Allahabad High Court
Anuj Kumar And Another vs State Of U.P. And 3 Others on 28 February, 2023
Bench: Sunita Agarwal, Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 39
Case :- WRIT - C No. - 31153 of 2022
Petitioner :- Anuj Kumar And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Sunil Kumar Singh,Awadhesh Kumar Malviya
Counsel for Respondent :- CSC,Atiqur Rahman Siddiqui
Alongwith
WRIC No.31384 of 2022, WRIC No. 27551 of 2022,
WRIC No. 31489 of 2022, WRIC No.32115 of 2022,
WRIC No. 32094 of 2022, WRIC No.31285 of 2022
Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Vipin Chandra Dixit,J.
1. Heard Sri Navin Sinha learned Senior Advocate assisted by Sri Saiful Islam Siddiqui and Ms. Tahira Kazmi, Sri Rakesh Pandey, learned Senior Advocate assisted by Sri Ramesh Chandra Tiwari and Sri G.K. Singh, learned Senior Advocate assisted by Sri Sunil Kumar Singh, learned counsels appearing for the petitioners; Sri Ajit Kumar Singh, learned Additional Advocate General assisted by Sri Sudhanshu Srivastava, learned Additional Chief Standing Counsel on behalf of the State and Sri Ashok Khare, learned Senior Advocate assisted by Sri K.S. Kushwaha and Sri B.K. Shukla, Sri Sanjeev Kumar Tyagi, Sri Prabhakar Dubey, Sri A.R. Siddiqui, learned counsels appearing for the private-respondents
2. In this batch of writ petition, a common question arises about the applicability of the amendment brought by the Ordinance No.8 of 2022, in Section 15 (13) of U.P. Kshettra Panchayat and Zila Panchayat Act, 1961, (in short as 'the Act' 1961') whereby the period of "one year" prescribed therein has been substituted to "two years". The said amendment has been enforced on 04.10.2022 and published in the official gazette dated 06.10.2022. In all the connected matters, the application to make the motion of No Confidence was received by the District Magistrate/Collector concerned, in accordance with sub-section (2) of Section 15 and the date to convene the meeting for consideration of the motion had been fixed prior to the enforcement of the amendment. But before the motion could be tabled, due to the amendment brought by the Ordinance in Sub-Section (13) of Section 15, the Collector concerned passed individual orders that the motion cannot be carried out in view of the amendments. The motion of No-Confidencce were, thus, cancelled.
3. Challenging the said action of the Collector concerned, it was argued by Sri Navin Sinha learned Senior Counsel that the application to make a motion of No-Confidence was duly received by the Collector. The date of the meeting was intimated to the elected members, the meeting was adjourned for one or other reasons and before the date fixed for the adjourned meeting, the amendment by way of Ordinance No.8 of 2022 has been brought into force. The date of enforcement of the ordinance is 04.10.2022. The elected members, who moved the motion of No-Confidence have a right to bring the said motion. The requirements of Section 15 (2) and (3) to carry out the motion of No-Confidence had been fulfilled, summary enquiry by the Collector concerned had been concluded, the right accrued to the elected members to carry out No-Confidence motion after the scrutiny of the notice of intention in writing, in the form prescribed under the rule framed under the 1961 Act, cannot be taken away. The Ordinance No.8 of 2022 does not express intention to make the substituted provisions retrospective. The repeal/substitution of sub-section (13) of Section 15 can only be given prospective effect. Section 6(c) of the General Clauses Act' 1897 has been pressed before us to submit that where any statutory provisions/Act or regulation is repealed by any enactment made, unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued, or incurred under the enactment so repealed. It was argued that the right to bring No-Confidence Motion by elected members has been accrued in their favour with the steps taken by them in exercise of their right. The applications moved by the elected members before the repeal of the old provisions/enactment of new provisions is the expression of No-Confidence which has to be brought to its logical end by convening a meeting for the purpose.
4. The aid of the decision of the Apex Court in Isha Valimohamed & another Vs. V. Haji Gulam Mohamad & Haji Dad Trust1; Bansidhar & others Vs. State of Rajasthan & others2 has been taken, to place the effect of the repeal in view of Section 6 of the General Clauses Act, to assert that an accrued right would survive the repeal of that enactment as the right accrued are saved unless they are taken away expressly.
5. It was argued that it would have been another case, had the right conferred upon the members by Section 15 to bring No-Confidence Motion not been exercised and the repeal was made effective. Even otherwise, it is held in a catena of decisions of this Court that the provisions of Section 15 (3) of the Act' 1961 are mandatory in nature, the Collector has no option but to fix a meeting to carry out No-Confidence Motion, after scrutiny of the written notice of intention, delivered to him in accordance with sub-section (2) of Section 15. The Full Bench decision in Vikas Trivedi & others Vs. State of U.P. & others3 has been relied to substantiate the said submissions. It was argued that the Collector could not have withheld the motion brought by the elected members or cancel the same on account of changes in the then existing laws.
6. Sri Rakesh Pande learned Senior Advocate adding to the submission of Sri Navin Sinha, learned Senior Counsel would argue that the No-Confidence Motion in the cases before us was moved by the elected members after one year of assumption of office of the Pramukh, Kshettra Panchayat. The motion was brought in accordance with sub-section (2) of Section 15, the meeting fixed by the Collector was postponed, the old provisions providing period of 'one year' has been substituted wef 04.10.2022 by an ordinance which was notified on 06.10.2022. It is a case of substitution of the old provisions and not a case of repeal or saving. The normal rule is that the substituted provisions are to be considered prospective in nature; retrospectivity by implication is only an exception. Section 15 is a substantive provision prescribing the entire structure of process for No-Confidence Motion. Section 15(11) amended by the Ordinance No.8 of 2022 is procedural whereas Section 15 (13) is substantive. The rider or prohibition on the power of the District Magistrate/Collector under Section 15(13) is to receive notice of a motion within the prescribed period therein, from the assumption of office by a Pramukh and not to proceed with it. At the relevant point of time, the date, when the motion of No-Confidence was delivered to the Collector or received by him, the period prescribed was "one year", which was adhered to by the elected members. Once the motion is moved, the substituted provisions of sub-section (13) prescribing 'two years' instead of old provision of 'one year' would have no application, either to reject or return the motion of No-Confidence moved by the elected members presuming that the Collector has no power to receive it after the amendment. The undisputed position is that when the motion was moved, the Collector was well within its power to receive and process the same. Moreover, once the motion has been processed, the substitution provisions will have no application, in as much as, presumption is about the prospectivity of the substituted provisions and against the implied retrospectivity. Reliance is placed on the decision of the Apex Court in Municipal Council Palai Vs. T.J. Joseph4; to substantiate the above noted submissions.
7. The arguments of Sri Navin Sinha and Sri Rakesh Pande learned Senior Counsels have been adopted by Sri G.K. Singh learned Senior Advocate appearing for the petitioner in the connected matters.
8. Sri Ajit Kumar Singh learned Additional Advocate General for the State respondents would submit, in rebuttal, that the question is not as to whether the Ordinance to substitute the provisions of Section 15(13) of the Act' 1961 is retrospective or not. It was contended that the Ordinance brought substitution of the existing provisions. The words used in the Ordinance No.8 of 2022 "shall be substituted" have been highlighted with the aid of decision of the Apex Court in Zile Singh Vs. State of Haryana5 to assert that the substitution by amendment Act deleted the old provisions and made the new provisions operative. The old ceases to exists and new rule comes into existence. The substitution is different from "super-session" or "repeal". With the substitution of one text in the Statute, the pre-existing text cannot be kept alive.
9. Reference has further been made to the decisions of the Apex Court in Bhagat Ram Sharma Vs. Union of India6, State of Rajasthan Vs. Mangilal Pindwal7, Fibre Boards Private Limited, Banglore Vs. Commissioner of Income Tax, Banglore8, Cheveti Venkannya Yadav Vs. State of Telangana & others9 and Dharam Dutt & others Vs. Union of India & others10 to substantiate the said submissions.
10. With the aid of the decision in Mohan Lal Tripathi Vs. District Magistrate, Rae Bareilly11, it was argued that the right to remove an elected representative stem out of the statute and its existence can be decided on the basis of the provisions of the Act. In the facts of that case, reduction of period from 'two years' to 'one year' during which vote of No-Confidence Motion could be tabled against a President of the Municipal Board by Ordinance, which later became Act, was challenged on the ground that there was absence of any discernible and rational principle and the legislature had resorted to as "spoils system", the amendment was thus, constitutionally invalid. It was held therein that but for lack of legislative competence or for being arbitrary, a legislative action cannot be struck down on the ground of malafide. The amendment about the period during which a No-Confidence Motion could be brought against the elected President is a matter of legislative policy, the wisdom of which cannot be scanned by the Apex Court.
11. It was also argued by the learned Additional Advocate General that the Apex Court has noted therein that the right to continue in office of an elected representative is neither a fundamental right nor a common law right, but a special right created by the statute or a political right or privilege and not a natural or absolute or vested right. Similarly, the right to remove an elected official from his office before his or her term expires is a statutory right, which can be exercised only within the limits of the statute, i.e. within the ambit of the existing provisions prevailing on the date of exercise of the right to move the No-Confidence Motion. As in the instant case, the right to move No-Confidence Motion conferred upon the elected members has been altered by the legislative amendment brought within the legislative competence, No-Confidence Motion cannot be carried out as the elected members have lost their right to carry out the No-Confidence Motion on or after 04.10.2022.
12. Reliance has further been placed on the decision of the Karnatka High Court in Smt. Geetha Pandit Rao vs The State Of Karnataka12 to submit that in a challenge to the amendment brought by the State of Karnataka to reduce the period for moving No-Confidence Motion against President/Vice President of Zila Panchayat from '30 months' to '15 months' under the Ordinance No.2 of 2020, the question considered by the Karnatka High Court was as to whether the impugned amendment to the Act and rules are prospective or retrospective in nature. Considering the decision of the Apex Court with regard to the interpretation to the word "substitution", it was held therein that the amendment which is procedural in nature is retrospective in nature and not prospective as the 'vested right' or 'accrued right' of the member of the Zila Panchayat to retain the elected office would begun from the date of their assumption of office as member of Zila Panchayat. The reduction in the period to bring No-Confidence Motion against an elected President/Vice President of Zila Panchayat from '30 months' to '15 months' under the Ordinance No.2 of 2020 would be operative from the date of assumption of the office by such President/Vice President.
13. Reliance has been placed therein on the decision of the Apex Court in Mohan Lal Tripathi (supra) to hold that the provisions of No-Confidence Motion, the recall of the elected representative, so long it is in accordance with law, cannot be assailed on abstract law of democracy. The challenge to the validity of the Ordinance in curtailing the period barring No-Confidence motion by the elected representative, thus, was turned down.
14. On the same analogy, it was argued by the learned Additional Advocate General, that by interpretation of the amendment in sub-section (13) of Section 15, it may be held that the elected representative has a 'vested right' or 'accrued right' to remain in his elected office for a period of 'two years' which would begun from the date of his assumption of office as Pramukh, Kshettra Panchayat and in that view of the matter, the amendment with that perspective has to be given retrospectivity. From another angle, on the right of elected members to bring No-Confidence Motion, it may be held that they have left with no right to carry out the No-Confidence Motion after the amendment wef 04.2.2010, as the Collector is prohibited from proceedings with the same. The submission thus, is that from both the angles, No-Confidence Motion moved by the petitioners, the elected members of the Kshettra Panchayat, cannot be carried out. The District Magistrate/Collector, therefore, cannot be said to have committed any illegality in cancelling the motion of No-Confidence brought by them.
15. Sri Ashok Khare learned Senior Advocate appearing for the elected Pramukhs has relied on the decision of the Apex Court in Trimbak Damodhar Rajpurkar Vs. Assaram Hiraman Patil & Ors.13 to elaborate and would submit that the expression of the right of elected member to bring the motion has to be given its true meaning in terms of the scheme of the statute. It was argued that the right to bring a No-Confidence Motion under Section 15 would not be a "vested right" or "right accrued" only on the motion being received by the Collector. Such a right accrued only on the motion being put to vote, i.e. on the date of discussion on voting by the elected members on the motion of No-Confidence. Before such a right could be accrued upon the elected members, the amendment came into force. Sub-section (1) of Section 15 only speaks of a contingent right by stating that a motion expressing want of confidence in Pramukh of a Kshettra Panchayat may be made, in accordance with the procedure laid down in the sub section (2) to (13) followed thereafter. The written notice of intention to make the motion though received and scrutinized by the Collector but after the amendment brought in sub-section (13) of Section 15, it became impossible for the District Magistrate/Collector to process the motion of intention. There is no discretion with the District Magistrate to carry out the motion of No-Confidence as restriction by the legislature has been put in place on the power of the District Magistrate to process the No-Confidence Motion, for a period of 'two years', against an elected Pramukh from the date of his assumption of the office.
16. The discussion in Trimbak Damodhar Rajpurkar (supra) has been placed before us, as an instance, to argue that on the same analogy, it was held therein that the right of landlord to eject the tenant was subject to termination of tenancy under the Amendment Act. Unless and until the notice was served upon the tenant with the intention to terminate the tenancy, no right to eject the tenant could be accrued in favour of the landlord, under the unamended provisions by serving a notice to vacate the premises on expiry of the tenure of the lease.
17. Sri S.K. Tyagi learned counsel appearing for the elected representatives, has relied upon the decisions of the Apex Court in Gajraj Singh and others versus State Transport Appellate Tribunal and others14, Vijay Vs. State of Maharashtra15; University of Kerala & others Vs. Merlin J.N. & another etc. etc16 to assert that purposive interpretation has to be given to an enactment or an amendment, depending upon the scheme of the enactment, the legislative intend to bring the amendment. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other persons or on the public generally, and where to confer such benefit appears to have been the legislature's object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. A procedural provision has to be interpreted keeping in mind of the above principle to give it retrospectivity, to apply on the pending applications.
18. In rejoinder, learned Senior Counsels for the petitioners would submit that the answer to the issue pertaining to impossibility of action on the part of the Collector after amendment, as agitated by Sri Ashok Khare learned Senior Counsel for the elected Pramukh, lies in the provision of the Section 6 of the General Clauses Act, which saves the right of the elected members to carry out the No-Confidence Motion moved by them prior to the amendment. The doctrine of impossibility cannot be invoked in the facts and circumstances of the case, in as much as, the elected members have right to effectuate the motion. Reference has been made to the decision of the Apex Court in N. T. Devin Katti vs. Karnataka Public Service Commission17 to draw an analogy that a person who has applied for selection against the post has a vested right to be considered for selection in accordance with the existing rule or order applicable on the date of the application. He cannot be deprived of the limited right of being considered for selection in accordance with the rules as they existed on the date of advertisement, on the amendment of the rules during the pendency of the selection unless the amended rules are retrospective in nature.
19. Learned counsels for the State-respondents adding to their submissions, as noted above hereinabove, relied upon the decisions of the Apex Court in Ajay Makan Vs. Adesh Kumar Gupta18, Shilpa Mittal Vs. NET Delhi19 to place the principles of interpretation of statute, to assert that for giving purposive interpretation, it has to be kept in mind that interpretation is best which makes the textual interpretation match the contextual. Reference has also placed to the decision of the Apex Court in P. Suseela and others Vs. University Grants Commission and others20 to narrate the distinction between an 'existing right' and the 'vested right' and the circumstances in which such rights can be asserted in case of amendment/substitution of the existing provisions.
20. Having heard learned counsel for the parties and perused the record.
21. To deal with the rival arguments of the learned counsel for the parties, we are required to understand the legislative scheme, the set up in which Section 15 has been put in place in the Act' 1961.
22. With the introduction of Article 243 to 243-O, by the Constitution 73rd Amendment Act' 1992 w.e.f. 24.04.1993, the word "Panchayat" has been defined in Article 243 (d) to mean an institution (by whatever name called) of self government constituted under Article 243-B for the rural areas. As per Article 243-B, the Panchayats are constituted in every State, at the village level, intermediate and district level in accordance with the provisions of Part IX of the Constitution of India. Prior to the Constitution (73rd Amendment) Act' 1992, the constitutional provisions relating to Panchayat were confined to Article 40, in the Directive principles of State policy.
23. The introduction of Article 243 to 243-O provided for self governance in the pyramidical structure of local self government. Under the 73rd Amendment of the Constitution, Panchayat became an `institution of self governance' which was previously a mere unit under Article 40. Decentralization is perceived as a pre-condition for preservation of the basic values of a free society. The 73rd amendment has been termed as a very powerful `tool of social engineering' which has unleashed tremendous potential of social transformation to bring about a sea-change in the age-old, oppressive, anti human tradition of Indian society. (Reference Bhanumati Vs. State of U.P. & others21). It was observed by the Apex Court in paragraph No.26 therein as under:-
"26.In other representative democracies of the world committed to a written Constitution and rule of law, the principles of self Government are also part of the Constitutional doctrine. It has been accepted in the American Constitution that the right to local self- Government is treated as inherent in cities and towns. Such rights cannot be taken away even by legislature. The following excerpts from American Jurisprudence are very instructive:-
"Stated differently, it has been laid down as a binding principle of law in these jurisdictions that a statute which attempts to take away from a municipal corporation its power of self-Government, except as to matters which are of concern to the State as a whole, is in excess of the power of the legislature and is consequently void. Under this theory, the principle of home rule, or the right of self-Government as to local affairs, is deemed to have existed before the constitution."
24. The democratically organized unit have been conferred power of governance and the purpose as envisioned is to instill a sense of satisfaction in the people at the grass root level. With this idea of decentralization of power, giving it at the hands of the people at the grassroot level, the Constitution requires the State to make law providing for structure of the Panchayat, the concept of Gram Sabha, the composition of Panchayats, reservation of seats, term of Panchyats, disqualification for membership, powers, authority and responsibility of Panchayats and conferment of power to impose taxes, duties, toll and fees, election to the Panchayats and creation of bar for courts to interfere in electoral matter, under Article 243 to 243-O.
25. The Act' 1961 was enacted for establishment of Kshettra Panchayat and Zila Panchayat in the districts of U.P. to undertake certain government function at Kshettra and district level, respectively in furtherance of the principle of democratic decentralization of government function and for ensuring, proper Municipal Government in rural areas, and to correlate the powers and functions of Gram Sabhas under the U.P. Panchayat Raj Act' 1947, with Kshettra Panchayats and Zila Panchayats. The Act provides for constitution and incorporation of Kshettra Panchayats, Composition, election to the office of Pramukhs, tenure of Pramukh, disqualifications for membership of Kshettra Panchayat and the method for motion of No-Confidence. The term of the office of Pramukh of Kshettra Panchayat which shall commence upon his election, shall extend upto the term of the Kshettra Panchayat (as per Section 9) which shall be for five years from the date appointed for the first meeting of Kshettra Panchayat. The elected Pramukh, thus, retains his office until the expiry of the term of the Kshettra Panchayat, subject to disqualifications and a motion of No-Confidence.
26. Section 15(1) confers a right on the members of the Kshettra Panchayat to bring a motion expressing want of confidence in the Pramukh. The motion so made is to be proceeded in accordance with the procedure laid down in sub-sections (2) to (13) of Section 15. The provisions of sub-sections (2) to (13) as is evident are procedural in nature, as they provide the manner in which the motion of No-Confidence brought by the elected members would be received by the Collector and shall be carried out. The Full Bench of this Court in Vikas Trivedi Vs State of U.P. others 2013 (8) ADJ 523 (FB); 2013 SCC Online Alld 14264 has held that Section 15 of the 1961' Act is a statutory provision recognizing the right of an elected members to bring the motion of No-Confidence against the Pramukh. The Collector is entrusted with public duty to issue notice.
27. A Division Bench of this Court in Radhey Shyam Maurya Vs. State of U.P.22 decided on 01.05.2012 while considering the legislative aspect of the motion of No-Confidence under Section 15 of the 1961' Act, has held that no ground has to be disclosed while moving the motion. It was held that the right to motion or to participate in the debate is a statutory right in the members, conferred by Section 15 of the Act. The legislature to its wisdom has conferred power on the members of the Kshettra Panchayats to move requisition in the prescribed format for motion of No-Confidence. The elected representative are accountable to their electorate and electorate chose their members as well as Pramukh. It is the right of the elected representatives to show their lack of confidence by moving motion of No-Confidence in accordance with the statutory provisions. This is inherent philosophy in the policy of the motion of No Confidence. Election for five years does not mean that the elected representative has got blanket power to move on his/her own way without taking care of public interest. Persons holding public office as a leader of elected body are elected to discharge public obligation and can continue till the confidence reposed in them by the people.
28. The Full Bench in Vikas Trivedi (supra) having noted the above observations of the Division Bench has put a note of caution that all provisions of the statute are required to be complied with and there is no discretion in the authorities and they are not free to disregard the provisions of statute to carry out No-Confidence motion at their whims. The question before the Full Bench was, however, with regard to the mandatory or directory nature of the prescribed procedure, the requirement of giving notice by the Collector under Section 15(3) (ii) in the prescribed form as required by the rule.
29. The above noted observations about the import of Section 15 of the 1961' Act, are relevant to understand that the provisions of Section 15 are procedural provisions and the right to carry out a motion of No-Confidence brought by the elected members against the Pramukh of Kshettra Panchayat has to be, exercised within the framework of the statute. The statutory provisions are to be followed strictly.
30. We may further note that while sub-section (1) of Section 15 confers statutory right upon the elected members of Kshettra Panchayat to bring a motion expressing want of confidence in the Pramukh of a Kshettra Panchayat, the said right is curtailed by sub-section (13) of Section 15 itself which provides a caveat that no notice of motion under Section 15 shall be received within the time prescribed therein of the assumption of office by the Pramukh. This time period prescribed in sub-section (13), which was 'one year' has been substituted by Ordinance No.8 of 2022 w.e.f. 4.10.2022 to 'two years' of the assumption of office by a Pramukh. The Collector concerned is, thus, prohibited from receiving a motion expressing want of confidence in a Pramukh of Kshettra Panchayat within 'two years' of his assumption of office since the date of enforcement of the amendment which is 04.10.2022.
31. The dispute is that whether the substitution of words "two years" in place of "one year' would operate prospectively or retrospectively. The argument of learned counsels for the petitioners is that once the motion of No Confidence has been received by the Collector, having been moved by the elected members in accordance with the provisions of sub-section (1) & (2) of Section 15, there was no option before the Collector but to proceed, to carryout the motion, in accordance with the provisions of sub-section (5) to (11) of Section 15, as the date fixed by the Collector, after scrutiny of the written motion, to consider the motion of No-Confidence had been adjourned and the amendments were brought in between. The submission is that with the moving of the motion of No-Confidence, the elected members have exercised their right to vote in the meeting to be convened by the Collector in accordance with the procedure prescribed in the Section 15. With the right exercised by the elected members created a further right in favour of them which is a "vested right" or "right accrued/acquired". The effect of repeal without any saving clause of the existing provisions, would imply the application of the substituted provisions as prospective. With the substitution of the old provisions, the normal rule is to give prospective effect to the new provisions and the retrospectivity, by implication is an exception. There is presumption against implied retrospectivity, with the effect of repeal, the 'accrued right' would survive by virtue of Section 6 of the General Clauses Act, unless they are taken away expressly. We are, thus, required to consider the effect of the right exercised by the petitioner/elected members, which is a statutory right, by bringing the motion of No-Confidence, before the Collector in the prescribed format.
32. Having noted above that the provisions of Section 15 are based on democratic principles, in order to preserve the rule of self-governance at the grassroot level, and that they are procedural in nature, we are first required to consider the principles of application of procedural amendments.
33. It is fundamental rule that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such a construction. A statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. Generally, there is strong presumption that a legislature does not intent to impose a new liability in respect of something that has already happened, because generally it would not be reasonable for a legislature to do that. But this presumption may be overcome not only by express words in the Act but also by circumstances sufficiently strong to displace it.
34. The principle applied by the Court in construing legislation as expressed in Craies on Legislation 9th Edition is that retrospective application is to be rebuttably presumed not to be intended, that retrospectivity should be avoided except where necessary. However, this rule both fundamentally and in a straightforward manner cannot be applied as a number of difficulties arise in determining its precise extent and how to apply it. One of such is in determining whether a statute is retrospective concerns the possibility of action under a statute which has effect not only for the future but is brought about in part by reference to past events i.e. future action in relation to past events. A further necessary distinction is that retrospective operation is one matter, interference with existing rights is another. As noted in the Craise on Legislation 9th Edition at placitum 10.3.7 in Chapter 10:-
"Distinction between retrospectivity and affecting existing rights A further necessary distinction between what is and is not retrospectivity is illustrated in the following passage of the judgment of Buckley L.J. In West v Gwynne Retrospective operation is one matter. Interference with existing rights is another. If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective. That is not this case...... As a matter of principle an Act of Parliament is not without sufficient reason taken to be retrospective. There is, so to speak, a presumption that it speaks only as to the future. But there is no like presumption that an Act is not intended to interfere with existing rights. Most Acts of Parliament, in fact, do interfere with existing rights."
35. However this rigid rule against retrospectivity does not apply in relation to procedural provisions. There is distinction between procedural and substantive provisions for the purpose of application of rule relating to retrospectivity. As noted in 'Craise at placitum 10.3.9 at page No.436,' the nature of exception and its justification are clearly encapsulated in the passage from the speech of Lord Brightman in noted in Craise on Legislation (9th Edition):-
"Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing rights or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past. There is, however, said to be an exception in the case of a statue which is purely procedural, because no person has a vested right in any particular course of procedure, but only a right to prosecute or defend a suit according to the rules for the conduct of an action for the time being prescribed."
36. The general rule against the retrospective operation of statute does not apply to procedural provisions. Indeed, a general presumption is that the statutory change in procedure applies to pending as well as future proceedings.
37. The distinction between the substance and procedure is, however, not always easy to ascertain or apply as stated by Lord Brightman in his speech noted at placitum 10.3.9 at page '437' in Craise on Legislation (9th Edition):-
"But these expressions 'retrospective' and 'procedural', though useful in a particular context, are equivocal and therefore can be misleading. A statute which is retrospective in relation to one aspect of a case (e.g. because it applies to a pre-statute cause of action) may at the same time be prospective in relation to another aspect of the same case (e.g. because it applies only to the post-statute commencement of proceedings to enforece that cause of action); and an Act which is procedural in one sense may in particular circumstances do far more than regulate the course of proceedings, because it may, on one interpretation, revive or destroy the cause of action itself."
38. The general preposition outlined above in Craise on Legislation is that for the consideration of retrospectivity, there is no substitute for consideration of the substance of the provisions concerned, and taking all the circumstances into account, considering what result the legislature can reasonably be presumed to have wanted or not wanted to achieve.
39. As stated by Lord Denim in Blyth and Blyth23, the rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affects vested right. It does not apply to statute which only alter the form or procedure or the admissibility of evidence or the effect which the courts give to evidence.
40. In stating the principle that "a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective" the Supreme Court has quoted with approval the reason of the rule as expressed in Maxwell:- In Anand Gopal Vs. State of Bom24 "No persons has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament, the mode of procedure is altered, he has no other right than to proceed according to the altered mode".
41. In Commissioner of Police, Delhi & another Vs. Dhaval Singh25, it has been said that:-
"The law relating to forum and limitation is procedural in nature whereas law relating to right of action and right of appeal even though remedial is substantive in nature; that a procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligation or to impost new duties in respect of transaction already accomplished; that statute which not only changes the procedure but also creates new right and obligation shall be construed to be prospective, unless otherwise provided either expressly or by necessary implication."
42. It was, thus, expressed that in deciding the question of applicability of a particular statute to past events, the language used is no doubt the most important factor to be taken into account but the real issue in each case is as to the dominant intention of the legislature to be gathered from the language used, the object indicated, the nature of rights affected, and the circumstances under which the statute is passed.
43. Keeping in mind of the above legal principles, we are required to examine the nature of amendments in the instant case, considering the arguments of Sri Rakesh Pande one of the learned Senior Counsel for the petitioner that the effect of "substitution" of the words "two years" in place of "one year" would be to apply the amendments prospectively. This argument is plainly based on the general principle of presumption against retrospectivity.
44. As noted above, general rule against retrospective operation of statute does not apply to amendments in procedural provisions/statute. If simplistic interpretation of amendment with the words "substitution" of the old provisions, as asserted, is applied, the result would be that an elected Pramukh in the last election, against whom the motion of No Confidence has not been brought till the amendment enforced in sub-section (13) will be able to continue for a period of 'two years' from the date of assumption of his office. Whereas another Pramukh who is elected in the same election, against whom the motion of No Confidence has been brought prior to the amendments i.e. 04.10.2022, may be removed before expiry of period of 'two years' from assumption of his office, if the motion is carried out in the meeting called by the Collector.
45. It would be quixotic to suppose that the State legislature intended to curtail the right of members to move No-Confidence motion against a Pramukh for a period of 'two years' of the assumption of office, only of such members who did not or could not bring such a motion after expiry of period of one year, under the pre-existing provisions. And simultaneously, it will allow the elected members to carry out or vote on the motion of No-Confidence brought by them within the period of 'two years' (as per the amended provisions), simply because the motion was moved prior to the amendment. It is settled rule of interpretation that any interpretation of statute which leads to absurdity should be avoided. It is presumed that the legislature does not intend an absurdity, or that absurd consequences shall follow from its enactment. Such a result will, therefore, be avoided, if the terms of the Act admit it, by reasonable construction of the statute. It is applicable, like all other presumptions, thus if by applying the literal rule of interpretation, the construction is being absurd then it should be avoided.
46. In our considered opinion, having gone through the object and substance of the provision concerned, the legislature can reasonably be assumed to have wanted to curtail the right of an elected members to bring motion of No-Confidence within a period of 'two years' of the assumption of office by a Pramukh, by bringing amendment in sub-section (13) of Section 15.
47. The arguments against retrospectivity of the amendments by applying the normal rule of prospectivity or rule of presumption against implied retrospectivity, are liable to be turned down.
48. Now the question remains as to the nature of the rights, conferred by the legislature by virtue of sub-section (1) of Section 15 on the elected members to bring a motion expressing want of Confidence in the Pramukh.
49. The contention of Sri Navin Sinha learned Senior Counsel for the petitioner is that with the moving of the motion of No Confidence by elected members before the Collector and the Collector having fixed a date to convene the meeting of Kshettra Panchayat for consideration of the motion thereon, a "vested right" is created in favour of the elected members. The rights accrued to the elected members cannot be curtailed with the repeal of the existing provisions. Section 6 of the General Clauses Act has been pressed into service to assert that such a right has to be saved by considering the effect of repeal without any retrospective operation of the substituted provisions.
50. This submission though seemed convincing at the first blush but on a deeper scrutiny of the same, we find that no "vested right" or "accrued right" can be said to have been created in favour of the elected members by mere moving of the motion of No-Confidence against the Pramukh. The observations of the Apex Court in Mohan Lal Tripathi Vs. District Magistrate, Rae Bareilly26 while dealing with the challenge to the amendment for reduction of period during which a motion of No Confidence could be tabled against the President of the Municipal Board, from 'two' to 'one' year are relevant to be noted here:-
"2.........Right to remove an elected representative, too, must stem out of the statute as `in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers'. (American Jurisprudence Vol. 63 2nd Edn. p.238.) Its existence or validity can be decided on the provision of the Act and not, as a matter of policy............"
51. It was observed therein that the validity or otherwise of a No-Confidence Motion for removal of a President would have to be examined on the applicability of statutory provisions; so long as it is in accordance with law, the recall of an elected representative cannot be assailed either on political philosophy or on abstract notions of democracy.
52. In Usha Bharti Vs. State of U.P27, the Apex Court had considered the concept of the provisions of No-Confidence Motion under Section 28 of the Act' 1961. It was observed therein that:-
"45. ............The provision of No Confidence Motion, in our opinion, is not only consistent with Part IX of the Constitution, but is also foundational for ensuring transparency and accountability of the elected representatives, including Panchayat Adhyakshas. The provision sends out a clear message that an elected Panchayat Adhyaksha can continue to function as such only so long as he/she enjoys the confidence of the constituents.
53.In our opinion, the provision for removing an elected representative such as Panchayat Adhyaksha is of fundamental importance to ensure the democratic functioning of the Institution as well as to ensure the transparency and accountability in the functions performed by the elected representatives."
53. In light of the above, it can be seen that the object for making provisions for removing an elected Pramukh though is to ensure the transparency and accountability in the functions performed by an elected representatives but the right conferred on the elected members to bring a motion expressing want of Confidence in the Pramukh, can be exercised only in accordance with the provisions of the statute, Section 15 of the Act' 1961.
54. The exercise of such a right by moving a motion of No-Confidence as conferred under sub-section (1) and (2) of Section 15, in our considered opinion, is only an expression of intention to bring the motion. The intention to make the motion, does not confer any 'vested right' with the elected members to carry-out the motion of No-Confidence in the meeting convened by the Collector. The obligation cast upon the Collector for compliance of mandatory provisions of sub-section (3) of Section 15, would have no bearing on the right of an elected members to bring the motion. No "vested right" or "accrued right" can be said to be created in favour of elected members for consideration of motion by mere fixing a date to convene the meeting in accordance with sub-section (3) and (4-B) of Section 15.
55. Moreover, carrying out a motion of No-Confidence would depend upon the result of voting thereon. It would be another case where the meeting had been held and the motion was considered, the elected members in that case will have a right to carry-out the motion of No-Confidence according to the result of the meeting fixed by the Collector. "Vested right" would have been created in that case with the elected members, which could not have been curtailed by substitution of sub-section (13) of Section 15.
56. Mere exercise of right to bring the motion by the elected members would come within the meaning of "existing right" to proceed with the motion of No-Confidence received by the Collector as on the date of amendment. The said right has been curtailed by the substitution of the period during which a No-Confidence motion could be tabled against the Pramukh, from 'one year' to 'two years'. With the coming into force of the amendment w.e.f 04.10.2022, it became impermissible for the Collector/Presiding Officer to table the motion for consideration by convening a meeting and declare it to be open for debate. The right of the elected members to debate on the motion in the meeting convened by the Collector/Presiding Officer, being mere "existing rights", has been curtailed by retrospective operation of the procedural amendment, wherein No-Confidence Motion cannot be brought against a Pramukh within 'two years' of the assumption of office by him.
57. Moreover, in light of language of sub-section (13) of Section 15, because of the words "of the assumption of office by a Pramukh", the period of two years" prescribed therein would relate back to the date of the assumption of office by a Pramukh.
58. From all angles, taking into consideration of the substance of the provisions, taking all circumstances into account, considering what result the legislature can reasonably be presumed to have wanted to achieve, we find that the substitution of procedural provisions under sub-section (13) of Section 15 has to be applied retrospectively. The No-Confidence moved by the elected members cannot be tabled for discussion or declare open to debate by the Collector after substitution of the period from "one year" to "two year" during which such a motion could be moved.
59. For the above discussion, on all counts, the action of the Collector concerned in cancelling the motion expressing want of confidence in the Pramukh of Kshettra Panchayat received by him, "within two years" "of the assumption of office by the Pramukh" cannot be said to be illegal. There is no merit in the challenge.
60. All the writ petitions are, accordingly, dismissed.
(Vipin Chandra Dixit,J .) (Sunita Agarwal, J.)
Order Date:-28.02.2023
Himanshu