of an enquiry into the functioning of the CEO, for his removal, in terms of Section 7 of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 („Prasar Bharati Act‟) on account of the alleged acts of financial irregularity and gross misconduct. Another alternative prayer is for a direction that the CEO should be allowed to function and exercise powers only to the extent delegated to him by the proposal dated 23 rd March 2009 tabled by a majority of the members of the Board at its meeting and order an independent investigation by a special investigating team appointed by this Court into the allegations of financial irregularity and gross misconduct indulged in by the CEO.
2. By an order dated 12th May 2009 passed by this Court notice of the petition was directed to issue to the Union of India (Respondent No.1), the Prasar Bharati and Mr. Lalli. In its order dated 29th May 2009 this Court recorded the submission of learned counsel for the Respondent No.3 that he would function strictly in accordance with Section 5 of the Prasar Bharati Act and only in accordance with the resolution passed by the Board. Respondent No.3 was directed to convene a meeting of the Board within a period of four weeks. The parties agreed that the proceedings of the Board would be videographed.
3. In the context of allegations and counter-allegations concerning the functioning of the Board, on 27th July 2009 a detailed order was passed by this Court putting in place an interim arrangement for conducting the meetings of the Prasar Bharati Board. The following directions were issued WP (Civil) No. 8780 of 2009 Page 2 of 19 by this Court:
"(a) Minutes of meetings of the Board dated 21.01.2009, 16.02.2009, 23.03.2009, 18.05.2009 and 25.06.2009, as authenticated by the signature of the Chairman, (as they are confirmed by the majority) be implemented forthwith in view of Section 29 of the Act read with Regulation 12 (4) of Regulations 2000.
(b) To ensure that the Resolutions already passed by the Board on 21.01.2009, 16.02.2009, 23.03.2009, 18.05.2009 and 25.06.2009 are implemented, the Executive Member is directed to prepare a compliance report which after being confirmed by the Chairman would be submitted before this Hon‟ble Court within 15 days. In respect of future meetings, similar compliance report be submitted before the Court within 10 days of each meeting.
(c) The Minutes book of the Board be deposited in this Court immediately in view of Regulation 12 of Regulations, 2000.
(d) The next meeting of the Board be fixed within 15 days. The date, time and place of this meeting and all future meetings be fixed by the Executive Member. In order to ensure that there is no further controversy regarding compliance with Regulation 3(1) of the Regulations 2000, written consent of the Chairman be taken prior to notifying the meeting and the agenda will also be circulated in advance. Meetings of the Board be videographed and Mr. Justice J.P. Singh (Retd.) is appointed as an independent observer to submit a report if there is any dispute regarding the minutes circulated by the Chairman in terms of Section 29.
(e) The allegations regarding financial and administrative irregularities etc. are referred to the Central Vigilance Commission for appropriate investigation and report.
(f) Day-to-day functioning would be carried out by three whole time Members, namely, CEO, Member (Finance) and Member (Personnel) jointly in terms of Section 5 and Section 30 of the Act."
4. Aggrieved by the aforesaid order, Mr.Lalli approached the Supreme Court by way of Special Leave Petition (Civil) No. 20550 of 2009. On 24 th August 2009 the Supreme Court passed the following order in the said SLP: WP (Civil) No. 8780 of 2009 Page 3 of 19
"Issue notice.
Learned counsel for respondent Nos. 1 and 2 appears and accepts notice. Issue notice to other respondents.
Heard both sides.
The direction in the impugned order that the allegations regarding the financial and administrative irregularities etc. referred to the Central Vigilance Commission for appropriate investigation to be implemented and the Central Vigilance Commission may conduct an inquiry as directed by the High Court. The Ministry of Information and Broadcasting has also expressed the opinion before the High Court that they are prepared to have a Special Audit in respect of the irregularities allegedly committed by Prasar Bharati and its officers. There are certain directions in the impugned order regarding the implementation of certain resolutions passed by the Board. It is alleged by the Petitioners that some of the resolutions were not passed properly and the majority of the Members have not signed. In view of this allegation, the resolutions which are directed to be implemented by the High Court, may be implemented, if not already implemented, after the Special Audit Team gives its preliminary report regarding the inquiry. The preliminary report may be made available at the earliest at least within a period of six weeks. The day to day functioning of the Prasar Bharati organization shall be done in accordance with the provisions of the Prasar Bharati Act.
In view of this order, directions contained in clause (d) of the impugned order is also stayed."
5. The pleadings in the writ petition being complete in the meanwhile, the writ petition was with the consent of parties heard finally. Relevant facts
6. The facts relevant to the present writ petition are that the Respondent No.3 was appointed as Executive Member of the Board by an order 26th December 2006 issued by the Government of India, Ministry of Information and Broadcasting. The said order reads as under:
"Order WP (Civil) No. 8780 of 2009 Page 4 of 19 In exercise of the powers conferred by Sub- section (1) read with Sub-section (4) of Section 4 of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990, the President on the recommendation of the Selection Committee, is pleased to appoint Shri B.S. Lalli, IAS - 1971 (UP Cadre) as Member (Executive) on Prasar Bharati Board with effect from the date he assumes charge of office.
2. In accordance with Sub-section (2) of Section 6 of Prasar Bharati Act, 1990 the term of office of Shri B.S. Lalli as Member (Executive) will be for a period of six years with effect from the date on which he enters upon his office or until he attains the age of 62 years whichever is earlier. The pay, allowance and other terms and conditions of Shri Lalli‟s appointment will be governed by the provisions of the said Act and the Rules framed thereunder from time to time.
Sd/-
(Vedantam Giri) Deputy Secretary (BA)"
7. Section 6 of the Prasar Bharati Act was amended by the insertion of sub-
section (2A) by the Prasar Bharati (Broadcasting Corporation of India) Amendment Act 2008 („Amendment Act‟) with effect from 28 th March 2008. The Amendment Act replaced the Prasar Bharati (Broadcasting Corporation of India) Amendment Ordinance 2008 which had been promulgated since the Parliament was not in session and since it was felt that Prasar Bharati was to compete with the private electronic media houses as well as to achieve the social objectives, it was felt necessary "to rationalize such matters in order to inject sectoral experience to rejuvenate Prasar Bharati and its Board by undertaking of immediate legislation." The effect of Section 6 (2A) of the Prasar Bharati Act was that the Executive Member of the Board would "hold office for a term of five years from the date on which he enters upon his office and until he attains the age of sixty-five years, whichever is earlier."WP (Civil) No. 8780 of 2009 Page 5 of 19
8. Consequent upon the enactment of Section 6 (2A) of the Prasar Bharati Act, a was issued on 20th April 2009 by the IB Ministry informing the Prasar Bharati that in terms of the Amendment Act "Shri B.S. Lalli shall hold office of Executive Member for a period of five years w.e.f. the date on which he assumed charge of the post or until he attains the age of 65 years whichever is earlier." It is not in dispute that Mr. Lalli completed 62 years on 21st April 2009. If Section 6 (2A) had not been enacted by the Amendment Act, he would have demitted office on that day.
9. Mr. Prashant Bhushan, learned counsel appearing for the Petitioner submitted that in terms of the proviso to Section 6 (2A) of the Prasar Bharati Act, the right of incumbent Executive Member of the Board to hold office for a period of six years stood extinguished. In other words, in the present case Mr. Lalli would not be able to rely upon the order dated 26th December 2006 to claim a right to continue in office till the completion of six years. It is submitted that the obligation of Respondent No.3 to demit office on completing 62 years of age in terms of the unamended Section 6 (2) of the Prasar Bharati Act, was not extinguished by the amendment. In other words, according to Mr. Bhushan, in terms of Section 6 of the General Clauses Act 1897 („GC Act‟) the obligation of Respondent No.3 not to continue beyond the age of 62 years was not affected by sub-section (2A) to Section 6 of the Prasar Bharati Act. Mr. Bhushan submits if the legislative intent was that sub-section (2A) should apply to an incumbent Executive Member, then the wording of the provision ought to have reflected it. For e.g., the wording could read "The Executive Member ...shall hold and continue to hold WP (Civil) No. 8780 of 2009 Page 6 of 19 office for a term of five years from the date on which he enters or has entered upon his office or until he attains the age of sixty-five years whichever is earlier." The absence of such words coupled with the extinguishing of the right of a incumbent to continue beyond five years in terms of the proviso to Section 6 (2A) made it clear that the provision was prospective and applied to persons appointed as Executive Members after the date of the amendment.
10. Mr. Parag Tripathi, learned Additional Solicitor General appeared for the Union of India, Mr. Maninder Singh, learned Senior Counsel on behalf of Mr.Lalli and Mr. Prateek Jalan learned Advocate on behalf of the Prasar Bharati.
12. The Respondents raised a preliminary objection as to the maintainability of the present petition. It is submitted that a quo warranto would issue only when a challenge is laid to the appointment or the continuation a person in a public office in breach of law. Reliance is placed on the judgment of the Supreme Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees Association (2006) 11 SCC 731. It is further submitted that since the continuation of the Respondent No.3 in office was not inconsistent with the amended provision which mandates that the Executive Member "shall hold office" till he completes five years or completes 65 years whichever was earlier and since neither contingency had arisen yet, the continuation of Respondent No.3 as Executive Member of the Board and CEO of Prasar Bharati was not in breach of the law. Consequently, no quo warranto could issue even on merits. WP (Civil) No. 8780 of 2009 Page 7 of 19
13. It is submitted on behalf of the respondents that Section 6 (2A) of the Prasar Bharati Act constitutes a complete code. The proviso mandates that the incumbent shall "cease to hold office" only in the event that his appointment "is inconsistent with the provisions of this sub-section." In other words the ceasing to hold office would result only if the incumbent has already completed the tenure of five years. The very wording of the proviso implied that as long as the incumbent had not completed five years or attained the age of 65 years, whichever is earlier, he would continue in office.
Maintainability of the writ petition
14. The first issue that arises is whether the present petition seeking a writ of quo warranto is maintainable. In The University of Mysore v. C.D. Govinda Rao AIR 1965 SC 491 the Supreme Court explained that a writ of quo warranto would issue if the challenger is able to satisfy the Court that "the office in question is a public office and is held by a usurper without legal authority." That inevitably would "lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not?" In P.L. Lakhanpal v. Ajit Nath Ray AIR 1975 Delhi 66 the above dictum was reiterated by a Full Bench of five judges of this Court. It was held that there are four requisites for a writ of quo warranto to issue: "(1) the office must be held under the State or must have been created by a statute (2) it should be an office of a substantive character, (3) its duties must be of a public nature and (4) it should have been usurped by some person". It was held that the inquiry into the legality of the appointment of a person to a WP (Civil) No. 8780 of 2009 Page 8 of 19 public office would not stop with examining whether the person was qualified to hold such office. "The inquiry extends to ascertainment of the fact whether the holder of the office has been appointed in accordance with law or not." It was further observed that "if the law requires that the appointment is to be made after fulfilling certain conditions, and if such conditions are incapable of being fulfilled there is no option or alternative but to issue a writ of quo warranto." In B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees Association(supra) the Supreme Court referred to the decision in Statesman (P) Ltd. v. H.R.Deb AIR 1968 SC 1495 and held that "unless there is a clear infringement of the law" no writ of quo warranto could issue.
15. As far as the present case is concerned, three of the four criteria spelt out in P.L. Lakhanpal are satisfied. The post of Executive Member of the Board is created by statute; it is a post of substantive character and the duties of that office as spelt out under Section 5 of the Prasar Bharati Act. Section 12 specifies the functions and powers of the Prasar Bharati which have to be carried out by the Board of which the Member Executive (who in terms of Section 6 is the CEO) is a key official. There can be no doubt that the duties of that post are of a public nature
16. The fourth requirement for issuing a writ of quo warranto is that the office of Executive Member should have been usurped by the person appointed or continuing in office. This warrants an examination whether the continuation of Respondent No.3 as an Executive Member of the Board beyond 20th April 2009, is in accordance with law. WP (Civil) No. 8780 of 2009 Page 9 of 19 Legality of the continuation of Respondent No.3 as Executive Member
17. Section 2 (j) of the Prasar Bharati Act defines the Executive Member to be the Executive Member appointed under Section 4 of the Prasar Bharati Act. Under Section 3 (1) Prasar Bharati stands constituted by the Central Government as a statutory Corporation. Section 3 (4) states that the general superintendence, direction and management of the affairs of the Prasar Bharati shall vest in the Board which may exercise all such powers and do all such acts and things. Under Section 3 (5) the Board shall consist of
(a) a Chairman;
(b) one Executive Member;
(c) one Member (Finance);
(d) one Member (Personnel);
(e) six Part-time Members;
(f) Director-General (Akashvani), ex officio;
(g) Director-General (Doordarshan), ex officio;
(h) one representative of the Union Ministry of Information and Broadcasting, to be nominated by that Ministry and
(i) two representatives of the employees of the Corporation, of whom one shall be elected by the engineering staff from amongst themselves and one shall be elected by the other employees from amongst themselves."
18. The terms and conditions of the appointment of Chairman and other Members of the Board are set out in Section 4 of the Prasar Bharati Act which reads as under:
"4. Appointment of Chairman and other Members - (1) The Chairman and the other members, except the ex officio Members, the Nominated Member and the elected Members shall be appointed by the President of India on the recommendation of a Committee consisting of -
(a) the Chairman of the Council of States, WP (Civil) No. 8780 of 2009 Page 10 of 19 who shall be the Chairman of the committee;
(b) the Chairman of the Press Council of India established under Section 4 of the Press Council Act, 1978 (37 of 1978); and
(c) one nominee of the President of India.
(2) No appointment of a Member shall be invalidated merely by reason of any vacancy in, or any defect in the constitution of, the committee appointed under sub-section (1), (3) The Chairman and the Part-time Members shall be persons of eminence in public life; the Executive Member shall be a person having special knowledge or practical experience in respect of such matters as administration, management, broadcasting, education, literature, culture, arts, music, dramatics or journalism, the Member (Finance) shall be a person having special knowledge or practical experience in respect of financial matters and the Member (Personnel) shall be a person having special knowledge or practical experience in respect of personnel management and administration.
(4) The recommendations made by the committee constituted under sub-section (1) shall be binding for the purposes of appointment under this section."
The powers and functions of an Executive Member are set out in Section 5 of the Prasar Bharati Act which reads as under:
"5. Powers and functions of Executive Member
- The Executive Member shall be the Chief Executive of the Corporation and shall, subject to the control and supervision of the Board, exercise such powers and discharge such functions of the Board as it may delegate to him."
19. Section 6 of the Prasar Bharati Act prior to the Amendment Act read as under:
"6. Term of office, conditions of service, etc., of Chairman and Other Members - (1) The WP (Civil) No. 8780 of 2009 Page 11 of 19 Chairman shall be Part time Member and shall hold office for a term of six years from the date on which he enters upon his office.
(2) The Executive Member, the Member (Finance) and the Member (Personnel) shall be Whole time Members and every such Member shall hold office for a term of six years from the date on which he enters upon his office or until he attains the age of sixty two years, whichever is earlier.
(3) The term of office of Part time Members shall be six years, but one-third of such Members shall retire on the expiration of every second year.
(4) The term of office of an elected Member shall be two years or till he ceases to be an employee of the Corporation, whichever is earlier.
(5) As soon as may be after the establishment of the Corporation, the President of India may, by order, make such provision as he thinks fit for curtailing the term of office of some of the Part time Members then appointed in order that one-
third of the members holding office as such part-
time Members shall retire in every second year thereafter.
(6) Where before the expiry of the term of office of a person holding the office of Chairman, or any other member, a vacancy arises, for any reason whatsoever, such vacancy shall be deemed to be a casual vacancy and the person appointed or elected to fill such vacancy shall hold office for the unexpired period of the term for which his predecessor in office would have held office if such vacancy had not arisen.
(7) The Whole-time Members shall be the employees of the Corporation and as such shall be entitled to such salaries and allowances and shall be subject to such conditions of service in respect of leave, pension (if any), provident fund and other matters as may be prescribed;
Provided that the salaries and allowances and the conditions of service shall not be varied to their disadvantage after their appointment.
(8) The Chairman and Part Time Members shall be entitled to such allowances as may be prescribed." WP (Civil) No. 8780 of 2009 Page 12 of 19
20. The possible reasons that weighed with the government when it proposed the legislative change by the insertion of sub-section (2A) in Section 6 are discernible from the following statement made by the Minister while tabling the Bill preceding the Amendment Act:
"Mr. Deputy Speaker, Sir, the Prasar Bharati (Broadcasting Corporation of India) Act 1990 come into force on 15 September 1997. For the purpose of general superintendence, direction and management of the Corporation, sub-section (4) of 3 of the said Act has provided for constitution of a Prasar Bharati Board which exercises all such powers and do all such acts and thing as may be exercised or done by the Corporation under the Act. Sub-section (5) of Section 3 of the Act provided that among other members of the Board, it shall also have a Chairman who is also a part time member of the Board.
The Chairman holds office for a term of six years from the date on which he enters upon this office. The Act does not provide for upper age limit for the Chairman is stipulated for the Whole-time Members of the Board. A Whole-time Member of Prasar Bharati Board holds office for a term of six years from the date on which he enters upon his office or until he attains the age of sixty-two years, whichever is earlier. There is already an upper age limit cap for the Whole-time Members namely, Chief Executive Officer, and Executive Member, Member (Personnel) and Member (Finance). Therefore, it is felt that in the case of Chairman also an upper age limit of seventy years may be fixed to ensure appointment of comparatively younger talent and experience. It is also felt that reducing the tenure of Chairman from the present six to three years shall help to bring diversity of experience at the top level for the benefit of the organization. Similarly need is also being felt for change in the tenure and upper age limit of the Chief Executive Officer from six to five years and from sixty two years to sixty five years respectively.
The Prasar Bharati has to compete with the private electronic media houses as well as to achieve the social objectives entrusted upon it by the Act of Parliament in letter and spirit. It is being felt necessary to rationalize such matters in order to inject sectoral experience to rejuvenate Prasar Bharati and its Board by undertaking of immediate legislation.
Since the Parliament was not in Session and in view of the urgency explained above, it became necessary to give WP (Civil) No. 8780 of 2009 Page 13 of 19 effect to the above proposal through an Ordinance. Therefore, President under Article 123 (1) of the Constitution of India promulgated the Prasar Bharati (Broadcasting Corporation of India) Amendment Ordinance, 2008 on 7th February 2008."
21. The Bill was passed into the Amendment Act by the Parliament which received the assent of the President on 28th March 2008. Section 2 and 3 of the Amendment Act read as under:
"2. In section 6 of the Prasar Bharati (Broadcasting Corporation of India) Act 1990
(a) for sub-section (l) the following shall be substituted namely, (1) The Chairman shall be Part-time Member and shall hold office for a term of six years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier.
Provided that any person holding office as a Chairman immediately before the commencement of the Prasar Bharati (Broadcasting Corporation of India) Amendment Act 2008, shall in so far as his appointment is inconsistent with the provisions of this sub-section, cease to hold office on such commencement as such Chairman and shall not be entitled to any compensation because of his ceasing to hold such office.
(b) in sub-section (2), the words "The Executive Member" shall be omitted.
(c) after sub-section (2), the following shall be inserted, namely-
„(2A) The Executive Member shall be a Whole-time Member and shall hold office for a term of five years from the date on which he enters upon his office and until he attains the age of sixty-five years, whichever is earlier. Provided that any person holding office as an Executive Member immediately before the commencement of the Prasar Bharati (Broadcasting Corporation of India) Amendment Act 2008, shall, in so far as his appointment is inconsistent with the provisions of this sub-section, cease to hold office on such commencement as such Executive Member and shall not be entitled to any compensation because of his ceasing to hold such office.‟ WP (Civil) No. 8780 of 2009 Page 14 of 19
3. (1) The Prasar Bharati (Broadcasting Corporation of India) Amendment Ordinance 2008, is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 as amended by the said Ordinance, shall be deemed to have been done or taken under the said Act, as amended by this Act."
22. A comparison of the unamended Section 6 (2)with Section 6 (2A) of the Prasar Bharati Act shows that the terms and conditions of appointment of the Executive Member now stands separated from that applicable to the Finance Member and Member Personnel which continue to be governed by Section 6 (2) of the Prasar Bharati Act. For the Executive Member a new scheme has been introduced under Section 6 (2A) of the Prasar Bharati Act. This is consistent with the Executive Member, who in terms of Section 5 is the Chief Executive of Prasar Bharati, holding a position distinctly different from other members of the Board. While earlier the Executive Member could be appointed for a total tenure of six years or till he attains the age of 62 years, whichever is earlier, under Section 6 (2A) of the Prasar Bharati Act he is to hold office for a term of five years from the date on which he enters office upon his office or until he attains the age of sixty years, whichever is earlier. Essentially the appointment of the Executive Member whether under Section 6 of the Prasar Bharati Act prior to the amendment, or under Section 6 (2A) of the Prasar Bharati Act as amended by the Amendment Act is a tenure appointment. A reference to the outer age limit of 62 years under the unamended provision and 65 years under the Amendment Act is only to specify the outer limit of the tenure. Under Section 6 (2A) the tenure of the Executive Member is shortened to five years.
WP (Civil) No. 8780 of 2009 Page 15 of 19
23. Section 6 (2A), insofar as the terms and conditions of an Executive Member of the Board is concerned, is a provision that „repeals‟, as it were, Section 6 (2) in its applicability to an Executive Member. The proviso to Section 6 (2A) specifies the circumstance under which an incumbent Executive Member ceases to hold office. The question is whether the proviso exhausts the scope of „savings‟ and „repeal‟ vis-à-vis the amendment or can Section 6 GC Act be said to apply as regards preserving the obligation of the incumbent to demit office on attaining 62 years. For answering this question, we may first examine the law as explained in the judgments of the Supreme Court.
24. In Indira Sohanlal v. Custodian of Evacuee Property, Delhi AIR 1956 SC 77 the Supreme Court explained that where the repealing section of the fresh enactment which purports to indicate the effect of the repeal on previous matters, provides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self contained and indicative of the intention to exclude the application of Section 6 of the GC Act. The Supreme Court referred to its earlier decision in State of Punjab v. Mohar Singh AIR 1955 SC 84 wherein it was observed that Section 6 of the GC Act would be applicable even where there is a repeal of enactment followed by a fresh legislation "unless the new legislation manifests an intention incompatible with or contrary to the provisions of the Section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law......." WP (Civil) No. 8780 of 2009 Page 16 of 19
25. In Kolhapur Canesugar Works Limited v. Union of India (2000) 2 SCC 536 the Supreme Court explained in para 37 as under:
"37. The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute-book as completely as if it had never been passed and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6 (1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision."
26. In Gammon India Limited v. Special Chief Secretary (2006) 3 SCC 354 the above position was reiterated. It was explained that "a clear legislative intention of the re-enacted enactment has to be inferred and gathered as to whether it intended to preserve all the rights and liabilities of the repealed statute intact or to modify or obliterate them altogether." WP (Civil) No. 8780 of 2009 Page 17 of 19
27. The law as explained in the above decisions is that if the legislative intent as regards the applicability of the new provision to previously concluded transactions is unambiguously manifest, then no recourse need be had to Section 6 of the GC Act for that purpose.
28. Turning to the case on hand, although the learned counsel for the petitioner is right in contending that there are no express words in Section 6 (2A) to indicate that the said provision applies to incumbents as well, the legislative intent of the applicability of Section 6 (2A) to an incumbent Executive Member is apparent on reading the provision as a whole, i.e., along with its proviso. The proviso exhausts what is either „repealed‟ or „saved‟ by the amendment. What stands abrogated is the right of the incumbent Executive Member to continue in office beyond the period of five years and insist that he should be allowed to complete the tenure of six years in terms of the unamended Section 6 (2). The proviso further implies that the continuation of the incumbent is permitted as long as such continuation is not inconsistent with the amended provision, i.e. with Section 6 (2A). The position that emerges is that an incumbent Executive Member, who on the date of the amendment has completed five years but has not yet attained 65 years, would have had to demit office forthwith. It is not possible for him to contend that since at the time he was appointed Section 6 (2) of the Prasar Bharati Act applied, he should be permitted to continue in office for six years. Also, if he has not yet completed five years he can continue in office till he so does or attains 65 years whichever is earlier.
29. In the present case the continuation of Mr. Lalli in office after 20 th April WP (Civil) No. 8780 of 2009 Page 18 of 19 2009 is not inconsistent with Section 6 (2A). On the date of coming into force of the amended provision, Mr.Lalli had not completed five years of tenure. He did not complete it even on 20th April 2009 when he completed 62 years. Therefore as long as Mr.Lalli did not complete five years as Executive Member, or attain 65 years whichever earlier, his continuation as Executive Member and CEO Prasar Bharati was not in breach of the Section 6 (2A) of the Prasar Bharati Act.
30. For all the aforesaid reasons it is not possible to accept the prayer of the Petitioner for issuance of a writ of quo warranto to challenge the continuation of Respondent No.3 as CEO, Prasar Bharati beyond 20 th April 2009. It is needless to say that in terms of Section 6 (2A) Respondent No.3 shall cease to hold the post of Executive Member upon completing five years or completing 65 years of age, whichever is earlier.
31. As regards the prayer in the writ petition for a direction to the CBI, this Court has in its interim order dated 27th July 2009 referred the matter to the CVC for investigation. Therefore, no further directions are called for.
32. For all the aforesaid reasons there is no merit in the writ petition and it is dismissed as such. The pending applications are disposed of.
S. MURALIDHAR, J CHIEF JUSITCE NOVEMBER 13, 2009 rk WP (Civil) No. 8780 of 2009 Page 19 of 19